Lords Sitting of 21 June 1821

CRIMINAL LAWS.
On the order of the day for the second reading of the Privately Stealing in Dwelling-house bill being read,
The Marquis of Lansdownstated, that it was his intention to move also the second reading of the bill for mitigating the punishment annexed to the commission of robbery upon rivers, which was founded on the same principle. The object of the two bills was, to take away the penalty of death from the offences to which they referred, and to substitute transportation for life, or imprisonment and hard labour. The provisions of the bill relating to robbery on navigable rivers was extended in the committee to robberies committed on canals, and he thought no difference of opinion could arise as to the propriety of extending the same protection to property in both cases. In proposing an alteration of this nature, it was to be observed that the change would extend no further than the particular subjects specified in the enactments. It did not, therefore, affect the general system of our laws. The fact was, that our criminal code had grown up, unlike the codes of other countries, which were founded upon one general system; it consisted of particular laws, which were urged by temporary and local circumstances, and the consequence was, that the penalty of death had accumulated in a degree unparalleled. The government, he contended, must find it inconvenient and inexpedient to maintain those severe penalties in cases where they were opposed, not only to public opinion, but to the opinion of those whose property they were intended to protect, as well as to those of the judges and juries by whom they were ultimately to be administered. Their lordships would find, that in the general opinion of this country, the laws which the present bills were intended to mitigate were too severe; and it could be proved, that instead of deterring from crime, the effect of their operation was, to increase it, by the impunity which the reluctance of individuals to prosecute held out to offenders. It might appear, on the first view, that the removal of these severe penalties would have the effect of encouraging crime, but their lordships would find, with regard to certain crimes made capital under the excise laws, that in the opinion of the solicitor of the ex-
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cise himself, the attempt to increase the penalties had the effect opposite to that which was intended, and that the attempt to protect the revenue by increased punishment, in general protected the fraudulent trader, not the revenue. It was well known that in many cases where robbery in dwelling houses came to be tried, juries had rated property at 39 s. in order to evade the law, which amounted to 10 or 20 times the value. These bills did not proceed upon mere speculation: there were facts to support the principle upon which they were founded. In 1811, the proprietors of bleaching grounds had petitioned against the severity of the laws enacted to protect their property, on the ground that it prevented convictions. The consequence of the mitigation was, on a comparison of the five years preceding with the five years succeeding the change, that in the first five years the prosecutions amounted to 28, and in the last five years to nine; that in the first five years the acquittals were one third, and in the last none. In Ireland the case was still more striking: during the first five years, out of 61 prosecutions, there were but three convictions; but during the last, the convictions were five fold. When he found, in addition to these facts, that the opinion of the common council of London was in favour of the mitigation of punishments, he felt himself authorised in stating, that the trading community would not be injured, but benefitted by those bills. Both bills stood upon the principle of making the law more conformable to public opinion, and by that means more likely to secure the conviction of offenders.
The Lord Chancelloradmitted, that if the tendency of these bills was, to prevent crime, they ought to be adopted; but the House would do well to hesitate before they adopted that opinion. He would admit, that when first he held a situation connected with the administration of criminal law, he entertained an opinion that the code ought to be rendered more lenient; but after the experience of many years he took a different view, and entertained a different opinion. He would admit that if a man entered a house without breaking in or breaking out, and stole to the amount of 40 s. the penalty of death would be too severe for the offence. But add one or two circumstances, and see how the case would, stand. Suppose he had so entered an unprotected cottage,

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and stolen the whole savings of an industrious life—was that an offence in which severity could be complained of? No man had said that benefit of clergy ought to be extended to those who committed burglary; but the circumstances of breaking in or breaking out, and of perpetrating the act in the night time, constituted the only difference, and there were many instances in which the mischief to the individual and the public was greater in the former case than in cases of burglary. The best way, therefore, was, to leave the selection, to the discretion of the judges. He denied that prosecutors and jurors were unwilling to act, though he admitted, that, to the honour of the country there existed a great anxiety upon all hands that the laws should be administered with the greatest lenity. For these reasons he could not give his consent to alter the existing laws.
The Earl of Carnarvonmaintained that while the laws were continued in their present severity, they could not answer the ends of public justice. He had himself abstained from prosecuting in one instance for that reason.
Lord Sidmouthobserved, that the very fact of the increase of crime in late years, was drawn from the increase of prosecutions; and unless the advocates of these bills could show, that while crime was increasing prosecutions were stationary, the principle on which their advocacy was founded must fall to the ground. The great incentive to crime consisted, not in the uncertainty of prosecution, but in the chance of escaping capital punishment, and the insufficiency of secondary punishments. He could state cases in which the increase of punishment had diminished the offence, and particularly with respect to the commission of robberies upon rivers; which since the capital punishment was annexed, had almost ceased. Feeling the importance of protecting the property of his fellow subjects, he dared not agree to the motion, which would operate as an encouragement to crime.
Lord Calthorpesupported the bills, as they went to remove inconsistencies in the law, and did not reflect upon those concerned in the administration of it.
Lord Kingthought, that the disproportion in the convictions stated by the noble viscount was an argument in favour of the bill. The late increase of crime was admitted upon all hands; but he lamented that there was a disposition to prevent
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any improvement in the law upon the part of those who were at the head of the administration of criminal justice.
The House divided: Contents, 17; Not-Contents, 27: Majority, 10.