Lords Sitting of 25 June 1832

MINUTES.
Papers ordered. On the Motion of the Bishop of EXETER, Copies of the Titles of the Books referred to by the Board of Education in Ireland as "The Standard of the Catholic Faith."—On the Motion of the Earl of WICKLOW, an Account of the different Applications for Schools made to the Board of Education (Ireland). On the Motion of the Earl of GLENGALL, a Copy of the Monthly Returns of the Chief Constables of Police in Ireland, of the King's County, Queen's County, Westmeath, Carlow, Kilkenny, Clare, and Tipperary, of the Outrages committed in their respective Baronies, from the 1st of March to the latest period.
Bills. Read a second time:—Corporation Funds; Beer Act Amendment.
Petitions presented. By the Earl of SLIGO, from Ballinrobe; and by the Earl of SEFTON, from Liverpool,—in favour of the Ministerial Plan of Education (Ireland).—By the Earl of RADNOR, from York, for Relief to the Trading and Agricultural Interest.—By Earl GREY, from Reading;—by the Bishop of CHICHESTER, from Horsham;—by the Duke of SUSSEX, from Liverpool;—by Lord HOLLAND, from Warrington;—by the Earl of CAMPERDOWN, from Wigtown and Stapleton;—by Lord DINORBEN, from Danby and Calmstock;—by the Marquess of CLEVELAND, from Olney;—and by the Duke of LEINSTER, from High Platts Penistance,—for a Revision of the Criminal Code.

PUNISHMENT OF DEATH.
Lord Suffieldhad the honour to present a Petition to their Lordships for the amelioration of the

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Criminal Code, from the Inhabitants of Kingston-upon-Thames; and the Petitioners stated that they regarded the enactments which went to inflict the punishment of Death, in cases of attack upon private property, unaccompanied by personal violence, as repugnant to humanity, injurious to the interests of society, and contrary to the principles of our religion; that the severity of the sentence, far from affording security to property, tended to increase the commission of the offence; and they therefore prayed their Lordships to repeal all such laws. He was glad to have the opportunity of drawing their Lordships' attention to this subject, as the Punishment of Death Bill stood for re-committal that very day. It was unnecessary for him to state, that he entirely and cordially concurred in the prayer of this petition. He rejoiced to find that the feelings of the public were so strong on this subject; and that a Bill, in unison with those feelings, was upon their Lordships' Table. He would not then enter into an argument upon the question as to how far a man had a right to cut short his fellow creature's existence, upon his own fallible judgment—he did not think it necessary then to go into that question; and would only say, that no one should be willing to inflict that punishment, unless he was convinced of the necessity and expediency of such a punishment. He would ask, whether it were politic or expedient that laws should remain on the Statute Book which the greater part of mankind refused to carry into execution? Was it politic or expedient to retain on the Statute Book laws which had the effect of transferring from the culprit to the law, the odium due only to the crime, and which tended to awaken sympathy and commiseration for the sufferer, rather than to deter from guilt? If it were shown, as it could be, that not the least possible good could result from these laws, that they were neither politic nor expedient, sufficient reason was afforded for their repeal. But he went still further, and said, that these laws were productive of mischief. This was proved by the disinclination which existed, on all hands, to carry them into effect, by which means it frequently happened that guilty persons were protected from any punishment whatever. They consequently offered a temptation to crime, by holding out a hope of impunity, and had a great tendency to induce the commission of perjury. It was a notorious fact that both Jurors and witnesses
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often perjured themselves, in order to save the criminal from capital punishment; while, now and then, although not so often, reluctance was manifested by the Judge to sentence a prisoner who had been convicted. If, therefore, a temptation was held out to the commission of perjury, that was of itself a strong ground of objection to the law which caused it. On this account he felt the greatest satisfaction that a Bill should now be before their Lordships on the subject, hailing it as the first step towards the improvement of the Criminal laws. He would beg, before sitting down, to recommend to the particular attention of their Lordships, the propriety of establishing some secondary punishments, because, without them, the course of justice would be incomplete. At present no satisfactory secondary punishment existed; and crime had increased in an alarming ratio. In America, secondary punishments, by corrective discipline, had been found to answer exceedingly well—not only deterring others from the commission of crime, but effecting an entire reformation in the character of the criminal. At New York, and at Connecticut, there were establishments in which convicts were subjected to this species of discipline—they were compelled to silence and to labour. During the day they were subject to inspection, worked together, and at night they were locked up alone. They eat their meals in silence, sitting with their backs to the centre of the room, so that they did not see each other; and if a man uttered a word, the gaoler or superintendent (who carried a whip) immediately inflicted the lash upon the offending individual. He did not admire this part of the discipline; but, in two other similar establishments, one at Philadelphia and the other in Pennsylvania—equally effective—the whip was not used; all the convicts worked in solitary confinement, and disobedience was punished by short allowance of food, and more rigid restraint. He considered that the discipline pursued at these establishments was well worthy of the attention of his Majesty's Government; and he hoped that it would be considered advisable to send out a Commission of Inquiry, to ascertain what probable advantage might be derived from adopting it, or that some other means should be taken by his Majesty's Government for the purpose of obtaining the best information on this subject; for those who were adverse to the infliction of capital punishment would have a good right to complain, if the Government did

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not substitute such other and secondary punishments as had been found to operate well in other countries.
Lord Dacremoved the Order of the Day for the House resolving itself into Committee on the Punishment of Death Bill.
Lord Tenterdensaid, that he felt called upon to express his dissent from this Bill in its present stage. If be could allow his conduct to be influenced by personal motives, he might feel disposed to give his assent to such a Bill as this, the effect of which would be to relieve himself and his brother. Judges from an exceedingly painful duty. His first objection to this Bill was, that we had at present no substitute for the punishment of death in those cases in which the Bill went to abolish that punishment. We had at present, in this country, no punishment which could effect the same degree of terror as was intended by the punishment of death. The noble Lord opposite had referred them to the institutions of the United States of America, and had called upon them to follow the example set to them in that country. He did not profess to be acquainted with what had taken place in America on this subject, but he thought he could perceive, from the countenances of many noble Lords, while the noble Lord was addressing himself to that point, that the example of America was not one that could be followed in this country. He wished, first of all, to see some secondary punishment introduced into this country, and sanctioned by the law, before they took away the punishment of death from the cases to which this Bill applied. If some kind of secondary punishment were thus introduced, and if it should be found to be salutary and effective, then he would heartily assent to such a measure as this, but not till then. By postponing this Bill for the present, Parliament and the public would be induced to devote their earnest attention to the subject, for the purpose of devising some substitute for the punishment of death in those cases, and that would be one good effect of opposing the Bill now; for, if this measure should be now carried, he greatly feared that very little exertion would be made to provide that substitute hereafter. The protection of property was the duty of the Legislature of every country; its security and protection formed one of the main objects of society, and he did not believe that upon any principles of religion or morality, properly understood, the taking measures for that purpose would be condemned, where
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they were necessary for the protection of property. He would admit that that necessity should be clearly made out. This Bill abolished the punishment of death for stealing in a dwelling-house to any amount, thus repealing the existing law, which fixed the amount that made the offence capital at 5l. That offence was first made capital by an Act passed in the reign of William 3rd, which made the stealing above the value of 40 s. in a dwelling-house felony, and punishable with death. The preamble to that Act recited, that servants and other disorderly persons, had been induced to rob and plunder their masters in their dwelling-houses, by reason of the benefit of clergy being extended to such offences, and that it was, therefore, necessary to pass that Act, for the purpose of taking it away from them. As the law now stood, the amount which rendered the offence capital was fixed at 5l., but if this measure should be passed, taking away the punishment of death from all such offences, the temptation to steal in dwelling-houses would be greatly increased. It was said, that as this punishment was now rarely inflicted, it would be better to abolish it altogether. It was quite true that it was rarely inflicted, and he was glad to say, that after all the complaints which they heard of the severity of the laws of England, they heard no complaints as to the severity of their administration. But, though the punishment of death was rarely applied in such cases, the power of its application was attended with a salutary effect, for it was a very different thing for a man to be able to say to himself, "By the law of the land, I can commit such and such crimes, and not suffer death," and to be able to say, "If I commit such and such crimes, I may suffer death." With respect to the other branch of this Bill, which related to stealing horses and sheep, he should observe, that the former was made a capital offence in the reign of Edward 6th, and the latter in that of George 1st. In each case, the penalty of death was inflicted, in consequence of the great increase of the crime. Now, he would ask, had the crime decreased recently to such an extent as to render the removal of the highest punishment necessary? As to the argument, that the present state of the law induced perjury, be would observe, that at present Juries were always directed to find the value of the article as if it were to be sold, although every one knew that a man's property was more valuable to him than that rate of calculation; and he (Lord

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Tenterden) had not found that Juries were willing or anxious to find verdicts under the value which would inflict the punishment of death. With regard to the disinclination of prosecutors to come forward, he had no doubt that many abstained from motives of humanity, as they stated; but he believed that many professed to abstain from prosecuting on those grounds, whose real motive was to save themselves the trouble and expense of prosecuting, and to obtain their goods again without that inconvenience. These were his views on the subject. He thought it better to postpone the Bill, until some substitute could be found for the punishment of death. If any noble Lord would apply his attention to this subject, and should think his (Lord Tenterden's) experience of any avail, he should be happy to give any assistance in his power.
The Earl of Eldonsaid, he had not had much experience in Criminal Courts; but for twenty-five years he had been the individual who had advised his Majesty as to the infliction of the punishment of death, and he hoped he had discharged that duty conscientiously, as he was sure he had with much assiduity. He never went to the King with the Recorder's report in his hand, without having carefully read every case it contained, made an abstract of the whole evidence, and considered the effect of that evidence, and its bearings in each particular case. It was no easy task to find an appropriate secondary punishment, for that had employed his thoughts and attention for twenty-five years, and he never could find what he considered a proper secondary punishment. He must state to their Lordships, that according to his experience, the fear of death did very often operate to prevent the commission of those crimes against which it was directed. He remembered a particular case, that the Judges having found a great number of horses stolen, had declared, that on the next Circuit they would leave every man for execution who was found guilty of that offence. He believed that between that and the next Circuit, not one horse was stolen in all England; so that the Judges were saved by that fact from putting into execution the denunciation they had previously made. Many crimes of the same denomination differed so much in circumstances, and were so different in degrees of guilt, that the Legislature had been compelled to make a sweeping law to embrace them all. He need not go further than the subjects
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mentioned in the Bill, to find an illustration of this fact. One part of the Bill related to horse-stealing; and he remembered two cases of horse-stealing which would explain what he meant; one was the case of a man who stole a horse in the neighbourhood of London, and afterwards sold it to some person near the Small-pox Hospital, who killed it. That horse, it was proved on the trial, was not of the value of 5s., except to be killed. The Crown extended its mercy to the man, and it certainly would have been a hard case if the law had been suffered to take its course. In the same Report was another case of a man convicted of stealing a horse eight or nine miles from London, in the county of Essex. On this man's trial it was proved, by those who traced his progress after stealing the first horse, that before he reached London he had stolen nine horses more. Not only was he guilty of all these offences, but it was also proved on his trial, that there were found on him the keys of all the turnpike-gates within six miles of London. These two cases were very different, and he was not able to find out how one law, one punishment, could be made to apply to such different cases, though they came under the same denomination. The same difficulty was found with respect to forgery. Suppose a man was to forge a cheque upon him for 10 l.; he should as soon think of hanging himself as hanging the man for that single offence. But forgery might be committed with some most aggravated circumstances; there might be great breaches of confidence—a person might be intrusted with powers of attorney, and might defraud all his customers—a man might do as Fauntleroy did, forge all the names of the customers for whom he was trustee, and might take out of the pockets of those customers, in a few months, 250,000 l. or 300,000 l.; and to say that such a man was not to be punished with death, out of respect for human life, was carrying the doctrine too far; and in that he could not agree. How many honest and industrious persons had been reduced to want and misery by such nefarious and profligate proceedings? Again, the Bill exempted from the punishment of death individuals found guilty of stealing to the amount of 5l. in a dwelling-house. Was this, as a general regulation, a wise one? A man might come to his house, and steal 5l. Now if he prosecuted that man to conviction, he did not think that the man was likely to be visited with the extreme penalty of the law, because the offence would not

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seriously affect his fortune. But let them put the case in another way. Let them suppose that the person despoiled was a poor industrious man, who had found it extremely difficult to amass such a sum. Did not this make a wide and marked distinction in the case? Did not the act that reduced this man to utter penury deserve condign punishment? The lightnings of heaven might consume the poor man's cottage, the thunders of heaven might destroy his dwelling, but still the law said, "It is his castle, and the hand of violence shall not touch it." But what did this law declare? It said, that the robber might enter the poor man's abode, almost with impunity. The ruffian who deprived the poor man of 5l. robbed him, perhaps, of every shilling that he possessed in the world, took from him more, perhaps, than he would be able to acquire in five or ten years, by his most anxious exertions. The laws of this country were justly framed to meet all these circumstances, and any severity that might appear to be attached to them, was fairly balanced by the prerogative of mercy which was placed in the hands of the Crown. As to what had been said as to Juries refusing to convict, from the apprehension that capital punishment might be inflicted, he agreed with his noble and learned friend, the Chief Justice (Lord Tenterden), that such a statement was a gross slander on Juries, and he believed it was utterly unfounded. Juries had done, and he was sure would continue to do, their duty. He believed that they were perfectly ready to convict wherever it was necessary. The Judges, when appealed to, invariably told them, "Do you perform your duties, we shall unquestionably fulfil ours." He took credit to himself for placing at the head of the Court of King's Bench one of the very best men in the land, and their Lordships had heard what he said on the subject of Juries, and he concurred with him, that Juries generally did their duty. Before their Lordships attempted to alter the criminal code of the country in this manner, they ought to see what was a proper secondary punishment. He could only say, that having had opportunities, year after year, for nearly half a century, to consider this difficult question, he had never yet found one single man, bred in the study of the law, or one politician, knowing a great deal of the law, as many of them undoubtedly did, who was able to point out to him, what to his mind, was a satisfactory secondary punishment. The law
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provided general enactments to prevent enormous crimes. Now, they could not have those general enactments to prevent such crimes, without classing under them offences of a nature, with reference to which it might not be necessary, sometimes, to suffer the law to take its course. It did not, however, follow that they ought, therefore, to abrogate the law altogether. In such cases as those to which he had alluded, it was left to the Crown to exercise the prerogative of mercy; and, so far as his knowledge extended, mercy never had been refused in any instance where it ought not to have been withheld. He, therefore, was not favourable to this measure.
Lord Dacresaid, he felt himself placed in rather a difficult situation, finding that his opinion was opposed to one of the greatest authorities upon this subject that existed in this or in any other country. He was not, it should be observed, the individual who moved the second reading of this Bill; but, as he was always friendly to a mitigation of punishment, and as he was anxious, whenever prudence would permit, to abolish capital, and to introduce secondary punishments, he would endeavour to persuade their Lordships to accede to the present measure. One would suppose, from the manner in which the noble and learned Lord had argued the question, that they were without secondary punishments of any description whatever in this country. He knew that it was very important to attempt to assimilate secondary punishments here, with those that had been introduced elsewhere, particularly in America. But, looking to the actual facts of the case, it would be found that secondary punishments did exist in this country at present. If they cast their eyes over the returns which had been laid on their Table, they would find, that during the years 1826, 1827, 1828, 1829, 1830, and 1831, 935 persons were convicted of sheep-stealing, out of which number only fourteen criminals suffered the last penalty of the law, being little more than 1½ per cent. The remainder had undergone different secondary punishments, which were known at present. Was, then, this state of things so advantageous as to induce them to reject the present Bill—a measure which, he could easily show, was not likely to have the effect which the noble and learned Lord seemed to suppose that it would have? He had no objection to allowing the Judges of the land to possess that full discretion with which they were at present invested; but he wished,

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at the same time, that a greater degree of certainty should be attached to the decisions of the law. It appeared to him that crime could not be effectually checked, unless the punishment which it awarded was concurrent with the feelings and sentiments of the people. It was not by the threat of a sanguinary punishment that they could induce the people to abandon crime. In this enlightened age, the frowning aspect of a barbarous and bloody code, whatever might have been its effect formerly, had lost all its terrors. He would not trouble their Lordships by going through all the returns that had been laid on their Table; but, if they examined them, they would find the number of persons capitally punished so extremely small, compared with the number convicted, and if to this they added the variety of bills ignored—or, if the bills were found, the cases were not prosecuted, and thus not allowed to come before Judge or Jury, because they related to matters of too little importance to place the life of man in jeopardy,—if they looked to these points, they would perhaps agree with him, that in these particular cases, prosecutions would more generally take place if they limited, but rendered certain, the punishment, rather than encouraged the present system of law. Such had been the effect produced by the course pursued by that great statesman, Leopold, grand duke of Tuscany. He found, and it would ever be the case, that in proportion to the amount of punishment, and to the certainty of its infliction, whatever it might be, in that exact ratio crime went on gradually diminishing. Their Lordships would also find that good effects had been produced by the adoption of the same system, to a certain degree, in the North American States, in the Netherlands, and in France.
Lord Wynfordwas entirely of his noble and learned friend's opinion, that before they proceeded to legislate on this subject, they ought to have brought before them, and clearly defined, some proper system of secondary punishment. Much had been said about the system of secondary punishments in America, but he believed that it was no uncommon thing to see individuals, after having undergone secondary punishment there, wandering about, outcasts of society, and unable to procure employment. Was that, he would ask, desirable? Was such a course calculated to repress crime? He was of opinion, that in none but extreme cases the punishment of death should be inflicted. That punishment was just,
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where life was wantonly taken away, or where, in the abstraction of property, great personal violence was used. Except in cases of this description, he considered the infliction of death as bloody, barbarous, and unnecessary. But, as the law now stood, the prerogative of the Crown presented a shield against the undue infliction of the last penalty. They were called upon to alter the existing state of the law. But when, he demanded, were they to look for an efficient secondary punishment? Transportation was, at present, a secondary punishment; but transportation had no longer any terrors attached to it. It was rather an encouragement to crime, as had been repeatedly declared in evidence by gaolers and others, than a dissuasive from it. Indeed, he remembered going Circuit with the late Mr. Justice Holroyd, when a person was put on his trial for some robbery, and it clearly appeared that he had committed the robbery for the purpose of getting transported. The Judge, however, directed the Jury to acquit the prisoner, as it was clear he had not taken the property with a felonious intention, and the man was disappointed. At first, when a country was in a rude and unsettled state, and when much labour was to be performed by the convicts, transportation was certainly a severe punishment. But the circumstances were now entirely altered, and the terrors which were formerly connected with transportation had been wholly removed from our colonies. If such were the case, in what situation would they place this country by the passing of this Bill, when they left it without any secondary punishment that could have the effect of deterring men from the Commission of crime? We had not, and could not have, so efficient a preventive police as that which existed in some other countries; and therefore, it was necessary that our legal code should be more severe; and yet they had lately heard of a case in France, in which a man, by way of mitigation, was sentenced to fifteen years' hard labour. It unfortunately happened that the feelings of the people of this country were now running in favour of the criminal, but not for the protection of the poor man. All the sympathy was for the villain, and none was displayed for the poor honest man. This was, in his opinion, a morbid state of public feeling, to which the Legislature ought not to yield. He, therefore, should vote against the Bill.
The Lord Chancellorsaid, that considering the prominent part he had always

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taken on the subject now under consideration, when he had the honour of a seat in the other House of Parliament, he could not allow the discussion to close without briefly stating his sentiments. That this was a question of the greatest importance, as regarded the security of property, on which the security of everything else rested, and that it was a question interesting to every man of humane feeling, no one could deny: that it was a question surrounded with difficulties was equally clear; but, in his opinion, those difficulties should not prevent them from coming to the discussion of this matter calmly and temperately, with a desire to make such alterations as might be practicable and consistent with the security of property. He could not advert to this subject without congratulating their Lordships that the same exemplary moderation which had characterized the discussion of this subject in the other House was likely to attend its discussion by their Lordships. The consideration of the question had not been in the other House tainted by any degree of party spirit, and it was now certain, as was to have been expected indeed, that the same absence of party spirit would characterise the discussion of the question by their Lordships. He had listened with the greatest attention to what had fallen from his noble and learned friends, and particularly to what had fallen from his noble friend (Lord Eldon) on this subject; and if he believed that the punishment of death had the tendency to deter persons from the commission of those crimes, for which the law left it as a matter of discretion whether death should be inflicted or not, he should be disposed to continue the law as it now stood. With great respect for those amiable and respectable persons who held an opposite opinion, he did not see that there was any law, human or divine, which prevented men from taking away life for punishment. There was no general human law prohibiting the punishment of death, and he certainly knew of no divine law. There was certainly a text in the Holy Scripture, "Whosoever sheddeth man's blood, by man shall his blood be shed;" but, although this text in some degree commanded the shedding of blood in cases of murder, yet he could not admit that it prohibited the punishment of death for other crimes. Even when murder was committed, although it was an inexpiable crime against society, and inflicted the deepest injury on the family and friends of the deceased, yet
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it was not because of the magnitude of the offence, or its irremediable character, that society was justified in taking away the life of the criminal. The only justification for punishing the man convicted of murder with death was, that his execution might deter others from the commission of the crime for which he suffered; and, upon precisely the same principle, for the purpose of preventing the repetition of crime, they were justified in punishing other grave offence as well as murder, with deprivation of life. Notwithstanding the doubts which some well-intentioned persons felt on this subject, for his own part he felt that the Legislature was perfectly justified in ordaining that the punishment of death should be inflicted, and the only question was, as to the efficacy of the punishment, which the law, in the cases alluded to, rather announced than inflicted. if he thought the announcement of capital punishment had a tendency to prevent those crimes, he, for one, should be a friend to the continuance of the law in its present state; but his objection was, that the law had so long threatened, and so long failed to inflict capital punishment in such cases, that the threat now operated, practically, as no threat at all. When their Lordships saw upon how small a number the extreme punishment of the law had been carried into execution, he thought they must agree with him, that the apprehension of capital punishment could not operate very strongly or extensively. In the year 1831, for instance, it appeared that 162 persons had capital sentences recorded against them for the crime of sheep-stealing, and of that number only one was executed. In the same year 125 persons were sentenced to capital punishment for horse-stealing, and in not one of these cases was the sentence carried into execution. For stealing to the value of 5l. in dwelling-houses, 100 persons were capitally sentenced; and in this case, as in that of the convictions for horse-stealing, not one was executed. Of 387 persons, therefore, who were capitally convicted, and against whom sentence of death was recorded, only one person was executed. For all offences against property in that year the total number of capital convictions was 1,108, and of those on only eleven persons was the sentence carried into execution. After all the chances which the criminal had, arising from the failure of the prosecution and conviction—even when convicted, and sentence of death had been recorded against him, it was yet a hundred

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chances to one in his favour that the punishment would not be carried into execution. He was rather inclined to agree with his noble and learned friends in what they had stated relative to the conduct of Jurors. He believed that Jurors did their duty in such cases, and that the difficulty did not lie with them. The great difficulty lay with prosecutors and witnesses, and more particularly with the former. He was satisfied that some persons declined to prosecute, feeling that in so doing they should save themselves from some expense, and great loss of time. He was equally confident, however, that many persons declined to prosecute because they conscientiously believed (and whether they were right or wrong in so doing he should not stop to argue) that the penal enactments of the law for offences against property went too far. That such a feeling existed, and operated in preventing prosecutions for the crime of forgery, no one could entertain a doubt. When he had the honour of a seat in the other House of Parliament, he presented a petition, signed by proprietors of no less than 214 country banks. There were 705 individuals belonging to those country banks who signed their names to the petition, besides a great many proprietors of London banks. The petition contained the sentiments of nearly 1,000 bankers on this subject, and that large body of bankers earnestly enjoined the Legislature to abolish capital punishment for the crime of forgery. They did not rest their prayer upon the ground of humanity—though the petition contained the signatures, doubtless, of many men as humane as any in this kingdom—but they put that ground aside as unnecessary, and called upon the Legislature to abolish capital punishment, upon the ordinary self-interested ground that, as the law now stood, it did not afford them protection for their property. And why did not the law afford them protection? They considered, because of its severity. They stated, that great scruples were felt as to prosecuting; but that even those who did not object to prosecute from any conscientious scruples, or any impression that the punishment was too great for the offence, abstained from prosecuting from the difficulty of obtaining a conviction. In fact, the severity of the law had outrun the feeling against the crime; and, much as it might be lamented, the fact appeared to be, that the feeling against the punishment was so strong and general as to render the law inoperative and ineffectual. But then it
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might be asked, why, if the small number of cases in which the sentence was executed rendered the law inoperative as to the criminal, did not the same reason render prosecutors willing to come forward? The reason was simply this: the criminal acted under a strong temptation, and calculated on his chances of escape, while the person who ought to prosecute reviewed the matter more calmly, and often felt unwilling to put it into the power of Juries to convict, or Judges to execute. Another illustration might be taken from the case of the Excise stamps. There had been many prosecutions for the forging of Excise stamps before 1806, but in that year the forging of them was made capital, and the prosecutions immediately diminished. Although it had been proved by a variety of cases, that a diminution of prosecutions had invariably followed the increase of the severity of the punishment, yet Parliament had always evinced an extraordinary reluctance to lighten the penalty exacted in cases which had been made capital. Sir Samuel Romilly, to whose unceasing and never-to-be-forgotten exertions for the improvement of the criminal code they were indebted for all that had yet been done, and for all that was ever contemplated—Sir Samuel Romilly had not lived to see any of his recommendations carried into effect, for he believed that the law which inflicted capital punishment for stealing in a bleaching-ground was not repealed until the year after that lamented man's death. It was a curious thing, and illustrative of the nature of capital punishments, that in the Province of Ulster, where, their Lordships knew, there were a greater number of bleaching-grounds than anywhere else in the three kingdoms, the total number of committals for the offence of stealing in a bleaching-ground, in the seven years before the repeal of the capital punishment, were sixty-one, and the convictions only three, or one in twenty; while, in the seven years after the repeal, the commitments were thirty-seven, and the convictions seventeen, or nearly one in two. Then again with respect to forgery. Previous to the alterations which had been introduced in 1820, in the punishment of forgery out of 787 prosecutions, there were 334 convictions, while there were but fifty-seven acquittals out of 558 cases that had occurred since the milder penalty had been adopted. This would appear, perhaps, stronger put thus:—The number of persons executed for the crime of forgery in the seven years ending 1830, was twenty-four

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out of 217 prosecutions—that is to say, from the reluctance of persons to capitally prosecute, and of Juries to find capital verdicts, and of Judges to enforce the strict severity of the law: to but one case in nine was the law rigidly applied; while the number of persons executed for the crime of murder during the same period was nine to one of the prosecutions; clearly showing that where the punishment is considered by the community at large to be disproportioned to the offence, the chances of acquittal are so magnified, that the law ceases to be efficacious as a preventive; and vice versa. This principle was illustrated by the state of the public mind at the passing of the statutes inflicting the capital punishment for the crimes of forgery and the stealing of cattle. The former was passed very soon after the Revolution—the latter in the middle of the reign of George 2nd; and so little was public opinion outraged by the severity of those statutes, that, till within the last thirty or forty years, it was a sort of proverb, "that a man who was convicted of forgery was sure to be hanged;" and, in point of fact, out of an annual average of thirty-eight convictions for forgery, during the thirty years that succeeded the Revolution, not less were followed up by the punishment of death. In the same manner, cattle and horse stealing, which was made a capital offence by the 14th of George 2nd, was for a long time punished invariably by a strict execution of the sentence. Formerly, indeed, it was almost proverbial, that a man found guilty of forgery would be executed; but now it was just as certain that he would not; and he put it, therefore, to their Lordships, whether, in this alteration of the feeling of the times, it would be for the security of property, and the due administration of justice, to permit the capital punishments to continue in the Statute-Book? Having said so much, he was bound to make one or two observations on a most important question—that of secondary punishments. He fully agreed with the noble and learned Lord, the Chief Justice of the King's Bench, that it was absolutely necessary to make secondary punishments much more efficient, and to increase the terror of them to offenders. By a due modification of the punishment of transportation, by rendering it more rigorous to all grave offences, and by taking away from any the hope of escape, he entertained a belief that secondary punishments might be rendered perfectly effective for that great object, the prevention
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of crime. It was stated, however, as an objection, that secondary punishments should be rendered more effectual, and placed on a better system, before they repealed the capital punishments. He would admit the force of the objection, if he was not prepared to give it this answer, that, as the severer law was never executed, secondary punishments, even in a deficient state, were all they had to rely on at the present moment. On the whole, therefore, he saw abundant reason for asking their Lordships to consent to the measure now proposed.
Lord Suffield, having already expressed his opinion on the Bill, would only make a few remarks on what had fallen from noble and learned Lords, and would begin with the observations of his noble and learned friend on the Woolsack, who appeared to him to have misconceived the religious scruples of those who were averse to prosecute in cases which might endanger the life of the culprit. His noble and learned friend supposed that such persons objected to capital punishment, except in cases of murder, or rather, limited their approbation of capital punishment to cases of murder upon one text in Scripture; namely, "that whosoever sheddeth man's blood, &c." But he had for years extensively communicated with persons who entertained objections to capital punishment on religious grounds; and he had never met with one who had maintained the doctrine mentioned by the noble and learned Lord. He had heard the matter argued thus:—"If you inflict the penalty of death upon the text of Scripture quoted, a part of the Mosaic law, in consistency with that law the penalty of death should be inflicted upon those who commit adultery; by what authority do you act upon a part, and not the whole, of that Mosaic law?" Such persons denied that the Mosaic law supplied the authority, for they said, our Saviour came to fulfil the law in its spirit, but to abrogate it in the letter; and, for an example, they cite the case narrated in Scripture of the woman taken in adultery, who, by the old law, was liable to the punishment of death, but the sentence was not executed. Another noble and learned Lord expressed a belief that he was misinformed with respect to the effect of corrective discipline in America. He knew that travellers passing hastily through a foreign country, without examining, and without having the means of examining, facts, were very apt to adopt foolish opinions, and to

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express them as rashly. Whether the noble Lord derived his information from these sources, he knew not; but he (Lord Suffield) had derived his information from men who had made the subject of criminal jurisprudence their study during the greater part of their lives. As to forgery, which, though the Bill had nothing to do with it, had been alluded to, he would mention a circumstance which had cone to his knowledge within a few hours. A legal gentleman had to prosecute a person for having uttered a forged check. There were two indictments, the one charging the prisoner with having a forged check in his possession, knowing it to be forged; and the other with having uttered a forged check. The Grand Jury found a true bill against the prisoner for uttering the forged check, but threw out the bill which charged him with having a forged check in his possession. This was absolute nonsense; for, if he had not the forged check about him, he could not have uttered it. The reason which the Grand Jury afterwards assigned for their conduct was, that they were unwilling to subject the man to capital punishment. In another case, a friend of his had been robbed by his servant, and fully intended prosecuting him; in the mean time, however, he found out that the man had forged his name, in order to obtain goods from a tradesman. If he had caught the man, he would have been obliged to prosecute him for forgery; and, therefore, he abstained from proceeding against him altogether. He did not pretend to compete with the noble and learned Lords opposite in experience in the Courts of Law; but, within the circle of his own acquaintance, he knew repeated instances of persons forbearing to prosecute, on account of their aversion to capital punishment. The noble and learned Lord (Eldon) had eloquently and feelingly described the case of a poor man who would lose his all by having his cottage robbed to the amount of 5l.; but, if the noble and learned Lord's argument were good for anything, it would go to this extent, that the law should be altered to greater severity; a man should be capitally punished for robbing another of 2l., or even of a single shilling, for that might be a poor man's whole wealth.
The Earl of Suffolkbegged leave to remind the noble and learned Earl (the Earl of Eldon), who had been so pathetic on the subject of forgery, that that crime did not at all fall within the scope of the present Bill. He agreed with the learned
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Earl, that it was right and just to protect the cottage of the poor man equally with the palace of the rich, and that 5l. or 3l. might be a more irreparable loss to the former, than twice as many thousands to the rich man; but he would not therefore extend the punishment of death for robberies under 5l., because, among other reasons, he was confident that the poor man would not prosecute if he thought loss of life would follow conviction.
The House went into Committee pro forma.
Lord Wynfordproposed, as an amendment on the clause which vested a "discretionary power" with the Judges, to order a prisoner convicted for offences specified in the Bill to be forthwith transported, that it should be "imperative" on the Judges to pronounce the sentence of transportation. As the clause stood, the Judges would not be compelled to pass the sentence of transportation. According as the law stood at present, however, sentence of death must either be passed or recorded. Their Lordships had decided that this should not be so in certain cases; and, he submitted, that it was necessary that the sentence of transportation, which had been substituted for death, should be passed. This might at first seem a point of no great importance, but, upon consideration, it would appear otherwise. If sentence of transportation be passed, it would be inflicted in all cases, except where, in the view of the Secretary of State for the Home Department—supported by the opinion of the Judges—it ought not to be carried into execution. The rule, therefore, would be, that the sentence would be carried into execution, unless where favourable circumstances be proved. He would also move, that the following words be inserted, "or to be imprisoned, with or without hard labour, in the common gaol, or house of correction, fur any term not exceeding four years; and it shall be lawful for the Court to order that the offender shall be kept in solitary confinement for such portion or portions of his imprisonment as to the Court shall seem meet."
Lord Dacredid not object to the Amendments.
Amendments agreed to.—The House resumed.