HL Deb 13 August 1832 vol 14 cc1345-54
The Lord Chancellor,

having moved the Order of the Day for the House to go into Committee on the Forgery Bill, observed that the law had been inoperative for the last few years, for the punishment of death had deterred many persons from prosecuting, believing that such a punishment was much too severe for offences committed against the statute. The law had not originally visited parties convicted of that offence with the dreadful penalty of death. By the 8th and 9th of William and Mary, when for this offence a heavier punishment was first inflicted, the forging of Bank notes was made a capital felony, and at different periods forging other instruments was visited with a similar punishment, until it might be said, that nearly all instruments being forged, the punishment of death was inflicted. For many years after the offence was first made capital, the law was conformable to the practice, and the punishment was almost invariably inflicted on the conviction of the criminal. For thirty years after that Act had passed, in the greater number of cases of conviction, the sentences were carried into execution; and where it was not, it was owing to some very peculiar circumstances, which induced the Crown to extend mercy. Of late, scarcely any person had been executed for forgery. A denounce- ment had gone forth against the severity of the law, and it might almost be taken as a general rule now, that no one had suffered, whilst in former times no one escaped. Did the punishment deter persons from committing the offence? It was notorious that many persons had an aversion to prosecute, on account of the severity of the sentence; and parties who were immoral enough to commit the crime, to administer to their own luxuries or extravagance, heedless of what misery and wretchedness it entailed on their victims, frequently committed it in the expectation that they might escape. They would run the risk, because they saw the uncertainty of the punishment overtaking them, for the reasons which he had stated. When their Lordships found that many persons in their cool moments were averse to so heavy a punishment, who did not recommend the alteration of the law from any sudden impulse of humanity, though that was a feeling which was creditable to the breast cherishing it—when their Lordships discovered that many of these persons who recommended the abolition, were the best able to judge of the matter as it affected the interests of the community, when merchants, bankers, and others who dealt in bills and paper securities, strenuously sought to abolish the punishment of death for the offence of forgery, he believed their Lordships would not lend an indifferent ear to such suggestions. When their Lordships found that there was an unwillingness to prosecute on the part of those who suffered from the crime being committed, they would certainly not be averse to an alteration of the law on the subject. It had been said, in addition to parties who had suffered from offences of this nature being unwilling to prosecute, that juries were likewise averse to give verdicts of guilty; and thus the criminal escaped. His own opinion was, that what had been asserted respecting juries being unwilling to pronounce verdicts of guilty, was much exaggerated. There might, and undoubtedly was, an unwillingness in juries to convict, but that was not so material as to the necessity of altering the law, arising from the aversion which prosecutors, and even witnesses, felt to come forward in cases of this nature. He had in his hand some returns, to which he would now call the attention of the House; and he thought it would be seen that his argument was borne out by facts. In the seven years ending in the year 1830, there had been 217 capital convictions, and only twenty-four suffered death. In but seven years, therefore, only about one in nine had been punished to the extent of the law. Now, when they came to look at the committals, and compared them with the convictions of another period, partly embracing the same time as the preceding return, it would be seen how many had escaped altogether. For the period of nine years, ending in 1828, 708 persons had been committed, charged with the capital offence, and 334 were acquitted, or about one-half of the parties who had been tried. If these numbers were compared with the numbers for the first period who were tried for the minor offence, it would be seen how much more certain was the latter as respected conviction—and, consequently, punishment. Of 558 tried for the minor offence, only fifty-seven escaped conviction. Instead of there being only one-half convicted, as the numbers of those committed for trial on the capital charge showed, there was not one in ten escaped of the persons who were committed for trial on the minor offence. It would be endless to go into facts connected with these proceedings. Taking the year 1821, there had been 1,108 persons committed, charged with capital offences against the person and property, and out of this large number only eleven escaped. Two or three years back a noble friend of his had introduced a bill repealing the law which made it a capital offence to steal from a bleaching-ground, before which period not one person in twenty committed for the offence was convicted; but, since it had been made a clergyable offence, not one-half committed escaped. These things proved that a punishment might be much too severe—thwarting justice, instead of supporting it. The punishment of death had been denounced in cases of forgery. Sentence had gone forth against it. He did not now advert to the feelings of the public upon the question, for the minds of men had been long made up on the subject—not the feelings of the hour or the day—not opinions taken up at random, or seized at a moment of excitement—but he adverted to the opinions of men who were immediately interested in the matter—men who were alive to what affected them—and who had, equally with all classes of the community, denounced the law as it now stood. When he had the honour of a seat in the other House of Parliament, he presented a petition, signed by 264 country bankers, against the punishment of death being inflicted for forgery, and these represented 735 members of firms—or nearly 1,000 provincial banks. Now it had been said, that the law had been expressly framed for the protection of the dealers in paper currency, but these petitioners did not deem it of that character: and, be it recollected, they were influenced by no wild theories—no fantastic speculative notions of legislation, taken up to-day on slight grounds to be abandoned to-morrow—but they viewed the matter coolly, as tradesmen having a large capital at stake—as dealers in paper currency. They looked upon the law as a most ineffectual means of protection, and wished it to undergo a great alteration. The law had been denounced, and sentenced, and condemned, not only by the country, but twice by one branch of the Legislature. What chance was there, after the House of Commons had passed two bills, denouncing the law as it now stood, and proposing a milder one, that prosecutors, and witnesses, and Juries, and Judges, should carry it into execution? What probability was there, he would ask their Lordships, now that the House of Commons had twice passed a bill abolishing the punishment of death for forgery, of Juries convicting, or Judges sentencing, under the present law? He trusted that their Lordships would not, after a bill had twice passed the other branch of the Legislature, again reject it. He now begged to move, "That the House do resolve into a Committee on the Bill," and said, he had some verbal alterations to make in it.

Lord Wynford

said, it was not his intention to oppose the present Bill. He was anxious, as experiments had been made with other measures relating to alterations of the law as to offences, to see the experiment now proposed made with the Bill on their Lordships' Table; and he most sincerely hoped that the experiment would be found to answer. The House would only be performing its duty in subjecting the matter to trial, for if the experiment did answer the expectations formed upon it, he had no hesitation in declaring, that it would be most cruel and wicked to inflict the punishment of death for a crime, were it not necessary to secure men's lives or their property. After the Legislature had repealed the law which made it a capital offence to steal in a dwelling-house, where people generally kept their most valuable property, it would be inconsistent to keep the punishment of death for other offences, such as some which the present Bill included. He rather doubted some of the conclusions come to by his noble and learned friend, as to the returns to which he had adverted. His noble and learned friend seemed to forget that, with respect to many of the minor cases which he had quoted, two indictments were generally prepared, and if the party charged did not think fit to plead guilty to the minor offence, the capital charge was gone into. This would have some effect as to the numbers in the returns. Judges were in the habit of telling persons charged that, if they pleaded guilty to the minor charge, the capital charge would not be gone into. He hoped it would turn out, that the view which he had taken of the subject of capital punishments was a narrow one, but he could not help believing that the perspective of the gallows deterred many people from committing crimes, who would rush into the commission of offences, when they learned that the only punishment was transportation. When the returns, for which he had a few days ago moved, were upon the Table, he should have an opportunity of making some comparative calculations, which he thought would bear him out in his opinions. He should be sorry to see the law extend the milder punishment of transportation for all cases of forgery; for instance, he thought that exceptions ought to be made in cases where wills were forged. He had witnessed in the Court over which he had the honour of presiding a most ruinous effect of an alteration in a will. The alteration was trifling, and managed most dexterously, so that, until the document was held up to the light it could not be detected. The party who purchased the property supposed it was a tenancy in fee, whereas it was a tenancy for life, and he was completely ruined. The party who had been guilty of the forgery, had substituted the one word for the other. He need not urge to their Lordships the extreme importance of wills, and how necessary it was that they should remain unaltered, how much the welfare of many parties depended on that; and yet, by the Bill, such a crime could only subject the parties to transportation. He wished that an exception in this respect should be made, and he should, therefore, submit to their Lordships, when in Committee, an amendment to that effect, and should also propose that similar alterations should be made in this Bill as were, at his suggestion, introduced into a former Bill, the object of which would be, to deprive the Judges of any discretionary power as to the sentence to be awarded on conviction; and he was the more desirous of doing this, that the cases would be tried at sessions, so that any Recorder would be enabled to inflict any punishment he pleased within the scope of the Bill. Such an alteration would not interfere with the power of the Crown in respect to the extension of mercy. Their Lordships knew that that prerogative could not be taken away but by express words in a Statute, and none such had been introduced into this Bill. It would still be open to his Majesty to extend that mercy in all cases he might please; the only difference would be, that sentence of transportation for life must first be pronounced, and the execution of that sentence would depend on only two persons—the one the Secretary of State, who had to give consideration to all the cases which occurred throughout the kingdom, and the other his Majesty; whereas, if the Bill remained in its present state, Magistrates would be acting on different rules, and awarding different degrees of punishment for the same offence, thus rendering the operation of the law variable and uncertain.

The Marquess of Lansdown

having some years ago, proposed to their Lordships to pass a bill founded on the same principles as that under consideration, he could not be expected to do otherwise than give his full and cordial assent to it, and express the sincere satisfaction he felt in thinking that a bill to abolish capital punishment in cases in which it had been found practically inefficacious, and revolting to the feelings of prosecutors, jurymen, witnesses, and all who were concerned in carrying it into effect, was at length to be passed. He rejoiced that, after three years had elapsed since the former decision was pronounced, this House had been brought, by a consideration of the subject, into a different frame of mind. He was unwilling to add anything to the arguments stated by his noble and learned friend, but he felt bound to say, that the course which he should have wished to pursue when he brought the subject under the notice of the House three years ago, he wished to be pursued on the present occasion—namely, to proceed to abolish the punishment of death in all cases of forgery, with the exception of certain cases, to which the arguments did not apply with the same force as to the rest. In that Bill, which their Lordships thought went a great deal too far, and, consequently, rejected by a large majority, it was provided that its operation should not extend to forging a power of attorney relating to the public funds, and to the forgery of wills. He certainly was not aware of any instances of the commission of either of those offences in which a disinclination had been evinced to prosecute, or give evidence against, the accused. Both of them generally involved consequences very different from those which resulted from ordinary cases of forgery, affecting the whole property of an individual—tending to degrade, perhaps ruin him, and to convert a course of prosperity into one of misery—requiring too, for the exertion of them, a degree of premeditated contrivance and guilt singularly calculated to remove the scruples which in other cases existed against carrying into effect the execution of the law. All these circumstances, afforded strong ground for the exception of these two offences from the operation of the Bill, and the continuance of the punishment at present attached to the commission of them. He was not disposed to urge any opinion of his against the weight and authority of that of his noble and learned friend. He was unwilling to urge it against what might be the feeling and opinion of the House; but if the noble and learned Lord opposite should move an Amendment on the subject of the forgery of wills, he should support the noble and learned Lord. Though anxious for the abolition of the punishment of death in all cases, he would rather that that end should be arrived at as the result of experience, than as a consequence of any general principle.

The Duke of Wellington

had, in conjunction with a noble and learned friend of his, opposed the Bill to which allusion had been made by the noble Marquess. Though his opinions had not changed since that time, he did not intend to offer any opposition to the present measure, but he must be allowed to add, that exceptions ought to be made as to the punishment to be inflicted for those offences which had been particularly referred to as offences to which the arguments in favour of the abolition of capital punishment did not apply. He had no doubt that if some amendment were not made in the law as it respected powers of attorney, relating to the public funds—some amendment of the description proposed by his noble friend, so as to give some security to the Bank of England for that species of property—the Legislature would be under the necessity of adopting arrangements in relation to those instruments which must prove of the greatest possible inconvenience in the transaction of public business, and which must be injurious to those engaged in the transfer of funded property. He hoped, therefore, that Amendments of the kind proposed would be introduced.

House went into Committee.

Lord Wynford

having, at the suggestion of the Lord Chancellor, agreed to postpone his Amendment respecting the forging of wills and powers of attorney, to the bringing up of the Report, moved that the punishment for forgery should be transportation for life, and that it should be made imperative upon the Judges to pronounce sentence accordingly.

The Lord Chancellor

, in reference to the proposed exceptions, admitted that the forgery of wills might be exceedingly detrimental to families, and was a most grave offence; but he held the opinion, that in the existing state of public feeling, the punishment of death in these cases would not operate according to the intentions of its advocates, as an efficient protection of the rights of property.

Lord Holland

was decidedly opposed to the infliction of the punishment of death for any offences, the commission of which was unattended with violence. He had given his assent to the second reading of the Bill, and the reasons which induced him to assent to the Bill at that stage were still as strong on his mind as ever, and were as applicable to the cases which the noble and learned Lord would except, as to any of the other clauses of the Bill. These reasons, in fact, were as strong against the exception as they were in favour of the general measure. No one could deny, that forgery was a great crime, and, in some cases, as injurious to society as burglary, or even murder; but that was not a sufficient argument. The great object which a legislative body ought to have in view was the prevention of crime; and when it was found, from long experience, that the punishment of death so far from protecting the community against the commission of forgery, rather held out a hope of escape from all punishment, it was their duty to attempt other means for repressing the crime. These means, in his opinion, were such alterations in the law as would insure an inferior punishment in all cases. If the punishment of death was sufficient to keep down the crime, then he would say, allow it still to remain on the Statute-book; but when the voice of the public was against it, and when it was found, that owing to this general voice, even great criminals escaped punishment altogether, there could be no doubt as to what course their Lordships should pursue. The crimes of highway men were, in some instances, not of so atrocious a nature as some cases of forgery—that, for instance, of Fauntleroy; but then the Legislature ought to recollect the feelings which were excited in favour of that unfortunate individual, and consequently the difficulty, or rather impossibility, of obtaining a verdict for inferior crimes of that nature. The law, in fact, as it stood, encouraged rather than prevented the crime—the simple question was, does the punishment of death prevent the crime, or not? If it do not prevent the crime, and at all events till the noble and learned Lord proves that the principle which applies to the general measure does not apply to his exceptions, he must oppose the insertion of the clauses.

Earl Grey

said, exceptions had been proposed by the noble and learned Lord, and the question arising out of it was whether there was any ground for it. If a feeling did not prevail against capital punishment for forgery of wills and powers of attorney; if there were not the same unwillingness to prosecute, nor the same reluctance on the part of Juries to return an affirmative verdict in these cases, then he thought that a distinction ought to be made. He was ready to admit that there was greater difficulty in forging wills and powers of attorney than in forging bills of exchange; but, at the same time, he must say that, however reluctant he was to oppose his noble and learned friend and another noble friend who had argued in favour of the entire Bill, still he was bound to state that he was in favour of the proposed exception. If hereafter it should be found that the forgeries of wills and of powers of attorney remained still the same, and that public feeling was decidedly against convictions in such cases then the Legislature would have the benefit of experience, and would be justified in repealing the capital penalty. The punishment of death ought never to be inflicted but in cases of great atrocity; and, provided inferior crimes could be repressed by milder punishment, the extremity of the law should not be resorted to. With that view of the question, and wishing as he did to try the experiment in all other cases, he could not withhold his assent to the exceptions of the noble and learned Lord.

Amendment agreed to. The House resumed.