§ Mr. Fitzroy Kelly moved the third reading of the punishment of death abolition bill.
§ Lord John Russell
said, that he certainly felt it his duty to oppose the third reading. In doing so, however, it was not necessary to go into the whole question of 1079 the criminal law, but he submitted that as some of these questions had been brought under the consideration of the House in 1837, and as the others were hardly in such a state that Parliament could have made up its mind as to the course of legislation which ought to be pursued, it was not advisable to proceed with this bill in the present Session of Parliament. The hon. and learned Gentleman in the statement, the very able statement, which he had made upon introducing this bill, had founded his argument upon the general policy of the abolition of death, and had stated that its abolition, except in cases of murder and high treason, was but a prelude to the entire abolition. He would not enter upon that argument, but he could not agree to this bill on the ground that it was desirable to prepare the way for a total abolition, being of opinion that society was not now in such a state as that the punishment of death could be safely dispensed with. Then if they were to take the question in a more limited view, and consider in what cases the punishment of death ought to be applied, they would have the particular cases to which the present bill applied. First, there were the cases affected by the bills of 1837. Those bills were founded, as the hon. and learned Gentleman had truly said, upon the principle that it was not desirable to affix the punishment of death to minor offences against the person, but that it was just and proper to retain it for serious offences against the person. Therefore all the cases in which it was retained were for attempts at murder; for injuries inflicted which might be dangerous to life; robberies committed with blows and violence; burglary, accompanied by violence to persons; setting fire to a dwelling-house in which persons were at the time; or setting fire to ships which might destroy life. For all these offences, as being offences seriously affecting life, and aimed against the lives of individuals, the punishment of death was retained. The consequence of those alterations in the law had been, that there had been a very considerable decrease in the number of persons against whom sentence of death had been pronounced, because, with respect to some of these offences, and particularly burglary, the definition had formerly been so wide, that it included a vast number of cases of no very serious character, in which the judges 1080 had recommended that persons convicted of capital offences should be imprisoned only for three or six months. It was not the fact, as had been stated with regard to all those offences that are now punished with death, that the general practice is not to execute the persons convicted. In a small number of cases of the persons convicted, the circumstances may have been such, that the judges have recommended them to mercy, but with regard to one of the offences which had been mentioned, attempts to commit murder, and attacks injurious to life, there had been two cases in which the punishment of death had been inflicted. The first case happened during the time that he himself was Secretary of State for the Home Department. It was this:—A person who had for some time been leading a dissolute and disorderly life, in order to provide himself with means for continuing his course of wild and disorderly conduct, determined to murder and rob a farmer who was supposed to be possessed of money, as he returned from market. He accordingly placed obstacles in the way of the farmer, over which the farmer's horse stumbled, and when he had fallen, the man, who had been concealed near the spot, rushed out and shot the farmer with a pistol, inflicting a most dangerous wound upon him, from which, however, the farmer ultimately recovered. Here was not only an intention to murder, but, in addition, a most dangerous wound had been inflicted. The other case was one in which poison had been administered, the effect of which had been to endanger life, although the person had ultimately recovered. He owned that he did think, that those were not cases from which the punishment of death should be withdrawn, nor did he think that there ought to be an affection shown for these offenders. Without saying that no change might be ultimately made in the law by which they might do away with capital punishments for some offences, he thought, that as a great alteration had been made in the law relating to the capital punishments in 1837—and he did not see that they could be so soon called upon to mitigate the capital punishment which had been proposed to be inflicted by those laws —they had had but a short experience of the effect, especially as the number of persons convicted had been much reduced, and as they had no evidence to show that juries 1081 were unwilling to convict because of the existence of capital punishment. Inferences might be drawn from what had already taken place, but he would not dwell upon them, because they could not be fair after a short experience of twelve months. The bills of 1837 had reduced the number of capital offences from between 400 and 500 to about fifty, more than thirty of which were under the law as it had formerly existed. He therefore thought that Parliament had not any good grounds for reducing the number so immediately. With regard to other offences not in the acts of 1837, there had been considerable discussion in the committee, and although the House had decided in favour of retaining them in the hon. Member's Abolition Bill, he owned that he was not convinced of the propriety. One offence was the setting fire to ships in her Majesty's dock-yards. This was one of the offences for which it was said that it might be proper under any alteration of the law to abolish the punishment of death, and to inflict a lesser punishment. But the offence partook very much of the character of high treason, for it destroyed the means and resources of the state, and it was not, in his opinion, one for which they ought to take away the capital punishment. Another, discussion in the committee related to the offence of rape. He owned that there was a great difficulty with regard to this offence. It was very difficult to bring proof to convince a jury that the offence was of such an atrocious and grave character to merit the punishment of death, or that there were not some circumstances attending the case which led to a supposition of improper conduct on the part of the woman. He would, therefore, wish, after having consulted others, for he did not himself know how it could be effected, that the attention of Parliament should be given to the question of the possibility of having some provision to form two degrees or classes of offences, and to enact that only the highest class should be subject to the punishment of death, because he did think, that the worst and most atrocious class sometimes committed by several persons, was not only the highest degree of offence towards the person against whom it was committed, but showed also the greatest brutality in the parties committing it. He did not believe that it would be advisable for Parliament to sanction any alteration 1082 of the law for this graver offence, nor did he fear that the juries of this country would, in such cases, bring in a verdict of acquittal, when they ought to convict. If it should appear impossible to make this division, or if it should be certain upon investigation that the graver offence was seldom committed, and that the general character of the offence was its less atrocious form, that would be a reason why they should take away the heavier punishment; but at the present moment, Parliament had not made sufficient inquiry to come to a decision. He was therefore of opinion that this bill should not be adopted in the present Session. When he said so, however, he begged to be understood as not giving the hon. and learned Gentleman or the House to suppose that he would support the hon. and learned Gentleman in the substance of his present bill in the next Session. He thought that with regard to offences against property, upon the point to which he had alluded, the filing of the dock-yards, and perhaps with respect to some other offences, there might be an alteration of the law in the approaching Session; but he could not say that for attempts at murder, or for violence against the person, the public should be left without that protection which the fear of the punishment of death was likely to afford. With regard to many of those offences, there was hardly sufficient attention paid to certain classes of the community that were affected by them. They were told of the effect produced by public executions upon persons who went to see them, and arguments of much weight were urged upon that ground; but there were two classes of the community with respect to whose conduct they should pay particular attention. One class was that which might be disposed to crime, that were on the very verge of it, and yet who, before they committed it, would consider whether the crime in which they were about to engage would lead to severe punishment. He could not but think that with regard to these cases the punishment of death, inflicted with the general consent of the community, would be of service for the dread which it would inflict. The other class of the community to which they were bound to pay great attention, was composed of those who were placed in exposed situations, either by passing from one part of the country to another, or by living in houses where vil- 1083 lains could easily break in, and who were particularly subject to attack. He thought that they ought to do everything in their power for the protection of this class. If it Could be made out that they would be equally well protected without the punishment of death, let it be so, and every one Would be rejoiced; but, above all, let them consider those who were entitled to their support. It had become usual, too usual, to give every sympathy to those o were sentenced to punishment for great crimes. It was too much the custom to find out every little circumstance that might tell in favour of a person who had committed a heinous offence; but let them not forget the duty which the Parliament owed to those who acted in obedience to the law, whose lives should be saved from criminals, and who would have nothing to protect them if they should be neglected by the law. Wishing, therefore, that the whole of this subject should be further considered, and as at that late period of the Session they could hardly expect that the other House would be able to deliberate fully upon it, he must oppose the third reading of this bill, and would move, by way of amendment, that it be read a third time that day three months.
§ Sir Charles Burrell
did not think the time was yet come for them to make any further alterations in the law. When they referred to the wisdom of our ancestors, he came to the opinion that there was not any justification for going farther than they had already done; and as regarded the protection of females, he hoped that the day would not arrive when the House Would withdraw that protection to which they were entitled, and which they had hitherto experienced.
concurred most fully in the opinion of the noble Lord (J. Russell) as to the necessity of seeming protection to her Majesty's subjects against the violence of criminal men, and he should have concurred still more fully in those opinions had the noble Lord shown, by the records of criminal justice, that the course formerly pursued, when the gallows was the ordinary mode of punishment, had afforded that protection to life and property which was so necessary. He agreed wholly and without reserve in the principle laid down by the noble Lord, but he dissented equally and unreservedly from the method which the noble Lord 1084 would resort to for the purpose of quelling crime. Nor was he one of those persons who were actuated in this belief by a false commiseration for the sufferers; he only looked at the interests and feelings of the population at large, and consulted only the means of affording them a greater degree of protection from fraud and violence than the practice of putting criminals to death had proved to give. If the noble Lord had descended to the details of the different crimes upon which he had expatiated, if, for instance, he had digested the tables which recorded the state of crime as regarded rapes, he would have seen in one short sentence the result of the present state of the law—namely, that in all prosecutions for rape the convictions, where they did not affect life, were immeasureably more certain than in the contrary case. Now he would not trouble the House at any length upon this topic, but let him only call upon them to listen to the tabular results of the last few years' experience with respect to the crime of rape, and they would be convinced that his argument was the true one, and by those results let the opinions of the noble Lord and his refutation of the reasonings by which the bill was supported be judged. Taking the space of four years preceding and ending in the year 1834, the number of convictions in rape cases, where the indictment was framed on the capital offence, was 18 per cent. on the numbers tried. In the four years commencing in 1835, and ending in 1838, the number of convictions in similar cases was 12 per cent. In the last year, when the punishment of death for that crime was, in consequence of the state of public feeling, abolished de facto—not by law be it observed—the effect of abstaining from the infliction of death was to bring the number of convictions up to 23 per cent., not one of the persons so convicted being hanged. What did these figures prove? Why, that when death was looked upon as likely to attend conviction of a criminal, the proportion of convictions was from 5 to 11 per cent, less than now when death was understood not to attend the offence. Was not this an alarming state of things? And if so, it was equally true with respect to all offences of which death was the final punishment. The convictions for the assault with intent &c, always ranged from 60 to 61 per cent. through the three periods he had adverted to, and the punish- 1085 ment due by law had been awarded; but had the indictments been framed on the capital charge, he had proved the proportions would have greatly preponderated the other way, and most of the offenders would have escaped with impunity. On these grounds, therefore, in demanding that the crime of rape be put into another category of punishment, he claimed to be the advocate of Woman, and when the tables relating to the effects of the punishment of death upon crimes of this class were digested, he would pledge himself to prove his assertion. The bill before the House being one affecting more deeply the interests of the community, and the question of life and death being involved in it to a serious extent, he trusted the House would not deem him impertinent if he drew attention to the general results of having done away with capital punishments in the cases already comprised in the bill of 1837. Take as one instance the crime of highway robbery:—in the three years ending 1833, the number of committals was 1,349, of whom 19 were executed; in the next three years ending 1836, the number of committals for the same crime was 1,053, and the number of executions 5. In the last three years ending 1839, when the capital penalty had been repealed, the number of committals dropped from 1,349 down to 889 —not one human life being sacrificed on the scaffold. Now, having stated this much, let him propound an opinion which was most firmly implanted in his breast —he would assert, that whatever might be the guilt of a criminal, he never should be prepared to sacrifice the life of that criminal, except for the benefit of others. In all cases of guilt, where death was asserted to be the proper punishment, the argument in support of it was, the great enormity of the offence; but this was an argument entirely beside the question, which only had in view the general good of the community, and this blessed result had attended the efforts of those who, like himself, viewed the question on the grounds just stated—that a proportion of one-third of a particular and most serious class of offences (highway robbery) had disappeared under the more humane dispensation of the law, and that many human lives had been saved. Was not this carrying a good principle into effect with benefit and advantage to all mankind? Let him ask his noble Friend 1086 (Lord J. Russell) where he found his justification for the sentiments promulgated by him? Had not all the beautiful anticipations of his lamented friend —the indefatigable labourer in the great Cause which he now advocated—Sir James Mackintosh, been amply realised? And had he (Sir S. Lushington) not therefore a right to demand of his noble Friend upon what grounds his opposition to the present measure was based? He would not weary the House by going into the contents of that invaluable book that was laid on the table from a committee; but he wished his noble Friend had consulted it, as then out of his own mouth he should have convinced him, not by reference to a particular period, but by the averages of many years. Whatever might be the fate of this bill let them stand oft the true principle of the Measure. Let no hon. Gentleman get up to waste the time of the House by taunting the advocates of this bill with false humanity. The principle they supported was one supported by experience and by just reasoning—it was the principle of the general protection of the public, particularly of desolate and defenceless females. By passing this bill you would, instead of 12 convictions out of 100 committals, the former average, hold out almost a certainty of 60 convictions out of 100 committals, for then the individual feelings of judges and juries would have nothing to fear from the administration of the law. Under this bill the certainty of punishment would be in unison with the feelings of the public at large, and the criminal, seeing no chance from uncertainty of punishment or sympathy, would be more effectually deterred than he yet had been.
The Earl of Darlington
agreed with many of the views of his hon. and learned Friend, but he regretted that he could not go with him to the extent that this bill would require. They had all heard, he was sure, with extreme satisfaction the speech of the noble Lord Opposite. There was scarcely a syllable in it that had not his hearty concurrence. He Wished not to be understood as the advocate of a sanguinary code of laws. So far was he from being such, that no one could have regarded, with greater horror, that system of criminal law which was in force in this country twenty-five or thirty-five years ago. For instance, he remembered that a man was hanged at Cambridge for 1087 poisoning a horse belonging to the late Lord Foley, at Newmarket. No person could revert to that execution without shrinking from the idea as one shocking to humanity, the more so as the man hanged was but the instrument of others, who escaped with entire impunity. It was gratifying to him to feel that no such occurrence could take place again. He rejoiced, also, that that revision of the criminal laws had taken place, for which we had to thank the right hon. Baronet, the Member for Tamworth, and also that we were indebted to the noble Lord for the bills of 1827. He concurred entirely in the provisions of those bills, except that he thought the noble Lord went too far in the clauses respecting rick-burning; and it was a fact, that offences of this kind were committed to a great extent in the years 1830 and 1831. Setting those points aside, he was willing to admit that the country had benefitted much by these alterations in our criminal code of laws. But as the criminal law had been administered of late, he would ask the House to recollect the executions that had taken place within the last three or four years, and then could any hon. Member say, that there was a single one of those executed who did not fully deserve his punishment? He was sorry that the hon. and learned Member for Ipswich, when enumerating in committee all the different acts under which criminals were liable to forfeit their lives, had not left out two or three, as in that case, he should have agreed with him. Even under those two or three statutes, he did not mean to imply that he wished that the punishment of death should be inflicted in all cases, but he thought it would be impolitic to take from the judges and the Home Secretary the power of occasionally mitigating capital punishments. Upon some points, he must entirely differ from the hon. and learned Gentleman. There was that of intent to murder. Now, there were some cases of intent to murder, which were of the greatest possible atrocity, and quite equal to any act of murder that could be committed. Suppose the case of a felon, who attempts to kill a person, but does not succeed outright, his victim is then left to linger, perhaps several months, or even three or four years. Did this fact make the crime less diabolical on the part of the ruffian who had done his best to commit the murder, and was it because the life still 1088 lingered in his victim; that such a criminal should not be made to suffer the full punishment of death? With regard to the crime of rape, he thought there could be but one opinion. The hon. and learned Member for Ipswich must admit, that cases did occur now and then which were so fully established, that the offender ought to receive the punishment of death. He therefore complained, that the bill proposed to take away from the judge the power of passing sentence of death in such cases of extraordinary atrocity. There was another horrid crime which was revolting to the general feelings of mankind. We had had, certainly, but very few instances of it, and God forbid that it should ever become less rare in this country. However, we had had instances of persons being fully convicted of this crime, and executed for it, and would any Member now get up in his place and say that those persons had not been properly executed. It would be recollected that three men were hanged some years ago at Lincoln for a most atrocious case of this crime. The punishment for murder was, he repeated, reduced as much as it ought to have been, and no person had reason to complain on that head. In fact, his hon. and learned Friend had failed to establish a single case of grievance, and what was a most extraordinary oversight was, that, while he proposed to do away with the punishment of death in certain cases, he did not come forward with a single punishment instead. Would he say, that the punishment of transportation could be at all considered as a substitute for death? There were many reasons against the bill which must suggest themselves to those who considered what was the duty of men who had to legislate for the well-being of society. He thought, at present, that the hon. Gentlemen from whom he had the misfortune to differ were influenced by a sentiment of false humanity, and he was convinced that if the bill passed, so far from being a public benefit, it would be found fraught with infinite mischief. Under these circumstances, he must oppose the third reading of the bill.
§ Mr. Hume
said, the testimony of the noble Earl went to show that a great improvement in public morals had taken place since the diminution of executions. Were not the same objections formerly urged against the mitigation of punishment for minor offences which were now 1089 urged against this bill? The noble Lord referred to the case of three men who had suffered death for a certain crime, and then he asked, did not these men deserve their punishment? But did that sacrifice of life prevent the crime and protect society? Did it guard against the evil they now sought to avoid? The noble Lord ought to see, while he thanked the right hon. Baronet the Member for Tamworth, and the noble Lord the Secretary for the Colonies for their acts, that the decrease of the number of executions had been followed in every instance, without exception, by a decrease of those crimes for which those capital punishments had formerly been inflicted; and he ought also to remember that the sacrifice of a single life by the law ought not to be sanctioned unless there was a prospect of doing good to society. This was the principle of the bill of the hon. and learned Gentleman, and he would submit to the House that the statement made by the noble Earl ought to make him vote for the entire abolition of the punishment of death to a greater extent than that now proposed. The noble Lord would proceed upon a vindictive principle: this bill proceeded on the principle of protecting the community at large. The noble Lord talked about the propriety of leaving a discretionary power with the judges. He was opposed to such discretion being allowed. He was not opposed to the exercise of discretion by the Crown in certain cases: but as a general maxim he would prefer seeing discretionary power kept out of view, and a fixed punishment instituted, always certain to be inflicted upon those criminals for whom it should have been provided. He would entreat the noble Lord (Lord J. Russell) to look once more at the experience of the past, and then he was sure he would not hesitate to agree to the third reading of this bill, and thus further a principle, the operation of which, the noble Lord confessed, had already conferred great benefit on the public.
§ Mr. F. Kelly
replied. If, in asking the House to agree to the third reading of this bill, it could be shown that the slightest increase in the number of crimes had taken place, he should have left the measure to be proposed by some Member more experienced in legislation than he; but in bringing forward this bill, and in now entreating the House to agree to pass it into a law, he had felt as morally certain as 1090 any man could, respecting what was yet to come, that the effect of the measure would be like that which had already followed every case of mitigation of the criminal law—namely, to diminish the number of offences in respect of which the punishment should have been reduced. He had had occasion, in meeting the arguments urged against his bill, already to remind the House that of 180 crimes once capital but for which the punishment had been reduced, not one had increased since the infliction of death had been taken away. And when they found after this long experience, notwithstanding the predictions that had been pronounced by the most wise and most learned, that crime would be multiplied and danger to society increased by the repeal of capital punishment—when they found that those predictions had been in every case falsified by events, why should they now suppose when a further mitigation of the law of capital punishments was called for, that different results would follow. He had listened to the arguments of the noble Lord opposite with all the respect to which every observation from him— particularly on such a question—was entitled; but, he must say, he had not been able to discover any ground upon which the noble Lord could establish a substantial distinction between the principle of the present bill, and the principle upon which the noble Lord proceeded with his own bills in 1837. The whole of the arguments against the present bill seemed to rest upon a few extreme cases, some real, some imaginary, adverted to by hon. Members, which could be included among the crimes that he proposed to exempt from capital punishment. He would beg the noble Lord and the House to recollect that, when the present Lord Chief Justice of the Court of Queen's Bench proposed to do away with capital punishment for forgery, some very moving pictures of domestic misery were brought forward to create an impression against him. It was urged on the House and on the country that, if you should exempt from capital punishment the crime of forgery, you would not only threaten the commerce of this great country with destruction, but you would also involve thousands of families in ruin. Nevertheless the noble Lord pressed forward his measure with a perseverance that did him the highest honour, and he succeeded in getting his bill passed through both Houses of Par- 1091 liament. What was the result? Why, the apprehensions so affectingly forced upon the public turned out to be groundless. The crime of forgery diminished, and we no longer heard complaints about families being threatened with ruin, and our commerce with danger; and even those most interested in the prevention of forgery acknowledged that the repeal of the capital punishment had been productive of the best possible effects. Why should we apprehend different results from the exemption of other crimes? He entreated the House to take this view of the question. He further begged of them to consider that, in asking them to pass this bill, he only asked them to make a law according to a practice which had for some time prevailed even against the law, for the offences he proposed to exempt from capital punishment by law had been long so by usage. The noble Lord knew how difficult it was to get a jury to convict, even in cases in which the guilt was brought home conclusively to the offender. This was because, if they found him guilty, he would be hanged, and in this sentiment the public feeling went along with them. He had that morning read a letter from Mr. Latham, of Leeds, stating that the treasurer for the West Riding of Yorkshire had just told him that, at the assizes for the county, the jury had in many cases refused to convict because the penalty of death would follow. And this feeling was general. The bar, the judges, jurors, in short, every officer and individual connected with courts of justice, would tell them that it was next to impossible to get a jury to convict in any case where the punishment was capital, except murder. He would appeal to every man familiar with the courts of justice, whether it was not almost impossible to obtain a conviction in any case excepting in a case of wilful murder. When he was told that in seeking to remove capital punishments he was giving way to false notions of humanity, and that he was withdrawing the protection which society needed, he would answer, that it was for the purpose of giving that very protection that he had introduced the present measure. If he felt that its operation would be to withdraw protection, he would not proceed with it: but it was because he felt confident of a result the very reverse that he was anxious to carry the present measure; 1092 and, in the cases in which he proposed to abolish capital punishments, to enact instead the severest kind of punishment short of death, convinced as he was that the most beneficial consequences would follow immediately on the change. If the operation of the present state of the law was to give protection to females in the cases which had been alluded to, the House would be right to reject the change he proposed, but let them see whether that punishment which the law at present inflicted tended to protect females. When they found that during the last four or five years out of 100 persons committed and tried for the offence in question, not more than twelve were convicted, they might well consider whether the present state of the law was any protection, as had been contended. If they found that, under the present state of the law, that particular crime was still committed to an extent that they ought not to expect in the present state of society, it surely became matter of very grave consideration whether the law was not defective, and whether a change ought not to take place in the mode of punishment; and he thought that when they saw so few convicted out of 100, it ought to prove that there was a serious defect in the law. He would refer for a moment to the case which had been alluded to by the hon. member for Cheltenham on a former occasion. In that case, three persons were tried for violating a female; and, notwithstanding the heinous character of the offence, they were acquitted. He found that the case had been alluded to by the noble Lord, when he brought in his bill in 1837. These men were tried for the offence, and were acquitted, under circumstances to which he would call the attention of the House. He found the facts stated in a paper which had been addressed to the noble Lord by some of the inhabitants of the city of Gloucester, in which city the case was tried, and which was as follows:—To the Right Hon. Lord John Russell.We, the undersigned, being resident in and near Gloucester, feel deeply interested in a trial that has just taken place at the assizes in this city, and considering its result has a most important bearing on the proposed alterations in the criminal laws now under the care of Government, feel it our duty to lay before your Lordship some important particulars of the trial, for the veracity of which we beg to 1093 refer to the judge (Mr. Baron Bolland) to Sergeant Ludlow, or to any other official person connected with the court.It appears that three men, named Parry, Wright, and Rea, were indicted for a violent assault and rape committed on the person of Mary Lee. The evidence not only proved most clearly the guilt of the prisoners, but also that the crime had been committed under the most revolting circumstances of violence and cruelty.The jury, after a long deliberation, inquired of the judge whether they could bring in any mitigating form of verdict which would save the lives of the prisoners, of whose guilt such an inquiry proves they were convinced? On finding, however, there was no alternative between acquittal and death, their fears of being accessory to the infliction of this dreadful punishment appears to have overcome every other consideration, as they soon returned a verdict of ' Not guilty,' to the astonishment of all who had heard the evidence given in the court. The case has produced an unusual sensation in this city and neighbourhood, and every one feels that there must be something decidedly wrong for men so clearly guilty of so black a crime to be thrown back upon society altogether unpunished, by the verdict of twelve disinterested men. And if the evil, wherever it may lie, is not speedily corrected, society will be left in a fearfully unprotected condition, and a great encouragement will be given to the commission of the deepest crimes.It is this circumstance that has excited and alarmed the public mind in this neighbourhood with regard to this case, and has induced us to bring it especially under the notice of your Lordship at this important juncture, as a clear and practical illustration of the evils arising out of our present system of criminal jurisprudence; evils which we believe can only be remedied by such an alteration of the law as shall substitute some severe secondary punishment for that of death.We may throw the blame upon the jury it is true, but that will not correct the evil of which we complain, since from what we have seen of the difficulty of obtaining convictions in capital cases, and from what we know of the growing repugnance in the public mind to sacrifice of life, we consider it quite certain that juries will be found more and more unwilling to become accessary to a punishment at which their feelings will increasingly revolt as it becomes more rare, and the uselessness of which, for the protection of society, is daily becoming more apparent.In the hope that this private communication of the facts above stated may tend to determine your Lordship in carrying the proposed ameliorations of the criminal law sufficiently far to meet the decidedly altered views of society, and to secure the community against the improper acquittal of guilty and dangerous men, we beg to subscribe ourselves, 1094 your Lordship's most obedieut humble servants.(Signed by the Mayor of Gloucester, four Justices of the Peace for the county and city, and an eminent Physician.)It was therefore seen that even for the offence so abhorrent to society as the offence in question, they could not get convictions; but he could not doubt, if the punishment were not capital, that in the number of cases he had stated, convictions would have been obtained if the punishment for the offence had been one short of death. Besides, he would ask, if there be a certain and severe punishment, would not parties be the more likely to be deterred, and would they not infer that if they were guilty parties they would be certain of being subjected to the punishment? All their experience was in favour of the good effect of making punishments certain; where they were not so, very serious evils resulted, as he had proved with reference to the present offence. With respect to the other offence, the attempt to commit murder, he thought there should be a distinction between that offence and the crime of murder itself. The sole object of punishment was, to prevent the commission of crime. They were not to punish criminals according to the degree of moral guilt, but in order to prevent crime, and while he retained the punishment of death for murder, he gave the best protection that could be given against the attempt to commit that crime. The principle of the bill having already obtained the support of the majority of that House, as it had obtained the support of the majority of the country, he did not think it necessary to trespass further on the attention of the House. He thought, that the time was come when the House ought to go on with the completion of the work which the noble Lord (Lord J. Russell) had so well begun. He hoped that the measure he had introduced would soon become the law of the land, and he did not entertain a doubt that the change would prove to be one most beneficial to society.
§ Sir R. Peel
could assure his hon. and learned Friend, that he did not believe that he had brought forward the motion through feelings of inconsiderate humanity, but that he thought he was taking by the measure he had proposed fresh and better security for the protection pf persons and of property. He was perfectly assured that such was 1095 the hon. and learned Member's object; but he having given the subject great attention, and having deeply considered the important consequences involved in the proposed change, had not thought that the necessity for it had been satisfactorily made out, and he was not, therefore, prepared to withdraw the punishment of death which the law at present affixed to certain offences. He was of opinion that they were right in making the amelioration of the criminal code proceed gradually, and accordingly as they found the people were prepared for the change; but he could not join the hon. and learned Member in carrying out that amelioration to the extent which he at present proposed to carry it. As to the reference which had been made to sixty convictions out of one hundred trials for the lesser offence in cases of rape, and only six convictions out of one hundred where the capital offence was charged, and the inference that had been drawn —namely, that in the one case the jury willingly convicted because the punishment was not capital, and that in the other there was an unwillingness on the part of the jury to convict because the punishment was capital—now, if the hon. and learned Member had proved such a state of things, they ought to take fresh securities to prevent the crime; but if it appeared that the difficulty in the latter class of cases arose from the defect of evidence which was frequently so difficult to bring forward, then the difference in the number of convictions could be accounted for by the fact that the evidence was not sufficient to satisfy the jury of the guilt of the accused. He would agree with the hon. and learned Member that the moral guilt of the prisoner was not sufficient for the jury, and that in many cases, the fear of death did not deter the offender from the commission of crime. He would admit that they must go along with the public if they found that there was an unwillingness on the part of juries to convict for this offence. But was the offence one which ought not to be punished equally with murder? Suppose the violation of a poor woman by a wealthy man, under circumstances of aggravation, which sometimes attended the crime; or let them take the case of a conspiracy on the part of a rich man to effect the violation of a woman in humble life—were cases such as these, when violence little short of taking life was committed—were they to 1096 be passed over with an ordinary punishment? If the punishment of death were not to be inflicted, it would do more than anything else to shock the public feeling, and to lessen the sense that ought to be entertained of the enormity of the crime. There was nothing to prevent cases, in which mitigating circumstances existed, being brought under the mercy of the Crown, and it would be much better to leave such cases to be so dealt with. They might depend upon it that the sympathy of the public would go along with them in the infliction of the punishment for an offence of such a nature as the one under consideration, and where the most revolting cruelty was sometimes committed. He was taking extreme cases he knew; but if such cases were not to be punished capitally, then the bill of the hon. and learned Member failed in that respect in giving the necessary protection to society. In certain cases the Crown could interfere, and could remit the punishment, but for extreme cases the power should be retained to inflict the punishment which the law authorised at present. As to the unwillingness of juries to convict because of the punishment being capital, he thought that there existed no unwillingness, if the proof appeared clear of the commission of the offence. This was the difficulty. He did not believe there was any unwillingness to convict from any other. They might depend upon it that witnesses felt, and that juries felt, if there were any ameliorating circumstances, that the Crown would step in, and would remit the punishment. But he believed there was no unwillingness on the part of witnesses and of jurymen to do their duty conscientiously, and that juries would not hesitate to convict where the proof of guilt was clear and satisfactory to their minds. The hon. and learned Member for Ipswich had referred to cases in which he supposed juries were forgetful of the obligation of their oaths; but from the communications which he had had with many who had opportunities of witnessing the administration of the criminal law, he must say that in no case where the crime was aggravated, and the evidence clear, was there any sympathy with the criminal on the part of the juries. Again, take the case of setting fire to a dock-yard. Why should he part with the security he now had against this crime? Suppose a party, with great feelings of 1097 national hostility to this country, meditating the crime of setting fire to our ships of war, what effectual check would there be against his committing it when he had first ascertained that he would not be liable to the punishment of death for it? He thought, therefore, that by removing the punishment of death they would be removing one great security against the commission of this offence. Moreover, a man meditating such an offence would be likely to speculate on the possibility of escape in the first place, and next of acquittal on trial, and then of escape after conviction. Certainly, then, it was better before they made so extensive a remission of capital punishments to pause and weigh well the probable consequences of such an alteration. He spoke now of robbery of the person, combined with extreme violence, setting fire to a ship with the intent to commit murder—for by this bill the setting fire to a ship, though with the intent to murder the whole of the crew, would be exempt from death—and of rape, in aggravated cases; and he must declare that, before he consented to this proposal to exempt those crimes from capital punishment, he must have more satisfactory assurance of what would be the working of the system of secondary punishments. He had now only to make his choice between incurring risk from a hasty and precipitous relaxation of the criminal code, and the inconvenience of postponing its relaxation in those cases to which this bill applied till they should have a fair opportunity of gravely considering the system of secondary punishments, and he must say, that he thought the postponement was the safer rule. There was some security in the dread of death, which was not be had in secondary punishments. Take, for instance, the case of imprisonment. He would venture to say that there was no man, and particularly no degraded man, who would not speculate on the possibility of the chance of effecting his escape. Look to the escape of Gould. He effected his escape once, and effected it as nearly as possible a second time. They might be sure that many men would calculate on these remote contingencies, and particularly men who commanded great pecuniary resources. Then, with regard to transportation, he understood from the noble Lord that transportation to New South Wales was to be gradually abolished. But he supposed 1098 transportation to some subordinate settlement was to be still continued. However that might be, the present punishment of transportation to New South Wales did not impress on the public mind a greater apprehension of the consequences of crime than the punishment of death. However severe it be, he feared much that the mind of this country, and particularly the criminal mind, was not sufficiently impressed with the extent of the privations and sufferings which transportation inflicted to make it expedient to relinquish capital punishments in every case. Feeling the advantage from the present remissions of having the public mind in sympathy with the punishments inflicted, and believing that that object would be better effected by a gradual relaxation of the law, and moreover strengthened by the opinions of persons most conversant with its administration, but not saying but that he might ultimately concur in the full remission which this bill proposed, he yet felt bound to say, after the fullest consideration, that he did not think it proper to give his consent to a bill exempting from capital punishment wilful incendiarism, burglary and robbery, committed with extreme personal violence, and bringing the party to the verge of death. He would much rather vote for a partial alteration in some cases, than a total remission of capital punishments in all cases; but as it was now too late to propose that amendment, and as the course pursued by the noble Lord left no other alternative, he must concur in the motion for the rejection of the bill.
§ Mr. Ewart
said, the chief arguments used by the right hon. Baronet were founded on the alleged inefficacy of imprisonment and transportation as preventives to crime. But were they now, merely because they had not arrived at perfection in the mode of working out those punishments, to pause in carrying into operation any further amendment of the criminal code, or in proceeding further with those mitigations of it of which the right hon. Baronet himself had once been the advocate? The right hon. Baronet did not agree in any one subject with the noble Lord. The noble Lord stated that in his opinion, the fear of death had still some effect in preventing the commission of crime; but the right hon. Baronet discarded that supposition.—[No, no. !] He had heard the right hon. Baronet, and what the right 1099 hon. Baronet said, was, that the question of the fear of death operating on the mind of a criminal was one of very doubtful consideration; and he then took refuge in the allegation that the juries did not, in aggravated cases, sympathise with the convicts. That portion of the right hon. Baronet's arguments was different from the line of argument taken up by the noble Lord; for he went on another principle, and opposed the proposed relaxation because he considered the existing punishments not to be, in practice, at variance with existing feelings. Let them just consider the cases put by the right hon. Baronet. One of these was a conspiracy to commit a rape on the part of a rich man. The right hon. Baronet acknowledged, that in putting this, he put an extreme case; but he omitted to observe, that that very extreme case had been brought forward by the hon. and learned Member for Ipswich, who proved that in a case where the crime was as aggravated, and the evidence as undeniable, as in that put forward by the right hon. Baronet, the jury first asked, whether they could find the prisoner guilty of the minor offence, and on being told that they had no alternative but to convict on the capital charge, or to acquit altogether, returned a verdict of acquittal. So that this objection of the right hon. Baronet had been met by an antecedent fact stated by the right hon. and learned Member for Ipswich. This was a subject of great interest to the public, however little hon. Members might think of it; and perhaps, if they imagined it would at all affect themselves, they would not consider it very desirable to die. He would not bow to the doctrine—Let wretches hang that jurymen may dine.The right hon. Baronet's next objection was on the clause as to setting fire to a dock-yard. The case put by the right hon. Baronet was that of one perpetrating this offence with the intention of committing murder. But the right hon. Baronet had forgotten, that if the party did it with that intention, and death followed, he would be indictable for murder. That case had been put before by the hon. and learned Member for Ipswich, who stated expressly that if death followed, the party would be indictable for murder. But the right hon. Baronet, in the case which he put con- 1100 sidered that no harm was done to any man by the occurrence which took place —that there was a destruction of property but no destruction of life. Would the right hon. Baronet then maintain the position that, where destruction of property, but not of life, took place, the act was to be punished with death? If he did, why not state it distinctly, and not put it thus covertly forward. The noble Lord, whom he regretted to see opposing this bill in its present stage, when the hon. and learned Member for Ipswich reverted to the sympathy which was felt, as he stated, in favour of the criminal, considered that it did not form any argument in favour of the present proposal, that since the mitigation of criminal punishments this sympathy had decreased. The public finding the punishments were in accordance with their feelings, in proportion as they diminished the gravity of the punishment, they removed the false sympathy that formerly existed, not in favour of crime, but against its too severe punishment. Of this decrease of sympathy on behalf of criminals they had a proof the other day, when the people took part with the law against the offender, and pursued him with their execrations. He had been long an advocate of the mitigation of the criminal law. The noble Lord had this evening characterized this measure as a great alteration of the criminal law; but, in the former debate, the noble Lord stated that the execution of the law was now limited to the cases of murder and treason; that it was as nearly as possible limited in practice to what the hon. and learned Member for Ipswich proposed to limit it by statute. The noble Lord stated even that in the cases which were excluded from the operation of this bill, the practical execution of the law was not carried to the extent allowed by this measure. Why, then, would the noble Lord oppose such an alteration of the law, as would bring it up in theory to what it was in practical execution? The hon. Member for South Shropshire had told them that he remembered the time when a man was executed for poisoning a horse. What a great change had taken place since that time; and if public opinion had been so far changed that those punishments had been, remitted with safety in former cases, why might they not with the same policy proceed with equal safety to carry into successful operation the measure proposed by 1101 his hon. and learned Friend? He would say that it was with regret he heard the noble Lord state he wished that this bill had retained the capital punishment in the case of setting fire to a dock-yard. For his part, he thought it better to have a uniformity of relaxation than to retain capital punishments for a crime which was denounced, not only by the public opinion of this country, but by that of all civilized nations. He trusted that the noble Lord, yielding to that principle of humanity which was one of the great features of his character, would bow to this cause, which was advocated not by one side, but by both sides of the House, that it would soon have him for one of its advocates, and that he would soon see both sides of the House coming to the conviction that capital punishments ought to be abolished, not only in the cases proposed by his hon. and learned Friend, but also in that of treason; and that at length good policy would justify them in adopting that which was the basis of all criminal reform—the total abolition of the punishment of death.
§ Mr. Langdale
said, he should support the third reading, but with the intention if the third reading was agreed to, of moving that the case of rape be excepted.
§ The House divided:—Ayes 51; Noes 78: Majority 27.
|List of the AYES.|
|Aglionby, H. A.||Langton, W. G.|
|Alston, R.||Leader, J. T.|
|Bainbridge, E. T.||Lushington, C.|
|Baines, E.||Mathew, G. B.|
|Barnard, E. G.||Moreton, hon. A. H.|
|Bernal, R.||Morris, D.|
|Boldero, H. G.||Muntz, G. F.|
|Briscoe, J. I.||Muskett, G. A.|
|Brotherton, J.||Pattison, J.|
|Castlereagh, Viscount||Pechell, Captain|
|Currie, R.||Phillpotts, J.|
|Douglas, Sir C. E.||Ponsonby, C.F. A. C.|
|Ellis, W.||Russell, Lord C.|
|Ewart, W.||Scholefield, J.|
|Freshfield, J. W.||Style, Sir C.|
|Handley, H.||Thompson, Ald.|
|Hawes, B.||Thornely, T.|
|Hawkes, T.||Turner, E.|
|Hill, Lord A. M. C.||Vigors, N. A.|
|Hindley, C.||Villiers, hon. C. P.|
|Hobhouse, T. B.||Wakley, T.|
|Hollond, R.||Warburton, H.|
|Hoskins, K.||Wilmot, Sir J. E.|
|Hume, J.||Wood, B.|
|Kemble, H.||Kelly, F.|
|Langdale, hon. C.||Lushington, Dr.|
|List of the NOES.|
|Acland, T.||Lincoln, Earl of|
|Adam, Admiral||Loch, J.|
|Ashley, Lord||Macaulay, rt. hn. T. B.|
|Baring, rt. hn. F. T.||Maule, hon. F.|
|Berkeley, hon. C.||Morpeth, Viscount|
|Blackstone, W. S.||Morrison, J.|
|Blair, J.||Nicholl, J.|
|Botfield, B.||Norreys, Sir D. J.|
|Bradshaw, J.||O'Ferrall, R. M.|
|Bridgeman, H.||Oswald, J.|
|Broadley, H.||Pakington, J. S.|
|Broadwood, H.||Palmer, R.|
|Burrell, Sir C.||Palmer, G.|
|Campbell, Sir J.||Palmerston, Viscount|
|Cole, hon. A. H.||Parnell, rt. hn. Sir H.|
|Dalmeny, Lord||Peel, rt. hn. Sir R.|
|Darlington, Earl of||Pigot, D. R.|
|De Horsey, S. H.||Praed, W. T.|
|Estcourt, T.||Reid, Sir J. R.|
|Ferguson, Sir R. A.||Richards, R.|
|Gladstone, W. E.||Russell, Lord J.|
|Gordon, R.||Rutherfurd, rt. hn. A.|
|Goulburn, rt. hn. H.||Sandon, Viscount|
|Graham, rt. hon. Sir J.||Scrope, G. P.|
|Greenaway, C.||Seymour, Lord|
|Grey, rt. hn. Sir G.||Sheil, right hon. R. L.|
|Hamilton, Lord C.||Sibthorp, Colonel|
|Harcourt, G. G.||Smith, R. V.|
|Hawkins, J. H.||Somerset, Lord G.|
|Hobhouse, rt. hn. Sir J.||Spry, Sir S. T.|
|Hodges, T. L.||Stuart, Lord J.|
|Hogg, J. W.||Stock, Dr.|
|Hope, G. W.||Teignmouth, Lord|
|Howard, hn. E. G. G.||Tufnell, H.|
|Howard, Sir R.||Vere, Sir C, B.|
|Howard, hn. C. W G.||Vernon, G. H.|
|Hutton, R.||Wood, Colonel T.|
|Inglis, Sir R. H.|
|Knight, H. G.||Stanley, hon. E. J.|
|Labouchere, rt. hn. H.||Parker, J.|
§ Bill put off for three months.