§ The Marquis of Lansdown moved the third reading of the Capital Felonies Repeal bill.
The Lord Chancellorobserved, that so far as he had been able to make himself master of the subject, the effect of the repeal of these statutes would be, that where the offences referred to were misdemeanors at common law, they might be so prosecuted, and where there were any previous statutes affecting them, those statutes would come into force. He repeated his objections to the repeal of the provisions of the 9th Geo. 1st, c. 22 (the 525 Black Act) respecting persons assembling with their faces blacked, &c. with reference to whom the punishment of death was enacted, on the express ground of the difficulty of convicting them. He therefore felt it his duty to move to omit the words referring to that statute.
The bill having been read a third time, the words objected to by the lord chancellor were struck out, and the bill thus amended was passed. The marquis of Lansdown then moved the third reading of the Capital Felonies Commutation of Punishment bill.
The Lord Chancellorrepeated his objection also in this case, to the taking away the punishment of death from certain offences enumerated in the 9th Geo. 1st, c. 22, such as cutting down trees, killing cattle, and cutting through the banks of rivers, or sea banks; for though the cutting down one tree, or the destroying one head of cattle might not be an offence which it would be fitting to visit with the punishment of death, yet the destroying a whole forest, or killing all the cattle on a farm to the ruin of the occupier, were offences of serious magnitude, and it should be observed, that in general maxims of law, the smaller crime could only be classed with the greater in the same genus of offence (if he might so express himself), leaving it to the discretion of judges to make the distinction in the punishment. He thought the better way would be to strike out these and some other parts of the bill, and to let that branch of the subject stand over till next session, when they might have the opinion of the judges as to the expediency of repealing these enactments.
The bill having been read a third time, the lord chancellor moved his first amendment, to leave out the words referring to the 9th Geo. 1st, c. 22.
The Marquis of Lansdovenwas willing to agree to the course proposed by the noble and learned lord with reference to this bill. He could not, however, quit the subject for the present without observing, that the number of convictions (so far as they had been ascertained) for the offences respecting which the learned lord objected to taking away the penalty of death, did not tend to show that the continuance of that punishment was at all efficacious. It appeared that there had been 25 commitments for these offences on the northern circuit, but only two 526 trials, and no conviction; it was evident, therefore, that through a feeling existing somewhere it was not thought fit to proceed to the extremity of the law; and this served to show that the extreme severity of the punishment defeated its own object. In cases of fraudulent bankruptcy the learned lord agreed to the repeal of the capital punishment, it being evident that the severe penalty of death defeated the whole object of the law by deterring persons from prosecuting. In the case of threatening letters it was not proposed to take away the punishment of death where the object of the threat was money, but only from the general and, in some respects, undefined term of threatening letter. It should be recollected however, that with respect to all the capital punishments sought to be repealed by the present bill, there was a clause at the end of the bill giving a discretionary power to the judges to transport the parties convicted, either for life, or for any term not less than seven years.
The Earl of Liverpoolobserved, that the great defect in our criminal legislation was the want of a secondary punishment, that might be substituted for the terror of death, and for which purpose transportation, as now managed, was of little or no avail. Several years ago, when transportation meant either to be transported to the worst and most noxious climate in the world, that of Africa, or to the British colonies in North America, where the parties transported became indented servants, and were in fact treated worse than the negro slaves, this punishment served to excite some degree of terror. Now, however, the system was entirely changed, and the colonial office was besieged with applications without end (many more than could be complied with), from persons wishing to have liberty to settle in the delightful country and under the fine climate of New South Wales. It was in vain, therefore, to talk of transportation as a punishment carrying with it any species of terror; the fact was, that to a number of offenders, who had become well known as notorious characters in this metropolis, transportation to New South Wales was precisely what they wished for. The terror, therefore, of the punishment of transportation for life just amounted to nothing at all, with reference to the class of offenders to whom, in general, it was to be applied. He highly respected the talents of the hon. and learned gentleman 527 who originated the inquiry in the other House from which these bills resulted, but his opinion was, that the inquiry had begun at the wrong end, and that they should first direct their attention to the discovery of some secondary punishment, the terror of which might serve in a number of cases as a substitute for the terror of death.
The Earl of Rosslynsaid, that all offenders in such cases knew even now, that when convictions could be obtained under the act, transportation was practically the punishment to which they had to look; so that the nominal penalty of death did not operate as a prevention of crime.
The Lord Chancelloradmitted, that where it was possible, the punishment of death should be dispensed with, but maintained the necessity of providing a better regulation of secondary punishment than mere transportation. He further added, that it was his intention to bring in a bill next session, containing the clauses now rejected, with a view to obtain the opinion of the judges upon them.
§ Lord Redesdalesaid, that the great obstacle to prosecutions was not the severity of the punishment that followed, but the expense of conducting them, and suggested the propriety of having such ex-pences paid in certain cases by the public.
§ Earl Bathurstdoubted whether transportation could ever be made a good secondary punishment. His majesty's ministers had already sent out a commission to New South Wales, in order to inquire whether some regulation might not be made in that colony, with a view to increase the punishment against great offenders, and to mitigate it towards those of smaller criminality. As it stood at present, it was far from operating as a punishment in many instances. Another objection to transportation was the great expence to which it put the country; and one of the objects with which the commission was charged, was that of estimating the expence of any system which they might think proper to recommend, the estimate of course to be laid before parliament when the subject should happen to be brought under their consideration.
The Marquis of Lansdownthought that the more the punishment of death was confined to cases in which violence was added to the crime, the less frequent would be the instances in which violence would take place. 528 The amendments proposed by the lord chancellor were then agreed to and the bill was passed.