Lords Sitting of 2 August 1833

MINUTES.
Bills. Read a third time:—Dean Forest Boundaries; Holyhead Roads.—Read a second time;—Infirmaries (Ireland); Troopers Fund East-India Com pany's Charter.
Petitions presented. By the archbishop of CANTERBURY, from the Clergy of Kilmore, against any further Grants to the Irish Board of Edueation—By Lord PIUNKETT, from Mayo, to Substitute Solemn Affirmations for Oaths; from Cookstown, for a further Revision of the Criminal Code. By the Bishop of LONDON, from All Saints, Poplar, for Poor Laws to Ireland.—By Lord WYNFORD, from certain Individuals connected with the Victoria Theatre, and by the Duke of SOMERSET, from London and Westminster, in favour of the Dramatic Performances Bill.

DRAMATIC PERFORMANCES.
The Marquess of Clanricarde The Marquess of Clanricarde moved the Order of the Day for the second reading of the Dramatic Performances' Bill. Although tills was rather a lighter subject than those which had lately occupied their Lordships' attention, yet when their Lordships considered the nature of the interests at stake they would not deem them of a light or trivial character, in the manner in which this question should be decided was involved not only the property but the very existence of a large number of meritorious industrious persons, persons who were compelled, of necessity, to do that which an injudicious law pronounced to be illegal, but which, far from being a crime, met with public approbation and support. The present state of the law was most injurious, and was decidedly opposed to public morality and to public feeling. He had heard one singular objection to the Bill now proposed—namely, that it would limit the prerogative of the Crown. If it would do so, he should be the last man to vote for it; but he must say, that this was one of the grossest errors and most extraordinary delusions into which he ever knew educated persons to fall. The fact was quite the reverse. It was utterly impossible, under the present law, that any new theatres could be erected. There were now many good theatres in London, at which rational entertainments were gives, performing not only without a license, but (such was the law) without even the possibility of obtaining one. Was that a state of things which should be permitted? In the whole City of London, in the whole extent of the metropolis east of Temple Bar, no theatre could legally exist. This was a great and unjust interference with the rational pleasures and enjoyments of the public; and the natural consequence was, that unlicensed theatres had risen, and were publicly supported in defiance of the law. In these theatres rational and amusing performances took place, in consequence of which, the larger theatres sought to suppress them by enforcing the penalties. This, therefore, was one singu-

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larity of the case, that whilst these minor places of amusement gave only low and vulgar entertainments—whilst they were only the haunts of vice and idleness—the great theatres never gave them the slightest molestation; whereas, the moment they became respectable places, to which the intelligent might resort with advantage, the great theatres immediately attempted to put them down. How far the law which could sanction such proceedings was favourable to public morality and improvement, he would leave their Lordships to judge. The public had, however, taken a strong interest in the repeal of the law, as was evinced not only by the support afforded to the minor theatres, but by the petitions which had been laid on the Tables of both Houses of Parliament. Two Committees of the other House had sat upon the subject, and this Bill had been framed in compliance with the suggestions contained in the Report of the last Committee. The Bill proposed to enact, that there should be a free competition with respect to theatres; but there were various provisions in the Act to guard the public against any licentiousness, either in the performances themselves, or in the mode in which the theatres should be conducted. Indeed, one of the greatest complaints of the present system was, that no efficient control existed over the conduct of unlicensed places of amusement. The power of the Lord Chamberlain was merely permissive, and not preventive. He might grant or refuse a license, but with regard to those theatres which performed without his license, his power was no more than that of any common informer. It was indeed disgraceful that our theatres, even our great theatres, presented scenes of such unblushing vice, that no respectable man could take his wife or daughters through the lobbies and passages without the danger of beholding scenes which must shock their delicacy. Against this the present Bill would supply a remedy, by requiring that no play should be performed without the approbation of the licenser, and by enabling the Lord Chamberlain to inflict heavy penalties for misconduct. He did not participate in the fears of those who anticipated from this Bill an increase in the number of theatres, because several of those now performing without license, would doubtless, be suppressed, or at all events would not gain a license without some favourable
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change in their performances. He would now, for a few minutes, request their Lordships' attention to the character of the opposition made to this Bill. First of all, the great theatres set up a claim of monopoly. This was most absurd and untenable. By the 21st of James 1st, too, all monopolies were expressly prohibited; and therefore, could they now succeed in establishing their claim, it would, in his opinion, be at the risk of rendering themselves liable to the penalties of a prœmunire. The noble Marquess then entered into the now well-known history of the patents granted to the theatres, and showed, that if a monopoly had ever existed, it had been violated over and over again in every successive reign. In 1690, upon an application of Betterton, the question of exclusive privileges was mooted, and negatived by the Crown lawyers of the then day, as it had also been by those of the present. Indeed the words of the patent which gave the exclusive privilege could only be construed as referring to the life of the patentee, inasmuch as the patent did not contain the words "for ever," nor "heirs and successors," nor any words of similar import. Their Lordships were also told, that this Bill disregarded vested rights and the rights of property. Now, he for one fully respected those rights. But let the House examine for a moment what was this property, and what were those vested rights, which were said to be placed in jeopardy. It appeared from evidence, that Covent Garden was 160,000 l. in debt, whilst the investment of Drury Lane was 212,000 l., and of the debt 6,000 l. remained, and when that was paid off, it was expected, that the shareholders would perhaps receive 2l. per cent, and no more, on their capital. It might be seen from this how much these theatres had flourished under the system which they wished to be continued. This was the valuable property of which so much was said; those were the vested rights they were called on to uphold. The proposition was absurd. The necessity of another theatre was felt, and had been proclaimed by Sheridan full twenty-seven years ago; and he warned the large theatres of what they might expect. It was very strange, certainly, that Drury Lane should take up this question, inasmuch as Drury Lane was at present performing under a license which was renewed in 1816. Another objection—

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certainly a strange one—had been started, that this Bill would ruin the British Drama. Indeed! how many legitimate dramas had the great houses lately produced? What were the performances which, according to their own account, were remunerated. Was it the British Drama? No; but the Lions—the German operas, and French dancing. These were the only speculations that paid; and nothing could better illustrate the nature of the property than the praises so profusely lavished on an hon. Gentleman, lately a lessee, simply because he paid his rent. His loss was admitted to be no less than 10,000 l. in one season. How, then, could it be said, that a monopoly was required to uphold the national drama? There were no monopolies in the days of Shakspeare, of Ben Jonson, of Forde, or of Massinger—in short, the dramatic literature of England never flourished more than when the name of monopoly was unknown. The great theatres wanted, he believed, to continue their monopoly, and to tax all the small ones for their advantage. But he entreated their Lordships to recollect that the persons interested in the small theatres amounted to between 2,000 and 3,000, who maintained themselves by their industry and their talents; and he trusted their Lordships would not consign them to ruin by continuing the monopoly of the large theatres.
The Earl of Glengallopposed the Bill, because it took away from his Majesty all his power to license theatres, by making it imperative on the Lord Chamberlain to license all the theatres, for which an application was made; and also, that the present owners of the patent theatres had purchased their rights, and it would be an invasion of property now to take them away. They had even been compelled by Act of Parliament to purchase Killegrew's patent for 60,000 l., and it would therefore be most unjust to deprive them of what they had bought. The noble Earl concluded by moving, that the Bill be read a second time that day six months.
The Bishop of Londonsaid, he never could allow a Bill of this description to be discussed without making some observations upon the effect which such a measure was likely to have upon the morals of the great city with which he had so important and so solemn a connexion. It was not his intention to take
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an active part either for or against the Bill, but he must say, that he could not help objecting against its preamble, which declared, that it would tend greatly to the accommodation of the public, and to provide them with innocent and rational amusement. Now he denied, that such an enactment would tend to improve the public morals, and therefore it was, that he objected to a multiplication of theatres. He should be as reluctant as any man to interfere with the innocent and rational amusements of the people, but his great doubt was whether this measure would not have a very opposite tendency to that of providing innocent or rational amusements. He would not advert to the question whether or not the prerogative of the Crown was invaded by this Bill, but he must say, that he thought the provision which not only directed but peremptorily required the Lord Chamberlain to grant licenses to a certain number and description of theatres was in absolute defiance of the authority of his Majesty. He was willing to admit, that the Bill would place the theatres under proper restrictions, but he could have wished, that these salutary restraints had been carried still further. On looking at the several clauses he found, that the Lord Chamberlain was bound to grant a license for opening a theatre, provided that three months' previous notice was given, and that the inhabitants of the district made no objection to it. An important feature in the case was with respect to that which would constitute a district. A district was to be formed by a radius of 220 yards, and the Bill provided, that the application for opening a theatre within this circle should be signed by at least 150 respectable inhabitants, rated at 10 l. a-year. Now he knew, that many such districts could be found in which there were not even 150 respectable householders. According to this calculation there might by the Bill be no fewer than 250 theatres within the distance of two miles from the General Post Office. But suppose four circles with a radius of 220 yards each were formed, touching at the extremities, would not a district equal to one-fifth of the whole area of the four circles remain between them, and would not one-fifth of the inhabitants of that whole space, be left without any voice as to whether the theatres were necessary, and they having no voice in the matter might have

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not one but four theatres in their immediate neighbourhood? He did not expect such a case to happen; but when they were legislating they should adopt something-like principle and proportion, and should provide against possibilities. He must, however, say, that the character of, or rather the manner in which, a theatre was conducted should be made a consideration of paramount importance, for if he was rightly informed evils of the most outrageous description flowed from the present system of managing such establishments. Representations with respect to the abuses existing in theatres had frequently been made to him, and unhappily it was the opinion of some that he was responsible for these abuses. The newspapers too had teemed with letters addressed to him on the subject of those abuses; but although it was not in his power to correct them as he could wish, he was still bound to acknowledge to their Lordships, that every remonstrance or representation which he had made upon the subject to the Lord Chamberlain had been attended to. Their Lordships, he was sure, would excuse his taking any part either in altering or amending this Bill, for such a course would be inconsistent with the sacred office which he had the honour to hold; but still he must say, that keeping the theatres open on Saturday nights beyond midnight was a gross and scandalous infringement of the Lord's Day. It had the effect of leading not only the frequenters of theatres, but domestics, who were obliged to sit up late for their superiors, into a forgetfulness of their Christian duties, and he therefore hoped, that in any measure their Lordships might pass they would render it compulsory, that the curtain of all such performances should drop before twelve o'clock on Saturday nights, on pain of forfeiting the license. There was a theatre, called the Garrick Theatre, in Leman Street, Goodman's Fields, Whitechapel, respecting which he had received innumerable complaints. With the part of the town in which this theatre was situate their Lordships could have little acquaintance; but a deputation that had recently waited on him declared, that since its opening the moral character of the whole vicinity had undergone a most lamentable change. This theatre opened at first without any license. A license was afterwards granted to it, but subsequently refused; and it was now, as originally,
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open without any authority whatever. What added to the evil of the immorality which it produced was, that the property in the neighbourhood had become greatly deteriorated in value, and the reason tradesmen assigned for not taking the houses was, that they would not live in the scenes of riot and tumults which this theatre nightly occasioned. But to show the effects of such places of amusement, and to prove that they were any thing but innocent and rational, he would mention a single instance. Within the last fortnight the daughter of a poor widow residing in the vicinity of the theatre, the only prop of her mother's declining years, contracted a sudden taste for theatricals. The girl was educated as well as persons in her condition usually were, but, being able to obtain admission to the theatre nightly, she finally quitted her mother altogether, and gave herself up to an abandoned course of life, destroyed the happiness of her parent, and ruined her own character irretrievably. The same fate had happened to the apprentices of tradesmen. They first began by frequenting theatres, their next step was to rob their masters, and if they were not charged with the commission of criminal offences their indentures were at all events cancelled. That which occurred in the neighbourhood of this theatre happened he had no doubt elsewhere, and therefore their Lordships would see how necessary it was to adopt some course of checking instead of encouraging so bad a system. He was not prepared to say, that such places of amusement should not exist, but he was ready to contend, that an increased facility for establishing other theatres should not be given, for he was convinced that such a step would only tend to rend asunder the bonds of society.
Lord Wynfordconcurred in all that had fallen from the right reverend Prelate, but he still thought, that as the population of the metropolis had increased fourfold, the number of theatres ought also to be increased in proportion. It would appear, that the larger theatres were not better conducted than the small, and he should therefore wish the Lord Chamberlain to be invested with a power to examine into all complaints relating to the immoral practices permitted at such places. He, however, admitted, that large sums of money had been expended on the faith of the patents under which

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the large theatres were kept open; but although anxious to have property protected, he must say, that some improvement of the present system was loudly called for. He suggested whether a selection from the existing theatres, regular and irregular, might not be made in order that rational and innocent amusement should be afforded to the public; but he must say, that seventeen were a great deal too many for that purpose. Two theatres, he fully admitted, would be wholly inadequate to the wants of the metropolis, and as he did not wish the public to be debarred from any rational amusements, he should wish to see those chosen against which no complaints of a very serious kind had been made. There was much in the Bill of which he approved, but there was also much to which he objected, and he therefore hoped their Lordships would send it to a Committee, in order that such provisions of it as would be advantageous might be retained, and those having a contrary tendency should be rejected.
Viscount Melbournesaid, that the Bill was in some respects good and in others bad. Compelling the Lord Chamberlain to grant licenses was not only taking away from him all discretion, but a manifest invasion of the prerogatives of the Crown. He hoped, therefore, their Lordships would allow the Bill to be read a second time, and then send it to a Committee up stairs.
Lord Segravehad such strong objections to this Bill, that he must give his support to the Amendment of the noble Earl. He objected specifically to the 6th Clause, which would render the power of the Lord Chamberlain entirely useless.
The Marquess of Clanricardesaid, that in supporting this Bill the right of the Crown to grant patents would not be infringed.
The House divided: Contents 15; Not Contents 19—Majority 4.

ROBBERIES IN DWELLING-HOUSES.
Lord Suffieldin moving, that the Report of the Committee be brought up, introduced the remarks he had to make on this Bill by observing, that its provisions were adapted to give increased security to property. This Bill applied solely to house-breaking, an offence committed by day, and which to be complete must be attended with actual theft, however small.
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The Bill did not include burglary, an offence which takes place by night; neither does it include the offence of housebreaking, attended with personal violence or intimidation. Their Lordships would remember, that privately stealing to the value of 5l. from a dwelling was now no longer capital. Well, then, the present Bill extended the same principle to the mere act of breaking. But what is breaking? They were not to suppose it necessary to constitute the crime, that axes and hammers must have been employed. No such thing; the mere lifting a latch, or raising two inches of a window already open was a constructive breaking—instances of this sort of constructive breaking sometimes occurred. His Lordship cited a case or two from Mr. Sydney Taylor's Compendium. A child convicted of breaking a pane of glass in a shop window, and abstracting a penny bun from a shop window was sentenced to be hanged. A curious case was some time ago seriously argued before the Judges to determine whether a man who had descended a chimney had been guilty of burglary, when their opinion was made to depend on whether the man's feet came down far enough to be visible. Again, a boy, named Nicholas White, only nine years of age, playing with some other children, was tempted to push a stick through a cracked window, and to pull out some painters' colours, value 2d.; for this he was actually tried capitally, convicted, and sentenced to be hanged under the Statute which the present Bill was intended to repeal. This happened at the Old Bailey Sessions in May last. Such was the gross inconsistency of the Statute in question, that out of 1,100 persons convicted in the two last years, only one offender had been executed. By the ancient common law, even burglary, the offence of breaking into a dwelling-house by night, was not punishable with death. It was by the 39th Elizabeth, cap. 15, that housebreaking first became capital, by which, however, it was essential, that property should be stolen to the value of 5l. Five shillings was the price set upon human life at that time, a sum equal to several pounds at the present day; but by the alteration which took place in the law in 1827, it was enacted, that the breaking and stealing to any value, however small, should be capital. So that now the taking to the value of one farthing

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was capital. Human life now-a-days was reduced to the value of one farthing! The absurdity of the existing law could not be better illustrated than by the case of a beggar lifting the latch of a door to ask alms, and, finding no person within, he might perhaps be tempted by hunger to steal a loaf. For such an offence, the punishment provided by the existing law is death, no matter how small the value of the property taken, although in the case of privately stealing from a dwelling the sum capitally punishable had been raised from 40 s. to 5l. Such a state of the law induced Juries to violate their oaths. He held in his hand a list of 555 perjured verdicts delivered at the Old Bailey in fifteen years, beginning with the year 1814, for the single offence of stealing from dwellings, the value stolen being in these cases sworn above 40 s., but the verdicts returned being to the value of "39 s. only." If required, he could produce the name of every one of these 555 prisoners, and show, that the value proved to have been stolen was upwards of 40 s.; and by reference it would appear, that no less than 11,064 Jurymen had been concerned in these perjured verdicts. It deserved remark, that when the Legislature raised the sum to 5l. in June, 1827, the Juries at the same time raised their verdicts to 4 l. 19 s., still keeping it low enough to save the offender's life. This had happened under the head of stealing only. Mith regard to the charge of housebreaking, which is capital however small the value taken, Juries had saved the offender's life by returning a false verdict—"guilty of stealing only." That Juries are influenced by a regard for the offender's life, is proved by the fact, that whenever capital enactments are more rigidly enforced, then the acquittals increase, and vice versa. Thus, in the instance of housebreaking, during the years 1826 and 1827, no offender was executed, and then the acquittals were only fifteen out of every 100 tried; but in the succeeding three years, 1828, 1829, and 1830, executions to the number of twenty-seven took place, and then the acquittals rose to twenty per cent. In the next two years, 1831 and 1832, only one was executed, and then the acquittals again sunk to fifteen per cent. The noble Lord referred to some tables founded on parliamentary papers for twenty-one years, and embracing criminal returns to the number of more than 16,000 for the
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offences of robbery, burglary, and housebreaking, by which it was distinctly shown, that as the severity of the law had been relaxed in practice, just in that proportion had the number of acquittals decreased. Nothing, however, better demonstrated this position than a fact exhibited in these statistical returns, which was, that taking the last seven years, the acquittals on charges not capital were only eighteen per cent, whereas acquittals on capital charges were twenty-eight per cent; showing, that ten persons out of every 100 escaped with impunity, because the nominal penalty was death. But the state of the law did not influence Juries alone, for it often prevented prosecutors and witnesses from coming forward, and operated on the feelings of the Judges themselves. After all, however, he was arguing for the repeal of a statute which had already become obsolete in practice,—one by which out of 1,100 persons sentenced to die, only one had undergone that penalty—one which tended rather to proclaim impunity to crime than to deter offenders. The Returns of the House of Commons had incorrectly stated, that four persons had been executed in 1832 for housebreaking, but these were all cases of burglary, and three of them suffered for a midnight burglary committed near Maidenhead: their names were Green, Lincoln, and Morris; although guilty of a great offence, and of personal intimidation, yet they had refrained from personal violence, and it is remarkable that they declared while committing the robbery, that "they did not want to shed blood." Yet the prosecutor who gave this in evidence, became the means of their being put to death, for Baron Gurney ordered them for execution. "I cannot forbear," observed the noble Lord, "saying it was most inexpedient to put the law into effect in this case." The impolicy of the law in such a case was admirably shown by a passage from Dr. Johnson's writings (Rambler, No. 114)—'To equal robbery with murder, is to reduce murder to robbery—to confound in common minds the gradations of iniquity, and incite to the commission of a greater crime to prevent the detection of a less. If only murder were punished with death, very few robbers would stain their hands with blood. But when, by the last act of cruelty, no new danger is incurred, and greater security may be obtained, upon what principle shall we bid them

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'forbear?' The alterations in the last Session, by which the capital punishment was repealed in certain cases, had already produced good effects in the diminution of the number of offenders. This was particularly evident at the present Assizes for various counties—as in the instances, among others, of Dorsetshire, Wiltshire, Lincolnshire, Rutlandshire, Worcestershire, Buckinghamshire, and Kent. In Essex the change for the better had been very remarkable at the Quarter Sessions, and at the two last Essex Assizes the number of criminals was now less than one-half the usual number. The noble Lord then adverted to the case of a criminal at Salisbury, who, on receiving sentence of transportation for life, exclaimed—"I had rather suffer death than the misery which the Judge has inflicted;" and afterwards quoted a passage from the Report of the French Commissioners on the state of the American Penitentiaries, showing, that in the improved prisons the punitive and reformatory measures were such that the recommittals were only one-third the former number. Adverting to the false alarm lately attempted to be set up regarding the crime of forgery, the noble Lord stated, that he held in his hand upwards of forty letters from principal merchants and bankers in the principal towns of the three kingdoms, showing, that the offence had not increased, as alleged, since the repeal of the capital punishment. But he could also adduce other information on that head from official authority, by which it would be seen, that there was actually a diminution in the number of prosecutions for forgery in the whole kingdom; and recollecting that no offenders were now suffered to escape, as formerly, it was evident that the crime itself must have decreased; neither was it now common to hear of acquittals as it formerly was. By additions which had been made in their Lordships' House, the present Bill provided, however, a still more severe punishment for forgery, for it enabled the Judge to order the prisoner to four years' hard labour in this country previous to transportation for life; a provision which was also extended to horse-stealing and some other offences. There was a gradation of punishments provided for the offence of housebreaking. The noble Lord concluded by saying, that a measure which had undergone two ample discussions in the other House of Parliament, and had been
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passed unanimously, was certainly entitled to their Lordships' most favourable consideration. He would, therefore, move, that the Report of the Committee be now brought up.
Lord Wynfordopposed the Motion. He thought it proper, that the dread of a great punishment, should hang over offenders; which, he considered, would more deter persons from committing crime than the certainty of any minor punishment. He should be glad to give his assistance to the noble Lord in removing certain offences of a minor nature from the class of capital offences; but he could not agree to the present Bill, which abolished the punishment of death in some of the most serious offences in the calendar. He admitted the utility of certainty of punishment, and on that ground he had persuaded their Lordships on a former occasion to make it imperative on the Judges to punish certain offences with transportation for life. He disapproved also of the lengthened imprisonment allowed by the Bill, because he never knew, in the course of his experience, of a man reforming from a prolonged imprisonment, either solitary or otherwise. Nothing but transportation was ever known to improve a felon. On these grounds he could not give his concurrence to the Bill in its present shape.
The Duke of Wellingtonsaid, that if this Bill were passed into a law it would deprive the poor man of his best protection. He had had the honour of being a member of his Majesty's Councils for twelve years, and, during that period, from sixty to 100 cases had come under his knowledge, in which poor people, when absent at work, were robbed of everything they possessed. The poor man could not afford to leave persons in his house when he went to work, and the police was no protection (at least in the country) against this species of robbery. He was opposed to the Bill because he thought, that if they abolished the punishment of death in all cases of housebreaking, they would destroy the poor man's best security.
The Bishop of Londonregretted, that there was no prison in this country in which a fair trial could be given of the effect of prison discipline in recalling offenders from their evil ways. He could not agree with the noble and learned Lord (Lord Wynford) that transportation improved men. He thought, that experience

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proved the contrary. He believed, that the Penitentiary at Milbank, which had for the last two years been put under improved management, gave great hope that the result of the experiment would be such as to give encouragement for a more extended trial of the system.
The Report was received.