§ Sir J. Mackintosh,
after a few preliminary remarks regarding the difficulty of attracting the attention of the House to so hacknied a subject as that upon which he was about to address it, said, that the first public discussion at which he had been present after his return from India, was a discussion in another place, upon a measure of his late lamented friend, sir Samuel Romilly, tending to ameliorate the existing state of our Criminal Laws. In the course of that discussion, he had heard it stated, in an excellent speech made in favour of the principle for which he was now prepared to contend, that if a foreigner were to form his estimate of the people of England from a consideration of their penal code, he would undoubtedly conclude that they were a nation of barbarians. This expression, though strong, was unquestionably true; for what other opinion could a humane foreigner form of us, when he found, that in our criminal law there were two hundred offences against which the punishment of death was denounced, upon twenty of which only, that punishment was ever inflicted—that we were savage in our threats, and yet were feeble in our execution of punishments—that we cherished a system, which in theory was odious, but which was impotent in practice, from its excessive severity—that, in cases of high treason, we involved innocent children in all the consequences of their father's guilt—that in cases of corruption of blood, we were even still more cruel, punishing the off I spring, when we could not reach the 398 parent—and that, on some occasions, we even proceeded to wreak our vengeance upon the bodies of the inanimate dead? If the same person were told, that we were the same nation which had been the first to give full publicity to every part of our judicial system—that we were the same nation which had established the trial by jury, which, blameable as it might be in theory, was so invaluable in practice—that we were the same nation which had found out the greatest security which had ever been devised for individual liberty, the writ of habeas corpus, assettled by the act of Charles II.—that we were the same nation which had discovered the full blessings of a representative government, and which had endeavoured to diffuse them throughout every part of our free empire—he would wonder at the strange anomalies of human nature, which could unite things that were in themselves so totally incompatible. If the same foreigner were, in addition to this, told, that the abuses which struck so forcibly on his attention were abuses of the olden time, which were rather overlooked than tolerated, he might perhaps relent in his judgment, and confer upon us a milder denomination than that of barbarians; but if, on the contrary, he were told, that influence and authority, learning and ingenuity, had combined to resist all reformation of these abuses as dangerous innovations—if he were informed that individuals, who, from their rank and talents, enjoyed not an artificial but a real superiority, rose to vindicate the worst of these abuses, even the outrages on the dead, and to contend for them as bulwarks of the constitution and landmarks of legislation, he would revert to his first sentiments regarding us, though he might perhaps condemn the barbarism of the present, instead of the barbarism of the past generation. He would take the liberty of reading to the House a short description of the law of England, by a native of another country, in which its imperfections were ably and pointedly exposed to public view. The learned gentleman then read a passage, of which the following is the substance:—"The criminal code of England in many respects was admirable and well adapted for the object which it had in view. Its judges were pure and placed beyond the reach of suspicion: they acted by the intervention of a jury, and were open to the censure of an acute bar, and 399 to the control of a free press. The system, however, had its imperfections: it contained some relics of antiquated barbarism, and others of scarcely less barbarous modern misdirected legislation. There was no proportion observed by it in the punishments which it awarded to offences. Many small delinquencies were raised to the rank of capital crimes, and the same vengeance was denounced by the law against the offender who destroyed a tree, or cut down a twig, as was denounced against the wretch who committed a parricide. Laws of undue severity were also unduly executed; and the consequence was, that when a hundred individuals escaped, and one fell under the vengeance of the law, the fate of the individual who so fell was considered as an act of arbitrary rigour, instead of being considered as a sacrifice required by justice. He was regarded as a martyr, rather than as a victim to the offended majesty of the laws." Such was the opinion of an individual who, by his professional occupations and abilities, was entitled to some respect upon this subject, and who enjoyed such a reputation with those who knew his merits, that all praise at his (Sir J. M.'s) hands was totally unnecessary. The individual to whom he alluded was his eloquent friend Mr. Cranstoun, and the mention of his name rendered all further eulogy on his character quite superfluous.
The learned gentleman then said, that to be perfectly in order with the House, he ought to have moved, before he commenced his observations on this subject, that the resolution of the House upon it, on the 4th of June, 1822, viz. "That this House will, at an early period of the next Session of Parliament, take into their most serious consideration the means of increasing the efficacy of the Criminal Laws, by abating their undue rigour," should be entered as read. He would now suppose that it had been so read, and would proceed to remind the House of what they had already done upon this subject. In the year 1819, the House, upon his motion, appointed a committee to examine into the state of the criminal law of the country, on the express allegation, that considerable defects existed therein, and appointed it in express defiance of an allegation that was then made, that such an inquiry as he proposed was calculated to paralyze the operation of the laws, and to hold them up to public scorn and indignation. In the year 1820, 400 in consequence of the report of the committee appointed in the former session, some bills were brought into that House and passed, which little satisfied his views and wishes on the subject. Small and scanty as the reformation then, effected was, it was the only reformation of the severity of the law that had been effected since the reign of Edward VI. For two hundred and fifty years, the House had proceeded, year after year, to heap one capital felony upon another; and in au that time, down to the year 1820, the first year of the reign of his present majesty, no repeal of any capital felony had ever been made, or attempted, with success. Amongst the felonies which, after the passing of those bills, were no longer to be considered capital, were comprised several crimes which were of a very heinous nature, and which could not be committed without grave forethought and deliberation op the part of the offender. Fraudulent bankruptcy, for instance, was a crime which excited as little compassion for the party who committed it as any that could be found in all the black catalogue of offences, and was one which could not be effected without due consideration on the part of the individual who meditated it. It was not, therefore, from any feelings of compassion towards the offender, that the capital punishment attached to this kind of felony had been repealed, but from a conviction, that the severity of the punishment gave impunity to the offence, and that the undue rigour of the law absolutely tended to defeat the object for which it was enacted—a principle which, as it had before been recognized by the House, he trusted it would not be reluctant to re-affirm on the present evening. In the year 1821, all that was effected was, to obtain the approbation of a majority of that House, to the principle of the necessity of altering the punishment inflicted upon certain cases of forgery. The bill, however, which was brought in upon that occasion, was subsequently thrown out by a stratagem, of which he would say nothing more than this—that it was perfectly inconsistent with the usual practice of parliamentary proceedings, where no political interest was at stake. In 1822, the House adopted a general resolution—that it would, at an. early period of the ensuing session, take into its serious consideration the means of increasing the efficacy of the criminal code, by abating its undue rigour; and 401 that resolution it was his duty, perhaps at an earlier period in the present session, to have called upon the House to carry into execution. Circumstances, however, which he would not trouble the House by detailing, had prevented him from bringing the question under their consideration until the present moment; and he should not even now proceed to the discussion of it, until he had called their attention to another case, which was almost as bad as fraudulent bankruptcy. He had, by some accident or another, seen that a bill was now under consideration in another place, for a new regulation of the law of marriage. He approved of that bill, because it repealed the act of the 26th of Geo. II., which was a disgrace to the English law, as it established the principle of voiding marriages, and thereby enabled any heartless profligate to spread misery through families, and to rob them of their just inheritances. In 1820, he had attempted, but in vain, to obtain the repeal of five capital felonies created by that act. He was happy to see that they were abolished for ever by the bill to which he had just been alluding. When he ventured to propose their abolition, he was censured and abused, as a rash innovator who was anxious to destroy the principal provisions of an act which guarded the sacred institution of marriage. Not only had his bill been strongly reprobated in parliament, it had also been attacked by much eloquent declamation out of it. But still, in spite of the opposition which it had encountered in parliament, and the mingled powers of argument and ridicule that had been brought to play upon it elsewhere, they now found that those from whom such an admission was least to be expected, admitted the principle on which it rested, I and agreed with them, that the best mode of giving efficacy to the laws was, to diminish their undue rigour. They had therefore obtained this advantage, that their very opponents recognized the justice of the principle on which they acted—"Graia pandetur ab urbe." By the delay, of which he had unintentionally been the occasion, he had gained in his favour the authority of those who were the enemies of innovation in their own, and of reformation in his language. If, therefore, in the course of the debate, any hon. gentlemen should taunt him with being an innovator, and with entertaining desires to overthrow the constitution, he 402 should reply to them by saying, "I appeal to your own patriarchs and elders; I appeal to the leaders of your own sect; and I say that their decision is full in your teeth and in my favour. On two distinct occasions—first, on the bill respecting fraudulent bankruptcy, and now on this, their new law of marriage, they have solemnly pronounced their opinion, that the best method of increasing the efficacy of the law is by abating its undue rigour. Why, then, taunt me as an innovator, when, if I do innovate, I innovate under the sanction of your patriarchs and teachers?"
The hon. and learned gentleman next proceeded to observe, that, in 1822, he had been told, that the abstract proposition which he then brought forward was calculated to paralyze the laws, and to suspend their operation. Now, nothing of that kind had occurred. Indeed, year after year had such a prediction been made, and year after year had it been falsified. Whenever the question was brought forward, this self-same objection was made to it, and the interval that elapsed between the time of discussing it always showed that there was not the slightest weight in it. Standing, therefore, upon the decisions to which the House had so repeatedly come of late years, he would contend, that if over there was a case in which it was bound to preserve its own consistency, it was that on which he was at present speaking. They had before admitted, that there was undue rigour in the present state of the law, and that the best mode of relief was by abating it. What was it that he now felt called upon to propose to them? He would answer the question as shortly as possible. Adhering to the principles he had formerly laid down, he felt himself called upon to submit to the House, first of all, a proposition which would embrace a recognition of the propriety of all the particular measures which the House had formerly thought it right to adopt; and secondly, a proposition which would carry it somewhat further, and in which he should embody such small additions of detail, as would lead those who blamed him to blame him for lukewarmness rather than for rashness—for an error in deficiency, rather than for an error in excess. Though the propriety of abating the undue rigour of the law had in its favour the authority of all the wisest men who had either written or spoken on the sub- 403 ject, there was something startling in the proposition to those who only thought slightly upon it, which would, perhaps, render his illustration of it not unacceptable. There could not be a greater error in criminal legislation, than to suppose that the mischief of an action was to be the sole regulator of the amount of punishment to be attached to it. For a punishment to be wise, nay even to be I just, it must be exemplary. Now, what was requisite to make it exemplary?—that it should be of such a nature as to excite fear in the breast of the public. But, if it excited any feeling that was capable of conquering fear—for instance, if it excited abhorrence—then it was hot exemplary, but the reverse. The maximum of punishment depended on the sympathy of mankind; since every thing that went beyond it reflected discredit on the whole system of law, and tended to paralyze its proper operation. What was the cause of the inefficacy of religious persecution?—that it inflicted a punishment which was felt to be too severe for the offence which it was intended to check: that it had no support in the sympathies of the pubic; but on the contrary injured and outraged them all. That was the cause that "the blood of the martyr always proved the seed of the church." People felt that opinions, if correct, ought not to be met by force; and if incorrect, they would sink into oblivion if force Were not employed to put them down—"Opinionum commenta delet dies, naturœ judicia confirmat." He thought that the total inefficacy of persecution to check the growth of opinions—a persecution which always made the martyr be considered as a hero, and the law as a code of oppression and tyranny—served also to prove, that laws of undue severity could in no instance effectually serve the purposes for which they were enacted, To ensure them full efficacy, they ought to be in accordance, not only with the general feelings of mankind, but with the particular feelings of the age;. for if they were not so supported, they were certain to meet with its contempt and indignation.
The hon. and learned gentleman then proceeded to show, that nothing was more false than the arguments usually urged in behalf of punishments: namely, that the crimes which rendered them necessary were the result of great deliberation. He thought that the con- 404 trary was the fact, and that in general offenders were hurried away by the strong passions that were implanted in their nature, and that "grew with their growth, and strengthened with their strength." The law was then most efficacious when it served as a school for morals—when it attracted to it the feelings of all good men, and when it called silently, but powerfully, upon all such to assist in its administration. Now, he would ask, what was the lesson to be derived from a consideration of the criminal law of England? Why, that the man who cut down a twig, or injured a cherry-tree, or stole a sheep, or he would even say forged a note, was as black a criminal as he who murdered his father, or betrayed the interests of his country to a foreign enemy. He acknowledged that this conspiracy of the law of England against the principles of nature was not successful. The feelings of nature in the people of England prevailed over the immoral lessons taught by its penal law. That law would be detestable in its success, and was now contemptible in its failure. He had always thought that there was an under-statement of the argument, on the part of those who contended that an alteration in the law was necessary. They had stated, that a mitigation of it was principally required by the reluctance of prosecutors and witnesses to come forward to prosecute, under the present severe statutes. They had forgotten, however, to state the effect produced on the feelings of the spectators. They had forgotten to state, I that they rose in arms, not merely against the charge, but against the verdict of the jury, and the sentence of the judge. They had forgotten to state, that the law was thus made an object of that abhorrence, which ought only to be attached to crime; and that, instead of resting for its support on the aid of good men, it rested on the fear of the gibbet alone. The hon. and learned gentleman then complained, that under the present system of law, proportionate punishments were not assigned to different offences; and contended, that heavy punishments inflicted on crimes of a smaller degree of delinquency; lessened the effect of it when inflicted on crimes of great atrocity. It was curious to reflect, that lord Hale spoke of England—with reference, of course, to the time in which he wrote—as the country of all others in 405 which the laws were most literally executed, and least committed as to their effect arbitrio judicis. Now, how matters were changed! From four capital felonies upon our Statute book, we had come to 200; and, instead of being the country of the world where the laws were most literally carried into effect, and least dependant upon the will of judges, we had become the country of all the world in which they were least literally executed, and in which the life and death of man wag the most frequently intrusted to the feeling of an individual. These arrangements had no foundation in the principles of British jurisprudence: they were contradicted by the spirit of Magna Charta: they were hostile to the principles of the first writers on the subject of criminal law: they were but the mushroom growth of modern wantonness of legislation. As a test of the antiquity of the existing criminal code, he would take the result of his intended proceedings. He wished to abolish the punishment of death, as applied to a great variety of offences; and yet there were only two statutes with which he should meddle, which were older than the Revolution. Then, if these laws had no foundation in antiquity, what foundation had they in wisdom? Why, they had neither any foundation in policy nor in common sense. There had been, in the present age, an immense multiplication of capital punishments, just at the very time when society was growing more civilized and humane, and wanted old severities of the law repealed, rather than new ones enacted. he did not accuse parliament of cruelty or bad feeling; but be accused them of negligence—culpable negligence. He accused them of having overlooked that deep regard for the life and liberty of man, which, while it gave the strongest effect to occasional inflictions of the law, formed, at the same time, the best safeguard for the moral feeling of the community.
To look in another view, for a moment, at the progress of the present system. The oldest reports of criminal law were the tables of the home circuit, begun in the year of the Revolution, which were to be found in the appendix to the report of the criminal laws committee. Those tables began in the year of the Revolution. It appeared that, during the first forty years from that date, more than half the persons capitally convicted 406 upon the home circuit had been executed; during the last forty years, the proportion of executions to convictions upon the home circuit had not been more than one in four; and, taken throughout the kingdom, not so much as one in ten. Indeed, as the number of capital convictions went on increasing, the number of executions kept diminishing; for the laws were so obviously barbarous, that it became absolutely necessary, by some expedient or other, to render them nugatory. It was absolutely a fact—deny it who could—that, as the severity of the penal laws increased, the impunity of crime increased along with them. He would not press this general portion of the subject much further, nor advert to ancient laws, or to the codes of foreign countries, any more than was necessary to explain something which had fallen from him last session. He should not be suspected of selecting the Hebrew law as a model for the law of other nations; but he liked the Hebrew law for the reverence which it paid to liberty and to human life. The felony of the Hebrew code was the shedding of blood; the only theft which that code punished with death was the stealing of men; all other thefts were to be commuted for twofold or for fourfold restitution. He looked upon the Hebrew law, in its aversion to the shedding of blood, as entitled to the highest veneration. He would not pause upon the ancient Roman law, so remarkably merciful on the same point; but upon that modern law—the law of France—which now prevailed half over the continent, it was impossible for him not to dwell for a moment. Six crimes, by the French law, were punishable with death—only one of them a theft; and that a burglary of such complicated circumstance as could seldom, if ever, take place. He had tables, from the year 1811, of the number of capital convictions which had taken place in France, and similar documents with respect to this country. In the year 1811, there had been 404? sentences of death in England, and 264 in France, the population of Great Britain being twelve millions, and that of France twenty seven millions: in the year 1820, the sentences of death in England had been 1,236, and in France 361 only; so that, in the course of nine years, the amount of capita! conviction had trebled itself in England, while in France the increase had been something 407 less than one-third. He did not attrihute this variance entirely, but he certainly did trace it in a very great degree, tar the difference between the French and English criminal codes. He denied that the fact warranted any inference of the superior morality of the French over the English character. With regard to the police, as far as related to the prevention of crime, it had been not at all improved in France during the last nine years; while in England it had been improved considerably. He traced the difference mainly to the ill effect of the English criminal code: he believed that if France had lived under the same code as England, she would have had as many convictions; and he thought that the example of France authorized him at least to use this argument. If the House would not believe that great good could be done by lessening the catalogue of capital offences, it must, at any rate, admit, that no evil was to be apprehended from such a course. The hon. and learned member said, he should next state to the House the resolutions which he intended to move. With the substance of those resolutions, the honourable gentlemen on the other side were I acquainted. What those gentlemen I themselves had to propose, he did not know. His first resolution would declare in general terms, that it was expedient to. take away the punishment of death in a certain number of cases which would be specified; he should then move to substitute, in those cases, the punishment of transportation or imprisonment; and he should add two resolutions, of which he trusted the House would approve—the one recommending, that judges should not pronounce sentence of death in cases where they had no expectation of such sentence being carried into execution: and the other doing away the forfeiture of goods and chattels, and the indignities offered to the dead body in cases of suicide. The cases in which he proposed to take away the punishment of death were these. He should put his resolutions into such a shape, as to found a bill eventually upon each resolution. The cases as to which he proposed to take away the punishment of death were; first, those three classes of offences with respect to which bills had so often already passed the House; namely, larceny from shops, from dwelling houses, and an navigable rivers. Secondly, he 408 should touch all the felonies contained in the Black act, except the wilfully setting fire to dwelling houses, and the maliciously shooting. His next resolution would embrace the five felonies created by the Marriage act. Afterwards, he should come to all those capital felonies proposed to be done away by the committee on criminal law; the measures which he was thus proposing, having in fact already received the assent of the House of Commons, although they had been lost in the upper House. And he should besides move resolutions with respect to the crimes of forgery, and of uttering forged instruments, and three other capital offences, viz.; horse-stealing, sheep-stealing, and cattle-stealing. Upon the subject of the larcenies from shops, dwelling-houses, and on navigable canals, he had a few observations to address to the House. The executions under those laws for the last fourteen years had been, compared with the convictions, just one in sixty-six; and it had been very truly gaid, that they operated as a surprise upon the sixty-sixth man, who suffered, but not at all as a terror or warning to the sixty-five who escaped. In fact, a law under which one; criminal out of sixty-six was executed, was a law to all practical intents and purposes given up; and the execution of the: sixty-sixth man was nothing else than a wanton and criminal waste of human existence. He objected strongly also to the principle of making the amount of property stolen any criterion for the punishment inflicted upon on offender. There was no greater moral depravity in I stealing a large sum than a small one; nor was it fit that the treasures of the rich should be more strongly guarded,; than the comparatively small possessions of the poor. He was far from imputing to the legislature, or to the judges, any sentiment inconsistent with equal justice; but laws should not only be just, they should appear to be just; they should not only not be unequal, they should be above the suspicion of inequality. There was the less reason for inflicting a greater punishment in proportion to the amount of property stolen, as persons in possession of larger property had also better means of securing it. Another objection to making the amount of property the criterion of guilt and punishment was, that it opened a temptation to those pious frauds tinder which juries, from 409 humane motives, so often violated their oaths, by verdicts of acquittal. The mind easily persuaded itself, that there was no great immorality in undervaluing a little the property stolen, and compassion would, in such cases, induce juries to violate their most sacred duty; whereas, if the punishment were dependent on substantial facts and circumstances instead of the amount of property, they could not hesitate to convict. And, while he was upon this subject, he would make one observation upon the statute of the 1st George 4th, which, as it had originally passed the House of Commons, took away the punishment of death for stealing privately in a shop, and in which the lords had made an alteration, changing the felony from an amount of 5s. to an amount of 15l. Now, the constant observation made, in justification of the old law was, that it was necessary to protect the small property of poor traders from general depredation. A noble and learned lord had said, in the other House of Parliament, that the statute, which made the offence of privately stealing in shops to the amount of 5s. capital, was I the great safeguard of the retail trade of the country. The whole retail trade of the country, then, was abandoned by the 1st of George 4th; all the property of poor traders was given up to depredation by that act which raised the amount from 5s. to 15l. In shops, however, attached to dwelling-houses, which was so in 99 cases out of 100, although the offence could no longer be prosecuted under the statute of William, it might be prosecuted under the statute of Ann, if the sum stolen exceeded 40s.; so that the statute of George 4th raising the sum to 15l. was, in effect, reduced to a dead letter. He did not, in stating this fact, arraign the legislature, or the construction which had been adopted by the judges; but he stated it as an additional reason for repealing that statute.
The next resolution repealed the offences in the Black act, with the exceptions which he had already stated to the House. Honourable members need only read the preamble of this statute to be convinced of the expediency of such a repeal. The preamble stated, "That whereas certain persons called Blacks go about with their faces disguised, &c" Now, he would ask, whether there ever was a law which more completely bore upon its face the marks of a temporary enactment? 410 Were there any persons called Blacks from whom any danger was to be apprehended at the present moment? And if not, what did the existence of such a statute prove, but the unfortunate pertinacity with which bad laws when once adopted were adhered to? He was aware it may be said, that this act was made perpetual by the act of Geo. 2nd; but, the circumstances should be recollected under which that act was made perpetual. It was made perpetual at the end of the session of 1758, when bills were much less discussed than they were at present, and after a very remarkable circumstance which occurred a few months before—he meant the threatening letter sent by a man named Barnard to the duke of Marlborough. With regard to the repeal of the punishment for offences arising out of the Marriage act, he did not think it necessary to make any further observation; nor should he do more than merely name the statute of 21 Jac. 1st relative to fines and recoveries; of 6 Geo. 2. c. 37, relating to cutting down banks of rivers, and some other statutes enumerated in the resolution, which he proposed to repeat, The next offences, the capital punishment of which he proposed to repeal were those of sheep stealing, horse stealing, and cattle stealing. With regard to cattle stealing, it was a remarkable fact, that the agriculture and pasturage of this country reached their greatest prosperity before the year 1740, when the statute inflicting capital punishment for this offence first passed. Now, if such had been the flourishing state of the country in this respect for so many centuries, what could make such an enactment necessary in the last century? In point of fact, the condition of the country made it less necessary than ever; for the quantity of unenclosed ground was much greater anciently than it had been during the last century. The facilities for sheep stealing and cattle stealing were formerly greater, and consequently the necessity was much greater of inflicting the severest punishment. He must acknowledge that the punishment of horse stealing had the advantage of antiquity on its side. It was the only merit which it possessed, and it was a claim to respect of which he had no wish to deprive it. The average proportion of executions to convictions in these cases amounted to one in thirty; a proportion which was in his opinion decisive as to the necessity of repealing the existing laws. What greater 411 degree of moral certainty could any man: desire, in the ordinary transactions of life, than the probability in his favour of thirty to one? And he would ask, whether any man about to commit a crime was likely to be deterred by the infliction of punishment in one case out of thirty? The selection of a particular case for punishment depended upon circumstances the most fluctuating and unsteady; such, perhaps, as the particular temper and opinions of the judge, the peculiar necessity which might exist for making a signal example in some particular district, or the importunities which might be made to the judge for the purpose of protecting property, on his leaving the assize town. AH these were circumstances which might influence the administration of justice at the particular moment, but which, considered with reference to general principles of criminal law, he could not but regard as a complete abomination. That the life of man should depend on temporary or local policy, on the necessities of a particular district, or the interests of particular classes, was a principle utterly inconsistent, with justice and humanity, and tending to confound all our notions of right and wrong.—There was another circumstance which characterised these offences. They were offences of an obscure nature, not extraordinary in their character, nor likely to be known beyond the district within which they were committed. They were for the most part committed by necessitous persons, who were probably the objects of compassion to their neighbours; and they raised no terror, even if they extended beyond the district in which they were committed. This was the very reverse of the properties of a good punishment. It excited compassion where it ought to produce terror, and it was either unknown, or observed with indifference, in other quarters.
The next resolution declared the expediency of repealing the capital punishment for forgery—a resolution deeply interesting to the policy of public justice, and not inconsistent, he trusted, with a just and commendable regard for the protection of the commercial interests of the country. Having stated, on a former occasion, at considerable length, the grounds upon which he proposed a repeal of the capital punishment for forgery, it was the less necessary for him to occupy much of the time of the House on the 412 present occasion. The House would learn with great pleasure and gratitude to the authors of the act for the resumption of cash payments, the moral effects of that measure, in causing an abatement of the offence of forgery. In the year 1821,122 persons had been charged with the crime of forgery, 76 had been convicted, and 16 had been executed; in 1822,63 had been charged with the offence, 36 had been convicted, and only 6 executed. Here was a diminution of one half in the number of persons charged and convicted; and, what was mere important, a still greater diminution in the number of persons executed. He conceived, therefore, that the crime of forgery on the Bank might be considered as a crime no longer existing, and with regard to private forgery, he was more and more convinced, for reasons of a particular nature derived from the circum stances of those' who committed the offence, that it would be most expedient to take away the punishment of death. The offence was generally committed by clerks living in habits of familiarity with their masters, by persons living under the protection, and frequently by relations, of the parties on whom it was committed, and who were consequently absolutely, and entirely restrained from prosecuting, by motives of kindness and humanity. It could not be denied, that in the course of the last ten years, no capital punishment had excited so much odium, and rendered the administration of public justice so unpopular as that in cases of forgery The people of England were, in former, ages, conspicuous for their attachment to the laws of the country, even in periods of convulsion and civil war; but the numerous executions for forgery had done more than any other single circumstance to alienate the public mind from the administration of the criminal law. He proposed, there fore, to take away the capital punishment in this case, and by that means to restore the attachment and veneration which the people formerly entertained for the laws of the country.—With respect to second ary punishments, their expediency would shortly come under the consideration of the House, when an lion, friend of his should bring forward his motion on the subject of transportation. He could not help congratulating the House, however, on the discovery of a species of hard labour which had hitherto been attended 413 with such salutary effects. He alluded to the punishment of the tread-mill. Like every thing else, it was liable to abuse. He had read with pleasure a work written by Mr. Roscoe, on the criminal law. His great talents and extraordinary accomplishments had acquired for him a deserved reputation throughout Europe; but he (sir J. M.) thought that he had been a little biassed by misdirected humanity in his hostility to severe secondary punishments; since they seemed to him (sir J. M.) the only road by which we could escape from capital punishments. What contrivances might hereafter be invented to accommodate secondary punishments to the various gradations of crime, it would be absurd to anticipate. But while endeavouring to persuade the House to abandon capital punishments, he could not, without inconsistency, recommend it to relinquish those of a secondary nature. The hon. and learned gentleman said, he hoped he should be able to satisfy the House, that his two last resolutions were not at variance with the general principle he had laid down—that general principle being, that the criminal law could never be effectually administered, but when it was in perfect unison with the moral feelings and sympathies of the people. He would apply it to the momentous circumstance of pronouncing sentence of death. The ancient forms of the criminal law were impressive and instructive; but of late, from the hurry of the proceeding, and the frequency of the repetition, the awful ceremony of passing sentence had lost much of its effect. The condemnation of a fellows-creature to death for a long time retained its solemn and dignified character, even when every other part of the proceeding had dwindled into coldness and indifference. Now, however, the sentence of death itself was reduced to a contemptible frivolous, and even ridiculous ceremony. Ten-elevenths of the persons condemned to death never suffered; yet, in every case, the terrors of religion, and the dictates of morality were called in aid, while the spectators, and even the prisoner himself, knew the whole to be a mere mockery. He did not, of course, mean to blame the venerable judges who passed the sentences. Many of them, he knew, lamented the folly which the rashness of the legislature compelled them to practice. About two years ago a petition on this subject was presented from Exeter, in which it was 414 stated, that out of forty-three men condemned to death, no less than forty-one had been reprieved; so that the very frequency of the vain repetition deprived the sentence of all the solemnity it would otherwise possess. He was well aware of the contrivances which some of the judges had resorted to to escape; but the3> had all failed, and the véry attempt had rather increased than cured the evil.
For some of the plans suggested by his resolutions, he had the sanction of high authority; but if they should not be approved of by the House, others less objectionable might be introduced by honourable and learned members, more immediately conversant with the practice of our criminal courts. Upon the resolution relating to suicide and high treason, he wished to make a few brief remarks. The punishment inflicted in a case of suicide was rather an act of malignant and brutal folly. It was useless as regarded the dead, and only tortured the living. The honourable member for Ipswich had given notice of a bill regarding the disgusting course pursued in cases of suicide. Three years ago he (sir J. M) had pledged himself upon the point, and had only not brought forward the measure on account of events at that time occurring, and which might mix the question with matters of a political nature. In his resolution, or in any bill to be founded upon it by himself or others, he did not intend to touch the subject of confiscation for high treason. Had he done so, he knew that he should have excited a clamour: he should have been told, that he was proposing an innovation upon the constitution—that he was suggesting what was never heard of before; though it was an undeniable fact, of which hon. gentlemen ought to be aware, that, excepting in England, that part of the punishment for high treason had been abolished throughout the civilized world. A century ago, it had been repealed in Holland: in Russia not less than fifty years ago: in France, Spain, the German confederacy, and in the United States of America, it was now likewise unknown. Nevertheless, he should not venture to touch it. He however should propose to abolish the forfeiture of goods and chattels in cases of suicide. It seemed to him that if there was a punishment peculiarly unjust, it was this, where in fact the innocent suffered for the guilty. The principal human offence of suicide certainly was the desertion of 415 those for whom we were bound to provide—whom nature and society recommended to our care. What did the law of England do in this case? It stepped in to aggravate the misery, and perhaps to reduce the fatherless to beggary: it wrested from them the bread they were to eat; in short, it deprived them of their last and sole consolation under their affliction. It was to be observed, that the forfeiture only applied to personal property—it affected small savings chiefly, for large fortunes were generally laid out in land; so that it left untouched the possessions of the great. Before he proceeded further, he wished to draw the attention of the house to the indignities offered to the dead in cases of high treason. In the only case, since the reformation of the law, the man who inflicted the indignities was obliged to disguise himself, that he might not be exposed to the abhorrence of the spectators. On the occasion to which he alluded, the crowd evinced no symptom of dissatisfaction, until the bloody head was held up to public gaze by a man in a mask. It was the first time the law of England had been carried into effect by an executioner in disguise. This person had been called in as a skilful dissector; but, so great was the disgust at the barbarous operation, that concealment was felt to be necessary.—With regard to the outrages committed on the dead in cases of suicide, he had some doubt whether they were warranted by the law of this country. He had looked into all the text books on this point, and he found no mention of it in Hawkins, a very full writer, not only on the law, but on the practice of his time. There was no mention of it in sir M. Hale, sir E. Coke, in Stamford, Fitzherbert, or Bracton. They all spoke of the forfeiture, but said not one word as to the mode of interment. There was no authority for the legality of inflicting these outrages, except the unsupported assertion of Blackstone. That learned commentator made indeed a confused reference to Hawkins, but Hawkins supported him only in the forfeiture, and was perfectly silent on the subject of interment. But he surrendered the legal question to any gentleman who thought he could gain a petty triumph upon it; for it might, by long custom, have grown into law, though only the remnant of barbarous institutions. The question was, whether it ought to be continued? First he would ask, in what light he was to consider it? If as a punish- 416 ment, it was only such to the survivors—if it were meant as a punishment to the dead, what sort of punishment was that where there had been no trial, and what sort of trial where there had been no defence? In the second place, the law operated with the greatest inequality. Verdicts of insanity were almost always found in the cases of persons in the higher stations of life: where self-slayers were humble and defenceless, there felo de se was usually returned. This might perhaps be accounted for, without any imputation upon the impartiality of juries. First, because persons in high life had usually better means of establishing the excuse for the criminal act. Secondly, because suicide was rarely the crime of the poorer classes occupied with their daily labours. It was the effect of wounded shame; the result of false pride, and the fear of some imaginary degradation. Thirdly, the very barbarity of the law rendered it impotent; for juries would not consent that the remains of the dead should be thus outraged, if they could find any colour for a verdict of insanity'. He would ask any gentleman, whatever were his opinions as to the moral turpitude of suicide, whether it was a crime that ought to be subject to human cognizance. It was an offence, the very essence of which was to remove the party from all human cognizance; and the law of England was, he believed, the only law which attempted to stretch its authority beyond the bounds of humanity to include an offence of this kind. The Roman law, with regard to this subject, was very remarkable. It inflicted the punishment of confiscation in all cases of suicide, committed to evade confiscation, which would have been the consequence of conviction for other crimes. This was perfectly just; and it was observable, that the Roman law, not content with silence on this subject, expressly excepted all other cases of suicide from any punishment. In the best age of Roman jurisprudence, there was a rescript of the Emperor Antoninus in these words—" Si quis tædio vitæ;, vel impatientia doloris vitam finiverit successorem habere rescripsit Divus Antoninus." The Roman law on this subject of which this rescript was confirmatory, might serve to illustrate a beautiful passage of Virgil, which had a good deal embarrassed the commentators, in which he described that unfortunate class of persons who have terminated their own existence:—
417 "Proxima deinde tenent mœsti loca, qui sibi lethumInsontes peperêre manu, lucemque perosiProjecêre animas. Quam vellent ætlierc in altoNunc et pauperiem et duros perferre labores!Fata obstant, tristiquc palus inamabilis undâAlligat, ct novies Styx interfusa coercet.The word insontes had so much embarrassed some of the commentators, that they had endeavoured to get rid of the difficulty, by proposing the very opposite sense to the ordinary meaning of that word; but there could be little doubt, that that great master of poetic diction, whose delicacy and propriety in the choice and combination of words were unrivalled, had used this expression with reference to the distinction recognised by the Roman law, between criminals who were guilty of suicide, and those who were untainted by any other offence. There was scarcely any thing which tended more to display the finer feelings of the human mind, than the anxiety of heaping honours upon the dead—of attempting to bestow life upon that in which the natural life was gone; and he knew of nothing which tended so much to keep alive those affectionate and kindly feelings as to pay this respect to the remains of the dead. It was, in fact, one of the safe-guards of morality, and as such could not be interfered with, without the most dangerous consequences. He who could treat the remains of humanity with indignity, or could approve of its being so treated, he could regard in no other light than as being guilty of a very close approach to cannibalism. The opposite of this kindly feeling was the crime of cannibalism, which just in proportion as affection sought to prolong the duration of man, hastened his decay. Alive to this barbarity, which was perpetrated only by man in the lowest and basest form of the savage state, and when his worst passions were roused, were those cannibal inflictions upon that which could not suffer. It was because they were not only at variance with all the kindly feelings of our nature, but because they neither did produce nor could produce arty beneficial effect, that he said the remains of this practice in the case of treason were remains of barbarism, and as such called for immediate reformation. If to conduce to humanity was the use of all criminal law and all punishment—and if this was not its use, he knew not what it could be—then a tenderness for the remains of the 418 dead would have a far more happy effect than all the unmeaning cruelties which could be inflicted upon them. He should say nothing of the influence which public opinion ought to have in the regulations of the criminal law, and the adjusting and balancing of crimes and punishments. There were some who thought that parliament should not be in any way swayed by public opinion: but, it seemed to him that on such a question it was of peculiar value. If public opinion condemned the severity of the law, either it would not be executed at all, or not with effect. On such a subject we ought to appeal to the feelings of men; and it would be unjust in us not to do so. For what he would ask was the use of criminal laws, what their intention, and what the end and object of punishment, if it was not to preserve alive all the good and kindly feelings of men? How again, he would ask, were we to ascertain when the greatest effect was produced, but by an appeal to those feelings? No law which did not make such an appeal could be wise. And would even the fondest advocate of the present state of our criminal law say that it did contain any such appeal? When we awarded the punishment of death for Crimes of the blackest description, then the feelings of men went along with us. The parricide, the murderer, the betrayer of his Country, might all suffer the highest punishment, and the feelings of men went along with it; but would any man say, that these feelings were not insulted and outraged, when the same punishment was awarded for the cutting down of a cherry tree, the stealing of a sheep, or even the forging of a bank note? The continuance of the crime showed that the penalty of the law had not the effect which was intended, and the disparity of the cases showed that the law ought to be altered. He bad devoted his attention long and carefully to our present, code, and the more he had done so, the more was he convinced that it required to be brought more into accordance with the feelings of; men. He would fain make the penal laws of his Country the representative of the public conscience, and would array it with all the awful authority to be derived from such a consideration. He would make it the fruit of moral sentiment, in order to render it the school of public discipline. He would array the feelings of all good men against the dangerous criminal, and would place him in 419 that moral solitude where all the members of society should be opposed to him, and where he should have nothing to plead for him but that pity which added weight to his punishment, by showing that it was pure from every taint of passion or partiality.—The hon. and learned gentleman sat down, amidst the cheers of the House, with moving the first of the following resolutions:
- 1. "That it is expedient to take away the punishment of death in the case of larceny from ships, from dwelling houses, and on navigable rivers.
- 2. "That it is expedient to repeal so much of the statute 9 Geo. 1, commonly called the Black Act, as creates capital felonies, excepting the crimes of setting fire to a dwelling house, and of maliciously shooting at an individual.
- 3. "That it is expedient to repeal so much of the statute 26 Geo. 2, c. 33, commonly called the Marriage Act, as creates capital felonies.
- 4. "That it is expedient to repeal so much of the statute 21 Jac. 1. c. 26, relating to fines and recoveries; of 6 Geo. 2, c. 37, relating to cutting down banks of rivers; of 27 Geo. 2, c. 19, relating to threatening letters; of 27 Geo. 2, c, 19, relating to the Bedford Level; of 3 Geo. 3, c. 16, relating to Greenwich Pensioners; of 22 Geo. 3, c. 4, relating to cutting serges; and of 24 Geo. 3, c. 24, relating to convicts returned from transportation, as subjects persons convicted of the offences therein specified, to the punishment of death.
- 5. "That it is expedient to take away the punishment of death in the cases of Horse Stealing, Sheep Stealing, and Cattle Stealing.
- 6. "That it is expedient to take away the punishment of death in the cases of Forgery, and of uttering forged instruments.
- 7. "That in the case of all the aforesaid offences, which are not otherwise sufficiently punishable by law, the punishments of transportation for life or years, or of imprisonment with or without hard labour, shall be substituted for death, in such proportions and with such latitudes of discretion in the judges as the nature and magnitude of the respective offences will require.
- 8. "That it is expedient to make provision that the Judges shall not pronounce sentence of death in those cases where they have no expectation that such sentence will be executed.
- 9. "That it is fit to take away the forfeiture of goods and chattels in the case of Suicide, and to put an end to those indignities which are practised on the remains of the dead, in the cases of Suicide and High Treason."
§ The above resolutions being read, and the first of them put from the chair,
Mr. Secretary Peel
rose. He began by reminding the House of the extent to which the resolutions, nine in all, went; namely, at once to do away with capital punishments, in a great variety of offences to which those resolutions referred. The first suggestion which he would make to the House upon them would be this—were they not of sufficient importance to require a distinct and separate consideration, and whether the hon. and learned gentleman ought not to have taken the ordinary course of asking leave to bring in a bill upon each of the divisions of his resolutions, rather than have had recourse to the mode which he had taken? For only let the House consider into what inconveniences it might be drawn. By assenting to the resolutions of the hon. and learned gentleman, it would affirm all the propositions laid down in them; and if it allowed a bill to be brought in pursuant to those propositions, the result might be, that finding the bill not worthy of being supported throughout, it would feel itself compelled to abandon it. While the resolutions professedly followed the report of the committee on criminal law, it took in cases not referred to in that report. There was the offence of sheep, cattle, and horse stealing, not referred to in the report, in which the resolutions proposed to do away the capital punishment. That the hon. and learned gentleman had been misled by the report was plain; and being so misled as to facts and cases wholly omitted in that report, which he made without any notice given to the House of the objects of his resolutions, was it fair that they should be called on to give a distinct opinion upon so many important alterations of the law? Suppose the House to affirm the resolutions that night, and afterwards to find themselves unable to assent to the bills brought in pursuant to them, would not that be an inconvenient situation for the House to be placed in? Was there nothing inconvenient in the rejection of a bill brought in to remedy defects, which, as the Journals of the House would show, had been fully and clearly admitted? He 421 would show, that as this course was the most inconvenient which could be taken, so his objections to it were most sincere. When the hon. and learned gentleman proposed, in the last session of parliament, that the House should pledge themselves to this reformation of the criminal code, he had opposed it, because he thought that experience had done enough to convince them of the inconvenience of entering into any engagement as to what would be the conduct of a future session; and what had since passed had not tended to weaken the impression. When he opposed himself to giving that pledge, he proposed to take into consideration the whole question of the criminal laws, and to have the alterations projected stated specifically to the House. That was a pledge which he was now ready to redeem. He conceded the proposition of the necessity of some amendment. There could be no necessity for him and the hon. and learned gentleman to debate that point. The real question between them was only as to degree. At a very early period of the session, he had acquainted the hon. and learned gentleman, that he was ready to state the views of his majesty's ministers, or even to originate the measure by which those views would have been carried into effect; but, as the hon. and learned gentleman had brought forward the measure, he was unwilling to take it out of his hands.
Before he went into the detail of what his majesty's ministers intended to propose, he would briefly advert to one or two of the topics in the speech of the hon. and learned gentleman. One of the hon. and learned gentleman's greatest objections to the present state of the law-was, the disproportion of convictions and executions, and he seemed to think a more fixed proportion between offences and their punishments indispensable to the proper administration of justice. Now, if he meant so to apportion punishments that certain crimes should be equitably visited with certain degrees of punishment, which should always be carried into execution, undoubtedly the hon. and learned gentleman would meet with perfect disappointment in his pursuit of that object. He was ready to allow, that the law was not perfect. He was not such an advocate for the existing law as to say that there was not upon the Statute book any clause which ought to be altered; but neither could he agree with those who 422 thought that the whole criminal law of England was faulty. It would, in his opinion, be impossible to establish any code of laws which would prevent the necessity of a discretionary power on the part of the executive; and in proof of this, he would request the House to look at those crimes which the hon. and learned gentleman had not intended to touch. One of these was the crime of arson, a crime of no common enormity. There had, in the sixteen years preceding the year 1820, been sixty-five cases of capital convictions for that crime; and jet the number of executions had only amounted to 31. Here was as aggravated a crime as any which could be perpetrated; so atrocious in its nature, that the hon. and learned gentleman would not venture to remove the capital punishment; and yet the executions did not amount to one half of the convictions. There was the offence of shooting, stabbing, and poisoning, with intent to kill. What more aggravated offence could be named? An offence of so dark a character, that the hon. and learned gentleman refused to exempt it from capital punishment. In sixteen years there had been 189 convictions, and only 58 executions—not the proportion of one-third. This was a proof that the executive felt itself obliged to consider the circumstances narrowly, and apply the punishment accordingly. Another crime left untouched by the hon. and learned gentleman was that of burglary. Of this there had, within the 16 years alluded to, occurred 2109 cases of conviction, of which 239, or somewhat less than one-tenth had suffered the punishment of death. Taking the whole of the most aggravated offences, arson, burglary, murder, rape, there had not, within the sixteen years to which he had alluded, been one execution out of every ten convictions. Would it be fair, then, to take away the discretion by which these punishments had been thus apportioned; or could they hope to make a law so precise in all its provisions as to substitute it with effect? He would refer them to the sentiments of Mr. Burke, respecting the capital executions which were about to take place in 1780. It was curious to see what numberless grounds that great man urged for exercising mercy, which yet were no good grounds in law. He was pleading for the rioters of 1780, in a letter to sir Grey Cooper, and he particularly advised a selection of 423 cases. He did not quarrel with the punishment of death. He admitted that there must be executions, and recommended that they should not exceed six in all. His first ground was, that the chief delinquents had escaped: his second, that those convicted were, in the main, ignorant of the law, which, though the law itself needed not therefore justification, must be held as a great and powerful argument in favour of extending mercy. His third ground was, the remissness of government on the occasion, and the absolute impunity which attended but a little while before similar outrages in Edinburgh. Now, which of all those contingencies could have been anticipated in the framing of the laws by which the rioters were punished? The fourth ground was one, which it was still less possible for the legislature to have contemplated. It was the conduct of the lord mayor, who, as Mr. Burke said, was not only remiss, but was himself an active accomplice in the riot. That great and wise man felt convinced that the integrity of the law might be preserved, and yet the merits of individual cases be duly considered, and their punishments meted out to them accordingly. He urged other considerations: the vast concourse concerned—that the convicts were not the ringleaders or principals in the riots—their youth and sex, and even the high state of intoxication in which some of them were taken. He (Mr. Peel) adduced this to prove the difficulty of taking away the discretion of the judges, and to do away any suspicion of the deficiency of the laws, inferred from the disproportion between the number of convictions and of executions.
The hon. and learned gentleman had adverted, not very fortunately, to the opinion of foreigners upon this circumstance in our laws, and wrongly imagined that they would infer a disposition to barbarity which the tribunals would not dare to put in execution. Now it happened, that the very case had occurred, and had been remarked upon by no less an authority than Montesquieu, who had said, that in those countries where robbery was inevitably punished with death, murder was its certain accompaniment. In China robbery was always punished capitally. The consequence was, that robbers always endeavoured to cut off by assassination, the persons who were most likely to convict them. In Muscovy, the same writer ob- 424 served, there was a distinction taken by the law, and there were fewer murders. In England it was the same; and the remark of Montesquieu was, that the discretionary application of the punishment, lettres de grace, as he called them, stood in the place of the distinction of the law in Muscovy; and the general inference he drew was, that in absolute states, there must be equal punishments unerringly inflicted, and then the laws were upheld by their uniform terror. Whereas in moderate states, as in that; of England, where the robber, might look up to the grace of the sovereign if his offence were not aggravated, it was found that he did actually reckon upon that mercy, and acted on it, and so murders were not done. Here was an illustrious foreigner who, so far from objecting to the discretions left in the application of the chief penalty, actually approved of it in moderate governments. He could not after this, be expected to concur with the hon. and learned gentleman in his view of the question. There was another point to which he would advert. The hon. and learned gentleman said, that with regard to horsestealing, he would not leave the law in a vague and uncertain state, because, wherever any part of the country was in alarm on account of offences of this sort, the culprit would certainly be hanged, and in other places, where there was no such common dread to actuate them, the judges were very likely to remit the chief punishment. Why, this seemed to him to be the very principle of sound law. It might be hard to say to a man, that his life should be valued at a particular rate, depending upon local or temporary expediency. But this was the very reasoning upon which law was founded. On what other ground could they pretend to inflict capital punishments? It was not that they, in the deficiencies of human nature, were able to determine that which could only be effected by a tribunal above—the exact degree of moral turpitude attached to each particular offence. But while mankind were constituted as they were, having to struggle with all the imperfections of their senses, this was the last mode which legislation could devise for the preservation of civil order.
He would now come to the specific propositions of the hon. and learned gentleman, and show how far he was able to concur in his views. He would take the divisions of the report of the com- 425 mittee of 1819, in preference to those in the resolutions. In the report, there were four divisions of cases. The first was of the cases of crimes recommended by the committee to be left as misdemeanours at common law. Of these there had been 12 liable to capital punishment; four out of this number had been already repealed, and he proposed to do away with the capital punishment in the other eight. Most of them were crimes made capital by the Black Act. He admitted that it would be advisable to secure a better sanction for the law, by removing those penalties which could hardly ever be enforced. The second class consisted of offences of so malignant a nature, that if they actually occurred, nothing less than death could atone them. The next case was that of acknowledging and assisting in obtaining a fine, and recovery; the next, helping in the recover of stolen goods; the next, maliciously killing or wounding cattle—an offence of a highly aggravated character, and of very unfrequent occurrence. He thought this last one peculiarly well calculated for the experiment proposed. The malignity which impelled to such a deed, no doubt, deserved death; but it might be better to add to the solemnity and efficacy of the laws by repealing it. In sixteen years, there had been only two convictions for this offence. It was a crime difficult to prove: it was necessary to prove malice against the owner of the cattle, when it was obvious that there were many safe modes of doing him much more mischief open to such malice. The next case was that of cutting down trees, in which, in sixteen years, there had been but two convictions and one execution. The punishment might be changed to transportation. If offences should be found to multiply in consequence, it was only for the House to reconsider the question. With regard to No. 8, in this second class, he could not help regarding it as a strange anomaly. It awarded the punishment of death for the cutting down of the banks of rivers. Now, he had looked into sundry canal bills, to the number of fifty or sixty, and in not one of them had it been thought necessary to insert a clause making the cutting down of banks a felony; and yet canals were, from their nature, their use, and the situations in which they were made, much more hazardous than the banks of rivers. Canals were made in high grounds, where, upon the bank being cut, an inun- 426 dation might be the consequence; whereas, rivers, from their position, in the lowest parts of the districts through which they passed, could be productive of no such dangerous result. At any rate, the law ought to be equal; and certainly, the smallest penalty ought not to attach to the highest degree of offence. The Bedford Level Act felonies were fit subjects for repeal, however proper they might have been at the time of their enactment. Sending threatening letters was another case in which the law was anomalous. A man might charge another with the grossest crimes, to extort money, and it was only a transportable offence; whilst sending directly for money, or venison, offences made capital by the Black act, was made punishable with death. There could be no reason for this, and the law should be equally applicable to both. The personating of Greenwich pensioners was another capital felony which should be repealed. The agents of government ought to be sufficiently cautious in money concerns to render the punishment of death unnecessary. The last case or which he proposed alteration, was the cutting of serges, in which the capital punishment should be remitted; In acknowledging and proving a fine and recovery, making false entries in register-books, and helping to the recovery of stolen goods, the penalty of death should be remitted. He next came to the cases of larceny. The stealing privately in shops, and the stealing on navigable rivers, and on canals, he was inclined to think, might be properly the subject of experiment, and that as to them, the capital punishment might be remitted. The most material of all the cases of larceny was, the stealing in a dwelling-house to the amount of 40s.; and as he could not class this with the other offences of the same name, he was not prepared to say that as to this there ought to be any alteration of the law. There were, within the latest periods, too many proofs of the progress of that offence, even under the most aggravated circumstances, of confidential servants robbing their masters to a very large amount. "The law of England," said Justice Blackstone, "has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein, with the sentiments of antient Rome, as expressed in the words of Tully—'Quid 427 enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?" He was not therefore prepared to remit the capital sentence in cases of larceny in a dwelling-house. On reference to the returns, it would appear also, that the number of executions for this offence had been increasing. Instances there had been of servants who had robbed their masters of the whole of their property. This was a crime of a most dangerous tendency in a commercial country, and subversive of that confidence which ought to subsist between the master and the servant.—He was fully aware of all the arguments arising out of the unwillingness of prosecutors and witnesses to come forward; but he thought that inferences much too wide had been drawn from that circumstance. The trouble of attendance, and the expenses of the prosecution, were circumstances which pressed on the minds of prosecutors, and must have no inconsiderable share in producing that disinclination to prosecute, the whole of which was attributed to the severity of the law. Again, as to the frequent findings of juries, that goods of the actual value of 40l. or 50l. were of the value of 39s. only. The hon. and learned gentleman argued on that, as the effect of humanity overpowering the regard which the juror ought to have to his oath. But in the evidence, the answer of Mr. Shelton to a question which involved the whole of the subject, accounted for many of those findings. That gentleman stated, that often when property was stolen, perhaps to a very large amount, it might not be possible to prove that the whole was stolen at one time, and therefore the finding of the jury was in such cases correct. As it was notorious to prosecutors, to witnesses, and to jurors, that if there were no aggravating circumstances in the case, the law would not be carried into effect, he did think that this answer of Mr. Shelton truly explained the great majority of the cases alluded to. As in the whole of these cases of larceny, it appeared there was no difference except in the single instance of stealing in dwelling-houses to tire value of 40s., he could not arrive at the conclusion, that the capital punishment ought to be remitted.
The only other class of offences was that of forgery, on which he was certainly not prepared to bring in any bill to alter the law; and he thought the hon. and learned gentleman had laid too much 428 stress on what he had stated as the authority of the House on this subject; for it should be recollected, that the bill to which he had alluded was rejected by a majority (certainly not a large one) on the question of its being read a third time. He (Mr. Peel) had certainly not come to the House with any prejudice on the subject, but the speech of the hon. and learned gentleman himself, had convinced him, that no alteration of the law which awarded the punishment of death in cases of forgery was desirable. He had come to that conclusion from the great number of exceptions which the hon. and learned gentleman had himself thought necessary: and from that moment he was convinced that it was not expedient to pass any general law to mitigate the punishment of death in the case of forgery. This was the less necessary from the great diminution of executions. In the year 1822, there had been in England and Wales, only six executions for the offence of forgery; and this be thought might be urged as some compensation for the other evils which had attended the return to cash payments.—With respect to the stealing of horses, sheep, and cattle, he was decidedly of opinion that it would be unwise in the House to fetter itself now with any resolutions on the subject. The same observation he would also apply to suicide. These appeared to him much too important to be thus incidentally disposed of, and were well worthy of a separate measure. He was prepared to bring in bills as to the three branches of larceny to which he alluded; or if it was the wish of the hon. and learned gentleman to introduce them, to concur with him, most sincerely as to that reformation of the criminal code. It was also his intention to propose a measure which would go to relieve the judges from passing sentences in those cases in which it was not likely the law would be carried into execution. There occurred, perhaps, forty or fifty cases of crimes of every different shade, for which, at the end of the sessions, sentence was indiscriminately passed. It was desirable to preserve the distinction between crimes, and not to lower the effect of the solemn sentence of the law by this indiscriminate application of it. The measure which he should propose would not be any invasion of the prerogative of the Crown, as the judges would only be required to enter the sentence on, the re- 429 cord on which doubt might arise.—On the subject of increasing the efficacy of secondary punishments, it might be observed, that at present we had transportation to Botany Bay, but that from change of circumstances in the colony, it was now extremely difficult to make a punishment of sufficient severity. As to the hulks, though abuses might have heretofore existed, he was, from a full consideration of the subject, assured, not alone that these abuses had ceased, but that such a system of punishment, operating in confinement and labour on the public works, had, as far as it went, a beneficial tendency. There were at present 3,000 persons confined in that way. Considerable improvements had taken place in the management of our gaols; but though the efficiency of the tread-mill was acknowledged, yet it was not a species of punishment to be applied for fourteen years. There was another species of secondary punishment which he thought might be very efficacious to the suppression of crime; namely, a combination of hard labour and expatriation to some of the colonies, the Bermudas for instance, where public works were carrying on. With that view, it was his intention to propose a bill which would get rid of banishment, as the law now stood, and substitute expatriation and hard labour in some of the colonies.—He had now stated the various points on which he differed, and on which he concurred, with the hon. and learned gentleman. He had stated his intentions so far as they agreed, either to originate measures, or to concur in those which the hon. and learned gentleman might propose. As, however, there remained others on which they disagreed, it was his intention to propose the previous question on the first resolution, leaving it open to the hon. and learned gentleman to propose, if he thought proper, separate measures for those parts of the question on which they differed.
§ Mr. Fowell Buxton
rose, amidst loud cries of "question!" He observed, that the lateness of the hour alone prevented him from replying at length to the speech of the right hon. secretary. All he should then say was, that that speech had greatly disappointed him. He contended, that the recorded pledge of the House could be most imperfectly redeemed by the measures proposed by the right hon. gentleman, under the operation of which 430 there would not be saved one human life in the course often years. He hoped his hon. and learned friend would not withdraw his motion on the subject of larceny in dwelling-houses. He had hoped and believed, that his majesty's ministers would have gone further than, from their declaration of that night, they proposed to go; and, relying upon this hope, he had dissuaded many persons from petitioning the House on this very important subject.
§ Mr. Scarlett
said, he could not concur with his hon. friend, the member for Weymouth, as to the impression which the speech of the right hon. secretary was calculated to make. It was with great satisfaction that he had heard that speech, and he could not but rejoice, that the efforts to ameliorate our criminal code, which had been so long and so strenuously made, had at length succeeded, and that his majesty's ministers not only acceded to the principle, but proposed to sanction a series of measures in conformity with that principle. He could not, however, agree with the right hon. gentleman's reasoning with respect to the discretion vested in the executive power as to the punishment of death. If that were admitted, it would apply to every crime. He had not seen the resolutions of his hon. and learned friend before that evening. He was ready to support any measure which went to the mitigation of the punishment for forgery; but he did not see the necessity, because he did not see the advantage, of the House being at that time pledged to any specific mode of mitigation, the principle being already admitted. For his own part, he was desirous of having an opportunity of saying, upon each resolution, whether he would adopt the previous question or not; and his hon. and learned friend must not think that, because he did not approve of every part of his resolutions, he was, therefore, unfriendly to their principle. He rejoiced that the day had at length arrived when those principles which his late lamented friend, sir Samuel Romilly, had long endeavoured to introduce met with the general concurrence of the government. His majesty's minister had confessed himself a convert to the opinion, that severity of punishment was not the most expedient method of repressing crimes; that punishment ought to be consonant to the feelings and sympathies of mankind; and that those feelings ought 431 to be enlisted on the side of the administration of justice.
The Attorney General
observed, that even the sweeping resolutions of his hon. and learned friend would be inefficient to their proposed object. How did his hon. and learned friend propose to meet the case of larceny in cottages left unprotected in the day time, to which the existing law affixed a capital punishment? He complained that his hon. and learned friend had taken the House by surprise, in not having stated previously the specific nature of his motion, even to his own friends. The House, he thought, would require some notice before they would Consent to adopt resolutions, each of them involving topics that would require separate discussion.
§ Mr. R. Martin
begged leave to suggest to his hon. and learned friend, that if it was his intention to follow up his resolutions with bills, it would be injudicious to risk the fate of those bills by pressing the resolutions to a division. Many members who would vole against the resolutions might vote for every one of the bills. If, however, his hon. and learned friend persisted in dividing the House, he would vote with him.
§ Sir J. Mackintosh,
in reply, said, that he would trespass but a few minutes to explain the part which he should take with respect to the resolutions. He agreed with his hon. and learned friend, in rejoicing that the principles of his late lamented friend, sir S. Romilly, had been adopted to any extent; but he would have rejoiced still more, if they had been adopted more extensively; for, with the exception of one bill, the whole appeared to him to be a delusion. The conduct of his majesty's ministers upon this subject reminded him of an expression of a friend of his, with respect to another person, that he was a great friend to general principles, but had an exception for every particular case. With respect to the first resolution, he would ask, how often had the House of Commons voted for the very measure to Which it pointed? Would the right hon. gentleman advise the House to undo what it had done? To retrace its steps and forfeit its pledge to the country? In proposing the resolutions, he only wished to take the sense of the House in a popular way. The question was precisely the same as if he had moved for leave to bring in a bill; at the utmost, it only 432 went to add another stage to its progress, and it was absurd to talk of such a thing as an irrevocable stage, the bill being as liable to be thrown out in one stage as in another. He should certainly persist in taking the sense of the House upon his first resolution. If the previous question were carried upon that, he should only put the other resolutions, for the sake of recording his opinion upon the Journals of the House. He should not take upon himself to introduce any other measures for amending the criminal code; because he must foreknow their fate. If the right hon. gentleman had the skill to induce the House to retract its solemn pledge given last year, he felt that, as a humble member of parliament, he could not resist such an influence.
§ The previous question, "That the question be now put," being put, the House divided: Ayes, 76. Noes, 86. Majority against sir J. Mackintosh's motion, 10. The previous question was then put on the other eight resolutions, and negatived.
|List of the Minority.|
|Abercromby, hon. J.||Leader, W,|
|Allen, J. H.||Maberly, J.|
|Astley, sir J. D.||Mackintosh, sir J.|
|Baring, A.||Marjoribanks, S.|
|Barrett, S. M.||Martin, J.|
|Benett, J.||Milbank, M.|
|Benyon, B.||Milton, visc.|
|Bernal, R.||Monck, J. B.|
|Blake, sir F.||Montgomery, J.|
|Brougham, H.||Martin, H.|
|Browne, D.||Newport, sir J.|
|Calvert, C.||Normanby, visc.|
|Campbell, hon. G. P.||Nugent, lord|
|Carter, John||O'Callaghan, J.|
|Cavendish, H.||Osborne, lord F.|
|Chaloner, R.||Palmer, C. F.|
|Colborne, N. R.||Philips, G,|
|Denman, T.||Philips, G. H. jun.|
|Duncannon, visc.||Price, R.|
|Ebrington, vise.||Poyntz, W. S.|
|Ellice, E.||Ramsden, J. C.|
|Evans, W.||Rice, T. S.|
|Fergusson, sir R. C.||Ricardo, D.|
|Foley, S. H. H.||Ridley, sir M. W,|
|Folkestone, visc.||Robarts, A.|
|Frankland, R.||Robarts, G.|
|Grattan, J.||Robinson, sir G.|
|Griffith, J. W.||Scarlett, J.|
|Gordon, R.||Smith, J.|
|Grant, G. M.||Smith, W.|
|Hobhouse, J. C.||Smith, hon. R.|
|Hume, J.||Stanley, lord|
|Handley, H.||Tennyson, C.|
|Knight, R.||Tierney, right hon. G,|
|Leonard, T. B.||Tynte, C. K.|
|Lloyd, sir E.||Vernon, G. V.|
|Wharton, J.||Buxton, T. F.|
|Whitbread, S. C.||Calcraft, J.|
|White, col.||PAIRED OFF.|
|Williams, John||Russell, lord J.|
|Wood, M.||Pares. T.|
|Wilson, W. W. C.|