Commons Sitting of 4 June 1822

CRIMINAL LAWS.
Sir James Mackintoshrose, to entreat the attention of the House to that very important subject, the criminal law of the country; and the felt that in mooting a question already so often discussed, he should have occasion for the patience and for the indulgence of honourable members. The fact of the repeated discussion of the subject—that fact alone—impressed upon him the difficulty of his task; but he was also aware, that the very nature of the question was calculated to do any thing rather than to excite general interest in the House. The question, however important to the community at large, touched, at no point, the interests of any particular class: it neither promoted the views of any party, nor could it be rendered subservient to the ambition of any individual: it formed no field for that kind of personal contest in the House which was the principal amusement of the parliamentary bystander; nor was it likely to produce any of those more serious contests between bodies of gentlemen threatened with ruin, and ministers compelled to defend their own measures, which the House had unfortunately heard so often during the present session. Not one of those various and opposite kinds of interest belonged to the subject upon which he had now to treat; but the deep importance of the subject had left him, in his own feelings, no choice but to undertake it. Under the difficulty which attached to the handling of a question so repeatedly discussed, he was sustained by the numerous and respectably-signed petitions which had been presented to the House. Those petitions, attested as to their value by the hon. members who presented them, spoke the deliberate opinion, the decided feeling of a great majority of the enlightened and reflecting inhabitants of England; and he, standing upon the foundation of public opinion and about to examine a question which no one could deny to be of the very first importance, claimed excuse if he asked that same patient attention from the House with which he had been honoured upon former occasions. At such an advanced period of the year, he could have no hope of introducing a bill to be passed during the present session. Any proposal to that effect, at such a time, would be unreasonable; and he had been prevented, partly by the course of public business, partly by a sense of the difficulty of his subject and partly by his own ill state of health, from bringing the matter forward at an earlier period. But although he had no hope of a full discussion of the subject in both Houses of parliament this year, he should hold it unpardonable if he did not make some effort to advance a cause which the community had so deeply at heart; and the therefore intended to propose a resolution to the House, merely affirming a general principle which he believed had already been recognized, and virtually adopted in various cases by the House, and by the legislature; and that resolution might serve as a basis for measures to be taken in the next session for the revision and reformation of British criminal law.
The better course, with that view, would perhaps be, to read the resolution at once. It was this—"That this House will, at a early period of the next session, take into their most serious consideration the means of increasing the efficacy of the Criminal Laws, by abating their undue rigour; together with measures for strengthening the Police, and for rendering the punishment of Transportation and Imprisonment more effectual for the purposes of example and reformation." Upon this resolution he would first say, that he attached little value to any peculiar form of expression in which it might be couched: he wished to get a declaration generally in favour of the principle, and he wished that declaration to be recorded as a resolution on the Journals of the House; but with respect

to any thing like criticism upon words, he his up at once to those who might think them worthy of such examination; and having stated thus much he would add a few words in justification of the course which he was taking. He set little value upon precedent on such matters; but if precedent was necessary, precedent he had, and of the highest description. In almost every work of reformation which had experienced vehement opposition, it had been found necessary in the different stages of the subject to vary the form of presenting it to parliament. In that memorable measure, the greatest effort perhaps of modern times in the cause of justice and humanity, the abolition of the Slavetrade—after bills had passed the lower House in favour of that measure and been rejected in the upper, after a bill for the partial suppression of the trade had passed through both Houses, a resolution similar to that which he now submitted, had been proposed by Mr. Fox. It embodied almost his dying words—it was the last effusion of that unextinguishable zeal for virtue and humanity which animated his heart and shed lustre over his public life; and in following such an example, farther search for precedent became unnecessary.
Having justified his conduct, then, in proposing the resolution, he would proceed to offer a few observations in its support. What he called upon the House to declare was this—that the efficacy of the penal laws would be increased by an abatement of their rigour. In proposing to the House to make that declaration, he proposed nothing novel; they would merely be re-asserting, and in definite terms, that which was contained in many acts of the House itself, and in some acts of the whole legislature. Had not the statute against stealing, in bleaching-grounds been repealed, upon the very ground that to mitigate the punishment was the only practicable means of making the punishment effective? Had not the repeal of several acts in 1812 against offences, connected with the revenue proceeded precisely upon the same principle? Look at the recent case of the statute the 1st Geo. 4th, which substituted transportation for death in cases of fraudulent bankruptcy. No man would contend that the punishment was mitigated out of any opinion that the offence was insignificant; but the change
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was made because the mere threat of death had deadened and defeated the whole operation of the law, and had, within the space of 70 years, reduced it to a dead letter. This alteration in the bankrupt law was only a single instance among many which might be cited. And could the legislature have put forth a more solemn recognition of the principle for which he was now contending? The punishment of death was repealed as regarded fraudulent bankruptcies: and yet fraudulent bankruptcy was a heavier offence than nineteen out of twenty of those which were still capital by the existing law of England. He would not consume the time of the House with repeated instances; but there, was the case of shoplifting. The law was mitigated as regarded that offence from capital at 5s. to capital at 15 l. The old excuse for that law had, been, that it was intended to guard by severe penalties the property of poor shopkeepers from a kind of small theft to which they were continually exposed. That excuse was now given up. The small thefts were made no longer capital, and 15 l. instead of 5s. was made the price of a man's life. Was farther instance necessary of the adoption of this principle, the acts of the House of Commons might over and over be appealed to. The bills in the time of the late sir S. Romilly might, might be quoted; the committees appointed by the House, and the reports of those committees. Nay, he would appeal to the divisions in that House, and to the feeling exhibited upon the question of forgery. He would ask, whether the attendance of members had not been as numerous, and the feeling of the House as strong and clearly manifested against ministers upon that question, as it had ever been found to be, or ever could be expected to be, upon a question merely, of general legislation? A Hon. members were aware that the attendance upon such subjects could never be compared with that which was given upon subjects, which agitated more immediately the passions of men. The state of the House at the moment when the (sir J. Mackintosh) was speaking, was a sample of the kind of attendance which could be obtained upon such questions. He alluded to that fact, not of any present feeling, but merely to show that upon the question of forgery—upon that question which was the strong-hold of the opponents of his present measure—upon

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that question which formed the very triumph of severity—the House of Commons had inclined to the wise resolution, that the punishment of death should to a great extent be done away? Upon grounds like these, it was not too much to say, that, in calling upon the House for a resolution that mitigation would promote efficacy, he called upon it to declare nothing which it had not virtually declared long ago; that he only was demanding that avowal in terms which the House, by its acts, had repeatedly made already. The latter part of his resolution he had introduced, because he had been told upon a former occasion, that in attempting to discuss the question of capital punishments, without looking at the question of secondary punishments, he was separating two things, which, from their nature should be indivisible. To satisfy the holders of such opinions, he had put the two questions in his present resolution together. He himself thought them, in some points, inseparably connected, though not exactly in the way which the gentlemen to whom he alluded maintained. Those gentlemen thought that the question of secondary punishments should be first considered; he, on the contrary, gave his first attention to the capital punishments; and he did so, because he took a vain reliance upon the fallacious appearance of efficacy belonging to the threat of punishment to be the true cause of the lax and disgraceful condition into which the secondary punishments had been permitted to lapse. The very first step, in his opinion, to a reform of our secondary punishments, must be a reduction of the capital punishments—a reduction of that stay which always deserted our lawyers in action, but a reliance upon which had tempted them to neglect the effectiveness of other systems, more safe and more important.
Now, in offering some reasons why the House should reaffirm the principle for which he contended, he could not do better than take his footing upon a ground which he had heard laid down by an hon. friend of his, that in all questions relating to the arrangement of punishments, the burthen of proof was not with those who attempted to reduce the capital punishments, but with those who endeavoured to support them. That course, indeed, was borne out by every general principle. Capital punishments could only be justifiable in cases of absolute necessity. They must be justified upon the same principle with war or any other measure which went to take away the life of man—upon the principle of self-defence, the principle that we had no means of securing or defending ourselves against the individual except by destroying him. Then, of course, the load lay upon those who justified the taking of man's life. They were bound to show that, in the cases where they contended for it, it was necessary. Those who contended against the power could not be expected to prove a negative. Now he (sir J. M.) charged this defect upon the law of England for the last 150 years. All other nations, whatever might be their laws, be they mild or be they cruel, made it a principle generally, that those laws should be carried into effect. But, while such was the practice with all foreign nations, England had 200 capital offences upon her code, for not more than 20 of which convictions ever took place; and upon the convictions Which did take place, not more than one offender out of ten suffered the penalty of the law. That such a system, notwithstanding its absurdity, should find some supporters, he did not wonder. Paradox, from its very singularity, at once attracted the attention of genius. An anomaly or a gross absurdity was a plaything, as it were, for men of talent; and when men of talent had their own interest concerned in supporting that absurdity, it would be strange if, in a country like England, it should be found without defenders. And then, on the other hand, people's fancies were excited by such discussions. They were more pleased and amused with hearing a thing any how defended, which they had never imagined could bear defence at all, than they would be with a homely, straight-forward discussion. Certainly it was to no other cause that he could ascribe the fact of our criminal laws having been defended by Mr. Windham and Dr. Paley. There had, indeed, been a spirit of chivalry about the general conduct of Mr. Windham,—a love of singularity, and a reverence for ancient customs—which rendered his defence of the system perhaps rather intelligible. Men naturally delighted in that which was new to them. Liberal opinions were the opinions of the society in which Mr. Windham had moved and lived, and consequently there had been nothing to him of novelty about them; but, in taking up the old opinions, the dogmas of former

ages, he had the pleasure of defending a hopeless cause, of justifying abuses long and long exploded, and of palliating evils which were condemned by every enlightened man in the country except himself. As to the panegyrics which lawyers by profession were eternally pronouncing upon the laws of the country, while they were undiscriminating, he (sir J. M.) thought they were wrong. Upon portions of their commendation he agreed with them altogether; but indiscriminate praise carried back his mind to the words of that poet through whose prose writings even the spirit of Paradise Lost often beamed in all its vigour; such commendation made him think of the words of that poet the first defender, let it be remembered, in Europe, of a free press and an unfettered conscience; that bard, in his address to the Lords and Commons of the land, spoke in these terms—"Those who freely magnify what has been well done, and fear not to declare as freely what might be done better, give the truest covenant for their fidelity. Their highest praise is not flattery, and their plainest advice is a kind of praise." And such was the kind of praise which he (sir J. M.) would apply to the great principles combined in of England. To distinguishing praise he offered his full tribute; and of undistinguishing praise, what, he asked, was the value? Such praise was bestowed upon the law as it now stood. Why, yes; and it had been also bestowed before the time of William 3rd, when no man indicted for treason had a right to a notice of trial, to a copy of his indictment, or to a list of the witnesses against him. Such praise had been lavished before the act of the 1st of queen Anne, when no witnesses could be sworn in favour of a prisoner, and when it was a vain formality therefore to give him the right of calling witnesses at all. During all the time that those excellent regulations had existed, the cry against innovators had been no less loud than it was now. He contended, therefore, that the praises of lawyers were to be guardedly received. Mr. Serjcant Hawkins said, in his "Pleas of the Crown," that "those only who have taken a superficial view of the Crown law, charge it with rigour." Would the House believe that those words were written while the statutes against witchcraft were still in full force—while witches were burned as regularly as felons were banged at every assize? But to come farther
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down. What was the state of the law even within the last 30 or 40 years? Had not women been burned alive for petty treason within that time, and prisoners put to the torture for refusing to plead? And yet all this while lawyers had not been less loud in their praise of law, courtly writers less warm in its commendation, or enemies to innovation less numerous and determined! It was to fundamental principles that he wished to draw their attention, in discussing the present question, although he was certainly aware that no views could be more unpopular in that House, and that nothing was in danger of being held more visionary, than the idea of framing a scale of punishments adapted to the degree and measure of criminality. He knew it might be said, that every attempt to construct such a scale had been found impracticable, and that no theory of the kind was to be found in the writings of Montesquieu. Let it not, however, be treated with scorn and derision on the credit of such representations. Such a scale was to be found in a document which, though it had been enacted nearly 600 years ago, still formed a portion of our written law—it was to be found clearly and distinctly expressed in Magna Charta. In that superannuated statute, passed by turbulent and Martial barons, there was, indeed, a most singular contrast with the spirit of legislation that distinguished more Modern times. But unpopular as it might be to refer to that ancient and venerable monument, to that law of laws which he charged the criminal jurisprudence of England with violating every day, he should yet think that a British parliament would listen with respect to this thirty times confirmed enactment. Remarkable it was that those whom we, in this enlightened age, were apt to consider as barbarians, had legislated respecting crimes with the clearest judgment, and with the most careful humanity. Their reserve as to the infliction of the last dreadful penalty, he had already noticed; their respect for property, and the rights of merchants, were equally conspicuous. Pecuniary fines were at that time an ordinary mode of punishment, and these were imposed on every occasion with a strict reference to the amount of guilt, or the circumstances by which it was softened or aggravated. What were the words of that charter? "Liber homo non amercietur pro parvo delicto, nisi secundum modum illius delicti, et pro magnao

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delicto secundum magnitudinem delicti, salvo sibi contenemento suo: et mercator eodem modo, salva merchandisa sua, et villanus alterius quam noster, eodem modo amercietur." Thus it appeared that their zeal for the distribution of justice did not overlook persons in a servile condition, but that every class was alike the object of their wise and provident liberality. At this period the civil magistrate might have called to his aid all the thunders of the church; but he did not think it necessary to avail himself of that alliance, in order to fortify his denunciations of capital punishment. At that time it was not capital to utter a forged note for one pound, to cut down a tree in an avenue, or to steal to the value of 40 s. in a dwelling-house. It never could be deemed agreeable to the principles of religion, any more than it was to the letter of Magna Charta, to inflict the punishment of death for a fraud, or an offence against property, to which the culprit had been perhaps, instigated by the extremity of want. He could not but think that the views taken in the 13th century, amidst all the rigour of the feudal system, presented an afflicting contrast in this respect with the opinions now entertained in some quarters where they could not fail of exercising a great influence. Enlightened lawyers were unhappily at variance with the authors of that great foundation of our liberties, which had been thirty times confirmed, and which contained, instead of a measure of suspicion and tyranny against all foreigners, a special enactment for their protection. Every one had heard the name, if he had not read the writings, of, sir Mathew Hale. That celebrated person flourished under the reign of Charles 2nd, and in his work on the Pleas of the Crown, had observed, that death was too frequently adjudged in this country; but the difference between England and other nations was, that much was left elsewhere to the arbitrium, judicis, but in England the laws, were more determinate and inflexible. Let the House, then, only reflect on the change which had been effected in the character of our laws since that period. It was by the extent of discretion left to the judge in criminal cases, that we were now distinguished, from, and opposed to every other country in the world. Was he to, be charged with introducing new or vague opinions on the subject, when he produced an au-
thority like this; or rather did it not justify him in proclaiming the more recent doctrines received upon it as themselves an upstart degeneracy which they could not too soon abandon? Since the time of sir Matthew Hale, when, according to that venerable person, the criminal law of England was too sanguinary, there had been ad led various capital punishments for forgery, for stealing in a dwelling house to the value of 40 s. and for sheep-stealing. If it were said, that modern usage differed from the usage of antiquity, and had led to a different result, he should be extremely happy to place the argument upon that issue. Lamentable, indeed, was the inference furnished by a contemplation of the actual effects which had followed the change in question. The average of capital convictions from 1805 to 1809 inclusive, was 381; and for the last five years this had risen to 1,260. Here was one striking evidence of the practical result of a legal system, contrasted not only with the sentiments of our ancestors, but with the laws and institutions of every other country under heaven. Something must be attributed, beyond all doubt, to an increase of population. A variety of causes might have been more or less influencial in producing this raid and frightful increase; but surely the presumption was against those penal laws, under which this increase of crime had taken place. In other countries, where the law was different, a different result had followed; and so far they had the experimentum crucis in favour of his argument. When the disease became more violent, instead of abating, and its symptoms rapidly and constantly increased, surely there was reason to suspect that the remedies were not well chosen or applied. It would not be asserted by any enlightened foreigner, that there was any thing in the national character which peculiarly disposed it to the perpetration of criminal offences. The House had recently received several petitions on his subject, exhorting it to adopt those principles which he was now feebly endeavouring to recommend. In some of them it was truly urged, that the extreme severity of punishment often defeated its own purpose, and secured impunity to the offender. Perhaps enough, however, had scarcely been said on the importance of adverting to its usefulness in every instance, where the punishment of death was inflicted. He feared that

this great object was too frequently endangered and altogether sacrificed, by its disagreement with the feelings and sympathies of mankind. It was in vain that the tyrannical magistrate might flatter himself with the hope of spreading the terror of his authority by the severity of his judgments. The laws of nature had declared, "thus far shalt thou go, and no farther:" those punishments which were called infamous were at length laid aside from their want of efficacy, and it was well known that when torture was sometimes inflicted upon faith and conscience, such was the support which the victims derived from the admiration and sympathy of their beholders, that their triumph was complete, where their oppressors had been most confident of their misery and humiliation. When mankind beheld the life of a fellow creature sacrificed for a petty theft, a trifling injury or fraud, their feelings at once revolted they sympathized with the sufferer in his dying moments, and, ascribing his punishment to the effect of superior power alone, they too often inwardly loaded both laws and judges with execrations. These were reflections that seemed to have escaped the authors of those 220 capital felonies which now polluted our Statue-book, and so many of which had been added since the time of sir Matthew Hale. Admitting the advantage to be derived from a particular case of punishment, where the circumstances were of an aggravating nature, still they ought likewise to look at the other side, and consider at what price this advantage was obtained. The awful punishment of death was rendered familiar, the ideas and the execution of a criminal was disarmed of all its salutary terrors. That infliction which would otherwise carry an authority that must impress itself on the hearts of all, was regarded as an unavoidable accident; a certain number of deaths was calculated on, even as soldiers looked forward to the same events in the course of an honourable campaign. The sword of justice was thus blunted, and the corrective influence of penal laws was lost. If it was said, that he was now speaking as a philosopher and a theorist, he would refer to the observations of a learned person, Mr. Serjeant Adair, in 1796, then a member of that House, and holding the office, (being the last eminent person who had held it) of recorder of
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the city of London. That learned person, after an experience of 20 years, did not hesitate to say, that the complexion of our laws was too sanguinary, and that "it was painful to reflect, that the punishment of death was not reserved for the crimes of treason and murder." Now, he (sir J. M.) did not go so far in his philosophy as the judge to whom he was alluding went, conformably to his experience and practice. The principles which he was now desirous of seeing espoused by the House, had been already adopted by states of the most various and dissimilar forms of government—from countries in which the power of the monarch was all but absolute, to those in which the constitution rested on the verge of democracy. Russia had followed the example. Even Austria had been subdued in the instance, and, foe as she was to human improvement generally, she here joined with Spain, with America, and with every other country except one, or rather except with a branch of the legislature in that one, which he should not name. Such was the force of truth, and so strong were the moral feelings of society on this important subject, that during the France revolution, a very material alteration and reform was effected in their criminal jurisprudence. That eminent person, under whose government it was perfected, and of whom it was now certainly lawful to speak with historical truth, had not only approved of the undertaking, but assisted at its execution, in which he displayed a share of acuteness, as well as zeal, which would cast over his fame hereafter, a luster that neither his conquests nor his adversities would eclipse. This it was due in justice to his memory to state; for though he had fallen in an evil hour, and had weakly yielded to the temptations of legitimacy, when he might have been the champion of the liberties of mankind, yet it was with no narrow mind that he regarded these subjects: he patronized art, he was himself versed in science; he did not say to his professors that he wanted no learned men, but was disposed to encourage all improvement that did not circumscribe his power or limit his ambition. The Code Napoleon was complete in 1810, but, to comply with the habits and language of the noble marquis, he would date his remarks upon it "as to its working," in the year 1811. The entire number of capital offences in our criminal

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jurisprudence he had already stated to be 223: in the French code it was six. These six were the following:—high treason, which was technically defined in terms different from those used in this country. Murder, which was well defined. Arson. Forgeries of notes of the bank of France and government securities. Coining; and theft, under some of the following circumstances:—that it be done in the night; that it be perpetrated by two or more men; that the parties are armed; that a house is broken open, or entered under the cover of legal authority; or that arms be either used, or threatened to be used. Under the French Code, a seventeenth part of the offences specified were capital. Under the English code, about a seventh were punishable with death. In France, there was no transportation, and about four-fifths of the punishments inflicted consisted of imprisonment and hard labour. In England, the number of transportations were about one-fourth—the punishments by imprisonment and hard labour amounted also to one-fourth. The mean amount of the English population during the period to which his calculations referred, he would take at 11,000,000. The mean amount of the French population, during the same period, might be estimated at 27,000,000, being about two and a half to one. Such being the number, it appeared that the convictions in England had, in the first five years, doubled those which had taken place in France, being five times as many according to the number of the people. In the five years at the end of the period referred to, the convictions in England quadrupled those in France, amounting to ten times the number in proportion to the population. In France, the average number of convictions, in the first three years, was 294. The average number in the last three years, 303, being a variation of only nine. In England, the average number at the first-mentioned period was 349. In the latter it had risen to 1,249. The increase, though part of it might be ascribed to the distress under which the people had groaned and continued to groan, he argued, was also caused in part by the character of our penal code. The situation of Franch, twice invaded, the disbanding of a large army, and the horrors of a thirty years' war, would have led them to expect a different result. That France had escaped the fatal increase of
crime which had been witnessed in England, must therefore be ascribed partly to her improved criminal code. In this country from the year 1805 to the year 1809, which was considered a period of prosperity, when the chancellor of the exchequer was his Paradise, and issuing paper dreamed that it was wealth, the convictions had increased from 339 to 549. As this was before the peace, it could not be ascribed to the pressure of misery under which, he would not deny, the people had since groaned. He feared he was trespassing too long on the patience of the House; but as we had but seldom an opportunity of discussing the merits of the Code Napoleon, he did not think he should be right if, in considering a theory, he omitted to point out its merits. In alluding to it, he was comparing the systems of two great nations, which, though rivals in all things, might be considered as jointly at the head of Christendom. He was comparing the results of the different systems of criminal jurisprudence adopted by each; and though, as was said 150 years ago by lord Halifax, "Nothing was so apt to crack in stretching as an inference," he did not think he was stretching the inference too far when he asserted, that when two systems produced such opposite effects, when under one crime had decreased, whilst under the other it had increased rapidly, there must be in the one something to be approved, and in the other something to be condemned. There was also this striking contrast in the criminal laws of France and England—that the former were intended to be carried into effect, whilst, the severe decrees of the latter were in most cases dispensed with. This, in itself, was an objection which ought to be fatal to the system. It was a defect opposed to the practice of all civilized nations, opposed to reason, and justly condemned by all experience. It was not, then, too much to infer, that, under such a system, crime could not be effectually checked nor adequately punished.
He would now come to that part of the subject to which the second part of his resolution tended; namely, that the reduction of capital punishment would tend to the improvement of civilization. First, with respect to the state of the police. The principal object of police should be to repress disorder; the next, to detect crime. To repress disorder, it

would be necessary that more effectual means should be adopted; but he should object to weans derived from too great a restriction of human action, which he would call tyranny; and in the detection of crime, he should deprecate as much as possible a system of espionage, by which he believed a nation lost more than it could gain on the score of morality; for it was in itself a more fertile source of crime than any other. The most effectual means, in his opinion, for the detection of crime, would be the mitigation of punishment. If the laws were more mild, no stigma would attach to the discovery of crime; the hearts of men would go with its detection, and we should have that information given voluntarily, and from the best of motives, which was now extorted from the worst of vices. If it was wished to make the informer and the prosecutor appear less odious, let them not so frequently conduct to the gallows; let not death to the, accused follow the accusation, and we should then have crime discovered, and its punishment approved; instead of, as was now the case, crime studiously concealed, and its punishment looked upon as wanton severity.
With respect to transportation as a punishment for crime, he would say, that, in a variety of cases in which it was at present inflicted, he considered it unnecessary and impolitic. There were, however, two classes to which he thought it would be applicable. The first was, that of incorrigible offenders, whom no exertions could reclaim. Such persons, undoubtedly, ought to be banished from the society of which they were unfit members. The next class consisted of persons of a description exactly the reverse. He would suppose the case of a man who had fallen into a crime of which, perhaps, he might be disposed to repent, but, in consequence of which, there was no hope of his resuming his former place in society. Such a man might be properly sent into a new society, where he might repent and again return to those moral practices from which he had fallen. To such persons transportation might be applicable; but then it should be to a colony established on different principles from that of New South Wales? When America ceased to be considered as a fit, asylum for convicts, this colony was thought of; but in its establishment there was this capital defect—it was not considered that the best foundation for a penal colony
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was a moral population, where the example of a different set of men with better habits might have an effect on the newly-arrived convict. This, however, he regretted, was not considered in our present system. There were other vices attendant upon our treatment of convicts, which Called for correction. He did not see, for instance, why persons transported might not have their labour transferred to private masters, by whose care and superintendence much good might be effected. At the same time that he suggested this, he admitted that it was a measure which ought to be adopted with great caution; but, with proper precautions, he was satisfied it might in many cases be done with very good effect.
Another circumstance, which was eminently calculated to check crime, was proper attention to prison discipline. In adverting to this, be would not wish that any thing should be adopted without the most serious consultation with those benevolent individuals who had made the subject their study. But, without going more at large into the question, he would say, that every thing depended upon the classification of the prisoners. This he thought might be left in many cases to the discretion of the magistrates; yet it ought to depend entirely on the nature of the crimes of which the parties were accused. He saw one plan by which all felons were classed together. This system was most absurd and injurious. What could be more unjust than to allow the parricide to be confined and associated with the man whose offence was the cutting down a tree? Surely nothing could be more effectual to spread the contagion of crime than such an association. But because the neglect or the folly of our law condemned each equally to death, the parricide, and the poisoner, and the most hardened criminals, were to be placed in a state of daily and hourly intercourse with those whose offences, though denominated felonies, could scarcely be deemed immoral, when compared with the enormities of those with whom they were associated. The consequence was that until the evil was remedied by proper classification, our prisons, instead of being the means of repressing, would become so many nurseries of the worst of crimes; and those unfortunate Persons whom our one laws, our revenue laws, and our poor laws sent thither, would, by the contagion of evil example,

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become, on their liberation, the pests of society. To those humane and benevolent individuals who devoted a large portion of their attention to the improvement of our prison discipline, it was impossible to render sufficient thanks. Their exertions, were daily becoming a national benefit, though he had known occasions upon, which their labours had been scoffed at, and held up to ridicule. In that House he had heard a member, whom it was unnecessary to name, ridicule such exertions, and add, that it seemed as if it was intended to encourage crime, by making prisons houses of ease and recreation. Allusion had also been made, in derision, to Persian carpets, as if such luxuries were to form a part of an improved treatment. This, however, was grossly mistaking the, objects of those who endeavoured to improve our prison discipline. They desired to let the prisoner feel that he was in prison, as much as that could be felt consistently with health, and the prospect of reformation. To the latter every possible attention was paid, and it would not be contended that the former was a matter of indifference. Individual cases of reformation might be scarce, but one example of that kind was worth twenty of severe punishment. The hon. and learned gentleman then alluded to the many instances of reformation of criminals which had been effected by the benevolent exertions of a number of highly respectable females, who devoted a large share of their attention to that most meritorious object. These reformations were effected, not by a departure from the modesty of their sex, but by following up the dictates of that modesty, by exhibiting in their own persons those traits of mildness and benevolence, of humane commiseration for the failings of their fellow creatures, which render the virtuous so amiable, and make their example so impressive. We had heard of associations of females in Catholic countries called the Sisters of Charity, who made it their business to visit the sick in prisons and to perform, all those kind offices by which misery could be alleviated. Their conduct was most praiseworthy; but they were bound by vows and their actions were regulated by the rules of their order. They gave up all the relations of domestic life, and only adhered to the obligations of their rule. But our Protestant Sisters of Charity were bound by no vows; their actions
were the result of no set of regulations which they must obey. They went further then ther those excellent models of the Catholic belief; for while they voluntarily devoted so large a portion of their time in administering to the wants, bodily and mental, of those whom they visited, they forgot not the duties of domestic life, of which they still continued the best models and the highest ornaments. Their benevolent visits brought them in contact with some of the worst of vices in their worst form—the female. They made themselves acquainted with the weaknesses, the follies, and the crimes of the unhappy objects of their care; and thus, by means of the same knowledge by which the villain was enabled to seduce them to the path of vice did those benevolent females endeavour to draw them to practices virtue. He himself had see Berne of the effects which he described. He had visited the, prisons, where those benevolent ladies were so humanely occupied. He was accompanied by persons who, while they were, disposed to praise and approve of every, plan by which the load of human misery, could in any degree be lightened, were at the same time studiously vigilant to observe the manner in which such good was effected. They perceived with sincere satisfaction, not only the good done, but the modesty with which the benevolence of those ladies unfolded itself. No exaggeration of what had already been the result of their efforts—nothing of vanity, where such temptations to it existed—but the whole of their conduct in this pious work was marked by that modest and unpretending benevolence, which proved at once the sincerity of their intentions. It was a melancholy reflection, that our system of criminal laws was constantly opposing itself to such humane exertions. One execution for the forgery of a bank-note, or the cutting down of a tree, was calculated to defeat their best efforts. In proportion as their humanity was felt and appreciated, so must the severity of our laws be more striking by the contrast, to those for whom that humanity was excited. In proportion as they succeeded in making those unfortunate being more enlightened, so, must they perceive themselves the more opposed to our system of criminal laws. But he would not press the subject farther. He had trespassed too long on the attention of the House, but not, he trusted, without having succeeded

in establishing the position—that undue and undistinguishing severity was the worst means of repressing crime. The hon. and learned gentleman concluded, amidst cheers from both sides by submitting his resolution.
The Attorney Generaltrusted, that opposing the present motion, his hon. and learned friend would not consider him as adverse to any alteration in our criminal laws. It was certain that almost all the ameliorations in our criminal code had been introduced by gentlemen of his profession. It was therefore erroneous to suppose that the profession were opposed to any improvement in the state of our laws. He for one would not be favourable to capital punishment in any case where it could be shown that it might be safely dispensed with. He, however, could not consent to motion which went to pledge the House to a measure which would cast a censure on the whole of our criminal law. The motion was the less necessary, as no specific measure was to be founded upon it this session; and such a sweeping declaration would, he thought, put the government and the criminal law in a situation in which they ought not to be placed. What had been the course hitherto pursued by his hon. and learned friend? He had first of all proposed the appointment of a committee to take into examination the whole state of the criminal law. Such a committee was accordingly appointed, and subsequently presented a report to the House, recommending that, in particular cases, capital punishment should be abolished, and a secondary punishment substituted in its stead. Upon that report his hon. and learned friend brought into the House certain bills to carry that recommendation into effect. The House adopted some of them, but rejected others; notwithstanding which, his hon. and learned friend said, that the House had, on that occasion, adopted the same principle indirectly which he called upon it by his resolution to adopt formally at present. The proper course for his hon. and learned friend to have pursued was to have again brought forward those measures which the report of the committee had recommended, order that, the House might see the remedies which it was intended to apply to the grievances complained of; but, instead of doing this, his hon. and learned friend had left the House entirely in the dark regarding his intentions, except, indeed, with regard to
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the cutting down of young trees, and the stealing of 40 s. in a dwelling-house. With regard to the crime of forgery, his hon. and learned friend might have again submitted to the wisdom of the House his bill for the mitigation of the capital punishment attached to it. His hon. and learned friend was bound to have proposed some specific measure to parliament at present, or if he wished to obtain a declaratory resolution of the House, to have brought it forward at such a period of the session as would have enabled him to follow it up by some practical measure. His hon. and learned friend had said that the effect of the criminal law as it now stood was to increase the quantity of crime. Now, his hon. and learned friend could have no other grounds on which to rest his assertion that the number of individuals convicted and executed for any given office; and if so, the return of those numbers did not bear him out in the proposition he had advanced. Besides, his hon. and learned friend had been somewhat inconsistent in the line of argument which he had himself used. His hon. and learned friend concurred, he believe, with the statement contained in the report of the committee on the criminal laws: namely, that there were some crimes—for instance, burglary, theft, murder, and robbery—to which it was still fitting that the punishment of death should be attached. Now, it so happened, that upon all offences of the nature above specified the punishment of death did not invariably follow; for there were such gradations in the moral guilt of them, that it would be impossible to inflict such punishment upon every occurrence of them without exception. He found, upon inspecting the returns, that the offences he had just named had gone on in the same ratio with the offences mentioned by his hon. and learned friend, and he therefore contended, that the argument of his hon. and learned friend, if it applied to the one species of offences, applied strongly to the other. It was also a fair inference from his hon. and learned friend's argument, for any person to state, "Your not always applying capital punishment to burglary and murder, leads to an increase of those crimes; and, therefore, to diminish the frequency of them, you ought to abolish the capital punishment for them, and to substitute a lighter and secondary punishment." But his hon. and learned friend had himself declared,

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that he had no wish to abolish the punishment of death in those cases; though he had not given any reason for the continuing it in the one case, and discontinuing it in the other. The principle of English law was not to have a scale of punishment adapted to the exact quantity of crime committed; but to have a known and specific punishment for each species of crime, and to leave that punishment to be mitigated by the Crown and the executive, whenever circumstances seemed to demand such a mitigation. It had been argued by his hon. and learned friend, that where the law affixed death to an offence, but afterwards inflicted a minor punishment in lieu of it, there it would be better to remove the greater punishment, and to continue the less with undeviating constancy. Now, to that argument he could not yield his assent; for even though the greater punishment were but seldom inflicted, it would still leave a strong apprehension of it on the mind of every criminal. With regard to the comparison which his hon. and learned friend had drawn between the state of the criminal law in France and England, he would merely ask him whether he would wish to introduce into this free country the police and criminal law of France? Unless the preventive police of France, and the whole system of Napoleon, were taken into consideration, any person making a comparison between the criminal code of France and that of England, and founding it principally upon the number of criminals convicted and executed in each country, would be certain to arrive at a very erroneous conclusion. But, what period had his hon. and learned friend se-selected for bringing forward his resolution? At that very moment they had a committee sitting up stairs on the state of the prisons of the country, a bill was upon their table by its express direction; and a gentleman who had been sent to New South Wales to gain information respecting the state of the convicts, was daily expected to return with that information. At that very moment a committee was busily employed in examining into the state of our Police; and, yet that was the moment chosen by his hon. and learned friend, to call upon the House to resolve to take into consideration, not now, but in the ensuing session, the means of increasing the efficacy of our criminal law by abating its present undue rigour, of strengthening our police, and of render-
ing the punishment of imprisonment and transportation more effectual for reformation than it was at present. To adopt such a resolution would be to hold out to the country a sweeping, condemnation of the criminal law as it now stood, and would place those who had to administer it in the most painful situation. As he had no wish to prevent this subject from receiving full consideration at a fit opportunity, he should not meet the resolution with a direct negative, but would content himself with moving the previous question.
Mr. Fowell Buxtonsaid, that at so late an hour he should not have risen to address the House, were it not for some of the minor points which had been touched Upon in the course of this discussion. If the present motion went merely to affect the law as applicable to capital offences, he should have rested its merits upon the able speech of his hon. and learned friend; but upon the minor points to which his hon. and learned friend had adverted, he begged permission to make a few observations. It was curious and essential, in looking at this subject, to consider the operation of the existing law, and how far the prevailing punishments were rendered available in practice. Upon a reference to the returns of committals and Convictions in Ireland, he found that the number of committals in one year for offences not capital, were 6,000; for offences that were capital, 2,500. Of the former, the convictions were in the proportion of one-half, and of the latter only one-seventh. The same inquiry would lead to nearly the same result—though not perhaps to the same extent—in England. In Ireland he might also mention that the committals for minor offences were 3,700, of whom 3,000 were convicted. In England experience showed that when a man was tried on a capital charge, his chances of escape were double, in comparison with what it would be, were he indicted upon the minor charge. And in America, when the capital was mitigated, the acquittals were only at the rate of 1 to 7, although before the alteration in the severity of the law they always equalled the convictions. In the year 1818, the number of persons sentenced to death or transportation were 3,306, of whom 100 only were executed. The greater part of the been transported. Upon the punishment of transportation it was only necessary for

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him to remark, that it did not constitute what could be considered as a secondary punishment. The right hon. and learned gentlemen opposite, the noble marquis who sat near him, lord Liverpool and lord Sidmouth, all admitted, that there was no adequate secondary imprisonment. Lord Ellenborough had said twelve years ago, that transportation was nothing but an easy migration by a summer's voyage from a worse situation to a better. It was by all admitted, that, in the way of terror to a criminal, transportation was just nothing at all. On the contrary, it rather offered a bounty and a temptation to crime, than an inducement to refrain from its commission. He held in his hand the best evidence of that fact, from the testimony of convicts themselves. If the House would permit him, be would read a letter transmitted by a convict of the name of Clark, from Botany-bay, to his wife in England. It was a private and a confidential letter. [A laugh.] He meant it was confidential until be had obtained the wife's permission to read it; and the letter would show how far transportation operated to induce remorse in the mind of the criminal, and how far it could be considered as deterring a culprit by example. The letter commenced thus: —"Providence shines on me in every shape; I hope he will provide for you as he has for me. [A laugh]. I cannot grumble—the winter here is hotter than the summer in England. We have two crops here every year, and no ice ever thicker than a shilling: the grapes lie in loads on the rocks, and the peaches run wild in the fields; so that the day that I committed the offence which brought me here was the best day's work I ever done." He would submit whether this letter contained any thing like a tone of remorse; or whether it afforded any thing in the way of useful example—which ought to be the object and end of all punishment. He would mention another instance. It was in the person of a convict named Cook, who had also written home to his family, describing the comforts of his situation, and the good exchange he had made by his change of residence, "I am (says this man) living a servant with one 'Squire Love; he lives very well here, and is reckoned a very clever gentleman." Now, it so happened that he (Mr. Buxton) knew something of this 'Squire Love. He had lived for a long time as a clerk with a gentleman in a county with which he was
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well acquainted, and had repaid the confidence reposed in him by his employer, by robbing him of property nearly amounting to 20,000 l., with the produce of which he had loaded a ship, and was about to emigrate. The police, however, secured him. He was tried on the capital charge, but saved, and would have escaped altogether, were it not for a minor count, on which a conviction was obtained against him; in consequence of which he was ordered for transportation. Thinking that the execution of such a sentence would only enable him to enjoy more completely the ill-gotten wealth he had retained, he (Mr. Buxton) applied at the home-office, to entreat that the sentence of transportation might be commuted to imprisonment in the hulks, or hard labour. He encountered a refusal, and the man was transported, and transformed into "'squire Love, a very clever gentleman;" and so he certainly was. The only question was, did the same description apply to those who sent him there? When this mode of punishment was found so utterly to fail, why was it persevered in? He remembered to have read in Tacitus of a Roman named Gallio, being transported for some crime to Lesbos; but upon its being ascertained that the was enjoying insula nobilis et amena, he was brought back, and placed in a situation more likely to expose him to privation. The lateness of the hour alone prevented him from entering more largely into the question. He should therefore pass over altogether the police branch of this subject, and merely advert to the example of Charles 5th, which had been quoted last year by his hon. and learned friend (Sir J. Mackintosh), and which furnished a memorable illustration of the benefit of mitigating the severity of the criminal code. It was well known that the whole of the early part of Charles the Fifth's reign was marked by religious persecution. He had framed the Code Caroline, which, for undistinguishing severity, was a refinement upon the laws of Draco. It inflicted, without selection or mercy, the most cruel and lingering death; and the result of that system was found so inadequate for the purpose of prevention, that Charles himself, at the close of his life, was convinced of the necessity of altering it. It was the deliberate conviction of his reason, and not any thing like a woman's compassion which dictated the change. The law had been stretched so far, that accusers and pro-

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secutors were wanted—witnesses were not forthcoming—and at length judges could not be found; the screw and the crucible were applied in vain; torture, which was alike applied to the prisoner and the witness, had failed altogether; and the whole code was at length altered. He should detain the House no longer than by adding his firm conviction, that at present there was a prevalence of crime in England which was an evil of the first magnitude: coupled with this was his conviction, that the remedy was not hopeless. They had it in their own hands; and he believed they would most efficaciously secure it by pledging themselves to his hon. and learned friend's motion.
Mr. Courtenaysaid, that though he concurred in the general principles laid down by his hon. and learned friend, he could not accede to the resolution. Nothing could be more improper than to set the public mind afloat on the subject for six or twelve months, without doing any thing for so long a period to remedy the evil. As there was a committee now sitting, whose labours were directed to that end, he did not see how the House could come to any resolution which imputed neglect. The present proposition would not advance the practical reform of our criminal code, and therefore if the question was pressed to a division, he should vote against it.
Mr. Secretary Peelsaid, that he concurred in what had been stated with respect to the committee for the reformation of prison discipline. Their exertions were above all praise, being dictated by the soundest policy, and likely to lead to the most beneficial results. It was his intention, on Friday next, to submit to the House a bill which went to provide for the regulation of prison discipline. Was it possible, then, for him to support a measure which was to pledge the House to take into its consideration a subject, which had been already delayed too long? The question of transportation was one which presented many difficulties. As it would, however, be materially affected by the forthcoming bill for the improvement of prison discipline, he should refrain from saying any thing about it at present. He also concurred in the propriety of adopting a vigorous system of police. God forbid that he should mean to countenance a system of espionage; but a vigorous preventive police, consistent with the free principles, of our free
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constitution, was an object which he did not despair of seeing accomplished. He was equally unwilling to postpone that subject till the next session. It was his intention to introduce a plan for making the experiment upon a small scale. Something should be done with respect to transportation, but he would wait for the report of the gentleman who was sent to New South Wales. He would here mention one scheme which had suggested itself to his mind, and which might lay the foundation of a new mode of punishment, free from many of the objections to the present system of transportation, and combining with it hard labour. The experiment in question would be of this kind; namely, to send to Bermuda a certain number of convicts to be employed on the public works now carrying on there, taking securities, that at the same time that such employment should be provided, their moral discipline should be properly attended to. This was a mode of punishment, which, inasmuch as it combined removal with hard labour, might be assimilated to that of the hulks at home. As to the general principle and wording of the motion, he concurred in the objections which had been taken by his hon. friend. When, in the course of the next session, the hon. and learned gentleman should feel disposed to take up the subject in detail, he should not find in him a predetermined opponent.
Mr. Wynnearnestly recommended the hon. and learned gentleman to withdraw his motion; at all events in its present form.
Sir J. Mackintoshsaid, he would have no hesitation to adopt the suggestion of his right hon. friend, if he did not feel it necessary to retain that part of his resolution which went to pledge the House to adopt measures for increasing the efficacy of the criminal law by mitigating rigour. The resolution pledged the House to no principles but those which they had session after session recognized, therefore no injury could possibly follow the adoption of his resolution. By entertaining it, the House would give a proof of their intention seriously to adopt measures for the amendment of the criminal code. They would thus invite persons of knowledge and experience to lay their sentiments upon the subject before parliament. The resolution would, in fact, serve as a notice, as well to the profession of the law, as to all others, to supply that House

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with all the information they could impart on a question which required all the wisdom, the learning, and ability of the nation.
The question was then proposed, "That this House will, at an early period of the next session or parliament, take into their most serious consideration, the means of increasing the efficacy of the criminal laws, by abating their undue rigour," and the previous question being put, "That the question be now put," the House divided: Ayes, 117; Noes, 101. Majority in favour of sir J. Mackintosh's motion, 16. Loud cheering followed the announcement of the numbers.