HC Deb 09 February 1841 vol 56 cc462-70
Mr. F. Kelly

, in rising to move for leave to bring in a bill for the abolition of the punishment of death, except in certain cases, observed, that from the ample discussion which a similar bill of his had undergone last Session, there was little necessity for troubling the House with reasons for permitting him to place a similar bill to that of last year upon their Table. The number of offences to which, by our laws, the punishment of death was attached in the early part of the last century was nearly 300—a most formidable and fearful proportion. Through the efforts of many eenlightened men, though opposed by the most eminent members of the profession to which he belonged, that state of the law had been mitigated, and the number reduced to nearly thirty. Pursuing this benevolent object, he had had the honour to submit to the House last Session a bill for the abolition of death as a punishment for crime, except in the cases of murder and high treason. That bill had been on various occasions fully discussed. It had been read a first and second time, passed through a committee, and only thrown out upon the third reading by a very small majority, in a thin House. Under such favourable circumstances he was convinced he was fully authorised in presenting for their acceptance, this Session of Parliament, a measure of a similar description. He had the pleasure to learn that the Government did not intend to offer any opposition to the introduction of the bill of which he had given notice. It would suffice to state, therefore, that this bill in substance did not depart from the bill which he had introduced to their notice last Session. There was, in point of form, a variance adopted, upon the suggestion of some of his professional friends, which consisted in this—that, instead of reciting in one section all the different offences which were to be taken out of the class to which the penalty of death had been attached, and to which a mitigated punishment was in future to be attached under this bill—he had increased the number of clauses in the bill, and had placed each of those offences in a separate clause. Although this might be considered inconvenient, yet it had one very important advantage over the other course, inasmuch as it enabled the House, in the committee on the bill, to suggest separately any improvement in the secondary punishment applicable by this bill to each offence, upon the clause being read by the chairman. It, in effect, would give the committee a greater scope to adapt a secondary punishment to the offence specified separately in the clause under discussion by the committee. With these exceptions, which he had thought not only expedient but necessary, in order to obviate the objections of some, and to neutralise the opposition of others, to the measure of last Session, the bill which he was about to move for leave to introduce would be the same both in its form and substance as before. He must, before he sat down, take the opportunity of expressing his regret that he had not been able to prepare and to lay upon the Table of the House similar bills to that which he had described for the purpose of introducing the same modification of the law, with respect to the punishment of death, into Ireland and Scotland. But it would, doubtless, occur to hon. Members, as it had done to him, that the simultaneous introduction of three bills, identical in their clauses and wording, into the House, would lead to very considerable confusion, and would tend to render that an intricate subject of legislation which ought to be most simple and easy of comprehension. He had, therefore, withheld those consequent measures, convinced that, if the House consented to abolish the punishment of death for certain offences now visited or liable to that sentence in England, it would at once follow as a matter of course, that the same alteration in the law would immediately have effect in Ireland and Scotland; for no doubt could be raised as to the expediency of such an equalisation of the statute law, and consequently no opposition to those measures, which would thus be rendered necessary, could be offered. He therefore felt no difficulty in pledging himself to bring forward two measures for Ireland and Scotland, to abolish the punishment of death in those kingdoms, as soon as he was satisfied that the House approved of the principles which pervaded the measure in behalf of which he was speaking. There was another and highly important consideration, connected most intimately with the present question, to which he felt bound to refer. In the present state of the law relating to secondary punishments, it could not but be admitted by all parties that there existed a very great imperfection in the statutes relating to that subject, and this imperfection had been made use of as an argument against all attempts at legislating further on the punishment of death until secondary punishments had been placed on such a footing as to enable the executive to dispense with capital inflictions. When, however, he investigated the speeches of those humane and high-minded public men who had given their special attention to the subject of punishment, he found that it was, without exception, their opinion, that although the law relating to this matter was in an imperfect and unequal state, still it was impossible for any individual Member of the Legislature, not acting in accordance with, and by the sanction and aid of the Ministers of the Crown, to attempt to effect any general alteration of the law as it now stood. It was obvious that in the question of such a sweeping modification of the laws affecting secondary punishment as this would be involved a very serious consideration respecting the public expenditure. Any new system of secondary punishments would render it requisite to appoint and provide for the support of a vast number of additional public officers, as well as for the erection and preservation of an extra number of prisons. It would be necessary to provide for all this expense if such a bill as he referred to were introduced, and such a step could be taken by no other party in that House than the Minister of the Crown. Still he hoped, in case the Government should not be prepared to move in the matter of secondary punishments, and in case no hon. Member of that House better qualified than himself took the initiative, that he should be prepared to place on the journals of the House some suggestions, in the form of a series of resolutions, which might be useful as a guide, if in no other way, and upon which some beneficial measure for the alteration of the whole system of secondary punishment now in practice might be based. He hoped, however, that the noble Lord opposite (Lord J. Russell), to whom the country was so much indebted for the reforms which he had introduced into the criminal code of the country, would be prepared, before long, with some resolutions to the effect he had intimated; and if he should not, and if it should also appear that the Government was not disposed to bring forward the subject, he himself would, after Easter, submit his own ideas to the House, in the form of a series of resolutions on the subject. Before he sat down he felt it necessary to allude to a bill which the Government had given notice, it was its intention to introduce during the present Session, for the further abolition of the punishment of death in certain cases. He begged most cordially to thank the Ministers of the Crown for their intentions, had it so hap- pened that it had suited their convenience to have laid it on the Table of the House, at or near the period at which he had felt it to be his duty to bring forward his own bill upon the subject, he should have endeavoured to have delayed his measure, in order to see whether that of the Government would effect what he proposed; but as the hon. Gentleman, the Under Secretary of State for the Home Department, had intimated that he should not be ready with his bill before the end of the month, he had felt it to be his duty not to postpone his motion, and to ask the House to suffer him to bring forward his bill as before, without offering any opposition in the present stage; when, if there were no great delay on the part of Gorvernment in the other bill, he should refrain from pushing his measure forward to the committee-stage until he became acquainted with the details of that of the Government; when, if it should prove to be coextensive with his own measure, he would at once cede and withdraw the latter, rejoiced to find, that the Government, during the present Session, had been induced to step forward, and to carry into effect those great reforms in the application of punishments which the enlightened spirit of the age imperiously and unanimously called for. He begged leave to move for leave to bring in a bill for the abolition of the punishment of death in certain cases.

Mr. Ewart

begged to second the motion of the hon. and learned Member, because he had been particularly requested to do so by some parties highly desirous to see the proposed modification of the criminal law carried into effect. The experience of every day which had elapsed since the principle of adopting a milder system of punishment had been mooted and acknowledged, confirmed his own conviction that it was not only safe but expedient to dispense in future with the punishment of death. When the measure, for the introduction of which the hon. and learned Member had asked leave of the House, was a little more matured, he would submit, for the consideration of those hon. Members who took an interest in this subject, a series of calculations which had been furnished to him by the obliging communication of a Member of the Chamber of Deputies, showing that crime had rapidly diminished in those states where the punishment of death was now unknown. He would also show, from the same statistical documents, that the certainty of punishment had increased since the infliction of death had been abolished; he would also show, that in cases of indictment for those crimes which had formerly been visited with capital punishment, the convictions were increased a thousand fold in the proportion to what they were before this alteration was made. He should, however, reserve these statements for some future stage of the present measure, and in the mean time he could only express the cheering effect that was produced upon his mind by the reflection that the universal interest which was taken by enlightened persons in all the countries of Europe, in the propagation of the principle on which this measure was founded, showed a simultaneous advance in those countries in the education of mankind, and in the propagation of sentiments of true Christian charity. He would only add, that he coincided entirely in the views expounded by the hon. and learned Member respecting the necessity of making some extensive alterations in the present system of what were termed secondary punishments, but what he hoped, at no distant period, to be able to call primary punishments. His opinion in this matter was, that the best way of reforming a criminal was, to subject him to such preliminary discipline in prison, and afterwards let him have an opportunity of recovering his character in a foreign penal settlement. He trusted that whatever reform in the present code of capital punishments was contemplated by the Government, such reform would be at least coextensive with the bill of the hon. and learned Member for Ipswich; and also that the views propounded by the hon. and learned Member, with respect to the amendment of the criminal law would be promoted and furthered by the Ministers of the Crown.

Lord J. Russell

The hon. and learned Gentleman who proposed this bill had stated very truly, that at the commencement of the present century there were not less than 300 offences punished capitally; and he was also correct in stating that there was for many years a very strong opposition to any amelioration of that punishment. Every proposition for mitigating the extreme severity of the law was opposed by all the strength of the Government in the House of Commons, and so pertinacious was that opposition, that he remembered when a bill proposed by Sir J. Mackintosh had been read a third time, the then Secretary of State, determined not to relinquish his opposition, took the chance of a few more members coming into the House, and declared that he would divide again upon the question "that the bill do pass." The Secretary of State was successful, and the bill did not pass. Such was the nature of the opposition then made to any proposition for modifying the criminal law. The hon. and learned Gentleman was likewise right in stating that of late years a very great change had manifested itself not only in the spirit of the different Governments which had succeeded to the administration of affairs, but also in the opinions of the heads of the law, and of those whose judgment must always have great influence on both Houses of Parliament. Agreeing with the hon. and learned Gentleman thus far, he could not admit with him that it was expedient to change the criminal law to such an extent as he proposed, with the view, as he stated very candidly to the House last year, of abolishing the punishment of death altogether. At the same time, he was prepared to admit, that there ought to be further changes and ameliorations of the criminal code. He admitted that there were some crimes now, by law, punishable with death, which ought not to be so punished. Therefore, he could not refuse to the hon. and learned Gentleman leave to introduce a bill which proposed to take away the punishment of death from certain of those crimes. It would be a subject for consideration how far the hon. and learned Gentleman proposed to carry his modifications; and whether it would be in the power of the Government to concur in the full extent of his proposal. It was always to be recollected that the hon. and learned Gentleman who brought forward the present motion, and the hon. Gentleman who seconded it, unhesitatingly declared that their ultimate object was the entire abolition of the punishment of death. That being the case, it was likewise proper for him (Lord John Russell) to declare that that was an object to which he could not consent. With respect to the offences still remaining on the statute-book punishable with death, there were, he thought, two very distinct classes of them. There were certain offences in respect to which hardly any one would wish the punishment of death to be retained, and in respect to which there could be no doubt that some other mode of punishment should be substituted. There were other cases in which he thought there would be very great difficulty in effecting a change of the law. As an instance of both these cases, he would take the offences created by a single statute, all of which were punishable with death—he meant the offence of destroying ships and ships' stores in dock-yards. Now the offence of wilfully destroying one of her Majesty's ships was one which, in his opinion, partook of the character of high treason, and was, therefore, justly punishable with death; but there was in the same statute a class of minor offences, such as the destroying of rope, or setting fire to any small quantity of stores in the dockyards, which could he considered merely as offences against property, and which, therefore, ought not to be punished with death. It would be seen, therefore, that there were different offences comprehended in one and the same statute, to all of which the punishment of death was now allotted; to one class of which that amount of punishment was properly applicable, but to the other class of which a much milder punishment was all that justice could require. There were other cases of as great or even greater difficulty. The hon. and learned Gentleman had said that the system of secondary punishments at present established in this country were not such as he could altogether approve of. At the same time he said that he did not think that any individual Member of the House could propose a complete and beneficial change of the law in that respect, but that it must be undertaken by the Government. He owned that it appeared to him, if the hon. and learned Gentleman's opinion were good, and he was not disposed to doubt it—he owned it appeared to him, that after the mitigations effected in the criminal law by the present Government in 1837—taking away the punishment of death from so many offences previously punished capitally—and after the care and attention which had been bestowed upon the subject of transportation and imprisonment, as means of secondary punishment, the hon. and learned Gentleman might very properly have allowed her Majesty's Ministers time to consider the whole of the subject, and that he might have waited at least a little longer to see whether some complete system would not have been proposed. He agreed with the hon. and learned Gentleman that, as regarded secondary punishments, much remained to be done—he agreed with the hon. and learned Gentleman no system of a perfectly satisfactory nature could be established until prisons had been built in this country, and maintained at the expense of the state, in which persons could be confined who would otherwise be liable to the punishment of death or transportation. But, at all events, this was quite clear, that, as the law stood at present, there was much that required to be amended, much that would demand a great deal of labour and care, before a satisfactory statute upon this subject could be framed. The hon. and learned Gentleman had alluded to the alteration which took place in the law in 1837. At that time he (Lord John Russell) proposed in certain cases to substitute imprisonment for five years in this country, for the punishment of transportation for life. The other House of Parliament thought the proposed period of five years' imprisonment too long, and reduced the maximum amount of punishment under that statute to three years' imprisonment. The House of Commons agreed to that amendment, and such was now the enactment of the law. If, then, imprisonment for three years was the maximum amount of punishment for all the grave offences, included in the act to which he had just referred, and which, previous to the passing of that act, were punishable with death, that amount of punishment ought to be the standard by which all future legislation upon the subject of secondary punishment should be guided. But there were many statutes upon the book which imposed transportation for 7 or 14 years, for offences of a much less grave nature than many of those for which the maximum of punishment now prescribed by the law was three years' imprisonment. In dealing with this subject, therefore, it was necessary that a wide and comprehensive view should be taken of it, and that such grades of punishment should be allotted as was suitable to the guilt and gravity of each particular offence. He had made these observations for the purpose of showing that, in legislating upon this subject for the future, it would be necessary to take a general view of the whole subject, so that the amount of punishment in all cases might be apportioned to the crime, and so prescribed by law as not to leave the mitigation of the punishment to the Secretary of State, or the mercy of the Crown.

Leave given.