HC Deb 08 March 1841 vol 57 cc47-65
Lord J. Russell

rose to move for leave to bring in a bill to amend the criminal law. An hon. Member whom he saw on the opposite side of the House had introduced a bill in the last Session of Parliament, and also in the present, for the important purpose of abolishing capital punishments. It was for the House to consider whether they would go further than the extent to which they had hitherto gone, in the mitigation of capital punishment, and if so, to what extent they would go. The hon. Gentleman stated last year that it was his opinion—and he (Lord John Russell) hoped he did not misrepresent it—that capital punishment might be abolished altogether. That was not the measure which the hon. Gentleman proposed to the House but he proposed a measure for abolishing capital punishment excepting in the cases of treason and murder. The principle on which the hon. Gentleman went was a very clear and distinct one. He proposed to abolish it by two steps; first, by the bill which he had already brought in; and secondly, by some measure which should abolish it altogether. He was not persuaded that it was necessary, or rather he was not persuaded that it was expedient, to abolish capital punishment altogether, because he thought there were certain offences for which it was necessary to retain it. At the same time, in forming an opinion on the subject, they must look to the changes which had been already made in the criminal law. They must see how far those changes had already operated well, and they must see whether public opinion would go along with them in the mainten- ance of the present law; because the ultimate decision in each particular case being by a jury—that is, the persons who were ultimately to decide whether the life of a human being was to be taken away or not, being selected generally from the body of the people, it must depend very much on their opinions whether or not any capital punishment should be inflicted. If it was a general opinion, however erroneous, that capital punishment should be inflicted for certain offences; although you might say the punishment was excessive—although you might say there was nothing in the offence itself which required that extreme and irrevocable punishment; yet, so far as the prevention of crime, the great object of criminal law, was concerned—if the opinion of the great body of the people was in its favour, it did tend to accomplish its end. For instance, not a great many years ago, in a single circuit in the country, after the verdict of a jury had convicted fourteen persons of the crime of sheep-stealing, a judge had thought it right to leave all these men to be executed. That might appear excessive and extreme punishment. However, the judge had thought it his duty to inflict it—the jury had thought it their duty to find those persons guilty; and with regard to the crime of sheep-stealing, it was effective in preventing it for a certain time. But if the public opinion in this respect had changed—if the declaration of the law was, that certain crimes should be visited with death—and if the repugnance on the part of juries to its infliction was such, that although the indictment might be found by the grand jury, and although the evidence before the petit jury might be conclusive, yet that they should bring in a verdict of not guilty, in spite of the evidence, then such a law did not attain its object. Crime was not prevented, because the persons willing to commit crime would not be deterred by the fear of death; because, whatever was the declaration of the law, they would look at its operation by the verdict of the jury and to the sentence of the judge, and by the recommendation of the judge to the Crown; and finding that such sentences were scarcely ever executed, they would not be deterred by the mere chance of the punishment from committing offence. Therefore, omitting all other questions—all questions raised by many persons in the country, and by the hon. Gentleman opposite—as to the justice or lawfulness of executing the punishment of death in any case, and looking only at what be thought was the object of society, namely, the prevention of crime, he thought they should consider how far the criminal law as it at present stood was suited to that purpose. They had made very great alterations in the criminal law; they had reduced the number of offences punishable by death, and, with respect to certain offences, there were laws in the statute book inflicting the penalty of death, but which were not in fact executed. The hon. Gentleman opposite had taken the whole question together, and proposed to make his alteration by one bill. He (Lord John Russell) did not believe that they could abolish the punishment of death altogether, and therefore be proposed to take a different course. He should propose to consider offences separately, with the exception of a certain number of offences, with respect to which there could be no doubt on the mind of any person whatever. They had abolished the punishment of death with regard to many grave offences. They had abolished the punishment of death generally with respect to the crime of forgery. Still there were certain offences of that nature for which the penalty of death was retained, either from the influence of certain parties, accustomed to place their security on the infliction of capital punishment, or because the legislature per incuriam had passed over those cases. They were certain crimes of embezzlement by the servants of the bank of notes, bills, and annuities, certain crimes; against the South Sea Company, and forgery of the stamps on gold and silver plate. When a principle had been established by the Legislature, there was no doubt what ever that they ought not to leave on the statute book announcements of the punishment of death, which no judge would inflict; for although he might conceive it necessary to pronounce the sentence, he would not think it his duty to allow it to be executed, but would send a strong representation to the Crown that such crimes ought not to be punished with death. Therefore, he proposed, in the first place, to bring in a bill to abolish the punishment of death for certain offences of embezzlement, fraud, and returning from transportation on this side of St. Helena. With regard to this bill, he did not imagine that any doubt could be entertained. He confined it to subjects of which be thought there could be no doubt, and he thought it might pass without hesitation, either on the part of that or the Other House of Parliament. There was another subject with regard to which hi had stated that he differed in opinion with the hon. Gentleman opposite last year; not that he thought there should be no amendment with respect to it, but that he could not consent to the total abolition of capital punishment—which the hon. Gentleman recommended—he meant the offence of destroying or burning ships in the Queen's dock-yard. He conceived that when that offence was committed with a view to destroying the ships of the navy, or to destroying the naval stores of the country as collected in the dockyards belonging to the Crown and the public, that it was an offence of a treasonable nature. Such an offence might be rarely committed, but when it was committed, and with the intent to cripple the naval means of this country, and prevent her Majesty from using the force of the Crown against the aggression of foreign enemies, it was an offence of so serious a nature, and partaking so much of the character of treason, that they ought not to take away from it the severest punishment. At the same time, the act inflicting this punishment was drawn in such a manner as to involve cases in which there might be no destruction of naval stores, no treasonable intent, nor any view to cripple the resources of this country. He proposed, therefore, to amend the act in that respect, and to endeavour to confine capital punishment as much as possible to the greater offences he had mentioned. The next offence was certainly one on which the greatest doubt and embarrassment were felt, and on which the Government had come to a decision with very considerable difficulty: he alluded to the offence of rape. With regard to that, he felt no doubt in saying, that when it appeared in au aggravated form, when the circumstances accompanying it showed it to be an offence of violence, with nothing that could mitigate its character, it ought to be punished with the severest punishment that could be inflicted. But when they considered the offence as it was brought before courts of justice in this country, very great doubt and difficulty arose. Those who were charged with it were generally charged on the evidence of one person only, and that one not—as in cases of robbery or attempts to murder—a person against whom no suspicion could be entertained, but, on the contrary, persons who were in a certain degree subject to the doubt and suspicion that they were endeavouring to clear their own character by bringing serious charges against another. These were matters that much affected the minds of the juries. When the question was brought before a jury, they sifted Very narrowly into all these circum-stances, and it very often happened that the statement of the prosecutrix, the manner in which her evidence was given, the circumstances with regard to the previous life of both parties—the circumstances that happened immediately before the offence was committed, were inquired into. When they found that all these circumstances were weighed together, they must consider that there was a repugnance to a verdict in those cases which would end in taking away life. When they considered that there was a general impression that nothing but the most certain evidence could induce a jury to bring in a verdict upon a capital charge they might very well conceive that there had been many verdicts of acquittal of persons who had really committed the offence, but against whom there was not that certain evidence that Would induce a jury to bring in a verdict that might end in taking the life of the prisoner. These were considerations that he had no doubt Very much affected the minds of juries; but he had returns that would show that where there had been capital punishments inflicted for the perpetration of the offence, they had a very powerful effect in producing Verdicts of acquittal subsequently for the same offence. In the administration of the criminal law, they must consider, that the judges had great opportunities in going their several circuits, of observing the impression produced upon gentlemen forming the grand juries, next on the class of persons on the petit juries, and next upon the barristers, and various officers in these courts of justice, as well as indifferent persons who attended these courts, as to what was the administration of the criminal law. Therefore it was, that the opinions of the judges—he did not say on any one case, but generally—were to be regarded as of paramount importance, and entitled to the greatest weight. He was unwilling to state the opinions of the government on this subject, when he referred to the judges, because he was anxious, when he heard what was the impression of an individual judge to ascertain if it should be confirmed by subsequent experience. He had found it so confirmed. When he had the honour of acting as Secretary of State for the Home Department, a case of tape had occurred in which more than one person had been concerned. There had been three persons concerned, and, therefore, it was one of the cases of rape which was generally considered as an aggravated case, and in which the punishment of death might be inflicted. The judge before whom the case had been brought informed him, that if he did not make any objection as Secretary of State, he, as judge, would recommend that life should be spared. Finding this to be the opinion of the judge, and knowing him to be a person of great intelligence, ability, and learning, and he himself not being averse to spare life when a person of such high authority told him that he thought it would be proper to spare life, he stated to the judge, that if such a recommendation were made to him he would at once suggest its adoption by the Crown. The recommendation was made, and the life of the person was spared. Other cases had since occurred, and it had been found that judges generally agreed in the opinion which he had just mentioned, and they thought, with regard to cases in which there had been a conviction for rape, that the capital sentence should not be executed. He had referred to the state of opinion of the judges on this subject, and he now would refer to that of the juries. He would quote returns which bore upon this point; but he did not say, that they were such as that any one could deduce inferences as naturally depending upon them, but still they were very remarkable, as showing what had occurred upon this subject. The general result of them was this, that where there had been executions in one year for rape, the proportions of convictions in the next year, for the offence, were less; thus showing, that there was a feeling certainly against the execution of the capital sentence. The returns, however, he referred to were not to be taken as altogether accurate, as they were only taken for a very few years, and were not put forward by him as conclusive; but still they gave to the House these results;— In 1834 there were fifty-five prisoners acquitted; there were eight convicted, the total number tried being sixty-three; four of the eight convicted were executed, and four transported for life. The proportion convicted was one in eight. In 1835: acquitted, fifty-two; convicted, four, all commuted to transportation for life. Proportion convicted, one in fourteen; but the numbers convicted of the minor offence—the assault with intent to ravish—were increased one-fourth. In 1836: acquitted forty-six; convicted, nine; 1 executed, eight transported for life. Proportion confided, one in six; and a slight decrease in the minor offence. In 1837: acquitted, sixty-seven; convicted, six, all transported for life. Proportion convicted, one in twelve. In 1838: acquitted, thirty-two; convicted, seven; six of whom were transported for life, one imprisoned one year. Proportion convicted, one in five and a half. In 1839: acquitted, sixty; convicted, seventeen; all commuted—fifteen to transportation for life, one for ten years, one imprisoned one year. Proportion convicted, one in four and a half. In 1840: acquitted, thirty-eight; convicted, eighteen; all commuted—fifteen to transportation for life, three to fifteen years' transportation. Proportion convicted, nearly one in three. The result, therefore, of these returns was this—at least it might be put in this way: that where there had been executions one year, the effect was, that the next year there was a leas proportion of convictions, and since it had become the practice in cases of conviction to inflict the minor punishment of transportation, the proportion of convictions had been greater. Now, if he thought that that was the general result, and without relying much on the returns, they might say that there was such a general tendency of trials for this offence, then it was of more importance for the purpose of preventing crime, that they should have a law by which there should be a greater proportion of convictions, than a law which would give but a small proportion of convictions. The great object of law was, that those who were guilty of crime should be punished; and whether the punishment be death or transportation for life, still if there was a certainty or something nearly amounting to a certainty, that punishment would be inflicted, it would be more likely to prevent crime than if they made it a matter of lottery, where one in ten, twenty, or thirty, might be executed; but the rest go scot free. The disposition of the human character was this—rather to take the chances of acquittal, with a chance of execution, than incur the probability, the very strong probability, of severe punishment, whether that was to be banishment or imprisonment, as the result of crime. It seemed to him, therefore, with respect to this crime of rape, that they ought to take away the punishment of death. At the same tine, it wag one of those crimes with respect to which, if they regarded particular instances of it, and considered the violence and atrocity with which it was committed looking, too, at it as a conviction for a moral offence, it was not an offence, he was sure, that the House or the country generally, would consider as one for which an extreme punishment ought not to be inflicted. But looking at a question of this kind, with regard to the effect of their criminal law, they must, he said, consider what their criminal law was to be, and what it can be They could not make a criminal law, and they did not profess to make one, that could reach every moral offence, according to the degree of its moral guilt, and punish it in proportion to its enormity. They could not assume to themselves the Divine power, and affix to every moral crime the penalty that ought to be attached to it. This was beyond their power; but if it were not, in this instance, they would find that there were other offences to which they could not attach such penalties as would be adequate for the offences that had been perpetrated. For instance, there was the case of slander—the slander he would suppose, of a young and innocent woman by some disappointed person, and who attacked her reputation, by which her happiness would be for ever blasted, her whole life embittered, and gradually sapped, until she sunk into the grave; the peace of her family destroyed, the most flagrant wrong perpetrated upon the unoffending and the innocent: and thus the greatest injury, and from the most malicious motives, inflicted. And yet, if they came to the law, whet in such a case was the redress? That there must be some pecuniary damages, while they were conscious that their moral feelings could not be satisfied. Was it that the law was wrong in this respect? By no means; but it was because the offence was beyond the law and above the law. It was an offence that could only find its punishment in the feelings of mankind, its punishment must be in the conscience of the offender—its punishment was in the retribution of an eternity; but they, as men, could not attempt to assign to it its adequate punishment. With regard to rape, it must be admitted that there were certain cases deserving of the punishment of death; there were cases deserving of the most extreme punishment but then, when he asked persons engaged in the Administration of the law how they were to make the distinction, and where they were to draw the line as to the offence that was to be punished with death, and such cases as where the offence should be declared not to be capital, he never was able to obtain a definition that was satisfactory to his own mind. It had been proposed, that where the offence was committed by more than one, and, as such, where no consent could be supposed, but where the offence must be regarded as accompanied with brutality and violence, that then the punishment of death should be inflicted. But then he did not think that they were able so to distinguish them, when they considered the vast gulf or chasm that separated the punishment of transportation for life from the punishment of death. He did not think they could make that distinction sufficiently marked when they said that there should be a certain offence of rape punishable with death and a certain offence of rape not so punishable. No definition could be so strongly marked as to fill up the chasm between the fact of taking away life altogether and any other punishment—at least, he could find none that could satisfy his mind that a certain offence should be punishable with death, and a certain other should not. He had stated this case as it appeared to him, and because it was not a subject upon which he had so much doubt, until he had seen the opinions of the judges, and not till he observed what was the result of convictions upon juries. Considering, then, the circumstances he had stated, and considering how desirable it was to effect the prevention of the crime for the future, he must say, that it did appear to him that the crime would, by the infliction of the punishment next to death, be more likely to be prevented than by preserving upon the statute-book the punishment of death, which, after the opinion of the judges, they would never feel justified in inflicting. At the same time, it was an offence for which he would not have a light punishment. He proposed, that it should be punished by transportation for life; or, in the lightest degree, for fifteen years. He believed he had now stated the nature of the three bills which he proposed to bring in. He did not propose to make any alteration with respect to the act of 1837, with regard to attempts to murder, or with regard to burglary with violence, or other offences stated in the 1st Victoria. He did not mean to say, but that there were some offences in which it might not hereafter be right to take away the punishment of death; but he did not propose to include them in the bills he now meant to bring in. He would rather reserve his arguments on these matters when the hon. and learned Gentleman opposite proposed to bring in his bills. He had stated to the House, when he had formerly spoken on the motion of the hon. and learned Gentleman, that he thought it would be expedient that a general review should be taken as to the whole subject of criminal law, and particularly as far as the punishments of transportation and imprisonment were to be regarded. These were to be found in various acts passed at different times; and the consequence was, there was no uniformity in the distribution of these punishments. He found, upon looking over the acts of Parliament, so much complication in the whole subject, that he believed it would be very imprudent in them, without farther and more full consideration, to bring in a bill on this subject. He meant to bring in a bill on the subject of transportation at a future period of the Session. He meant, having brought it in, to leave it for full consideration, and then not to propose to pass it this Session. He thought it much better, with subjects of this kind, that when anything was proposed of so much importance, that it should be fully canvassed throughout the country, so that persons most competent to give an opinion should have the power, if they thought fit, of communicating with the Government or Members of Parliament, and that they should proceed with the utmost deliberation, to frame such a law. Much, he thought, had been done of late years, and great progress had been made in the mitigation of the extreme severity of the law, but at present the greatest evil was the general uncertainty of the punishments to be inflicted. He was of opinion, that they ought not to relinquish the power of inflicting capital punishments in certain cases. He thought, that the punishment of death ought to be retained for certain great offences, where persons guilty of them were duly convicted, and when they were without mitigating circumstances. In another great class of offences in which hitherto punishment of death had been awarded, they should retain the punishment of transportation. Both as regarded England and Ireland, it was expedient to retain that punishment; the punishment also of imprisonment, with hard labour, should also be retained. One most common punishment was hard labour in the dockyards in this country; and this was imposed in lieu of transportation. The Secretary of State maintained that punishment—it was one inflicted by him, and it was his opinion, that it ought to be enacted by statute law. He did not think that they ought to leave it any longer to the office of the Secretary of State, that a person actually sentenced to transportation should be sent to the dock-yards. He thought the punishment a right one; but it was one that ought to be inflicted, not by the Secretary of State, but by Act of Parliament. The recommendation of the judge always decided the course of the Secretary of State; but he would not enter into the question further, and therefore moved for leave to bring in a bill to abolish the punishment of death in certain cases of embezzlement and fraud, and in cases of persons returning from transportation on this side of St. Helena.

Mr. F. Kelly

said, he should do great injustice to the noble Lord, and equal violence to his own feelings, if he hesitated for one moment to express his gratification at the statement which the noble Lord had just made, of his sentiments with respect to the present state of the criminal law; and if he were compelled to gay, that he had heard that statement with sentiments not unmingled with regret and disappointment, he did so with reluctance, and it was with great regret that he made the admission. Still he had experienced very great satisfaction on learning what the views of the Government were upon this important topic. The noble Lord, in adverting to his bill for abolishing the punishment of death, had said, that it went a great deal too far, and that he called upon the Legislature, not to do more than experience had shown they could do consistently with safety. But when the noble Lord declared his disapproval of it, and called upon the House to refuse its assent to it, because he, and others who thought as he did, looked ultimately to the entire abolition of the punishment of death, he must beg leave to say, that the noble Lord had taken an unworthy and imperfect view of a very imperfect question. It certainly was true, as the noble Lord had said, that he and others who thought as be did, looked to the abolition of the punishment of death as to one of the greatest benefits the legislature could confer upon the community, and he believed that posterity would look back on the punishment of death with the same feelings of horror that the present generation looked back upon the practice of torture. Nor let it be forgotten that in those days when torture was practised there were men, bearing a good character for humanity and lenity, who were, notwithstanding, such was the spirit of the times, not reluctant to adjudge the torture to criminals. He called the attention of the House to his bill upon its own merits, and by those merits was the House to consider it and to judge it. If the bill was good, he hoped and believed it would be passed. If bad, and if it could be proved to be so, he would consent to its rejection. But in dealing with the topics which the noble Lord's speech had suggested to him, he felt that he might appeal to the noble Lord himself whether he had acted upon the principle which he had laid down for the guidance of the House in the rejection of his bill. Did the noble Lord, in bringing forward that great measure which he had promoted and successfully carried, act upon the principle which be had just laid down? Did he act upon the principle that because some of those who acted with him in promoting that great measure went much further in their views of reform than he had clone the bill itself ought to be rejected. Such was not the noble Lord's conduct on the Reform Bill, because if the noble Lord had shown such suspicions over the motives of those who acted with him, that great measure would never have passed either House of Legislature. He concurred in the other remarks of the noble Lord, he fully admitted the truth of his observation, that no act of Parliament could carry the weight or authority of a law, or could ever be generally prevalent with advantage to the community unless the people themselves gave it their voice and sanction. It was impossible to administer the law unless the jurors were convinced of its justice, and those who, like himself, were conversant even with the civil jurisdiction, were aware that this feeling was extended even to the civil courts. But in criminal law these prejudices rose to a much higher pitch, and unless the juries were entirely accordant with the law, they would not aid in carrying it into effect; and the point upon which he most relied, in bringing forward his measure, for abolishing the punishment of death, was, that the people at large out of whose number the jurors were chosen, did partake entirely the same sentiments which he entertained upon this subject. Agreeing, therefore, as he did, with the noble Lord, and gratified as he was with the bills which he proposed to bring in, he could not do more than express his extreme disappointment at finding the noble Lord stop short of the mark, and that he Still continued to be unwilling to concur id his proposal to abolish death for setting file to stores in a royal dockyard because that crime partook of the nature of high treason. He must take the liberty of reminding the noble Lord that the principle upon which the bill of 1837 was founded was that of abolishing death in all cases where property alone was concerned; and he was not aware that any single exception was made to punish offences against property with death except in the case of setting fire to a royal dockyard. If the words whereby this exemption was made in favour of royal dockyards were examined they would be found, with all due respect to the noble Lord, to have no meaning. Was the distinction made because the dockyards contained royal property? If so, why was not the property of the Queen in |he royal palaces so protected? Why was the offence of burning a palace or that of stealing the crown-jewels, not still punishable with death? They were not so punishable because that species of property came under the general principle of the act of 1837, and to steal them or to destroy them by fire was no longer punishable with death by that act. If, therefore, the noble Lord would apply the great powers of his mind to the examination of what high treason consisted in, he would find that, in those cases where high treason did not affect life, it ought not, according to his own principle, to be visited with death under the bill of 1837. He might say that if there were any offences under the law, which those who committed them were of a class, who, under their peculiar circumstances, were less likely to be deterred from their commission by the punishment attached to them, they were those of attempts to destroy naval stores, or the bulk of property in her Majesty's dockyards. No subject could have any temptation to commit such an offence, unless an emissary fro in a foreign enemy. Put, considering all the circumstances of the present case, he would ask, was this a crime in which it was necessary to carry out an extreme punishment against persons guilty of it? The liable Lord should feel that this was an offence, which, though it might partake somewhat of a character of high treason, ought to come within the scope of that measure, which was applicable to the destruction or stealing of property, under the bill introduced by the noble Lord in 1837, and which consequently ought to be exempt from the punishment of death. He had not heard the noble Lord, in the course of his observations that night, refer to the attempt to commit murder or burglary, or robbery of property with violence, which might endanger life. He understood that from the fact of the noble Lord's silence on these cases, he was disposed to maintain the system of capital punishments with respect to this class of offences; and if such was the case, he confessed he heard that impression of the noble Lord with great regret. He thought the application of a system of milder punishment might be used in those cases, even upon clearer grounds than upon those upon which the noble Lord had already consented to the abolition of such punishments. If it were considered expedient, with a view to secure a proper number of convictions by taking into consideration the feelings of juries, he thought those cases to which he then referred were much in favour of his argument. By taking away the idea of severe punishments, they left a jury more inclined to examine closely the evidence against a party than where a capital punishment was the consequence of a conviction. Formerly violence with intent to commit grievous bodily harm, whether attended or not with murder, was a capital offence. But of late years that had been changed, and he conceived that no public act to which the noble Lord opposite had been a party had reflected more credit upon him, had been more productive of general benefit, than that bill of 1837, by which an assault with intent to commit grievous bodily harm, was made only liable to the punishment of transportation for life. Subsequently to the passing of that act it had become customary in all indictments to charge the prisoners arraigned for murder, not only with the attempt at that crime, but also with intent to do grievous bodily harm. It was now the unvarying practice to introduce those two distinct counts, whereby juries had the opportunity of finding parties guilty of the offence subjecting them to the minor punishment, and for his part he did not then recollect one case where these two counts had been introduced in which the prisoner had been convicted of the capital offence. He was alluding to this subject, not only in order that he might congratulate the noble Lord upon the course he was now pursuing, but that he might beseech him to bestow his attention, as they had not yet gone into committee upon the subject, namely—whether the conviction of the guilty would not be better secured if they, in the consideration of the present question, adopted; the principle contended for with regard to attempts at murder. They should consider that the law was not the less properly; administered if the next severest punishment to a capital one was attached to crimes which did not deserve the latter. He could not conclude the observations which he was then making, without again: pressing upon the attention of the House an argument which he had on former; occasions used,—if they did not seek to revenge a crime, if they did not wish to infringe upon that which was the attribute of a higher power, if they sought to prevent the commission of crime, they would do well not to make the same punishment attach to an attempt at murder as to murder itself. He conceived if they retained; the punishment of death for murder, they did all that the law could do; they afforded as much protection to the community as they could. Put so long as they punished the criminal who only attempted it in the same manner, they took away from him all indisposition to strike the final blow—to remove any witness that might appear; against him—and therefore they only held out an inducement to the guilty to perfect the crime which otherwise he might have left undone. He trusted, in conclusion, that the noble Lord would, before he proceeded further, take the matters, to which he (Mr. Kelly) had called his attention, into his most serious consideration; and he hoped the noble Lord would more extensively than he had yet proposed introduce a modification into our legislation which would be not only creditable to the noble Lord, but highly beneficial to the country. With respect to the question of secondary punishments he had to express that he felt very happy the attention of Government had been turned to this subject; and for this part he trusted, they should all see the time, for that it would come he did not entertain a doubt when capital punishments would be totally abolished, and a satisfactory system of secondary punishment adapted, which would be found more effectual in restraining crime. and more beneficial to the community, than any other which might be suggested.

Mr. Shaw

agreed in much of what had fallen from the noble Lord; indeed he might say that he concurred in all the principles the noble Lord had laid down as applicable to the administration of criminal justice generally; but he thought that both the returns and the reasoning upon which the noble Lord relied, were in some degree fallacious as regarded the crime of rape. He admitted the general rule in criminal jurisprudence lo be, that punishment should be certain and moderate; and that the proportion of convictions to prosecutions was generally a safe criterion by which to test it. In rape, however, he considered that it was otherwise, and that the policy of the law and real justice required that the convictions should be few in comparison with the charges brought, but that when there was a clear conviction, free from the possibility of a rational doubt, that then the punishment, should be extreme; in ordinary cases—such as robbery or attempt to murder—the prosecutor was influenced by no interested motive; he made the accusation under the sincere impression of the guilt of the accused party—while in rape, the charge was frequently made to hide the shame of the party preferring it—to force a marriage—or to indulge a revengeful feeling towards the person charged. In all such cases justice lay in an acquittal; but if the accused was really guilty, then whether you regarded the moral guilt of the offence—the heinous crime of the offender—or the injury done to the sufferer—an injury worse than death itself to an innocent and virtuous woman—no punishment which the law awarded for any crime could be disproportionate to that. When the doubt of the jury arose from a feeling that the punishment was more than commensurate with the offence, there the penalty should be mitigated—but where the doubt was sincere, from the difficulty of proof, as in case of rape, where the accusation was easily made, and extremely difficulty to rebut, be would not remove a single obstacle to the conviction; but if it was obtained under circumstances that left no room for doubt in the minds of either judge or jury, then he would not abate one jet from the just severity of the punishment. The returns to which the noble Lord had referred, might be accounted for by a real diminu- tion of the crime and an increased number of unfounded accusations, both arising from the severity of the punishment, although it was not more than justly severe—and he apprehended some danger lest a relaxation of the punishment might lead to a less rigid caution in convicting where the evidence was not clear and satisfactory—where the consequence would be only transportation—while the noble Lord seemed himself willing to allow, that if the offence was conclusively brought home, then capital punishment was not more than commensurate to its aggravated and atrocious character. He was no friend to undue severity of punishment—he was in favour of its general mitigation, and of limiting the number of capital crimes; but he was persuaded with the noble Lord that the penalty of death could not safely be dispensed with in all cases; and he differed with the noble Lord in considering that the case of rape, clearly proved, was one in which it ought to be continued.

Sir C. Douglas

concurred, with the opinions of the right hon. Gentleman (Mr. Shaw), and begged to congratulate his hon. and learned Friend (Mr. Kelly) on the perseverance which he had shown, during the last and present Session, in bringing this important matter before the House and the country.

Mr. Ewart

had some years ago been anxious to direct the attention of the Government to this subject, and, therefore, he saw it taken up by his hon. and learned Friend opposite, who was so competent to the task, with much pleasure. With regard to the destruction of property in dockyards, consisting of naval stores, he did not think that juries would in general draw that fine distinction between the property of the Crown and that of private individuals which the noble Lord the Secretary for the Colonies required. If it was proposed to make offences of this description subject to capital punishments, he could not avoid thinking that jurors would feel some repugnance at subjecting men to them, and would, therefore, be most likely to acquit the prisoners. He objected to the power of committing punishment now vested in the Secretary of State, because he thought that all such powers ought to be exercised coram populo. It was true it might be said that the acts of the Secretary of Stale were open to public responsibility, but they were not open to public inspection. With regard to outrages on females, he could see no reason why crimes of that nature should not be subject to the same proof as others, or why a severe rule should be applied to them alone. The noble Lord had most satisfactorily shown that, in proportion as punishment had been mitigated, crime had decreased, and he was happy to be able to confirm that statement of the noble Lord, and to refer to the crime of cattle-stealing as a proof. He could state from authentic documents that, since the mitigation of capital punishment, convictions had increased in the proportion of three to one. He was sorry that the noble Lord held out no hope of any definite period, for the total extinction of capital punishment. The noble Lord, on a motion of his last year on the subject, reminded him that in Tuscany, where capital punishment had been abolished, it had since been revived, but he was happy to be able now to inform the noble Lord, that no execution had taken place there for the last ten years. He congratulated the noble Lord on the support he received from the Gentlemen opposite, in his endeavours to mitigate the severity of the criminal code, inasmuch as the noble Lord might rely on those who professed the same political principles as himself, for they were great advocates of the abolition of extreme penalties.

Mr. Philip Howard

thought that nothing but the dread of death would be sufficient to deter some men from crime, and if it was expedient to remove the punishment of death from outrages committed by one man, still it would be manifestly unjust to expose a female to be attacked by more than one, when no spirit or strength would enable her to resist the assault upon her honour. If the penalty of death were removed from burglary when murder was not committed, that was certainly an inducement to the parties not to proceed to murder; but here the House was about to remove the safeguard of female honour, and he must solemnly protest against such a proceeding, because if they deprived a female of her honour, what, in the name of HEAVEN, did they leave her.

Leave given, and the three following bills were brought in and read a first time, namely, A bill to abolish the punishment of death for certain offences of embezzlement and fraud, and for returning from transportation out of St. Helena. A bill to amend an act of the ninth year of the reign of King George the Fourth, for consolidating and amending the statutes in England relative to offences against the person. A bill to amend an act passed in the twelfth year of the reign of King George the Third, for the better securing and preserving her Majesty's dockyards, magazines, ships, ammunition, and stores.