The Marquis of Lansdown,on moving the order of the day for the third reading of the Privately Stealing bill, said, that there were three bills before the House in the same stage, for the amendment of the criminal laws of the country He had selected the one just read by the clerk as the first for their lordships' consideration, as he was apprehensive that it would meet the most serious opposition. With that apprehension on his mind, he should state the grounds by which he felt that the bill was recommended to their support. It was but justice to their lordships to say, that he was persuaded there was not a member of the House who would wish to continue in their full severity any part of the penal laws which were not attended with beneficial effects. They were now to consider the propriety of repealing a bill which had remained for a considerable time a dead letter on the Statute Book, and which, instead of assisting, prejudiced the course of justice, by deterring prosecutors from taking that part which they ought in order to bring criminals to account. He knew of no test by which they could judge of the efficacy of penal laws, except the experiment, whether, on the whole, they had contributed to repress crime, and whether they had met with the concurrent feeling of the community? Looking, therefore, at the present measure in this view, he was confident when he asserted that the law ought to be repealed—that, owing to its severity, it had been hardly executed during the last 60 or 70 years, nay, even as far back as it was possible to collect facts with any certainty—that its severity had so far armed judges, prosecutors, and juries against it, as to render it almost impossible to obtain a conviction under it. In the great- 492 er number of cases, the prosecutors preferred acquiescing in the loss of their property, rather than expose their consciences to the feeling of having visited on their fellow-creatures a disproportionate, cruel, and unjust punishment. He found by the returns, that from 1805 to 1818, 352 convictions had taken place, and only one execution. In London and Middlesex there had been but one execution during a whole century. In the Northern circuit, there were 46 convictions and no execution. In the Western circuit, for the last 50 years, there were 55 convictions and no executions; and in Lancashire, from 1779 to 1818, there were but 9 convictions and no execution. In addition to this, there was the evidence taken before a committee of the other House, in which the merchants, and principal shopkeepers of London agreed, speaking, without hesitation, not merely for themselves, but for all those with whom they had communication in clubs or otherwise, that the shop keepers, whose property the act was intended to protect, disclaimed such protection, and were anxious to be released from its burthen. Shop-keepers of the highest respectability, had stated cases in which they had submitted to considerable loss, being deterred from prosecution by the belief that the punishment was infinitely beyond what humanity and expediency required. Would the House reject such evidence? Would they pay no attention to the recommendation of a committee which had acted for a considerable time, and which had reported unanimously that the act ought to be repealed? Would they pay no attention to the other House, which had passed the present bill unanimously, and take upon themselves the responsibility of saying, in opposition to the sense of the whole country, who were most interested in the question, that a bill which was founded in humanity and justice, was not entitled to their lordships' favour and support?
The Lord Chancellorsaid, that the noble marquis had misunderstood him, if he supposed that it was his intention to oppose that bill in particular. At the sametime he considered it a matter of regret, that those bills were not brought forward when the House might have the advantage of the presence of the twelve judges, especially as they were said to have interposed mercy in so many cases against the verdicts of juries. In the former instances in which these bills were discussed, they 493 had the benefit of the experience and knowledge which distinguished that great man who had lately held the office of chief judge in the court of King's-Bench. Induced by his authority they had again and again rejected these bills. The present bill might possibly admit of amendment in the point to which he should now object; but while it appeared a harsh thing to condemn a man to death for stealing privately in a shop to the amount of five shillings, the present bill did not provide sufficiently against the loss of property to an amount which, though it could not distress some, might effectually ruin many shop-keepers. The act was not intended merely for the protection of men of large property, but also of men of small property, who could not so well protect themselves. It might, therefore, become an argument for their lordships' consideration, whether they would expose the whole fruits of an industrious life to the operation of such a measure as the present. It had been his painful duty to receive the recorder's report during the period of 18 years, and he could not say from that experience that there appeared to be much reluctance on the part of prosecutors to institute proceedings. He could say, indeed, that he was rather surprised, that so little regret was manifested by prosecutors in general, at proceeding on those capital charges. But if there was an apprehension in prosecutors, there would be as probably an apprehension in offenders, in subjecting themselves to the possibility of a capital punishment. He now spoke the sentiments of that great judge to whom he had before referred, that the apprehension of the capital punishment had deterred many from the commission of this offence. If, however, their lordships were disposed to make a merciful experiment, he should make no very strenuous objection. But if hereafter it should be found, that shop-lifting became universal, and that many persons were reduced to misery by this crime, he hoped it would be remembered that he had suggested the consideration, whether this law which had so long existed was not wise and politic. Having said "not-content" to the bill, he should feel no great anxiety as to the result. On the third reading he should propose an amendment, to provide that persons stealing to the value of more than 10l. should still be subject to the capital punishment.
The bill was read a third time, and af- 494 ter the amendment was agreed to, passed. On the motion for the third reading of the Capital Felonies Repeal bill,
§ Lord Redesdaleobjected to the repeal of the punishment of death in the case of persons committing certain offences, being disguised by night. He stated that in the part of the country where he resided, he was obliged, conjointly with some of his neighbours, to keep up a police of six men at the expense of 200l. a-year, to suppress deer-stealers on the borders of the forest. If the capital punishment, which now applied to persons going with their faces blackened and disguised, were repealed, the practice among these depredators would be universally resorted to.
The Marquis of Lansdownsaid, it would be remembered that deer-stealing would remain punishable for the first offence by fine, for the second offence by tranportation. Now the question was, whether the fact of persons blackening their faces was a circumstance of sufficient importance to warrant the punishment of death?
§ Lord Redesdalesaid, his supposition was, that in all cases these offenders would go with their faces blackened.
The Marquis of Lansdownsaid, that if it was known that courts would be in the habit of applying a higher punishment to deer-stealing when committed by persons thus disguised, as, for instance, that they would fine simple deer-stealers 10l., and deer-stealers in disguise 500l; or, for the second offence, sentence to transportation for seven years in the one case, and for fourteen years in the other, the effect of a superior punishment on that aggravation of the offence would remain.
§ Lord Redesdalesaid, the noble marquis pre-supposed that the offenders were detected. Now he was of opinion, that the class of persons he had mentioned did not care much for transportation.
Lord Hollandsaid, the noble baron seemed to have an extraordinary apprehension of these black-faced gentry, but it was to be hoped that his apprehensions as to their increase would be found groundless. When on a former occasion. a bill was introduced into another House to take away the capital punishment which attached to persons calling themselves Egyptians, the member for Kent rose to protest against it in behalf of his county, which he foretold would be inundated with gipsies. The noble lords near him could now tell the House whether Kent 495 was so inundated with gipsies of late years as to become uninhabitable.
The Lord Chancellorsaid, he should wish the noble marquis to consent to the postponement of the third reading of this bill till to-morrow, as there were, in his mind, so many objections to it, that it could not be discussed without occupying much of their lordships' time.
This proposition having been assented to,
The Lord Chancellorsaid, he would, in the mean time, to save trouble, point out the objections which he had to some of the enactments. Among the offences from which the bill took away the punishment of death, were those to which capital punishment was affixed by the 9th Geo. 1, chap. 22, viz. the killing, maiming, or wounding of cattle, or the cutting down of trees in orchards or plantations. It did undoubtedly seem a hardship that so heavy a punishment as that of death should be affixed to the cutting down a single tree, or the killing or wounding a cow. But it was a necessary consequence of general descriptions, that all cases were included. It was impossible, by the means of language, to frame laws which should apply to all cases, without the exercise of the discretion of the judge. In the case of burglary, for instance—if a person passing Ludgate-hill broke a pane of glass and drew out a ribband, that was burglary. This would be thought too hard a case for the application of capital punishment, yet this offence was made punishable by death under the words of the same law, which was necessary to prevent the breaking into a house in the dead of night, finding the family, standing over them with pistols, and rifling the dwelling. It was impossible, of course, to administer such a law, without the interposition of mercy and discretion. Now, in the case before the House, if the bill passed in its present state, a person might root up or cut down whole acres of plantations, or destroy the whole of the stock of cattle of a farmer, without being subject to capital punishment. Persons would thus be let loose to do mischief far beyond the limits of many capital crimes. He could not, therefore, without hearing his objections removed, consent to this part of the bill. As to the clause which took away the punishment of death from bankruptcy offences, he had no objection to it. In the experience of forty years in the court of Chancery, he had only 496 known two or three parsons prosecuted for this capital offence, and he had no doubt there were cases in which, on account of the capital punishment, prosecutions had been prevented. As to the repeal of the 6th Geo 2nd, which affixed the punishment of death to persons breaking down the banks of rivers or sea-banks, when he looked to the state of property in Lincolnshire, where, by offences of this kind, mischief might be done, to which the robbery of a few pounds was not to be compared—when persons might be deprived of all their means of subsistence, he could not give his consent to it. As to the clause respecting the pulling down turnpike-houses, it did not appear to him material, as the pulling down turnpike-houses was a capital offence under another act. He came next to the clause respecting threatening letters, which took away the capital punishment unless the letter demanded money or a valuable consideration. On this he confessed he had great doubts. Nothing was more destructive to the peace of families, than the apprehensions which were kept alive by the malicious and secret threats of mischief. The clause which took away the punishment of death from persons destroying the floodgates or sluices on the great level of the fens, it would, in his opinion, be impossible for the House to take away, on account of the great extent of property thus protected. The last paragraph of the preamble referred to the act for punishing persons destroying certain manufactured goods with death. He could only say, that when he was in the habit of going the northern circuit, it was the general opinion that there was no possible security for the manufacturers in the North of England, but by the terror of that law.
§ The third reading of the bill was fixed for to-morrow.