§ The House, on the Motion of Mr. Ewart, in Committee on the Bill for Abolishing Capital Punishments in certain cases.
Sir Robert Peel
, to a certain extent, agreed in the principle of the Bill; he was, at the same time, bound to say, with respect to one particular offence, from which the punishment of death was removed by this Bill, that he apprehended great evil might possibly arise from such a provision: he alluded to the offence of stealing in a dwelling-house, which stood on a very different footing from other offences enumerated in the Bill. There was a wide distinction between stealing in a dwelling-house, and stealing cattle. In the latter case, he had ever been an advocate for modifying; the severity of the law. At the same time, his view had always been, that such a modification to be effectual and permanent, should he gradual; the country then became reconciled to it, and the Legislature was enabled to judge of the effect of mitigation by cautious and safe experiments. He was by no means decided as to the policy of an immediate and absolute remission of capital punishment in the case of horse-stealing. That offence stood on different grounds from the offence of cattle-stealing. The moral guilt, indeed, was the same; but the inducements to the commission of the two offences did materially differ. In the case of the horse, the property was frequently more valuable, the protection less, and the chance of detection smaller; not only because the animal stolen offered the means of escape, but because from the demand for horses 196 in foreign countries—the facilities of exportation were at hand. However, if the House was of opinion that the punishment of death was too heavy for horse-stealing, he should not press any doubts that he might entertain upon the subject. It was impossible to deny that, in every case of an experiment in legal enactments, the result might turn out to be very different from what general expectation supposed it would be. Take the case of the Game Bill. He was as fully convinced as any one else that the time had arrived when the experiment should be made; but that experiment had not, he feared, proved satisfactory. To be sure, in consequence of the recent passing of the Act, an encouragement might have been given to poaching, which would soon diminish, and perhaps sufficient time had not yet elapsed to justify a comparison of the state of crime under the new law with the state of it under the old. There appeared, however, reason to doubt whether the legalizing of the sale of game would have the effect in diminishing poaching, which it was expected and intended to have. With respect to taking away the punishment of death for stealing in a dwelling-house above 5l., he was apprehensive that that might prove a dangerous experiment, and that the removal of the capital punishment might hold out a temptation to offenders. It should be remembered, that this was sometimes a very aggravated crime, accompanied with gross breach of trust, especially in such a city as London, where property to an enormous amount was frequently left in the care of servants. Such a case as this, for instance, might possibly arise—a gang of robbers might be admitted into a house, through the privity of a servant; they might be prepared for the commission of acts of the greatest violence (though, by accident, none in might take place), and vet, as there was no burglarious entry of the house, whatever might be the amount of property stolen, the lives of the guilty parties would not be hazarded. For his own part, he could hardly conceive a more serious offence than that which he had described; and when lie considered the facility with which crime was committed in the metropolis, he must say, that he looked upon this as a most dangerous experiment. He therefore trusted that hon. Gentlemen would reserve for themselves the power of making an alteration in the Bill, if it should be deemed proper.
§ Lord Althorp
admitted the importance 197 of the subject to which the right hon. Baronet had called attention. Stealing in a dwelling-house was certainly a very grave offence, but he did not think that the number of offences of that description would be diminished by rejecting the, proposed Measure. After giving it all the consideration in his power, he was of opinion, that the abolition of the punishment of death for stealing in dwelling-houses would not he productive of any of the mischievous Consequences anticipated by the right hon. Baronet. To have capital punishments multiplied on our Statute-books, for crimes for which the punishment was seldom or never enforced, was, in his opinion, highly objectionable; and it was chiefly on that ground he supported the Bill Dow under consideration. With respect to the Game laws, he thought there had not yet been time to ascertain the effects of the bill of last Session.
begged to give his best thanks to the hon. Gentleman who had introduced this Bill, which, he believed, would prove highly beneficial. He knew a good deal of the criminal practice in Ireland, and he could state, that for many years there had scarcely been a case of the crimes included within this Bill that had been punished with death. Indeed, he knew but of one person who had been executed for horse-stealing; and that was more than twenty years ago: that was a very melancholy instance: the Jury had recommended the man to mercy; but it so happened that the Judge at that very time resigned; and there being, therefore, nothing to require his return to Dublin, he neglected to transmit the recommendation to the proper quarter, and the man was, in consequence, executed. This was, certainly, a reason with him against leaving the punishment of the offender in the discretion of the Judge.
Sir Robert Inglis
thought, that stealing in a dwelling-house was no longer a capital offence, and that this part of the Bill was unnecessary.
The Attorney General
said, as the law stood at present, all stealing in the dwelling house was not punishable with death. Supposing that a servant let in a gang, and they found nothing to the value of 5l., that servant could not be capitally punished, though, surely, his offence would he quite as great as if the gang obtained a 10l. booty. It might be a fit question to con- 198 sider of a proper punishment to be awarded to such a conspiracy on the part of the servant; but he stated the law as it stood at present. Taking the law upon its general principle, he had always thought that its severity defeated itself. The right hon. Baronet had supposed a case, and he (the Attorney General), therefore, would suppose another. Supposing a man passed by, and saw the hall-door of a house standing open, and he went in and stole a great coat worth 6l. or 7l., that man's life would be forfeited according to the law; but, what was still more singular, if a servant was convicted, as a servant, of the same offence, the punishment would not be capital.
Sir Robert Peel
said, that it was impossible to look at the state of the criminal law, and of the prosecutions in this country, without, feeling a strong desire to improve the whole system connected with criminal prosecutions: but he must confess that he had found the greatest difficulties in the way of such general improvement. In looking at the state of the criminal law in Scotland, he had always considered that both the theory and the practice of it had much to recommend them; but then, again, the difficulty of introducing the customs of another country into this would be very great; so that it did not follow, even though it was conceded that the system was better in Scotland than in England, that it admitted of adaptation to the latter country. In Scotland there was this great advantage—that there was a public prosecutor, or, in other words, a person who never acted from feelings of anger or irritation—who never prosecuted vaguely or lightly, or allowed a person charged to escape through favour or partiality, or the unwillingness to incur the trouble and expense of prosecution. In this country, on the other hand, persons were generally disinclined to prosecute: when a man was robbed, his first impulse was probably to punish the offender; but, after three or four days' reflection, he began to weigh the cost of prosecution, both in money and time, and speedily came to the conclusion, that to exert himself for the purpose of convicting the culprit would be (to adopt a vulgar saying) throwing good money after had; and the consequence was, that there were few men so public-spirited as willingly to undertake the vindication of the law. Surely that was a defective system which threw upon an individual, already aggrieved by the loss of property, the serious additional expense of making a 199 public example of the thief. With respect to another branch of the subject, it was impossible to deny, that our state of secondary punishment was most inefficient. But, though it was very easy to make that assertion, it was, on the other hand, very difficult to introduce a more effective system. In the first place, he could not admit that the fear of death had no effect on the mind of a man about to commit an offence; it surely had, at least, as much effect in deterring him from the crime as it could have in deterring an aggrieved party from prosecution. But in what did the secondary punishments of this country consist? In imprisonment, and in transportation. Now, take the case of Fauntleroy, for instance. Would his case have been adequately met by either of these punishments? Supposing he had been imprisoned, and supposing he had contrived to retain (which was extremely likely) a large portion of his ill-gotten property, it would have been difficult to prevent the application of it, in some way or other, to his advantage. If he was visited with more than ordinary severity, and he conducted himself plausibly, he would become an object of public sympathy, and of constant solicitation in his favour. If, on the other hand, he had been sent to New South Wales, could he have been subjected there to any degrading species of servitude? Would it not have revolted public feeling to sec a man of talent and education filling a menial office? The immediate spectacle of inflictions so unsuitable to the previous habits and acquirements of an offender soon awakens a sympathy, which is more powerful than the feeling of resentment at his crime, or even than the sense of the abstract justice of the punishment. With respect to the proper punishment for stealing in a dwelling-house, he must again take an opportunity of saying, that, in his opinion, the Legislature ought to take the matter most seriously into its consideration before it consented to abolish the punishment of death in all cases coming under this head. Supposing a servant opened his master's door to a gang of thieves, and 3,000l., or 4,000l. worth of property was stolen; was not that a most serious case? If the same robbery was committed by means of a burglary, it would subject the offender to capital punishment; was not the moral guilt, at least, as great in the case which he supposed, wherein there was a gross breach of trust; and was not the danger to society, at least, equal? The hon. and learned Gentleman 200 had put the case of a man stealing a great coat: that that offence should be punished with death was, certainly, very revolting; and he, for one, would give his ready consent to such an alteration of the law as would preclude the possibility of such an infliction. But this Bill went much further; it attempted no distinction, but exempted, without qualification, the crime of stealing in a dwelling-house, however aggravated, from the punishment of death. From his experience of the state of crime in London, of the desperate characters it contained, and of the inefficiency of secondary punishment, as at present administered, he certainly must confess, that he viewed this alteration in the law with apprehension; and he thought that the evil of retaining the capital punishment, at least for the most aggravated cases of robbery in a dwelling-house, was less than the probable evil of encouraging desperate offenders to the commission of a very serious crime, by the assurance of complete indemnity so far as their lives were concerned.
§ Mr. Godson
thought it was highly desirable to remove any punishment from the Statute-book which was never carried into execution.
§ Mr. Fowell Buxton
said, the right hon. Baronet had spoken of prosecutors being influenced by two motives, and that it was difficult to say how much either of these induced them to save the life of a criminal. These were, their respect for human life, and the desire to save their own pockets. But what could the right hon. Baronet say of Judges and Jurors who also agreed in many cases to do what they could to spare a criminal? In their case their pocket was not concerned, and they could only be actuated by the desire of saving human life. He had formerly quoted in that House many instances in which Jurors and Judges combined to bring in the value of an article which really was worth 30l. or 40l., to be of the value of 10d. or 15d. or 20d. In all such cases—and it was well known that they were numerous—there could be no other motive than that of the desire to save human life. He supported the Bill.
Mr. Charles W. Wynn
hoped that the anxiety he had always displayed to promote the success of those laws which went to spare human life, would be an apology to the Committee for his trespassing during a short time on their attention. The arguments which he had heard on time subject, seemed to him rather to prove the ne- 201 cessity of a more specific classification of crimes, and adaptation of punishment, than the propriety of altogether abolishing the punishment of death. In general, he thought that punishment ought not to be inflicted; but now to abolish it, to repeal all the laws which inflicted it, would be acting not a bit more wisely than the Legislature formerly acted, when it inflicted death indiscriminately on the boy who put his hand through a hole in a window, or the man who quietly opened a door to steal, and the midnight burglar who broke into a dwelling, and was ready to assassinate those who opposed him. He agreed, therefore, with his right hon. friend (Sir Robert Peel), that it was not desirable to take away the capital punishment from all offences, but it was desirable to limit it to those burglaries which were committed by night. As to horse-stealing, which was a capital offence, the punishment was made great in proportion to the facility with which the offence could be committed, and the greatness of the temptation. That was not, in his opinion, a correct principle. Those circumstances showed that the crime might be committed without much depravity, and consequently, they were arguments for making the punishment comparatively small. As a means of preventing this crime, he thought it was desirable that horses should only be exported from particular places, and that books should be kept, describing every horse exported. He was aware that such precautions would not wholly prevent the crime, but they might render the successful commission of the offence much more difficult. In his time he only remembered one case of the punishment of death for horse-stealing being inflicted, and that was inflicted rather for other offences than for the crime of horse-stealing—that was the case of the man Probert, who had stolen, he believed, but one horse, while other persons who had more frequently stolen horses were pardoned. He objected to the principle of making value the criterion of offences. To every plan of remedying these evils, however, some objections might be made. Secondary punishments might be applied, but objections were made to exposing a well-educated man to work with felons; and the circumstances which were really an aggravation of such a man's offences, were pleaded in mitigation of his punishment. Perhaps branding might be usefully employed as a secondary punishment, and it might 202 be particularly applicable to such a person's offences. Solitary confinement was only a punishment in some cases, and in some was found to be no punishment at all. Imprisonment with other felons only led to a general corruption of manners, and to the commission of greater offences. The propriety, however, of abolishing the punishment of death in all the cases stated in the Bill, must depend on the efficacy of the secondary punishments recommended by the Committee now sitting on that subject. On the whole, he was favourable to the Bill.
agreed with the right hon. Baronet (Sir Robert Peel), that the general increase of crime deserved the most serious attention of Government, but those offences which were enumerated in the Bill had not increased. In cattle and horse-stealing, for instance, there was some decrease since 1825. This was a consolatory reflection, for those offences were carried on in general by gangs of men, who entered into combinations, and were prepared for other offences. Their schemes showed deliberate wickedness. Sheep-stealing certainly had increased, but that was a crime which might be perpetrated without any combination, and by labourers, tempted by a state of temporary distress. He was happy to say, notwithstanding the increase of crimes, that the number of female malefactors had not increased; and, indeed, since 1829 the number had rather decreased. This was, also consolatory; for when the female part of the community was in a wholesome and sound state, there was good reason to hope, their influence was so extensive, that the whole would improve. In general he approved of the Bill; but with respect to stealing in a dwelling-house to the value of 5l., he admitted that he had entertained some doubts as to the propriety of taking away the punishment of death for that offence. That crime was the only one depending on the criterion of value that was now punished with death; and it would be, he thought, desirable to get rid of that. Nothing was, in his mind, more disgusting than the shifts to which Judges and Jurors had recourse in order to reduce the value of the articles stolen. It had been suggested that it would be a good plan to raise the value to 100l.; but he doubted if that would answer. In all cases it was assumed, that the punishment of death prevented crimes. Admitting that it did in some cases, did no worse consequences follow from it? If it were 203 not inflicted according to the public sentiments, did it not revolt the people against the law itself? If it in no case prevented crimes, of course it ought in no case to be inflicted. Under such circumstances, let them, he would say, at least sweep away the punishment of death in every case in which its infliction was not supported by the public sentiments. After much reflection, and after admitting that he once had some doubt on the subject, he was prepared, without any reluctance, to vote for the repeal of the punishment of death in the whole of the cases mentioned in the Bill.
§ Mr. John Campbell
, after much experience, was prepared to say, that he thought this Bill highly beneficial. The law was now in a bad state. The capital punishments were not ordered, as some hon. Members seemed to suppose, to be remitted at the pleasure of the Judges. During the reigns of Anne, of George 1st, George 2nd, and the early part of George 3rd, almost all the persons convicted under these laws were executed; but it was not found that the crimes decreased. With respect to sheep-stealing, it was said of Mr. Justice Heath, that he always left a sheep-stealer for execution, from which it came to be rumoured that the learned Judge himself had a favourite flock of sheep, to save which from depredation he adopted this course. This, in fact, was not true, for the circumstance arose from that learned Judge being always rather fond of severe punishments. With respect to horse-stealing, he knew of but one case of death being inflicted for that, and that occurred at Stafford. He believed the Judge ordered the punishment to be inflicted because the man was found with a pistol in his possession, though that arose from an accidental circumstance, and it was not proved that he had any intention of using it. With respect to stealing in a dwelling-house, if a servant got up in the middle of the night, and admitted a gang of thieves, he contended that both he and they were guilty of burglary; because, the servant having no authority to open the door, all the parties stood in the same situation as if they had broken into the house; so that the objection on the 204 score of there being no adequate punishment for the servant's breach of trust, did not hold good. But, at all events, the Legislature was bound to choose the lesser of two evils; and he would ask hon. Gentlemen, whether they were content that the punishment of death should be awarded against a man who ran in at an open street-door and stole a great coat from the hall? Since he had gone the Oxford circuit, it had been melancholy to observe how much crime had increased; though from what cause that increase had arisen, he would not take upon himself to pronounce. With respect to secondary punishments, there was a great difficulty experienced. Branding would, he believed, only excite the commiseration of the public, and it would for ever exclude a man from society.
said, that the observations which had been made by the right hon. Baronet opposite pointed to a great defect in our mode of legislation, namely, that of classing a variety of crimes, differing in degree, under one common denomination. For instance, it seemed absurd that he who entered a house armed at night, prepared to commit murder, if necessary, in the execution of his purpose, should come under the same class of offenders as a child would who, after dark, should break a pane of glass and steal a cake. This was a point well worthy the attention of Government, and he hoped that something would be done to improve the laws, by making the punishments enacted by them bear some proportion to the nature and character of the crime. With respect to the particular crime which had been alluded to principally in the course of the Debate, namely, the crime of stealing in a dwelling-house—he admitted there were cases of aggravation, such as were stated by the right hon. Baronet; but still it must be recollected, that the crime was not one likely to lead to personal violence, and as he was averse to making the amount of value a criterion in case of life, he should support the Bill in its present state. With reference to what had been stated by the right hon. Baronet, in regard to secondary punishments he thought the difficulty of making them effective had been over-rated. In the case of Mr. Fauntleroy, of whom it had been said, that under any system of secondary punishments he would be living in luxury, he would ask, could no law be devised which should prevent that? and further, how could these luxuries be obtained, when it was known, that by the commis- 205 sion of such an offence as that for which he suffered, his property would have boon forfeited? He felt a great objection to the present law, on account of the large discretion vested by it in the Judge. Practically, the law was exactly in the same state as if it were to be enacted that the punishments for the crimes of horse-stealing, sheep-stealing, and stealing in a dwelling-house should be transportation, but with a proviso that the Judge at his discretion might increase the punishment to death, Would the House consent now to enact such a law? If it would not, why retain a lays which, in practice, did the same thing? Allusion had been made to the difficulty of finding prosecutors. He believed that the Bill of his hon. friend tended to remove that difficulty, by making the enactment of the law more conformable to the enactment of the and humane spirit of the people of the country.
Mr. Cutlar Fergusson
said, it had beet proved by Sir S. Romilly, that in the early period of the history of these laws two-thirds of all the persons convicted under them were executed, while at a later period not one-eighth of the person convicted were capitally punished. He thought it extremely desirable to limit the discretion of Judges, which must be done by classifying the laws. They were necessarily intrusted with mach discretion, because the Legislature had jumbled many different offences under one head. That system was defended on the ground taken up by Dr. Paley, who praised the English law because it swept into the net of crime every offence which merited the punishment of death. But Sir S. Romilly had demolished that statement by showing that such was not the object of these statutes, but it was intended to carry them into execution. Sir S. Romilly had mentioned a curious instance of the manner in which these laws were executed. It occurred on the Norfolk circuit. Two men broke into a poultry-yard, and stole some fowls; one of them was apprehended, and the other absconded. The one who was taken up was tried before Lord Loughborough, and sentenced to a few months in prisonment. The other, who had absconded on hearing this, surrendered. Mr. Justice Gould presided at this trial, who was amiable and humane man, but he had for med a theory that persons who began by these small crimes generally ended by committing great crimes, and he sentenced the second man to seven years' transportation. 206 What a spectacle of the law did this afford to the public of that place, who saw as one man was coming out of prison the other sent off to Botany Bay. The system he considered every way wrong. To how much perjury, too, did our system in this respect lead? Parties in the witness-box did not give a true account of the transactions which they were to speak to, in order that the criminal might escape the capital punishment; and the Jury often violated their oaths by finding a thing to he worth only 39s., which they knew to be worth more than 40s. Such practices must produce the most injurious effects, by accustoming the public to perjury. It was most important, therefore, that this Bill should follow up the labours of the right hon. member for Tamworth. to whom he (Mr. Fergusson) gave infinite credit for what he had done. He had been the first successfully to attack old abuses. At one time, every amendment of the law was declared, even by Judges of the land, to be revolutionary. When the Bills of that great man, Sir Samuel Romilly, were introduced into the House of Lord they were denounced as having a revolutionary tendency, which would prove to be destructive of all property. That great man did not live to see his plans carried into effect; but the labours of his (Mr. Fergusson's) hon. friend would now give the country that satisfaction. He rejoiced that the House had received this measure without a dissentient voice; and he trusted that the Bill would not fail to pass into a law. He would recall to the recollection of the Committee that this was not the first time the House had assented to the principle of this; for Sir Samuel Romilly's Bills had passed that House, and were only lost in the Lords. This principle was now well understood by the country, and its success would give general satisfaction. He was not one of those who pretended to say, that society had no right to visit any crime with punishment; for society had a manifest right to do what was necessary for its own preservation; but a proper case ought always to be made out, to justify the infliction of a given punishment. In his opinion, the stealing of horses or cattle might be accompanied with circumstances that should call for the punishment of death; and, in point of fact, horse and cattle stealers never suffered death for those specific offences, but for something else which they had done. The Judge indicted the punish- 207 ment, but he was guided by the representations of the Magistrates or others, as to the general character of the prisoner. If a man were tried for some offence, and acquitted, should he be supposed guilty by the people, his character became bad; and if he were afterwards convicted of horse-stealing, he did not suffer death for that offence, but on account of his previous bad character. This must confound all notions of right and wrong in the public mind. The right hon. member for Tamworth had done much to classify offences, but Sir Samuel Romilly was the first who had entered into the philosophy of our legislation. He trusted that this would only prove the commencement of the adoption of his plans, and that we should have a criminal code, as remarkable for its mildness as for its efficiency. With respect to what had been said on the subject of a public prosecutor, there could not be a doubt, that in many instances, such an officer would be of exceeding great use. At present a man was indicted for grand larceny, petty larceny, or a misdemeanor, just as it might please the person prosecuting him. Hints in this and other respects might advantageously be taken from the law of Scotland. There a public officer was responsible for all crimes being punished; but allowed no person to prosecute from mere vindictive motives. He would recommend Government to follow that example and appoint a public prosecutor.
§ Mr. Crampton
wished to observe that the cruelty which had been justly attributed to our criminal code was alien to the common law of England. It was by the statute law alone that such misappropriate punishments had been enacted; and experience had proved, that the effect of extreme punishments was an increase rather than a diminution of crime.
wished to draw the attention of the House to the beneficial effects of mild but certain punishments, as exemplified in the United States of America. There the punishment of death was never inflicted, except for murder; and perhaps in no country did there exist so little crime. When it was found in England that crimes increased, notwithstanding the severity of our punishments, why did we not take instruction from the example set us by America. Entertaining these sentiments, he was happy that the Bill on the Table was about to pass into a law. He must take that opportunity of com- 208 plaining of the manner in which the colonial authorities remitted the punishment of those who were transported to New South Wales. If it were known that every individual who was transported to that country would be compelled to serve out the time of his sentence, and would be kept to hard labour during the whole of that period, the rigid enforcement of that secondary punishment would have so salutary an operation upon the fears of offenders, as to do away with the necessity for the punishment of death altogether. He was not one of those who would object to the abolition of the punishment of death because our secondary punishments were defective, inasmuch as he firmly believed those defects to be mainly attributable to those whose duty it was to enforce those punishments.
concurred in the praise which the hon. member for Middlesex had bestowed upon the criminal code of America, and hoped that we should follow her example, by almost entirely abolishing those capital punishments which had proved to be so inefficacious.
begged to ask the hon. Member opposite, who was connected with the Home Office, a question relative to the mode in which the sentences of transportation were carried into effect in New South Wales and Van Diemen's Land. The hon. Member would probably be surprised when he told him, that he had received such information on this subject as to impress him with the belief, that in a great number of cases where individuals were sentenced to transportation, they found means to make interest with the Governor, in some way or other, and, in nine cases out of ten, the punishment to which they were sentenced was rendered wholly ineffective, and they escaped from it altogether. In making this statement he must be allowed to observe, that his remarks applied chiefly to that class of persons who were supposed to belong to the respectable and middle classes in England, and who were sentenced to transportation for such crimes as forgery and the like. If, however, such a system were suffered to go on, he no longer would credit the view which some persons in England took of a sentence of transportation. He trusted, therefore, that if it was the intention of the present Government to sanction the introduction of a system of secondary punishments, they would take care that no means should be used to render that system inoperative.
was not aware of the existence of any partiality which had been shown towards persons who, having moved in a respectable circle in this country, became subject to a sentence of transportation to Sydney. He was of opinion, that those persons who, from such crimes as forgery and the like, had incurred the penalty of the law and of transportation, ought not to be sent to the colony of New South Wales; sonic other mode of punishment ought to be adopted towards them, either in the Penitentiary, or in some other of the home prisons, for at present, when a person who had once moved in a respectable circle was convicted of forgery or fraud, he generally looked forward to his sentence of transportation as a means of enabling bin' to fly from a country where he met with shame on every side.
§ Clauses agreed to. House resumed.