CAPITAL PUNISHMENT. (Hansard, 7 August 1834)

§ Mr. Ewart
rose to call the attention of the House to the Amendments made by the Lords in the Bill which had been sent up from this House. The Bill, as originally brought in, consisted of three parts. Capital Punishment was repealed by it; first, for letter stealing; next, for returning from transportation; and thirdly, for constructive burglary. At an advanced stage of the Bill the Attorney General obtained the rejection of that part which repealed the punishment of death for constructive burglary, and when it went up to the Lords they expunged that part which repealed capital punishment for letter-stealing. Now the latter provision was the most important part of the Bill, for no execution had taken place for returning from transportation for seven years; and his only object in introducing a provision on that subject had been to make the enactments accordant with the practice of the law. It would be perfectly illusory to pass a law of this kind, and he thought the House would best consult its dignity and its consistency by not passing the Bill in its present shape. However, he would be guided by the wish of the House.

Mr. Lennard
concurred with his hon. friend, that it would be advisable, altered and mutilated as the Bill now was, that the House should altogether reject it. The measure was completely spoiled by the other House; and those who had thus spoiled it ought to bear all the responsibility. He trusted that, as that House had so strongly expressed itself against the punishment of death, in one of the cases in which the Lords had retained the capital penalty, that capital penalty would not in those cases be enforced. It was only four years ago that the present Lord Chancellor, then Mr. Brougham, had, in the case of Sir James Mackintosh's Bill for doing away with the punishment of death for forgery, expressed the same opinion. "If, he said, the law, as it still stood, had little weight in public estimation before, then in what light was it likely to be looked on henceforward? If men's feelings rebelled against it before, would not their opinions and prepossessions be for ever rooted and confirmed by such a division of the House of Commons? Would it not operate practically on prosecutors, on witnesses, on jurors—aye, and on Judges themselves? Not six months ago had a Judge declared to him, in reference 1033 to the probable change of the law as it regarded this offence (forgery), that sitting as Judge he could not think of leaving a man for execution at a time when Parliament was engaged in a deliberation, the result of which might be, that his blood would be the last which should ever be shed for the crime of forgery." Before sitting down he could not help adverting to certain observations which had been lately made by a learned Judge, when on the judicial bench in Devonshire, with respect to this Bill. That learned Judge, to whom he referred, had on that occasion spoken in terms of strong condemnation of this Bill, and some other Bills that were before the House. He was disposed to regard all that came from so high a quarter with the respect which it merited, but he must observe, that the judgment seat was not the proper place to discuss the merits of a pending Act. It was the duty of a Judge to confine himself to administering the existing law. Jus dicere, non jus dare was the province of every Judge. He protested against the observations of the Judge to whom he alluded being drawn into a precedent, though he might have been pleased to see the observations of that learned person, had they been conveyed to those interested in the Bills in a different manner.

§ Lord Althorp
said, the state of the question was this. The House had passed a Bill taking away the punishment of death in two cases, but the Lords had returned the Bill taking away capital punishment only in one case, in which, as the hon. Gentleman very properly said, it was very rarely inflicted. Undoubtedly it would be a great advantage to make the enactments of the law as nearly in accordance with the practice as possible. If a Bill had been brought in simply taking away the punishment of death for returning from transportation, he should have supported it, because it would have been accommodating the law to the practice. Now the question was, would the House reject this Bill because other provisions which they thought desirable had not been passed? It might be a great disappointment to Gentlemen who attached more value to those other provisions, and he would admit that they might be the most important provisions of the Bill; but he did not think that the House ought to reject that which was good because it could not get better. He hoped, there- 1034 fore, that the House would not, on this ground at least, reject the Bill. His hon. friend behind him (Mr. Lennard) seemed to think, that because a Bill had passed one House of Parliament, it was not justifiable to inflict the punishment which it went to repeal. That appeared to him a very dangerous doctrine. As long as a law continued it must be enforced at the discretion of the Crown. He hoped that discretion would never be exercised in any sanguinary manner; and he was sure that his Majesty would always be actuated by the greatest mercy in the execution of the law; but it would be a very dangerous doctrine to contend, because a Bill had passed one branch of the Legislature, that the existing law could not be carried into effect in any case, however extreme.

Mr. O' Dwyer
thought that this was not a measure of sufficient importance to justify a collision with the House of Lords. There were other measures more important and more popular on which the Lords seemed disposed to prevent the people from exercising their rights.

§ Lord John Russell
said, that though he should not have consented to the omission of the clause which had been struck out by the other House in the first instance, yet, as the Bill in its present shape saved the country from the necessity of condemning criminals to death in some cases to which the penalty of death was attached as the law now stood, he was glad to take the Bill as amended, in preference to losing it altogether. With regard to that portion of the Bill which had been left out, he would say, that he thought the punishment of death ought not to be affixed even to that crime. If the most extensive forgeries were not to be punished by death, he could see no reason why stealing a letter should be subject to such a penalty. If the hon. Member should propose a Bill next Session, for the purpose of removing the penalty of death from that crime, it should have its support; but it was not because this Bill did not effect that object, that, containing as it did a provision abolishing the punishment of death in another case, it should therefore be rejected. The time had arrived when some general measure relating to the criminal code was become necessary. In consequence of the exertions of Sir James Mackintosh, the experiment had been tried in reference to some crimes; and, having made that experiment, he thought it time to try it on 1035 a general scale, with a view to the relaxation of the criminal code. There was no subject whatever which was more deserving the attention of the House, as the crimes to which capital punishment ought to be applied were very few.

The Solicitor-General
said, that the greatest inconvenience was felt, owing to the want of one general system. This want of system was owing to particular enactments being passed at different times to meet particular cases. It was far better therefore, to have a general system and a general scale of punishments, which, however, could not be effected by partial legislation. The Bill, as amended, had still the advantage of removing the punishment of death from one offence, and he should therefore support it.