§ Sir James Mackintosh moved the order of the day for going into a committee on this bill. On the question, "That Mr. Speaker do now leave the Chair,"
The Solicitor-Generalsaid, it was with great reluctance he opposed the motion of his hon. and learned friend. In doing so, he was not insensible to those feelings of humanity in which the measure had its origin; but he was compelled, in the discharge of his public duty, to give his negative to the bill. It was quite impossible that any party feeling or party view could influence any member on this subject; as it ought to be considered entirely on its own merits, which were, the interests of humanity, so far as those interests were compatible with the security of the public. The House was aware that this bill arose out of the report of a committee which had been appointed during the last session. He stated un-feignedly that he had the highest respect for the great talents, great discernment, and great experience of the members of the committee, than whom there could not be men better calculated for the impor- 894 tant charge intrusted to them; yet the report had proceeded on a partial view of the question. He spoke of it, of course, as connected with the evidence; and so considering it, it was impossible not to feel that it presented a partial view to the consideration of the House. He attached no blame to the committee, but to their method of inquiry, and to the circumstances connected with that inquiry. A large number of respectable persons were known to be averse to capital punishments who had been eager in the pursuit of their object, and had pressed themselves on the committee to give evidence. This might have been foreseen, and it was impossible not to see that this had actually taken place. There were persons of opposite opinions who had naturally withheld their evidence, and had felt reluctant to state their experience, unless they were compelled by the order of the committee such persons were not compelled, and of course no evidence from them appeared on the face of the report. The report itself was evidently drawn up in a haste, as many inaccuracies appeared in it. Thus, it was stated, that stealing in dwelling-houses to the amount of 40s. was a capital offence by the law as it stood. Now, he had no hesitation in saying that there was no law respecting stealing in houses to the amount of 40s. In like manner, the report stated that stealing in ships and vessels on navigable rivers was a capital offence; there was no such offence known to the law of England. These circumstances he mentioned to show that the report was drawn up in haste, and was not, therefore, entitled to the attention which, from the known talents and attainments of the individual who had been chairman, might be thought due to it. It also conveyed a charge against a learned judge, now no more, for whose memory he had the greatest respect and veneration. At the assizes in Essex an individual had been tried, convicted, and executed, for cutting trees. The charge against the learned judge and the secretary of state for the home department was, that the individual had been executed, not for the crime of which he had been convicted, but for other offences for which he had not been tried or convicted. A charge so serious in its nature should not have been made without due inquiry. The committee had it in their power to have instituted that inquiry—the clerk of the crown for Essex lived in London, and 895 might have been examined; no such examination topic place. He had himself inquired into the circumstance, and had ascertained that the individual who had suffered the sentence of the law, so far from not having been convicted of any other' crime, was at that very assize, charged under eight distinct indictments, with eight distinct offences, one of which was burglary; and of four of those offences he was convicted.
§ Mr. Buxton.—Was he convicted of the burglary?
The Solicitor General.—There were seven cases of larceny charged against him, of four of those he was convicted; he was not convicted of the burglary. It was proved that he had cut down the timber from motives of malice against the proprietor of the land. He had thought it necessary to state the circumstance, not for the purpose of throwing any censure upon the committee, but to free the character of a venerable judge from the odium which might be thought to have been thrown by the report upon his memory.—In adverting to the bill before them, it appeared that the object of it was to take away, for the first offence, the punishment of death in cases of forgery of every description, save those of notes of the Bank of England. It was necessary, therefore, to consider the cases to which the bill applied. It applied to the forgery of wills—a crime easily committed, and by which families might be stript of their entire property. It applied also to the forgery of marriage registers—a crime which went to destroy not merely the property of families, but to affect the legitimacy and character of its members. It also applied to the forgery of deeds of conveyance of property to any amount, and cases of the transfer of stock—cases so very important, and on which depended property to a great amount. He recollected having been employed in one case where the party was charged with having committed forgery respecting the transfer of stock to the amount of 20,000l. The House, he thought, should not in cases of such great importance, proceed to alter the law, without having before them the strongest reasons for a measure so important to the country—so deeply affecting the security and property of families. He was aware that it might be said, that the existing laws against forgeries were but so many innovations on the common law. By the common law, the 896 crime of forgery was not punishable with death; it was treated as a misdemeanor. But it should be recollected, that in the infancy of writing, when commerce was limited, and the transactions of the people were simple, forgery was a crime of rare occurrence. But as commerce increased, and society advanced, the crime of forgery became more frequent; hence the statute of Elizabeth, a statute enacted to guard against the repetition of the crime. That statute, though it did not inflict the punishment of death, affixed a punishment nearly as grievous. It enacted, that every one convicted of the crime of forgery, should pay to the party injured double the value of the property—should be imprisoned for life—should be put in the pillory, and have his ears nailed to the pillory—should have his nose slit, and should be seared with a red hot iron,—should forfeit his goods and chattels to the Crown, and his lands and tenements for life. Such was the dreadful punishment affixed to the first offence; for the second offence the party was liable to be executed. So the law remained until the reign of George 2nd. The manners of the times rendered that law necessary. The Revolution effected a sensible change in the manners and feelings of the country. Imprisonment for life, and the dreadful punishment of mutilation, could no longer be effected. The law of Elizabeth remained a dead letter, and the crime of forgery greatly increased in consequence. To meet the evil, the act of George 2nd was made, after very great consideration, and with the best advice. Lord Hardwicke was then attorney-general, and lord Talbot solicitor-general. The act, so cautious was the legislature, was first tried as a temporary act, to expire in five years. The subject was shortly afterwards brought again under the consideration of the legislature. Some verbal defects having been discovered in the act, it became necessary to correct them; in consequence of which, in less than a year after the passing of the act, the matter was brought a second time before parliament. Again, shortly before the expiration of the five years, the subject was brought under legislative consideration; and the act having been, found effective, was made perpetual. Since that period, the subject was frequently brought under the view of parliament. So lately as the year 1805, those acts were re-enacted, with reference to a particular object. 897 The House was aware that Scotland was exempted from the provisions of the act of George 2nd, because at the time that act was passed, forgery, by the law of Scotland, was punished with death; and a great many executions had taken place in that country from the time of passing the statute of Elizabeth, to the reign of George the II. He had, in support of the present system, the practice of this country during the administration of some of the wisest men that ever lived in it, and during parliaments which had been composed of men of the brightest talents. When they found a law so established, it required that not an ordinary, but an irresistible case should be made out to warrant its repeal. What, then, were the reasons on which this bill was founded? If they looked to the preamble of the bill, they would find the only reason there stated was, that the existing law was ineffectual for the prevention of forgery. On this issue he would meet his hon. and learned friend. On his experience, and the experience of those of the greatest knowledge on such subjects, whom he had consulted, induced him to withhold his assent to this proposition. He was convinced, that although the crime was not altogether repressed (as what crime could be by any punishment?), and that though some instances of it occurred which were not brought to punishment, yet on the whole it was effectually prevented. But it was stated, that if the punishment were mitigated, there would be more convictions, because many persons did not now prosecute, from the knowledge that the penalty of the crime was death, and that that severe penalty was generally inflicted in case of conviction. The truth of this he did not deny; but he denied that they could argue on this fact alone. They must take the whole of the case together, though they might, by mitigating the law, increase the prosecutions, they should put, on the other side, the diminution of the terror of the heavy penalty, and of the almost certain infliction of that penalty in case of conviction. This brought him naturally to the nature of the punishment proposed to be substituted for that of death. The object of punishment was the prevention of crime by terror. The punishment in this case was to be transportation. Now it was known that transportation was scarcely regarded in the light of a punishment; that it was regarded with no terror; that the criminals on being sen- 898 tenced to it, often bowed to the judge and thanked him. Who were the persons who were likely to commit private forgery? They were usually individuals who were in distress or embarrassment, and in circumstances in which the success of their crime seemed to them probable. Such a man would say to himself—"If I am convicted, what is the result? I shall suffer transportation—a change of circumstances scarcely to be deprecated. If I succeed, and am not detected, I may escape to another country to live in affluence;" for it was to be recollected, that this was a crime the object of which was, not the possession of a few pounds, but of a whole fortune. He did not say that a man about to commit a crime coolly reasoned thus, but these considerations passed through his mind, and determined him as by instinct. But as the law now stood, he would reason thus, perhaps—"the humanity of the person whom I am attempting to defraud, may withhold him from prosecuting; but if he does prosecute, I am sure to forfeit my life." He asked them, then, whether the new law was not likely to be much more inefficient to the prevention, of the crime than the present law? When he looked at the preamble of the present bill, and found it stated therein, that the existing law was insufficient to repress the crime of forgery; he thought that the House had a right to be satisfied that the new punishment which it was called upon to inflict in the place of the old one, would not at least be less insufficient. The object of his hon. and learned friend was, as he well knew, to repress the commission of forgery. But before he consented to his proposition, he had a right to demand of him the reasons on which he grounded it. With those reasons, as he had not yet stated them, he could not pretend to combat; but he might be allowed to advert to what he was informed was one of the usual arguments of his hon. and learned friend. His hon. and learned friend had said, that he did not intend to make transportation the only punishment for forgery; for in some cases he would have the offender imprisoned and kept to hard labour. Now, in reply to this argument, he would declare, that there was no such punishment for any great crime in this country, as imprisonment and hard labour. What there might be hereafter; he could not tell; neither could he know what might be effected by the benevolent and patriotic labours of hon. gentlemen in that 899 House; but at present it appeared as if hard labour had always been considered by the legislature as insufficient to deter from crime, especially when the crime was likely to be attended by great pecuniary advantages. The question came ultimately to this—"Has the hon. and learned gentleman who introduced this bill attached any; penalty to the crime of forgery more efficacious than that which he is endeavouring to take away?" He contended that he had not; and therefore could not give his assent to the proposition which he had made. He was well aware that in other countries the laws against forgery were not so severe as they were in. England. But other countries had means of prevention which this country had not: other countries had means of detection and conviction, through the agency of their police, which this country had not, and which he hoped to God it never would have. In France and in other countries private forgeries were not punished by death; but by the law of France, and by its system of police, which never could exist in a country with a constitution like our own, crimes could, in the first instance, be more effectually prevented than in England; and in the second, more easily detected, in as much as the individual charged with them was compelled, by a kind of cross-examination, to confess his own guilt, which was never the case in England—except when an individual was unfortunately called to the bar of that House. No inference, therefore, ought to be drawn in favour of the present bill from the practice of foreign countries; and he must add, that unless his hon. and learned friend was prepared to inflict upon the crime of forgery some punishment already recognized by the law and constitution, he must give his warmest opposition to the bill. He had, indeed, alluded to the severe laws which had been inflicted upon offences of this nature in the reign of queen Elizabeth; but those punishments were so contrary to the principles of the present age, and so abhorrent to its practice, that they could never again be recurred to. The House must therefore adhere either to the punishment of transportation, as his hon. and learned friend at present proposed, or to the punishment of death, as awarded by the existing laws. He had before stated the reasons why he thought the latter punishment better suited to the crime, and it was therefore almost unne- 900 cessary for him to add, that he, for one, should negative the proposition then before the House, and would move, "That this House will resolve itself into the said Committee upon this day six months."
§ Mr. Fowell Buxtonrose, and addressed the House to the following purport:*
§ Mr. Speaker; in rising to follow the hon. and learned gentleman, I should not do justice to my own feelings, if I did not express my satisfaction at the fair and candid statement which he has made; and I rejoice that no insurmountable difference as to principle appears to exist between that learned gentleman and my hon. and learned friend, the member for Knaresborough (sir J. Mackintosh). The Solicitor-general has stated, that no efficient substitute for capital punishment has as yet been discovered, and therefore that, as yet, the House is not in a condition to dismiss that species of penalty. Now, sir, I should be guilty of insincerity if I were to contend that transportation was any punishment at all. In fact, it is a privilege, and a privilege open to as many of his majesty's subjects as may qualify themselves for its enjoyment, by the commission of a transportable offence. Indeed, if the present were a time to enter into such a discussion, I would undertake to show, by documents in my possession, that transportation is neither considered as a punishment, nor has the effects of a punishment. But, how does the hon. and learned gentleman assume that there is no other mode of secondary punishment, when we have annual returns from the office of the secretary of state, giving the most flattering account of the success of another species of secondary punishment, namely, the Hulks? I am not prepared to state that that mode of punishment is in a perfect state; on the contrary, I entirely distrust its efficiency. But I am prepared to declare, that imprisonment, with hard labour and occasional solitary confinement, and constant inspection, and rigid discipline, is, in fact, the punishment you require. But, how stands the solicitor-general's argument? "We, the officers of the Crown, the legal and responsible advisers of his majesty, have certainly neglected our duty in not having provided a secondary punishment; and therefore, let those who are in no sense the legal and responsible advisers of
* From the original edition printed for John and Arthur Arch, Cornhill.901 the Crown, namely, capital felons, be executed." The premises are true enough; but what an inference! If the hon. and learned gentleman had said, "We confess we have done wrong, and therefore let us be punished—we have abandoned our duty, and therefore let us suffer for it," I should have been the last man in the House to withstand so fair and reasonable a proposition. But when he says, "We have neglected our duty, and therefore let others be hanged," this seems to me an inversion of every principle of justice.The hon. and learned gentleman justifies the infliction of death only on the ground of its necessity; and I cordially join with him in admitting, that the necessity of the case alone can, if any thing can, justify its infliction. The punishment of death is supposed to be necessary for the prevention of crime. Prevention of crime, then, being the only plea by which capital severity is considered to be justified, it becomes the only test by which it can be tried. So say the hon. and learned gentlemen—so I say. Let that point be considered as agreed and conventional between us—and I beseech the House to bear it in mind throughout the whole of this discussion. But it is somewhat surprising to me, that, while the hon. and learned gentleman not only admits but urges, that the prevention of crime is the only justification of our rigour, he never should have once ventured to enter on the proof, that crime is so prevented. He has enlarged on every incidental and collateral topic; and yet did he never once advert to—yet did he never once touch the margin of that capital consideration, which, by his own admission, alone can warrant the rigour of your law; namely, its practical effect—its experimental issue—the award which time, experience, large and long trial, pronounces upon its efficacy—how it works in the long run. These are questions of which the hon. and learned gentleman entirely admits the importance, and as entirely avoids the discussion. But I have no intention of following his example. Here rests the pith of the case. We have gone oh long enough taking it for granted, that Capital punishment does restrain crime and the time is now arrived in which we may fairly ask, does it do so? and in which we are bound to consider the state of crime in that country where this method of repressing it has so long been practised.
902 Thus, then, stands the case—A century has passed away, marked by nothing so extraordinary in our legislation, as the rapid growth of criminal laws. In that century, the criminal law of England has increased to fourfold dimensions. Of the twenty bulky volumes of the statutes on your table, three contain the statutes prior to the year 1700; for all the rest, we are indebted to the industrious spirit of legislation which has prevailed in later times. And, during that period, the advocates of severity have been permitted the utmost latitude, nay, I will say, the utmost licentiousness, of legislation. Well, then, severity being wisdom—and capital enactment being the best method of repressing crime—and we having attained the utmost point of that sagacious severity, it follows that, as to crimes; We must have attained the utmost point of perfection. It follows, that we must now enjoy that security against crime which belongs to so enlightened a system—it follows, that we, distinguished from ourselves in former periods, and from the rest of the world in the present moment, by greater severity of enactment, must be equally distinguished by greater rarity of crime. Our principles being true, this is the inevitable consequence.
Now, it might make the boldest, believer in the efficiency of executions pause a little, and somewhat distrust the infallibility of his own judgment, to contrast these reasonable and pleasant prospects—these bright, and, if his doctrine be sound, these inevitable results—with the strange and melancholy truth: and there are facts which place that result at Once in a most striking and a most alarming point of view.
It appears, by papers which ate how on the table of the House, that there passed through the prisons of this country in the year 1818, no less than 107,000 individuals. Some very considerable deductions, I grant, must be made from that number—some additions also must be made. But, without entering into minor details, making, for argument's sake, so extravagant an abatement as one-fourth—still, what an army of delinquents remains! What a mass of criminality does it display! But these are only a part, and comparatively a small part, of the number of criminals. These are the offenders detected in that year; and to these must be added, the' still greater number who, in that year escaped detec- 903 tion. Conjoin these, the comparatively few, who are seized, by your; law, with those the many who evade it—and then what a bulk and mass of crime does it open to us! "But, prevention of crime is our object," says the solicitor-general. And let me ask him—let me ask any one who views the question as the hon. and earned gentleman has invited us to view it:—not,as a, matter of party, but fairly and impartially—whether he can pretend to see in that mighty mass of guilt and infamy—in that enormous concourse or persons who are ever ready to invade the peace, and who always live by preying on the industry and property, of the community—any proof that crime has been prevented?
There is another fact, perhaps not quite so alarming, but quite as melancholy.—It appeared before a committee, of which the right hon. gentleman opposite was chairman—upon evidence which was only too conclusive, that in this metropolis alone there are from eight to ten thousand children, who earn their daily bread by their daily misdeeds—who now, indeed, live by petty pilfer, but who are growing in guilt more rapidly than they are growing in years—who are ripening into a greater capability of mischief—who are passing through an apprenticeship which, as it will disqualify them from becoming useful members of society, will fit them to become, for a time, the terror, and then the disgrace of your country—and who have yet to revenge on society, its inattention and its carelessness. "But, prevention of crime is our object." Then, I appeal to any man of competent judgment in the House, whether he can perceive, amidst these seeds of future delinquency—in this store and provision for the succession of criminals—in this multitude of poor wretches, who are rearing for no other, purpose than to supply your gaols, your penitentiaries, your hulks, your colonies, and finally the gibbets of your country with their victims—any thing like a proof of the efficiency of your law?
Then, there is another fact. Every hon. gentleman who has attended to this subject at all, will know, that, during the last ten or twelve years, crime has multiplied in a-four-fold ratio—and that that period, ten or twelve years, ago, remarkable, as contrasted with the present, day, for the rarity of its crimes, was equally remarkable for their redundancy, as compared; period, twenty, thirty, or 904 forty years preceding. And I plainly ask, whether the tact, that crime has grown—has flourished—has obtained, unprecedented extent, under your law, can be tortured into a proof, that that law has been effectual?
But again—the comparison between the number of crimes here, with those of other countries. I have taken pains to ascertain; the truth on this subject; and, I believe I am correct when I say, that there has not been a foreigner of distinction, acquainted with the state of crime in his own country, who, upon visiting England, has not been surprised and shocked at the number and audacity of crimes in this country. But, I need not depend on any thing so doubtful as individual opinion. We have certain data; we have the number of persons in Finance committed to prison, and also in England; and it appears, that the number in France, with a population of twenty nine millions, is less than in England, with a population of eleven millions.
Now, sir, I wish to place these broad facts before the common sense of the House. I know my own incapacity to meet the hon. and learned gentleman upon grounds of legal learning. If I were to attempt to compete with the superior knowledge and superior ability of the hon. and learned gentleman, I should only be injuring the cause which I so ardently desire to befriend. But, upon facts—I upon the truth of the case—upon the real result of your system, I fear nothing. And, so long as I confine myself to grounds like these, so long I know my cause to be invincible.
I ask, Sir, what inference any person, whose opinions are unbiassed by party or prejudice—and I am bound to believe that none of the gentlemen on the other side of the House, nor the ministers of the Crown, view this as a party question—I ask, what inference any such person would draw from facts such as I have just mentioned? For example, what would be the impression made upon the mind of a foreigner, who, ignorant of our institutions, was called upon to give an opinion upon the subject of the efficiency of our criminal law? His first question would be has it been tried long enough? and the answer must be, in truth it has: for; we have tried nothing else for, the last century.—Has it been tried on a scale large enough? This, too, we; must answer in, the affirmative: for, the law of England has displayed no unnecessary nicety, in 905 apportioning the punishments of death. For example: kill your father, or catch a rabbit in a warren—the penalty is the same! Destroy three kingdoms, or destroy a hop-bine—the penalty is the same! Meet a gipsey on the high road, keep company with the said gipsey, or kill him, no matter which—the penalty by law is the same!
Well, then! the system having been tried long enough, and largely enough, the foreigner whom I have supposed to be consulted would next ask, what are the results? His your law done that which you expected from your law? Are your houses safe? Certainly not. Are your streets safe? Certainly not Are your gaols empty? Certainly not. Is life more secure, and property less endangered here than elsewhere? Certainly not. Has crime decreased? Certainly not. Has it remained stationary? Certainly not. Has it increased? It certainly has—and in a prodigious rate. Why, then, your system has failed. That is the award which every reasonable man must give. The facts themselves bear with them the irresistible conclusion, that something somewhere must be wrong.
But, sir, I should not meet the question fairly—I should not assault the strength of my opponent's case—if I avoided that only experimental fact, by which the system of our opponents has been defended. It has been stated, that mitigation of punishment has been tried in the case of larceny from the person—that this crime has increased—and, therefore, that the view taken by the advocate of mitigation is erroneous. I admit the fact—that the crime of larceny from the person has increased. That proves, it is contended, that the discontinuance of capital punishments is bad. But, then, every other crime has increased in an equal or greater ratio. This proves, then, that the continuance of capital punishments is as bad or worse.
It is only incumbent upon us to show, that the crime has retained its original relative situation. It may positively have increased. No matter. Other crimes also have increased. The only question that deserves one moment's consideration is, this: Has the crime before us increased in a greater ration and with more rapidity than those other crimes in which no such mitigation has been tried? If not our case is established. It is only necessary for us to show, that we do as 906 well without those capital punishment as with them. Necessity can alone justify the infliction of death. But, if any minor penalty is equally effectual there is no necessity;—then, there is no right—and then, the infliction of death can be considered in no other light, and called by no other name, than that of legal murder.
Thus, then, the matter stands. The crime has increased, but not more rapidly than others of the same description. We have done as well without, as with the capital punishment. That is—our case is proved.
But, there is a second view of this part of my subject. What was the argument upon which sir Samuel Romilly urged, and upon which the House acceded to, the mitigation of the law? Was it not that the penalty was too heavy for the feelings of your people? That it prevented prosecutions and convictions? That these severities neutralize themselves; because your witnesses, your juries, your citizens, your judges themselves, cannot be prevailed upon to do their duty to so terrible a law? But, he added, abate this severity, and you will be rewarded by greater activity in the detection; by greater honesty in the conviction; and by greater certainty in the punishment of delinquents.
The result of mitigation in the instance alluded to, has been what that great man prophesied it would be. More convictions, and greater certainty of punishment have ensued. But, is it fair to turn, round upon those who advocate his principles and to urge against them the fulfilment of his prediction? It it fair to say—" see now—here are, exactly as you told us there would be, more prosecutions, and more convictions; in proportion to the prosecutions—which shows that you must be in the wrong" I say, the realization of our prediction shows that we must be in the right.
You will observe, Sir, that numerical increase of the number of persons convicted of a particular offence, is by no means an absolute proof of, the increase of that offence, when the penalty has been altered. In the one case, the severity of the law might be such that out of twenty criminals, only might be prosecuted. But, if the law became more mild, nineteen out of twenty might be prosecuted. For example—fraudulent bankruptcy—whicli was pun- 907 ishable with death. It appeared, by evidence before the committee on the bankrupt laws, that in a certain given period, there had been 38,000 bankrupts: and the highest legal authority has declared, I believe, that it was the utmost stretch of charity to suppose that only so few as nine out of ten had been fraudulent. Perhaps all these would not come within the meaning of the statute; but, no man will deny, that the number of bankrupts who were fraudulent in the eye of the law, and therefore liable to death, was very enormous. How many had been convicted in the same period? By the official return the number is, if I mistake not, three. But, when the law has so been mitigated, that all creditors and all assignees may be disposed, by a sense of interest, or a sense of duty, to prosecute, the number in an equal period may not be two or three, but as many thousands. Here would be an increase of prosecutions, which would imply any thing rather than an increase of crime. The argument which I have thus illustrated by the case of bankruptcy, applies with even more cogency to the case of larceny from the person; because there was at least as much indisposition to prosecute the man who privately took twelve pence from your pocket, as the man who was guilty of defrauding you to a considerable amount. I am entitled, then, to an abatement from the number of persons who appear by the calendar to have been convicted of this offence, equal to the number of those who, under the former rigor of the law, would not' have been prosecuted, or if prosecuted, would not have been convicted.
But, there is a third and a still more important view of the subject: and one which it seems astonishing to me should have escaped any legal gentleman. You will perceive, Sir, that two offences, very different in themselves, in their ordinary interpretation and in their legal character, are confounded together. The old law ran thus—"Guilty of stealing privately." It now runs, "Guilty of stealing." Now, that word "privately" is by no means a word of superfluity—of supererogation. It is a word of great importance, and upon its construction have depended the lives of hundreds. It has released men from gaol—it has opened the prison doors—it has uncoiled the rope from the neck of many a criminal, who, but for that potent word, would have been doomed to 908 death. The House will not forget the ingenious dilemma to which juries formerly had recourse, when they determined to save the life of a criminal. The case, we will say, was proved: his guilt was unequivocal; and it only remained to be ascertained, whether or not the act was done privately. If the prosecutor's attorney attempted to do this by clear and positive evidence, the jury would have it, that the very strength of the evidence proved, not the 'privacy, but the publicity of the act'. If, on the other hand, he attempted to prove it by indirect and circumstantial evidence, the jury took care to recollect that the life of man was at stake, and that nothing would justify his conviction but the most undeniably direct evidence; and so they would acquit him of the capital part of the offence. But I need not press this point any farther. It is clear, that here are two offences. In the one, the number is restricted to those only who are guilty of stealing privately: in the other, no such restriction is found: consequently, no such reduction of number. And, can it be a matter of surprise, that more persons are now guilty of stealing than were formerly guilty of stealing privately?
So, then, if the numbers stated in the calender be correct, they prove only, that this crime has increased in the same ratio with other crimes which continue capital—that is, they prove nothing upon the grand question. But, secondly, from that number, as declared by the calendar, I am entitled to considerable abatements: first, on the score of increased willingness to prosecute; secondly, on the score of the term "privately;" and I feel the fullest persuasion, that could the number which ought to be abated on these grounds be ascertained, it would really show, in this instance, a reduction of the crime since the law ceased to be capital.
Having thus dissected the only experimental fact which, as far as I know, has ever been alleged against us, I shall now submit to the hon. and learned gentleman certain other facts, upon which, in some degree, my opinion has been formed, and to which I invite the particular attention of that learned gentleman, or any other learned gentleman who may follow him;
About the same time, two experiments were made in criminal legislation; and had they been intended as experiments by which the soundness of the, principles of sir Samuel Romilly should be tried, a 909 test more sure and more conclusive could not have been invented. In the one case, we proceeded from lenity to rigour: in the other, from rigour to lenity. In the one, an offence previously punishable with fine, was made felonious: in the other, a crime previously punishable with death, was reduced to a transportable crime. Here, then, principle is opposed to principle—system to system—and the result is before us, in the most unquestionable and parliamentary shape.
We proceeded from lenity to rigour, for the protection of the excise. The offence of forgery, with respect to certain stamps, was, prior to the year 1807, punished only with fine. It was then raised into a felony. And the question is, with what effect? The committee called before them a witness who is, and, what is better, who will be admitted by the hon. and learned gentleman himself to be, entirely unexceptionable—one who had no interest to serve, by concealing or distorting the facts which had come to his knowledge, and who was too respectable to be led by any consideration to do so—A legal officer of the Crown, the solicitor of the excise, is the individual to whom I allude. What could be more fair, than to ask the solicitor of the excise his opinion of the effect of this augmented severity? Mr. Carr answered, that that change was a change for the worse—that the excise was better protected by your former lenity, than by your late rigour—and he added, for the purpose of showing that his observations apply not only to the particular case, but generally, that "whenever it is attempted to secure the excise, by making breaches of the revenue law crimes, it is the fraudulent trader who is protected, and not the revenue." But we next asked, what was Mr. Carr's reason for thinking thus? His reason was, he told us, that he had observed that the officers would rather connive at the offence, than expose themselves to the pain and to the obloquy of bringing the offender to justice. The crime, by the confession of Mr. Carr, has not abated; but, by an official return which he presented to us, it appears that the prosecutions have abated more than one-half. In the twelve years previous to the alteration of the law, out of twenty-one tried, nineteen were convicted. In the twelve years subsequent, there had been, out of nine prosecutions, only three convictions. The remainder had 910 been acquitted, or had escaped—that is, in point of fact, there had been at least an equal number of crimes, but not half the number of prosecutions, and three times the number of acquittals. Now, I do not know what impression this fact may make upon the hon. and learned gentleman; but to me it is conclusive. A trader is disposed to defraud the excise—he sees, in the one case, almost all who make that fraudulent attempt discovered and punished. In the other case, he sees almost all who make that attempt pass undetected or unpunished. Can any man doubt the result? Can any man fail to agree with Mr. Carr, that your severities increase crime, and operate to the protection, not of your revenue, but of the fraudulent trader?
Sir, I attach the highest importance to the evidence of the solicitor of the excises It is perfect in its kind. The facts he must know. His station, on the one hand, his character on the other, protect him from the suspicion of having mis-stated those facts in our favour. Had I—or had my hon. and learned friend near me, the author of the present bill, ventured to avow such opinions, we know our answer: We expose ourselves to the old charge of enthusiasm. But, is the solicitor of the excise an enthusiast? Can he be charged with heinous philanthropy? Fourteen years spent in the rugged duties of the excise—in the daily detection of knavery and chicanery, and all the base and abject arts which the worst side of human nature can exhibit, are labours from which no man has ever emerged a romantic enthusiast. He may come from them—he has come from them—a man of honour and a man of feeling: but they are little calculated to clothe him with feelings of sickly sensibility, or to teach him too generous an estimate of the frailties of mankind. And yet, Mr. Carr, with more experience upon this part of the subject than any living man, insists upon it, that severity defeats its own purpose. Nay, he went further than myself, or any other member of the committee; for he declared, that he had observed that pecuniary penalties, when excessive, defeat their own purpose; and: that repeatedly the fraudulent trader had; proposed the most aggravated penalties—that he, the solicitor of the excise, had found it his duty to oppose them, because he knew, from experience, that when penalties cease to be moderate, they cease to be operative.
911 But, the most curious part of the case is, that I understand, and from authority which I cannot doubt, that the commissioners of the excise had determined last session and were deterred only by that event which diverted the attention of the country from all other considerations) upon bringing in a bill for taking off the penalty of death from all crimes connected with the excise, which are not attended With violence. Now, Sir, I presume that before long, the hon. and learned gentleman, the attorney-general, will introduce this bill; and I cannot express the satisfaction with which I shall hear him stating, but with much greater power, the facts which I have stated—arguing, with happier eloquence, the opinions with which I have now been long troubling the House—lamenting our perseverance in a system, which protects not the excise, but the fraudulent trader—and inviting the House to depart from a course, at once so harsh and so ineffectual. But, until that, happy hour arrive, when the powers of the hon. and learned gentleman shall be so well employed, the House must be contented. with my statement of the case—or rather, with Mr. Carr's statement of the facts, which so long experience had taught him; namely, that rigid laws defeat your purpose, disappoint your expectations, and encourage the crimes that they are intended to repress, by the impunity they occasion.
But, another experiment was tried, very different in its nature; and, I rejoice to say, as different in its effects. About the year 1811, the linen bleachers of England and Ireland found their property peculiarly exposed to depredation. This they ascribed to the impunity with which that crime was committed; and that impunity to the reluctance to prosecute; and that reluctance to the severity of the law. They therefore came to parliament praying for protection, and intimating that that protection would be found in a mitigation of the law. That prayer was conceded. In this House, cheerfully. In another place, acquiescence was granted somewhat in the same spirit in which the satirist describes the deities of old as yielding to the foolish importunities of their votaries;
Evertere domos totas, optantibus ipsis Dii faciles.And here it was determined to punish those romantic petitioners with the fulfil- 912 ment of their prayer, and to inflict upon them the penalty of conceded wishes.With what effect? Among the official returns appended to our report, gentlemen will find a return of the number of persons tried and convicted of this offence in the county of Lancaster—the county in which this species of trade is principally carried on. This return is for twenty years, thirteen of which were prior, and seven subsequent to the mitigation of the law. Of these seven, I take no notice of the two first; because it is plain that no conclusion can be drawn from the immediate effect of the alteration of the law. Where the penalty is mitigated you must expect always an apparent, sometimes a, real increase of trials—always an apparent, because those who did not prosecute before, now prosecute; and are found to do so, perhaps, with more severity than others; for the purpose of showing that their previous abstinence originated in principle, and not in any selfish consideration. Sometimes a real increase is also to be anticipated; because those who are in the habit of committing this species of offence know only as yet that the penalty is mitigated, and have not learned from experience—only instructor to whom they will listen—that that mitigation brings with it a greater certainty of punishment. I shall, however, enter into a comparison of which no man will deny the fairness. I take the first five years—during which the crime was capital, and compare them with the last five years—during which it was; not, capital. Now, if I prove that this offence; has increased, but only in the same proportion with other offences, I prove my point, for the reasons which I have already assigned. But, if I go a step further and prove that, while all other crimes have increased, this alone has remained stationary, à fortiori I prove my point: but, what if I go a step, and a very great step further, and prove that, while all other offences have increased with the most melancholy rapidity, this, and this alone, has decreased as rapidly—that there is one only exception to the universal augmentation of crime, and that; one exception the casein which you have reduced the penalty of your law—if I do this, and upon evidence which cannot be. shaken, have I not a right to call upon the noble lord opposite, and, upon, his majesty's ministers, either to invalidate my facts, or to admit my conclusion?
913 Well, then! All other crimes have increased in the county of Lancaster. That is ray first position.
Then we come to the offence of stealing from bleaching-grounds, and we find 28 in the five first years, 9 in the five last, that is, the offence has decreased two-thirds. But we have always contended, that by reducing the penalty, you augment the certainty of conviction. Is any thing of this kind observable? It appears, by the official returns, that during the former period at least one-third were acqiiitted—and it appears also, that during the latter period there has not been one single acquittal.
During the first five years, During the last five years, Highway Robbery 31 77— The number more than doubled. Burglary 30 108— The number more than trebled. Horse-stealing 7 31— The number more than Quadrupled. Stealing in Dwelling-houses 4 45— The number increased more than eleven-fold. I must confess, that I was surprised at this result—that it exceeded my expectation; and I felt anxious to ascertain what had been the effect in Ireland. I therefore addressed a letter to a gentleman of the name of Hancock of Lisburn, with whom I had no personal acquaintance, and of whom I knew no more than that he was a gentleman of great respectability, who had invested a considerable sum of money in this species of trade. His answer was, "that though, from the general increase of crime, arising from the peculiar state of these countries, bleach-ground robberies have not latterly diminished, yet that the change of punishment of death has not had the smallest tendency to increase this particular crime; but, on the contrary, convictions have been in much greater proportion than under the old Jaw. Prosecutors now act vigorously; witnesses give their testimony willingly; and especially jurors, relieved from the compunctious visitings of nature, feel grateful for the relief, and willingly return verdicts of condemnation, when death is not the consequence." He then goes on to say, "it is worthy of observation, and tends to show the benefit of the change in the law, that convictions have multiplied so greatly since 1811. In my opinion, the protection to bleach-grounds is much increased, and things probably would have been much worse under the old law, owing to the greater number of culprits who would have escaped."
914 This, though satisfactory, was not conclusive. But I have since received from Mr. Walter Bourne, clerk of the Crown, a return of the number of committals and convictions for bleach-ground robberies on the north-east circuit of Ulster, for twenty years; and with it I pursue the same method as with the returns from Lancaster. I take the five first years, and compare them with the five last; and these are the results:
But here returns the questions: has any greater facility of conviction resulted from a mitigation has. While the law hardly possible to prove a conviction resulted from a mitigation of the law? It was rigid, it was hardly possible to prove a conviction. Out of sixty-two persons committed, fifty-eight or fifty-nine had not been convicted. But since that alteration, though the number of trials have decreased nearly one-half, the number of convictions have increased five-fold.
First five years during which the Offence was capital. Last five years during which the Offence was not capital. Antrim 24 18 Armagh 11 4 Down 15 12 Lowth 4 5 Monaghan 7 3 If these facts stood alone, they would be sufficient for our cause—they would be sufficient to justify the importunity and the confidence with which we urge upon government the duty of mitigating the law. But, couple them with the fact, that the real decrease of crime is much greater than the apparent: because, all who are now detected are prosecuted; whereas, formerly, by the declaration of the petitioners, there were few prosecutions and fewer convictions. Couple it also with the fact, that this calculation is formed upon a period of change from war to peace—every where productive of distress; but no where more than in Lancashire, and in the north of Ireland—every where productive of crime; but no where more than in Lancashire, and the north of Ireland. I say, consider the change that has taken place under all its circumstances and all its bearings, and then let the noble lord opposite tell me—if he will look at this question, not as a question of party politics, but as one in which life on the one hand, and the best interests of the community on the other, are intimately interwoven—whether, with the information before his eyes which has now been produced—with the facts in the north of Ireland and in Lancashire in full view—whether; to his conscience and 915 to his country, be can justify the indiscriminate application of the punishment of death, according to the present penal code? If he will not yield to us, he is bound to show what evil has resulted from the mitigation of the law in the case before us—what detriment has been sustained by the community at large, or by any one of its members, under this milder system. No man, and least of all the noble lord, would justify severity for the sake of severity; or would love executions in the abstract. We have dispensed with them in one case; and the consequence is, fewer crimes—greater security to property. Shall we stop there?
The hon. and learned solicitor-general has so expressly excluded from his consideration this day, larceny from the dwelling-house, that I hardly feel it fair to enter upon that topic. But as to forgery, on which it is said our evidence is not sufficient. Look, then, at that evidence—at the multitude of cases in which offenders of that description appear to have escaped, and only by the severity of the law; and couple with these facts, the consideration, that bankers are naturally averse to a public profession of their disinclination to prosecute—and the last thing I should have expected from the hon. and learned gentleman was a charge of insufficiency of evidence But, if he thinks the evidence on our side insufficient, what thinks he of the evidence on his own side? "Nothing," says the hon. and learned gentleman, "is more important, than to justify the existing law to the public at large—nothing more dangerous than to allow that law to be disparaged." Yet, day after day, week after week, do the hon. and learned the attorney and solicitor-generals, and many other gentlemen closely connected with government, hear evidence directly impugning the justice, the expediency, the humanity of the law as to forgery—and never once do they venture to produce a single witness, who utters a single sentiment, or a single sentence, in its favour. But, independently of the opinions of bankers, merchants, and traders, which stand upon record in our evidence, there is the melancholy history of the punishment of forgery in this country; and, I know nothing which reflects so deep a disgrace on our national humanity. For a multitude of years, every wretch who was overtaken by the law, without regard to age or sex or circumstances in extenu- 916 ation, was consigned to the hang-man. No pity—a pride rather in inexorable and unbending severity—the very feelings of our nature, the very quality of mercy, seem utterly to have been forgotten. And, what then? You accomplished your object, no doubt: by dint of such hardness, you exterminated the offence as well as the offenders: forgeries, of course, ceased in a country under such a terrible method of repressing them. No! but they grew, they multiplied, they increased to so enormous an extent—victim so followed victim; or rather one band of victims was so ready to follow another—that you were absolutely compelled to mitigate your law, because of the multitude of the offenders—because public feeling, and the feelings of the advisers of the Crown, rebelled against such continual slaughter. It is not to be forgotten, that the law was substantially mitigated with regard to forged bank notes, because the number of offenders had so increased. Then, sir, am I not justified in provoking the noble lord to meet me upon the subject of the decrease of one species of crime—following a decrease in its legal punishment—and to demand from him, either that he should invalidate my facts, or admit my conclusion? Have I not also a right to cast myself upon the House, and to implore them no longer to continue so desperate and so unsuccessful a system? And, at the expense of their time, to lay side by side the two cases—forgery and stealing from bleaching grounds—both offences only against property—both unattended with violence? In the one, we have tried a mitigation of the law, and have succeeded beyond our most sanguine expectations—in the other, we have tried severity to the utmost extent—and, to the utmost extent, it has failed. Well then: Are we not bound—I will not say by our feelings, or by tenderness for life—but by every principle of reason and equity;—of common sense and common justice; to discontinue a system which has so utterly failed, and to embrace a system which has been so eminently successful? The hon. and learned gentleman has done himself credit by declaring—and the noble lord by confirming the declaration—that they wished to have this great subject argued on its own merits, and not as a party question. I call upon them now to act up to this declaration. And, if our governors will look at this 917 question with an honest determination to do their duty, whatever their duty may be on the subject, I do not doubt that they will perceive, that every principle of policy, humanity, and common sense, will be found combining and concurring to recommend the abandonment of a defective and inoperative system, and the substitution in its place, of one which experiment and practice have proved to be effectual.
Although the length at which I have already troubled the House, and the abundance of facts to which I must still call their attention, forbid me to go at large into much historical detail, I have now to observe, that history throws much curious light on the subject of criminal jurisprudence; and I may safely challenge the learned and hon. gentleman opposite to produce from the history of all times and all nations, an instance in which a country was at once remarkable for the rarity of its crimes, and the severity of its punishments. I have considered this part of the subject with much attention; and I have invariably found the inverse of this proposition to be true. Abstaining, then, from going at large into this subject, there are one or two facts connected with our own history to which I desire to advert.
First, the reign of Henry the Eighth—a reign remarkable for the abundance of its crimes, which certainly did not arise from the mildness of its punishments. In that reign, says his historian, 72,000 executions took place for robberies alone—(exclusive of his religious murders), amounting, on art average, to six executions a day, Sundays included, during his whole reign. What was the effect of the barbarous severity of the law? Did it do that for which it was designed? Did it prevent crime? Upon that point, sir Thomas More is no bad authority. He introduces into his works, a dialogue between himself and a lawyer. The lawyer applauds the severity of the law, and exults in the fact, that he had himself seen twenty executed upon the same scaffold. But he concludes by confessing, that it was a little difficult for him to explain how it happened, that, "While so many thieves were daily hanged, so many still remained in the country, who Were robbing in all places."
It may be supposed, that these severities would at least have succeeded sit; the conclusion of his reign, and that he 918 would at length have exterminated the race of robbers. There is, however, in existence, in Strype's Annals, a letter front a magistrate of Somersetshire to the lord chief justice in the reign of queen Elizabeth. This letter gives an account of the state of society in Somersetshire during "The glorious days of good queen Bess;" and such an account as may make us all rejoice that those "glorious days" have long since passed away. The magistrate writes thus:—"I may justly say, that the able men that are abroad, seeking the spoil and confusion of the land, are able, if they were reduced to good subjection, to give the greatest enemy her majesty hath a strong battle, and, as they are now, are so much strength to the enemy. Besides, the generation that daily springeth from them, is likely to be most wicked. These spare neither rich nor poor; but, whether it be great gaine or small, all is fish that cometh to net with them; and yet I saie, both they and the rest are trussed up apace." But, what was the reason criminals so abounded at that time? The same magistrate, very undesignedly—for he is a strong advocate for the severity of the law, and calls the statute for the execution of gypsies, "that godly edict—lets us into the secret. He says: "In which default of justice, many wicked thieves escape. For most commonly the most simple countrymen and women, looking no further than to the loss of their own goods, are of opinion that they would not procure any man's death, for all the goods in the world." This conveys a striking picture of the state, both of the law and of the country, at that time. It appears, that the people would not prosecute, and it also appears, that magistrates could not be found to act.
Perhaps the House will permit met read to them a remarkable passage upon the state of the law, in a speech which queen Elizabeth directed to be made to her parliament; especially as the sentiments of her majesty are conveyed to this House in language somewhat more rhetorical than that to which we are accustomed in these degenerate days:—"A Jaw without execution is but a body without life, a cause without an effect, a countenance of a thing, and in deed nothing: pen, ink, and paper, are as much towards the governance of the commonwealth, as the rudder or helm of a ship serveth to the governance of it without a 919 governor, and as rods serve for correction without hands. Were it not mere madness for a man to provide fair torches to guide his going by night, and when he should use them in the dark to carry them unlight? Or for one to provide fair and handsome tools to prune or reform his orchard or garden, and to lay them up without use? And what thing else is it to make wholesome and provident laws in fair books and to lay them up safe, without seeing them executed? Surely, in reason there is no difference between the examples, saving that the making of laws, without execution, is in much worse case, than those vain provisions before remembered; for those, albeit they do no good, yet they do no hurt: but, the making of laws without execution, does very much harm; for that breeds and brings forth contempt of laws, and law-makers, and of all magistrates: which is the very foundation of all misgovernance, and therefore must needs be great and heinous in those that are the causers of this; indeed, they are the very occasions of all injuries and injustice, and of all disorders and unquietness in the commonwealth."*
And yet that queen, notwithstanding her loud complaints of the non-execution of her laws, contrived to execute more than five hundred criminals in a year; with which number she was so little satisfied, that she threatened to send private persons to see her laws executed, if the members would not execute them. Her words are remarkable—"Which if they shall forget to do" (that is, the Commons forget to execute the laws), "her majesty shall be then driven, clean contrary to her roost gracious nature and inclination, to appoint and assign private men, for profit and gain's-sake, to see her penal laws to be executed."† It appears that her majesty did not threaten in vain; for, soon after this, a complaint was made in parliament, that the stipendiary magistrate of that day was "a kind of living creature, who, for half-a-dozen of chickens, would dispense with a dozen of penal statutes."
I make this reference to the reigns of Henry and Elizabeth, to show the inefficacy of extreme severity of punishments; and I will contrast the effect of that severity with the result which attended the re
* New Parliamentary History, Vol. 1, p. 769. † Ibid., vol 1 p. 807.920 formation and mitigation of the laws by Alfred. He came to the throne, as we all know, at a time when the country was over-run by a foreign invader, and remarkable for the licentiousness with which crimes were committed; and yet, says his historian, "Such was the general security throughout the country towards the conclusion of his reign, that a child could walk from one end to the other with a purse of gold around its neck in perfect security." By whatever means this great and happy change was effected, it certainly was not by severity; for Alfred abolished the penalty of death, except only for treason and murder.As for more modern times, the example of Tuscany is directly in point, where the duke, after trying for some years the effect of a more lenient system, solemnly records, in his celebrated edict, the result of his experiments:—"Since our accession to the throne of Tuscany, we have considered the examination and reform of the criminal laws, as one of our principal duties; and having soon discovered them to be too severe, in consequence of their having been founded on maxims established, either at the unhappy crisis of the Roman empire, or during the troubles of anarchy; and particularly, that they were by no means adapted to the mild and gentle temper of our subjects; we set out by moderating the; rigour of the said laws, by giving injunctions and orders to our tribunals, and by particular edicts abolishing the pains of death, together with the different tortures and punishments, which were immoderate, and disproportioned to the transgressions, and contraventions to fiscal laws: waiting till we were enabled, by a serious examination, and by the trial we should make of these new regulations, entirely to reform the said legislature.—With the utmost satisfaction to our paternal feelings, we have at length perceived, that the mitigation of punishments, joined to a most scrupulous attention to prevent crimes, and also a great dispatch in the trials, together with a certainty and suddenness of I punishment to real delinquents, has, instead of increasing the number of crimes, considerably diminished that of the smaller ones, and rendered those of an atrocious nature very rare: we have therefore come to a determination, not to defer any longer the reform of the said criminal laws."
I pass over the example of France; 921 though the law in that country has been greatly mitigated, and, by the confession of all men, with the best effect.
But one word upon the memorable example of America. In America, about five-and-thirty years ago, the principles which we are now advancing were recommended, under the auspices of Benjamin Franklin. The experiment was tried in the state of Pennsylvania, and the punishment of death was restricted to wilful and premeditated murder only. But, how was it then carried in their assembly? By a very small majority—denominated in the very act, an experiment—limited to five years duration—and opposed by the authority of all the judges, one, only excepted. The allotted period elapsed—and, what was the effect? That the act passed—unanimouslytrf as a permanent measure—not as an experiment, but a truth sanctioned by indisputable fact, and with the concurrence of all the judges; who had, I understand, the magnanimity to declare, the total alteration which their opinions had undergone, from the extraordinary success which attended the experiment. This is the first part of the act, which abolishes death in all crimes, except premeditated murder:—
"An Act for the better prevention of crimes, and for abolishing the punishment of death in certain cases.—Whereas the design of all punishment is to prevent the commission of crimes, and to repair the injury that hath been done thereby to society, or the individual; and it hath been found by experience that these objects are better obtained by moderate, but certain penalties, than by severe and excessive punishments; and whereas it is the duty of every government to endeavour to reform rather than exterminate offenders, and the punishment of death ought not to be inflicted where it is not absolutely necessary to the public safety: Therefore, Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania, in general assembly met, and it is hereby enacted by authority of the same, that no crime whatever, hereafter committed, except murder of the first degree, shall be punished with death in the state of Pennsylvania."
One of the judges published a minute detail of the comparative state of crime in America, prior and subsequently to the alteration of the law; and I state, upon the authority of this judge, published at a 922 period when any error, if it had existed, must have been discovered, that crimes, and especially crimes of enormity had decreased; but that, in a given number of persons tried, the number of convictions had nearly doubled. He also states a fact curious; enough, as affecting the very question before, us. In Pennsylvania where the punishment for forgery was mitigated, the crime had decreased: In New York, where there had been no such mitigation, the crime had gone on increasing. He mentions a number; of other curious facts, all bearing upon the subject now at issue. In one of the states, the farmers, in consequence, of their heavy losses from horse-stealing, petitioned the legislature to protect them more effectually, by enacting the penalty of death for the offence. Their request was complied with. But, so inefficient was the result, that the very same parties afterwards prayed, for a commutation of the penalty, alleging, that this severity generated a reluctance to prosecute and that reluctance reproduced the crime. Again their request was, attended to, and the crime was found to decrease.
Without adverting to particular facts, there is one circumstance which, far more than the opinion of the judges, or the practical experience of any individuals, confirms these opinions. The doctrine of the greater efficiency of a mild law, repudiated as it was at first in Pennsylvania, has won its way, by its own strength, through, I believe, every one of the United States; and opinions which, forty years ago, were deemed theoretical and extravagant, are now universally received and acknowledged as indisputable truths, throughout the whole of that great republic in which they have been tried. If this be not experimental truth, what is?
I shall conclude my observations upon this practical part of the subject, with one single remark—crime has increased in England, as compared with every other country—as compared with itself at former periods. Now, what species of crime has increased? Those atrocious acts of violent robbery and murder which, in all times and in all countries, have been punished with death? By no means. These have decreased. Where, then, has the augmentation taken place? Precisely in those lesser felonies which are; capital now, but were not formerly—which are capital in England, but in no other country—that by we differ from ourselves in 923 former times, and from our neighbours at the present moment; first, by our peculiar treatment of certain offences; and, secondly, by the multiplication of those very offences under that very mode of treatment.
Having thus released myself from the practical part of the subject, I shall now endeavour to dislodge the gentlemen opposite from another position in which, very unaccountably, it is sometimes thought they are safely intrenched. There are persons, and not a few, and some of them lawyers, who are attached to our code, simply on the ground of its extreme antiquity—who contend, that a system which has sprung from our earliest ancestors, and which has therefore the stamp and warrant of so many ages, which has been handed down, century by century, from father to son, must therefore be wise in principle, and politic in practice. There are such gentlemen. And, from some experience, I can say, that you may ply such reasoners with proofs of the inequality of the law—the inefficiency of the law—the prevalence of crime under it. No matter. They are deaf to such representations; because their reliance is implicitly placed on the good, old, tried, beloved common law!
Such gentlemen will be surprised to find, that our present code forms no part of the common law at all. Nay, that distance cannot be greater, nor contradiction stronger, than between that code and that common law—and that this very code is the rankest innovation that ever was made on the principles of the old law. But, let me not be misunderstood. I grant that the whole machinery of the law—the organization of the tribunals, the publicity of the proceedings, the rules of evidence, the trial by jury, are alike unquestionable for their value and their antiquity. But, the laws thus administered—are they to be approved for their antiquity? Certainly not. They are absolutely modern; and, happily for/ me, this assertion requires, in its support, no ingenuity of argument: it is matter of fact and record. The hon. and learned gentleman knows that we have the codes of our earliest ancestors; and that in those codes no such severity is to be found. For example—we have the code of Alfred That monarch, after recapitulating all the crimes which were punishable with death under the Jewish law, repeals them all, as suitable to the austerities of the Jewish ritual, but 924 utterly inconsistent with the mercies of the Christian dispensation. These are his words: "After it had come to pass that many natives had received the Christian faith, many synods of holy bishops, and eke of other notable and wise men were gathered together in all parts of the earth. In England also, when this nation had received the faith, they, for the mercy which Christ had taught towards the greatest of misdeeds, determined that the lords of the world might, with their leave, and without sin, receive such compensation in money, as they had then appointed, for the most heinous crimes, except for treachery towards a lord, to which they durst show no mercy."*
But, so deeply was this system of judicial clemency engraven on the character of the nation, that the Danes, overturning almost all Anglo-Saxon institutions, retained this paucity of capital punishments. We have the code of Canute, which commences with these remarkable expressions:
"This is the secular enactment, which, by the counsel of my wise men, I ordain to be observed over all England:
On showing Mercy in Judgement."We desire, though any man sin, and deeply involve himself in iniquity, yet that his punishment be moderate, so that it be merciful before God, and tolerable in the sight of man; and let him who giveth judgement, consider what he himself de-sireth when he prays thus: Forgive us our trespasses as we forgive them that trespass against us.' And we forbid that Christian men should be condemned to death on any slight cause. Let discipline be freely administered for the benefit of the people; but let not men, for a little cause, destroy the handy work of God, and the purchase of Christ so dearly bought."†Again—
On showing Mercy"And if any one heartily turn again from wickedness to righteousness, let men show mercy, for the fear of God and as best he may, to him who is earnest for the Same."‡But, the most remarkable proselyte that ever was gained to these doctrines was William the Conqueror. He either
* Leges Ælfredi, Wilkin p. 33.†Wilkins, p. 133. ‡Ibid. p. 143.925 was a bloody and merciless tyrant, or he is very little indebted to his biographers. He is described by the Monkish Chroniclers hating the natives; but, "he made large forests for the deer, and enacted laws therewith, so that whoever killed a hart or a hind, should be blinded. As he forbad killing the deer, so also the boars; and he loved the tall stags, as if he were their father." I mention these things, to show that, terrible as he was to his subjects, yet the savageness of his temper yielded to the prevalent doctrines of his age; for he concludes both his codes, one issued at the commencement, and one towards the conclusion of his reign, with these words: "I prohibit that any man should be put to death for any cause whatever."I need not go farther than this. I take the throe most distinguished law-givers of the Anglo-Saxon, the Danish and the Norman line; and their coincidence demonstrates, that British law, in its origin and source, was peculiarly merciful and tender of human life. If I needed any further authority, I might refer to my lord Coke, who tells us, that most of our capital enactments are by statute. I might also refer to Blackstone, who, recapitulating the great changes which have taken place in this country, thinks none greater, and intimates that he thinks none more to be lamented, than the change from the great mercy of our old law to the extreme severity of our modern law. There is, however, one authority to which I must advert, both as confirming all my arguments, and establishing the facts on which I depend. I might also be excused for introducing it, on account of the peculiar felicity of the language in which it is conveyed. Sir Henry Spelman says: "Animadverte autem in quantam asperitatem ex rerum temporumque vicissitudine, lex antiqua abripitur. Quod enim aliquando 12 veniis denariis, hodiesæepe 20 solidis imo 40 vel pluris est. Nec vita hominis interea carior sed abjectior." He then proves his position, namely, that while all other things have grown dearer, the life of man is estimated at a lower rate by us than by our ancestors, and he concludes with these words: "Justum certe est, ut collapsa legis æquitas restauretur, et ut divinæ imaginis vehiculum quod superiores pridem ætates ob gravissima crimina nequaquam tollerunt levioribus hodie ex delictis non perderetur." If sir Henry Spelman said this, when the number of 926 our capital offences was under fifty, may not we, with a code crowded with two hundred and thirty denunciations against human life, repeat, "Justum certe est, ut collapsa legis æquitas restauretur?"
Gentlemen are now, I suppose, inclined to admit, that whatever other merits bur criminal law may possess, it has not the recommendation of extreme antiquity; and may be disposed to ask, what is the real age of the law? Why, the truth is, the greater part of it has no antiquity at all. It has not that antiquity upon which any common right could be established—a common foot-path, or a hovel upon a waste, could not stand upon so recent a title. It has not existed "time whereof the memory of man runneth not to the contrary." Men there are living, at whose birth our code contained less than seventy capital offences; and who have seen that number more than trebled. It is a fact, that there stand upon our code one hundred and fifty offences, made capital during the last century. It is a fact that six hundred men were condemned to death last year upon statutes passed within that century. And it is also a fact, that a great proportion of those who were executed, were executed on statutes thus comparatively recent.
But, there is no need of multiplying instances. The fact is as clear and certain, as fact can be clear and certain. The old law and the modern are directly at variance. That is incontestible. Which is right and which wrong, may be matter of opinion; but the utter contradiction between them is matter of fact. And gentlemen may, if they please, admire our present system; but then they must admire it as a novelty; not as the old constitution, but if they please as an admirable improvement upon the principles of the old constitution—.as an innovation—as a change for the better;—not, indeed, as the wisdom of our forefathers, but as (what is a much better thing) our own wisdom, our own sagacity, our own commendable improvement upon the principles of the old law of England.
That we have wrought changes in the old system of British criminal law, and, what is far more important, in the spirit and principle of that criminal law, is unquestionable. But, before I admit that this change is a change for the better—and before I admit the absolute superiority of the modern over the ancient institutions of the country, I must say a few words 927 as to how this change has been wrought—as to its authors—and it will be found, that if it cannot stand on its antiquity, it will derive but little, assistance from the celebrity of those, legislators to whom we are indebted for its production. The honourable and, learned gentleman has adduced one proof of the close attention, and the deliberate consideration, with which the laws upon forgery had been established. And, what is this selected fact, which, above all other things, displays, in the opinion of his majesty's solicitor-general, deliberation in the enactment of these savage laws? Why, it seems that one of those laws was passed only pro tempore. And, upon this insignificant incident, without the slightest addition of proof of any description, does that hon. and learned gentleman clothe these laws with the credit of ample discussion and full deliberation!
Now, Sir, the truth of the case is—and the fact is singular enough—that though some records are handed down to us, of the discussions during the last century in this House, upon a multitude of points of little significance, hardly a remnant remains upon the subject of criminal law—and yet during that period, our penal code has been quadrupled. Upon an average, every year of that period was marked by the enactment of a capital offence; besides those occasions in which the legislature, as if tired of the tedious retail method of confining one capital denunciation to one statute, had heaped together—and faggotted, for that is the only term which is applicable—fifteen or twenty of such enactments in one heterogeneous mass. I remember a case in which, in the same paragraph, nineteen are thus bundled together; one of which is for a civil trespass to the value of six-pence, and another for the worst species of murder. All these acts, as far as I can learn, passed sub silentio, without debate, inquiry, examination, evidence, or any general interest. This absence of all discussion is in itself cogent proof of the indifference and carelessness with which these acts were passed.
But, there is proof much more conclusive. The House will excuse me for repeating an anecdote fomerly staled by ray hon. and learned friend (sir James Mackintosh). I advert to it as matter of evidence; and, as evidence, it comes to us in a most authentic shape. Mr. Burke told my hon. and learned friend, that, 928 hurrying out of these doors one night, he was stopped by the serjeant at arms, who entreated him to remain for a moment, to keep the number composing the House complete. Mr. Burke pleaded extreme haste; and the serjeant repelled that plea by saying, that the delay could not possibly exceed a few moments, for "it was only a bill for a felony without benefit of clergy."
I remember also to have heard another anecdote from an hon. friend of mine near me (Mr. Wilberforce)—sir William Meredith happened one day to go into a committee room, for the purpose of writing a letter; at one corner of which he observed a gentleman seated at a table, and seemingly asleep, to whom, a clerk was reading a piece of parchment, which looked like an act of; parliament. Sir William was continually., interrupted by a kind of chorus, with which every paragraph concluded: "Shall suffer death without benefit of, clergy." At length sit William said, "What may this heinous offence be which you are visiting with so terrible a penalty?"—"Why, sir," replied the legislator, "we country gentlemen have suffered much by depredations on our turnips—we have at length determined to put a period to the practice; and my good friend the minister has been so obliging as to allow me to make it death without benefit of clergy."
Now, I ask, sir, are laws thus recently and thus carelessly enacted, some, as lord Bacon says, "upon the spur of the occasion,"—some in moments of passion and irritation—in haste—in fear—are these laws to be called the old pillars of the constitution? Are laws thus extorted by private interest, and thus conceded to political subserviency—are these laws too sacred for revision? And, who are the persons, in deference to whom we are to put human beings to death? Any schoolboy can tell you who were the legislators of the petty states of Greece; but who are the Solons and the Lycurgi to whom we are indebted for these laws? Certain anonymous gentlemen (for history retains their deeds, while their names have passed into oblivion) of whom we know nothing, but that they were the authors of a multitude of bloody statutes—and to what class of life they belonged; we can only guess, by their superiority to the ordinary prejudices of grammar and orthography.
I trust the House will pardon me for 929 having entered thus largely into the history of our law—the time when, the manner in which, and the personages by whom, our criminal code was formed. But, it is a matter of considerable importance, that in this respect we should stand right with the public. The old common law has been found, by experience, so full of wisdom, and somehow or other so conformable to the English character—it is regarded, and justly, with such affectionate veneration by all classes, learned and unlearned, that the House and the country would justly entertain with great suspicion any system which went to overturn that which is as dear as it is venerable. For my own part—and I am sure I may take the liberty of saying, on the part of the author of this bill—there is no human authority which would avail with us in any thing like the same degree as a conviction that the principles of that bill are at variance with that incomparable standard; but, as I should feel unfeigned distrust in any speculations of my own which had that law for an antagonist, have I not a right to gather confidence and encouragement, on finding a friend and an advocate in that pre-eminent authority?
We derive, at least, this advantage from thus tracing the chronology of the law—the cry of innovation is at an end—that imputation is for ever defunct. Those doctrines cannot be very wild, or very enthusiastic, or very new, or very speculative—nor savour much of innovation, which were the law of England in the days of Alfred—which were enacted five hundred years before our present code was invented. And here I cannot pass over one remark. It is a maxim, admitted and quoted by every lawyer—and I will venture to say, that the hon. and learned gentleman has himself quoted it a thousand times—that we never depart from the principles of the old law, and do so with impunity. In this case, we have left those principles; and it is easy to gather, from the condition of our gaols, and from the extent of our calendar of malefactors, whether or not, we have done so with impunity.
I am well aware, that I have already trespassed at considerable and very unusual length on the patience of the House; but then, the reflection, that we are now debating a penalty to extend over the whole kingdom, and that penalty the last—that, literally speaking, life or death, 930 to a multitude of persons, hangs suspended on the division of to-night, and that we are few in number compared with those who may be the victims of our decision—these considerations overwhelm every other, and determine me to submit as I hope to the indulgence of the House, certain other observations, or rather certain other facts, which are not, if I do not overrate their value, immaterial to the right decision of this question. I am ready to admit, for the sake of argument, that the severity of the law has its advantages. Let any gentleman rate these advantages at the uttermost. I ask for no moderation. I can afford for the utmost latitude of exaggeration. All I ask is, that when he has given to them the very uttermost of their value, he will then consider the price we pay for them—whether, after all, these advantages, great as he may deem them, are great enough to counterbalance the enormous price they cost us.
They cost us the concurrence of the people, that ready and gratuitous aid, which can, and besides which nothing else can, repress crime in this country. Sacrifices these, of greater value than can well be estimated!
There is no country in which public co-operation is not important to the execution of the law—not even those countries in which the people seem to be considered as nothing, and their rulers as every thing—not even in those, where the arm of the law is visible at every turn—but in England this cordiality and concurrence between the people and the law is absolutely indispensable. One presumption runs throughout the whole of our law; namely, that it will be enforced by the people. If any gentleman will consult Bracton and the "Mirrour," or indeed any early authority, he will perceive what importance is attached to that which is by them called, "the old common-law process of pursuing the felon, by horn and by voice, with the hue and cry of the whole town, from village to village, and from county to county." But, my argument rests not so much on what they did institute, as upon what they did not. They had no spies—no gens d'armes—no public prosecutor—nothing except the full co-operation of the public.
But, upon this system which, resting upon public co-operation, requires the public sympathy, we have unhappily engrafted another system, which does vio- 931 lence to the feelings of the nation. And here is the practical inconvenience. It is taken for granted, that he who can, will inform—that he who can, will apprehend—tlint the person aggrieved will prosecute. All this is taken for granted; and justly, so long as public feeling went along with the law; but now, a man's life is at issue—and this at once seals the lips of the man who could inform—stays the activity of him who could apprehend—pacifies the prosecutor—silences the witness—often debauches the conscience of the juryman—and sometimes even sharpens the merciful astuteness of the judge. In fact and in truth, it effects the deliverance of the felon.
Let no one suppose that this is a rare inconvenience. Not a day passes, that it is not felt and deplored in our courts. And you are fast verging to this point;—either you must have a public prosecutor—(perhaps the greatest innovation on British jurisprudence that could be devised)—or you must reconcile those to whom the duty of prosecuting is now consigned, to the discharge of that duty: and this you can do only by reconciling this law to their feelings. You must have that vexatious, meddling police, which the hon. and learned gentleman so solemnly deprecated; or you must revert to the good old English method of repressing crime, which is to be found in the hearty disposition of the public to aid and invigorate the law. The people of this country have strong feelings of humanity, and strong principles of justice; and, so long as the legislators keep within the bounds of moderation, so long the people will side with the law against the offender. But, when the bounds of reason and moderation are overstepped, as unquestionably they are in a multitude of your enactments, the feelings and the principles of the people, which ought to aid, withstand, and rebel against the operation of the law; and the very virtues of the people, their sense of true justice and humanity, which ought to be the strength of your law, go over to the enemy, investing- the felon with chances of escape, and with hopes of deliverance, which would never have belonged to him, but for the severity of your law.
And, who are the auxiliaries whom you thus repel? The very persons who, of all others, you ought to secure of your side—the just, the merciful, and the conscientious. You depend 932 upon the just man: but the just man sees, that his support is demanded to laws which violate all justice; which confound crimes the most venial and the most atrocious, by one terrible uniformity of punishment. The just man sees this, and remains inactive. You ask the merciful man to aid you. But, how can any man who loves mercy contribute to the support of laws which set the common principles of humanity at defiance? And then, the religious man. I know that I am now upon delicate ground; and that this is neither the time nor the occasion, for entering very largely upon, this subject: but I may say, that the number of persons in this country, who square their opinions by the tenor of the doctrines of their faith is very great—that it has of late years much increased; and fervently do I desire, as I confidently trust, that every year will witness its augmentation. Can you afford to lose the religious man from your service? But, you do lose him. I hazard nothing when I say, that a very religious man cannot, in many cases, be a prosecutor. He deeply feels, that his own dearest hopes depend only on the pardon which he shall receive; and he knows, that the condition on which he asks forgiveness to his own trespasses, is the forgiveness he extends to the trespasses of others. He cannot, therefore, for many crimes, call down upon his brother sinner the exterminating vengeance of the law. He cannot do so in forgery. I must here, however, guard myself from the imputation of holding that forgery is a venial offence. Quite the contrary. I deem it a high crime—one which ought to be severely punished; but not one which ought to be ranked with murder by equality of punishment.
There is no one who will deny, that the laws of the land ought to be congenial with the feelings of the people. There was a time, we may suppose, in which this happy sympathy prevailed. But that period is long passed. During the last century, they have each fled from this point of concurrence; the law in its enactments, and the people, in the tenor of their feelings, receding from each other with the utmost rapidity. The people have made enormous strikes in all that tends to civilize and soften man; while the laws have contracted a ferocity, which did not belong to them in the most savage period of our history; and to such extremes of distance have they pro- 933 ceeded, that I do believe there never was a law so harsh as British law; or so merciful and humane a people as the British people. And yet, to that mild and merciful people, is left the execution of that rigid and cruel law!
I should say, that the inevitable consequences of such a system must be impunity of crime, even if no evidence existed upon the subject; but we have evidence in our report, as clear and as conclusive, as ever was given in any case, on which a committee of this House had sat. A laborious and a very skilful attempt has been made to discredit that evidence in. a paper, remarkable for its ingenuity, which lately appeared in a periodical publication, the Quarterly Review. But, the writer of that review entirely misconceives the drift of our committee, in the evidence they took. He seems to deem it their duty, and, what is still stranger, supposes it to be their intention, to collect, upon each particular penal law, which they proposed to repeal, a large body of facts, related by a large body of witnesses, all tending to show, that, in this special instance, the severity of the law deadens its execution. Now, among a multitude of good reasons, why the committee did not adopt this course, one, perhaps, will be sufficient for the House; namely, that it was utterly impossible. The examination of some thousand witnesses, which it supposes—that examination going on for the next century, contained in volumes outstripping the very statutes themselves in bulk and number, are very final objections to this mode of proceeding. Our object was to establish certain main principles, which, if true, are decisive on the general question. In cases unattended with violence, is there or is there not, so positive a reluctance on the part of the public to give evidence and to convict, as materially impedes the course of justice? That is the question to which we sought an answer from our witnesses. We considered the case of an offender, from the moment of committing the act, to the moment of his acquittal; and then we considered, what persons of respectability had opportunities of observing the effect, upon the mind of the prisoner, and upon the mind of the prosecutor, of the severity of the law; and these persons we examined. The offender is brought before the magistrate. We summoned various magistrates—two, especially, of the police magistrates 934 of the metropolis; who are most decisive in declaring, that the severity of the laws deadens its execution. Mr. Mainwaring tells us, "I have reason to consider that very considerable reluctance to prosecute, exists on the part of the public." He is then asked,—"In what crimes is this reluctance most visible?" "I think that the reluctance is most visible in capital crimes"—"Did you ever happen to ascertain what was the cause of this reluctance on their part?" "I think that in this offence as in most others where capital punishment may follow, the reluctance arises, from the punishment of death being possibly consequent upon the offence."—"Have you observed that prosecutors have inquired what would be the nature of the punishment when they brought an offender before you?" "Continually,"—"And has any difference existed in their proceedings, in consequence of finding that the punishment was capital? Decidedly."—"Then, have they not been less ready to go forward with the prosecution, in cases where they found the punishment capital, than in cases where they found the punishment was of a less nature? "Certainly. In such cases I have observed the disposition to prosecute to abate upon every re-examination; and have at times had considerable difficulty in compelling parties to prosecute, and have afterwards understood, from unquestionable authority, that they were determined to throw out the bill, though bound over by the magistrate. I am disposed to fear that the apprehension of capital punishment adds in many cases to the facility of compounding felonies."—"Do you upon the whole, believe, that if the law were mitigated, and the penalty of many offences reduced to imprisonment with hard labour, that this would be the means of producing more frequent prosecutions?" "From the observations which I have just made, I believe that it would be the means of producing more frequent prosecutions. Punishments, to be universally operative, must be such as are in unison with the common feelings of humanity. A sense of public duty will seldom be sufficiently strong to supersede such feelings. Against crimes of an atrocious nature, the public mind will rise to the highest degree of punishment which the law can denounce. But, against those which are the result of an artificial state of society, and to the commission of which, that state has produced the 935 temptation, I apprehend that numbers forego prosecution altogether, and that many who do undertake it would stop short in its course, rather than arrive at its awful termination, the death of the criminal."
The depositions against the prisoners are taken by the clerks of the magistrates; These clerks we summoned:
§ Mr. Thompson, clerk to the Police-Office, White-chapel, since its establishment, 26 years.
§ Mr. Newman, city solicitor for 30 years.
Perhaps the whole world could not afford an equal number of persons, with any thing like the same degree of experience upon this part of the subject. It is impossible for me to obtrude upon the House an analysis of their evidence. Time forbids it. But, referring gentlemen to the evidence itself, this I will venture to assert, that if any gentleman will exercise his imagination in inventing facts which would tell in our favour, and will clothe these facts in the strongest language;—the facts thus supposed, and the language thus employed, would not be stronger, than the facts actually stated, and the language actually used by these gentlemen, of so much experience and so much respectability.
But to proceed. The prisoner is committed to gaol. He is there visited by his solicitor. Now, I must call the peculiar attention of the House to the evidence upon which here we rest—Mr. Harmer's evidence. That gentleman has spent the last twenty years in the active engagements of this part of the profession, He has been solicitor to two thousand prisoners; admitted to their confidence; acquainted with their secrets; and has had a full opportunity of observing the effect produced upon their minds by the existing law. Again, of late years he has been solicitor for almost all prosecutors; admitted, in the same way, to their secrets; seeing the influence of the law upon their conduct: and he comes from all this experience, with the most undoubting conviction, that the severity of your law generates crime.
He is asked, "Have you any observations to make, with respect to the effect 936 of capital punishment?" "I have; first as to forgery; it appears to me, that the punishment of death has no tendency to prevent this crime. I have, in many instances, known prosecutors decline proceeding against offenders, because the punishment is so severe. Instances have come within my knowledge, of bankers and opulent individuals, who, rather than take away the life of a fellow-creature, have compromised with the delinquent. Instances have occurred of a prosecutor pretending to have had his pocket picked of the forged instrument; in other cases, prosecutors have destroyed, or refused to produce it, and when they have so refused, they have stated publicly that it was because the person's life was in jeopardy. I will relate a very recent circumstance that occurred under my observation at the Old Bailey. A person, through whose hands a forged bill had passed, and whose appearance upon the trial was requisite to keep up the necessary chain of evidence, kept out of the way to prevent the conviction of the prisoner; it was a private bill of exchange. I also know another recent instance, where some private individuals after the commitment of a prisoner, raised a thousand pounds for the purpose of satisfying some forged bills of exchange; and they declared, and I have good reason to know the fact, that if the punishment had been any thing short of death, they would not have advanced a farthing, because he was a man whose conduct had been very disgraceful; but they were friends to the man's family, and wished to spare them the mortification and disgrace of a relative being executed, and therefore stepped forward and subscribed the before-mentioned sum. I have frequently seen persons withhold their testimony even when under the solemn obligation of an oath to speak the whole truth; because they were aware that their testimony, if given to the full extent, would have brought the guilt home to the parties accused; and they have therefore kept back a material part of their testimony. In all capital indictments, with the exception of murder, and some other heinous offences, I have often observed prosecutors show great reluctance to persevere, frequently forfeiting their recognizances; and, indeed, I have, on many occasions, been consulted by prosecutors as to the consequences of refusing to conform to their recognizances.
937 "When you speak of the cases of murder and other heinous offences, do you mean offences accompanied with violence to the person, or which are likely in their consequences to inflict serious injury"? "Certainly; those are the offences to which I allude; I know that many persons who are summoned to serve as jurymen at the Old Bailey, have the greatest disinclination to perform the duty, on account of the distress that would be done to their feelings, in consigning so many of their fellow-creatures to death, as they must now necessarily do, if serving throughout a session; and I have heard of some, who have bribed the summoning: officer to put them at the bottom of their list, or keep them out altogether, so as to prevent them from discharging this painful duty; and the instances I may say are innumerable, within my own observation, of jurymen giving verdicts, in capital cases, in favour of the prisoner directly contrary to the evidence. I have seen acquittals in forgery, where the verdict has excited the astonishment of every one in court, because the guilt appeared unequivocal, and the, acquittal could only be attributed to a strong feeling of sympathy and humanity in the jury to save a fellow-creature from certain death. The old professed thieves are aware of this sympathy, and are desirous of being tried, rather on capital indictments than otherwise. It has frequently happened to myself, in my communications with them, that they have expressed a wish that they might be indicted capitally, because there was a greater chance of escape. In the course of my experience, I have found that the punishment of death has no terror upon a common thief; indeed, it is much more the subject of ridicule among them, than of serious deliberation: their common expressions amongst themselves used to be, 'such a one is to be twisted,' and now it is such a one is to be top't.' The certain approach of an ignominious death does not seem to operate upon them; for after the warrant has come down for their execution, I have seen them treat it with levity. I once saw a man, for whom I had been concerned, the day before his execution, and on my offering him Condolence, and expressing my sorrow at his situation, he replied, with an air of indifference 'Players at bowls must expect rubbers." Another man I heard say, that it was only a few minutes, a kick and a straggle, 938 and it was all over; and that if he was kept hanging for more than an hour, he should leave directions for an action to be brought against the sheriffs and others; and others I have heard state, that they should kick Jack Ketch in their last moments.' I have seen some of the last separations with their friends, of persons about to be executed, where there was nothing of solemnity in it; and where it was more like parting for a country journey than taking their last farewell. 1 heard one mart say (in taking a glass of wine) to his companion, who was to suffer next morning, 'Well, here's luck.' The fate of one set of culprits, in Some instances, has no effect even on those Who are next to be reported. They play at ball, and pass their jokes, as if nothing was the matter.'
I mention these circumstances to show what little fear common thieves entertain of capital punishment, and that, so far from being arrested in their wicked courses, by the distant possibility of its infliction, they are not even intimidated at its certainty; and that the present numerous enactments to take away life, appear to me wholly inefficacious. But, there are punishments which I am convinced a thief would dread, and which, if steadily pursued, might have the most salutary effect; namely, a course of discipline totally reversing his former habits. Idleness is one of the prominent characteristics of a professed thief—put him to labour:—Debauchery is another quality—abstinence its opposite—Apply it.—Disspated company is a thing they indulge in; they ought therefore to experience solitude—They are accustomed to uncontrolled liberty of action; I would consequently impose restraint and decorum; and, were these suggestions put in practice, I have no doubt we should find a considerable reduction in the number of offenders. I say this, because I have very often heard thieves express their great dislike and dread of being sent to the house of correction or to the hulks, where they would be obliged to labour, and be kept under restraint; but I never heard any one say he was afraid of being hanged.
I pass over here, for brevity's sake, much important evidence—that of the gaolers, the chaplains of gaols, jurymen, &c. Who concurred in the same view. But it is of importance that the House should know, that their evidence was confirmed by that of a gentleman of the 939 highest legal character, and of great experience, ability, and intelligence—who gave his evidence with a degree of clearness and precision, which excited the admiration of all the committee,—I mean the late chief baron, sir Archibald Macdonald.
But I must detain the House for a few moments by saying something upon the evidence of a class of persons who are certainly, of all others, the most qualified to speak upon the indisposition of prosecutors to act. I mean prosecutors themselves; or rather, those who would have been prosecutors, but for the rigour of the law,—I cannot enter particularly into the evidence of each; but each of them in substance, was asked this question:—"Would you have prosecuted, if the punishment had been less than death?" The answer was uniform: Mr. Forster replies, "Certainly;" Mr. Wilkinson, "certainly;" Mr. Conder, "he certainly would have prosecuted, but for the punishment of death;" Mr. Collins, "he should not have hesitated an instant, if any thing short of death could have been inflicted. He would have taken extraordinary pains to have brought the offender to justice." And all the other persons examined, without a single exception, speak to the same effect.
The next question asked was, "Is the opinion prevalent?" Mr. Forster replies, "yes, there is a prevalent indisposition;" Mr. Wilkinson, "I have observed a general unwillingness when the consequences were so serious as death;" Mr. Conder, "I have conversed with many individuals on the subject, and they universally expressed an aversion to prosecuting, because they did not approve of the capital punishment. But with respect to forgery, their feelings were most warmly expressed;" Mr. T. F. Forster, "There is a general disapprobation among the merchants and traders of London;" Mr. Wendover Fry, "It is general among the traders of London, and I believe it would not prevail, if the punishment were less than death;" Mr. John Gaun, "It is my opinion. I have known several instances in which the middle ranks of society, more particularly retail shopkeepers, have entirely foregone prosecuting in small offences, shop-lifting especially, and in forgery in all cases, where they are for a small amount;" Mr. Soaper, "I believe it is; and there is a general impression, on the public mind, that a reduc- 940 tion in the penalty of crimes which are punished with death would be attended with increased security to property; Mr. Garrat, "I think I can state with certainty, there is not one person in twenty, but shudders at the idea of inflicting capital punishment in cases of forgery Mr. F. Thornhill, "I know many persons in London who have been great sufferers by such practices, and who have declared, that if the punishment had been any thing less than death, they would have regarded it as highly criminal in themselves to have foreborne prosecuting the offender."
I remember that Mr. Dryden, with even more than his usual felicity of argumentative versification, thus urges the combined testimonies in favour of Christianity—
Whence but from Heaven could men un-skill'd in arts,In various ages born, in various parts,Weave such agreeing truths—or how, or why,Should all conspire to cheat us with a, lie?And so I ask, how happens it, that persons so various, filling situations as various—merchants, bankers, shopkeepers, solicitors of the excise, solicitors of the Old Bailey, officers of the police, clerk's of the police offices, magistrates, and jurymen—men bound together by no similarity of pursuit, no identity of interest, by no party-feeling, political or religious—how happens it, I say, that such persons shouldWeave such agreeing truths—or how, or why,Should all conspire to cheat us with a lie?That they all agree is indisputable. And whence this agreement? Shall we suppose, that sir Archibald Macdonald, as it is very natural he should—police magistrates, as it is very natural they should—had entered into a conspiracy with the bankers and traders of London, to deceive the House and the public? Shall we accede to this rational solution of the uniformity of their testimony? Or shall we conclude, that they all spoke alike because they all spoke the truth, and that the uniformity of the evidence arose from the uniformity of the observation?For my own part, Sir, it is a matter of high satisfaction to me, that men so various, looking at the same object; from points of view so various—the late chief baron looking at it; under one aspect—a tradesman of the city looking at it an 941 aspect totally opposite—the solicitor of the excise seeing it again in a third—a solicitor of the Old Bailey in a fourth—a police magistrate in a fifth—a banker, whose property is at stake, in a sixth—I say it is most encouraging to me, that so many persons, looking at the same object from every point of the compass—should unanimously arrive at the same conclusion, and that that conclusion should be, that the undue severity of the law has produced impunity; that is, has produced increased criminality.
But, Sir, when I also remember that this opinion of practical men, is corroborated by the opinions of men of profound thought and great learnings—when I remember, that amongst the distinguished guides of mankind, 1 know of none who are against me, but Dr. Paley and Mr. Wyndham—that I have the authority of Chillingworth, and many other great divines—of Johnson, and many other great moralists—of Franklin, Mr. Pitt, Mr. Fox, and many other great statesmen—of, I believe, without exception, as to times past at least, all our most distinguished and pre-eminent lawyers, sir Thomas More, lord Bacon, lord Coke, lord Clarendon (who, however, only touches the subject incidentally), lord Ashburton, and sir William Blackstone—I say, when I see that the conclusion to which the wisest men have arrived by dint of reason, is the same conclusion to which the most practical men have arrived by dint of experience—and that this, the speculation of the learned, and the observation of those who gather up their notions in the busy scenes of life, has been put to the test in America; and that there it has realized more than the most sanguine expectation; and, further, that this system is the common law of England, and is common sense—I say, when I have such a body of evidence and argument, of fact and authority, of reason and experience; and when our adversaries, members of a committee which sat for many months, never once ventured to hint at an authority, or to produce a witness, who could gainsay the truths of those doctrines which I am maintaining—when I have so much in my favour, and so very little against me, I cannot but indulge the hope, that the noble lord opposite, and the government, will do justice to the country, by aiding the milder but more efficient doctrines of penal legislation, which we have endeavoured to promulgate.
942 But there is another price we payoff which, if L can prove the existence and the extent, no man living will deny that;, in itself it more than countervails every; conceivable advantage—I mean, the perjury of jurymen. I feel myself the more called upon to enter upon this subject, because a noble and learned lord is understood to have denied, and with indignation, the existence of such perjury. I am not so insensible as not to know the difference between his authority and mine, upon a question of this nature—that his is almost every thing; mine almost nothing. But yet 1 do not hesitate to repeat the assertion; because I am sure that I can prove it, by testimony so clear and so indisputable, as shall exclude the possibility of a reference to any authority, however high, and to any experience, however extensive.
And here, Sir, I must refer to the Sessions papers. My object is not to demonstrate perjury in a few special and selected cases. I admit that I prove nothing at all, if I do not prove it in tens, nay, in hundreds of thousands of instances. For the sake of clearness, I shall advert to but one species of crime; namely, Larceny; and to one species of perjury; namely, a diminution, by the jury, of the value of the goods stolen, below the sum made capital by law. The House are aware, that larceny from the person is, or has been to a late period, capital, to the extent of twelve pence; from a shop, to the extent of five shillings; from a dwelling-house, to the extent of forty shillings. Now, I will read to the House a few cases, by which they will judge whether juries do or do not perjure themselves, for the purpose of saving the life of the prisoner. Mary Whiting was indicted for stealing 7 guineas and 34 shillings, in the house of John Sun. Verdict, guilty 39s.—Jonathan Smith was indicted for stealing 20l. in money in the house of J. Marsh. Guilty 39s.—Elizabeth Parsons was indicted for stealing 23 guineas in the dwelling-house of Richard Staples. Guilty' 39s.—Joseph Court was indicted for stealing 8 pair of gold ear-rings, value 3l. 16s.; 121 other pairs of ditto, value 74l. 10s. 6d.; 48 pairs of ditto, value 12l. 12s.; 204 pairs of ditto, value 36l. 9s. 24 pairs of ditto, value 6l. 6s. 2,488 gold beads, value 72l. 18s.; 864 coloured beads, value 18l.; 144 pairs of gold-earrings, value 20l. 8s.; 3 pairs of gold 943 enamelled bracelets, value 9l.; 18 pairs of gold ditto, value 11l. 7s. 6d.; 3 small cases for bracelets, value 6s.; 36 gold seals, value 33l. 12s.; 12 gold lockets, value 3l.; and a parcel of shoes, value 14s. 8d.; the property of Messrs. Mackenzie and Grey, in a lighter belonging to them on the Thames navigable river. Guilty 39s.—Stephen Blanrise and John Parker were indicted for stealing 681b. of beef, value 15s. and l2lb. of pork, also a stock-lock, privately, in the shop of Thomas Burdett. Guilty 4s. 10d.—William Parker was indicted for stealing 4 cocks, 17 hens, 5 ducks, 15 drakes, 20 fowls, the property of E. Tilson. Guilty 10d.— Barbara Hensley was indicted for stealing a gold watch, and a gold chain, value 10l.; 2 cornelian seals, value 40s., privately, from the person of Edward George. The watch and chain found on the prisoner's person. Guilty 10d.—David Dickson was indicted for stealing 18½ guineas in the dwelling-house of Mr. Hall. Guilty 39s.—Edward Greenwood was indicted for stealing 240 gallons of vinegar, value 22l., a hogshead and 6 half hogsheads, value 4l., the property of Elizabeth White, on a wharf adjoining the Thames navigable river. Guilty 39s. —William Moore was indicted for stealing 10 gallons of wine, value 10l.; 42 bottles, 7s.; and a handkerchief, 2s., in the house of Peter Dennis. Guilty 39s.—George Taylor and William Dove were indicted for stealing a bed, bedstead, and curtains, set of fire-irons, a stove, a looking-glass, 4 checked linen shirts, a chest containing a bill, value 4l. 8s., another bill, value 4l. 4s., another bill, value 2l. 2s., two dollars, and 7 bills (Spanish money) in the house of Mary Glass. Taylor guilty 39s.; Dove guilty 10d.—Catherine Tracey was indicted for stealing 6 guineas, and 2 half guineas, from the person of George Bennington. Guilty 10d.—John Powell was indicted for stealing 84 wooden half-firkins, and 1,1501b. of soap, value 20l. Guilty 10d.—John Martin was indicted for stealing 6 guineas, 2 crowns, 3 silver shoe-buckles, and 11 silver buttons, in a small trunk, in the dwelling-house of Thomas Smith. Guilty 39s.—Thomas Radford and Thomas Williams were indicted for stealing 7s.; a bank-note, value 10l.; 1 ditto, value 2l.; 3 others, each 1l.; and 2 others, each 5l. monies of John Harts-home, in his dwelling-house. Guilty 39s.—Alexander Chalmers was indicted for 944 stealing 333 yards of Holland linen, value 105l. 5s.; 24 yards of printed linen, value 4l. 4s.; 45 yards of damask, value 16l.; 26 yards of striped linen, value 3l. 5s., in the dwelling-house of Edward White. Guilty 39s.—Joseph Day was indicted for stealing a gold watch, value 20l.; a gold watch-string, value 2l.; a gold chain, value 10l.; a pair of diamond ear-rings, value 20l; a silver snuff-box, value 3l.; 6 silk gowns, value 12l.; 2 pieces of gold and silver brocaded silk, containing 40 yards, value 60l.; 10 pieces of silk, containing 80 yards; and other things, in the dwelling-house of Thomas Cooke. Guilty 39s.—William Fox was indicted for stealing 50l. in money, numbered, in the house of Alexander Steele. Guilty 39s.—Philip Shovel was indicted for stealing 9 geese, value 40s. Guilty 10d.—Mark Woddin was indicted for stealing 12 guineas, and 4 shillings, in a dwelling-house. Guilty 10d.—Henry Todd was indicted for stealing 2 live pigs, value 10s., the property of John Dunn. Guilty 10d.
Now, here is a case which is somewhat inexplicable to those who think that there never has been any disposition on the part of the judges to rescue the guilty prisoner from the legal consequences of his guilt. Martha Walmsley was indicted for stealing 1 pair of silver shoe-buckles, 2 pair of leather shoes, 3 shirts, 3 other ditto, 3 aprons, a frock, a gown, a bed gown, 2 pair of hose and 2 curtains, with many other things, value 3l. 10s., in the house of Henry Grinling. Court to prosecutor. "If you can fix the value under 40s., you will save the prisoner's life." Prosecutor. "God forbid I should take her life! I will value them at 8s." Guilty 8s.
Here is another case to which I beg to call the particular attention of the House. William Earl, alias Day, was indicted for stealing 13¾ yards of lace, value 6l. in the dwelling-house of Arabella Morris. Guilty 39s. He was a second time indicted for stealing 4½ yards of lace, in the house of Henry Pearse. Guilty again 39s. Now, it is somewhat curious, that 4½ yards of lace, and 13¾ of lace, upon the oath of twelve jurymen, should be valued at precisely the same sum. But, what is still more extraordinary, he was a third time indicted for stealing 6½ yards of Mecklin lace, and 7 yards of English lace, in the shop of John Gubbins. Now, if 4½ yards were worth, valued upon; oath, 39s., one 945 would have thought that these 6½ yards of one description, and 7 yards of another, must have been worth something more. But it appears, they were worth a great deal less; for the jury brought in their verdict, guilty of stealing to the value of 4s. 10d. Is there any man who doubts the reason of these strange and sudden fluctuations in the value of She property? That their value was limited to 39s. in the two former instances, and to 4s. 10d. in the latter, because, in the former, the larceny was from the dwelling-house; in the latter, from the shop?
Again a bank-note of 50l. is taken from the pocket of the prosecutor: the jury swear it is worth but 10d.—from the shop of the prosecutor, the jury swear it is worth 4s. 10d.—from the dwelling-house of the prosecutor, the jury protest that it is worth but 39s. Now, Sir, if any man denies that this is palpable and rank perjury, he is bound to explain so curious a phenomenon. Here is a piece of paper worth 10d. in one spot, 4s. 10d. in another, 39s. in a third, and 50l. all over the world besides.
These are some few of the cases of this nature which I have selected; and I hold in my hand twelve hundred of a similar description, with which I need not trouble the House. I, in the little leisure that I enjoy, have only been able to select so limited a number; but, if any gentleman wishes to enlarge his collection, he will find no difficulty in making that twelve hundred, twelve thousand. Now, observe: each of these cases involves the perjury of twelve men. I have confined myself to one species of crime out of a multitude—to one species of evasion out of a multitude—and to one court, the Old Bailey, without touching upon the remainder of England, all Ireland, and all Scotland. And, thus restricted, I prove my point. But, had I enlarged upon all crimes, tried in all courts, subject to every species of evasion, what would then have been the number of demonstrated perjuries?
As this is an important part of the case, I wish to prove whatever I have asserted. I must, then, show, that there are a multitude of evasions: Goods may be taken, and yet the act not amount to larceny, in the contemplation of the law. It may be larceny, but not privately: Or, being privately, not to the value required: Or, being to the value required, not from the person, the shop, or the 946 dwelling-house; and in each of these steps there is room for evasion. Nothing, for example, can be more common than a case of this nature: The prosecutor swears that he lost a five pound bank-note, put it in a drawer, locked the drawer, took away the key—the drawer was broken open, the money gone, found upon the person of the prisoner, and other circumstances conspire to establish his guilt. The jury declare, that he is guilty of stealing, but not in the dwelling-house; by which they imply, that the note and the man were accomplices—the note breaks open the drawer, passes through the doors, finds its way into the street, and there is met by the prisoner—then, and, upon the oath of the jury, not till then, his guilt commences—he is guilty of stealing, but not in the dwelling-house.
Again: There is another mode of evasion, of great efficacy in preserving the lives of criminals—A supposition that the thing stolen was taken in parts, and at different times; consequently, the prisoner at no one time is guilty of stealing to the amount made capital by law. For example; a man has a guinea in his pocket—the prisoner evidently took it; and the jury suppose, that he first contrived to divide it into some six and-twenty separate pieces, committed six-and-twenty distinct robberies, and then recoins the guinea which is found upon him.
Again: John Williams steals a live pig, sells it to a publican much under its value, for 7s. and a pot of beer. The jury are confident, that before he stole it, he cut it into pieces, stole it slice by slice, then rejoined the parts, resuscitated the pig, and produced it, unimpaired in voice, health and spirits, after-so serious an operation.
But, I will fatigue the House with only one additional case. It certainly is the most curious of all that I have stated; but I am bound to add, that it does not stand upon that authentic and indisputable evidence, upon which I rest all the other facts now advanced. I advert to the celebrated case at Pevensy; to which ancient and respectable borough belong, I believe, some peculiar, but rarely exercised rights of trying offenders. A man was brought before the magistrates at quarter sessions, charged with stealing a pair of leather breeches; The evidence was clear, and his guilt was manifest; the jury brought him in guilty; and the magistrates were going to pronounce 947 upon him sentence of imprisonment, when the clerk informed them, that the offence was capital, and that therefore they must proceed to pronounce sentence of death. This information threw these respectable magistrates into the utmost confusion and dismay. What was to be done? was a question which all asked, and none could answer. One advised the insertion of Not before the word Guilty: Another thought it would be more regular to turn the prisoner loose and say no more about the matter. At length, it was determined to adjourn the court, and to send a deputation over to a Mr. Willard, a gentleman, I presume, very learned in the law, to beg his counsel in so desperate an emergency. It so happened, that the lord chief baron and another of the judges were dining with Mr. Willard, when this strange embassy introduced themselves. When their melancholy case was stated, the chief baron said, that the best way would, be, to insert after the word 'Guilty," the words "Of Manslaughter. The deputation were delighted with so ingenious an expedient—returned in triumph—and I am misinformed if it does not appear by the records of this respectable borough that the man was tried for stealing breeches and convicted of manslaughter. In another instance, I hear of a man who was indicted for returning from transportation, and found guilty of Petty Larceny.
Now, Sir, I know not the value which gentlemen in this House attach to the trial by jury: but this I do know, that it is nothing, and far worse than nothing, except upon the presumption of the veracity of a juror's oath; and that there is no gentleman, who hears me, who holds any thing, however dear to him, the possession of which may not depend upon the veracity of a juror's oath. Is it, then, policy or prudence—(I say nothing of its wickedness)—to tamper with that which is so very delicate; or even to permit the reputation of that oath to be impaired, or any stain to be cast upon its purity? But when the public see twelve respectable men—in open court—in the face of day—in the presence of a judge—calling God to witness, that they will give their verdict according to the evidence, and then declaring things, not very strange or uncommon, but actual physical impossibilities,, absolute miracles wilder than the wildest legends of Monkish superstition—what impression on the public mind must be made, if not this—that there are occa- 948 sions, in which it is not only lawful but commendable, to call God to witness palpable and egregious falsehood?
And here, Sir, I wish to introduce one observation. It has been said by gentlemen on the opposite side, "True—persons are indisposed to prosecute, but then this is not so much from any principle of humanity as from a principle of economy." Now, I admit, that where two motives operate at once upon the mind, it is very difficult to assign to each its appropriate and peculiar force; but with regard to jurymen, only one motive is in operation—it is no cheaper for him to bring in a verdict of acquittal than of guilt; he saves nothing by the flexibility of conscience'—the motive of humanity is the only one which, operates in his mind, and that one motive has been sufficient to occasion all that forgetfulness of the solemnities of an oath, of which I have just advanced such irresistible proof.
If this multiplied perjury stood alone, it would be more than sufficient to countervail every conceivable advantage; for I cannot think that the House will very easily reconcile itself to vote for the continuance of a system, in the front of which, stands perjury so rank, so palpable, so general, and so fatal.
But I have yet a deeper charge, if deeper there can be, against our present system of criminal jurisprudence; namely, that it grows the crime it punishes, and makes the criminal whom it afterwards executes. Will any one deny this?—look to your prisons. I cast no reflection upon those who now conduct them—the efforts which have lately been made, and so happily, for their amelioration, reflect the highest credit upon the magistracy of the country: but what have they been for a century past?—nothing else but seminaries for the growth of crime; then Botany Bay, a reward under the name of punishment; then your police; if the noble lord will permit us to go into a committee on the Police bill, I will pledge myself to show, that it has been, and is the disgrace and shame of the country; but time forbids me to do more than touch upon these painful proofs of neglect. Whence, I ask, the lethargy, the supineness, the indifference to the prevention of crime, which marks our system? Here is the cause—we rest our hopes on the hangman, and in this vain and deceitful confidence in the ultimate punishment of crime, forget the very first of our duties—its prevention.
949 If there be a cause which is calculated to awaken our strong compassion, mingled indeed with resentment as strong, it is the facility afforded to the beginner in evil—the smoothness of the path of vice when he first enters it—the gentle declivity down which he at first descends, allured forward by that which is unquestionably the most insidious of all poisons, and the most potent of all temptations, to the beginner in evil—impunity to his early misdeeds. Ah! Sir, circumstances have led me to know something of the haunts where guilt lurks in this metropolis; and, if I have seen much in them to abhor, I have seen as much in ourselves to condemn; and, while my eye has been Shocked, and my heart pained, by scenes of low and disgusting profligacy, I have trot blinked the truth; I have not disguised, from myself the fact, that many of these great evils are also remediable evils; and therefore, that in much of this, myself, every mart who has any influence, but above all the ministers of the Crown, who could avert these evils if they would, who could with the utmost ease sweep away these snares for the morality of your people—are in some sort participators.
The cruelty of this indulgence, and permission of crime, gathers strength from the reflection, that in England, for the offender, there is no easy return to the paths of virtue: his character is gone, and with it the restraint which character imposes; hope is gone, and the stimulus which hope gives to virtuous exertion; his means of subsistence are gone too; and that course which he commenced in wantonness, he must continue from necessity. Let me not be misunderstood, as I sometimes have been, as an advocate for the criminal, or the apologist of crimes. No one views with more horror than I do the crimes which abound in this metropolis; but I may be excused if I sometimes turn my attention from the j effect to the cause—from the stream to its source—from guilt on the part of the criminal, to the neglect on our part which occasions it. Let no one imagine, that the picture which I have drawn, is rarely seen, or extravagantly coloured. I do believe, that if the real mysteries of crime could be developed—if the secrets which are now hid in impenetrable darkness by the united interests of police and criminal, could be faithfully unfolded to the eye of the public scenes both of guilt and wretchedness would be disclosed, 950 which would shame every mart who is not dead to every sense of shame, grieve every man who is not insensible to all feelings of compassion, and rouse us all into ardent efforts for the prevention of crime.
Upon a late occasion (in company with Mr. Samuel Hoare, the chairman of the Society for the Reform of Juvenile Delinquents,) I visited about midnight many of those receptacles of thieves which abound in this metropolis. We selected the night of that day in which an execution had taken place, and our object was, to ascertain whether that terrible demonstration of rigour could operate even a short suspension of iniquity, and keep for a single night the votaries of crime from their accustomed orgies. In one room, I recollect, we found a large number of children of both sexes, the oldest under eighteen years of age, and in the centre of these a man who had been described to me by the police as one of the largest sellers of forged Bank-notes. At another part, we were shown a number of buildings, into which only children were allowed to enter, and in which, if you could obtain admission, which you cannot, you would see scenes of the most flagrant, the most public, and the most shocking debauchery. Have I not, then, a right to say, that you are growing crimes at a terrible rate, and producing those miscreants who are to disturb the public peace, plunder the public property, and to become the scourge and the disgrace of the country?
The day before a late execution, in which eight persons suffered, I visited them in gaol, conducted certainly by no barbarous curiosity, but led to their cells by the desire of learning from dying men, if I could do so without pain to them, what was the original cause of their criminality. I found them in a subdued and tranquil frame of mind, ready to communicate, and if they did not deceive me, I saw in those eight persons, eight victims to the cruelty of depending on ultimate punishment, instead of early prevention; each of them had begun with petty offences, had enjoyed a long career of unpunished crime, had been led, step by step, from one dark deed to a darker till he had attained that degree and measure of wickedness which called down the exterminating vengeance of the law. It is impossible to witness scenes of this kind without asking, whether we have a right 951 to do so much in vengeance, and so little in prevention—without acknowledging, that as the greatest of all charities is that of turning the sinner from the error of his ways, so the greatest of all cruelties is the cruelty of affording facility to crime, and of allowing the seeds of evil to be scattered around us in the deceitful belief that we can cut off the weed as it rises: it is impossible to witness scenes of this kind without remembering the splendid passage with which a lawyer, remarkable for every thing but his humanity, lord Coke, closes his fourth Institute. He says—"What a lamentable case is it to see so many christian men and women strangled on that accursed tree, the gallows; insomuch as if in a large field a man might see together all the christians that but in one year in England come to that ignominious and untimely death—if there were any spark of grace or charity in him, it would make his heart to bleed for pity and compassion.
"The consideration of this preventing justice were worthy the wisdom of parliament. Blessed shall he be that layeth the first stone of the building, more blessed that proceeds in it, most of all that finish eth it, to the glory of God, and the honour of our king and nation." So said the first of our legal authorities two centuries ago: and as yet,, the first stone of that building has not been laid.
This, then, is my argument. Our system is before us. The price we pay for that system is—The loss of public opinion, and of the aid (the best, the cheapest, and the most constitutional) which law gathers from the concurrence of popular opinion: The necessity of doing that by spies, informers, and blood-money, which were better done without them: The annual liberation of multitudes of criminals: The annual perpetration of multitudes of crimes: Perjury: and the utter abandonment of the first of your duties—the first of your interests—and the greatest of all charities—the prevention of crime.
This is what you pay—and, for what?—For a system which, having in its favour Mr. Wyndham and Dr. Paley, has against it, Johnson, Franklin, Pitt, Fox, More, Bacon, Coke, Blackstone, and a multitude of others—divines, moralists, statesmen, lawyers—an unrivalled phalanx of the wise and good: A system which has against it the still stronger authority of practical men, who, draw 952 their conclusions from real life: A system which has against it the still stronger authority of the common law of England, which, if wrong now, is wrong for the first time: A system which has against it the still stronger authority of experience and experiment, in England, on the one side, in Tuscany, in America, and elsewhere, on the other: And, finally—a system which, in its spirit and its temper, is against the temper and the spirit of that mild and merciful religion, which desireth not the death of a sinner, but rather that he should turn from his wickedness and live.
§ Mr. Brighteulogized the eloquence and ability of the exposition given by the hon. member for Weymouth, but stated that he could not concur in the propriety of repealing the law by which forgery was rendered punishable with death. He contended that this crime was the crime of education and trade: and that for the protection of property, in the present state of society, it was necessary to inflict upon those who were guilty of it the severest punishment which could be invented. He went on to maintain that the statements in the report were not borne out by the evidence appended to it; and he exemplified his position by reference to various parts of the testimony, especially to that of sir A. Macdonald. It had been stated that a number of bankers had formed an association for the purpose of prosecuting persons who had committed forgeries, but that the severity of the law had deterred them, in many instances, from proceeding. Not one of the members of this association had, however, been examined before the committee; and yet, defective as the evidence was, they now came forward and asked for a most essential alteration in the law, which they described as unfit for the present constitution of society. He did not mean to defend all the minor enactments of the criminal law; but he took his stand on one of the greatest offences that could be committed against such a community as that in which we lived. If an alteration were made in the state of the law with respect to that offence, it would become necessary to alter the whole of the criminal code, from murder to hedge-breaking. For whom, he would ask, were they to legislate? Were they to legislate for the whole community, or only for individuals. Was a man to tell him that he would prosecute, provided he (Mr. Bright) legislated as 953 that individual pleased? The law did not admit of this compromise. It said—"You shall prosecute!" And why did the law make this specific declaration? Because those who framed it were well aware of the fine sympathies which pervaded human nature, and to break through which all men felt a great degree of reluctance. The law, therefore, rendered it imperative to prosecute for great public crimes, and it did wisely; because it was proper to consult, not the feelings of individuals, but the general good of society. The hon. gentleman then proceeded to make some remarks on the evidence given by an hon. member (Mr. J. Smith), and observed, that Various reasons, besides the severity of the punishment, might have induced the bankers not to prosecute in the case of the boy to whom the reference had been made. He should be glad to know why all the learned judges, who might have been examined before the committee were not called upon to give their opinion? No less than five or six judges, all men well versed in the criminal law, might have been examined before the report of the committee was brought up, and yet not one of them had been called on. Some, it was said, were not examined, because they were unfavourable to the views of the committee; others, because they were favourable to those views; some because they were reluctant to be examined, and others because they were anxious to give their testimony. There were cogent reasons, in fact, for examining those individuals. The various arguments which operated in favour of, and against, an alteration of the criminal law, might then have been correctly weighed and balanced, and a proper report laid before the House. But it was said, that the opinion of professors of the law, with reference to this subject, were not to be depended upon. If that wore the case, why did the committee rely on sir A. Macdonald and some other gentlemen of the legal profession? There was, he contended, a want of evidence to justify the committee in their decision. He would not say that the course taken in the time of queen Elizabeth, namely, that of repressing crime by increased severity of punishment ought now to be resorted to; but this he would say, that before they removed a great security for property, like the punishment of death in cases of forgery, they ought to have stronger evidence before them than that on which the report of the committee had been founded.
§ Mr. J. Smithsaid, he should have thought it improper to offer a single remark to the House on the present occasion, after the forcible impression which had been made by the able and eloquent speech of the hon. member for Weymouth—a speech highly creditable to his talents, but still more creditable to his humanity—if it had hot been for the allusion made to himself by the hon. gentleman who had just sat down. Now, he would contend that the punishment of death being certain to follow the crime of forgery had, in many instances, occasioned the escape of the offender altogether; because individuals could not bear the idea of prosecuting when the penalty was so severe. With respect to the individual referred to, he was only 16 years of age; and, under all the circumstances of the case, it was felt by those who were interested in bringing him to punishment, that it would be the greatest possible cruelty to prosecute him capitally. There had been established for many years past a society of bankers who united to protect themselves from forgery; and, although a solicitor was appointed who had nothing to do but to prosecute, and to receive his fee for acting professionally, yet it was well known that cases did occur, in the course of which means were taken to prevent the prosecution of individuals charged with forgery. He had known persons the most ignorant, the most helpless, the most artless, who had been betrayed into the commission of this offence. He did not mean to say that they were not guilty of a great crime; but certainly they were not fit objects for capital punishment. There was, he recollected, an individual found guilty of forgery some time ago, and ordered for execution. As there were some peculiarities in his case, he, knowing the humanity of the noble lord at the head of the home department, had taken the liberty of making application to him in behalf of the culprit. This was on the Saturday, and the convict was to have been executed on the Tuesday following. A respite was, however, procured; and he had some conversation with the unfortunate convict. He had been found guilty of uttering several forged bank notes, and for each note he so uttered, he had received five shillings. This poor creature was an Irishman, who came over here to make hay; and he could not convince him that he had committed any 955 crime whatsoever. This proved that there was, amongst the lower order, a general ignorance of the nature of the offence. He had hoped that the hon. member for Bristol, would have made some observations en the scope and bearing of his hon. friend's speech. This he had not done; but he had made a general attack upon the report of the committee. He would not enter into a detail of that report; but he would state, that the individuals who gave evidence before that committee were fairly collected, and were supposed to be individuals extremely well acquainted with the nature, application, and effects of the criminal law, particularly with respect to the crime of forgery. He expected the hon. member would have combated the proposition, so incontrovertibly proved by his hon. friend, that the severity of the law occasioned the commission of perjury. He had attended the trial of many hundred criminal cases; and this he would say, that where they were of a minor description, the jury in one-half of those cases perjured themselves, in order to screen the delinquent from the excessive severity of the law. If this were the only evil arising from the existing state of the law, he thought it was quite sufficient to warrant the immediate interference of the House.
§ Mr. R. Martinobserved, that the petitions on the table afforded abundant proof that the sense of the country was adverse to making forgery a capital crime. In answer to what had fallen from the learned solicitor-general, he would ask that learned gentleman, whether, if he had a ward at that university, where the learned gentleman had obtained so much honour, and if a friend of that ward were to commit a forgery upon him for 50l. or 100l.; and if that ward were to ask his advice what to do, the learned gentleman would not say to him, "If you wish to live happily in college, do not hang your friend and companion; forfeit your recognizance to prosecute if you have entered into one, for no young lady of rank and fortune will ever marry a man who has hanged his friend and companion." In the case of Dr. Dodd, did not the prosecutor fall into great odium and contempt on account of the prosecution? In his own case, a man to whom he had been a great benefactor, whom he had raised from indigence and made a collector, of the revenue, had committed a forgery upon him for 2,000l.; but finding 956 that his counsel, Mr. M'Nally, had laid the indictment against the offender capitally, contrary to his instructions, he had caused the recognizance to be forfeited, and the criminal escaped by this compounding of felony. He was convinced that if the law were not altered, juries would soon trifle with their oaths in cases of forgery, as they now did in cases of larceny and other offences.
Dr. Lushingtondid not mean to enter at large into the arguments on which the proposition of his hon. and learned friend for an alteration in the state of the criminal law was founded. The lateness of the hour, and the admirable speech of the hon. member for Weymouth, rendered such a course not only unnecessary but improper. He would, however, make a few observations founded on facts, which he thought would clearly show the necessity of repealing the punishment of death for the crime of forgery, except for the forgery of bank-notes. The solicitor-general had described the forgery of wills as a crime which might visit whole families with ruin, and which, therefore, ought to be prevented by the utmost severity of punishment. But it should be observed that the forging of wills was an exceedingly rare offence. During a connexion of thirteen years with that court before which all disputed wills must necessarily be brought, but three instances of forged wills had occurred. The learned gentleman would perhaps argue, that the rareness of the offence was to be attributed to the severity of the punishment. But let the House mark the fact—in not one of those three instances had there been any prosecution whatsoever. In each of them the individual guilty of the crime had escaped with perfect impunity. As if to render the circumstance more extrordinary—as if the more effectually to controvert the learned gentleman's proposition—it so happened that one of those cases had occurred that very morning, A person had forged a will for the purpose of defrauding a brother, who was heir to a certain property. The offender confessed his crime, and he (Dr. L.) had read the letter, which was, in consequence, written by the party against whom the fraud was meditated. He there said—"I have no inclination to be vindictive. Let me have the property, and I will not prosecute." He believed that in the other cases of this nature the same thing occurred. But forging a will was 957 by no means an easy undertaking, particularly for the purpose of passing real property; because, in that case, it was not only necessary to forge the name of the testator, but also the names of three witnesses. The destruction of wills was, however, a more dangerous crime than their forgery. It was more easily effected, and held a much greater temptation. Any individual getting possession of an instrument by which the property of a person recently deceased was devised, might, by destroying it, entirely frustrate the intention of the testator; and they air knew that wills generally fell into the custody of those who were more or less interested in the disposition of the property devised. Now, what was the punishment affixed to the perpetration of this crime? The House would be surprised to hear that there was actually no punishment at all. Here, then, was a vacuity to be filled up in the criminal code; and he called on the attorney-general to introduce some measure for that purpose. It was a curious circumstance that, during the last thirteen years, the same number of wills exactly had been feloniously destroyed (if he might use the term) as had been forged, namely, three: so that the offence which had a punishment affixed to it, had been just as often committed as that the perpetration of which was not visited by any penalty. The solicitor-general had laid considerable stress on the forgery of marriage-registers, and had said, "Surely you would not take away the punishment of death from that offence." He (Dr. L.) could not, however, find any instance of that offence, either before or since it had been made punishable with death. He could not, therefore, see any reason for making it a capital felony, except the strange desire, the extraordinary anxiety for the multiplication of capital punishments. The punishment of death did not, it was evident, produce that salutary terror which some individuals supposed. It might produce a good effect to a certain degree; but the question was, whether that good was not overbalanced by the perjury committed by juries, who acquitted prisoners of capital charges, rather than subject them to the seventy of the law? Those who were favourable to an alteration in the system balanced these two points, and decided that the greatest portion of good would be derived from an alteration of the existing system, A 958 case occurred 17 or 18 years ago to which, as it exemplified the position he had just laid down, he would call the attention the House; and here he might be permitted to state that he spoke of facts which came within his own knowledge;. A boy, 15 or 16 years of age, happened to pass by the Old Bailey when a mart was executed for forgery. Up to that time his character was free from all blame. He was employed by a merchant on the other side of Blackfriar's-bridge, who placed the utmost confidence in him. The lad inquired what the man was executed for; and was informed that he had forged a note of hand. He immediately went home, and committed that very day a forgery on his employer. For that forgery he was tried and convicted. Application was made in his behalf to Mr. Ryder, the then home secretary, and he was finally respited, in consequence of the affidavit of the ordinary of Newgate, who deposed that the culprit was not fit to receive the communion, and therefore was not fit to die. So much for the efficacy of capital punishment, in deterring men from the commission of crime! The circumstance stated by the hon. member for Galway, with respect to prosecuting an offence at common law made capital by statute, was by no means singular. In Ireland it was customary to look on half the statutes as a mere dead letter, and instead of prosecuting on those statutes, to lay the indictment at common law. He had heard this fact stated by one of the learned officers of the Crown in Ireland, who did not appear to be acquainted with the impropriety of this course of proceeding. To prove the verity of his statement, he offered to produce the calendar marked by himself. What, then, must be the state of public opinion in that country, when the twelve judges thought they were at liberty to render the solemn enactments of the legislature null and void, because the good feeling, the good sense, and the humanity of the people, as well as the reluctance of prosecutors, would not allow so sanguinary a course of proceeding to be carried into effect?" The same feeling prevailed in this country, from one end to the other, of which they had repeated instances. One was that of a banker in the city, who lost 1,500l. by the forgery of one of his clerks, but declined to prosecute him to death. The same banker had, in the course of last week, been forged upon by another clerk 959 to the amount of 1,700l. and finding that be could prosecute him for embezzlement, he was resolved to spare no expence to make art example of the offender. He knew another case in which a forged draft was presented at a banker's—when the banker, aware of the forgery, told the person to call in an hour, if he thought fit. The person was prudent enough not to call again, and the banker kept the check; but if the punishment had been less than death, there could be no doubt that the person would have been detained in the first instance, and punished. It was incumbent on the other side to show the expediency, the absolute justice, the imperious necessity, of the punishment of death. The punishment of death was irremediable, whatever might have been the errors of the evidence or the verdict. Judges and jurors were liable to be deceived. Instances of this had occurred at Chester, at Stafford, and at Durham, within the last three years, where persons had been left for execution, who had been subsequently proved to be perfectly innocent. He then complained of the receptacles which were open for thieves in this metropolis, which he regarded as disgraceful to the police. He had visited one of these receptacles, and, after passing through a very long passage in total darkness, he entered the room, in which were from twenty to thirty persons. He had inquired if there was one among them who did net live by robbery? They all avowed that they lived by depredations on the public; and in the course of the succeeding four months three of them forfeited their lives to the violated laws of their country. The house in which they met had since been shut up, but the nuisance was not removed, as another house in the same neighbourhood had been opened for the reception of the characters he had described. An active, vigilant, and preventive police, well regulated prisons, and, above all, laws assimilated to the feelings of the people, were the means required, and which the House was bound to adopt, for the diminution of crimes.
§ Mr. Nolanthought this was not the time for discussing the state of the police. That subject could be better entered upon when the report of the gaol committee came before the House. It was a grave question, whether that punishment should be withdrawn from the crime of forgery, which for ages had been regarded 960 as the most appropriate. He did not see why a distinction should be made, as had been suggested, between the crime of forging a Bank of England note and that of forging the note of a country bank. To him the crime appeared the same in both cases; and he did not think it just that the punishment of death should be awarded in the one case and not in the other. He could state from unquestionable authority, that much of the circulation of forged notes was attributable to the indulgence shown by the Bank, in allowing offenders to plead to the minor offence. He doubted whether prosecutions had been reduced by the severity of the punishment. There was one charge of so serious a nature that he could not pass it over; namely, the charge that jurors were guilty of perjury; and to rescue them from the sin of perjury, they were to make ah alteration in the laws. Now, he had never seen at the Old Bailey any thing oh the part of the jury which could warrant the statement. There was ho necessity for straining their consciences. When juries had ground for mercy, they could give their recommendation to the judge, which was always attended to, and need not commit the crime of perjury under a feeling of humanity. He should vote for the amendment, on the short and simple ground, that death was the proper punishment for forgery on the Bank of England, as well as private forgeries. He believed the sense of the country was, that forgery ought to be punished with death.
Mr. Wynnconcurred with his learned friend who spoke last but one, in thinking that the onus lay upon those who wished to maintain the propriety of capital punishments in these cases, to establish it by proof. If any man entertained a doubt whether the penalty of death was absolutely necessary, he was bound to vote for the bill. Nothing short of absolute necessity, the safety of the state, and the preservation of society, could justify its continuance, Cuncta prius tentanda. The punishment of the second offence with death was on the principle of the old law of England, which denied the benefit of clergy for the second offence. With respect to the Bank of England, as they had made its notes a legal tender by law, and punished the imitation of the gold coin with death, it seemed rational that they should punish the forgery of Bank of England notes in the same man- 961 ner. He had some doubt as to the mitigation of the punishment in the case of forged wills; but he would consent to go into the committee with only that objection to the general measure.
§ Mr. W. Courtenayexpressed himself in favour of going into the committee. It was right that parliament should look to the state of the public mind, which was manifested by the number of petitions that had been presented from time to time. These petitions had already produced some effect. A committee was appointed in the first instance; and though he was against the appointment of that committee, it was not because he objected to the mitigation of the criminal law, but because he thought the object might have been more effectually accomplished by other means. There was not the slightest ground for charging the committee with a predetermination to support the measure in question. The House had appointed the committee in consequence of the numerous petitions presented on the part of the people. That committee now laid before the House the grounds upon which their recommendation was founded, and the petitions on the table pointed out the course recommended by the committee. He could therefore say with confidence that the recommendation of the committee, so far from being contrary to, was in accordance with the wishes and feelings of the people of England. One argument urged against the proposed bill had given him considerable pain, namely, that the punishment of death ought to be continued, because we were deficient in effective secondary punishments. Now, he could not consent to the continuation of capital punishments upon such grounds, if it was contended, that the state of the people of this country was such as to render secondary punishments ineffective, the argument in favour of capital punishments would be a good one; but he maintained that this was not the case.—A little time would enable us so to arrange our prisons as to make secondary punishments effectual in preventing crime. The solicitor-general had observed, and truly, that we had not had much experience of the effects of hard labour upon criminals; but then, let that mode of punishment be tried, and he had no doubt but it would prove effectual. He had not made up his mind upon that part of the measure which regarded the forging of wills and other private instruments. That part of 962 the question stood upon grounds totally different from forgeries of negociable instruments.
The Marquis of Londonderrysaid, he was anxious to state to the House, as shortly as possible, the reasons which would influence his vote on the present occasion; and in doing so, he did not consider that he at all involved himself in a refusal to take into consideration those legislative measures proposed by the hon. member for Weymouth for reducing the standard of punishment in criminal cases. He flattered himself that the House, in what it had already done, had given to the country an earnest of its determination to do all that could be practically done upon this subject. In entering upon this subject he did not feel it necessary to follow the hon. member for Weymouth through this new and perfect system of police which was to take charge of men, and conduct them clear of all the snares and temptations of life. That subject, however important in itself, was not involved in the discussion of this evening. The real question narrowed itself into this—ought they to pass this bill for remitting capital punishment in all cases of forgery, save those upon the Bank of England? They were to inquire whether this humane measure was supported by the sound sense of legislative arrangement, or whether it did not arise from that philanthropic spirit which they were all anxious to conform to as much as possible. He could not perceive that Bank of England notes stood upon a principle so different from other securities as to require a special exception in their favour. It appeared to him that they stood upon a footing with all other negociable instruments of a similar character. But it was urged that bank-notes had been made a legal tender. He appealed to the House whether this was the fact? They never had been made a legal tender; on the contrary, no principle had been held more sacred than that it should not be compulsory to receive them. True, it was compulsory upon individuals to take those notes for their own convenience, as they could not exist without them; but the same might be said of country notes, for if those notes did not pass in the country, the whole operations of business must be suspended. If he was right in this point, and if the hon. member gave up the question of wills, then he had the whole question in 963 pari materie before him. In considering whether the punishment of death was necessary, they must inquire what punishment was best calculated to0 prevent crime. If he was not in favour of this bill, it must not be said that he was an enemy to any measure of the kind; but, if driven to consider the effects of remitting punishment, he would say, that even from the statements of hon. gentlemen themselves, it appeared that where punishment was enforced, the crime was diminished, and where it was relaxed, crime had increased. Hon. gentlemen had stated, that forgeries of wills and deeds were very unfrequent, but that wherever a conviction for such offences had been had, it was uniformly followed by capital punishment. But where did they find crime multiplying and growing from day to day? They found it in forgeries on the Bank of England, whose officers had a discretion vested in them of prosecuting the parties for the minor offence, of having forged notes in their possession, but not for uttering them, by which means their lives were saved. Here was a practical instance of the increase of crime, in consequence of the facility of avoiding death and of escaping with, transportation. His opinion was, that by passing this bill forgeries of every kind would be greatly increased. The House should pause before they removed the existing punishment, without knowing whether any thing so effectual could be substituted. The hulks, it was said, might be made an efficacious secondary punishment. Now, the hulks were never intended as a secondary punishment, but as a temporary receptacle for certain classes of offenders. It was not to be expected of government, that they could render all institutions for the punishment or prevention of crime completely perfect at once—Perfect gaols, a perfect preventive police, perfect secondary punishments—this was not the business of a moment. Government showed no indisposition to act upon the best mode of prevention and punishment, and to give every attention to any useful improvement that might be suggested. A commission was now on its return from Botany Bay, one object of whose inquiry was to find out some place there adapted to secondary punishment. Transportation was no longer considered a punishment; it being rather an object of desire than apprehension, to be sent to a place which was the most healthy and pros- 964 perous colony belonging to the country, If, therefore, transportation was no punishment, the question was whether, without having any efficacious secondary punishment, they were to take away that of death? This would be, in effect, to offer a bounty for the commission of a crime, than which none could be more dangerous to the well-being of a great commercial society. However desirable it might be to mitigate the existing laws (and no man felt that desire more strongly than himself) they should not allow their feelings to run away with their judgment, and abrogate, one punishment without having any to, propose in its stead which promised to answer the desired end. For these reasons, he thought it desirable to adopt, at present, the amendment. He should not consider, however, that any gentleman, by the vote he might give that night, would be precluded from the support of any future proposition for mitigation of punishment, when it could be adopted with a well-grounded probability of success.
§ Mr. Wilberforcesaid, he would not, trouble the House were it not for this reason, that if the bill did not pass in its present stage, he should be sorry to have omitted this opportunity of giving his testimony in. support of it. He regretted much that many gentlemen who would vote upon the question were not in the House early enough to hear the powerful arguments and persuasive eloquence of the hon. member for Weymouth. His speech, showed that his ideas on the subject were not taken up merely on speculation, but were founded on actual observation, and facts collected with the greatest industry. He was glad to perceive that his noble friend opposed the bill in a spirit which showed that his feelings favoured the principle, though he did not think it prudent at present to agree to any mitigation of the existing punishment. Whatever strength, however, the arguments of his noble friend might have as applied to the merits of the bill, he did not think they ought to prevent the House from going into the committee. This he thought they ought to agree to, were it only for the purpose of giving the measure that full and fair consideration which its importance merited. It ought to be made apparent to the country, that the House had not, until after minute consideration, agreed to a continuance of such painful severities; and for that reason, he 965 thought it the duty of the House to agree to going into a committee. If after coming out of that committee it should appear to lion, members that the mitigated punishment was inadequate to the prevention of the crime, they might on the third reading vote against the bill. Another reason why the House should go into the committee was, that although it was well known to the majority of that House, and of the intelligent part of the community, that the crime of forgery was the most destructive which could be imagined of the vital principle of a commercial nation, and that the correction of that crime was a matter of the greatest necessity, yet they must remember that ignorant minds looked on no offence more venial. On these grounds he conjured the House to pause before they voted against going into a committee, unless they were so much in love with capital punishments as not to wish for any alteration.
§ Sir James Mackintoshsaid, it had been objected to him, that he had not opened his view of the question. His reason for not doing so was, that he had, in 1819 and last year, addressed the House upon the measure, and he did not, on this occasion, wish to fatigue them with a repetition of the same arguments. But that was now charged against him as an offence, which he had done as a matter of courtesy. It was, however, of little consequence what he said upon this question. The subject was one of great magnitude, and it would ill become him to indulge in any personal feelings in discussing it. He should, were it not that he conceived that silence would not become him on such an occasion, most willingly rest his case upon the very luminous and able speech of his hon. friend (Mr. Buxton)—a speech which contained the clearest and most extended view of this great question, and which he felt himself bound to say, was the most powerful appeal that he had ever had the good fortune to hear within the walls of parliament. After such a speech, it was needless for him to enter at length into details, and in order to spare as much as possible the time of the House and his own strength, he would avoid touching upon any thing not immediately connected with the question before them. He would, therefore, abstain from entering into a defence of the committee, satisfied that the character of his hon. and learned friend would be more than sufficient to repel any attack made 966 upon it. With respect to the criticisms which have been made upon the report of the committee, it would be a want on waste of the time of the House to attempt to defend that report. He was not there to call the attention of the House to me style of the report, but to the facts it contained, and to the inferences to be drawn from those facts. It mattered not if from indolence, or carelessness, or from the neglect of an amanuensis, or of a printer, or from what other cause, the report was defective; he was not there to refute hyper-criticisms, but he must beg to have it understood, that in declining to enter upon a defence, either of the report or of the committee, he did so solely to save the time of the House, and not from a feeling of inability to do both. Before he proceeded to answer the observations of the noble marquis, he felt it necessary to remove a case put by the hon. and learned member for Barnstaple. That hon. member stated, that he knew a case of a man who had granted an annuity upon certain deeds, and had afterwards absconded. Now, the House would know how Far his learned friend had been led away by that natural vivacity which belonged to the sister country, of which he (Mr. Nolan) was so distinguished an ornament. It would appear, that were it not for a measure of this nature, a person so acting might be hanged—after he had absconded, and totally escaped out of the reach of the persons whom he had injured.—Adverting to what had been said by the, noble lord, he observed, that the impunity with which forgery was practised arose from a reluctance to prosecute, and a reluctance to prosecute from the great severity of the law. The committee had not, it was true, examined the judges of the land as to the cause and increase of crime, but they had examined the most respectable banker's and merchants of the metropolis—persons who knew what induced men to prosecute, and what deterred them from it. Those persons proved to demonstration, that the severity of punishment defeated its own object. For this fact lie would appeal to the testimony of those gentlemen. He would take, for instance, the evidence of Mr. Hoare. What were the words of Mr. Hoare? "When," said he, "I see the great number of forgeries, and the small number of prosecutions, I cannot doubt the universality of the public sentiment as to the impolicy of the law." Who, he 967 would ask, were the best fudges on that important subject? Were not bankers and merchants the best Judges? He would take the liberty for saying, in language more sober than had been applied to him by the learned gentleman opposite, that he would prefer the testimony of bankers and merchants to the mere declarations of the learned gentleman. His learned friend, the member for Barnstaple, with an importance, which no doubt he felt to be attached to the representative of that ancient and incorruptible borough, had stated, that great numbers of bankers and traders were against the bill. These bankers and traders had contrived to keep their secret from the public. They did not utter one word on the subject until they came down, it would seem, in a body, and held a private conference with his hon. and learned friend. Where, be would ask, was to be found the evidence of that opinion? Was there a single petition on the table in favour of those sanguinary laws, which, according, to the opinions of the secret clients of his lion, and learned friend, were necessary for the security of property? The hon. member for Bristol had said, that there was but a cabal on one side of the question, and that the opinions of all mankind were on the other. Did not that hon. gentleman recollect that there was a petition from Bristol in favour of the bill?—He would new say one word with respect to the witnesses who had been examined before the committee. He would fearlessly say, that there never was an examination conducted with more fairness and impartiality. He might appeal to the House whether the committee itself had not been selected on a principle of strict equality. The members of that committee sat together bound by no other ties than those of their public duty as members of parliament, and the feelings of private friends. Minutes of the evidence taken before the committee were sent round to every member, and notice of every discussion of importance was also sent round. The attendance of gentlemen holding official situations was not always expected; but it was fair to assume that if those gentlemen saw any necessity of attending or of examining witnesses, they would have attended and proposed their witnesses. They did not do so. The only proposal he recollected to have been made in the committee with respect to witnesses, came from an hon. and learned friend of his on 968 the other side, who proposed that the judges should be examined. He (sir James) made the answer to that proposal which he afterwards stated in that House, and he did not hear one dissentient opinion uttered in the committee. His hon. and learned friend, the solicitors-general, timidly hinted that those who favoured the ancient system felt rather cold upon the subject. Why did they feel so? Were they apprehensive of being made unpopular by the avowal of their opinions? If his hon. and learned friend admitted that, lie admitted his (sir James's case)—he admitted that all mankind were for the measure. If persons were afraid of incurring odium and unpopularity by avowing their opinions in favour of the severe and sanguinary code, it followed that the very supporters of that code felt that all mankind looked upon it with horror and reprobation. And here he would beg to remind the House of the various petitions presented in favour of a revision of the penal code. These petitions were signed by upwards of thirty thousand persons—by men of all parties—by men strongly attached to ministers by merchants, traders, shopkeepers, and artisans, by those who were the principal sufferers-from forgery, larceny, and fraud; by those classes from which petit jurors were always selected.—All those persons, having no political bias whatever, had strongly expressed their opinions in favour of an alteration in the penal code. So much as to the testimony of the country; and now he would ask, why, in so many cases of forgery, were there so few prosecutions? Did it arise from any consideration of expense, which opulent bankers and traders would be put to in carrying on a prosecution? Did it arise from any consideration of trouble to persons who had their agents and clerks to attend for them? Did it arise from any apprehension that discredit would be throw-n upon the houses, when the fact of a forgery being committed on a banking house was rather evidence of its opulence and credit? It was clear that none of these motives prevented prosecutions. What, then, wore the motives? In cases of private forgeries, the persons implicated generally were clerks, confidential persons, and not unfrequently relations; against, such persons there was a natural unwillingness to proceed to extremity. Such persons, without gross and settled depravity of heart, were often in fatal moments—in moments of distress, 969 occasioned top often by vicious indulgence, surprised into the fatal act. There always had been, and he thanked God there still existed in the breast of a British merchant, the humane arid generous feeling that prevented him from proceeding to take away the life of a person so circumstanced. He could not without emotion, behold the falling tear, and hear the faultering voice, of one who, however fallen had once been an object of his respect, his confidence and affection. He could not listen with indifference to the supplications of the nearest relatives of the unfortunate criminal, to spare that life which, though lost to all that could make it honourable and happy, was yet an object of their last solicitude. Indeed, the hon. member for Barnstaple had said, that in many cases of private forgeries, the prayers of the family of the criminal prevailed upon the bankers not to proceed to the last extremity. The fact was so—and so would it always be whilst the feelings of humanity were opposed to the severity of the law. His hon. and learned friend the solicitor-general had said, that in cases of private forgeries, there was a reluctance to prosecute, occasioned by the nature of the punishment—That was, in fact, admitting the entire case—the severity of the sentence was the great obstacle in the way of public justice—for such cases people felt a natural horror to prosecute. It was said, that he called for secondary punishments. In the first place, he would say, that in cases of private forgery, it followed as an inevitable consequence, that the guilty party destroyed his character, blasted his hopes, and stood for ever excluded from his nearest, dearest, and most valuable connections. Thus, in fact, he endured what might be called the punishment of nature; and it would be right to bear that punishment in mind when awarding the legal punishment to his crime. On such persons he would inflict effectual punishments; he would confine them in prisons and in hulks, subject to severe labour—a terrible punishment to persons brought up in soft habits; accustomed perhaps to luxurious indulgence, unaccustomed certainly to manual labour. Upon the subject of wills he confessed he was not prepared to decide upon that branch of the question; but if the bill went into a committee, he should there be most happy to hear any suggestion to make an exception for such crimes. There was the widest difference 970 betwixt private forgery; and the forging of Bank notes. In the latter case, there was no private feelings in operation to produce a reluctance to prosecute. A public prosecutor was employed, who had to consult his feelings of duty, and to act upon them alone. And who were the forgers in those cases? It was true that the forgers were seldom taken, and that the utterers generally suffered for the crime. But, how different was the case of a forger of Bank notes, to the person who forged privately. Instead of being a youth who had fallen in the hour of temptation, he was a man whose very occupation was villany, whose life was spent in bringing others to death and infamy. For these reasons he thought the bill would be a great public service. It would tend to decrease the crime of private forgery, and it would make the distinction clear between the forger and the first utterer of the note, and those who might be in possession of it afterwards. It would remove that darkness in which this question was at present so much enveloped, as to require a person who had been almost bred up to the practice as a profession, to discover what were the merits of a case of forgery. He again complimented his hon. friend (Mr. Buxton) upon the admirable manner in which he had argued the question. His hon. friend had laid down the great principles upon which they ought to act, and he (sir James) had endeavoured to apply them to the haw for punishing the offence of forgery. If he had been at all successful in those endeavours, it was to his hon. friend that, the House and the country were indebted.
The Attorney-Generalsaid, he had to complain of the manner in which the hon. and learned member had brought forward the present measure. He certainly did expect to have heard him open the subject with something like a general explanation of the principles upon which his bills were founded. As, however, he had not done so, his hon. and learned friend must excuse him if he stated, that he had just left the question where it was before he touched it. That being the case, and considering the lateness of the hour, he should not enter into the merits of the bill. He objected to it, because the punishment of death was effective to prevent private forgeries, and the permission of pleading to the minor offence for forgery of Bank notes had increased that offence. If he required another argument to support 971 his opinion, he thought the House should wait for the return of the commissioners who had been sent out to New South Wales. At the best, he thought the measure was premature, and under these considerations he should give it his decided opposition.
§ The question being put, "That the words proposed to be left out do stand part of the question," the House divided: Ayes, 118; Noes; 74. The bill was then committed; and at two in the morning, the House adjourned.
| List of the Majority and also of the Minority. | |
| MAJORITY. | |
| Allen, J. H. | Folkestone, lord |
| Attwood, M. | Frankland, R. |
| Acland, sir T. | Gladstone, J. |
| Baring, sir T. | Gordon, R. |
| Baring, A. | Graham, S, |
| Barnard, visct. | Grenfell, P. |
| Barrett, S. M. | Griffiths, J. W. |
| Becher, W. W. | Gurney, H. |
| Bennet, hon. H. G. | Harbord, hon. E. |
| Benett, J. | Heron, sir R. |
| Benyon, B. | Hobhouse, J. C. |
| Birch, J. | Hornby, E. |
| Brougham, H. | Hume, J. |
| Bury, visct. | Hutchinson, hon. C. |
| Byng, G. | Handley, H |
| Belgrave, visct. | Johnson, col. |
| Bentinck, lord W. | Jervoise, G. P. |
| Blake, sir F. | Lester, B. L. |
| Bent, J. | Lennard, T. B. |
| Baillie, S. | Lawley, F. |
| Calvert, C. | Langstone, J. H. |
| Calvert, N. | Macdonald, J. |
| Chaloner, R. | Money, W. T. |
| Calcraft, J. | Mackintosh, sir J. |
| Carter, J. | Musgrave, sir P. |
| Cavendish, | Martin, J. |
| Cavendish, C. | Martin, R. |
| Clifton, visct. | Milbank |
| Clifford, capt. | Milton, visct. |
| Colborne, N. R. | Monck, J. B. |
| Concannon, L. | Moore, P. |
| Cooper, R. B. | Moore, A. |
| Cripps, J. | Nugent, lord |
| Calthorpe, hon. F. | O'Callaghan, J. |
| Courtenay, W. | Ord, W. |
| Child, W. L. | Palmer, C. F. |
| Corbett, P. | Phillimore, Dr. |
| Denison, W. J. | Parnell, sir H. |
| Denman, T. | Phillips, G. jun. |
| Duncannon, visct. | Price, R. |
| Doveton, G. | Pryse, P. |
| Deerhurst, visct. | Ramsden, J. C. |
| Dowdeswell, E. | Ricardo, D. |
| Ellis, hon. G. W. A. | Rowley, sir W. |
| Ellice, E. | Rumbold, C. |
| Fitzroy,— | Russell, lord W |
| Russell, lord J. | |
| Rice, S. | TELLERS. |
| Stopford, lord | Buxton, T. F. |
| Smith, J. | Lushington, Dr. |
| Smith, W. | PAIRED-OFF. |
| Smith, R. | |
| Scarlett, J, | Aubrey, sir J. |
| Stanley, lord | Anson, hon. G. |
| Tennyson, C. | Bernal, R. |
| Tulk, C. A. | Crespigny, sir W. D. |
| Tierney, rt. hon. G. | Creevey, T. |
| Vernon, G. | Davies, T. H. |
| Wells, J. | Fergusson, sir R. G. |
| Ward, hon. J. W. | Guise, sir W. |
| Wilmot, R. | Heathcote, G. J. |
| Wilberforce, W. | Hill, lord A. |
| Whitmore, W. W. | Maberly, J. |
| Wynn, sir W. W. | Newman, R. W. |
| Wynn, C. W. W. | Powlett, hon. W. |
| Webbe, E. | Robinson, sir G. |
| Western, C. C. | Sefton, earl of |
| Whitbread, S. C. | Smith, S. |
| Williams, T. P. | Taylor, M. A. |
| Williams, W. | Tynte, C. |
| Wilson, sir R. | Tavistock, marq. of, |
| Wodehouse, E. | Wharton, J. |
| Wood, M | Whitbread, W. H. |
| MINORITY. | |
| Arbuthnot, rt. hon. C. | Hotham, lord |
| Apsley, lord | Harvey, adml. |
| Bathurst, rt. hon. B. | Londonderry, marq. of |
| Binning, lord | |
| Beckett, rt. hon. J. | Lushington, S. R. |
| Barry, rt. hon. J. M. | Lowther, J. |
| Buchanan, J. | Lowther, J. jun. |
| Bright, H. | Luttrell, T. E. |
| Bankes, H. | Long, sir C. |
| Bankes, G. | Lenox, lord |
| Boughey, sir J. F. | Lewis, W. |
| Browne, P. | Marjoribanks, sir J. |
| Bourne, rt. hon. S. | Morland, sir S. B. |
| Brecknock, lord | Osborne, sir J. |
| Brownlow, C. | Ommanney, sir F. |
| Chetwynd, G. | Pole, rt. hon. W. W. |
| Clive, lord | Phipps, hon. E. |
| Clive, H. | Pitt, J. |
| Collett, E. J. | Peirse, H. |
| Cockburne, sir G. | Paxton, W. G. |
| Curteis, J. E. | Rae, sir W. |
| Cheere, E. M. | Robinson, rt. hon. F. |
| Clerk, sir G. | Russell, J. W. |
| Drummond, J. | Rogers, E. |
| Douglas, W. R. K. | Robarts, A. |
| Downie, R. | Rickford, W. |
| Egerton, W. | Scott, hon. W. |
| Eliot, hon. W. | Sotheron, adml. |
| Fane, J. | Scott, S. |
| Gifford, sir R. | Somerset, lord G. |
| Gordon, hon. W. | Stuart-Wortley, J. A. |
| Greville, hon. sir C. | Tremayne, J. H. |
| Goulburn, H. | Wemyss, J. |
| Giddy, D, | Wilson, T. |
| Huskisson, rt. hon. W. | Wallace, rt. hon. T. |
| Wells, J. | |
| Harding, col. | Wyndharn, W. |
| Holford, G. P. | Yarmouth, earl of |
| TELLERS. | Jenkinson, hon. C. |
| Lowther, lord | |
| Copley, sir J. | Lewis, T. F. |
| Nolan, M. | Manners, lord R. |
| PAIRED-OFF. | Mountcharles, lord |
| Percy, hon. capt. | |
| Ancram, lord | Portman, E. B. |
| Ashurst, W. H. | Ryder, rt. hon. R. |
| Bathurst, hon. S. | Sheldon, R. |
| Cocks, S. | Smith, C. |
| Curtis, sir W. | Strathaven, lord |
| Dalrymple, A. J. | Warrender, sir G. |
| Holmes, sir L. S. |