Lords Sitting of 24 May 1811

MR. PALMER'S CLAIMS.
The Earl of Liverpooladdressed their lordships on the subject of the recent vote of the House of Commons, in favour of Mr. Palmer. He expressed his satisfaction at the notice taken by noble lords of the subject on a former evening; and he disapproved of such a proceeding on the part of the other House, after the question had been fully discussed, and decided in the negative by their lordships. He thought it preferable that no proposition should be made in that House, in consequence, but that they should wait until the answer of his royal highness the Prince Regent upon the occasion should be known. He, for one, as a member of his Majesty's government, or an adviser of his royal highness, should not recommend to him to sanction or authorize the grant of money for satisfying a claim which their lordships' House had decided to be unfounded.
The Earl of Radnorexpressed his satisfaction at what had fallen from the noble secretary of state.

CRIMINAL LAW BILLS.
Lord Holland, pursuant to notice, rose, to move the second reading of the Bills brought up from the Commons, and proposed by sir Samuel Romilly, for repealing the capital punishments annexed to the offences of stealing in dwelling-houses and shops, beyond a certain amount; stealing on Navigable Canals; and in bleaching grounds in Great Britain and Ireland. He first stated the origin and nature of the acts which rendered the offences in question capitally punishable. These enactments took place in the reign of William the third, and of queen Anne; and he adverted to the very different nature of the existing laws of England, from what they were at those particular periods: and also of the very material difference in the value of money. It was judged, under the circumstances of those days, advisable to punish these offences in the most compendious, though not the most efficacious, way they could devise, namely, by the dreadful punishment of death. The Bills under consideration, though evidently for

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one general object, did not exactly rest upon the same grounds. Those which related to the depredations committed in bleaching grounds, proceeded exactly on the same principle, and were more particularly entitled to the attention of the House as the very individuals whose properties were concerned, in both parts of the united kingdom, had come forward, and requested the legislature to new-model the law, as, from the effect of its extreme severity, their properties were the more exposed in consequence of the very great uncertainty of punishment. Thus, the persons the most interested had clearly expressed their sentiments. In point of principle and object the Bills were the same. From the extreme rigour of the existing laws, the actual punishment of offenders became very uncertain; and thus, instead of restraining the commission of offences, they were in effect multiplied. This was incontrovertibly true: long experience evinced it. What he advocated when he urged their lordships to sanction the Bills in question, was not the cause of theory or speculation; It was founded in recorded facts—in the annals of the criminal jurisprudence of the country. In point of fact, the practice of the law in these respects was against the letter of the law: and the subject solved itself into the question, whether the terror of punishment or the certainty of punishment was the more likely to deter from the com-mission of crimes? The unfavourable operation of the present rigorous enactments existed in more ways than could be evidently ascertainable. It was not only the difficulty of obtaining convictions on prosecutions in courts of justice that was to be considered, but the numbers who were deterred from the prosecution of offenders, lest they should endanger the life of a fellow-creature, for the value of the paltry sum of five shillings, or even of forty shillings. That numbers were so deterred, he had a right to assume in argument, from those circumstances which were of daily and evident notoriety. Nor was even this the worst. Juries had been known to incur the crime of perjury rather than commit the culprit before them to the hazard of capital punishment. There happened a case in which the charge was the stealing of a 10 l. bank note. This the jury, in the warmth of their humane feelings, thought proper to reduce in their verdict, to a nominal value below 40 s. whereas in justice the verdict should have
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been that the prisoner had stolen the bank note, or had not stolen it. And it was before them in authentic statements, that out of 1800 persons who were tried for the offences specified, in the Bills in question, not above one in seven years had been executed. It was admitted on all hands, it was notorious, that the commissions of these offences were progressively increasing; and the generally assigned cause was the extreme rigour of the existing law in these respects. Even the officers of the customs and the excise had expressly stated their opinions, that, in the case of the revenue laws, the severity of the punishments prescribed, eventually caused an increase of the offences, and they recommended a relaxation on that ground. The consequence of the present state of the law, by diminishing the chances of punishment, or even conviction, was an increase of the offences; and this view of the question alone, were there no other, should be sufficient to induce the legislature to modify and relax the rigour of the law. It might be urged against him, that generally in cases of conviction the law was not executed to the extent, but mercifully administered. But this was the mere exercise of a discretionary power; and he was un-willing to vest, in such frequent instances, a power over the lives of their fellow creatures, in any individuals, however highly he might respect them. It was a power which should be confided to them only in cases of extreme necessity. He did not lay much stress upon what was done in these respects in despotic countries; in Russia, for instance, where the punishment of death was said to be abolished, because in such countries the whole system of the law depended upon the will of one, or of a very few individuals. The principle upon which the legislature should proceed, in free countries, was widely different. Pressing his line of argument for relaxing the severity of the law, the noble lord contended, that it eventually operated as an inducement to the commission of offences, inasmuch as every commutation of the punishment from death to transportation, was regarded by the convicted as a species of escape, and this encouraged others to hope they should meet with equal good fortune: and they had to consider whether it was not better to assimilate the law to the practice, than to suffer the present inefficacious, nay injurious system, to continue. The noble lord concluded by moving the

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second reading of the Bill for repealing the capital punishment on the conviction of stealing to the amount of 40 s. in any dwelling house.
Lord Ellenboroughthought the whole of this argument might be confined to this alternative; either there must be a high punishment for the aggravated commission of a general crime bearing the intermediate degrees between that and the lowest penalty, to be supplied by the discretion of the judge; or there must be a graduated seals of punishment, proportioned to all the shades and difference of crime. The latter mode was a the story borrowed from the Chinese code, which, in a late pamphlet, was represented to embrace the shades of difference of crime, from murder, down to those of the lowest denomination, where even the blows of the baton were not only numbered, but the size and thickness of the instrument ascertained. Such a system he contended was ridiculous, and as absurd in theory, as it would be found nugatory in practice. Judge Blackstone's authority had been referred to, but what he stat-ed on the criminal law was written at a period of his life when he was inexperienced, and though his authority was great and deservedly respected, yet it was not equal to other eminent legal authorities, The Bill which altered the law as it regarded privately stealing from the person, had, he knew beyond all doubt, increased that offence to a serious and alarming degree. He instanced some cases of gross atrocity which had come to his knowledge, at the last sessions at the Old Bailey. Two of the Bills on their lordships' table, respecting stealing from bleaching-grounds in England and Ireland, he should not oppose, on account of the petitions from those who were to receive the protection of the law. The other three, respecting stealing from shops, dwelling-houses, and canals, he should oppose; for they went to alter those laws, which a century had proved to be necessary, and which were now to be overturned by speculation and modern philosophy. He thought prosecutions were in general most sturdily pursued; and instead of prosecutions being encouraged, there was reason at all times to restrain them; for the parties appeared not to be wanting in an appetite for conviction. Juries, in general, acted according to their anxiety; and this might be called a rice inherent in the constitution of man. The discretion in Judges
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was a power they exercised with pain; but he did not perceive how that mode of administering the law could be dispensed with. His endeavour was to discharge his duty, however he might be misrepresented; but he would never sacrifice his conscience to the cowardly Fear of misrepresentation. When he was appointed to the situation he filled, he made a covenant with himself, that he would always appear in that House, and state to their lordships all the knowledge with which he might be supplied from experience, as to the making, altering, or repealing of the laws of the land. In that capacity he offered himself at present, and he trusted that they would not readily change what the experience of a century had proved to be beneficial, for the illusory opinions of speculatists. The noble and learned lord moved, as an amendment, That the Bill be read this day six months.
The Earl of Lauderdalecontended, that the noble and learned lord had no just ground on the present occasion to arraign the framers or supporters of the Bills before the House, of an inclination to intro-duce what he was pleased to call modern philosophy. The same principle upon which these Bills stood, had lately been acted upon by their lordships in the framing of a Bill to consolidate into one, all the acts which made death the punishment of certain offences against the excise laws. Some of the first legal authorities in the country had given their attention, their labour, and their approbation to that measure; and no one thought of describing it as an attempt to introduce and establish a system of criminal law, on the basis of what was termed modern philosophy.
The Lord Chancellorreferred to the example of the disposition which men's minds had to examine the principles upon which our criminal code was framed, a disposition which he himself felt in early life, before observation and experience had matured his judgment. Since, however, he had learned to listen to these great teachers in this important science, his ideas had greatly changed, and he saw the wisdom of the principles and practice by which our criminal code was regulated. It was impossible to observe the various forms and aspects under which offences of the same class, and liable to the same punishments, offered themselves to our view, without feeling the necessity of allowing a degree of discretion in apportioning

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the different degree of punishment with which each should be visited. In proof of this assertion, the noble and learned lord adduced a variety of cases; and argued for the necessity of vesting a very large share of discretion in the judges. Of this the framer of the present Hills appeared himself to be very sensible; for, while he took away the pain of death, he allowed the judges great latitude of discretion in measuring out the punishments which he wished to substitute in the room of death. After the most serious attention, however, to these cases, it was the conviction of his mind, that as long as human nature remained what it was, the apprehension of death would have the most powerful co-operation in deterring from the commission of crimes; and he thought it unwise to withdraw the salutary influence of that terror. The noble and learned lord disclaimed the smallest intention to impute improper motives to those who differed from him in opinion, with regard to the present bills.
Lord Erskinesaid, that the British nation was confessedly the most moral of any nation now known; and if in such a nation, he observed that a great number of offences were committed, to which was attached death, he should impute such an occurrence rather to something vicious and defective in our criminal code, than to any depravity in the moral disposition of our people. When he saw that out of one hundred prosecutions, fifty or sixty convictions and executions followed, then he should be satisfied that such offences should be punished by death; but when out of a thousand prosecutions, he observed that only one conviction and execution followed, he should also infer, that the legislature must see, that the pain of death was not applicable to such offences, on this ground he should support the motion now before the House.
Lord Redesdaleconsidered the discretion with which the judges were entrusted, as extremely beneficial. Allusion had been made by a noble lord to the Committee of that House, to whom the revenue laws, as far as respected the penalty of death, had been referred. The statement of that noble lord was not, however, correct. The fact was, that in the act which had been brought in, in consequence of their proceedings, the language of the former acts had been greatly simplified, but very few of the capital punishments had been commuted. In two instances, only, he
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believed, had an alteration been made, and these were cases in which it was found better, by substituting pecuniary penalties, to render the risk of committing the offence greater, than any benefit which could accrue from its perpetration.
The Earl of Lauderdalecontended that his statement was correct. By the revenue laws, as they originally stood, there were 95 offences punishable with death; by the late Bill they had been reduced to 25.
The Earl of Liverpoolobserved, that the reason which influenced the House to refer the revenue laws to a Committee was, that, in several of those acts, the penalty of death was enacted "by reference." This was most improper, and therefore the House had thought fit to investigate the matter. Direction was given to the judges to include in one act all the revenue laws which enacted the penalty of death. This Bill was referred to a Committee up stairs, and all those who were practically acquainted with the subject were examined as to the propriety of retaining or commuting the punishment of death attached to many of the offences. The proceeding bore, no resemblance to the measure then before the House. The noble lord who brought in the Bill had passed a high eulogium on the talents of the hon. and learned gentleman who had framed it. He was willing to concur in that eulogium; but it should be recollected that the branch of the law to which that hon. and learned gentleman applied himself, could afford but little information on the criminal law. He objected not so much to the Bills themselves, as to the principle on which they were founded, which might be applied to the whole criminal code. That code had succeeded as well as it was possible for any system of criminal law to succeed. He should therefore oppose the Bills, which, while he was sure they could effect no good, might be productive of very great mischief.
The Marquis of Lansdownesaid that the facts which were admitted to have been proved before the Committee on the re-venue laws, that, in many instances, the severity of punishment had increased the unwillingness to prosecute, and thereby become the means of increasing offences, were sufficient to prove the necessity of the interference of the legislature. Those who asserted that it was intended to take away all discretion from the judges were mistaken. By examining the Bill it would

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be found, that the judge could vary the punishment from transportation for life, to the period of seven years, or even to imprisonment for a certain time.
Lord Hollandreplied briefly" to the arguments advanced against the Bill.
The House then divided, when there appeared—

For the original motion

10

For the Amendment

27

Majority

—

17

The Bill was consequently lost. The Dwelling-house Robbery Bill, and the Navigable River Stealing Bill, shared the same fate. The English and Irish Bleaching-grounds Robbery Bills were read the second time, and ordered to be committed on Monday.