HC Deb 16 April 1833 vol 17 cc156-78
Mr. Lennard

, in rising to submit his promised Motion, said, that when his hon. friend, the member for Middlesex, some weeks ago, presented the London petition for the improvement of the criminal code, they were reminded, and very properly, of the great improvement which had already been made in it. Although he fully admitted that, yet he thought it could not be denied that much still remained to be done before the criminal code of laws could be said to be in a satisfactory state. The more the public were accustomed to consider the subject of criminal jurisprudence, the more anxious did it become to remove all traces of that sanguinary character which were impressed on it in those times when, in the words of Mirabeau, "blood, and nothing but blood, and pounds of flesh," were required for every offence. He wished the Government had leisure to undertake an entire revision and reform in the criminal code. It seemed to him that such a work could be best done by the Government. But there were many Gentlemen in that House whose opinions were entitled to great authority who entertained a different opinion, and who thought that the necessary improvements in our code were best made by the exertions of individual Members bringing forward motions for such Amendments as to themselves might seem most convenient. He had therefore determined to bring under the consideration of the House the state of the law in regard to two offences, respecting which he believed there could be no doubt that the law ought to be changed. But the change he should propose was rather nominal than real. The laws denouncing punishment of death on the crimes of housebreaking with larceny, and stealing in a dwelling-house, any one therein being put in fear, had long been all but dead letters in the Statute-book. They had been for many years, and they could now be, but very rarely executed, and they seemed only to be left on the Statute-book as a remnant of the barbarism of former times. Looking at the returns, it would be seen that for the crime of housebreaking during the last seven years, out of every ninety-one in England and Wales who had been convicted, not more than one had been executed. Taking the last two years, the proportion of executions to convictions was still less. In 1831, out of 517 convictions there had been only one execution. In 1832, out of 583 convictions, there had been only four executions; and in this latter case he believed it would be found that those which were stated to be executions for housebreaking were, in reality, executions for burglary. He had been informed that this was the case, on authority in which he placed the greatest confidence. Now, during the same two years in London and Middlesex, although there had been 122 convictions for this offence, there had not been one execution. It was true, that it was stated, that in the year 1832 one execution had taken place, but that was a mistake. The execution alluded to was that of Drewitt, and his offence was certainly not housebreaking, but burglary. Of the other offences, namely, robbery, &c., no distinct mention was made of it in the returns, but he supposed it was included under the general head of larceny, &c. And with respect to that offence, what did the returns show? Why, that out of 867 persons convicted of that offence in England and Wales, fourteen only had been executed. In 1832, out of fifty-nine persons convicted, none were executed. In 1831, out of 113 who were convicted, only one was executed, and so on. Again, in London and Middlesex, during the last three years, there had been but one execution; and during the two years preceding the last three years, there had been but one execution in each year. Here, then, was expressed, in the strongest possible manner, what Beccaria called the tacit disapprobation of the laws in the non-execution of them. If in the time of Sir Samuel Romilly it had been admitted to have been a grave charge against our laws that not one in twenty of the persons convicted were executed, what could be said of a law of that sort where not one in ninety sentenced to die was executed? In such a state of things it seemed absurd to pretend that the law could be any terror to evil doers. The criminal, where the chances were so greatly in his favour, was sure to calculate on the chance of escape. But such a state of the law was a terror to the injured and the innocent. Those who had made inquiries into the subject knew that when, in cases of that sort, the law was allowed, as it was said, to take its course, the sure result was to make many persons more unwilling to prosecute than they were before, to increase the number of acquittals, where there were prosecutions, and consequently to bring about that state of things so well described by the present Archbishop of Dublin, who said, that he met with instances in his own neighbourhood of persons of the best character not only refusing to prosecute, but labouring in every way to promote the escape of the guilty because the law denounced death against the offences, and they could not bring themselves to incur even the remote and almost imaginary risk of exposing a thief to that fate. He held in his hand some tables which proved, beyond all possibility of contradiction or doubt, the fact of the unwillingness of Juries to make themselves instrumental in giving effect to the sanguinary enactments of our code. Anything on this subject, he was aware, might be looked upon as a work of supererogation, so well ascertained was the fact; but it was so clearly and unanswerably established by these tables, which had been drawn up with great care and labour by Mr. Wrightson, formerly a Member of that House, that he was really anxious to trouble the House with them for a few minutes. A comparison was made of the total number of acquittals on capital charges with those on non-capital charges, during the seven years ending 1831, from which it appeared that in England and Wales the centesimal proportions of acquittals to commitments on capital cases were twenty-eight, while on non-capital charges the acquittals were only ten, the difference between the two being ten. Thus in England nearly eleven more out of 100 committed for trial were acquitted on capital than on non-capital charges. Again, in London and Middlesex, it appeared the centesimal proportions of acquittals to commitments in capital cases was forty-four; ditto, in non-capital cases, twenty; the difference being twenty-four. Why was this? If they looked at the number of cases in which executions took place in London and Middlesex, and compared them with the number in England and Wales, the cause would be apparent. In England and Wales five out of every 100 were executed; in London and Middlesex ten were executed. The greater probability that the last penalty of the law would be inflicted in the latter case made Juries more reluctant to convict, as had been observed by Mr. Wrightson, the author of those statements. Again, they had tables giving the centesimal proportion of executions to convictions, and the centesimal proportion of acquittals to commitments for the crimes of robbery, burglary, and housebreaking, in England and Wales, and in London and Middlesex. The first table was for England and Wales, the second for London and Middlesex; embracing a period of twenty-one years, from 1810 to 1830. Looking at the first table, it appeared that, throughout the whole of that period, in England and Wales, the executions for robbery had been much more numerous than for the other two crimes in the table. The acquittals for robbery had been much more numerous also. In the first period the proportion of executions to convictions had been—for robbery, fourteen; for burglary, thirteen; for housebreaking, three. The proportion of acquittals for the same offences had been as 36, 27, 22; for the second period the executions were as 12, 6, 1; in the third period the executions were as 6, 3, 1; the acquittals were as 37, 21, 19. Again, burglary had been punished with death less often than robbery, but more often than housebreaking. For instance, in the first period the executions for burglary and housebreakings were 13 and 3—the acquittals were 27 and 22; in the second period the executions were 6 and 1—the acquittals were 23 and 16; in the third period, when the executions were 3 for burglary and I for housebreaking, the acquittals were 21 and 19. Again, comparing the second period with the first, a considerable diminution was found to have taken place in the number of executions for all the three crimes in the tables. A corresponding decrease would be remarked in the number of acquittals; in the first period the number of executions being as 33, the number of acquittals were as 85; in the second period, the executions being as 19, the acquittals fell down to 60; in the third period, the executions for burglary declined in the proportion of 6 to 3, and the acquittals for that crime declined also. The second table showed, as was observed by the author of those tables, the reluctance of Juries to convict of capital offences in a manner still more striking and more conclusive. In London and Middlesex robbery presented the greatest number of executions and the largest number of acquittals; the executions for robbery, burglary, and housebreaking being, in the first period, 5, 3, 1—the acquittals 37,22, 18; in the second period, the executions being as 13, 8, 5, and the acquittals as 49, 34, 31. It should be observed from that statement, that in housebreaking, where there was the smallest number of executions, there was also the smaller number of acquittals, while, in burglary, a medium number of executions and a medium number of acquittals. Now, there was one other view which these tables presented. It appeared that the executions in London and Middlesex, in proportion to the convictions, were—for robbery twice as numerous, for burglary nearly three times as numerous, for housebreaking five times as numerous, as in England and Wales. What was the effect? The acquittals in London and Middlesex, in proportion to the commitments were, during the last seven years, one-third more numerous than in England and Wales, and that in each of the three crimes about 12 more out of every 100 escaped in the former than in the latter. He had troubled the House with these statements because they' proved, in the clearest manner, the repugnance of Juries to find persons guilty of offences punishable with death; and he agreed with the very ingenious author of those statements, and he thought the House would agree with them, that no further proofs could be wanting. What, then, was the effect of attempting to restrain crime by punishments which the public felt to be excessive? Why, it secured impunity to crime in a great many cases where it ought to have been visited with a moderate punishment. With respect to the crime of housebreaking, the law had lately been made more severe even than it was formerly. Under the old law it was necessary that property to the value of 5s. should have been stolen; but by the Act introduced by Sir Robert Peel that was altered, and a stealing to the smallest possible amount constituted the capital offence. Why was that course taken? He did not recollect any reason which the right hon. Baronet gave for it. It occurred to him, that it might have been done because Juries were in the habit of finding the value of the property stolen was much less than the value required to constitute the capital offence. If this was the intention of the right hon. Baronet, he had failed, as men ever would fail who attempted to legislate without reference to the public feeling. Juries could not now secure the escape of the criminal by finding the property stolen to be of the value of 4s. 11¾d., but they effected the same object by a verdict of stealing only. A similar failure had attended another of the enactments which formed part of the Bill of the right hon. Baronet, and he mentioned it in order to illustrate and prove the general principle which he was advocating. By the old law privately stealing in a dwelling-house to the value of 40s. was a capital offence. The right hon. Baronet, acting on a contrary principle to that which he had pursued in the case of housebreaking, raised the value to 5l. Under the old law, Juries were in the habit, in a great number of cases, of finding the property stolen under the value of 40s.—namely, 39s. And what did they do now? Why, they found it to the value of 99s. A great deal had been said, at different times, upon the atrocious and dangerous character of the crime of burglary; but there were two offences confessedly of much less criminality and danger, to which the law awarded the same punishment that it did to a higher and graver offence. There could not well be a stronger instance, although the Statute-book abounded with similar ones, of the utter disregard of principle in the formation of the criminal code. While it was so—while it was thus capricious, and therefore unjust—could it be expected to obtain the respect of the public, or be effective for the suppression of crime? Was it not disgraceful to the Legislature to retain the capital punishment in such cases as those where the offence was comparatively a small one, while in other states they were making the experiment whether the punishment of death might not be dispensed with altogether? A writer, speaking particularly of the prisons of Pennsylvania, said, there was the best of all evidence—demonstrative proof—that brutal treatment, hanging, and gibbeting were neither the most economical nor the most efficacious, as they were certainly neither the most humane nor the most enlightened modes of punishing crime, or reforming society. Other states had been induced to follow the example so successfully set by Pennsylvania, and up to that time with the best effect. Every one knew, too, that the punishment of death had been abolished in Tuscany for a period of twenty years. It was revived by the authority of Buonaparte, and had not since been entirely abolished, though it was very rarely inflicted. But what was perhaps not so well known was, that during a period of sixty years in that state, taking three periods of twenty years—the twenty preceding the abolition, the twenty during which it was abolished, and the twenty subsequently—fewer crimes had been committed during the period of the abolition than in either the preceding or the subsequent periods. It was one of those cases which, as a matter of history, might appear more surprising than fiction. But he would mention a case which must come home to themselves and to their own feelings. It was well known that during the time that the amiable and kind-hearted Sir James Mackintosh (a name never to be mentioned without feelings of deep regret for his loss) was Recorder of Bombay, (a period of seven years), the punishment of death was entirely discontinued. If the experiment ever was to fail, its failure might have been expected in such a place as Bombay—a crowded Indian sea-port, composed of a mixed, and even shifting population. But what was the result? It had been most successful, for Sir James Mackintosh declared from the bench in his last charge, when he was going to return to England, that the district had been governed without one capital punishment, and with no increase of crime. He, however, was not at that moment advocating any such extensive alteration in the laws of this country; all he asked was, to make the written enactments conformable to what, with a few exceptions, was the actual practice. If he obtained leave to bring in a Bill, he should propose to abolish the punishment of death altogether for these offences, and in place of death to give the Judges the power at their discretion of punishing the criminal by imprisonment or hard labour, or by transportation for seven or fourteen years, or by imprisonment and hard labour first, and transportation afterwards. He was convinced that, under such a law as that, crimes would be much more certain of being punished than they now were, which every one would admit to be the great object to be aimed at in all legislation with a view to its efficiency. No one could have looked into the subject without being aware of the great increase of crime in late years. He hardly supposed that would be used as an argument against his Motion. But those crimes had increased, not only in spite of, but, as he thought, because of, the present injudicious system of criminal jurisprudence; but, be that as it might, the fact, though to be deplored, was what no man could be surprised at. What had been done to check the increase of crime? Almost nothing. We had, perhaps, the most inefficient police in the world. It was true, that in the metropolis there was a police, founded, as he thought, on some wrong principles, being too much dependent on the Secretary of State for the time being, but still an efficient police; but, throughout the country generally, there was nothing which deserved the name of a police, and consequently one of the great means of preventing crime was wanting. Then, with respect to our gaols, we had good laws it was true, but they were, in many cases, shamefully neglected, and even in one of the prisons in this metropolis, he was told there was hardly anything which deserved the name of classification of prisoners observed in it. Again what had they done for the improvement or education of the people? So far from having attended to that subject, they had allowed a whole generation to grow up in the manufacturing towns under circumstances which made it impossible for them to obtain any mental improvement whatever. Neither should they overlook the effect of such laws as those now under consideration in demoralizing the people. He could conceive few things more prejudicial to the morality of the people, or to the interests of justice, than the practice of Juries finding what had been called compassionate verdicts in opposition to the strongest evidence, and, in other words, uttering a falsehood—committing perjury for the purpose of avoiding giving effect to the law. The Legislature had begun to alter this system, but it must go on still further. He knew the reform which he was then proposing was a very trifling one and went but a very little way towards the accomplishment of those objects, but if it was adopted it would at least cure the anomaly of treating cases of petty theft with the same severity as murder and parricide, and would enable prosecutors, witnesses, and Juries to punish guilt in many cases, which they would not do at present, without violence to their feelings and consciences. The hon. Member concluded by moving for leave to bring in a Bill for the repeal of so much of the 7th and 8th of Geo. 4th, c. 29, s. 12, as enacts, that if any person shall break and enter any dwelling-house, and steal therein any chattel, money, or valuable security, to any value whatever, or shall steal any such property, to any value whatever, in any dwelling-house, any person therein being put in fear, every such offender being convicted thereof shall suffer death as a felon.

The Solicitor General

did not by any means vise to oppose the Motion of his hon. friend. On the contrary, no object was nearer his heart than that the punishment of death should be abolished where-ever it was found practicable to abolish it; although he was not sanguine enough to believe that it would ever be possible to abolish it altogether. Crimes of violence, he feared, they must continue to be under the painful necessity of visiting with death. For murder, for burglary, for arson, for all crimes which threatened life, it seemed to him that the punishment of death accorded with the natural feelings of man. Until two years ago the criminal code of England was one of unexampled severity-But it must not be forgotten, that very important measures had been adopted for the purpose of diminishing that severity. He was happy to say, that since his Majesty's present Government had come into power, in the course of the last year, the offences of coining, of forgery, of sheep-stealing, of horse-stealing, of stealing in a dwelling-house, all of which had formerly been capital, had been made not capital offences. He felt the country was under considerable obligation to the right hon. member for Tamworth for the great efforts he had made in ameliorating the criminal code of the country; and he was glad that that right hon. Baronet was absent, as it afforded him a more fitting opportunity of expressing his sincere gratitude to him. But how it came to pass, that the criminal law, notwithstanding a wish for its amelioration, had been made more severe upon certain points, he was at a loss to conceive. Yet so it was, that, as the law now stood, if a boy were, in passing a pastrycook's shop, to take a fancy to a bun or a cake, and put his hand through the glass of the window to get possession, that would be construed into a breaking and entering, and be looked upon as a capital felony; or, if he were to break the window with a stick, and put it in, that also would be a constructive breaking and entering of a similar description. He was glad, therefore, that his hon. friend, the member for Maldon, had drawn the attention of the House to this subject, as it was right that the law, in so far, at least, should be amended. Upon other parts of the Motion, however, he must confess that he entertained strong doubts. If, for instance, a person or persons entered a house with intent to steal, and put the inhabitants in bodily fear, who would venture to say, that that ought not to be considered a capital offence? Highway robbery was looked upon as a capital offence, and was so admitted by the hon. Member who introduced the Motion, because the party attacked was placed in bodily fear of his life. Why, then, should it not be considered a capital felony to enter a dwelling with intent to rob and place the inmates in equal fear? Upon these grounds it was, that he should, in the future stages of the Bill (should it be introduced), suggest that its provisions should not go further than related to breaking into a dwelling-house in the day time, where the parties were not put in bodily fear. He fully concurred with those hon. Members who advocated a total revision of our penal code; but he must, at the same time, point out the inconvenience likely to arise from every hon. Member taking his own view, and introducing his own separate measure for that purpose. Let the House but consider for a moment that there were at present ten notices of motions on the books for the amendment of the penal, and fifteen for revisions of the civil law of the country. Surely this was not the most effectual course of proceeding. Government were most anxious to remedy the evils which existed; but surely it was not too much to expect that time should be allowed to make that uniform revision which was considered on all hands to be necessary. If each hon. Member, acting upon his own suggestion, were to introduce his own specific mode of redress, it would be impossible that any thing like a general and uniform revision could be brought about.

Mr. Wynn

concurred in the observations of the hon. and learned Solicitor General, and was rather surprised that they had not led the hon. and learned Gentleman to propose a Committee on the subject. For his own part, he had, for the last twenty years, been actively and earnestly engaged in endeavouring to bring about a reform in the penal laws of this country, both in and out of office. He had been a member of the different Committees obtained by Sir Samuel Romilly and Sir James Mackintosh, and had thoroughly investigated the various grounds upon which a mitigation of our penal code was sought for by both those great men. He had always thought that a different construction ought to be put upon the law relating to offences which might, with due caution, be prevented, such as robberies from the person, and others of a different nature. For instance, every person who fastened up his house in order to proceed about his lawful and necessary occupations was entitled, from the laws of his country, to the highest protection which those laws could bestow, in order that the property so left should remain uninjured. Gentlemen must know, that cases occurred in which the whole savings of an industrious life were carried off; and he certainly was afraid, unless some effective system of secondary punishment could be devised, that to abolish the punishment of death in all cases would be an incentive to robbery. He thought the offence of forcibly entering houses with intent to rob, and putting the inmates in bodily fear, should be placed on the same footing, as, doubtless, persons so placed would be likely to resist, and that resistance would lead to the loss of life on the part of the person resisting; and if so, the aggressor should be subject to the severest penalty of the law. He would not now say whether hereafter it might not be deemed advisable to substitute secondary punishment in certain cases of this description; but should such be the case, still they ought to be very cautious. He should be sorry to see the House sanctioning a Bill which went so far as this one did, at least for the present. Hereafter, when the system of secondary punishments had been more thoroughly investigated and matured, the proposed measure might be proper. They should, however, proceed gradually, and he, therefore, considered it more desirable that the House should wait and see the effect of the Bill passed in the last Session of Parliament. For his own part he should prefer the appointment of a Committee up-stairs on the subject, as it would give scope for more general inquiry and an opportunity of obtaining further information. When any hon. Member introduced a bill, no matter how limited its operation, he felt in some degree pledged and committed to it, without being able to go into the more extensive details of the general question. He hoped, therefore, the hon. Member would alter his Motion to the appointment of a Committee, which would be attended with this, amongst many other advantages, that it would give them an opportunity of obtaining the advice and assistance of the law officers of the Crown, from which the greatest benefits must arise.

Mr. Lloyd

said, it ought not to be lost sight of—that there was a wide distinction between putting a man's life in jeopardy and taking it away, though both offences were punished with death. He was aware of the difficulty suggested by the hon. and learned Solicitor General—namely, that there were so many notices of motions on these subjects that all the good effect of revising the law was in danger of being defeated. There was one objection which he felt to this measure in its present stage. The Bill of his hon. and learned friend, the member for Liverpool, it was well known, received what was called an amendment, in another place, at the suggestion of a noble and learned Lord. Having witnessed its practical working, he was very much inclined to doubt whether it was such an Amendment as ought to induce the House to dispense with the possibility of a capital punishment, so rarely exercised. As the Bill originally stood, by the 7th and 8th George 4th, not only was breaking into a dwelling-house, and putting a person in fear, made capital, but stealing in a dwelling-house above the value of 5l. was also made a capital offence. By the Bill of his hon. friend, the member for Liverpool, these offences were made not capital; and it was left to the discretion of the presiding Judge whether the sentence should be transportation or imprisonment. In another place, an Amendment was introduced, by which it was made imperative upon the Judges to transport for life in all those cases, and also in cases of cattle-stealing. Now, at the last Assizes at which he attended, a trial took place, the circumstances of which were these:—A boy, tempted by an opportunity which presented itself, stole from the till of his master a sum of above 5l. He was detected—he did not attempt to run away—he confessed the theft, and exhibited the greatest contrition; so much so, that his master, he believed, would have taken him back: at all events, he attended in Court to give him a good character, and so did other persons. He was advised to plead "guilty"—the poor lad pleaded guilty accordingly; and the Judge was actually obliged by the Statute to sentence him to transportation for life; whereas, if the Judge had had any discretion vested in him, he would not have sentenced the lad to more than six months' imprisonment. He was well aware that, on representation being made in the proper quarter, this sentence might be mitigated, and that application it would be his duty to make; but, in a case of this kind, the usual answer was, that certainty of punishment is substituted for severity; and there was, therefore, a disinclination to do away with the effect of the punishment. The House might not be aware that transportation for life was now a very severe punishment; because there must be hard service for the space of eight years before any mitigation could take place; which made it a tremendous penalty, more especially when the Judge had no discretion, and when it was inflicted indiscriminately on every description of persons. He declared that making it compulsory on the Judge to sentence the prisoner to transportation for life excited more abhorrence in his mind even than the farce of passing sentence of death upon a number of men upon whom it was never intended to execute the sentence, Unless they could be guaranteed against a similar amendment being introduced, in the same place, in this Bill, he for one, should be disinclined to give his vote for the proposition of the hon. Gentleman, much as he, from his soul, abhorred the severity and disproportionate effects of capital punishment. The proposition of the right hon. Gentleman (Mr. Wynn) was, in his opinion, an eligible one. He thought that there ought to be a Board or Committee established—whether of Members of the Legislature, or others, he cared not, but of persons acquainted with these matters, who might be engaged in a revision of the whole of the civil and criminal law. By adopting that plan, they would be able to incorporate all the improvements that might suggest themselves to practical men, without the cumbersome mode which would otherwise have to be followed. It should be recollected that all the information they hitherto had on the subject of secondary punishment was of the most meagre character; that the question—important as it was—was still in abeyance; and till some positive conclusion upon it had been arrived at, he was afraid it would not be to any practical advantage that the House should legislate.

Mr. Cutlar Fergusson

thought most of the difficulties arose from the imperfect specification of offences by our laws; and he could, on that occasion, not refrain from deprecating the mode in which the amendment of the criminal code had generally been attempted. The hon. member for Maldon was fortunate in having found an early hour of the night for the discussion; but the greater part, or even the whole, of the alterations hitherto made, were proposed at midnight sittings, or sittings after midnight. Even the great measure introduced by the right hon. member for Tamworth, by which the whole criminal law of England was altered, was a midnight measure. He would beg to suggest to the hon. member for Maldon, that, if a Commission were to be appointed to inquire into all offences against property, it would be advisable in him to withdraw his Motion for the present. At the same time he must observe, that the first part of it was so reasonable that, if the hon. Member pressed it, he (Mr. Fergusson) would support it. With respect to the law itself, he thought the invariable practice should be that a fixed and certain punishment was to be the general rule, and mercy and pardon in certain cases the exception. Upon this ground it was that he was anxious to ameliorate the law, and not let it go forth to Europe, that while we sentenced 400 or 500 persons capitally every year, yet there are no more than five or six of them found deserving of the punishment of death.

Mr. Ewart

adverted to the observation of an hon. Member, that by a Bill introduced last year, the Judges were obliged to inflict one undeviating system of punishment. That was, however, not his fault; for though he had introduced the Bill, the clause complained of had been introduced in another place. Much had been said about the manner in which capital punishments were mitigated, and no doubt they were mitigated; but his objection was, that mitigation was left to the operation of a secret tribunal. There was not in that House, there was not in the country, a single individual who could, for a moment, suppose that this power, vested as it was in the Secretary of State for the Home Department, would be abused; but still his objection remained undiminished—the mitigation was the work of a secret tribunal, and was not the working of the law of the land. It was an arbitration that ought not to be left to any private person or set of persons. It was not to the practice, but to the principle of such a tribunal that he objected. He did not object to it because it was abused, but because it might be. The right hon. member for Montgomeryshire had said, in effect, that there were so many mitigations in our code proposed, that the number was quite starding to the orthodox maintainers of the existing law; his argument was valid, to a certain extent; but because there was a necessity for certain previous investigations, was the House, in all cases, to wait? Was it desirable that it should be considered whether some crimes were properly punishable or not? Was it to pause in abrogating those punishments which were far too severe for the crimes to which they were affixed? It was said, that the question of secondary punishments was an open question. It was true, that a gentleman had been sent to America to inquire into secondary punishments; but because he was making his inquiries, were they to wait, when a necessity had been made out—and he contended that his hon. friend had made out a necessity—for a Bill like the present? Certainly not; and he, for one, would most cordially and strenuously support his hon. friend. It had been asserted, by the hon. and learned Gentleman who had just sat down, that the unsatisfactory definition of burglary and house-breaking was the cause of all the evils which exist. The definition of burglary, in our criminal code, was certainly a remarkably loose one, and ought not to be continued. The hon. member for Maldon, most properly, aimed at the abolition of capital punishment in the case of house-breaking; but although a man was now liable to be capitally convicted if he broke into a house by day, by this Bill the punishment would remain the same, if he committed it by night. If he did, he might be capitally punished. It had been stated by the hon. and learned Solicitor General, that if a boy stole a bun from a shop-window by day, he might be capitally convicted. If this Bill passed, however, if a boy stole a bun by night, he might be capitally executed also. This circumstance pressed strongly upon his mind the necessity of altering the definition of burglary. It had been laid down by the hon. and learned Solicitor General, as an almost unerring rule, that crimes which were accompanied by violence must be severely punished. That, to a certain extent, was true; but experience showed, that punishments of a very severe nature, though sometimes reconcilable to the feelings and habits of mankind, were of uncertain execution; and therefore the Legislature ought not to lay down strict dogmas as applicable to every possible case. The code of Draco was admired; and in much later times it was considered little better than heresy to assert that a man ought not to be hanged for horse-stealing. Might the opinions of mankind not change then, and might not less rigorous laws be adopted and approved of, even in cases of violence? There was a proof of the correctness of this assertion to be found in Belgium, where capital punishments had been abolished. The criminal law was, no doubt, admirably consolidated by the right hon. Baronet, the member for Tamworth, but it was an outline not well drawn, although exceedingly well filled up. What was the consequence? The whole of the edifice, erected with so much care and trouble, was tumbling to pieces. One hon. Member took away one brick; another, removed another; and in three or four years it would become its own dilapidated monument. The old code of criminal law was considered, in France, most severe. What had been done there? Why, that code had been mitigated to a very material extent. A learned and distinguished foreigner, who travelled in this country, had alluded, in one of his works, to the great tenderness evinced by an English Judge and Jury towards a prisoner on his trial. Whence arose that feeling? Did it not proceed from a consciousness that the prisoner was placed in an unfair position, and was not, as in other countries, fully and fairly defended? Let the Legislature do all it could for the elucidation of truth; let it be careful, however, not only to detect the guilty, but to give ample protection to the innocent. Considered abstractedly, a mild code of law was really a proof of a great and good country, because, in all countries where the law was mild, the inhabitants were also mild and civilized. This was the case in India, where capital punishments were rarely inflicted, and there the character and habits of the great mass of the people were of the most gentle description.

Mr. Cobbett

said, that though he was unacquainted with the details of the subject before the House, it was one so deeply interesting to the people of England that he could not refrain from saying a few words upon the occasion. Every Gentleman appeared to have his own project for altering the law, and he had his, which he would state before he sat down, and which fortunately lay in a very narrow compass. There was one thing connected with this subject which excited his displeasure, he had almost said disgust, and that was the everlasting references to France and America, in order to influence the opinions of people in England, which had set an example to the whole world of framing laws for ensuring the liberties of mankind—England, which was said to have been the cradle of liberty. Why should we be always looking abroad to see what other countries were thinking of us, and to see what America, and above all, what France was doing? As to what France was doing relative to the amelioration of the laws he knew nothing, and wished to know nothing, but from the accounts which he had seen of the manner in which justice was dispensed in French courts, he would say, the Lord deliver him from French courts of justice. Hon. Members who boasted so much of the excellence of the laws in America did not seem to be aware that they were no other than the English laws. At the time the independence of the United States was established the people made a solemn bargain that they should enjoy the Common and Statute Law of England, which they claimed as their birth-right. Gracious God! under these circumstances was it not a little too much that men should go to America to learn how to make laws for this country? A cargo of law was shipped from Liverpool to America to be mixed up with the law there, but he hoped that they would laugh at the stuff when it should be brought back. He had lived in America about ten years and a half altogether, and was acquainted with many intelligent persons there, and amongst others with several lawyers, and they all concurred in stating that every departure which had been made from the law of England was a change for the worse. Now for his project for altering the law. It was this; he would go back to the period when George 3rd ascended the throne, and taking all the Acts which had been pased since that time relative to the criminal law, be would fling them into the fire. It was with surprise he had heard the Solicitor-General for whom he entertained some respect, because he believed his intentions to be good,—it was with some surprise, that he heard him talk of further mitigations of the severity of the criminal code. Much had been said, for many years past, of Softening the criminal code, but he had watched the proceedings of Parliament pretty closely, and as far as related to the common people, he had seen that code at every rolling round of the sun grow harder and harder towards them. Did not the Solicitor-General know that Magistrates at their Quarter Sessions could now transport a man for seven years for poaching? To be sure the punishment of the pillory had been abolished. In a thoughtless moment the Judges sentenced a Lord to stand in the pillory. It was immediately discovered to be a barbarous and inhuman punishment,—one which could only have been thought of by our ignorant ancestors, and it was put an end to at once. Another Lord put an end to his existence, and the practice of burying suicides in cross-roads was not long suffered to continue. He was sometimes wicked enough to wish that a Lord would go out poaching, and then the cruel laws on that subject would be abolished to a certainty. Was it not monstrous that a man could be transported for seven years for being in pursuit of a hare or a pheasant, which, in law, as well as in reason, was as much the property of the poor, as of the rich [No, no]? He questioned whether any lawyer would cry "no," the Solicitor-General would not. He repeated that game was the property of all mankind—of the poor, as well as of the rich. There was another little law under which a man could be hanged for resisting a game-keeper; but he never heard of any attempts to mitigate its severity. A man who defended himself against a game-keeper who wished to take him, in order to have him transported for following a hare was guilty of a capital offence. This was a new law, not one framed by our ignorant ancestors, and under it no less than forty men had within the last twenty years been hanged by the nobility and gentry of England, in order to preserve their game. Ay, let that resound in their ears when they were talking about softening the criminal code. They had not that law in America. Formerly it was a capital offence to break into a house and steal to the value of 12d.; that sum was subsequently raised to 40s.; but the persons who made the alteration did not consider the change which had taken place in the value of money, for at the time the law was enacted 12d. would buy two fat sheep. It had been said, that crime in this country had increased in consequence of the want of education. He had hoped never again to hear that asserted, because nothing could be more contrary to the fact. Let any person draw four columns, and set down the amount of taxes, of poor-rates, of crime, and of education at the period when George 3rd ascended the throne, and at the present moment, and he would find that they had all gone on increasing together. It was impossible for any one who did not blind himself to the fact to fail to perceive that taxation was the cause of the increase of crime. The hon. member for Maldon had talked of the want of a country police. He was sorry to hear a country gentleman utter such sentiments. At the time the hon. Member was born no one felt the want of a country police. England had for centuries mocked at the French on account of their gendarmerie, who acted as spies on the soldiers, as well as the people, and now it was proposed to introduce them here. The gendarmerie, however, did not prevent the burning of the title-deeds of the nobility, and driving them out of the country, and if Parliament did not retrace its steps the establishment of a country police and the patching up of the criminal code would not prevent the occurrence of similar events in England.

Mr. Hill

regretted that a man of the talents of Mr. Cobbett should clothe himself in the worn-out vocabulary of prejudiced invective, so long worn only by the ignorant and the malevolent. If the hon. Member's argument was good for anything, it was for their returning omnino to the state of things which obtained in his lauded golden era of 1760. They should re-adopt the bloody penal code of that period; they should re-enact the capital punishments for minor offences then in force, with all the baneful consequences of such sanguinary enactments. Was the hon. Member aware that after the riot of 1780 the inhabitants of London were hanged in scores for participating in those riots. The hon. Member objected to improvements because they were brought from America and France, and the hon. Member was scandalized that an Englishman should travel out of his own country even for the purposes of improvement. He had read works of the hon. Member's in which the people had been called upon to turn their eyes to America, to France, and other countries, where everything was better than in our own. [Mr. Cobbett—Never!] It appeared that he had misread those works. He had no doubt that he was incorrect, that he had read them all the wrong way upwards. He had no doubt that there was not a single allusion to the cheapness and excellence of American government. Did the hon. Gentleman mean to say, that we might go across the Atlantic for one improvement, and shut our eyes to another? That we were to look for cheap Government and laws? That we were to learn one thing, and refuse to listen to anything else? The hon. Member had taken up the cast-off prejudices which everybody else had discarded with contempt; and whether the hon. Member abused the Jews on one day, or the French or Americans on another, he must say of the hon. Gentleman, with all his admiration of his talents—and no man had a greater—that he was pandering to the very worst prejudices of the lowest of mankind. The question before the House, however, from which he had wandered was the Bill brought forward so ably and satisfactorily by the hon. member for Maldon. The question was, whether or not that House was to proceed in its career of continuing the number of capital punishments, which still deformed the criminal code of this kingdom. He had observed, with only one exception, that there existed throughout that House, the strongest conviction that the crimes in our code, to which capital punishments were affixed, were still too numerous; and the only difference was, as to the best mode of getting rid of some, if not the greater part of them. There was also, some difference as to the principle to be applied as a test to this question. It appeared to him that they ought steadily to look to the principle whether or not men, abstractedly speaking, deserved capital punishment. It could not be denied that if the object of punishment was to diminish crime, capital punishments whether deserved or undeserved had not that effect; but in many instances had the contrary effect of increasing them. Let that be the test, and he invited the attention of the hon. and learned Solicitor General to it. He felt, with the hon. and learned Gentleman, as to the moral turpitude of a man who broke into a house, disturbed, alarmed, and agitated the family, and put them in fear. That was, no doubt, one of the greatest breaches of social order that could possibly be committed; and he was willing to admit, that if experience had shown that putting men to death secured the peace of society, and the absence of causes of fear and disquiet in the community at large, he should be sorry, much as he valued human existence, to repeal laws, which though they were severe, gave so much advantage to the people at large. But when he found that, in point of fact, the fear of this punishment seemed to operate more upon the minds of the Jury who were called upon to convict, than upon those who were to be convicted; and when this punishment gave a substantial privilege to those who were to be tried; he then came back to those punishments which, though not so severe in appearance, were more certain in execution—and he referred to experience in England and abroad—whether it was not better to ordain a certain small punishment, than an uncertain large one. He, therefore, certainly was anxious to support the hon. Gentleman's Bill; but he nevertheless concurred in the suggestions made by the hon. member for Stockport and others, that they ought not to confine themselves within a narrow compass. The question of capital punishments altogether was not a large one. It was one which might be disposed of by a Committee, in a short time; and therefore, he should suggest that the best mode of disposing of the question would be, to submit the consideration of the whole range of capital punishments, as applied to offences of all kinds, to a Committee up-stairs, whereby the principle might be set at rest, if not for ever, at least for a very long period; for every one must feel the great inconvenience—and he had no doubt the hon. member for Maldon felt it as much as any hon. Gentleman—of taking this great subject in small departments, and debating them night after night, when the same general principles were involved in each. He had had some experience of criminal Courts, and he was opposed to the Act brought in by the hon. and learned member for Liverpool, which took away from the Judges the discretion formerly vested ill them, and made it imperative upon them to pass a sentence of transportation for life on convicting men of certain offences. In this respect the Legislature proceeded in a hasty and premature manner. They rushed from almost unlimited discretion to no discretion at all, and fixed the same punishment for offences, which were as different as possible from one another. A learned Judge had described to him the pain he felt when compelled to pass sentence of transportation for life upon a boy under the following circumstances. A man and a boy went out together, and stole a sheep. The boy was ten years of age, and clearly acted under the control of his father—not having a wife the relationship was no excuse or palliation in the eye of the law, the boy was therefore convicted—and it was the painful duty of the Judge to pass sentence of transportation for life on this miserable child of ten years old; the very same sentence being passed upon the father who was the author of the crime. He had no doubt that the right hon. Undersecretary of State for the Home Department, had mitigated the severity of that sentence, but the sentence was publicly passed, and the effect would not be easily got rid of. A public trial ought to be a moral lesson to the whole of the people; and if the feelings of the spectators were outraged by manifest in- consistencies, how was it possible that they could preserve that respect and reverence of the law which was after all, the best security for its due execution. He should support the Motion of the hon. Gentleman, though at the same time he should have been better pleased if the measure had had a broader basis, so that the whole general subject might have been settled and decided upon at the same period.

Leave given to bring in the Bill.