Lords Sitting of 2 March 1812

DRURY LANE THEATRE BILL.
Lord Holland moved the second reading of the Drury Lane Theatre Bill.
The Duke of Norfolkthought, that some farther delay ought to be allowed, that the nature and object of the Bill might be more fully investigated. Well regulated theatres, he bad no doubt, were highly proper in all large cities, and contributed, not only to the entertainment of the people, but also to the improvement of their morals. He had no objection, therefore, to the measure merely as a Bill for building a theatre; but there were some points in the Bill that deserved mature consideration. It might be expedient, in the progress of it through the House, to turn their attention to the state of the metropolis, with regard to its theatres in general, and to consider the foundation and tendency of the monopoly. He should, therefore, propose the postponement of the second reading till to-morrow se'nnight.
Lord Hollandstated, that the object of the present Bill merely was to extend the time and enlarge the powers for carrying the design of the former Bill into effect. This was its principle, and he saw no reason for the delay proposed by his noble friend. It was of great importance to those concerned, that if the Bill was to pass at all, it should pass speedily. If long delays were allowed, the Bill might be got rid of by a side wind. If his noble friend objected to any of the details of the Bill, the committee was the proper place in which to state them When the Bill should be amended in the committee, some time might be permitted to elapse between the commitment and the third reading.
The Duke of Norfolksaid, that the osten-
1076
sible intent of the Bill certainly was to carry into effect the provisions of the former Bill; but he rather thought it would be found, that the enactment went beyond that; and as the second reading had been generally understood to be the proper stage in which to discuss the principle of any measure, he should persist in his motion for delay.
The question was put, but no division took place. The Bill was then read a second time, and a motion made for committing it to-morrow.
The Duke of Norfolkopposed this also, and contended that the committal at least ought to be fixed for a more distant day. There was no good reason for hurrying the Bill in this manner through the House. The session was not so far advanced that the loss of the Bill could be seriously dreaded merely from a delay of a few days.
Lord Erskine opposed the delay, and lord Redesdale supported it, observing that there were certainly some provisions in it that required consideration. After a few words from the Lord Chancellor, stating that he had approved the second reading now, because the amendments, if any were required, might be made in the committee, it was agreed that the Bill should be committed on Thursday.
Lord Erskinemoved for the appointment of a committee, to inquire into the best means of ventilating the place, in which their lordships sat, and adverted to the uncomfortable feeling which must be excited, and which he himself had experienced from the vast number of small holes in the floor. One might catch cold even in a post-chaise in summer, if the chaise were full of small holes. He was the more alive to this subject, from the experience he had had in the courts where he had long practised.
Lord Grenvillehad no objection to the committee merely for the purpose of enquiry, but at the same time said, that the plan recommended by Mr. Davy had not as yet had its fair trial. The House had undoubtedly been rendered more comfortable since that plan had been adopted.
The Lord Chancellorhad the greatest respect for Mr. Davy; but if any of their lordships would come on Wednesday, and sit with him to hear a Scotch cause, with 500 holes under that table, all the philosophers in the world could hardly persuade him that his situation was of a very comfortable nature.
Lord Mulgravehad often suffered se-

1077
verely from oppressive heat in the House; and of the two extremes, he should certainly prefer cold to heat.
The Lord Chancellorrequested the noble lord, who was a very good lawyer, to come and hear the Scotch cause, and then he would probably alter his opinion.
The motion was agreed to.

FRAME WORK BILL.
On the order of the day for the committal of this Bill,
Earl Grosvenorrose to move, that the order be discharged. After what had already passed; after the eyes of the noble Secretary of State had been a little opened, he had expected him to have himself moved the discharge of the order. The Bill proposed to punish with death those who entered a house, whether with force or not, and damaged a piece of lace, or stocking frame. The measure, however, was said to be necessary; but their lordships might depend upon it that this law would only make the artful more artful, the cunning more cunning, the mysterious more mysterious. The proper way to conciliate the people, and to prevent these outrages, was to reform abuses; and on this account he regretted the introduction into the Prince Regent's cabinet of a noble lord, who, whatever might be his merits in other respects, was no friend to such a reformation. He would have been in despair, had it not been for the decision of the House of Commons in the case of an office granted by ministers after having been condemned by a committee of that House. No decision had ever given him so much pleasure. The noble earl particularly censured the severity of the measure, which went to inflict the sanguinary penalty of death, upon what might be only an entry into a house. He trusted their lordships would not suffer themselves to be persuaded by ministers into a concurrence in an act, which would be a disgrace to the statute-book, to the character of the country, and which, instead of removing the evil, would increase it, by more widely diffusing the mischief, and driving the unhappy depredators to acts of desperation. He concluded by moving, That the order be discharged.
The Marquis of Douglasstated the question to be, whether the punishment of death was really necessary in this case? and when it was admitted that the milder punishment had never been tried, the argument appeared to be decisive against the severer penalty. The evil here to be
1078
remedied did not consist in the defect of the punishment, but in the security of the criminal. Had the former act been put into execution? If it had not, how could they state that the punishment was ineffectual? Nothing could be more unwise than enacting the extremity of punishment in cases of minor offences. When there was no variety in punishment, people would be led to think that there was no gradation in crime. The evil was not to be remedied by laws like this; it extended much farther than Nottingham: a whole population was driven to these pernicious courses by the distresses arising from the unwise policy of government. They asked for existence: give it them (said his lordship) by abandoning that policy, and do not visit them with extermination as a cure for their miseries. In Yorkshire and Lancashire there had been considerable meetings of people suffering under the same distresses as the manufacturers of Nottingham; In his own country, too, (Scotland) there had been meetings of the same description. In Glasgow an application for relief had been made to the magistrates by 30,000 people; but any serious disturbance had been prevented by the wisdom and activity of the magistrates, and especially the provost. The evil likewise extended through Ayrshire. They must go to the root of the evil, and alter their policy. This was the only efficient method. They must return to the old system under which this country had so long flourished, and not destroy the gifts of nature by their unwise measures. The present Bill was the last resort of a rash, feeble, and wretched government,—fearful of their own enactments, because doubtful of their own ability.
The Earl of Harrowbyhad imagined, that after the discussion which had already taken place, there would have been no farther opposition to the Bill. Nothing new had been advanced. Even if he should concede all that had been advanced as to the unwise policy of government, still there was a necessity for this law. An altered policy must take some time to operate: and, in the mean time, an immediate remedy must be applied to the existing evil. The crime was of the most heinous nature and most dangerous tendency, and must be repressed. As to the assertion that this was the last resort of a weak and wretched government, it ought to be recollected that similar laws in similar cases had been passed under the most

1079
powerful and humane governments; and he referred as evidence of this to the several Jaws passed since the 12th of Geo. I, relative to the woollen and silk manufactures. They need not be ashamed to be as weak and bloody as Sir Robert Walpole, lord Hardwicke, and the marquis of Rockingham. It ought not to be said that they were harsh or violent in following the system that had all along been pursued and found effectual. Without entering on general principles, he referred to the authority of Mr. Justice Blackstone; and contended that nothing could be found in the book of that eminent judge, adverse to a capital punishment in a case of this nature. The punishment of death had often been enacted against offences where it would be really inflicted only in particular and highly aggravated cases. Our law was mildly administered. The complaint generally was, that the guilty escaped, not that too much severity had been used. In the execution of the present law, the same principle of mildness would, no doubt, be attended to: but there might be cases in which the offence would deserve death; and the capital punishment was necessary in order to strike terror into the offenders.
The Earl of Carlislesaid, that the proposition to enact a law subjecting a fellow creature to the punishment of death, was one from which humanity shrunk, and on which reason ought to pause. Nothing but necessity clearly proved could justify its adoption: but where was the proof here? What papers—what documents had been laid before them? None; they had merely the assertion of the ministers that there was a necessity for this measure, and that assertion only; unless the accounts in the newspapers of disturbances were to be considered as proper grounds for that House to proceed upon. Allowing these to be true,—how did they know that the magistrates of Nottingham the meant no disrespect to them) had done their duty? How did they know that the proper means of detection had been used? This Bill was, besides, perfectly inefficient for its own object, and, indeed, in some measure subversive of it. How could they expect that those who were averse to subject these men to the punishment of transportation, would be willing to subject them to the penalty of death? There was a great deal of feeling and humanity in the generality of the people of this country on these occasions." If the law," said they," sub-
1080
jects a man only to such a punishment as his offence deserves, we will inform; but if his life is to be affected, you will get no information from us." On every ground the noble earl said he thought the measure highly objectionable.
The Earl of Westmorelandsupported the Bill, and vindicated the conduct of government in acting with every practicable vigilance and exertion to restore tranquillity and order, ere they recurred to parliament for the present measure. His lordship followed the line of argument adopted by his noble friend who spoke last but one, as to the general principle upon which the measure proceeded; and he was convinced the law under the Bill would be administered with a discriminating lenity, and fully acted upon only when the necessity of the case required it. The measure, therefore, had his cordial assent.
Lord Grenvillethought the evil of a deeper nature than noble lords were inclined to admit. The great cause was the bad policy which had plunged our manufacturers into distress. The distress and the cause were spreading together. It was now that the effect of the paper issue was making itself felt through the community; and it was impossible in any case to conceive, why the same evils which had extended on an excessive issue of paper, should not be attended with the same evils here as in all other countries. This was a more prominent cause than even the Orders in Council. His noble friend (the earl of Lauderdale) had imputed the distress to the sudden rise and fall of wages by the sudden demands for manufactures; but even where the wages did not fall, the excessive issue of paper lowered their real value. The same money could not purchase the same quantity of provisions; and unless there was a maximum on the price of the necessaries of life, the working people must be more and more impoverished, even in the nominal receipt of undiminished wages. The great manufacturers worked for foreign markets; the rise of the prices abroad did not keep pace with the rise of the nominal value of the currency at home; and in consequence, they were obliged to tell their workmen that they could not make the prime cost on their materials. The workmen said, and with not less truth, that they could not live by their work; and thus distress; came rapidly upon the most useful and industrious classes of the community. The present system had the direct tendency of

1081
exhausting the resources of the industrious part of the public; this was no new thing to their lordships; it had been pointed out from the beginning: every step of its progress had been regularly detailed, and it was now making its way with accelerated evil. Was this a thing within penal laws to correct? Were men to be cured of this by the gibbet and the gallows? The Bill might irritate and punish, and inflict miseries dreadful to feeling and humanity; but it would not stop an evil which resulted from the wretchedness into which a dangerous and headlong system had driven the working people. His noble friend, (the earl of Harrowby) in quoting a passage from judge Blackstone, seemed to doubt whether that great judge looked on the punishment of death as a means of prevention, or as the penalty for enormous crime. But, putting the first point out of question, was the guilt of this crime of that enormous nature which required death? The noble earl obviously combined the individual act with the crime of conspiracy: but the Bill omitted all the intention of conspiracy, and alluded only to the act of the individual. It would be answered, that the intention of the Bill was chiefly against the conspiracy: but where was the object of a Bill to be found but in its leading clauses, or preamble? He was sorry to hear an attempt to justify the introduction of penal statutes by great names. If there was any case in which we should not look to precedents, or give up any thing to great names, it was a case like the present. To justify the infliction of death, there must be no authority but strong necessity. The statute book was stained with sanguinary laws; it was a stigma on the character of the country; foreigners looked upon it as such, and appealed to its existence as the standard of our national character. His noble friend spoke of the mildness with which those laws were administered. A philosopher once said, that among the Athenians, to praise the Athenians was extremely easy: but where were we to find the great evidence of a mild and legislative spirit,—the prevention? If the question was of the purity of the administration of justice, he most agree that here we were unrivalled,—that there was no country in the world,—that there never was a country, where the innocent man was so secure of acquittal as here. But as to punishment, he knew of no country in Europe,—perhaps be ought to speak of it as before the late
1082
dreadful revolution—where so many suffered by sanguinary punishments. Were we about to write in blood the new code for the new situation to which we were gradually advancing? In this instance, we could not punish without frequently committing the most shocking offences against humanity. Crimes of the most different nature were mingled under one punishment; and death was to be equally inflicted for conspiracy and for acts for which a school-boy's whipping would be too severe. Men were to be hanged for 'damaging' frames. What a word! and how capable of perversion. What was 'damaging' a frame? The slightest injury to the slightest part of a complicated machinery was to bring a man in peril of his life. This was enough to throw the body of the manufacturing people into despair. Tell them, that if from folly or malice a man break any part of a machine, he forfeits his life, as much as if he had conspired to destroy the whole machinery of the establishment,—as much as if he had murdered the man at the machine, and the consequence must be horrid. The wisdom of legislators was employed in pointing out the gradations of crime, and making the return always more easy than the progress; but here," Returning were as tedious as go o'er," and the moment the workman had touched upon his crime, he had incurred the punishment of its consummation.
The Earl of Liverpoolsaid he had not heard any noble lord on his side of the House deny that there was distress among the manufacturers, but they had distinctly denied that the distress arose from the Orders in Council; and it was evident that those Orders were blameless, as it had actually happened that the trade had never been more flourishing than since their operation. It had happened that at a late period there had been a sudden excitement of trade; that it had been followed by a glut of the market; and that glut, by distress among the workmen. Nothing was more in the course of things: the same events had been continually occurring, sometimes in war, sometimes in peace. So long as the spirit of speculation existed among traders, and so long as, in this free country, no restraint was put upon any man's use of his money, so long those circumstances must occur from time to time. But the present interposition of parliament was called for, not by the distresses of the workmen, but from a con-

1083
spiracy against the machinery, which had regularly exhibited itself at all times when machinery had been employed to the disuse of manual labour. They had found penal statutes necessary for the protection of every successive kind of machinery. His lordship read a passage from archdeacon Paley, implying that the intensity of punishment was to be adapted, not to the enormity of the crime, but to the difficulty of preventing it in society. It was on this principle that a man was hung for stealing a sheep or a horse; though, in the bare enunciation of the thing, it would seem horrible to hang a man for stealing a sheep. There were but two ways of determining punishments,—either by leaving them under a general description to the discretion of the judge, or by stating the shades of crime, and affixing the separate punishment. The latter would be scarcely found possible. But where was the evil of the former? It was the working principle of the English law; and there was at least the evidence, that however sanguinary its language might be, its discretionary practice was mild. The mode of detection was attended to in a clause of the Bill. But even if the detection had been hitherto difficult, was it to be said that this Bill would produce no effect? Did it not argue an ignorance of human nature to say that while detection was never absolutely impossible, men would not be more afraid of being detected when the punishment was to be more exemplary, and that thus the terror which the Bill held before them would not be a restraint. Even the smallness of the means of detection made it more important to use those restraints which we had in our power, and those were to be found in terror.
The Earl of Rosslynargued, that it was not because some discretion must necessarily be left to to a judge, that therefore they were to legislate, leaving all to his discretion. It ought still to be a question as to how much discretion was to be left to the judge.
The question was put for discharging the Order, and negatived. The House then resolved itself into a committee.
The Earl of Liverpoolstated his intention of proposing amendments, to leave out the word' damage, and to insert in different parts of the Bill respecting cutting and destroying frames, utensils, work, &c.' with intent to destroy or render useless,' in order more clearly to define the offence.
Lord Grenvillemoved to insert words, for the purpose of confining the punishment to offences done in conspiracy and combination.
The Lord Chancellorcontended, that in order to reach combinations, they must aim at the acts of individuals, and argued that in legislating for the punishment of crimes, much must, of necessity, be left to the discretion of the judge, and that this was proved by constant experience.
Lord Grenvillereplied, that the language he had employed flowed from the feeling by which his mind was impressed. If that feeling was strong, it was excited by the indiscreet measure now brought forward, and the noble lords on the other side were the only persons to be blamed for exciting it, or for its consequences.
Lord Hollandsupported the amendment on the ground that a discretion would be left in the hands of the judge, painful to him, and perhaps injurious to the prisoner in the exercise.
The question having been put, it was negatived.
Earl Grosvenormoved an amendment, making the attempt to destroy frames only a misdemeanor instead of a felony without benefit of clergy, which was agreed to.
Lord Grenvillesuggested, that it should not be imperative upon the person injured to proceed immediately before a magistrate to prosecute, provided he could shew reasonable cause for his delay.
The amendment was acceded to. The other clauses of the Bill were then gone through without observation.

PROTEST AGAINST GOING INTO A COMMITTEE ON THE FRAME WORK BILL.
The following Protest was entered on their Lordships' Journals:
PROTEST against going into a Committee on the Bill, intituled," An Act for the more exemplary punishment of persons destroying or injuring any stocking or lace frames, or other machines or engines used in the knitting manufactory."
Because, We feel ourselves in duty bound to record our disapprobation of all further proceedings on a Bill, characterized by those who supported it, as indiscriminately inflicting the punishment of death on all crimes described by words copied out of an act of parliament, which had, in no instance, the forfeiture of life in contemplation.
"It was with a mixed feeling of surprize and indignation we learnt from the discussion that has already taken place, that this Bill, in its nature the most interesting, grave, and important that can be submitted to the consideration of the legislature, had been framed without sufficient deliberation to enable the friends of the measure to give any distinct explanation of the precise crimes to which, under the legal import of the words, thus thoughtlessly and precipitately adopted, it is proposed to extend the punishment of death.
"We cannot therefore, under such circumstances, consent to go into a Committee; for even the amendments which might be there proposed and adopted, would, in our opinion, disgrace the two Houses of Parliament, by recording that they are capable of rashly agreeing to the principle of a Bill thus indiscriminately and by wholesale applying capital punishment to a variety of offences, differing in their motive, their character and their guilt; for the purpose of considering what exceptions might subsequently be suggested by prudence and humanity, which ought exclusively to guide the judgment of the legislature in every stage of their deliberations, on all acts of criminal legislation.
"We agree in the opinion so generally expressed in this House, that the conduct of the manufacturers, in destroying frames, and other machinery used in our manufactures, must proceed from mistaken views of their own interests; as they, more than any other class of his Majesty's subjects, are deeply interested in the preservation of machinery, to the improvement of which we owe our existence as a manufacturing country.
"But we think it our duty, strongly and in distinct terms to reprobate the unprecedented folly of attempting to enlighten the minds of men, in regard to what is beneficial for themselves, by encreased severity of punishment; whilst every sound principle of criminal legislation makes us regard such an addition to the long list of offences, already subjected to capital punishment by the laws of this country, with astonishment and disgust: and every feeling of humanity leads us to express the utmost horror at the wanton cruelty of punishing our fellow-creatures with death, for those culpable acts, more injurious to themselves than to any other part of the community, to which, through mistaken views of policy, the encreasing
1086
distress of the times has reduced them to resort.
LAUDERDALE.
ROSSLYN."