HC Deb 27 March 1832 vol 11 cc948-55
Mr. Ewart

rose to move for leave to bring in a Bill abolishing Capital Punishment in the cases of horse-stealing, sheep-stealing, and cattle-stealing, also in cases of stealing in a dwelling-house, no person being put in fear therein. He owed an apology to the House for personally venturing to introduce the subject to their notice; but he had originally taken it up as an independent Member of that House, and he was not aware at that time of the years of attention and labour which had been devoted to it by the hon. and learned member for Ilchester. (Dr. Lushington), and other hon. Members, to the benefit of the country, and to their own immortal honour. He did it simply on the principle, that an unduly severe punishment must be an extremely uncertain punishment—a principle which had been theoretically laid down by Beccaria more than seventy years ago, and which had been practically illustrated in our times by the positive experience of Mr. Gibbon Wakefield. But if this principle were true, that an unduly severe punishment was an uncertain one, how much more must an irreparable punishment be to an uncertain one? Such a punishment was the punishment of death. Many punishments were more severe: this, when once inflicted, was beyond recall. Hence it was, that prosecutors trembled at the punishment, that Juries hesitated, that Judges paused, and that guilt escaped unpunished, or rather rewarded with impunity. He should at once proceed to the point, and submit to the consideration of the House the Returns relative to this subject on their Table. It appeared that, in the year 1831, there were sentenced to death for sheep-stealing in England and Wales, 162 persons—executed one; sentenced to death for horse-stealing, 125—executed none; sentenced to death for larceny in a dwelling-house, 100—executed none. In the United States, he believed that none of those crimes were capitally punished; and none of them in France. But it might be said that this one capital punishment, occasionally given, tended to prevent the crime. He doubted the justice of executing a man for what others had been transported for. But he would admit that it was just; was it effectual? He knew instances of Members of that House, who, rather than subject an individual to even this contingency of capital punishment, waived the prosecution altogether. And it appeared on the evidence adduced before the Select Committee on Capital Punishments in 1819, that one of the witnesses declared that his land had been laid waste by sheep-stealing; that he would prosecute if transportation were the punishment, but never as long as it might be death. Mr. Bradford, a writer on the criminal law of America, fully confirmed this statement relative to the United States. It was his intention to propose to substitute the next secondary punishment on the Statute-book, which left the alternative of transportation, imprisonment, or solitary confinement. At the same time he wished the House to remember that this was open for consideration in Committee. With the permission of the House, he would proceed to state, that the capital sentences for crimes with respect to property, during the year 1830, amounted to 1,108; the executions only to eleven. Now, if we compared the certainty of execution in France with that of England, we should find that, while the sentences to death in England amounted to nearly 1,400 in the year 1830, the executions amounted to forty-six. In France, in the same year, the capital sentences were ninety-two, the executions forty-two. The same difference might be shown by going back for a series of years. Crimes punished capitally in France were also fewer, and more strictly defined, than those in England, Every one knew that the definition of burglary in England was not satisfactory. In France it was, under the name of "Vol avec cinq circonstances," most clearly defined, and did not confound the lesser with the greater criminal, as was sometimes the case in the English law of burglary. In America also, in the states of Maine and Massachusetts, arms must be borne, and assault be made by the prisoner. In America, in New Hampshire, only treason and murder are capital. In Pennsylvania, only murder in the first degree; in Louisiana, under the code of Mr. Livingston, no crime was capitally punished. He would not refer to the comparative state of European countries. They were amply given in the pages of Lucas, Ducpetiaux, De Tracy, and many other well known writers. But as a practical illustration within our own dominions (even of a barbarous country too), he would mention the Mahommedan law in Hindostan, by which, he believed, that murder only, or violent robbery, was capitally punished. In the East-India Selections, Mr. Metcalfe, the resident at Delhi, in the year 1815, writes, that in that district they never punished with death, and that it was in no degree necessary. The Statute-law of our country was, he was afraid, the fertile parent of most of our sanguinary enactments: the Common-law knew them not. The Committee on Capital Punishment, in the year 1819, stated, that for the first thirty years after the Revolution, the average proportion of convictions to executions was thirty-eight to twenty; in 1830, it was 1,400 to forty-six. Sir William Meredith, who represented Liverpool in 1777, stated, that in the preceding reign, that of George 2nd, no less than thirty-three of these capital Statutes had been passed; and he emphatically adds, that in his days the real hangman was the Member of Parliament. These severe enactments were, in part, the results of an imperfect Representative system—they were the weeds of the Statute-book, and showed the corrupt soil from which they sprung, a Legislature which represented not the wants and wishes of the people. It was wise, in a free Constitution, to show confidence in the people for whom it existed. If they were treated like political disturbers of their country, could they be otherwise than degraded slaves or discontented freemen? If the Legislature told them, by sanguinary en- actment on the Statute-book, that it suspected them to be prone to crime, could it hope to find them other than tame and silent victims, or audacious and incorrigible criminals? All example showed that, in a free country like our own, they would be the latter. Besides, it was important that, not only the sentence of the law, but the whole pressure of public opinion should bear down upon the criminal. But if enactments were at variance with the opinions of society, they excited an antagonist force and checked the influence and power of the law. If this were true in all stages of society, it was most true when society was in a disorganized state. A too severe Criminal Code, then, produced a set of men ever ready to act as the advanced-guard of anarchy and of revolution. It created a centrifugal force in society, which disturbed its balance and interrupted the harmony of its movements. He anxiously hoped that his Majesty's Ministers would assist in any amendment which was attempted. But remedial measures were not alone sufficient—preventive measures were indispensable. If there were any admonition which he wished to be thundered in the ears of every Legislature, it was this—"Educate your people: be not content with giving them a horror of the punishment—give them a horror of the crime also." A proper system of amelioration should begin in education, and end in prison discipline. This was the system laid down by Beccaria—this was the one suggested by Mr. Livingston, in his well known Report on the Criminal Code of Louisiana. This was the suggestion of his lamented friend Mr. Roscoe, a name which he might be permitted to allude to as a "memorabile nomen gentibus, et multum nostrœ quod proderat urbi." In conclusion, he begged to apologize for the length of time which he had detained the House; but he felt an inward satisfaction at having expressed his opposition, as an independent Member, to some portions of our code, which no time, no circumstances could justify—which could be palliated only when they grew up beneath the shadow of the darkest barbarism, or of the most unlimited tyranny.

Mr. Strickland

seconded the Motion, and thought that the House was much indebted to the hon. member for Liverpool for having brought forward this question, as the sanguinary state of the code of this country had long excited the surprise and reprobation of the other nations of Europe.

Mr. Lamb

rose to express his wish that the House would consent to give his hon. friend the member for Liverpool leave to bring in this Bill, though he could not pledge himself as to the course which it might be necessary to pursue. He thought, after the alterations in the Criminal Code made by the right hon. Baronet (Sir Robert Peel), there were not many capital offences the punishment of which could safely be lowered nor did he feel quite sure that the hon. member for Liverpool had chosen those offences which it was most proper to change with respect to their punishment. With respect to horse-stealing he had some doubts, for in that offence the article stolen was the very means of conveying the criminal from the scene of the robbery. With respect to stealing in a dwelling-house, also, they had to consider that the severity of the law, as it now stood, was chiefly aimed against those servants who should betray their trust—an offence against which the law was specially bound to guard, as the temptation was so manifest, and the facility so great; and, indeed, with respect to some of these offences, he was able to state, that there was an outcry raised by some against the Executive for not enforcing the law with sufficient severity. The main question, therefore, was, whether it was better to mitigate the law so as not to meet the justice of such aggravated cases, for the sake of ensuring a more certain punishment towards the whole of the offenders.

Sir Robert Peel

thought, before the House came to any decision upon the subject of the hon. Members Bill, the Legislature ought to take a wider and more extended view of the whole question of punishment for all offences. He thought there were matters connected with the Bill proposed to be brought forward by the hon. Member which were deserving of the gravest consideration, and it would be much better deferred until the whole question respecting secondary punishment was reviewed, to the end that it might be, in some degree, altered. With respect to the stealing in a dwelling-house, that crime sometimes presented itself, as the hon. Under Secretary had well observed, under the most aggravated circumstances. Those robberies were sometimes not only committed by the servants, but by means of a collusion between the servant and a gang of thieves. The hon. Gentleman said, "No person being put in fear therein." But, supposing a butler had the care of his master's place, and he admitted a gang of robbers into the house—they might come armed—they might steal, 4,000l. or 5,000l. worth of plate—and it might be owing to the mere accident of the family not being disturbed that no violence was committed. And did the hon. Gentleman think that the law ought to save from capital punishment the servant who thus put the property and the very life of his master in jeopardy? The House, however, appeared very little disposed at present to pay attention to the subject, and he should therefore, defer his other observations to a future stage of the Bill. He must, however, repeat, that, before the House took this step, they were bound to take a review of the state of secondary punishments in this country. They must also consider that, as civilization increased, the facility for the commission of crime increased more rapidly than the facility for the prevention of it. All these things, therefore, ought to be taken into account before any extensive alteration in capital punishments was made; though he did not at all mean to say that the time was not come for such an alteration to take place, he did not mean to say, that such an alteration ought not to take place at this time, but the greatest caution was necessary at every step, in order not to excite the prejudices of society against the alteration, by too rashly weakening the present protection of property.

Dr. Lushington

agreed with the right hon. Baronet that it was necessary for the House to apply itself to this subject in the most calm and deliberate manner. The hon. member for Liverpool proceeded on the presumption, as he understood, that the having so many capital offences on our Statute-book was productive of injury, instead of benefit, to society. He was not prepared to deny that the fear of death was operative upon men's minds to a certain extent: but, on the other hand, he was quite sure that this excess of punishment prevented persons from prosecuting, Juries from convicting, witnesses from giving their evidence fairly, and the Executive Government from carrying the laws into effect; the result of all which was, to hold out to the criminal the hope of a complete escape from punishment; for, instead of meeting with that certain punishment which was duly proportioned to his crime, he was acquitted by the Jury, and so met with no punishment at all. With respect to the picture which the right hon. Baronet had drawn, of a servant admitting a gang of thieves to rob his master's house, he must grant that, looking at it in the light of an individual offence, it was impossible to conceive a blacker crime—short of murder. But they were not legislating for individual offences: and even with respect to servants robbing their masters, he could remember, when the Earl of Mansfield prosecuted his servant for entering his lady's chamber, and stealing property to a considerable amount, what pains that noble Lord took to obtain the pardon of the criminal. He (Dr. Lushington) himself was once robbed by a servant, night after night, because that servant knew his disinclination to prosecute for a capital offence, and that he should be suffered to escape. He was happy to say, that, after living for many years by the most dishonest practices, went to the West Indies, became a clerk to a learned Judge, and subsequently obtained a situation under Government, which he held at the present moment. It was well known that the horror of capital punishment was continually operating in London and elsewere with respect to individuals who had been guilty of the crime of forgery. It was a matter of history that the punishment of death had never proved effective for the prevention of crime. Even in those early days when to death were added the most cruel tortures, as in the case of high treason, no one pretended to assert that the offence was thereby rendered of less frequent occurrence. And now, that general civilization had advanced, the Legislature must finally yield to the general feeling against the severity of punishment at present in force, he would conclude by observing that all he had stated was the result of the most deliberate consideration that he had ever given to any subject, from the year 1805 up to the present time.

Sir Robert Peel

did not mention the case of a servant robbing his master as deserving of death on account of the moral guilt of the offence, but, on account of the peculiar facilities and temptations that were thrown in a servant's way.

Lord Althorp

would not oppose the Motion of the hon. member for Liverpool; but he must say, that, until they had secured a better system of secondary punishments, he thought the Amendments pro- posed to be introduced into our Criminal Code could not safely be carried into effect.

Mr. Robinson

very much approved of the Motion of the hon. member for Liverpool, and was ready to give his humble assistance to remove those disgraceful blots, which, notwithstanding all the amendments of the last few years, still remained on the Statute-book.

Mr. Trevor

was much afraid that the breaches of trust, particularly among servants, would be much extended, if the punishment of death was abolished. The fear of the extreme sentence of the law might deter many from the commission of such offences, which a secondary punishment might not effect.

Mr. Hunt

supported the Motion of the hon. member for Liverpool, and thought the country was indebted to him for bringing the question under consideration, and he was sure the passing of such a Bill would make a very favourable impression on the minds of the people.

Mr. Cressett Pelham

said, wherever there were great temptations to crimes against property, as was the case in this country, from the state of society, sufficient checks ought to be established for the punishment of offences of an aggravated character, and the law ought not to be so far relaxed as to be unable to meet these. He begged, therefore, to caution the hon. member for Liverpool not to take away the terrors of offenders being liable to the heaviest punishment without discrimination.

Leave was then to bring in the Bill.