in 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. 278 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 279 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 40s. 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 40s., but the verdicts returned being to the value of "39s. 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 40s.; 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. 19s., 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 280 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 281 '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 282 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 Wynford
opposed 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 Wellington
said, 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 London
regretted, 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 283 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.