Lords Sitting of 19 April 1833

MINUTES.
Petitions presented. By the Duke of RICHMOND, by the Marquess of LANSDOWN, and by the Marquess of BUTE, and the Earls RADNOR WINCHILSEA, and Lords POLTIMORE and BARHAM, from several Places,—for the Abolition of Slavery.—By the Earl of WINCHILSEA, from Bainbridge, for the Abolition of the Punishment of Death in certain cases; and from Canterbury, for the Better Observance of the Sabbath.—By LORD ROLLE, by the Bishop of LONDON, by the Earl of RODEN, and by the Marquess of LANSDOWN, from several Places,—to the same effect.—By the Earl of RODEN, from Beaulieu, against the Irish Church Bill; and from Hamilton, against the existing System of Church Patronage in Scotland.—By Lord WYNFORD, from Peckham, for giving Freeholders the power of appointing Auditors of Poor and other Parochial Rates.

CRIMINAL LAW.
Lord Lyndhurstrose to put a question to the noble Viscount on a subject connected with the administration of the Criminal Laws. By the Act of Parliament passed in the course of last Session, all persons convicted of cattle or sheep stealing, or stealing in a dwelling-house to the amount of 5l. should be sentenced to transportation for life. Now, he was extremely desirous of knowing whether the sentences under that Act had been in all cases carried into effect, or commuted for minor punishments. One reason for his wishing to ascertain this was the fact of his having been lately engaged in the trial of several cases of the kind he referred to, and it had constantly appeared to him that the sentence of transportation for life was in many of those cases extremely harsh, and much beyond the nature of the offence. He could state a variety of instances in which that sentence would appear monstrous. He recollected one in which a poor cottager in a mountainous district of the country was indicted for stealing a lamb. He was the owner of two or three sheep, and one of the mothers happened to drop a lamb which died. The cottager finding a few days after a lamb, which had strayed from his neighbour's flock into a field belonging to him, seized

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upon it and appropriated it as his own, treating it in every respect as the one he had lost. The man was tried and found guilty of the offence, and he (Lord Lyndhurst), who sat as judge, was obliged in pursuance of the Act to pass the extreme sentence upon him. Under the circumstances of that case, he certainly thought the sentence much more severe than justice required; but he had no power to mitigate the sentence. It would be far better, he thought, if some other description of punishment—for instance, a slight imprisonment—were allowed to be substituted in cases of mitigated atrocity. He had felt it his duty to communicate the circumstances of the case he had stated to the Government when they occurred. Surely the atrocity of the offence was very different in the case of a person who thus carried away one lamb, and in that of another who stole a whole flock of sheep. There was, indeed, no parallel between the two offences, and vet they were both to be visited with a punishment of equal severity. He could only say, that if the extreme punishment were inflicted in all cases, then a new and distinct classification of crimes, so as to include every variety of case, would become indispensably necessary to the due administration of justice. A noble Earl, whom he did not then see in his place, had said, during a previous discussion on this subject, that no difference in the power to mitigate the sentence had been made by the Act in question. This, though correct in expression, was not correct in substance. Under the old system the Judge had the power of stating: in the margin of the calendar the punishment to which the prisoner was to be subjected. This power was vested in the Judge practically, but such was not the case under the present system. The sentence which the Judge was compelled to pass was transportation for life, nor had he the least power to mitigate it. Another reason which had induced him to apply for information on the subject was this—that he had ground to believe some further alteration was intended to be introduced into the criminal laws by the other House of Parliament. He wished, then, while those alterations were in progress, that his Majesty's Ministers would turn their attention to this point—namely, the affixing of one precise penalty to every case of crime, and that penalty to be enforced imperatively. To effect this object it would be necessary to make some extensive alterations in the definition of crimes. In the
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cases of house-breaking, he could notice the same anomaly as he had pointed out in those of sheep-stealing. When a thief entered an empty house, and, using it as a means of communication with another house, stole there from property to an immense amount, that offence appeared to him most flagitious, and one which called for the extreme penalty of the law. But in the case of a poor wretch driven by hunger, lifting a latch for the purpose of stealing a loaf of bread, and then running away, (a case of continual occurrence) it seemed harsh and absurd to inflict an equal degree of punishment. But yet for every offence of house-breaking the Judge was compelled to pass a sentence of transportation for life. He was, for these reasons, desirous of knowing from the noble Viscount whether under the new law the sentences for the offences he had mentioned had in every instance been carried into effect.
Viscount Melbourne,in answer to the noble and learned Lord's question, could not give a precise answer; but he understood that the sentences had not in every case been carried into effect. The circumstances of the several cases were, he believed, always taken into consideration, and the punishment which was considered most apportioned to the offence was substituted in its stead. With respect to the particular case of sheep-stealing alluded to by the noble and learned Lord, he was not prepared to say what punishment was inflicted. He neither recollected the case nor the communication which the noble and learned Lord said he had made to the Government, but in all probability a mitigation of the punishment had taken place. He had supported the Bill for the mitigation of criminal punishments upon the general principle of rendering them more certain, though less severe. The current of public feeling ran strongly against the old laws, and there was in consequence a great repugnance in Jurors to convict. A n alteration in the law, then, became necessary, and it was thought the best alternative to limit the punishment for certain offences to transportation for life, instead of inflicting the penalty of death. It was perfectly clear that by the application of a general rule to those offences a great deal of inconvenience might be avoided; but it was not in the nature of human affairs that any general enactment should be free from some inconvenience, Certainly, if there could be a more complete and comprehensive

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classification and a more accurate definition of crime, it would be a great advantage to the administration of justice. The Government would always be happy to avail itself of any communication from the noble and learned Lord which would assist the attainment of those objects in the smallest degree. The present was, he conceived, the proper period for doing so, when a bill on the subject was about to be discussed in the other House of Parliament.
Lord Wynfordsaid, that the principle alluded to by the noble Viscount who had just sat down—the rendering punishments more certain, by diminishing their severity—was precisely the principle on which he had made the proposition to the House. He admitted that a better classification of crimes might be effected.
Lord Lyndhurstassured the noble Viscount (Lord Melbourne) that whenever he should happen to sit as Judge before a Jury who had never acted under the new law, he should consider himself bound in passing sentence to state to them the law of the case; and to point out to their notice the fact that he was not allowed to mitigate the sentence. A great practical alteration had, it could not be denied, been effected with respect to the power of the Judge. Until the Act in question passed, the Judge might mitigate the sentence as he thought proper, by merely stating the punishment on the margin of the calendar, and this without being obliged to assign any reason for the mitigation. The case was not so now; that part of the Judge's power was taken away; and if on any occasion he wished to effect a mitigation of the punishment, a special application was necessary. But it was not always convenient to make these special applications from want of time. During the last Assizes he himself had tried 400 or 500 cases, and how could it be supposed that he should have time to make special applications." In order to obtain the Information he wanted he should move for "a return of the number of convictions for horse, cattle, and sheep-stealing, and for stealing to the amount of 5l. in a dwelling-house, stating in how many of such convictions the punishment of transportation for life had been inflicted, and in how many that sentence had been commuted for different punishments, from the 1st of July, 1832, to the present time."
Lord Dacresaid, that his object in originating the measure, which had been amended on the Motion of the noble Baron, was to substitute certainty for uncertainty
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in the punishment of crime, and he believed that he acted in consonance with the feelings of the majority of the people in so doing. He could not, therefore, help expressing his surprise at hearing the noble and learned Lord assert that hereafter, when he should have to charge a Jury in cases under the Act, he should make a statement to them which would have the effect of exciting their feelings and influencing their judgment before the Jury had come to a dispassionate—
Lord Lyndhurstdeclared that he had made no such statement as was attributed to him by the noble Lord. He distinctly said, that after the verdict should be passed, he would, in the presence of the Jury, if they for the first time had sat on a case included within the scope of the Act, state that in passing the sentence he was guilty of no harshness, but was compelled to pass it by the provisions of the Act.
Lord Dacresaid, that if he were wrong, he would apologize; but he certainly so understood the noble and learned Lord.
Lord Lyndhurstagain assured the noble Lord that he was mistaken.
Lord Dacreagain began to address the House, but was again interrupted by an explanation from Lord Lyndhurst, amidst loud cries of "Order," when
The Marquis of Lansdownrose to order. His noble friend had been thrice interrupted by the noble and learned Lord, and he submitted that such conduct was not ordinary.
The Earl of Wicklowbelieved that the ordinary course was, when a noble Lord disclaimed the use of expressions which were attributed to him, to consider them as not having been spoken by him. He was very much surprised at the noble Baron's attempt to persevere on the present occasion.
Lord Dacreobserved, that he never intended to repeat the statement which the noble and learned Lord had disclaimed; he was merely about to say, when he was interrupted, that such was the impression on his mind from what had fallen from the noble and learned Lord.
Lord Lyndhurstassured the House that he never could by any possibility have so expressed himself, because in so doing he should be advocating a violation of the duty of a Judge.
Motion agreed to.