OFFENCES AGAINST THE PERSON. (Hansard, 24 April 1837)

§ Sir Robert Peel
had understood by the noble Lord's former speech that the object 256 of the Bill was to take away from the Secretary of State for the Home Department the power of preventing the execution of capital punishment. He was rather averse from that, as he could not think the sentence of the judge altogether relieved the Secretary of State from the responsibility of advising the crown to carry the sentence into execution.

§ Lord J. Russell
did not think it proper that the Secretary of State should have it in his power to say—"It is my opinion that such a law should not exist,"—as that which the judges had been already called upon to administer, in a case where they had reported that they could find no mitigating circumstances.

§ Sir Robert Peel
there were 432 capital convictions for burglaries; and, out of these, only one carried into execution. The presumption of law was that, to meet the justice of all these cases, all the criminals should have been executed; but the fact was that the Secretary of State had opposed the judgment of the courts which tried them, and successfully intervened in 431 cases out of the 432. Ought such a power lightly to be abrogated?

§ The Solicitor General
The judge under this act, would not be bound to sentence according to the finding of the jury, nor must the sentence be carried, of necessity, into execution. He agreed with the right hon. Baronet, that if, in this measure, we were making a retrograde movement in the course of consolidation already entered upon, we should be doing something that would be highly objectionable.

§ Mr. Arthur Trevor
did not think the punishment of death should be abolished in any of these cases without much careful consideration and for this reason—that the property of the subject required to be protected by the strong arm of the law; —If death were not inflicted in the more heinous cases, the crime of burglary would be fearfully increased. Very few persons undertook to commit a midnight burglary, who would not, if the exigency of the case required it, commit the crime of murder. He concurred in that part of the clause, which leaves the consideration of the question of carrying capital sentences into execution to the merciful consideration of his Majesty.

§ Mr. Hume
did not like vesting discretionary power in judges. He would remind the House, of Lord Camden's dictum 257 on that subject, "that the decision of the judges is the law of tyrants. It is a law unknown — different in different men —casual, and governed by their conscientiousness, their temper, and many other circumstances."

§ Mr. Wakley
thought the bill would alter the law for the worse. The object ought to be to make the law as certain as possible; but this bill actually offered a strong temptation to murder. Suppose a man to break into a house, and to be nearly taken, he would make a vigorous endeavour to escape and might knock down his antagonist. But doing so, and being seen by a constable, for example, to have put his foot in the house, he would subject himself to the punishment of death. If, to secure his escape, in the first instance, he was to commit murder, his situation would be not one wit worse than if he had only struck the constable, and been taken in his attempt to escape. It could not be the intention of the House to put the two offences on the same footing of punishment; for, if it were, instead of one case of murder, there would, be scores in a year.

§ Mr. Ewart
objected to the discretion proposed to vest in the judge, though he knew that certain limits in these matters must be allowed to him. But that discretion should be as little as possible; and those limits should be so well defined and fixed, that he should not be readily able to pass them.

Mr. Richards
said, as far as he could learn, the judges had always exercised the soundest discretion, and given the utmost satisfaction. He doubted the soundness of the principle set up to-night by the Gentlemen on the other side of the House, who thought that, by diminishing the punishment at present attached to the crime, they should materially diminish the number of burglaries. It was a received opinion, that men were acted upon by the hope of reward or the fear of punishment. He thought that the operation of a measure like this would be the reverse; and that there was a vice in its principle. The law affixed the penalty of death to burglary and wisely left it to the discretion of the judge, guided by the facts of the case, to determine the nature of the sentence. They had heard from the hon. Member for South Durham, that out of 432 convictions, in only one case was the penalty of death inflicted, these offenders, 258 then, were under a salutary fear of being punished with death which if anything could, would have prevented their delinquency. In a former Session of Parliament, a law passed, which took away the punishment of death for the offence of sheep stealing. A magistrate of the highest respectability, had, however, informed him that, where they used to lose one sheep, they now, under the altered law, lost ten. In the parish where he resided the offence of sheep stealing has also increased tenfold. The punishment under the new statute was transportation; and he admitted, that that punishment fell with much more certainty on the criminal, than the capital punishment. But the increase of the cases proved that the mitigation of the punishment in no way discouraged the frequency of the offence. They had taken away the fear of death, and had thus diminished the fear of committing the crime. The experience of ages taught our ancestors that it was much wiser to affix a heavy and extreme penalty to burglary, robbery, and violence, and to leave it in the discretion of the judge to mitigate that penalty according to the character of the facts. And he must challenge hon. Gentlemen who talked so freely and so self-complacently about their strong objections to lodging this discretion with the judges, to come forward with authenticated instances—in which those venerable and learned persons had abused their discretionary power. He was prepared to maintain, that they had ever exercised it with the greatest wisdom and humanity. He willingly gave the noble Lord, the Secretary for the Home Department, every credit for the purity of his motives in proposing this change in the penal code; at the same time he thought it was a very mischievous alteration, and it was impossible for him to support the noble Lord's proposition.

§ Sir Robert Peel
could not agree with his hon. Friend; for his argument, as to the results which the experience of our ancestors had arrived at, and the expediency of our imitating those results, would go to affix the penalty of death to every offence against person or property, however modified or mitigated by the circumstances attending it. He could not perceive the expediency or propriety of the doctrine which prompted our ancestors to exact the life of a man for robbing another man of his sheep. The question immediately be- 259 fore the House was, shall we diminish the discretion of the judge in apportioning; sentences in criminal cases; however theoretically perfect the state of that law might be which affixed certain punishments to certain offences it would be impossible in practice to confine the discretion of the judge in sentencing for those offences within certain and specific limits. The administration of the criminal law, could not be so administered. If they were to require that the punishment affixed to each offence, as its penalty, should be inflicted in every instance, the law would become of such intolerable severity that the public would revolt at its execution. The hon. and learned Member for Liverpool seemed to think, that the Legislature should limit the discretion within certain defined limits, because of the variety of tempers and feelings, in the different judges; but since he admitted, in the same breath, that some such limits must be allowed, it was evident, from his own argument founded on this variety, that the other part of his proposition, as to laying down certain defined and specific limits, beyond which this discretion should not be carried, was altogether impracticable. He was however prepared to admit, that if practically you were to assign no limits to the exercise of this discretion on the part of the judges, you would be countenancing a practice to the full as absurd and inexpedient as that which your specific limitations would, undoubtedly, introduce.

§ Mr. Pease
was far from fearing that the discretionary power of the judges was abused; apprehensive, lest, in regulating or amending the existing law, they should too much narrow its exercise. To the judicious occasions upon which this had been put forth, and the beneficial consequences which had ensued from it, he could speak from personal observation.

§ Lord John Russell
said, with regard to the case suggested by the hon. Member for Finsbury, as to the liability which a man would expose himself to, if, being caught in the commission of a burglarious offence, he were to knock down or wound a constable in the attempt to effect his escape; it was merely necessary to say, that that would be a case in which the judge who tried it would certainly affirm, that that was not a case which this part of the law was intended to visit.