Lords Sitting of 4 July 1837

MINUTES.
Bills. Read a second time:—Tithes Commutation Act Amendment.—Read a first time:—Imprisonment for Debt; Malt Duties; Borough Boundaries; Reform of Parliament (Ireland).
Petitions presented. By the Bishop of LONDON, from Derby, against Sunday travelling and trading.

MUNICIPAL CORPORATIONS ACT AMENDMENT.
A Conference was held with the Commons, when Lord John Russell, stated the reasons of the House of Commons for disagreeing with one of the amendments made by the House of Lords in the Corporations Act Amendment Bill, and that they agreed to the remainder.

ATTENDANCE BEFORE COMMITTEES.
The Bishop of Exeterobserved, with reference to a message which had been brought from the House of Commons, requesting that he might be allowed to attend to be examined before the Committee of that House on education in Ireland, that he was a Member of their Lordships' Committee on this same subject, and, therefore, that he was not disposed to attend to give evidence elsewhere, conceiving that such a course would be inconvenient and unjust towards their Lordships.
Lord Ellenboroughsaid, that it was the privilege of their Lordships not to attend Committees of the other House unless they pleased; but the best course to be pursued was to remain silent in reference to the request of the Commons.
The conversation dropped.

CRIMINAL LAW.
Lord Denmanrose to move the second reading of the Forgery Bill, and the other Bills for amending the criminal law, which had been sent up last week by the House of Commons. Before he entered into any general statement respecting these Bills, it would be better for him to advert to the first Bill because it was desirable that their Lordships should have an opportunity of considering the provisions of that Bill as speedily as possible. Under the peculiar circumstances in which it came before them, he thought there was no ground for postponing it, and that the best mode was to carry it into effect with the least possible delay. The Bill was introduced on the recommendation of the Criminal Law Commissioners, and the great object of it was to assimilate the statute-law to the actual administration of it. When it was a well-known fact that in six or seven species of crime the law and the practice were different, he asked if such a state of things ought to last, and if they were not called on to relieve judges and juries
1774
from the disagreeable position in which they are placed by the present state of the law on forgery? The Report of the Commissioners, after having been forwarded to the Secretary of State for the Home Department was submitted to the judges, and it was their opinion that it was desirable the change recommended should take place. Though the Bill would not come into operation till September next, yet if it were made the law of the land without delay, the judges would act in conformity to it on the ensuing circuit, and besides it would come into operation for the Central Criminal Court in October. The Bills which he proposed for second reading were the Forgery Bill, the Robbing and Stealing from the Person Bill, Burning and Destroying Buildings and Ships Bill, Transportation for Life Bill, Burglary Bill, Piracy Bill, and Offences against the Person Bill. He would begin with the Forgery Bill, because he happened to be Attorney-General when a Bill was introduced by him in the House of Commons containing nearly the same provisions with the Bill before their Lordships. The object of that Bill was to abolish capital punishment for forgery in all cases; but some exceptions were afterwards made—exceptions which he did not think could be justified on the principle of the Bill, because the parties injured still declared that they could not prosecute for the offence when death ensued; one of these exceptions was the forgery of a will—no doubt a most heinous offence; but it was singular that in the next Sessions after the Bill was passed with that exception, no less than five or six cases of forgery of wills came to be tried, these were chiefly forgeries of seamen's wills, to a trifling amount, and it was not thought proper, in any of these cases, to carry the law into effect; and even last year a case occurred to which it was found inexpedient to execute the full penalty of the law. It was a forgery of a will to a great extent, he believed to the amount of 7,000 l., not only by a trustee, but a brother, with no chance of it ever being repaid. He believed no person in court at the time thought it possible to inflict the punishment of death even for such an aggravated offence. That being the case, was it not a fact that the punishment of death for forgery had been virtually repealed? Was it not much better that the statute-book

1775
should be relieved, and prosecutors should be enabled to come before the grand jury to make their complaints without reluctance against crimes which they knew would not be punished with undue severity? When that Bill passed it was foretold that London would be inundated with forgeries. It was satisfactory to learn that forgeries were less numerous than formerly, and that the proportion of prosecutions had considerably increased. That had been ascertained both at the Bank and other places. The forgeries on the Bank had considerably decreased. It, was therefore satisfactory to know that while the law had been mitigated the number of aggravated cases had also become less. The great principle of the Bills before the House was, that crime should be visited with certain punishment. It was proposed to change the punishment of death to transportation for fifteen years, and for aggravated cases to transportation for life. In cases of robbery attended with violence the offender was still to be subject to the punishment of death. With regard to offences against the person, about which so frequently doubts arose and great uncertainty prevailed, it was proposed that in all cases of attempting to poison, stab, or maim, where any bodily harm ensued, the punishment of death should still be inflicted, and in cases of poisoning or attempting to commit any act of violence where no bodily harm was inflicted the punishment was to be transportation for life or for fifteen years. There was also a newly discovered crime included in that Bill, several instances of which had occurred lately. He meant sending letters or parcels containing detonating powder, and in that case when any harm ensued the party was to be transported for life. Attempts to procure abortion were also to be punished with transportation for life. With regard to another offence—that of arson—it was found impossible to get any jury to convict unless it was proved that life had been endangered. It was proposed, therefore, to abolish the capital punishment for arson in cases where life was not endangered, and to confine it to setting fire to dwelling houses as formerly. The next crime was burglary in a dwelling house—one of the lightest offences often that could be committed, but for which the punishment was death. It was proposed by the present Bill to make the punish-
1776
ment for burglary transportation for fifteen years. In cases of burglary attended with circumstances of personal violence or bodily fear, the punishment was still to remain capital. With regard to the definition of the period of night upon which depended the crime of burglary, much uncertainty had previously existed on this subject, and it had been held that as long as it was light enough to distinguish the features of a man it was not night. It had been thought more advisable, however, to fix a period for the duration of night as respected burglary—namely, from nine in the afternoon until six in the morning, which was the general period of repose, and it was for the purpose of giving additional protection to the inhabitants of houses whilst in that state and less able to protect themselves, that the distinction was made at all. The offence of stealing in a dwelling house, if accompanied by threats, was to be punishable with transportation for not less than ten years nor more than fifteen. Piracy also was to be punishable with transportation, unless accompanied by the additional crime of cutting, stabbing, or wounding the persons on board. It would be seen from these details that it had been the object of the framer of these Bills to make a distinction between the various shades of offences as far as could be done. At the same time, however, it would be idle to suppose that this object could be perfectly accomplished, and that a discretion vested in the hands of the judges and of the Secretary of State would not still be necessary. It was certainly very desirable that the law should be as certain in its operation as possible; but this, he thought, was to be aimed at more as to convictions under the law than the rigid execution in all cases of its extreme penalties. Taking away the life of a fellow-creature was at all times a very serious and a very painful step to take, and necessarily left a feeling of very great and awful responsibility upon the mind of the man whose lot it was, in his judicial capacity, to pronounce the dreadful sentence—a responsibility which he thought no judge could conscientiously shift from his shoulders, even by the reflection that the offence for which the prisoner was tried was one which fell within the exact letter of a capital enactment. However anxious, therefore, the Legislature might be in defining offences, and apportioning their respective penalties,

1777
some discretionary power must still be vested in the administrators of the law. There was one practice at present in use which he felt sure none of their Lordships would be found very much to approve of—namely, the practice of recording the sentence of death in cases where it was never intended to be carried into execution. Formerly, when the law was more strict than at present, the judge was obliged in every case to put on the dreadful cap, and pronounce the sentence of death against the unfortunate prisoner, although it was not intended to be enforced, until at length this ceremony, awful in itself, was held in as little respect as the cantalena of an old song. Subsequently, however, in these cases this ceremony had been dispensed with; and though a still more solemn act was adopted in its stead, namely, that to which he had already adverted, of entering upon parchment the record of the prisoner's sentence, a process which, until it became understood, bore with it every feature of terror to the prisoner and his unhappy friends, who were often for weeks in a state of painful apprehension on the subject. He merely made these observations for the purpose of impressing upon their Lordships the necessity for adopting a system of greater simplicity in the processes of our courts in criminal cases. In the Bills now before the House he should show that in all cases not only had the punishment of transportation been apportioned, but a power was also given to the judges of imprisoning the offender sometimes for as long a period as five years; so that while a more merciful code of legislation was adopted by them, ample care was taken to protect the property and lives of her Majesty's subjects, and to deter and punish offenders. He must be permitted to observe in conclusion, that it appeared to him extremely important that these Bills should be passed in the present Session. Never was there a Sovereign, perhaps, more inclined to the lenient execution of the laws against offenders than his late Majesty, under whose reign these Bills were first introduced; a Monarch who, as he never bore in mind the recollection of a personal offence against himself individually, was at all times most anxious when a person came before him as a convict to extend to him the most merciful consideration his case would admit of. Such being the character of the Sovereign they had just lost,
1778
he thought it would be a most auspicious opening of the reign of his successor to pass a series of measures like the present, the object of which was, to render the criminal laws of this country at once as simple and as lenient as possible.
Lord Wynforddid not rise for the purpose of objecting to these Bills; the fact was, he really had had hardly time to look them over, as they were only delivered out yesterday, and he had had them but a few hours in his possession. Far was it from his wish to dispute the testimony of the judges of the land, which the noble and learned Lord opposite had adduced in favour of these measures; but he must be allowed to confess his sorrow that their Lordships had not had an opportunity afforded them of determining whether the opinion of the learned judges on this important subject was a correct one or not. The fact was, these Bills had been in the other House of Parliament several months, and they were now brought up to their Lordships at a period when it was morally and physically impossible for them to do them justice. If it was intended to propound to the country that this House had become of no more use than to pass all the laws which might be sent up to it from the House of Commons, he could conceive no better way of encouraging such a notion than proceedings like the present. Here were seven important Bills just brought before them, altering the whole criminal law of the country, which had been the growth of centuries. Why, if every moment remaining of the Session were devoted to them, it would be impossible to do them justice. He certainly agreed in the general principles of many of these Bills; he wished, if it were possible, to see established a more lenient code of laws in respect to criminal offences. In cases of robbery, for instance, he thought it extremely important that a milder punishment should be inflicted than death, which was the utmost that could be inflicted, if the more horrible crime of murder were added to the theft. In the great crime of arson, however, he could not agree in the expediency of relaxing the punishment now affixed to it. He should be glad to do so if he could, but he really thought that a man meditating such an atrocious and cowardly act as that of destroying the produce of the soil, so important to the sustenance of man, at a distance, perhaps, from all

1779
human habitation and protection, would be deterred by no slighter punishment than death. He had only to repeat, that he should be perfectly ready at a more favourable time to enter upon the important details of this subject, but he felt that at the present period it would be impossible to do it justice.
The Duke of Richmondsaid, that if he thought agricultural produce would be endangered by removing from it the punishment of death, he should be the last person to vote for the Bill, to which the noble and learned Lord objected. But he felt convinced that there were few persons at all acquainted with the subject who were not aware of the very great difficulty which under the present state of the law existed in getting juries to convict. Therefore, the altering of the law would rather tend to increase than diminish the security of property from this offence, a certain punishment being substituted for an uncertain one. There were, he must say, some points upon which he wished these Bills had gone a step further. He thought, for instance, that in the grave offence of rape the law should be put upon a more certain and efficacious footing, it being notorious that while the offence itself if completed was capital, the mere fact of it not being perfectly accomplished, perhaps through some accidental circumstance, reduced the offence, where the intent was still the same, to a mere assault, with intent, &c., for which the judges could only inflict imprisonment, and that without hard labour. He thought amongst other things that it would be found a very great practical advantage if these Bills had provided before whom certain offences should be tried, and that this matter should not be left so much to the option and discretion of magistrates, who in many parts of the country were accustomed to send prisoners either to quarter sessions, or the assizes, as they thought proper, or some to the nearest gaol, others to that which they thought would be first delivered.
Lord Lyndhurstwas sure that the House would not fail justly to appreciate the able, perspicuous, and eloquent manner in which his noble and learned Friend, the Chief Justice, had brought these Bills under their consideration. He should, in the first place, remark, that one of the alterations which it was intended to effect by means of these measures, and which
1780
did not meet with the concurrence of his noble and learned Friend near him (Lord Wynford), appeared to him a decided improvement—he alluded to the punishment which the law inflicted upon persons guilty of the crime of arson. When he filled the office of Chief Baron he had tried several persons for that crime, and he found that in almost all instances the case for the prosecution depended upon circumstantial evidence. To any person having experience in criminal courts he need hardly observe, that few things are more difficult than to lead the minds of a jury to bring in a verdict of guilty where they must draw their conclusions from a variety of minute facts; upon that ground, and likewise upon grounds distinct from it, he should certainly support the alteration which related to arson. Looking upon the whole of those Bills as one measure, and fully concurring, as he did, in their principle, he should vote for the second reading. In the course of the last few years they had had much experience in the administration of the criminal law, and he felt perfectly satisfied that the results of that experience must lead to the conclusion that severity of punishment did not repress crimes, and that the most effectual mode of repressing them was to combine moderate punishments with a steady and strict administration of the law. Although perfectly willing to assent to the principle of the Bills, he could not help objecting to them on the ground of their being so numerous, for he saw no reason why the whole of these enactments should not be consolidated into one or two Bills, instead of being spread over eight or nine. It was not thus that Sir Robert Peel proceeded with the work of reform in our criminal law; the course which he adopted was exactly the opposite of that pursued by the promoters of these Bills. That right hon. Baronet, in the changes which he introduced, comprehended the laws relating to larceny, to a variety of offences against the person; he might add, that those changes extended to the whole body of our criminal law, and that they had been successful; they had met with the full approbation of the profession, and they had been attended with the best effects; yet those amendments were not, like the present, spread over eight or nine Bills, but on the contrary, were measures of consolidation. That concise and com-

1781
pact mode of legislation, however, did not appear to accord with the opinions of the authors and promoters of the Bills then on their Lordships' table. No doubt eight or nine measures were calculated to make a greater impression upon the minds of that portion of the public who were not in the habit of paying much attention to subjects of that nature; at the same time he did not by any means intend to insinuate that a motive of that description could influence the individuals who introduced those Bills in the other House of Parliament, for they were too respectable to warrant such a supposition; but he begged permission to repeat his opinion that it would have been much better had they been consolidated and reduced to one or two bills. As to the course followed by his noble and learned Friend the Chief Justice, it certainly was the right course; he was perfectly right in considering all the bills together, for it was necessary that they should be all read together. When they came, however, to be examined, he did not hesitate to say, that they would be found to have been framed without that caution, consideration and minute attention which matters of so much importance required. In order to show their Lordships the manner in which bills of that sort were allowed to pass through the House of Commons, he would call their attention to the enactment relative to stealing in a dwelling-house above the value of 5l. A person guilty of that offence was subjected to punishment by transportation for a term under fifteen-years, or five years' imprisonment, but the man who broke and entered a dwelling-house and stole from it was liable to a minimum punishment of seven years' transportation, or four years' imprisonment thus making it a less offence to break and enter and commit violence, and steal from a dwelling-house, than simply to steal without breaking or violent entry. Again, burglary which was a breaking and entering by night—what was the punishment? The punishment was fifteen years' transportation, or imprisonment for four years; but breaking or entering in the daytime was made punishable with transportation for life. So that, according to one of these Bills, it was a greater offence to break and enter into a dwelling-house by day than by night, and it was esteemed a less offence to break in by day or by night than to steal to the value of 5l. This, then,
1782
was the way in which they had been treated by the other House of Parliament. After having had those Bills three months under consideration, they were sent up to their Lordships on the 29th of June with all these imperfections and blemishes, and only a few days allowed to them for their consideration. He begged to call the attention of their Lordships to other instances of difference of punishment. There was an actual increase of punishment, though the crime itself was of a less serious nature than that in which the punishment was lessened. For instance, breaking and entering and stealing in a building, not being part of a dwelling-house, but within the cartilage, was by the 7th and 8th Geo. 4th., c. 29, s. 14, made punishable by transportation for life, or seven years, or imprisonment for four years; but breaking and entering where the building formed part of the dwelling-house, and was within the cartilage, was not punishable by transportation for life, but only for fifteen years. But this was not all. Breaking and entering into a shop or warehouse, which was always considered a less offence than burglary, was made transportable for life, whereas burglary itself was only for fifteen years. Burglary, therefore, was by one of these new Bills considered a less offence than breaking into a building not being part of a dwelling-house, or into a shop or warehouse. But their Lordships were aware that burglary had always been looked upon by the law of England as one of the most serious offences. Of that crime Lord Hale said, "I come to those crimes that specially concern the habitation of a man, to which the laws of this kingdom have a special respect, because every man by the law hath a special protection in reference to his house and dwelling." And in a note to this passage he said, "That this was the notion among the Romans also appears from Cicero, in Oratione pro Domo, cap. 41,—'Quid enim sanctius, quid omni religione munitius, quam domus uniusque civium? Hic aræ sunt, hic foci, hoc perfugium est ita sanctum omnibus, ut inde abripi neminem fas sit.' Cicero reckons 'irruptio in domum' among the 'scelera inexpiabilia.'" And Mr. Justice Blackstone observed, on the same offence,—"Burglary, or nocturnal housebreaking, has always been looked upon as a very heinous offence not only because of the abundant terrors that it naturally carries with it, but also as it is a forcible invasion

1783
and disturbance of that right of habitation which every individual might acquire even in a state of nature." And again, "If any person attempts to break open a house in the night-time, and shall be killed in such an attempt, the slayer shall be acquitted and discharged." The framers of these Bills, however, seemed to have a very different notion of the crime of burglary. Such were the effects of having these Bills considered separately, and not consolidated into one comprehensive measure. Again, stealing a lamb was made an offence for which the party might be transported for life, or for fifteen years, and yet the very same punishment was awarded for shooting at, or maiming, or even dangerously wounding, an officer of the army or navy on full pay (for those were the words of the act), or officer of the customs duly employed for the prevention of smuggling. There were objections which he felt it his duty to point out to their Lordships: but they were only a few of several classes of objections which he could mention. At the same time, he thought that the Bills ought to be allowed to proceed, and that they would be useful when freed from some of their present imperfections and inconsistencies. There were, however, other alterations which it would be useful to make in these bills. He would mention one—that of parties refusing to disperse within one hour after the Riot Act had been read being liable to the punishment of death. That was a punishment which he thought should not be applied to that offence. In this opinion he was confirmed by that of a writer who had published many valuable works in prose and in verse—works from which, no doubt, the world had already derived great benefit. From one of those works only would he make any quotation. It was a work of simple prose, but was so full of imagination as to its arguments and conclusions as to justify the remark of Horace—
—"pictoribus atque poetis,
Quidlibet audendi semper fuit aequa potestas,"
In that work which their Lordships might see at Mr. Murray's in Albemarle street, he found the Riot Act thus spoken of:—"The Riot Act (for so this law was named) is to be blamed solely for the severity of the penalty attached to an offence which, according to circumstances, might be a very grave or a very slight one. In principle, there is no sound objection to be
1784
made to this statute." And in the next page the writer added—"In order to make it perfect, however, it would be requisite—1st, that the penalty should be less severe; 2nd, that a provision should be inserted for making the proclamation in a loud voice, and, if possible, in several parts of the crowd, so that it might be well heard and understood; 3rd, that in order to protect the people, it should be enacted that unless when some breach of the peace is committed, the crowd should not be dispersed by force within the time mentioned by the proclamation, nor any person arrested within that time for the sole offence of being present at such meeting." The act was most important, and, considering who was the author of the work in question, and who was the author of these Bills, he owned he did expect that the remaining for an hour after that act was read would have had a different punishment proposed for it. He could not have thought that the new act would have continued the punishment of death for such an offence. Then again, there were punishments for new offences, while there were other offences for which the punishment was altogether removed—for instance, attempting to prevent persons escaping from a wreck with a view to robbery. Why was the punishment taken away in that instance? There was next the case of administering poisonous or other drugs for the purpose of procuring abortion. According to the Bill, as it now lay on their Lordships' table, it must be proved, to constitute the offence, that the woman was actually pregnant at the time; but surely it would be admitted, that if the man thought she was with child, and administered the drugs with the view to procure abortion, the moral guilt of the offence was the same. He did not, however, believe that this change was intentionally made. It occurred per incuriam. He had felt it necessary to call the attention of their Lordships to these matters because they made it expedient that the measures should receive a more minute consideration than would have been required had greater care been bestowed upon them elsewhere. Another object of some of these Bills related to secondary punishments. With respect to transportation, he did not think it a bad secondary punishment, but he differed widely from the framer of those Bills as to the five years of solitary imprisonment. That was a punishment

1785
which he thought should never be imposed. On this subject he would read to their Lordships an extract from a work of Archbishop Whately on secondary punishments. Speaking of solitary imprisonment, the most rev. Prelate said:—
"It appears, that before the adoption of the present system at Auburn, an experiment was tried at that prison of the effect of perpetual solitude upon eighty prisoners, during a period of ten months. The result was decidedly unfavourable to the adoption of the plan, and it was accordingly abandoned. The punishment was found, in many cases, to injure the health, to impair the reason, to endanger life, to leave the prisoner enfeebled and unable to work on quitting confinement, and as ignorant of any useful occupation as when he entered it. Reformation did not follow, and consequently recommitments were more frequent. This testimony is corroborated by the opinions of the governors of several of the best regulated prisons in England, whom the Committee have consulted on this important subject. They unite in stating their conviction that solitary confinement is a punishment to be used with extreme caution; that the health of every individual must be regularly watched: that serious effects would have resulted from its adoption in their own experience had they not been prevented by the timely removal of the prisoner into society, and that it would not be wise to render general a discipline, the administration of which requires unceasing vigilance, and the abuse of which may be so fatal to the mind as well as health of the prisoner. Much of the benefit ascribed to solitary confinement may be derived from allowing the prisoners to labour in classes, agreeably to the course pursued at Auburn, but restricting them to the most rigid observance of silence. Great importance is justly attached in these penitentiaries to the effect of religious impressions in a state of solitude; and, doubtless, the arrangements for impairing such have been carefully made,"
In these remarks he most fully concurred, but with all his objections to parts of these Bills, he agreed that they should be allowed to go to Committees, where he hoped that, even at this advanced period of the Session, time might be allowed for curing some of their defects.
Lord Broughamagreed, in part, with both his noble and learned Friends who had spoken, and he thought that great praise was due to his noble and learned Friend, the Lord Chief Justice, for the able manner in which he had introduced this important subject. He wished he could so entirely approve of the manner in which, and the time at which, these Bills were brought before their Lordships.
1786
He was constrained to admit that, after the other House had had those measures of this great importance and of considerable difficulty so many months, it was expecting too much that their Lordships should, in as many days, expedite and pass those measures. This he was bound in fairness to state. He hoped, however, with his noble and learned Friend opposite (Lord Lyndhurst) that if it were possible to pass these Bills this Session, their Lordships would consider that they were satisfactorily discharging their duty in passing them. His noble and learned Friend had pointed out a great number of inconsistencies, and some of them very glaring ones, in these Bills; but if he rightly comprehended his noble and learned Friend's statements, he (Lord Lyndhurst) did not contemplate so much the provisions of the Bills themselves, as the changes which they introduced into the criminal laws compared with the acts which remained unaltered. By that comparison real absurdities were proved, owing to the introduction of these measures partially, and not waiting till a final scheme was matured for the consideration of Parliament. He entirely agreed with his noble and learned Friend behind him (Lord Denman) in what he had said of those persons from whom the Bills in reality proceeded—he meant the Criminal-law Commissioners. He thought it but fair to those learned gentlemen, that he should state what their opinions were on this subject, from which it would be seen that they had entirely anticipated the objections of his noble and learned Friend (Lord Lyndhurst). The noble and learned Lord here read an extract from the Report of the Criminal-law Commissioners, in which they stated, as their opinion, that any partial alteration in the law would inevitably produce great inconvenience, and that the only effectual remedy consisted in an entire revision and re-construction of the whole fabric of the criminal law. Those learned gentlemen expected that early in November next their final Report and digest of the law would be ready, so that if the Commons had waited a little longer they might have avoided those anomalies and inconsistencies to which the noble and learned Lord had adverted. It was but equally fair towards his noble Friend the Secretary of State for the Home Department (Lord John Russell), to say that he had no idea

1787
of any such motive, such a puny motive, influencing his noble Friend as that which had been imputed to him. He would not say imputed, for his noble and learned Friend stated that he did not intend to impute anything of the kind; the tendency, however, of his noble and learned Friend's (Lord Lyndhurst) observations was to charge his noble Friend (Lord John Russell) with introducing these Bills for the express purpose of gaining a paltry temporary popularity, with a view of making a show of improving a criminal law, of appearing to do a great deal, when in fact he was doing little or nothing, and of propounding eight or nine Bills when one would have been sufficient. He believed that the real fact was, as was stated by his noble and learned Friend (Lord Denman), that it was deemed more convenient to keep these Bills separate, in order that the opinion of Parliament might be separately directed to them, and that it was supposed this would be an advantage. He confessed that though he thought those changes were very properly introduced, his opinion was, that there was no very great amendment or improvement of the law. It had always been a great object to make the practice under the law tally with the letter of the law, to get rid of that opprobrium which consisted in punishments being pronounced which were never intended to be inflicted. With a single exception, he did not perceive that by those Bills it was likely that any execution less would take place than took place under the old law, as it had of late years been administered. The law was understood to be mitigated in its practice, but the truth was that the practice of the law at present was so different from its letter that there would be practically the same degree of severity after these acts had passed that existed at present. It was well known that no judge on the bench would leave persons for execution for offences in respect of which the capital part of the punishment was intended to be taken away by these Bills. He might be asked how much further he would go than these Bills went? He was of opinion that capital punishment might be still further diminished; and not only in those instances in which it was the manifest intention by future bills to take it away, as rioting for instance, but also in other cases, in which it was the evident intention
1788
of the criminal-law Commissioners to propose its abolition. He was disposed to go further than any proposal he had seen in those Bills, or in the correspondence of the Commissioners, having, from long consideration, and some experience in the administration of the criminal laws when he had the honour of serving his late Majesty, also from much communication with persons of experience in the administration of the criminal laws, and with individuals who, though not immediately concerned in the administration, had, nevertheless, great practical knowledge of their working—from all these sources he had derived an opinion, which was strengthened every day, that capital punishment altogether failed, and was from its very nature calculated to fail, in producing the effect which it was desirable should flow from it, and for which, or rather for its tendency to produce which, it was alone justified. With respect to the punishment of death for murder, these Bills did not interfere with it; it was a question which had often been mooted, and as in the present discussion he was not called upon for an opinion upon this particular case he was willing to pass it over. He was strongly inclined to question the propriety of inflicting the punishment of death at all, as he thought its infliction had a tendency to brutalise those who witnessed it. It had a tendency to prepare those who witnessed it for the Commission of the very offences to prevent which it was pronounced necessary, or at least desirable; and in his opinion the infliction of this extreme punishment had a direct tendency to encourage the perpetration of offences, and even of the crime of murder itself. This being his opinion, he should rejoice greatly if he found, in their further recommendations on this subject, that the learned Commissioners went to a considerably greater extent than they had hitherto gone, as certainly it was not justifiable to say that it was intended by these Bills to pronounce any final opinion as to the extent they ought to go. When the Commissioners made their final Report and digest of the criminal laws, he hoped that they would recommend a considerably larger reduction of the present amount of capital punishment than was proposed by these Bills. They must take great care lest, in making the practice and the letter of the law conformable to each other, they should thereby increase the amount of ca-

1789
pital punishment. The object in view seemed to be to render the sentence pronounced and the punishment one and the same thing; and it appeared to be understood that punishment once pronounced should invariably be carried into execution. He believed and hoped that his noble and learned Friend (Lord Denman) meant no such thing, as he thought that he would not be discharging his duty to his own conscience, to their Lordships, to the country, and above all to the administrators of justice themselves, if he did not place before their eyes this as a possible contingency of a partial mitigation of the criminal laws, a contingency which he would most strenuously contend against. When he stated so strong an opinion against capital punishment, he wished to guard himself against being supposed to ground his opinion upon anything founded either on a religious or an ethical principle as to the unlawfulness of inflicting capital punishment; his opinion was grounded upon its utter inexpediency and upon its tendency to defeat its own object. With respect to the efficacy of punishments generally, he had upon former occasions stated that they were generally unsatisfactory. The idea of abolishing all punishments he was not frantic enough to think of. As long as man existed he must have a penal visitation for offences. But the example of the punishment of one offender would not deter those who witnessed it, or who heard of it, from the commission of those same offences; it was a proposition which they all wished to be true, but experience had shown its falsehood. But there was another mode of prevention much more effectual—he meant a paternal Government superintending the education of the people, the encouragement of good habits, and above all the spread of infant schools, where right habits might be formed—where good feeling might be cultivated—and where, if they were as universal as they ought to be in this country, as universal as the public had a right to demand, as universal as it was the bounden, paramount, he might say imperative and sacred duty of the Government and the Legislature of the country to make them, and to spread them all over the community, it was his firm belief, founded upon every hour's experience and observation, by every day's and every night's reflection fortified and rooted still deeper in his mind, that they might look
1790
with confidence towards effectually and wisely mitigating the criminal code; and that the final result would be a great, a sensible, and a rapid diminution of all offences amongst all classes of her Majesty's subjects.
Lord Denmanwas agreeably surprised to find that his noble and learned Friends on both sides of the House were so much inclined to support these Bills. He hoped that he should have the assistance of both his noble and learned Friends in making these measures as perfect and unobjectionable as possible.
The Bills were severally read a second time.