CAPITAL PUNISHMENT. (Hansard, 22 May 1851)

§ MR. EWART
rose to move the Resolution of which he had given notice. It referred to two points connected with the criminal law—Scotland and the Colonies. There might be many different opinions as to the expediency of capital punishment. There could be none as to the desirableness of the uniformity of the law, and the coincidence of its theory with its practice. In Scotland, and in many of our colonies, the administration of the law nearly corresponded with that of the law of England. His (Mr. Ewart's) object was, that the letter of the law should coincide with its administration. He would first refer to Scotland. The criminal law of Scotland was formerly much milder than the crimi- 1236 nal law of England. In Mr. Alison's work on the law of Scotland, he found the following observations:— The English criminal law was founded on Statute, often made on the moment; the Scottish, on common law, which had been softened by the increasing humanity of successive times, and had accommodated itself to the ideas and necessities of more civilised ages. Hence, while the capital crimes of England were still (notwithstanding the enlightened efforts of recent legislation) nearly 300, those of Scotland were not 50, of which more than half had originated with the British Parliament. A great change had, however, taken place in the criminal law of England. It was now of a more mitigated character than the criminal law of Scotland. At present the English capital crimes were about four in number, while the only one really capital in practice was that of murder. He (Mr. Ewart) must regret the difficulty of acquiring in England an exact knowledge of every point connected with the present law of Scotland. He had moved for returns on this subject; but they had not yet appeared. But according to Mr. Alison's work on the criminal law of Scotland, the crimes capitally punishable in Scotland, but not so in England, were as follows:—Rape, housebreaking, furtum grave, theft of more than one sheep or ox, employés in Post Office secreting, embezzling, or destroying any letter containing money, or any voucher or security for money, 5 George III., c. 25, 7 George III., c. 50., 42 George III., c. 81, 52 George III., c. 143; stealing or robbing letters from Post Office; altering any bill, note, order, or warrant for payment of money; forgery, arson, 'wilful fireraising,' not only houses, but corn, coalheughs, and woods, 1 George I., c. 48; certain acts of malicious mischief against animals, returning from transportation, 5 George IV., c. 84; many offences against the coin, being treason, Statute of 8 and 9 William III., c. 26, and of 56 George III., c. 68. He might be told, that though there existed this formidable list of capital crimes, it was not the practice to carry the law into effect in Scotland. The Lord Advocate had power to do what was technically called "restrict the libel"—that was, to mitigate the indictment—thus limiting the punishment so as not to inflict the penalty of death upon the offender. He saw, however, no reason why the law should not be conformed to its practice, and correspond with the law of England. The law should not direct one thing, and the Judge upon the bench ano- 1237 ther. He therefore asked the House to assimilate the law of Scotland in theory as well as in practice to that of England. He next begged to call the attention of the House to the state of the law with respect to capital punishment in our colonial possessions. In the first place, he would state that great variations existed with respect to the law. In St. Lucia, for example, the old French law of Louis XIV. was in force. He then found, according to the returns which he had obtained, that the crimes punishable capitally by the letter of the law were rape, arson, burglary, highway robbery, offences against the coin, sedition, and treason (as defined by the old French writers), embezzlement of stores and public money, and escape from prison. None of these crimes were capitally punishable in England; and they came under an obsolete French law, long ago abolished in France itself. In Ceylon and the Cape of Good Hope, the Dutch Roman law prevailed and a vast number of crimes which had ceased to be capital in this country were still capital in that colony. In Ceylon he found that coining was a capital offence; so was sedition, aiding to escape from prison, arson, homicide, theft, the receipt of stolen property, robbery, forgery, rape, abduction. He was aware that a change in the law of Ceylon was proposed. He hoped it would be assimilated to the law of this country. In the colony of the Cape of Good Hope, it appeared that a code dated, principally, from the time of Charles V. (A.D. 1545) prevailed. He there found that the crimes capitally punishable were cattle stealing, theft (after a third conviction), forgery, all crimen falsi, coining, housebreaking, robbery, piracy, arson, riot, embezzlement. In Malta the principles of the Justinian code prevailed. There too, he was happy to say, a change in the law was proposed, and would, he hoped, soon be effected. But by the letter of the existing law, he found crimes capitally punishable were—duelling, thefts of any amount during the night, attended with personal violence, attempts to poison, grave injury with danger by a son or descendant, malicious discharge of fire-arms, peculation, and, lastly, the infraction of the quarantine laws, in certain cases. In other cases there were, among our colonies, discrepancies with the law of England. So far as the returns he had obtained enabled him to judge, the criminal law in fourteen of our colonies corresponded with the law of England; in 1238 three it was partly assimilated to that law; in nine it was much more severe. It was urged that a more stringent law was necessary in convict colonies like Bermuda and Van Diemen's Land; and this he did not mean entirely to deny, though capital punishment would not, ultimately, be found expedient even there. He admitted that, in all our colonies, there was a practical approach to conformity with the law of England. The Colonial Governors, indeed (in their answers to the returns), had generally recommended such conformity. In some of the colonies, the change he advocated was now going on. It was true that we now, most wisely and most justly, were leaving the government of our colonies to themselves. Still, even where self-government was beginning to prevail, public opinion expressed in England would have its moral and its material influence. It was for this that he called on the present occasion. In Scotland we could act; in the Colonies we could influence action. The proposition he submitted to the House was based on two principles: that the law of all parts of Great Britain and her dependencies should be, as nearly as possible, the same; and that the theory of the law should correspond with its administration. On these grounds he moved— That it is expedient that the mitigations which have been made in the Laws inflicting Capital Punishment in England be extended to Scotland, and (as far as possible) to the Colonial Possessions of this Country.

§ MR. FOX MAULE
regretted very much that on a question affecting the criminal jurisprudence of Scotland the right hon. and learned Lord-Advocate should be unavoidably absent; and he might state that nothing but the absolute necessity of that learned Lord being present at a meeting of the Supreme Court to go through certain forms necessary to his taking up his high appointment, prevented him being in his place, and answering the statements brought forward by the hon. Member for Dumfries (Mr. Ewart). To the proposition of the hon. Gentleman, he did not himself see any objection. It amounted simply to this, that in Scotland and the colonies, the laws inflicting capital punishment should be the same as in England. But he objected to the House of Commons committing itself to vague Resolutions of this description. If his hon. Friend (Mr. Ewart) had looked to the practice that had been pursued in Scotland, and the laws that had passed since Mr. Alison Wrote his 1239 treatise, he would have found that the law of England and Scotland, on certain subjects, was exactly the same. By the 4th and 5th William IV. cap. 67, capital punishment was abolished in certain cases in Scotland as well as England; and by a subsequent Act, in the case of letter stealing in the Post Office, capital punishment was repealed in Scotland as well as in England. The common law of Scotland differed much from the common law of England, inasmuch as the Scottish Judges had the means, under the common law, of reaching many crimes that in England it required statutory enactments to punish. For example, the Lord Chief Justice of England had introduced a Bill in another place to punish robbery and other crimes committed by means of chloroform; but the Judges of Scotland, by the common law of that country, had the means of punishing crimes of that description without any enactment whatever. Besides, the Public Prosecutor in Scotland had the power of restricting the libel; and, so long as public opinion was in favour of restricting as much as possible the punishment of death, the hon. Gentleman might depend upon it that the practice in Scotland would be the same as in England. Then, as regarded the colonies, he did not think they were called upon to legislate in this way on their behalf. The colonists were themselves the best judges of what was suited to their respective cases, though at the same time he trusted that they would see it their duty to follow the example set them by the mother country as regarded capital punishment. To pass such a Resolution as the present, would be entirely discordant with the usual practice of the House as regarded the colonies, and therefore he hoped the hon. Gentleman would not press them to divide upon his Motion, especially when he considered the disposition ever shown by the Government to limit the infliction of capital punishment as far as they found it possible to do so.

§ MR. HUME
did not think the right hon. Gentleman (Mr. Fox Maule) had done justice to his (Mr. Hume's) hon. Friend the Member for Dumfries, who had introduced this Motion. He (Mr. Hume) could bear his testimony to the good effects which had arisen from the frequent agitation of this question in Parliament. Capital punishment had been remitted with respect to many crimes, the recurrence of which, it was at one time contended, could only be prevented by the retention of that mode of 1240 punishment. But, notwithstanding—if not in consequence of—that remission, those crimes had reduced in number. The crimes of sheep-stealing and many others once capital had all been reduced in number since the capital punishment was taken away. It, therefore, became necessary that they should have a similar system extended to every part of the British dominions. He should like to see that which was practically done in Scotland done by the law. Then, with regard to the colonies, he was unwilling to interfere in these colonies where a system of self-government prevailed; but where that was not so, it was the duty of the House to endeavour to assimilate the law. A short time ago five men were executed in the island of Ceylon. That act was deprecated by the whole colony, and yet the law was imperative. He hoped the right hon. Secretary of State for the Home Department, with whom questions of punishment and justice more immediately resided, would give this subject his early attention, with a view to the assimilation in the law contemplated by his hon. Friend (Mr. Ewart).

§ MR. HAWES
said, with regard to Scotland, all had been said that was necessary to be said on that subject by his right hon. Friend (Mr. Fox Maule); and he (Mr. Hawes) must say that his hon. Friend the Member for Dumfries (Mr. Ewart) ought to have introduced a Bill, and not to have proceeded by way of Resolution, because the Imperial Parliament was the place in which the law was to be altered, if anywhere. In regard to the colonies, he freely admitted that the discussion of the question might do good. The only question for the House to consider was, whether the mode proposed by his hon. Friend (Mr. Ewart) was that which it was desirable to adopt. There was only one of two ways by which the end of his hon. Friend could be attained, and that was either by the direct influence of laws to be passed in the colonies where there were representative institutions, or, in case of the Crown colonies, by directing laws to be introduced. At the same time, he thought the wisest course was to leave the colonies to follow entirely what their own sense of right and expediency pointed out. Already in eighteen of the colonies the criminal law was the same as in England. The colonies might be divided on this subject into three classes. There were some of the smaller North American and West Indian colonies which were be- 1241 hind the legislation of the mother country; there was another class that might be called conquered colonies, in some of which, as at the Cape of Good Hope, the Roman Dutch law existed with very severe penalties; and then there were the penal colonies, where very stringent laws were absolutely necessary. Now, with regard to the North American and some of the West Indian colonies, where legislation rather lagged behind the spirit of the age, he must say that, though the law differed from that of the mother country, the practice was the same. At the Cape of Good Hope, though the law was different, the practice was also the same as in this country. In such circumstances, he thought it was better to leave those colonies alone, and not attempt to enforce upon them imperial legislation, especially as successive Colonial Secretaries had recommended an assimilation of the law in this matter to that of England. In the case of the penal colonies, the hon. Gentleman himself admitted that it might not be proper to change the law as regarded capital punishments. He need hardly say that it was the wish of his noble Friend the Colonial Secretary, and, indeed, of all the Members of the Government, to see the criminal law mitigated as much as possible in the colonies; and he hoped his hon. Friend would see the expediency of not pressing the House to a division, which would not further the object he had in view, and that by withdrawing the Motion, he would save him the necessity of meeting it with a direct negative.

§ SIR GEORGE GREY
wished to say one word, in consequence of what had fallen from the hon. Member for Montrose (Mr. Hume), as to his turning his attention to this subject. He quite agreed in the spirit of this Resolution so far as it related to Scotland; and the best assurance he could give the hon. Member that he would turn his attention to it was, that he had already been in communication with the late Lord Advocate on the subject. He would also enter into communication with the present Lord Advocate, who, he had no doubt, would direct his attention as promptly to it as his predecessor had done, with a view to the assimilation of the law.

§ MR. EWART
would not press his Motion, after the assurance which had been given him by his right hon. Friend (Sir George Grey).