The Attorney General
, 969 in moving the third reading of the Forgery Acts' Amendment Bill, said, that a similar Bill had been passed by that House in a former Session, but was thrown out by the House of Lords. But although their Lordships could not then make up their minds, still, that rejection was no more than the delay of a question which could not long remain unsettled. It was universally known and acknowledged, that the punishment of death had not the effect of deterring from the commission of forgery. It was notorious that a feeling so generally prevailed, that the punishment was disproportionate to the offence, that the persons defrauded were unwilling to prosecute; witnesses were prevented from coming forward; and Judges and Juries were prevented from the strict execution of their duties by the same feeling. A petition from the merchants and bankers of London was presented to the House some time ago, in which the petitioners, the class the most interested in the country in the effectual punishment and suppression of this crime, declared, that so long as the punishment of death for forgery was continued, their property was in a great measure deprived of the protection of the law. It had been asserted, that prosecutors were no more unwilling to come forward in cases of forgery than in any other; but that he denied from his own experience. It had been also said, that Jurors were no more influenced by a false feeling of humanity for forgers, to swerve from the straight line of their duty, than they were found to swerve from it in favour of other criminals liable to capital punishment. In answer to that assertion, he would call the attention of the House to the petition of 1,100 Jurors of the city of London, who had petitioned Parliament on this subject. The petition to the House of Commons was presented by Mr. Brougham, that to the House of Lords by the Duke of Sussex. In that petition, those 1,100 Jurors expressly stated, they considered that the observance of their oaths as Jurors, where a true verdict would consign to the punishment of death a man guilty of forgery, would be a greater moral offence than the violation of the oath. Men would not act on principles repugnant to their nature, and no one had urged that more strongly than Dr. Johnson, in the 114th Number of the Rambler. He cited that authority the more readily, because Dr. Johnson had always been held up as a man of strong common sense, with a great contempt for all kinds of cant, for the cant of sensi- 970 bility, and no predilection for the new philosophy. It was almost sufficient for him, however, to appeal to general feeling on this subject. He made that appeal to his hearers. If they felt that they could not bring themselves to countenance capital punishment in case of forgery, that was complete refutation of all the theories on the other side; because human feeling was beyond legislative control, and could not be trifled with. That punishment which was most effectual, was most humane; as it prevented a repetition of the crime. But the public feeling had long been reluctant to cooperate with the laws in this object. Culprits were well aware of this unwillingness on the part of the injured to prosecute, of Juries to convict, and of Judges to sentence, when the legal punishment was disproportioned to the offence; that knowledge was the most effectual encouragement to crime. He maintained, therefore, that the ends of justice were defeated by the law as it now stood, and that persons would be deterred from the commission of the offence by the certainty that the punishment of transportation for life must inevitably follow upon conviction. In a recent instance he had been engaged to prosecute a man named Lavers, who had, by means of sham receipts, sham certificates, sham wan-ants of Attorney, and sham documents of every kind, committed frauds upon the Pay-office to the amount of upwards of 1,100l. In that case the individual, when put upon his trial, intended to plead not guilty, believing that the offence was capital, and hoping probably to escape, notwithstanding the most conclusive proof against him, through the reluctance of the Jury to convict; but being informed, that by the late Act, the punishment of death was done away in his case, he at once changed his mind and pleaded guilty. In another case, a servant in the family of Mr. Pollock, a distinguished lawyer, and a Member of that House, had committed a robbery in the house of his master to the value of 200l. and on a suggestion of the Judge he was found guilty of stealing under the value of 5l., which is only a transportable offence. Far from feeling gratitude, the culprit was displeased with the interference of the Judge, and in terms not very respectful, complained that he had not had a run for life or liberty;—plainly relying upon the humanity of the Jury for entire acquittal on a capital charge, and much dissatisfied with the certainty of transportation. A plausible objection to the repeal of capital punishment was the 971 want of a good system of secondary punishments. But this argument assumed, that the primary were efficient: the contrary of which all experience had demonstrated. He, however, did not believe that transportation was so ineffective as was supposed. It was indeed unequal, from the different characters and habits of the sufferers: but the same might be said of every other punishment, most especially of death; miserum veta perire, felicem jube. But he positively denied that transportation inspired no terror, otherwise how strange was the injunction of a late law which imposed upon the Judges, before whom a conviction for cattle-stealing might take place, the task of pronouncing sentence of transportation for life on every such convict. With marvellous inconsistency this clause had been recommended by some who contended that transportation was hailed as a boon by criminals. Conscious of the truth of those principles which he was now the humble instrument of introducing into practice, he thought them most strikingly illustrated by what daily occurred in the administration of justice. For that reason he had drawn the attention of the House to one or two recent cases, and would now advert to a curious fact lately verified by hon. members from Lincolnshire, on presenting a petition from that county. Some excavators employed in a great work of drainage, near Spalding, though very good workmen, were very bad neighbours, and used to help themselves to the farmers' sheep. There was, for some time, difficulty in obtaining a conviction: but, at length, a conviction took place, and the man was sentenced to be transported. As soon as this happened the offence ceased; but Mr. Justice Littledale—than whom there was not a more humane Judge on the Bench—was afterwards induced to commute the sentence of this felon to one year's imprisonment. No sooner was this commutation known, than the crime again immediately increased. It could not then be doubted that the punishment of transportation for life carried very great terror with it to many who were likely to commit crimes. If transported, too, the culprit might make amends to the prosecutor, which his execution made impossible. And among the alterations which he thought advisable, he proposed, that, in the event of convicts becoming possessed of property at any future period, either in this country or in the colonies, they should be obliged to make restitution to the parties whom they had 972 injured. At home and in our colonies, a provision to this effect might be enforced without difficulty; and the concurrence of foreign powers might be fairly expected in favor of so just and reasonable an object, if the plunderer should convey abroad the fruits of his crime. Perhaps he had passed too lightly over the principle on which the present measure rested: yet he really thought that the universal opinion of all classes dispensed with a formal proof of it. A remarkable example, however, of the inefficiency of the ancient severity seemed too impressive to be omitted: the fact was lately imparted to him upon unquestionable authority. On the Jury that had tried Dr. Dodd, there was a person named Davis, who took a most active part against him, and was the most earnest in urging his conviction. This man who was a builder, afterwards failed in business, and being tempted to commit forgery, he expiated his crime on the scaffold. Now it was obvious, that upon his mind, the melancholy fate of Dr. Dodd had produced no effect whatever, for he was not deterred by it from committing a similar offence. In the Bill of 1830, there were three classes of forgeries not exempted from capital punishment. The first of these was forgeries of the Great Seal, the Privy Seal, and other public instruments. But as, during the present Session, the Legislature had repealed the capital punishment on coining, which used to be considered as high treason, he saw no reason why they should keep up this severe distinction of the Bill of 1830. The second exception was the case of wills. No one would deny, that this was a crime committed by the basest of mankind; but, unfortunately, as he had already had occasion to remark, all resentment for that baseness was lost in the horror of the capital punishment; and if he had not already trespassed too long on the attention of the House, he could relate several instances in which, without any extenuating circumstances, the culprit escaped, owing to that very severity of punishment. In respect to the forgery of wills, many things conspired to make it difficult, and the culprits were most commonly near relatives to the parties injured, who naturally felt the greatest repugnance to a prosecution, and preferred to suffer the loss of their property to bringing their guilty relatives to an ignominious death. The third exception with respect to bills of exchange and promissory notes, was made on account of the facility with which those documents could be forged, 973 but it was that very facility which furnished some excuse for the crime; and he believed that it would be found that almost all those forgeries took place owing to a want of due caution. Under these circumstances the Legislature was bound to consider, whether it ought not to do all in its power to compel parties to take greater precautions; and, whilst speaking on this part of the subject, he might allude to the case of the Quakers, who, on account of their religious scruples, would seem to be doubly exposed to depredation. The fact, however, was, that by means of proper precautions, the Quaker bankers were little affected by forgeries; and one of them stated, in evidence before the Committee, that he felt so secure as to believe that it was next to impossible that a forgery could be committed on his house. He called upon them then to consider in how difficult a situation Jurors would be placed, after that House had solemnly declared its opinion, that the punishment of death ought not to be inflicted for that crime, whilst the law still remained in force for the infliction of that punishment. Would not their unwillingness to convict, and their hesitation between their oath and their duty to humanity be much increased.? The object of the present Bill was, like that prepared by the late Government, with the sanction of Lord Tenterden, and now the law of the land in relation to coining, to take away the punishment of death in all cases of forgery. He proposed to insert a clause, extending the Act to Scotland and Ireland, at the earnest solicitation of numerous Members from those parts of the United Kingdom. While he wished to remove an obstacle to just prosecution from the fear of excessive severity, he proposed to deprive the guilty man of one chance of an unjust acquittal, through the medium of technical flaws. His Bill, therefore, contained a clause dispensing with the necessity of setting out a precise fac-simile of the forged waiting on the Bill of Indictment, and only required that it should be correctly described. Before he sat down, he was glad to have it in his power to state, that his late lamented friend. Sir James Mackintosh, had fully coincided in the principle of the present Bill, although, in 1830, he had consented to something less, in the hopes of getting the principle acknowledged. Never had that truly great and good man rendered a more important service to humanity, than by persevering in the course which had teen so zealously pursued by Sir Samuel 974 Romilly. Having made these observations, he should now move, that the Bill be read a third time.
§ Sir Charles Wetherell
said, that when recently a revision of the criminal code took place, which was effected by a right hon. friend of his (Sir R. Peel), capital punishment was continued, with reference to murder, rape, forgery, cattle-stealing, and burning. It was supposed at the time, and the question then underwent much consideration, that the alteration then proposed and agreed to would be final. The Attorney General had told them that the late Sir James Mackintosh was favourable to such a measure as that which was now brought forward. If, from his knowledge of that learned personage in private life, the Attorney General was enabled to come to that conclusion, he, of course, could say nothing in opposition to it. But so far as a public demonstration of sentiment went, he had reason to believe that Sir James Mackintosh coincided in the classification of offences as contained in the revision of the criminal code to which he had alluded. He could not help stating his conviction that Sir James Mackintosh was of opinion, after the fullest consideration of the subject, that the criminal code, as then settled, laid down the maximum of the relaxation of the criminal law of this country. The cases that wore to be dealt with in that revision were naturally divided into two classes—those which affected the person, and those which affected property. Murder and rape, appertaining to the former, were, of course, as the most atrocious offences, still kept within the pale of the highest punishment. Burglary, too, which could not be committed without a most serious breach of all that was sacred in the social system, and arson, were placed in the same division. Cattle-stealing was also dealt with in the like manner. And here he might observe, that one of the most humane, and learned, and philanthropic men that this country had ever produced—he meant Dr. Paley—had assented to the propriety of this punishment in cases of cattle-stealing, on account of the ease with which cattle might be abstracted, and the immense quantity of property of that nature which was left unprotected. Forgery also was continued a capital offence under the altered law. But although ill the commission of forgery, every safeguard to property was broken down—though it was generally committed under circumstances the most revolting and trea- 975 cherous, yet it was sought by this Bill to do away capital punishment with reference to such a crime. The alteration which had been made in the law relative to cattle-stealing, he strongly condemned. Some of the most able and learned men on the bench had stated that the new Act placed them in a very difficult situation. It was quite clear that cases of cattle-stealing might occur where a relaxation of the law, at the discretion of the Judge, would be most proper. But no discretion was now left to the Judge. In every case, the sentence, under the new Act, must be transportation for life. However gross and aggravated the case might be, transportation for life was the extent of the punishment; and, however trivial it was, however great the circumstances of mitigation, still the Judge had no discretionary power, and transportation for life must be the consequence of conviction. These modem pedants in legislation had taken away all discretion from the Judges, and the least culpable, as well as the most atrocious offender, received the same amount of punishment. His hon. and learned friend, in proposing to take away the punishment of death from all cases of forgery, drew no distinction whatever between them. According to his hon. and learned friend's doctrine to forge a 20s. note, or one of 20,000l. was precisely the same thing. He feared to admit the principle that capital punishment ought never to be inflicted for the forgery of bank-notes; but supposing that principle to be admitted, it was obvious that the forger of small notes stood in a very different position from a person who had forged powers of attorney for the transfer of stock at the Bank. The case of Mr. Fauntleroy was one of the latter description, and as he conceived, well deserving of consideration in reference to the subject now under consideration. Mr. Fauntleroy was a banker, and was empowered to receive the dividends of many of his customers who had property in the Funds. He carried on an habitual system of forgery, by which he robbed his customers and the Bank, and contrived by that system to acquire property to the amount of nearly 300,000l. to the extinction of confidence and the ruin of hundreds of innocent persons; yet they were now told that philanthropy and morality made it necessary to exempt such a person as Mr. Fauntleroy from capital punishment. He had the honour to be Solicitor General at "the period when the case to which he had just alluded occurred, and he well remem- 976 bered that, although the case was enormous and unpardonable, a kind of mawkish feeling existed in favour of the criminal. There was a party in this country who thought that, in that most aggravated case, the law ought to be suspended. He had seen the list of sufferers—of persons hurled from affluence and respectability into deprivation and misery. The widow's 5,000l., and the orphan's 10,000l., and the savings of a retired tradesman's life, were all swept away by this delinquent, and yet that was the case in which philanthropists went through the town, with weeping eyes and white handkerchiefs. For his own part, he could not permit his feelings of pity and humanity to be absorbed by the delinquent—his sympathy was also excited for the sufferers, and he felt it would have been a sin and a wrong if the law had not been allowed to take its course. If another case of a forging banker and trustee, however, should hereafter, unfortunately occur, the weeping philanthropists would lose their occupation, for the criminal would be exempted from capital punishment by the present Bill. The great objection which he felt to the measure was, that it laid down the same principle as applicable indiscriminately to cases in which a forgery was committed of a bank-note of the value of 20s. and of a warrant of attorney to transfer stock to the amount of 100,000l. Now, the Bank cases were necessarily cases of deliberation—they were usually combined with the grossest breach of trust. It was not the mere mechanical substitution of one name for the other, but there was an addition of moral turpitude which was a great aggravation of the offence. Having declared his opinion on the Bill, if the House were satisfied with the principle laid down in it, he had nothing more to say, but that he could not agree to hanging a man for stealing a hammer-cloth from a Gentleman's carriage or a coachman's coat with eight or ten capes, or for the commission of a burglary, whilst all the property in the Bank of England was left unprotected. He left it to the philanthropists to account for the principle by which burglary and some other offences were to be punished with death, whilst the forger who possessed himself of thousands, was allowed to escape. He would not take up the time of the House by enlarging further on the obvious distinction which existed between forging a promissory note and forging a public register of a will, nor should be discuss further the grounds upon which, as he con- 977 ceived, it might be expedient to exempt the criminal in the former case from capital punishment and to inflict it on the greater delinquent. The principle now contended for was, that capital punishment should not be inflicted in any case of forgery. Now, he had endeavoured to find out the lineage of this new sympathy concern. It was not of very ancient date. He had looked into the works of Addison, of Locke, and of many of the most distinguished writers of what had been called the Augustan age of English literature; but he could find no such sentiment. It was only that morning he had the curiosity to look into the letter addressed by Dr. Johnson to the Prime Minister of that day, Lord North, in favour of Dr. Dodd, whose case had been alluded to by the Attorney General. Dr. Dodd, as everyone knew, had been convicted of a forgery of 4,000l. on Lord Chesterfield, and Dr. Johnson was commissioned by Dr. Dodd's friends to write a letter in his behalf. With all his zeal and resources, however. Dr. Johnson never dreamt of pressing into his letter any of the arguments now suggested. He never called for the remission of Dr. Dodd's punishment on the ground that his execution was contrary to morality or religion. He merely contended that it would be a disgrace to the clerical body if so eminent a man as Dr. Dodd underwent the extreme punishment of the law. None of the great writers and philosophers of Queen Anne's reign had countenanced the doctrines now laid down on this subject. That great moralist and philosopher. Dr. Paley had started no such doctrine; on the contrary his proposition was, that where property was defenceless, and could only be protected by the dread of capital punishment, it was not unjust for a state to inflict it. The same principle was followed up by Sir William Blackstone, who called it a pious fraud for Judges to invent cases where the extreme punishment of the law was not to be carried into effect, although the law allowed the punishment in aggravated cases. The rule now attempted to be laid down, however, was, that capital punishment was in no case fit, moral, or expedient. It was not for him to pursue this argument further. He did not see any of the Bank Directors, nor the Solicitor to the Bank, in the House. He believed there was not an India Director present. He begged pardon—his hon. and learned friend, the member for Kirkcudbright (Mr. Cutlar Fergusson), was an India Director; but he feared he could not 978 reckon on his support in protecting property in the funds and other public securities, by retaining capital punishment in cases where forgeries were committed by persons for the purpose of possessing themselves of that description of property. He did not wonder that the merchants, bankers, and others most interested in the question were not in attendance. After the labours of the last and the present Session, it was only wonderful that forty Members could be got together on any question—and, looking round the House, he doubted whether, if it were now counted, that number would be found. He had endeavoured to persuade himself that he was wrong on this question. He had tried in vain to join those who were so ready to use the handkerchief and the smelling bottle. He had read many of the publications opposed to his own views on this question, and he found that the chief argument for the abolition of capital punishment was, that the vengeance of the law did not stop forgery, and therefore, that there could be no use in hanging men for forgery. Now, the law for centuries had punished burglary, murder, and arson with death, and burglary, murder, and arson had not been stopped. Yet the whole logic of the philanthropists now was, that because hanging had not suppressed the crime of forgery, it was useless and ought to be given up. However unpopular the expression of his opinion might be at love feasts and reason feasts—he could by no means submit to this logic of the philanthropists. Though he might be so unfortunate as to be eliminated from their doors and excluded from all communication with the sentimentalists, although the philanthropists might excommunicate him and the people condemn him, he must still maintain that the principle of the present Bill was most mischievous. By taking off the dread of capital punishment even in the most aggravated cases, they almost tempted and bribed men to commit forgery; and at the hazard of being accused of advocating murderous principles, he had taken the liberty of stating the grounds of his objection.
Mr. Cutlar Fergusson
, having been alluded to by his hon. and learned friend who had just sat down, wished to seize the earliest opportunity of declaring his warm approbation of the Bill. He had been authorised by a large and respectable body of persons in Scotland to express their wish that the measure should be extended to that country. Since its introduction, he was 979 happy to find that a clause had been introduced extending its operation to Scotland, and he believed the measure would be hailed in that country as a great improvement of the criminal law. With respect to the bill which his hon. and learned friend (Sir Charles Wetherell) stated had produced so much inconvenience on the circuit, he begged to remind his hon. and learned friend that it was not the Bill of the House of Commons. All the absurdities, and all the pedantry which his hon. and learned friend charged on that bill, were attributable to his noble friends in the other House, and not to the House of Commons. If the bill had been allowed to pass into a law in the form in which it had passed the House of Commons, none of the inconveniences complained of by the Judges would have arisen. His hon. and learned friend had talked of the settlement of the principle now under discussion at the period when the right hon. member for Tamworth (Sir Robert Peel) introduced his Bills for the amendment of the Criminal law. If the Bills of the right hon. member for Tamworth were satisfactory to others, they certainly were not so to him, and he must altogether deny that the principle was then fully or satisfactorily considered. The measures were passed with little discussion, and the principle was not settled to the satisfaction of any man who had considered the Criminal law upon principle. By the right hon. member for Tamworth's Bills it was enacted, that stealing to the value of 40s. should no longer be subject to capital punishment, but stealing to the value of 5l. was still left subject to capital punishment. Was that a principle, he asked, which any man could consider as a satisfactory settlement.? His hon. and learned friend had alluded particularly to the case of Mr. Fauntleroy, and certainly that was a case of as great crime as could be committed; but the moral offence in that instance would have been quite as great if it had not been accompanied by forgery. The moral offence was in the breach of trust, far more than in the mechanical operation of forging the signatures to powers of attorney. His hon. and learned friend asked, would they leave all the property in the Bank of England without protection? The very end of this Bill was the protection of property. Did the House remember, that a petition had been presented to it in favour of the principle of the Bill, from persons particularly interested in preventing the crime of forgery, from the bankers? The petition was signed by persons having a 980 large property liable to be injured by this crime, and yet the object of their petition was, to desire that the crime of forgery should not be punished with death, because they felt that their property could not be protected by that law. The language of the bankers' petition was:—" As long as the Legislature affixes to the crime of forgery a punishment which jurors and prosecutors deem too severe, our property must be at the mercy of forgers." His hon. and learned friend asked where the principle now contended for, was to be found in the writings of the moralists and the philosophers of former times? His hon. and learned friend, however, seemed to mistake the principle now contended for. No man supported this Bill on the ground that the Legislature had not a right to affix the punishment of death to the crime of forgery. The supporters of the Bill only contended, that it was wrong to continue to inflict that punishment, when the feelings of the age and the country did not go along with the law. His hon. and learned friend had also told the House that the ancient principle of the law was to enact that the punishment of death might be inflicted for many offences, but in reality to inflict it only in few cases. Now he must contend that was a modern, and not an ancient principle of the law. Even during the reigns of George 1st and George 2nd, in two-thirds of those cases in which capital punishment was affixed by the law, the punishment was really inflicted. The punishment of death for the forgery of bills and notes, and other negotiable instruments, was not a part of the ancient law. His hon. and learned friend had referred to the Augustan age of Queen Anne, and told the House that the sentiments now so general on this subject was not to be found in the works of the moralists or philanthropists of that era. Now the fact was, that in the reign of Queen Anne, the forgery of Bills and notes was not punishable with death. It was not made a capital punishment until the reign of George 2nd. His hon. and learned friend had quoted the sentiments contained in the letter of Dr. Johnson; but no doubt, in the course of his reading, his hon. and learned friend had looked into Dr. Johnson's Rambler. If he had not read it recently, he (Mr. Cutlar Fergusson) would recommend No. 114 of that work to his perusal. It would afford his hon. and learned friend a very pleasant evening's reading after he left the House. In that number Dr. Johnson observed:—'He who 981 knows not how often rigorous laws pro duce total impunity, and how many crimes are concealed and forgotten, for fear of hurrying the offender to that state in which there is no repentance, has conversed very little with mankind. And, whatever epithets of reproach or contempt this compassion may incur from those who confound cruelty with firmness, I know not whether any wise man would wish it less powerful or less extensive.' He then went on to state—'All laws against wickedness are ineffectual, unless some will inform, and some will prosecute; but till we mitigate the penalties for mere violations of property, information will always be hated, and prosecution dreaded. The heart of a good man cannot but recoil at the thought of punishing a slight injury with death; especially when he remembers that the thief might have procured safety by another crime, from which he was restrained only by his remaining virtue. The obligations to assist the exercise of public justice are indeed strong; but they will certainly be overpowered by tenderness for life. What is punished with severity contrary to our ideas of adequate retribution, will be seldom discovered; and multitudes will be suffered to advance from crime to crime till they deserve death, because, if they had been sooner prosecuted, they would have suffered death before they had deserved it.' He rejoiced that he was able so opportunely to quote the testimony of Dr. Johnson, as to the severity of the law defeating itself. He thought, if his hon. and learned friend had reflected a little, he would not have introduced the name of Dr. Johnson as a defender of severity of punishment, and an opponent of the mitigation of legal infliction. His hon. and learned friend said he saw no reason why burglary should be punished with death, and forgery not. He (Mr. Cutlar Fergusson) considered that burglary, rape, arson, highway-robbery, and offences accompanied with violence or terror, were proper objects of a more severe punishment than ought to be extended to crimes which were not accompanied with terror or danger to life or person. At the same time he admitted that the law relating to burglary ought to be amended, and more accurately defined: for now it was his opinion that the construction, put by lawyers upon what should constitute the crime of burglary, such as the mere lifting of a latch, was a construction such as was never contemplated by the framer of 982 the law. But to return to the subject before the House, he must say, that the punishment of death in cases of forgery was not effectual. He thought, therefore, that it ought to be abolished altogether in cases of forgery. He did not say that such a crime as that of Fauntleroy did not merit a severe punishment; but the crime of forgery was not considered in the eyes of the world of so atrocious a nature as that prosecutors would be willing to come forward, or Juries to convict, when the punishment was so disproportionate to the crime; and, there fore, the punishment was ineffectual. He, by no means, approved of the alteration which had been made in the bill that had recently passed that House. He thought it would have been better to reject a Bill altogether, which said that every case of cattle-stealing should be punishable with transportation for life, than to pass it in that shape.
§ Sir Edward Sugden
regretted that a measure of this nature should be brought forward at this period of the Session, or should pass in so thin a House. At that moment he did not apprehend that there were forty Members in the House, and during a great part of the discussion, there had not been more than twenty. He could not conceive a more dangerous course than that a Government should, when so great a portion of the Members had left town, bring forward and pass so important a measure in so thin a House. For this really was a matter of the greatest importance; it was one which the House would have to re-consider, and to watch in its effects, and if he did not mistake they would often hear of what he now alluded to—namely, its being passed under such unfavourable circumstances. As to the measure of his right hon. friend the member for Tamworth on this subject, he would undertake to say, that no measure had ever been more elaborately, more diligently, and more ably discussed. He very highly esteemed the abilities of one right hon. Gentleman who had taken a part in that discussion—he meant the late Sir James Mackintosh—but it should be recollected that that right hon. Gentleman thought that it would not be safe to extend the exemption to cases of forgery of wills. Now he did not know that any thing had since occurred to alter that view. No man could be more desirous than he was to get rid of capital punishment; but if he felt that that could not be done consistently with the safety and protection of property, he should be ready to take any odium or 983 any public indignation that might be directed against him for the conscientious discharge of his duties. He knew what was the popular side of this question, as he did of most questions, and he was as anxious as any man to gain popularity fairly, but certainly would not seek it at the expense of what he felt to be his duty. If any secondary punishment could be devised which would be effectual, he would be the first to propose to get rid of sanguinary punishments. But he did not know where such a punishment existed, and he should, therefore, be inclined to say "wait until you get it, before you altogether relax the terrible penalty of death." It was worthy of remark that public crime had of late years taken a different direction. We had not now those attacks with violence on the high road, in the open day, which rendered it unsafe for persons to leave their houses. But now men set by their fire side and projected robberies and executed forgeries. He was convinced that if the punishment of burglary were done away with, houses would be stripped to an extent which it was impossible to contemplate. So, if the punishment for forgery were relaxed, he could not doubt that there would be a great increase of that crime. There was a great body of capitalists in this country—for capitalists they really were—who spared no expense in the accomplishment of extensive robberies. Months were dedicated to a single robbery and hundreds of pounds were expended before it was perpetrated. If the punishment of death for forgery were taken away, without the substitution of some other salutary punishment, forgeries would be carried on by clubs, and associations of criminals, which would soon render it necessary to revert to extreme measures. He confessed that he did not altogether approve of the alteration made by the Lords, in a former bill which had been alluded to, although he did not condemn it to the extent that some did. The fact was, that whatever punishment was awarded, there would be found some persons of such morbid sensibility as to disapprove of it, and they would condemn transportation for life, as much as they now complained of death. If, for instance, such a man as Fauntleroy had been condemned to work in irons amongst felons for life, he had no doubt that thousands would have been found to petition against it. If any effectual secondary punishment could be substituted, nobody would more willingly support the abolition of the punishment of death than he should. 984 His opinions on this subject were well known, and he had seen no reason to alter them. He did not, however, intend to oppose this Bill; but he would leave all the responsibility of it with those who had originated it, and who pressed it forward under circumstances so unfavourable to its due consideration. He admitted that the feelings of the public mind were so strongly against the punishment of death, that if an effectual secondary punishment could be substituted, it would be desirable to dispense with the capital punishment; for when one general and universal opinion pervaded the public mind amongst all ranks and classes, let it be right or wrong, the Members of that House were bound to attend to it. But he thought that, unless a secondary punishment could be found, the House was now going too far. There was one mode of forgery which he feared would be very much increased—namely, forgeries committed by persons who had got very much into the confidence of their employers or friends, who had become acquainted with their private affairs, and who might be tempted to commit forgeries, which would not be discovered during the life of the party. He knew of an instance in which two persons were in habits of the most intimate intercourse, dining together, and walking sometimes in company with a third party, which third party forged a mortgage deed from one of the other two to his friend. It was made a point of delicacy not to allude to the subject during their friendly meetings, and it was not for many years discovered that one of these gentlemen had not executed the mortgage, and that the other had advanced thousands upon it. The hon. and learned member for Kircudbright had asked whether the fraud of a guardian did not involve as great moral guilt as forgery? No doubt it did; and no punishment could be too great for the wretch to whom a child might have been intrusted, who defrauded her of her property, and committed a violation of confidence so destructive to the existence of society; but the reason why that offence was not punished as severely as forgery was, that no human laws could discriminate degrees of fraud. It had been hinted to him, that if this Bill passed, the Bank would not be able to conduct the public business. He took it for granted that the noble Lord had not allowed a bill like this to have been brought in without inquiring into this matter, for that forgeries upon the Bank would increase there could not be a doubt. The Attorney 985 General smiled; but he (Sir E. Sugden), was speaking seriously upon a serious subject. He did not mean to oppose this measure; but to call the attention of the House, of the Government, and of the country, to the responsibility that would attach to the Government for advocating it. If the noble Lord had ascertained the opinion of the Bank Directors upon this Bill, and had satisfied himself that there was no danger in it as regarded them, or if the noble Lord believed that he could do without the assistance of the Bank, there was an end to his, (Sir E. Sugden's) observations; but, if otherwise, they were entitled to great weight. He should be happy to find that persons competent to form an opinion on the subject had sanctioned the course now taken by his Majesty's Government; but he feared the consequence of their requiring the House to pass it hastily towards the end of a Session, when only twenty or thirty Members were present, would be seriously felt. The Legislature and the country were travelling fast towards the abolition of all capital punishment, and the influence of a particular body of dissenters would soon prevail over the healthy sense of the majority of the community. No man respected the Quakers more than he did—no man more admired their peaceable, inoffensive habits, their love of quiet and good order—no man was more ready to acknowledge that they were exceedingly good citizens, and that the example of good conduct which they held out was useful all over the country; but they were against all punishment of a capital nature, not only for this, but for nearly every other offence. Nobody was prepared at present to go that length; and even by the present measure. Government was but sowing the seeds of a crime of which the country hereafter would reap an abundant crop.
said, what the House had to consider was, whether the law was not so much against the general feelings of the people that it could not be enforced, and, if so, whether it ought not to be altered. He was satisfied that, generally speaking, the character of our laws was too sanguinary; and he hoped that we were rapidly proceeding to put an end to capital punishment, a consummation which he did not dread like the hon. Member who spoke last. The hon. and learned member for Boroughbridge, had spoken rather senselessly about philanthropy and philanthropists. The hon. and learned Gentleman might be sincere in his opinions, and yet, like the hon. 986 and learned Member who had just sat down, do justice to his opponents, who, he ought to remember, could be guided by no selfish interest, but by public principles of the most generous character. It was hard upon them, therefore, to be held up to the contempt of the country by the epithets which the hon. and learned member for Boroughbridge had bestowed upon them. With respect to the Quakers in particular, he would say that they deserved the thanks of every friend of humanity. He spoke advisedly, for he had been long in communication with them, and knew them well. The hon. and learned Member asked the House what evidence they had of this Bill not being injurious to commerce? They had the evidence of almost all the bankers of London, and the evidence of experience, for, if they looked to countries where capital punishment was not inflicted for the crime of forgery, they would find the crime to be less frequent than it was in England.
§ Sir Frederick Trench
had heard with much pleasure the observations that had fallen from the hon. member for Middlesex, and the concluding remarks of his hon. and learned friend, the member for St. Mawes. They had both of them stated their conviction that the Quakers in wishing for the abolition of the punishment of death, were actuated by the most humane and benevolent motives. He had been anxious to rise for the purpose of vindicating that most enlightened, and liberal, and disinterested portion of the community, from the observations of his hon. and learned friend the member for Boroughbridge, observations not, he was sure, springing from any bad opinion of the sect, but uttered in that flow of sarcastic eloquence, for which he was so remarkable. He hoped his hon. and learned friend would not class him amongst the "pretending sentimentalists or the mock philanthropists, for he detested the cant of modern philosophy and mawkish sensibility as much as his learned friend could do, but he was confident that the humane feelings of the Quakers were as pure and genuine as their manners were mild and their lives were virtuous. Without going to the same length as the excellent and amiable sect alluded to, he was sure that every friend to humanity must be desirous of seeing the punishment of death abolished if it were practicable. He understood the object of punishments to be the prevention of crime, and if the punishment of death was not effective for this object, some other ought to be resorted to, 987 It would be presumptuous in an unlearned person like him, to interpose in the discussion of points which had been so ably treated by the gentlemen of the law who had addressed the House; and he should not have presented himself at all, if it had not been for his anxious desire to express his conviction that the Quakers were not deserving of the reproach of his hon. and learned friend, and to say that he concurred in the opinions of a body whom he so truly admired and respected.
§ Lord Althorp
said, that, in answer to the objection made by the hon. and learned Gentleman, the member for St. Mawe's, that this matter should be brought on so late in the Session, he could only remark, that the subject was not new to the House but had frequently been discussed before, and even in the present Parliament. On the other point to which the hon. and learned Gentleman had referred, he begged to state, that he had not communicated directly with the Bank of England on this subject, but he certainly had heard that some influential persons connected with the Bank of England entertained fears with regard to the effect of this measure. He, however, had no such apprehensions himself. The hon. and learned Gentleman opposite had referred to the case of Fauntleroy, and he would allude to it for a directly different purpose to that for which it had been brought forward by the hon. and learned Gentleman. He (Lord Althorp) now mentioned it to remind the House, that even notwithstanding the heinousness and great moral turpitude in that case, which certainly called for the severest punishment of the law, yet in that case the feelings of sympathy in this country were raised against the punishment of death. He was of opinion that a long continued and a disgraceful punishment would tend more to check crime than the punishment of death itself, and that a man like Fauntleroy would dread such a punishment more than death. He admitted the objection (and it certainly was an objection) taken by the hon. and learned member for St. Mawe's—namely, that his Majesty's Government were not prepared with any good salutary plan of secondary punishments; but this was a point he had always been inclined to give his best attention to; and though the subject did not immediately come within his official duties, he should continue to give it his consideration. In his opinion, the punishment of death ought only to be carried into effect 988 in cases where personal violence and injury had been inflicted, and on that principle he thought the feelings of the country were with him.
§ Mr. Sadler
supported the Bill. He had himself suffered from forgeries, but could never bring his mind to prosecute, from a feeling of the consequences that might ensue. It was the conviction of his mind, long before he had a seat in the House, that it was objectionable to punish with death the crime of forgery.
§ Mr. Poulett Thomson
could confirm the statement that the severity of the punishment for forgery prevented the due execution of the law. There had been cases within his own knowledge, where bankers and others had allowed forgeries to pass unpunished, owing to their repugnance to do anything that might make them incur the possibility of being obliged to prosecute capitally. If he was asked whether he would risk the increasing of the crime rather than continue the present mode of punishing it, he would say no; so deeply was he impressed with the necessity of preventing the crime, that he might vote in such a case for the punishment of death. But he was satisfied that capital punishment was unnecessary, and that secondary punishments would afford a much greater security. As to whether the Bank of England had any objection to this measure, he did not think that the Bank of England was the only party to be consulted, or any other body of men. Bodies of men were often anxious to shroud their individual responsibility by acting conjointly, and many persons would do that in a body which they would shrink from doing singly. He knew, however, that in the Bank of England there were some gentlemen opposed to the punishment of forgery by death. He was willing to go so far with the hon. and learned Gentleman as to wish that a secondary punishment could be found of more severity than we now had for forgery, though, considering the class of persons who were usually guilty of the crime, transportation and hard labour were great punishments.
The Lord Advocate
rose, rather in the character of a witness, to state that, from his experience in Scotland, the extreme and unmitigated severity of the law rendered it difficult to secure a conviction for forgery, than to make any observations on the Bill. He would, however, say of it, that it had been extended to Scotland in consequence of his recommendation, as he was anxious to avoid the anomaly of re- 989 taining the punishment of death in one part of the United Kingdom for the crime of forgery while it was abolished in the other. It was, perhaps, right that he should state to the House that by the common law of Scotland, death was attached to all those crimes which were called the graviora delicta; but the public prosecutor might mitigate or restrict the charge, and not proceed for a capital punishment. Formerly, the graviora delicta were commonly prosecuted capitally; but of late years it had become a matter of extreme difficulty to convict for forgery; and within the last four or five years, he and his learned friends had found it necessary, in cases of clear guilt, to restrict the libel to a minor charge, not affecting life. He would undertake to say, that in nineteen out of twenty cases during the last six or seven years, the public prosecutor had been obliged so to restrict the libel.
§ Bill read a third time and passed.