Lords Sitting of 7 May 1833

MINUTES.
Petitions presented. By the Earl of LONGFORD, from Longford; and by the Bishop of LINCOLN, from Hughenden,—for the Better Observance of the Sabbath, By the Duke of RICHMOND, by the Marquesses of LANSDOWNE, and BUTE, by the Earls of RLPON, FITZWILLIAM, GREY, GOSFORD, ROSSLYN, RADNOR, and CAWDOR, and by Lord WESTERN, and SUFFIELD, from a great Number of Places,—for the Abolition of Slavery.—By Lord WESTERN, from the Protestant Dissenters of Booking, to be allowed to Marry without Conforming to the Rites of the Church of England, for Relief from Church Rates; and for an Improved System of Parochial Registration; and from the same Body, for granting a Charter to the University of London.—By the Duke of WELLINGTON, from the Corporation of Waterford, against granting Exclusive Rights to the St. George Steam Company.—By Earl FITZWILLIAM, from the Glasgow Political Union, for a Repeal of the Corn Laws, and all other Laws which tend to enhance the price of Bread.—By Earl GREY, from Roscrea, for all Alteration and Revision of the Criminal Law.

CRIMINAL LAW.
The Duke of Sussexrose to present to their Lordships a Petition from the inhabitants of London and its vicinity, agreed to at Exeter Hall; the prayer of which was, that their Lord-
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ships would take the Criminal Law into their consideration with a view of ameliorating it. He had the honour last year to present a similar petition to their Lordships, which, like this, was most respectably signed. The present petition had 5,330 signatures; and among the persons who signed were several who had suffered from robbery, and who had proved in their own persons the insufficiency of the law. No man was more anxious than he was to diminish the number of offences liable to capital punishment, but he was convinced that the abolition of those punishments was a subject which required great consideration and care. In changing the punishment, other circumstances must be taken into consideration; as, for example, in what mode were the prisoners to be taken care of? He agreed, therefore, with the petitioners, who wished also to see the subject of prison discipline carefully examined. He was happy to say, that the number of capital convictions had decreased; but the number of persons charged with capital offences, who were acquitted, was particularly instructive. By comparing the number of persons convicted in 1831, with the number of persons acquitted, it appeared that of capital charges, twenty-eight out of 100 were acquitted, while of other charges only eighteen out of 100 were acquitted. That fact proved that the chances of conviction diminished when persons were charged with capital offences. The difference was about eleven per cent. He was speaking of the number of convictions in all England and Wales. In the metropolis the case was different. The number of convictions in London on capital charges was as forty-four to 100 acquitted, while in non-capital cases it was only twenty. It was, therefore, not the same in London as in all England and Wales. He was sure that the subject was of that nature which required the gravest consideration. He hoped that some ameliorations might take place; but while he was ready to offer their Lordships his best assistance in carrying them into effect, he by no means wished to hurry them under the consideration of their Lordships. He would then only move that the Petition he read at length which was done as follows:
To the Right Hon. the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Ireland, in Parliament assembled. The Petition of the undersigned inhabitants of London and its vicinity, agreed to at a public meeting, held in Exeter Hall,

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Humbly showeth—That your Petitioners are deeply impressed with the opinion, that the efficacy of criminal laws depends less upon the severity of punishment than the certainty of infliction; and that laws which cannot be carried into execution without shocking the feelings of society, and exciting sympathy for the offender, are contrary to reason, inconsistent with morality, and opposed to the interests of justice:
That the criminal laws of England are of a character so vindictive and barbarous as to be utterly incapable of uniform execution; and that consequently, under the present system, the lives of men depend less upon the precise and express provisions of law than upon the temper, feeling, or caprice of a Judge, or Secretary of State, whence it arises that all the assizes and circuits throughout England afford examples of inequality of punishment, and practical proofs of the arbitrary discretion exercised in the selection of victims for the altars of sanguinary justice:
That the excessive severity of the law operates to the total impunity of a great proportion of offenders, by deterring humane persons from prosecuting, and by holding out a temptation to Jurors to violate their oath rather than be accessory to judicial murder; while almost all the capital punishments now on the Statute-book are innovations upon the temperate and wholesome principles of the ancient common law of the land, which has ever been admired for its humanity and wisdom by the greatest legal authorities, and is coeval with the noblest and best principles of the English Constitution:
That your Petitioners, therefore, humbly pray your right hon. House to take the criminal laws into your consideration, and, in accordance with what the true interests of justice as well as of humanity require, to introduce such a thorough and efficient Reform of the criminal law as will render it more availing to public morals than to private vengeance, and by a judicious system of prison discipline afford that protection to property of which all persons may avail themselves without purchasing it by the sacrifice of human life.
Lord Lyndhurstwould avail himself of that opportunity to advert to a subject to which he had taken the liberty of calling the attention of their Lordships some time back. He had then referred to the Act which passed at a late period of last Session, by which persons guilty of offences before capital were subject to be transported for life. He had then moved for Returns to elucidate the operation of that Act; those Returns had since been laid upon the Table, and by them it appeared, that, out of 300 convictions, under that Act of Parliament, there were only ten eases of punishment commuted. He was satisfied, too, by the inquiries he had made into the cases of
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some of these persons, that further inquiries would have proved that, in these ten cases, the punishment had been remitted because the offences were committed before the passing of the Act. Waiving this consideration, however, and taking the ten cases, they showed that the proportion in which the law had been carried into effect was in twenty-nine cases out of thirty. Taking these returns as a criterion of the whole empire, he said, that to enforce the law in twenty-nine eases out of thirty was a harsh and unjustifiable administration of the criminal law. He did not make any charge against the noble Viscount at the head of the Home Department, but he blamed the clause which had been introduced, and to which was to be ascribed the effect he had mentioned. When the Bill was brought up from the other House it did not contain that clause. It was introduced in that House as an Amendment; and when it went back to the other House for its concurrence, the other House was averse from assenting to it, and only did so from an apprehension that the Bill would be lost if it resisted the Amendment. He might speak "of these things because they were matters of history. It was absurd to carry such a law into effect in all cases. Suppose a man tried for stealing 5l. in a dwelling-house and found guilty, it was imperative on the Judge to sentence him to transportation for life; and the sentence, as the Returns showed, was sure to be carried into effect. The next person might be tried for breaking and entering and stealing, that was a capital offence; and if he were found guilty, the Judge might sentence him to one year's imprisonment and to hard labour. The punishment, then, for the inferior offence, was transportation for life, and for the capital offence, one year's imprisonment. This was an anomaly in the law which ought net to be suffered. And on what ground was the law enacted? It was proposed to make the punishment certain—the punishment certain! In general it was made certain by the discretion of the Court. It was not disputed that punishment was made certain only for the purpose of preventing crime. That was the principle on which the Legislature acted. But it was said, in this ease, that discretion was not to be vested in the Court, but one uniform and most severe punishment should be always inflicted. The law applied a fixed punishment to different grades of crime, and the consequence was, that the punishment was not proportioned

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to the offence. Under the old system, when the discretion was vested in the Court, the Court examined into each case, and apportioned the punishment accordingly. The whole of our system was founded on intrusting the Court with discretionary power. When a party was found guilty of a capital offence, if the punishment were fixed, the Judge must order it to be carried into execution; but that was not the case where he had the power of mitigating the punishment. In all cases of misdemeanor the Judge was left to his own discretion. In all cases of Statutory Law, formerly the Court was in trusted with discretionary power. The whole system of our Criminal Code was founded on discretion, except in that case in which the Parliament had thought it right to take away all discretion under the circumstances stated. If it were right to take away the discretion of the Court, in one instance, that principle should be extended to all cases. If it were right to admit the Court to exercise a discretion, and if that were the general principle of the law, why make this exception? He considered it most mischievous, as well as anomalous, and he entreated the noble Viscount to bring in a Bill to alter this part of the law. He would also take the liberty of suggesting, that the noble Viscount should follow the course marked out by his distinguished predecessor, and introduce Amendments into the general Criminal Law; and if the noble Viscount did that, he would not only do an acceptable service to the country, but add to his own reputation and character. If the laborious duties of his office would allow the noble Viscount he would beg his attention to the criminal laws of the country. He would call his attention to the Returns and to the results which they showed. In the course of the last twenty years crime had increased in the proportion of three to one in this country. In 1812 the number of commitments did not exceed 6,000—they exceeded 20,000 in 1832. Taking the seven years ending with 1818, he found that the whole number was about 60,000; but taking the seven years ending with 1832, he found the whole number was about 127,000. This increase was not confined to any districts—it was the same in the manufacturing towns, and in the agricultural parts of the country; the same in the metropolis and in the most remote parts of the empire. This was not a sudden, but a progressive increase, from one year to another, ever since 1812. He submitted that these were important
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matters which demanded investigation. It should be shown whether there was any fallacy in the Reports, or whether they gave a correct representation of the state of crime; and if they gave a correct representation, an inquiry ought to be made into what were the causes of those crimes, and how those causes might be avoided.
Viscount Melbournesaid, that the noble Lord had stated that a harsh and unjustifiable use had been made of the prerogative of the Crown, and he must know that this was a serious—
Lord Lyndhurstsaid, that the noble Viscount was mistaken in his interpretation of what had fallen from him. What he said was, that to enforce the transportation clause, in the manner resorted to, was a harsh and unjustifiable administration of the criminal law.
Viscount Melbournedid not see, that the noble 'and learned Lord's explanation altered the case. The power to mitigate the sentence rested with the Secretary of State, and if its administration were harsh and unjustifiable the fault was his. The principle which those who had called for an alteration of the law had in view—the object which they wished to effect—was to deter from crime by making the punishment more certain; for it had been well ascertained, that when very severe punishments were awarded, the sympathy of the public frequently prevented them from being carried into execution. With respect to the conviction at the Carnarvonshire Assizes, to which the noble and learned Lord had alluded, the punishment in that case was mitigated, precisely according to the recommendation of the noble and learned Lord; and, he believed, that not a single recommendation had been forwarded by any learned Judge to which a due degree of weight and consideration had not been given by the office over which he had the honour to preside. He admitted, that the law, as it now stood, in some degree diminished the power which the Judge formerly possessed, with respect to the cases that were tried before him; but still application could be made to the Secretary of State, and the knowledge which was imparted to that functionary with reference to the previous character of the offender—the information which he received—the list which might be forwarded to him of the previous convictions, if any, of the criminal, enabled those to whom reference was made to decide upon the application better than a Judge could do during the

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hurry and bustle of the Assizes. The noble and learned Lord had referred to two cases of a very different kind, one in which a comparatively slight offence was severely punished, the other in which a grave offence was passed over lightly-Now, the argument of the noble and learned Lord was precisely that which was formerly urged against the penalty of death in a great variety of cases—namely, the uncertainty of that penalty being carried into execution. The fault was not to be traced to the measure of last Session, but to the state of the law in general. The noble and learned Lord called on him to turn his attention to the amendment of the criminal law. If he could discover any means that would more effectually provide for the due punishment of different degrees of crime—if he saw any means for the attainment of that object, no man would be more ready than he to carry such plans into execution, and to give to the country the benefit of them. The noble and learned Lord had alluded to the increase of crime. That was a most important subject; it required a more deep, a more profound, and a more enlarged discussion than he was prepared to give to it on the present occasion. The question of the criminal law was a most intricate one. The noble and learned Lord well knew, that the arguments connected with it were of a metaphysical character, and the science of mind, if it were a science, was one of the most uncertain, and, at the same time, the most curious, that ever was presented for investigation. He, again, admitted the subject which the noble and learned Lord had introduced to be most important, but with reference to the alterations which had been made in the law, he must say, that no system could be effectual, if its course were interrupted by perpetual agitation, and perpetual condemnation—coming also from those whose opinions must have very great weight, Peers of Parliament and Judges of the land.
Lord Lyndhurstsaid, that, to show the inequality of the law, he had instanced two cases—in one instance, an individual condemned for a minor offence was sentenced to transportation for life; in the other, the person who was next tried, and who was convicted capitally, was sentenced to one year's imprisonment and hard labour. The question was, what was the practical effect of the new system, as compared with the old? Formerly the Judge, in case of conviction, made his remarks in the margin of
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his notes of the trial, and stated the punishment; but now he must send up to the Secretary of State an account of the proceedings, which, from the number of cases, would often be impossible. The noble Lord had said, this was a new system, and that time ought to be given to see what effects would be produced by it. He did not complain of it as a new system, but as an anomaly, contrary to all sound principles of law.
The Lord Chancellorsaid, that in consequence of what had occurred between himself and the noble and learned Lord, he had inquired whether it was in the contemplation of his noble friend to send a circular to the Judges containing instructions to those learned persons to transmit the calendars, with their remarks, to the Home-office. That he understood would be done; and, he conceived, that such a course would obviate much of the objection of the noble and learned Lord.
Lord Lyndhurstsaid, that he was very happy to hear that such a proceeding was in contemplation.
The Lord Chancellor: I think it right, my Lords, in the absence of my noble and learned friend (Lord Wynford), through whose suggestion the amended clause in the Bill, removing the discretionary power from the Judges, was made, to say, on this occasion, that I thought the reasons which my noble and learned friend urged were satisfactory. The clause, I may also add, received the sanction of a noble and learned Lord, now no more (Lord Tenterden), a Judge whose experience was very great. Since the law has been carried into operation, objections have been made to that clause, and I so far yield to them as to say, I think the matter does require consideration; but I do fain hope the authority given to the Judges, in the way pointed out, will have the effect desired. Instead of a regular communication being made to the Secretary of State, it will be sufficient, I apprehend, for the Judge to write on the calendar the punishment he wishes to be inflicted. It may, however, require further consideration, whether the instructions given may not be liable to objections, but if no objections should arise, why then the objections to the clause will be met, and thus removed.
Lord Cliffordsaid, that, feeling deeply his inability to engage the attention of the House to what he wished to submit to it, either by power of oratory or by official influence, he would merely call its attention

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to what had fallen from the noble and learned Lord, who had stated, that, since 1812, the Tories being in power, crime had increased enormously and progressively; that the practice of the Courts during that time had been rarely to follow up conviction with infliction of the sentence; that the noble Viscount had selected stealing in a dwelling-house to commence an experiment upon a new system; that that system had produced 300 convictions; that only ten of them had not been carried into execution, and that, therefore, his Majesty's Government was unfit to manage the criminal law of England. Such sentiments appeared to him to be in opposition to those of the Archbishop of Dublin, in a letter addressed by him to the noble Earl at the head of his Majesty's Government. He would not detain the House, but merely beg their Lordships to look at the Archbishop's work, in which, he thought, their Lordships would find some reason to doubt the wisdom of that specious humanity to which such loud and continual appeals had of late been made.
Lord Suffieldsaid, that he had a petition to present upon this subject, and he would mention another fact, in addition to those already stated by the noble Duke—namely, that if their Lordships compared the number of acquittals of persons charged with the same crime at different periods, they would find that, as the number of capital punishments decreased, the number of acquittals diminished. The noble Lord then presented a petition from Lisburn and its vicinity, relative to the salutary Changes in the criminal law, during the last Session of Parliament. The petitioners slated, that there were still many incongruities to be removed, and they desired further changes, with a view of more correctly apportioning the punishments.
Petitions to lie on the Table.