PUNISHMENT OF DEATH.

HC Deb 15 July 1840 vol 55 cc733-49

On the Order of the Day for the House resolving itself into a Committee on this bill,

The Attorney General

hoped that his hon. and learned Friend, the Member for Ipswich, would not press this bill during the present Session. If he should press it, it would place him (the Attorney-general) in a most painful and embarrassing situation. He had always been a warm friend to the abolition of the punishment of death in all cases where it was practicable, and he had laboured most zealously in that cause. He had assisted in carrying through two bills, which had the effect of diminishing the cases in which death could be inflicted from 200 to about fourteen. Those bills were passed in 1837, but they did not come into full operation until 1839. It was not, therefore, above a year that the country had had the means of trying the experiment. They ought to proceed with caution while they proceeded with zeal towards the object they had in view. Here was a bill having for its object the abolition of capital punishment in all cases except treason and murder—in England, and only in England—allowing the law in Ireland and Scotland to remain as it now existed. When his hon. Friend near him (Mr. Fox Maule) started that objection, which seemed to be considered unanswerable, the hon. and learned Gentleman himself yielded to it, and felt that unless he could bring in bills for Scotland and Ireland to pass stage by stage with the bill for England, it would not be right to pass the bill for England in the present Session. They had now reached the 15th of July, and were about to go into committee on the English bill; did his hon. and learned Friend hope to succeed in introducing and carrying through this Session bills for Ireland and Scotland? If he took in hand a bill for Scotland, he would find it a most arduous task. He would not have to deal merely with the statute book, but he would learn that, it was considered, that by the common law of Scotland, capital punishment might be inflicted in certain instances, and that those instances were not very well defined. But, independently of this argument against proceeding with the measure, he had objections to the provisions of the bill itself. Notwithstanding the zeal and industry of his hon. and learned Friend, he had entirely omitted one case in which capital punishment might be inflicted in England. As the law now stood, the forging and counterfeiting stamps in certain cases was a capital felony, without benefit of clergy. This, too, his hon. and learned Friend had entirely omitted. And why? Because he had not time to give that consideration to the subject which its solemn importance demanded. Other parts of the bill were liable to some most serious objections. What all were agreed ought to be established in the criminal law of this country was—that the punishment for each offence should be certain and well defined; but what did he find here? In fourteen instances of offences in which death might now be inflicted, his hon. Friend, in abolishing that punishment, had not provided another and an appropriate punishment for each offence, but he had lumped them together, and said that they should be punished by transportation for life, or for any term not less than seven years, or by imprisonment in England for five years, with or without hard labour. What sort of legislation was this, allowing, as it did, a discretion to be left with the judges, which ought not to be left to any tribunal, however enlightened. If his hon. and learned Friend had taken the time which was necessary for so very important and arduous an undertaking, he would have fixed a specific punishment for each offence which was now punishable with death, and which he considered ought hereafter to be punished in a more mitigated manner. The cautious mode of proceeding was this, that they should ascertain by experiment before they actually enacted a statute, and see how the system worked which they wished permanently to establish. It was in that way that his noble Friend the Secretary of State for the Colonies proceeded, before he introduced those bills which took away the punishment of death in a vast variety of cases, and he was now proceeding in the same way. Since those bills had passed, the punishment of death had only been inflicted in cases of murder, with one single exception; and that was in the case of an attempt to murder, under very aggravated circumstances. He was not prepared to say whether they ought to abolish the punishment of death in every case, however atrocious the crime, merely because it so happened that the victim survived a year and a day, although he might have been left for dead, and although the case was attended with circumstances of the greatest enormity. Since those bills had passed, the punishment of death had been inflicted in one case for an attempt at murder, and, he believed, with the approbation of the great bulk of the community. Why, he would ask, should this subject be taken out of the hands of his noble Friend? Had his noble Friend shown that he had waxed cold in the cause? No; he was as zealous as ever to promote the great end which all were anxious to attain; and he, therefore, again entreated his hon. and learned Friend to suspend all further proceedings till the next Session of Parliament. He would ask him, had full inquiry been made as to the opinions of the judges upon this question? Had they been consulted? They were now on the circuit, and it was utterly impossible that their opinions could be taken upon the details of the bill. Was it not desirable that their opinions should at least be known with respect to a certain offence which he could only glance at? His hon. and learned Friend would know what he meant. In a bill which had passed through the House of Commons, a clause was introduced to take away the punishment of death for those offences, but in the House of Lords that clause was struck out upon the suggestion, he believed, of a noble and learned judge. Was his hon. and learned Friend aware that that objection had since been removed in that quarter, and did he think it possible that such a bill as this could pass without discussion in the other House? If not, then was it possible that any discussion could, at this late period, with advantage take place? Under all these circumstances, he thought his hon. and learned Friend would best consult the object he had in view, which was, not to gratify any personal vanity, or to obtain any temporary popularity, but to advance the great cause of ameliorating the criminal code of this country, by the abolition of the punishment of death in as many cases as possible, by postponing this measure to another year.

Mr. Kelly

must express the very great concern which he felt, that in pursuing the course which he intended to pursue upon that occasion, he should give the slightest displeasure to his right hon. and learned Friend the Attorney-general. But at the same time he should not act as his strong sense of duty prompted him, if he acceded upon that occasion to the proposition of his hon. and learned Friend. His hon. and learned Friend implied that he had taken the present matter out of the hands of the Government and the noble Lord the Secretary for the Colonies. Now upon that point he should take the liberty of reminding the hon. Gentlemen opposite, that before he had ventured to undertake a measure of that kind, he had distinctly asked whether the noble Lord the Secretary for the Colonies, or any member of the present Government, in- tended bringing forward any similar bill during the present session. It was only upon getting a reply in the negative to that question, that he had attempted to originate such a proposition as that then before the House, He had put the question at a time which would, if they wished, have enabled the Government to have passed those bills long before that day. But he had been told that the Government had no such intention. And it was only when he found that the hon. Member for Wigan, whose exertions in this cause deserved the greatest commendation, and that the right hon. Member for the Tower Hamlets, both of whom he had endeavoured to induce to take this matter up, and to whom he had offered his cordial assistance, had declined doing so for the present, that he had felt himself obliged by a strong sense of duty to originate and bring on this matter. Under these circumstances he had given notice after last Easter of his intention of bringing in a bill on this subject. He understood, too, that her Majesty's Government had no objection to the principles of the bill. The first reading had passed without discussion— so had passed the second reading. But now, when they came to the committee, this objection for the first time was made, and an impediment thrown in his way. But he felt it to be his duty to press that bill forward; and he was determined to move that the Speaker should leave the chair, that they might go into committee upon the bill in question. His hon. and learned Friend had complained that he had failed in bringing in a bill extending this measure to Ireland. On a former occasion he stated that his only reason for not doing so was, that he had not an opportunity of ascertaining the opinions entertained by hon. Members connected with that country. As soon as he learned that it was the desire of a great majority of the Irish Members that a similar bill should be brought in for Ireland, he, without delay, proposed a bill for that purpose, which was now on the table of the House, and which he intended should be read a first time to-morrow. He had also caused a bill to be prepared to extend the measure to Scotland, and it was now ready to be laid upon the table; but in consequence of a suggestion which had been made to him, he should submit it to the Lord Advocate in the course of to-morrow; and if that learned Lord would lend his assistance to the measure, although it might he accompanied with considerable difficulty, he felt that that bill might be passed this session. His hon. and learned Friend had objected to his (Mr. Kelly's) having substituted for the punishment of death the punishment of transportation for life, or for any period not less than seven years, or imprisonment in England of not less than five years, with or without hard labour, at the discretion of the judge. That point of discretion indeed was the principal objection. Now he begged to ask in what case of felony punishable with anything less than death, was not that discretion left to the judge? Why, in the very bills introduced by the noble Lord in 1837, that discretion was given to the judges precisely as he proposed now to give it. The only instance that he at this moment recollected of a different course having been pursued, was in the case of removing the punishment of death, and substituting the punishment of transportation for fourteen years certain, and that instance had been the subject of greater and stronger objections among the judges themselves, the counsel at the bar, and with the public, and he might say with the House of Lords, than any bill that had ever been passed by the Legislature of this country. And the reason was obvious, because offences that were subjected to capital punishment admitted of so many shades and degrees of guilt, that if they fixed one certain punishment to particular description of offence, which the judge could not in any degree mitigate, it would be punishing crime, not according to the degree of guilt of the party committing it, but making persons whose offence might be very light and venial, although within the terms of the law liable to a severity of punishment altogether disproportioned to the offence, and which would raise one universal outcry against the law if it were suffered to exist. One word with regard to consulting the judges. If the noble lord considered it necessary to have the opinions of the judges on the subject he took it for granted that he had consulted them. He had not felt himself justified in consulting the judges in a formal or official way, under such circumstances, as to entitle him to state their opinions upon this subject, and for this very obvious reason—that the judges being about to go the circuit, he thought, if it were publicly known that any of them were of opinion that capital punishments should be abolished in certain cases, undue advantage might be taken of it, even by counsel who were employed by prisoners charged with such offences. He had, therefore, forborne, except in common conversation, to communicate with the judges upon the subject, but he could venture to say, that if this bill passed with the sanction of the Legislature, the judges as a body would be found among the last of her Majesty's subjects to complain of it. With respect to the instance of capital punishment, which was omitted in his bill—the offence of forging stamps—he presumed that it had by accident, and per incuriam, been omitted by the noble Lord from his bills in 1837. He felt it his duty, from which he would not shrink —a duty in which he hoped he should be supported by a great majority of the House, and, as he was sure he should, by a very large majority of the enlightened part of the community, to press this bill forward without a moment's delay, and obtain, if possible, the sanction of the whole Legislature to a measure which, he believed, would tend more to improve the national character, and prevent crime, than any other measure (except the bills for the introduction of which the country was indebted to the noble Lord) that had passed the Legislature within the recollection of the oldest man now in the House.

Lord J. Russell

did not think the hon. and learned Gentleman had correctly represented the course which his hon. and learned Friend, the Attorney-general, and the Members of the Government had taken upon this question. He had stated, that the Attorney-general had now, for the first time, stated his objections to proceeding with this bill in the present Session. But he had taken exactly the same course when the hon. Gentleman first proposed to bring in the bill. He, on, that occasion, stated the reasons why he thought it inexpedient to proceed with the subject this Session, and the Attorney-general had only repeated those reasons, with other objections taken to the bill itself. At the same time, he did not mean to say, that that opposition was what the hon. Gentleman now stated it to be— namely, an opposition to the principle of the bill. Neither he nor his learned Friend, the Attorney-general, denied that there were cases in which capital punishment was now inflicted ought to be taken away. That he understood to be the meaning of the bill; therefore, he would not allow it to be said that, because he did not think it was an expedient course to proceed with the bill this Session, and had said that the Government was not prepared to bring in a measure upon the subject, therefore, he was in favour of keeping up capital punishment in every case in which by law it might now be inflicted. But with regard to some of the cases enumerated in this bill he felt very great difficulty. That difficulty had been increased, and not diminished, by a document which had only been delivered this day, namely, a table of the number of criminal offenders. He had before stated, that he thought it was desirable to wait till next year, when they would have obtained more experience with regard to the operation of the bills passed in the year 1837. The hon. and learned Gentleman himself might feel no difficulty upon the subject, because all his arguments were in favour of entirely abolishing the punishment of death. When a gentleman had once made up his mind in favour of the abolition of the punishment of death in all cases, there was no question with him as to the degree in which the abolition of that punishment should be carried, or as to the operation of the law; but he not being of that opinion, he did not feel, in particular instances, a very considerable difficulty. He did not think the hon. and learned Gentleman had represented quite correctly the bills which he had the honour of introducing in the year 1837. The hon. and learned Gentleman said, that they left the punishment as much to the discretion of the judge as the bill which he had himself brought in. He certainly did leave the punishment of imprisonment in every case to the discretion of the judges; but with regard to offences against the person—burglary, stealing, and robbery, and with regard to the crime of piracy, there was a certain term of transportation above seven years, being in one instance ten years, and in another fifteen years, below which the judge could not sentence any offender. Therefore, it was not exactly a correct representation of the fact to say, that the hon. and learned Gentleman had followed the Acts then passed. He did not mean to contend, in any way, against the principle of the bill; and as the hon. and learned Gentleman, as he thought unadvisedly, wished to persist in going into Committee, he certainly should not oppose the Speaker's leaving the chair, or give to the bill any other opposition than by leaving it to the hon. and learned Gentleman to decide whether it was wise and expedient to proceed with it.—House in Committee.

On the paragraph of the preamble reciting the Act, which inflicted the punishment of death for the offence of setting on fire, or destroying King's ships, or other property relating thereto, being read,

Lord John Russell

said, that he certainly did introduce a clause in his bill of 1837 to the same effect, but it was struck out by the Lords, upon the ground that it was a crime partaking very much of the character of treason; that it was a very high offence against the state, and was one which, not being frequently committed, was not lightly to be made the means of depriving persons of life wantonly or unnecessarily. It was, therefore, considered that this safeguard as it were to the state, and as a matter concerning the means by which the state was enabled to carry on its defence, should be preserved. He confessed, upon considering these arguments afterwards, his opinion was, that they were well-founded, and that he was mistaken in his original proposition; he, therefore, should move the omission of this paragraph.

Mr. Sergeant Jackson

concurred in the views of the noble Lord. The offences as defined by this paragraph was nothing short of levying war against the Queen; he hoped his hon. and learned Friend would not consider the omission of the paragraph an invasion of the principle of his bill.

Mr. Sergeant Talfourd

believed first thoughts were generally best, and the noble Lord's original proposition was most in accordance with the enlightened dictates of humanity and sound policy. There was a clear distinction between such offences involving merely the destruction of property and cases of high treason. He hoped the paragraph would not be expunged from the preamble.

Mr. Kelly

understood, that the leading principle of the noble Lord's own bill in 1837 had been to exempt from capital punishment all offences merely against property, leaving those connected with violence or danger to the person liable to the extreme penalty of the law. This was an offence directed clearly and solely against property; and on the principle of the noble Lord himself the paragraph should be maintained.

Mr. F. Maule

put the case of ships being fired at sea, which having always a supply of gunpowder on board would endanger the lives of hundreds of her Majesty's subjects. Was not that an offence for which it was fitting the capital punishment should be retained?

Mr. Aglionby

said, in case lives were sacrificed, and if the person committing the crime did not himself perish in the conflagration, he would doubtless be indicted for murder.

Mr. C. Buller

said, his mind had been much shaken by what had fallen from the hon. Under-Secretary (Mr. F. Maule.) Suppose the case of a ship in Portsmouth harbour, and an individual from malice going and attempting to set it on fire, was there a crime more abominable than that of setting fire to a ship with perhaps 800 persons on board; and if the individual avoided the crime of actual murder in such a case, were they not to punish him for this most diabolical act? He would punish the intent to murder as severely as murder itself.

The Committee divided on the question that the paragraph stand part of the preamble:— Ayes 48; Noes 30: Majority 18.

List of the AYES.
Aglionby, H. A,	Morris, D.
Alston, R.	Muntz, G. F.
Bainbridge, E. T.	Nagle, Sir R.
Barnard, E. O.	Pechell, Captain
Bernal, R.	Rice, E. R.
Boldero, H. G.	Rundle, J.
Bridgeman, H.	Stock, Dr.
Brotherton, J.	Style, Sir C.
Duncan, Viscount	Talfourd, Sergeant
Duncombe, T.	Tancred, H. W.
Fielden, J.	Thompson, Mr. Ald.
Hawes, B.	Thorneley, T.
Hill, Lord A. M. C.	Turner, E.
Hobhouse, T. B.	Vigors, N. A.
Hoskins, K.	Villiers, hon. C. P.
Hughes, W. B.	Wakley, T.
Hume, J.	Wall, C. B.
Hutchins, E. J.	Warburton, H.
Ingham, R.	Williams, W.
Jervis, S.	Wilmot, Sir J. E.
Langdale, hon. C.	Winnington, H. J.
Langton, W. G.	Wood, B.
Lascelles, hon. W. S.
Lennox, Lord A.	TELLERS.
Lushington, rt. hn. S.	Ewatt, W.
Mackenzie, T.	Kelly, F.

List of the NOES.
Acland, T. D.	Hector, C. J.
Adam, Admiral	Hodges, T. L.
Baldwin, C. B.	Hotham, Lord
Baring, rt. hn. F. T.	Inglis, Sir R. H.
Barry, G. S.	Morpeth, Viscount
Berkeley, hon. C.	Norreys, Sir D. J.
Bewes, T.	O'Ferrall, R. M.
Blake, W. J.	Pakington, J. S.
Botfield, B.	Russell, Lord J.
Brownrigg, S.	Seymour, Lord
Buller, C.	Stanley, hon. E. J.
Campbell, Sir J.	Teignmouth, Lord
Corbally, M. E.	Wood, Colonel
Courtenay, P.
Elliot, hon. J. E.	TELLERS.
Fitzsimon, N.	Jackson, Sergeant
Grey, rt. hn. Sir C.	Maule, hon. F.

On the seventh paragraph of the preamble referring to the crime of rape.

Lord J. Russell moved that it be rejected. He thought that it might be possible to frame a clause for visiting with the punishment of death the more aggravated cases of rape.

Sir R. Inglis supported the motion.

Mr. Sergeant Jackson

was anxious to retain the paragraph. Nothing was more frequent than for charges of this nature to be preferred for the mere purpose of forcing a marriage, which showed the danger of having such a punishment for this crime.

Mr. Hobhouse

hoped the clause would be allowed to stand without any alteration. Charges of this nature were often preferred from conspiracy. He objected to keeping the punishment of death for this offence on our statute-book, when the punishment was virtually repealed; for in every instance where persons had been found guilty of this offence the punishment had been commuted; and this commutation of the punishment was calculated upon by the criminals as much as if there were no capital punishment for the offence.

Mr. C. Berkeley

said, a one-sided view had been taken of this question, and cases had been alluded to where the of-fence was committed by one person under circumstances of sudden impulse of passion. But there were cases where the offence had been committed by several associated together on unprotected females, and to meet such atrocious cases as these he thought the capital punishment ought to be retained.

Mr. Langdale

contended, that the crime was an irreparable mischief to a virtuous female, and, therefore, he would retain the punishment of death for this offence.

Mr. F. Maule

said, whatever unpopularity might attach to the opinion, he was decidedly of opinion that in certain cases the punishment of death did act as a preventive. He thought, that if the punishment of death were removed, this crime, instead of diminishing, would increase. It was better to retain the punishment, though it was rarely exercised, in order to meet extreme cases, than to abolish the punishment and lose this power.

Mr. C. Buller

said, the real strong objection against the punishment of death was its irrevocability. He thought there was no offence to which they should be more careful of attaching irrevocable punishment than this, because there was no offence in which it was so difficult to get at satisfactory evidence.

Mr. Bernal

thought, that the chance of obtaining a conviction was a strong argument for an alteration of the law. There were cases in the annals of our criminal jurisprudence in which juries had over and over again refused to convict for this crime. The death of the offender was no reparation to the unfortunate person placed in the horrible situation of a female who was the object of the crime. If a man was maimed or mutilated, was not the consequence equally irreparable? The effect of capital punishment was to incite the offender to add murder to the crime, in order to prevent detection. On the whole, he thought an alteration of the law would not only prevent the commission of the crime, but lead to a certainty of punishment.

Mr. Ewart

was one of those who objected to capital punishments altogether, not from any sympathy with the criminals, but because of its inefficacy to prevent crime. It was his firm conviction that the time would come when the judges of the land would be advocates for the abolition of capital punishments.

Mr. Muntz

said, what the committee had to determine was, which was the greater evil, rape or murder. Capital punishment for the former would incite an individual to commit the latter.

The Committee divided on the original question:— Ayes 50; Noes 25: Majority 25.

List of the AYES.
Aglionby, H. A.	Lascelles, hon. W. S.
Bailey, J.	Lennox, Lord A.
Bainbridge, E, T.	Lushington, C.
Baines, E.	Mackenzie, T.
Bannerman, A.	Morris, D.
Barnard, E. G.	Muntz, G. F.
Barry, G. S.	Pechell, Captain
Bernal, R.	Rice, E. R.
Bewes, T.	Rundle, J.
Boldero, H. G.	Style, Sir C.
Brotherton, J.	Talfourd, Mr. Sergt.
Bruges, W. H. L.	Tancred, H. W.
Buller, C.	Teignmouth, Lord
Courtenay, P.	Thornely, T.
Ewart, W.	Turner, E.
Fielden, J.	Vigors, N. A.
Hawes, B.	Villiers, hon. C. P.
Hindley, C.	Wall, C. B.
Hobhouse, T. B.	Warburton, H.
Hodgson, R.	Williams, W.
Hoskins, K.	Wilmot, Sir J. E.
Hughes, W. B.	Winnington, H. J.
Hume, J.	Wood, B.
Hutchins, E. J.
Ingham, R.	TELLERS.
Jackson, Mr. Sergt.	Kelly, F.
Jervis, S.	Lushington, rt. hn. S.

List of the NOES.
Acland, T. D.	Inglis, Sir R. H.
Baldwin, C. B.	Langdale, hon. C.
Baring, rt. hn. F. T.	Morpeth, Viscount
Berkeley, hon. C.	Nagle, Sir R.
Blake, W. J.	Pakington, J. S.
Botfield, B.	Pigot, D. R.
Bridgeman, H..	Russell, Lord J.
Brownrigg, S.	Sheil, rt. hn. R. L.
Darby, G.	Stock, Dr.
Elliot, hon. J. E.	Thompson, Mr. Ald.
Fitzsimon, N.	Wood, Colonel T.
Greenaway, C.	TELLERS.
Hector, C. J.	Maule, hon. F.
Hodges, T. L.	Grey, Sir C.

On the next Paragraph,

Mr. Sergeant Talfourd

said, as it would not be in his power to attend the future stages of the bill, he wished without bringing on a general discussion, to express his entire concurrence in the principle which the House had thus far sanctioned. At an early period of his life, and just as he entered on the profession in which he had now been engaged a great number of years, he had entertained, and he had not forgotten it, a strong feeling with respect to the infliction of the punishment of death, and he thought it right to say, that long experience as to the operation of the criminal law had strongly confirmed that impression. He felt astonished when he heard an hon. Member to-night state, that there were other punishments which he regarded to be as severe as the punishment of death, for he would desire to ask the hon. Gentleman—Do you know what the punishment of death is? Have you any means of judging what it is? Death was a great change, a change it might be for good, no doubt; it was a great and a good change to the good and to the wise and to those who were passing to their society. It was a change that must always excite sympathy and to a certain degree conciliate regard from those who were destined to tread the same unknown path. Therefore, when they were told they were trying to excite sympathy in favour of the criminal, he answered that nothing could excite half the sympathy occasioned by the infliction of the punishment of death upon a criminal. He was regarded as one about to appear at that terrible tribunal they all looked to, and must of necessity have his crime forgotten for the time by those who must shortly follow him. Therefore, he said, a Christian Legislature before it inflicted death, should have no doubt what the effect of that infliction was. They had the portal of the grave partially unveiled, and as far as it was unveiled, he declared he was astonished that a Christian legislator could consent to defeat the object of this measure. He concurred with the hon. Member for Wigan, that the support given to the bill showed that a Christian spirit had at length passed into our legislation, and he trusted before long they should be able to say, not with Judge Hale, that Christianity was part and parcel of the law of England, but that it was its inmost principle, its vivifying soul and spirit, and that this punishment would be so separated from it, and with results so triumphant, that they should feel amazed to think of its infliction. He, therefore, begged to express his thanks to his hon. and learned Friend for this great step in this great course, and he trusted he would persevere until the cause of humanity prevailed, and (for this bill would not entirely do so) until he had wiped off' the stain which now disgraced a Christian Legislature.

Sir C. Grey

would suggest to the hon. and learned Gentleman the propriety of modifying some of the clauses, so as to be secure of carrying some part of his bill. He put it to him whether he thought he should be able to carry his bill in its present state? With regard to the subject of piracy, from which it was proposed to re- move the punishment of death, he knew of cases of piracy in which such atrocities had been committed, that he could not but think that those who were guilty of them ought not to be suffered to remain in this world. The hon. and learned Member then alluded to the case of Abraham Thornton, and put it to the hon. Gentleman, whether if, in a case of rape, the woman was driven by mental anguish to commit suicide, he would content himself with punishing the criminal in the same manner only as a common pickpocket.

Mr. Serjeant Jackson

confessed that his objection to removing the punishment of death for attempts at murder had been completely removed by the argument of the hon. and learned Gentleman, and he, therefore, should support that clause. He was happy to hear that the feeling out of doors was against the infliction of the punishment of death.

Mr. Wakley

entreated the hon. and learned Gentleman to consent to some of the modifications proposed by the Secretary of State. He believed it would be acknowledged by all acquainted with the other House of Parliament, than in its present state it would not pass that House. He himself thought that in aggravated cases of rape the existence of power to inflict the punishment of death ought to be retained. He thought the feelings of the House were taking a wrong direction on the subject. The learned Serjeant, in a very pretty and poetical speech, had expressed great sympathy for the murderer, but was none to be felt for the murdered? If the condition of the murderer, prepared as he was, was dreadful, what must be the case with the murdered, sent, as he was, into the presence of his Maker without one moment's preparation? He believed that there existed among juries an unconquerable aversion to convict in cases where capital punishments were inflicted. The editor of a morning paper had said he would not convict in a case of rape if capital punishment were to follow, that is to say, that he would commit perjury rather than convict. What were they to do with these sort of persons, as they might, and he believed some of them would, from a mawkish sentimentality, refuse to inflict any punishment? The hon. Gentleman then alluded to the case of Gould, who had been brought before him; there was no breach in the chain of evidence, and yet one of the jury at the inquest had said that although he had no doubt of his guilt, yet if his verdict were to consign him to death, he would not convict him. He knew not how to legislate for such persons as these. He was no lawyer, and lie thought justice would be better administered if there were fewer of them; for their minds were so disciplined and instructed to deceive, that jurymen, at the conclusion of a case, were scarcely able to know what were the facts submitted to them to decide. He should like to know what was the distinguishing feature between murder and manslaughter—he imagined it was merely in intention—that the crime consisted in the intention and not in the result, and he would ask the hon. Gentleman if he was inflexible on retaining the clause in its present shape, and that in no case the attempt at murder should be punished with death? He thanked the hon. and learned Gentleman for bringing forward the bill, which he thought would be of advantage to the country.

Mr. F. Kelly

said, that it was his opinion that the punishment of death should be taken away in all cases except high treason and murder; and such being the case, he thought it his duty to submit his opinions to the committee and to the House, and he hoped the bill would pass in its present state. He should endeavour to advert to the argument of the hon. Gentleman on the receiving the report. He firmly believed that if the sanction of the House should be given to the bill, it would not meet with any serious opposition in the other House.

The remainder of the preamble and clauses of the bill agreed to.

House resumed.