HL Deb 06 September 1831 vol 6 cc1172-83

The Duke of Sussex rose, pursuant to notice, to present to the House a Petition on one of the most important subjects that could come under their Lordships' consideration; and were it not that he was aware that he should be assisted by several of their Lordships as well as by the Government, and particularly by his noble and learned friend on the Woolsack, who had presented a petition to much the same effect to the House of Commons in the course of the last year, he should almost sink under a sense of his own inadequacy to do justice to the cause of the petitioners. The petitioners prayed, that their Lordships would take under their consideration the present state of the Criminal Law of this country, with a view to its revision and amendment; and to disconnect the punishment of death from crimes affecting merely the rights of property, but unaccompanied with violence and bloodshed. The petition was signed by no less than 1,100 individuals, who were all liable to serve as Grand Jurors for the county of Middlesex, and seven of whom had actually served as foremen in that capacity. Many of these were merchants and people of large property and of ninety-one of them the property amounted to no less than 20,000,000l. sterling; so that their Lordships might be assured that they were people of respectability and consequence. The petitioners stated, that their own private feelings of humanity had at various times caused a struggle within themselves, lest, by finding persons guilty, they should be accessory to a judicial murder; and that this feeling sometimes induced Jurors and others to give what was vulgarly called a slip to the law, and that criminals, from this cause often escaped the hands of justice. He had heard that many of the petitioners had suffered severely from the crime of forgery, and yet had felt themselves compelled to refrain from prosecuting, because they would not be accessory to inflicting the punishment of death; and they had not only refrained from prosecuting, but had actually themselves assisted the criminals to escape the vigilance of the law, and to leave the country. It was not his intention at present to enter upon a long detail of particulars. He meant only to propose that the petition should be read, and that it should remain on their Lordships' Table; and, having done so, he would leave the subject in their Lordships' hands, trusting with confidence that their Lordships would pay a due regard to the prayer of the petition, and take this most important subject into their most serious consideration. He had likewise great confidence that the subject would be taken up by the present Government, for it was most fitting that it should be taken up by those, by whom a proper and efficient measure would be most likely to be prepared and passed. He had great confidence in his noble and learned friend on the Woolsack, who had himself presented a similar petition to the Commons; and he had also great confidence in his noble friend at the head of the Administration, and in the other noble Lords who composed the Government, and fully trusted that they would pay proper attention to the subject. He was anxious that the matter should be taken up by Government, rather than by any private individual, as the Government was the most likely to act with the proper prudence and caution, as well as the best effect. He was not prepared to say, that the punishment of death ought to be entirely done away; but yet, when he saw the state of our own law on the subject, and that, as Sir W. Blackstone had stated, there were 160 crimes punishable by death, without the benefit of clergy, he could not help being astounded, and was convinced that such a system ought to be altered. In some cases the punishment of death might be necessary, but at the same time he could not help concluding, that the certainty of punishment would be much more efficient than its severity; and that in many cases other punishments, such as imprisonment, might be substituted with advantage for that of death, and then some means might be adopted for the reformation of the criminal. If this could be done with advantage, then it must be wise and prudent that it should be done; and now, when we professed to act on the principles of civil and religious liberty, it was high time that something should be done in that matter. He would only further add, that this was a most powerful petition, and remarkably well calculated to draw attention to the subject. It was signed, as he had stated, by 1,100 persons only, and the reason why it was not more numerously signed was, that the signatures of none were admitted except of those who were liable to serve on Grand Juries. Had it not been for that circumstance, it would have been signed by many thousands more, and particularly by the people called Quakers, none of whom had signed this petition, but who were ready to a man to come forward in support of its principles. This was not the time to enter into the merits of the subject; he would therefore leave the petition in the hands of their Lordships, trusting that his noble friend at the head of the Administration, and the rest of the members of the Government, would take the subject into their consideration. When the proper time came, he would state more at large his opinion on the subject, and support, with all his power, any proper measure that Government might think fit to propose, with a view to carry into effect the object of the petitioners. This was not a novel subject to him, for he had frequently and deeply considered it, although, not having before had any petition of this kind intrusted to him, he had not troubled their Lordships with a statement of his opinions. He, however, felt a great pride in the confidence that had been reposed in him by the present petitioners, although he should refrain from saying anything, further on the subject at present, lest he should overcharge it. He would, however, read to their Lordships a comparative statement of the number of persons committed for capital offences of late years in this country, as compared with those committed for capital offences in France. In 1825, 1,036 were committed in this country for capital offences; and in France 134. In 1826, in this country, 1,203 were so committed; in France 150. In 1827, there were so committed in this country, 1,529; in France 109. In 1828, there were so committed in this country, 1,165; in France 114; and in 1829, there were so committed in this country, 1,385; in France 89. He would proceed to read the petition. His Royal Highness read it accordingly as follows:

"To the Right Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Ireland, in Parliament assembled—

"The Petition of the undersigned Inhabitant Householders of the City of London, liable to serve as Jurors—

"Humbly Showeth—That your Petitioners view with deep regret the excessive and indiscriminate severity of the Criminal Laws, which annex to offences of different degrees of moral guilt the punishment of Death, and confound the simple invasion of the rights of property with the most malignant and atrocious crimes against the person and life of man.

"That the recent Acts, passed with the professed intention to amend and improve the Criminal Laws, have not remedied the evil of which an enlightened community have the greatest reason to complain, but have still left those laws a disgrace to our civilization, by retaining the opprobrious distinction of being the most sanguinary of any in Europe.

"That Christianity, common reason, and sound policy, demand that the laws which affect the liberties and the lives of men, should proportion the punishment to the offence, and not teach cruelty to the people, by examples of vindictive legislation.

"That where public opinion does not go along with the laws, the persons who suffer under them are regarded as the victims of legislative tyranny or judicial caprice, and not as criminals, whose doom has been pronounced by the voice of dispassionate justice.

"That the criminals executed in this country are selected out of a far greater number sentenced to death, and where the practice condemns the law, the law ought to be altered, that criminals might suffer the punishment of their guilt by the authority of defined Statutes, and not by the uncertain and capricious rule of judicial discretion.

"That in the present state of the law, Juries feel extremely reluctant to convict, when the penal consequences of the offence excite a conscientious horror on their minds, lest the rigorous performance of their duty as Jurors should make them accessory to judicial murder. Hence, in Courts of Justice, a most unnecessary and painful struggle is occasioned by the conflict of the feelings of a just humanity, with the sense of the obligation of an oath.

"That witnesses also are very frequently reluctant to give evidence, as well as Jurors to convict, lest they might bring upon their consciences the stain of blood; and thus criminals who, under a more rational and considerate Code of Laws, would meet the punishment due to their crimes, escape with complete impunity.

"That for these reasons, your Petitioners humbly pray your Right Honourable House to take the Criminal Laws into your consideration, for the purpose of the revision and amendment of the same, by drawing a distinction between the simple invasion of the rights of property, and crimes of violence and blood, and by abolishing the penalty of Death in all cases in which the Legislative power cannot justify, in the eyes of God and man, that last and dreadful alternative—the extermination of the offender.

"And your Petitioners will ever pray, &c.

"[Signed by the different Foremen res- pectively of seven successive Old Bailey Grand Juries of 1830, and by upwards of eleven hundred Merchants, Traders, &c., who either have served, or are eligible to serve, as Jurors.]"

The Lord Chancellor

said, the subject was certainly of very great importance, and well worthy of the most profound consideration; but none of their Lordships were called upon to express any opinion on the matter referred to in the petition at present; and he should have hardly obtruded himself on their Lordships' attention, had it not been that he had been particularly and personally alluded to by his Royal Highness. No one was at present, however, called on to give an opinion on this, certainly not simple, but, on the contrary, very complicated and intricate question. That it was one which deserved the utmost degree of attention was undeniable. There was one thing mentioned in the petition, however, which had better, perhaps, have been mentioned in the other House, or anywhere else than in their Lordships' House, which was the highest Court of Appeal, not only in civil, but in criminal causes. After long consideration and practical experience, he had certainly been led to conclude that our Penal Laws were capable of much amendment in respect of the severity of punishments. But when the petitioners called for the abolition of the punishment of death, in regard to all crimes against property, if unattended with murder or personal violence, he felt himself called upon to declare, that he was not prepared to draw the line exactly in that manner; for nothing, in his opinion, could be less judicious than thus to class crimes which might be of a very different character, under the same denomination. Why was it that it was held right to put a murderer to death? Not, certainly, because it had been said in Scripture, "Whoso sheddeth a man's blood, by man shall his blood be shed." They had no right to put even a murderer to death for any other reason than that it was expedient that he should be put to death. They had no other right nor warrant, either in reason or religion. The object was, to prevent others from committing the crime of murder; and as the comfortable existence of society depended on the repression of that highest crime, it was expedient to secure its repression by attaching to its commission the highest penalty. When a murder was committed, or any very great evil had happened, they had no right to inflict another great evil on the community by putting the offender to death, except that it was necessary that the second evil should be inflicted, because the good of society required that all means, even the severest, should be used in order to check the crime of murder. It was right, because no man could be safe unless the gravest offences were checked by the gravest penalties. But there were other offences which, although not of such great and direct injury to society as murder, yet had a very strong tendency to the devastation and subversion of society; and he was not prepared to say, that in all cases of that description, even although not attended with violence and bloodshed, the highest punishment ought to be dispensed with. They ought not to judge of these things simply upon the ground of vague feelings of humanity; for, in spite of all such feelings, if there was no other mode of preventing crimes which, although not attended with immediate personal violence, yet were of a description to lead to the subversion of society, then recourse must be had to the severest punishment. He wished, therefore, to guard himself from being understood that murder was the only crime for which death ought to be inflicted. There was no warrant in Scripture for the notion that murder was the only crime for which the punishment of death ought to be inflicted, and he asked the noble Lord, who seemed to intimate that murder was, by Scripture, the only crime to which the punishment of death should be inflicted, to point out the place where it was prohibited in cases of other crimes. It was, indeed, said, "That whoso sheddeth man's blood, by man shall his blood be shed;" but that was an injunction, and not a prohibition; and if the noble Lord would examine the Levitical law, he would find that ninety-nine crimes out of a hundred were made punishable by death. So, in cases of arson, and of robbery with great violence, almost all men admitted, that the punishment of death ought to be inflicted. He, therefore, was not prepared to draw the line so distinctly as it had been drawn by the petitioners, and he had guarded himself by a similar declaration when he presented a petition, to a certain extent similar to the present, in the other House. But the petitioners had stated facts which were of great importance. They stated that some of them had served as Foremen of Grand Juries, and that all of them were liable to serve as Grand Jurymen—that many of them were men of great property, and were engaged in commercial pursuits, which, in a particular manner, exposed them to severe losses from frauds, and especially from forgery, which was obviously the crime to which the petitioners more particularly alluded, and of which they were principally the victims. It was certainly a most important fact, that these persons came forward and told their Lordships that they could find no security against that crime in capital punishment. They said, that they were extremely reluctant to prosecute, but if they did not prosecute, that, to be sure, was their own fault. But then they said, that witnesses could not be brought to give evidence, and that Jurors could not be brought to convict; and then they might put their case simply on the ground, that practically the present state of the law had been tried, and had failed of its effect. That was the most important part of the petition, although he was far from undervaluing their feelings of humanity, and had no doubt but that they were excellent men. But there was one part of their petition which, in his opinion, could not be sanctioned by their Lordships. He, at least, could not understand how honourable men, serving on Juries, could trifle with their oaths. The oath administered to the Jury in criminal cases was, "You shall well and truly try, and a true deliverance make, between our Sovereign Lord the King and the prisoner at the bar, and a true verdict give, according to the evidence. So help you God." And yet they appeared disposed suddenly to forget their character of Jurors, and to erect themselves into legislators. In this character of lawgivers, they not only made a new law for them selves, but appeared to think that, in the face of their oath, they might be justified in giving a verdict against the evidence. How any honourable man could reconcile this to his conscience, he could not conceive. The Jury had no more to do than say, whether, in point of fact, the crime had been committed; and it was for the Judge to award the punishment: and he could award only that which the law had prescribed. He could not comprehend how it was possible for them to reconcile it to their consciences to pronounce a man not guilty, when the weight of evidence preponderated against him. As a lawyer, as a Judge, and as a legislator, he could see no grounds on which any man could reconcile to his conscience such a course of conduct. If it was a crime to inflict the punishment of death in such cases, the crime was not that of the Jurors, but of the Legislature; and until the law was altered, the former were bound to act by it. It was impossible to conceive the extent of the evils, to which such an improper assumption of power must lead; one Jury man might say, he would not take the question of law from the Judge, but would decide both upon the law and upon the fact; another might say, he would not only decide upon the guilt of the prisoner, but would determine the quantum of punishment—a point which rested with the Judge alone. Again, another Juror might deem it proper to admit hearsay evidence, and many books had been written to prove, that such evidence ought to be received. And supposing such a doctrine to be entertained, what would be the consequence? Why, the Judge having determined that such admission was contrary to the law, the Juryman would say, "I do not think so, and therefore I am determined to convict the prisoner." In that position, according to his judgment, were the petitioners placed; for though an offence should be proved by ten or any other number of witnesses against a prisoner, and though that offence might subject the individual to the last and extreme penalty of the law, these Jurors were prepared to say, and not only to say, but to act upon, and defend the position—they who, in their capacity of Jurymen, had entered into a solemn compact with their King, their country, and their God, to decide upon the evidence, and the evidence alone—these Jurors would say, that they would not convict the prisoner, whose guilt had been proved:—and why? Because they were afraid, that if they did find him guilty, he might receive the punishment which the law has awarded as a proper atonement for his offence. If there were any course likely to prevent the Legislature from interfering, it would be this, where individuals take the matter into their own hands, and out of those of the Judges, and of the Legislature. If the law be defective, as to a certain extent it was, and if it be necessary that it should be amended, as it ought to be, the only manner in which that law ought to be altered and amended, was by the interference of the King, Lords, and Commons of England; and until that period arrived, those individuals had no right to contravene the law, but in obedience to their oath they were to find the person guilty or not guilty, according to the evidence, and the prisoner thereupon must suffer the consequences of his act under the law. Another person might take a different ground of objection, and say, as a suitor in the Court of Chancery did the other day, who came into that Court for advice about putting in his answer—that he was not enabled by his conscience to take the necessary oath required by law:—At length he asked if he were bound to take the oath? Yes, was the answer, and he was told, that if any guilt was occasioned by the taking of the oath, that must rest upon the shoulders of those who made the law, and not on those who were bound to obey it. If it be criminal for a person to commit a forgery, was it not criminal for another person, who was to sit in judgment on that forgery, to take an oath which, from the first, he intended never to fulfil? A Juryman should have his conscience void of offence, and leave the responsibility that arises from the operation of the law, which he has sworn to execute, on the shoulders of the Legislature. He had known men whose minds had been so strangely constituted on the subject of taking an oath, as to think they were justified in supposing that no man ought to be examined on oath, and they would rather have seen an innocent man hanged for a capital offence—aye, even for murder, than give evidence on oath, to bring the guilty man to condign punishment. If men chose to give up their property rather than prosecute an offender, they did so upon their own responsibility, though it was under a mistaken view of what was due to society; but as respects a Juryman, he was bound to act by the law, and according to the law, and no qualification, with which he might endeavour to fortify his mind, could be a justification for the nonfulfilment of it; he must act according to the law, and the guilt, if any, must be upon the heads of the legislature until that law be repealed. He was deeply impressed with the importance of the subject which had been brought under their notice by the noble and illustrious Duke, and while he was prepared to go as far as any of their Lordships in mitigating the severity of a severe and indiscriminate code of criminal legislation—and while he should be the first to hail any change in that respect, which should afford a proper and sufficient protection to property, with a less infliction of pain, he should be among the last who, until that period should have arrived, would be prepared to sanction the principle avowed by any individuals, be they who they might, who thought that they had a right to violate the law and the solemn obligation which their oath imposed upon them.

Lord Tenterden

said, that the petitioners ought to consider, that those who suffered death were very few in comparison to those who committed the offences which were by law punishable with death. With regard to that part of the illustrious Duke's address, in which he drew a comparison between the number of persons committed in this country and in France, he begged to be permitted to remark, that some reference ought to be made to the fact, that the difference in the number of offences against the law, was not so great as between the number of offences punishable with death. He also desired, that the good and respectable persons who had signed the petition should bear in mind, that the royal prerogative of mercy, was exercised with the greatest anxiety to mitigate the penalties of the law, and he must further declare, that the Judges were most desirous to recommend to the mercy of the Crown every case punishable with death, in which the circumstances would allow of such consideration. He was sure they felt the utmost anxiety and solicitude to discover any circumstances which could lead them to recommend a mitigation of punishment.

The Duke of Wellington

said, in reference to the statement of the illustrious Duke, when he compared the extent of crime in England with that which existed in other countries, it ought to be remembered, that there was not in this country, and could not be, from the nature of our laws and Constitution a preventive police, such as existed in those other countries, which contributed greatly to check the growth of crime. A want of attention to this fact often led to erroneous conclusions.

The Duke of Sussex

said, he had listened with great satisfaction to the remarks of both the noble and learned Lords, with regard to the petition he had the honour to present, and he heartily congratulated himself, that he had been the instrument, which had brought forth such important observations. He begged to be permitted to say, that he had not pledged himself entirely to the contents of the petition, although he went a great part of the way along with the petitioners. He perfectly agreed with the opinion of his noble and learned friend on the Woolsack, that the Juror ought to fulfil the oath he took, and he also fully agreed with the remark of the other noble and learned Lord, that it was highly desirable not to alter or limit the prerogative of the Crown to interpose and prevent executions, particularly in the hands of the illustrious individual who now exercised it. He hoped the subject would be brought under the consideration of Parliament by his Majesty's Government, but he was aware that at the present moment their attention was wholly absorbed by another great measure. He trusted he might remark in reference to what the noble Duke (the Duke of Wellington) had observed with respect to a preventive police, knowing the arbitrary manner in which a power of this kind was wielded in other countries, he should be very unwilling to sacrifice the liberties we enjoyed to possess such a security as that alluded to.

Lord Suffield

said, he agreed with most of the allegations contained in the petition which had been presented by the illustrious Duke. It appeared to him, that the two great principles which ought to govern the punishment of criminal law, should be certainty in the first place; and the punishment being graduated according to the nature of the crime, in the second place. The present system had the effect of making injured persons reluctant to prosecute, and Juries indisposed to convict. With regard to the unwillingness of Jurors he would add nothing after the eloquent exposition of their duties by the noble and learned Lord on the Woolsack; but of the effect of the law, in inducing persons not to prosecute who had sustained injuries, he knew an instance which had occurred within a few months, in which a person put up with a loss of upwards of 1,400l. rather than prosecute, because that person knew the life of a fellow creature might be forfeited by his doing so.

The Duke of Wellington

said, the illustrious Duke appeared to misunderstand the remarks he had made on the subject of a preventive police, and seemed to consider that he (the Duke of Wellington) desired the introduction of such a system into this country; he had no such desire; so far from it, that he had stated, such an institution was not compatible with the institutions of this free country.

The Duke of Sussex

begged most earnestly to assure the noble Duke, he did not mean to say any thing of the sort. He certainly did not understand the noble Duke had recommended the introduction of a preventive police; his remarks were meant to apply to such a force generally.

Petition to lie on the Table.