The Earl of Landerdale
rose to move the committal 1122 of the Pillory Abolition Bill. He expressed his regret at being under the necessity of proposing this subject for their lordships consideration at so late a period of the session; but that was not his fault, and far less was it the fault of his learned and excellent friend (Mr. M. A. Taylor), who had originated this Bill in the other House. He had postponed it from time to time, in order, if possible, to have the advantage which, with respect to a subject, of this nature, must result from the attendance of the noble and learned lord on the woolsack. He was aware that before proposing any material alteration in the criminal taw of this country, he ought to have given a great deal of attention to the subject: but the criminal law in this particular point was so very different from every other part of it, that he had no hesitation in pressing this Bill upon their lordships attention, even with the limited examination which it had been in his power on the present occasion to apply to the subject matter of the question. The punishment of the pillory had been condemned by almost all those who had studied and written upon the philosophy of criminal law, almost by all the politicians who had attended to its nature and effects, and even by some of the judges who had to apply it. No principle in criminal law was better established than this, that the punishment ought to be commensurate to the offence. In this respect the punishment of the pillory was extremely objectionable. In one of the older statutes, it was pot in the alternative, that a man should pay a fine of 29s. or be put in the pillory, so that the same punishment was to be inflicted on one who could not pay 20s. as on one who had attempted to commit an unnatural and abominable, crime. Such a state of the law was a disgrace to the age and country in which it existed. Another remarkable feature in this punishment was its gross inequality and uncertainty. The punishment was not that which was consonant to the nature of the offence or to the intention of the Court which awarded it, but depended on the humour of the mob. The case of Dr. Shebbeare was a remarkable one. He had been sentenced to the pillory; but though this was intended as a disgrace, if turned out a sort of triumph. He was put upon, but not in the pillory; the sheriff held an umbrella over his head to shelter him from the rain or the sun; and a servant stood by to attend upon and hand 1123 him refreshment, while he was at the same time applauded by the spectators: so that the punishment, instead of being disgraceful to him, was an insult upon the law. Another case applicable to the point was that of Daniel Isaac Eaton. He had been put in the pillory for a very serious offence, that of endeavouring to throw contempt and ridicule on the fundamental principles of the Christian religion; and as an example to the prisoners, he presumed, he was pilloried opposite to Newgate gaol: but the crowd, probably from some mistake as to the nature of his offence, applauded him. In this case, too, the punishment was far more lenient than the judges intended. In other cases it Was more severe; for instance, when the punishment of the pillory was inflicted for offences which had a tendency to exasperate the feelings of the populace, such as the attempting to commit an unnatural and horrible crime. Neither the law nor the judge intended that this crime, abominable as it was, should be punished with death, and yet such was frequently the result. The death, too, which such criminals sometimes met with was more severe than the punishment of death when inflicted in the ordinary way. He himself had witnessed an instance of this in 1780. A person was pilloried in South-wark for an unnatural crime, and the criminal was so treated by the mob that he actually died the moment he was taken from the machine. Judge Eyre, in a case where one had by perjury attempted to swear away another person's life, had refrained from inflicting the punishment of the pillory, on the very ground that the punishment might in reality be different from what the Court intended. It might be said, however, that it was too late in the session to go into the subject, because no other punishment was proposed by this Bill to be substituted in those cases where that of the pillory was to be abolished. But he saw no great inconvenience in abolishing the punishment of the pillory at present, and leaving the offences in which it had been usually inflicted to the punishment by fine and imprisonment, till some additional regulations should be framed in a subsequent session. He therefore submitted that the Bill ought to proceed even in this session, and moved that it be now committed.
§ Lord Ellenborough
felt some pain in addressing their lordships on this subject, differing as he did, in some particulars, 1124 from the noble earl who had just sat down. As for himself, he certainly had no particular attachment to this method of punishment; but, for the sake of the public, he was bound openly and plainly to state his opinion to their lordships. He had lived in habits of friendship with the very worthy person who had introduced this Bill, and had no doubt it was introduced from the best and purest motives; but the Bill was certainly defective even in his own view of the subject; for if the punishment were to be abolished, it would be requisite at the same time to substitute some other punishment in its place. This the Bill had not done. He could not admit, however, that the punishment ought to be altogether abolished, because there were several offences to which it was more applicable than any other that could be found. With respect to the inequality and uncertainty of which the noble earl had spoken, the objection might be in some degree applied to all other punishments, unless the officers of the law entrusted with the execution did their duty. In the case, of Dr. Shebbeare, the sheriffs had not done their duty. They had held an umbrella over his head, as staled by the noble earl, and he believed that a servant stood near, and supplied him with refreshments; and, indeed, the sheriffs had so far betrayed their trust, that he was not properly put into the pillory at all. But then the sheriff was afterwards punished by fine and imprisonment. Daniel Isaac Eaton, who had before been known as an offender, was pilloried opposite to Newgate for a vile and blasphemous attempt to ridicule the nativity of our Saviour, of which, as well as other fundamental doctrines of our religion, he spoke in a manner shocking to every pious and well-disposed mind. The reason, however, for ordering him to be pilloried opposite Newgate, was not exactly that stated by the noble earl. The Court thought that this was an offence which would excite the popular indignation, and they ordered him to be pilloried, in that place, that in case life should be, endangered, he might be hurried into Newgate and protected. It was true, that during his exposure some of the spectators were said to have applauded; but was it difficult in such a case to surround the, pillory with persons of the same description, in order to alleviate the sense of his disgrace? Even if a person were so totally degraded as not to feel the disgrace of this exposure in his own person, the ex- 1125 ample would be salutary in its effect on others. Then, as to the punishment being more severe than was intended, the officer was empowered to see to the proper execution of the sentence, and arm himself with the whole force of the posse comitatus for that purpose, if necessary; but it was no good argument against the punishment, to say that it was not properly executed; if not, that was the fault of the officers who had the charge of the execution; and such officers might, by possibility, betray their trust with respect to other punishments as well as this. This punishment was as old as 1209. The old historians spoke of it, and of the care which was necessary in the officer to prevent its exceeding the just measure. The criminal was to be punished by disgrace and exposure, 'salvis tamen membris et vita.' The punishment was not confined to this country. Du Cange spoke of it as existing on the Continent, the offender being exposed ludibrio omnium. Considering that the punishment had existed so long, and that no regulation was made for the substitution of another punishment, he could not agree to the passing this Bill. He was adverse, at any rate, to this sweeping abolition, though he admitted, that in the instance mentioned by the noble earl, where it might be inflicted on a person because he was not able to pay 20s., and in some other instances, it might be abolished: but in cases or perjury and fraud, and in some others, the punishment was particularly suited to the offence, and ought to be preserved. The subject could not, however, be sufficiently considered this session. He himself had never inflicted the punishment when alone on the circuit, except in one instance, where he had ordered two persons to be put in the pillory, for having taken a bribe for assisting in the escape of French prisoners; an offence which the Legislature soon after made felony, punishable by transportation. In former times—he did not allude to times of peculiar severity, but even since the reign of George the First—the punishment had been inflicted in three cases for one in which it was now inflicted. It had been usual, too, to send the offenders round the courts with labels on their foreheads, specifying their offence, and then to pillory them two or three times. The practice was milder at present, from an attention to some peculiarities in the times, which judges applied in the exercise of a 1126 sound discretion. He moved, that the Bill be committed this day two months.
The Lord Chancellor
was of opinion that there were offences with respect to which it would be unwise to abolish the punishment of the pillory; for instance, cases of perjury and fraud, or cheating, and especially in cases of mixed fraud and perjury. Cases might arise where persons might attempt to defend themselves against a conviction for fraud of which they had been guilty, by perjury or subornation of perjury. In such a case he himself would have concurred in the infliction of the punishment of the pillory, even where he might be disposed not to inflict it where the ingredient of perjury or subornation of perjury might be wanting. But the best mode of proceeding would be, to desire the Judges in another session to prepare a Bill on this subject, pointing out the cases where, according to their experience, the punishment of the pillory was proper, and the cases to which, though at present applicable, it was not suited. This plan had been pursued with regard to the Revenue laws, where those which inflicted the punishment of death were distinguished from those which did not.
The Earl of Liverpool
highly approved of the suggestion of his noble and learned friend upon the woolsack, to refer the subject to the Judges, who could draw up a Bill, and state also their opinions as to the cases in which the punishment in question might be abolished, and the cases in which it could beneficially be retained. And then, though the House would not be bound by the opinion of the Judges, it would be the better able to decide as to the punishment itself, inasmuch as it might practically be rendered a severer, or a more lenient one than was intended. He thought it an objectionable one; but when he found it so long established by law, he was bound to consider the inconveniences that might result from its sudden abolition. There were some cases, perjury for instance, for which he thought the punishment the most proper of any yet suggested; and they should be cautious how they did away a necessary punishment for certain offences, until others equally proper or more adequate were found; and one of the most efficacious ways of proving this, he thought would be the expedient of referring the subject to the consideration of the learned Judges.
§ Earl Stanhope
objected to the pillory, because it was a punishment so likely to be unequal in its operation: for instance, if the noble Secretary and himself were sentenced to the pillory for libels, especially on the discussion of the Corn Bill, his apprehension was that the noble Secretary would have been confoundedly pelted, while he (lord S.) would have escaped any ill treatment from the public.
The Marquis of Douglas
expressed his surprise, as noble lords seemed generally agreed as to the principle of the Bill, that they should vary when they came to the application of that principle.
The Earl of Lauderdale
said, that it was a great satisfaction to him to see the calm and dispassionate mode in which the subject had been discussed; and he was sure the amiable mind of his learned friend (Mr. M. A. Taylor) would be highly gratified to find that there was such a disposition to improve the criminal law in this particular at a future period, though it was not thought proper to pass this Bill in the present session. It would be in vain for him, therefore, to press it any further at present.
§ The Bill was then ordered to be committed that day two months.