HC Deb 12 June 1833 vol 18 cc613-22
Mr. Lennard

, on moving that the report on the Dwelling-House Robbery bill be received, said, that he should find it necessary to trespass for a few moments on the attention of the House, for the purpose of explaining again the object, which this measure had in view. Agreeably to the suggestion of his learned friend (the Solicitor General), he had limited the operation of this Bill, simply to the offence of breaking into dwelling-houses in the day-time, and stealing property therein—an offence, to which he conceived, that few persons would be now found to contend, that the penalty of death ought to be applied. He was certain, that the change which this Bill proposed to introduce, was one called for by the feelings of the people, and the spirit of the times. He had stated, on the occasion of the introduction of this measure, the effect which this extreme severity of the letter of the law, as contradistinguished from its spirit, had in disposing Juries to acquit prisoners, when charged with such crimes; and he had only to refer to the numerous petitions which had been presented, especially three years ago, to show the anxiety of the people for this proposed mitigation of our criminal code. Where so much of the execution of the law depended upon the people themselves, it was most necessary, that the feeling of the public should be consulted. Under these circumstances, therefore, and with the additional consideration, that, in the course of the last ten years, out of every nine persons convicted of these offences, not above one had been executed, he trusted that no serious opposition would be made to the passing of this Bill. He must observe, that of late years, a practice had grown up, which was most objectionable. When it was supposed, that a person had committed a burglary, if there were any difficulty in making out a case against him, he was indicted, not as a burglar, but as a housebreaker; and being placed upon his trial for this less criminal offence, it not unfrequently happened, that the Judge, in consequence of proof of some aggravated circumstance attending the robbery, took it upon himself to punish the prisoner, upon conviction, not as a housebreaker, but as a burglar. Several persons, he knew, had been punished as burglars, although they were only indicted as house breakers, which was using the discretionary power possessed by the Judges in a most objectionable manner. He trusted, that this measure would not experience opposition from any Gentleman on that (the ministerial) side of the House, least of all, from those Gentlemen who had received their lessons, with regard to the amendment of our criminal code, from the late Sir Samuel Romilly, Sir James Mackintosh, and the present Lord Chancellor.

Mr. Lamb

could assure the House, that it was with great regret that he felt it his imperative duty to oppose this Motion. The House would give him credit when he stated, that it was with extreme reluctance he deemed it necessary to throw any impediment in the way of what might be represented as an improvement in our criminal code. He had stated, when his hon. friend introduced this Bill that it was not a measure which Government would then oppose, and it was entitled to a calm and deliberate consideration, but he would now entreat the House to pause before it adopted such a measure. He was fully impressed with the conviction that the course of legislation which they were now pursuing on this subject tended much to the increase of that evil under which they laboured so extremely at present—namely, the multiplication of crime. There was no denying the fact that there had been latterly a great increase of crime. Let the House just look at the effect of the course which it had adopted last year in taking away the capital punishment from the crime of forgery. He (Mr. Lamb) had voted for that measure, and he had done so with the most perfect security that it would not have been attended by an increase of crime. Unluckily, however, he had now to state, which he did without the fear of contradiction, that the crime of forgery had considerably increased during the past year. Of course, it would be said, on the other side, that that circumstance was to be accounted for in the increase of prosecutions; but he would maintain that there had been a considerable increase in the number of forgeries actually committed. He must say, that all the debates and discussions upon our criminal laws had been the most inconclusive that he had ever heard, He had, with others, voted for the abolition of the capital punishment in the case of forgery, trusting that, as the capital punishment in that instance had, in deference to the feelings of the public, been for the few last years virtually abolished, its actual abolition would not lead to an increase of the crime. He was sorry to say, that he, in common with the House, had, as experience proved, acted in that case upon a lamentably mistaken principle. He could not, therefore, agree with his hon. friend, that where a capital punishment existed for an offence, and where it was never enforced, we should make the letter of the law correspond with the practice of it. He was, on the contrary, of opinion that the retention of the capital punishment in such instances, though it should never be enforced, was productive of great good, in deterring persons from the commission of the offence to which it might be applied. There was the instance of the offence of horse-stealing, with regard to which they had repealed the capital punishment last Session; and that crime, if it had not increased, had certainly not diminished since that time. His learned friend, the Solicicitor General, with whom he was sorry to differ on this subject, had remarked, in the former discussion on this Bill, that such was the state of the law as to house-breaking and house-entering, that a child who only broke a window and stole a bun might be liable to capital punishment. Granted; but then the capital punishment would never be enforced in such a case; whereas, let the application of capital punishment to this crime be altogether done away with, and the man who should enter a house with violence, and steal therefrom no less than 20,000l., would escape that amount of punishment which was due to his offence. He had no objection to this alteration in the law—that the capital punishment should solely apply to those cases where persons forced themselves with violence into houses, so as to do mischief. On the whole he thought that it would be much better at once to appoint a general Committee for the revision of our criminal code than to go on thus, step by step, adopting measures at the suggestion of individual Members, without knowing where this mitigation of punishment was to stop, or upon what general principle it was to be regulated with regard to particular crimes. He had felt it his duty to take that occasion to enter his protest against this measure, and he was sure that if the House did not pause in this course of mitigation—in this career of impunity to crime—the worst consequences would be the result.

Mr. Bernal

said, that no one doubted the sincerity of the motives of his hon. friend in opposing this Bill. He concurred in one part of what had fallen from his hon. friend, namely, that it would be well if Government could find itself at liberty, and had time, to take the whole consideration of the revision of our criminal code into its hands, instead of leaving it to be effected through the means of bills brought forward by individual Members, at vast trouble to themselves, and with the reward of but little gratitude for their laudable endeavours. He was sorry that he altogether dissented from the remainder of his hon. friend's observations. When his hon. friend stated the result of the alteration of the law with regard to the punishment for forgery, he would beg to ask his hon. friend whether, with his knowledge and experience on the subject, he was prepared to retrace the steps they had taken in that instance—whether, in fine, with the temper of the British nation in 1833, any Government or any gentleman would be bold enough to come down to that House and recommend to them that they should come back to the old code with regard to forgery. If they had to complain of the increase of crime, the fault lay with themselves; they did not adopt the proper preventives to check the increase of crime. Let them but advert to the beneficial effects which had been experienced from the system of solitary confinement in the United States, and they would see what good might be expected from the adoption of a proper system of preventives. The report as to the effects of solitary imprisonment in the great gaol of Auburn was most favourable as to its utility in checking crime, ft could boast of one amongst many other great advantages—that it was economical, and the clergymen of different persuasions reported most favourably as to its good effects upon the morals of the prisoners. He thought, therefore, that the attention of the Government should be turned as soon as possible to the introduction of secondary punishments, with a view to operate as a barrier against the increase of crime. The present punishment for forgery was transportation to Australia or Tasmania; and when persons who had moved in respectable society in this country were transported there for that offence, they were at once sought for, for respectable situations, such as clerks in stores, and even cashiers in banking-houses, and in fact, their punishment amounted to nothing. He should certainly support the Motion.

Mr. Strickland

observed, that from his experience as a Magistrate, he could state most certainly, that in the district with which he was connected, the number of prosecutions was much greater than had formerly been the case; but he denied that this tended in the least degree to prove there had been any increase in the number of offences, because since the passing of the statutes commonly called Mr. Peel's Acts, which gave the expenses of prosecutions in certain cases, it had become the interest of the legal practitioners in the country to institute prosecutions, and therefore those offences were now followed up which formerly had entirely escaped punishment. Allusion had been made to the increase of the crime of forgery since the abolition of the capital punishment for that offence, but unless it was shown that the crime had increased upon the number of charges of forgery formerly instituted, he (Mr. Strickland) could not give much credence to the statement which had been made. This, however, presented no reason why the experiment of this Bill should not be tried; and if for want of a good system of secondary punishments in this country, the amelioration in this case should prove insufficient to the public security, he for one should be most happy to retrace his steps, but at present he felt it his duty to support the Bill now before the House.

Mr. Lloyd

concurred in the suggestion which had been thrown out by the hon. gentleman, the Under Secretary for the Home Department, as to the propriety of the appointment of Committee or Board to take into consideration the whole of the criminal code of the country, with a view to its alteration and amendment; and he fully acquiesced in the sentiment which had accompanied the suggestion—namely, that much more general advantage to the public would accrue from such a course than could possibly be the result of the exertions of any individual Member directed to any single branch of the criminal codes. But that really was not the question before the House. A Select Committee had sat some time since on the subject of capital punishment; had reported; and upon that report nothing had since been done, and, therefore, he felt that no further delay ought to be permitted, even if Government was to pledge itself that the whole code should be duly considered, with a view to remedy the grievances; because in the mean time no harm could be done by carrying into effect the provisions of the Bill now before the House. It was most improbable, that, under the present state of society, any aggravated case of house-breaking could occur; but even if committed in the night time, which was the only probable period at which an aggravated case with violence could occur, that crime was unaffected by the present Bill, and under the proper definition of burglary would still be liable to capital punishment. The argument which had been raised against this Bill upon the grounds of the increase of the crime of forgery could not stand, because, on a former occasion, it was admitted, and even urged as a reason for abolishing the capital punishment in certain cases of forgery, that many offences were never prosecuted, and were passed over with impunity, from the reluctance of parties to bring them into court, and Juries to convict when proceeded with, in consequence of the then existing law. Any discrepancy, therefore, that might now appear between the amount of forgeries formerly, and the amount since the punishment was lessened, could not afford any argument as to the evils of an amelioration of the law in this respect, fie would not trouble the House with now moving the addition to the present Bill of a clause (of which he had given notice) for repealing so much of the Act 2 and 3 William 4th, c. 62, as made the offences named in that Act punishable with transportation for life only, and in- stead thereof providing that such offences I should be punishable with transportation or imprisonment of a limited period, at the discretion of the Court, but he should postpone the motion until some future occasion.

Mr. Hill

concurred in the necessity of some general revision of the criminal law of this country. Too great severity created crime, instead of suppressing it. In former times the criminal law was as sanguinary in practice as it was now in the letter. In the reign of Henry 8th, historians stated, that no fewer than 70,000 persons were executed. This showed that the terror of the laws did not prevent the commission of capital offences. On the other hand, as the criminal law had been relaxed in severity, offences had diminished in number. Even so late as the end of last century it was dangerous to walk out into the streets of London after dark, so many desperadoes were abroad, who were seen even in broad daylight in the streets, but so well supported by their followers that the police dared not attack them. This was the statement made by Fielding, and confirmed by many contemporary authors. Now, how different was the state of crime? In the metropolis but little insecurity as to life was felt at any hour of the day or night, and the number of murders was very small compared with what it used to be. He knew many persons who never would prosecute for offences against property, where the punishment was death, not choosing to be instrumental to the loss of life in a fellow-creature. This feeling was spreading; and it would be found to be impossible unless they had Judges totally disconnected from the people, and actuated by different feelings and sympathies, to execute a state of law which was at variance with the opinions of the majority of the people. So long as the Jury system formed part of the judicial system, it would not be practicable to maintain a system of laws which was contrary in its spirit to the feelings of the people. The number of the prosecutions was not a just test of the increase of crime, as had already been observed by other Members. To argue that it was, was to argue like a Clerk of the Peace who judged solely by the increase of his own business that there must be a large increase of the offences for which his services were put in requisition. It was not a correct mode of ascertaining the point. The hon. Under Secretary had talked of softening the criminal law as giving impunity to crime. Surely sending a man to Botany Bay for life was not impunity. At least it was that sort of impunity which he should be very sorry to experience for any offence of which he might ever be guilty. He hoped there would be some general systematic amendment of the criminal law; but, in the mean time, separate and specific measures, for that purpose like the present, when brought forward, should have his support.

Mr. Shaw

thought, it would be impossible so to amend the criminal law as altogether to supersede the necessity of discretion in the Judge. It was impossible to draw the exact line where legislation should end and discretion begin. There were, no doubt, anomalies and apparent contradictions in the system as it was written; but these disappeared when the actual practice of the law was looked into. At this time of the year the capital punishment was to be taken away, although a gang of robbers should break into a house while the inmates were at rest at three o'clock in the morning; and on the other hand in the case which had been put of a girl breaking a window and stealing a bun at seven o'clock of a winter's morning, she would still be guilty of a capital offence; this showed how essential it was, that the Judge should have a discretionary power for the purpose of adjusting the balance in all such cases. With respect to the particular offence described in this Bill, the practice now was, to leave the words "break and enter" out of the indictment, unless in cases marked by features of great atrocity. Whatever advantage might be gained by a general and well-considered alteration of the law as regarded capital punishments, he thought great evil was endangered by these attempts to amend it by separate and disconnected efforts.

Mr. Aglionby

said, that a general amendment of the criminal law would be preferable to the present mode of amending it by separate Bills, but he preferred to have it amended piecemeal rather than not have it done at all. He should give his support to the Bill of the hon. member for Maldon.

Mr. Rotch

considered that the best mode of preventing crime was by making the laws for its punishment certain in their nature and sure in their execution. They had now got a measure of decided amend mend before them, and he hoped the House would not allow it to be lost from the mere expectation of what might be done hereafter.

Mr. Ewart

would support the Bill, but he thought it would be improved if the hours within which the offence became changed in its character should be distinctly defined. He thought the hours should be named in the Bill, and be from ten o'clock at night to five in the morning throughout the year. Parliament having modified the law as to the higher class of delinquents, were bound to do it as to the lower order. He hoped to see the Criminal Laws of this country more consonant with the feelings and opinions of a civilized people than they were at present.

The Report was brought up.

On the Motion that it be read,

Mr. Shaw

wished to ask whether the last clause had been expunged, as other wise the jurisdiction of the Old Bailey for the trial of these offences would be entirely shut out. At any rate, he was certain that such would be the case in Ireland in the Court over which he presided.

Mr. Lennard

said, that this clause had been expunged. It merely remained on the printed Bill, because it had not been considered worth while to have a reprint of the Bill on account of so slight an erasure. With reference to objections which had been made against making these changes in detail, he would observe, that such had been the principle laid down as the best by one of the greatest law authorities known in this country. Sir S. Romilly, who, in bringing forward his law reforms, had invariably held, that graduated relaxation of the law would ensure the most effectual and beneficial results. With reference to the crimes of horse-stealing, sheep-stealing, and others, the capital punishment for which had been abolished, he denied that those offences had since increased. The hon. Member read some Returns to show that since the abolition of capital punishment, there had in Wales, in Berkshire, and several other counties, none of these crimes been committed. In Lincolnshire, which was a great place for sheep, there had been no sheep-stealing. With respect to forgery, it would be recollected that two specific cases of forgery were ex- empted from the last Act; and the punishment of death still remained attached to forging a will, and forging a power of attorney; and since that Act was passed there had been only two cases of these crimes—one of forging a will, and the other of forging a power of attorney. In the case of forging the will, though the evidence was very clear against the man, the Jury refused to convict him, and found a verdict of acquittal; in the case of forging the power of attorney, the forgery was committed upon the Bank of England, and the Bank prosecuted the man for the minor offence. There was, then, even now, a difficulty of carrying that law into effect which decreed the punishment of death, which made it inoperative. He was willing to allow, that the most appropriate secondary punishment had not been applied to the crime of forgery, and it would have been better to have appropriated to that crime hard labour and imprisonment at home, than transportation for life. His hon. friend, the Under Secretary of State (Mr. Lamb), had thrown some doubts on the efficacy of the system of imprisonment in America. If the House would allow him, he would read an extract from the Report made by two French gentlemen who had inquired into the subject. The hon. Member accordingly read an extract from the Report, which stated that the persons who were tried for second offences under the old system of prison discipline were as one to seven; while those tried for second offences under the new system were only as one to nineteen. He would not enter further into the subject, as he felt confident that the House was with him.

The Report was read, and the Amendments were agreed to.