Sitting of 23 March 1837

MINUTES.
Bills. Read a second time:—Dublin Police.
Petitions presented. By the LORD ADVOCATE, from Mussel-burgh, for Small Debts (Scotland) Bill; and for Repeal of Duty on Fire Insurances.—By Mr. DIVETT, from Exeter, for Repeal of Duty on Fire Insurances.—By Mr. TEASE, from Whitby, for establishing a Fund for the Relief of Widows of Officers of Excise.—By Mr. ROBERT FERGUS-SON, from fife, for suspending the Act of Sederunt.—By Mr. STANDISH BARRY, from Kanturk, for Abolition of Tithes (Ireland); for Vote by Ballot; and for Municipal Corporations (Ireland) Bill.—By Mr. HUME, from Ilfracombe, for Relieving the Proprietors of the Shipping Gazette, for the Postage of Letters containing only Commercial Intelligence.—By Sir R. VYVYAN, from Bristol, for better regulation of Bristol Court of Conscience.—By Lord Viscount MORPETH, from the University of Dublin, for conferring the Right of Voting for Members for the University, on those who have or who may in future obtain Moderatorships in the University of Dublin.—By Mr. HINDLEY and Mr. ARTHUR TREVOR, from various places, for Exemption from the Operation of Poor-law Act.—By Mr. ARTHUR TREVOR, from Paulsferry, for separating that Parish from the Pollsbury and Stoney Stratford Union, and adding to the Towcester Union.—By Mr. GRANVILLE, against the Abolition; and by Mr. HINDLEY and other Hon. MEMBERS, from various places, for the Abolition of Church-rates.—By Sir R. VYVYAN and other Hon. MEM-
708
BERS, from various places, against the proposed Measure.—By Mr. WARBURTON and Mr. WILKS, from various places, for the proposed Measure for the Abolition of Church-rates.

TURNPIKE TRUSTS (SCOTLAND).
Mr. Maxwell, on moving for a return of the debts on the Scotch Turnpike Trusts, for which the trustees are personally liable, observed, that many of the roads in Scotland were of very recent formation, and made at great expense by reason of the hills, morasses, and ravines, which intersected that country. The tolls upon them were consequently very high, and the only means by which The pressure of these tolls was alleviated were to be found in the low rate of interest which was paid to the creditors upon them, owing to the collateral security of trustees, some of the most public spirited of whom were personally bound for the debts. The railway projected through the counties for which his notice for returns was given, had caused great apprehension that the creditors might call up the monies they had lent; or at all events demand five per cent. instead of three and a half, for interest upon their bonds. The trustees would be obliged in such cases to cease from paying off' debt, and might be compelled to diminish the expense necessary for keeping the roads in the highest possible perfection, and to exact the highest possible rate of toll. The returns would show debt annually diminishing; money bonds chargeable with the lowest rate of interest; conveyances of the greatest weight carried through hilly districts with a very small horse power, by the smooth surface and level line of road formed by this system of personal liability, so creditable to the public-spirited persons who had come forward to establish these eligible lines of road for the public benefit. These trustees could not borrow at a higher rate of interest than five per cent., and could reap no profit whatever by such tolls on the traveller; whereas railway companies might gain twenty or thirty per cent. on travelling by their mode of conveyance; and might subject travellers on all public highways through which they passed to higher tolls or worse roads, and whose most valuable traffic, viz., passengers, they would carry away, to a decadence which would never be compensated to any but thoroughgoing travellers on one solitary line of communication. The hardship upon trustees whose lands were taken, and assignees whose securities were de-

709
predated, appeared to him deserving of such consideration as they sought, not only on private, but public grounds; and he had accordingly brought their peculiar case under the notice of English Members who were not exposed to their peculiar difficulties by the English system of roads.
Returns ordered.

CRIMINAL LAW.
Lord John Russell: Sir, in rising to move for leave to bring in a Bill to abolish the punishment of death in cases of forgery, which it is my intention to follow up by moving for leave to bring in several other Bills respecting the criminal law of this country, I think it due to the House and to the country to state the motives which induce the Government to bring forward this subject at this time. In the present state of public business, when there are so many measures already before the House, each of which requires much consideration, I should have been most willing, if I could have done so consistently with my public duty, to postpone the measures for improving the criminal law until a more convenient season. The course I am now taking is the result of the appointment of a commission on the criminal law, some years ago. It was the intention, in the appointment of that commission, that they should consider, first the propriety of revising the whole of the unwritten criminal law on the one side, and of revising the whole of the written criminal law on the other; and, finally, they were to consider the expediency of consolidating the whole. The Commissioners went through many laborious investigations of the subject, more especially of the unwritten law, regarding thefts. One of those investigations was exceedingly valuable, as showing the various decisions of the common law with respect to thefts. It soon appeared, however, that, to make a digest of the whole of the unwritten law, and also to make a digest of the whole of the written law, could hardly be done without, at the same time, endeavouring to bring them into a more regular and methodical shape. That question led to others, most difficult and intricate. Seeing the time which must necessarily elapse—seeing the great importance and the great intricacies of the questions thus raised, and which had changed the whole body of the criminal law, as it originally prevailed, and as it
710
had of late been interpreted—the Commissioners had their attention directed to the present state of the criminal law, with a view to its reform, and the consequence of their attention being so directed was, that a report was presented to Parliament in the course of last Session, in which the Commissioners stated that, in their opinion, there were many offences now capital from which capital punishment ought to be removed, and that capital punishment ought to be limited to a small number of offences. With that opinion before me, it seemed essential not to go on for another year without bringing under the consideration of Parliament such amendments as could be made for the present, without waiting for the total reform and digest of the whole unwritten and written law. This opinion on the part of Government has been very much strengthened by a consideration of the present state of the execution of the criminal law in respect to certain offences. It was the opinion of Dr. Paley, and which, for a certain time, prevailed generally, that it was expedient to draw into the criminal net, as the law was called by him, a great number of offenders, and then to select a few upon whom it would be proper to inflict punishment. But the impolicy—and injustice, I might likewise say—of that mode of proceeding, was, I consider, fully demonstrated by Sir Samuel Romilly, when he undertook, to his immortal credit, and the great advantage of the country, to bring before Parliament the question relative to the improvement and reform of the criminal law. Without dwelling very long upon opinions which, I believe, are not now very generally entertained, I will proceed to state to the House one or two reasons why, the course advocated by Paley, is most inexpedient and likewise unjust. No one now doubts that it is the object of criminal punishment, not to satisfy the purposes of divine justice, nor to inflict human vengeance, but to deter from the commission of crime. But this purpose is not at all answered when you say that, out of a very great proportion of offenders, only certain victims shall be chosen on whom to execute the criminal law, without defining the aggravated circumstances in their cases which shall subject them to its operation. In almost every case where the extension of mercy is applied for on behalf of criminals, there are certain circumstances

711
stated, which naturally suggest themselves to the mind of every non-professional as well as every professional man, as grounds upon which that mercy should be extended: as, for instance, where offenders are drawn accidentally into the commission of crime, where persons have had a good character before, where they have not been guilty of any offence before, where they have been misled by others, or where there is reason to suppose that they have not been the most guilty in the commission of the offence. There are various other grounds of mercy which occur to every person, the most simple as well as the most learned. If we were to say, that we would not extend mercy to a certain number of cases to which the penalty of death was affixed by the law, but that we would choose, out of a very great number of offences, those of an aggravated nature, on which to inflict capital punishment, it would not be known, and it could not be known, either to the persons committing the offences, or to the country in general, what those features of aggravation were, the knowledge of which alone can be of use in deterring persons from such crimes. I will now give a few instances, in order to show the great disproportion between the number of persons sentenced to death under the present laws and the number executed. In 1835, the whole number condemned was 523; but the number executed was only 34. In 1836, the number of persons condemned to death was 494; while the number executed was only 17. With respect to certain offences, the punishments which have taken place are in great disproportion to the convictions. With respect to murder, for instance, twenty-five persons were convicted in 1835. One of these was pardoned in consequence, if I recollect rightly, of some informality in the indictment; three were transported; and twenty-one out of the twenty-five were executed. But with respect to burglaries, 193 were convicted and sentenced to death, but only one was executed. With respect to the crime of shooting with intent to murder or maim, sixty were convicted, and only two were executed; and as to cases of robbery 202 were convicted, and no person executed. With respect to burglary, it appears from the returns that, since 1832, there have been three persons executed for offences of that nature. In 1833, one was executed; in 1835, one; and in 1836, one. Now, I
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submit that the great disproportion between the number of convictions and of executions in these cases is open to strong objection, and I instance the case of burglary as showing that a beneficial effect on the public mind does not result from the present state of things. Besides that, it places in a very painful situation the judges of the land, and the Secretary of State, who are obliged to administer a law which generally is not carried into effect, except in some few cases where it becomes expedient to enforce it, even to inflicting the extreme penalty of death. One of the cases to which I have referred was brought before the King in council; and it appeared from the circumstances, as detailed at the trial, that the accused was a professed housebreaker; that he was a sort of master in the art, who taught younger thieves the science of burglary; and a quantity of tools and instruments were found in his possession calculated to effect an entry into houses: in fact, it appeared that he kept a school or academy for teaching burglary. The second person executed was not exactly similarly situated: it appeared that he had committed burglaries on three consecutive nights, and in one case in the house in which he had been before employed as servant. The third offender who was executed, was a man who was engaged in the Chip-stead burglary (which I dare say will be recollected by many Gentlemen), where a gang broke into a house armed with weapons, and being resisted they attempted to force their way, but were repulsed; they returned, however, and in the course of their breaking in inflicted blows of a severe nature on the inmates of the house. Now, the circumstances of these three cases are widely different; and I would defy any man to say that it could have been beforehand the intention of the law, as regarded any one of these cases, that its peculiar circumstances could be taken as forming a ground for the infliction of capital punishment. When the judges think that the crime is so aggravated by the circumstances by which it is accompanied that it should be visited with capital punishment, no doubt they make the best use of their discretion, and in such cases the Secretary of State would not be justified in interposing, for he could not find sufficient grounds for the extension of mercy. But at the same time, in respect both to the judges and the Secretary of

713
State, men's opinions do sometimes differ as to the circumstances which call for capital punishment, and therefore it is exceedingly difficult to determine the punishment which should be inflicted in cases of burglary; for the crime is of such a nature, and the circumstances connected with it are frequently so varied, that amongst the many persons found guilty of burglary some have been ordered for six months' imprisonment; and in cases tried by the Central Criminal Court some were sent to prison for twelve months, some for six months, and some only for three. This is the first objection that is made to the present state of the law: its extreme uncertainty of infliction, and the extreme uncertainty and difficulty, or I might put it—the impossibility, of saying by the mere authority of the judges what are the circumstances of aggravation which should make this crime a capital offence. But there is another objection to capital punishment so inflicted—that it is not in such cases calculated to inspire in offenders the dread which would render it salutary as an example. Where so much uncertainty exists in its infliction, an offender has the natural hope, which all men in that situation must have, that capital punishment will not reach him. He always thinks that he will be equally lucky with those who have gone before him in crime; and nothing can teach him to apprehend that while 290 persons necessarily escape capital punishment, and the 291st is executed, he may be that 291st who is doomed to suffer the extreme penalty of the law. It is the natural hope in every man's bosom that he will escape the worst; and it was a remark made by Bacon, with all his characteristic truth, "that death, itself, for many hath no terrors." He said, that it was worthy of observation, that no passion in the mind of man was so weak but that it was able to make its possessor master over the fear of death. Death itself, for many, had no terrors; the passions of revenge, honour, love, despair, triumphed over and despised it,—all operated to blunt the apprehensions of death; and with the timid, even, death lost much of its influence on the mind, fear pre-occupied it. If that be true, and if there are so many passions that overcome the apprehension of death, how easily may it be overcome when the apprehension of it is so distant that there seems scarcely a chance that the prisoner will be the one selected upon whom to in-
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flict the utmost severity of the law? This is the ground on which, with respect to this and several similar offences, I desired the Criminal Law Commissioners to give me an opinion whether there might not be some definition suggested by which the punishment of death should be reserved to a smaller class of offences. In so doing I did not ask, and I did not expect, that they should form any definition which would comprehend only those upon whom the punishment was ultimately to be inflicted. It would not be possible so to frame any law as to say that that law ought to be firmly and inflexibly adhered to; but I think that the law might be so far defined that it could be said, generally, that persons who committed such and such an offence made themselves liable to capital punishment; and that it would be a question for the discretion of the judge, and afterwards for the Secretary of State, to consider whether or not there were circumstances which fully entitled the culprit to a merciful consideration. We ought to consider the subject with reference to what has been done of late years regarding the abolition of capital punishment; and if we find that, undoubtedly, the diminution of capital punishment has unfortunately led to the increase of crime, then I think we ought to pause before we make any more alterations. I have before me several returns respecting the number of crimes committed before and since the passing of the Act abolishing capital punishments in certain cases; and though these may not warrant us in coming to any conclusion as to the decrease of crime, certainly they do not support the argument that, by taking away capital punishment, crime has increased, I will take the best instance to prove this—namely, forgery—because that was an offence formerly punished capitally, and, with two exceptions, now punished only with transportation. It will be in the recollection of many Members of the House, that an attempt was made many years ago to abolish the punishment of death for forgery; and I think a Bill to that effect was read a third time; but Lord Castlereagh said he would take the sense of the House on the motion that the Bill do pass, and on a division the Bill was lost. A similar Bill passed the Commons in 1830; but Lord Lyndhurst, in a speech of great ability and knowledge, stated the objections he had to it in certain cases, particularly forgeries on stock and checks.

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On that occasion—the 1st of July, 1830—Lord Lyndhurst said:—
"From returns which he had seen, and the accuracy of which there could be no reason to doubt, it appears that the transactions of twenty bankers in bills and checks, in three days of the last month, amounted to no less a sum than 9,000,000 l. sterling. The trans-actions of four banking-houses in the same way, in the course of one year, amounted to not less than 500,000,000 l.; and the transactions of twenty other houses, within the same time, were not less than 1,000,000,000 l., a sum greater than the amount of the national debt.*"
That was argued by Lord Lyndhurst in the House of Lords; and the argument that they ought not to put in jeopardy so great an amount of property, and thereby shake the public faith in commercial transactions, had the desired effect, and on a division Lord Lansdowne, who brought in the Bill, had only twenty-two peers to vote with him, while there were seventy against him. Again, Lord Denman, when Attorney-General, brought in a Bill relative to the abolition of capital punishment, and it passed, with the exception of an alteration made in the Lords, by which forgeries on powers of attorney and wills were excluded from its operation. In order to see the effects produced by that Bill, I have taken the average of three years before the passing of the Bill and three years after. The number of persons committed in the three years previous to 1833 was 155, and the three following years it amounted to 210. In the first instance only fifty-eight per cent. were convicted, and in the latter period the number convicted was seventy-one per cent. In the former, the proportion of persons acquitted was twenty-eight four-tenths, and in the latter it was twenty-one four-tenths. From this it appears there is no great increase of the number of offences, while the number of convictions is materially increased, and the reason for the increase of the commitments may be attributed to the diminution of the reluctance to prosecute when the offence was capital. The following is the number of commitments since the passing of the Bill, distinguishing those forgeries which are not capital and those which are capital:—
"A Comparison of the Forgeries committed still Capital with those that are no longer so.
"The Act abolishing the punishment of
* Hansard, New Series, Vol. xxv. p. 843.
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death in certain cases of forgery was passed in August, 1832. The only exception made in the Act was relating to the forgery of wills, and powers of attorney for the transfer of stock, or receipt of dividends.

"1833.

The capital cases not separately distinguished

1834.

Commitments for forgery, not capital

58

——

Capital (forging a will)

1

1835.

Commitments for forgery, not capital

63

——

Capital (forging a will)

1

1836.

Commitments for forgery, not capital

54

——

Capital (forging a power of attorney for the transfer of stock)

1

And in the course of last year I received a letter from a solicitor, stating the following results:—
"Particulars respecting the Increase or Decrease of Forgery, drawn from the letters of the Solicitor to the Society for Prosecuting Forgery.
"The Report states the number of forgeries committed on the twenty-four firms, which are members of the London Bankers' Association, from the commencement of 1832 to March 1835.
"From January to August, 1832, when the capital punishment was abolished, seven forged cheques were issued.
"From August, 1832, to August, 1833, forty-eight forged cheques and bills of exchange were issued; eighteen of which were traced to be the work of one forger.
"From August, 1833, to March 1835, twenty-five forged cheques and bills of exchange were issued.
"In the first period the number of forgeries averaged less than one per month; in the second four per month, or, exclusive of the eighteen forgeries committed by one person, 2½ per month. But in the last period they have averaged 1¾ only."
Now, when we consider the awful infliction of capital punishment that used to take place for forgery, it is consolatory to think that that capital punishment can be done away, without increasing the number of offences, and, at the same time, increasing the security of the bankers and persons engaged in trade and commerce. I should state, that a case came before Lord Denman, where a man was tried for the capital offence of forging a power of attorney; that person forfeited his life; and, before the matter came before his Majesty in Council, I received a communication, in the name of a considerable body of the bankers of London, stating their objections to capital punishment; and also a letter

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from the Governor of the Bank of England, who said that, though the bank directors did not consider it their duty to interfere, they had no wish to press the capital punishment. This is a proof that we may safely proceed in mitigating the punishment; and that the two exceptions, as to forging wills and powers of attorney, may be done away with. With respect to the other offences, I will read to the House the number of commitments, and the proportion of the acquittals to the convictions; and when it is considered that the change of the law has not had the effect that some persons anticipated,—that there has been no great increase of crime, and that the time has gone by when one out of 100 or

OFFENCES.

Total of 3 years preceding.

Total of 3 years following.

Number Committed

Centesimal proportion.

Number Committed.

Centesimal proportion.

Convicted

Acquitted.

No Bill and no Prosecution.

Convicted

Acquitted.

No Bill and no Prosecution

Capital Punishment abolished 1832.

Horse-stealing

540

74.6

18.2

7.2

555

73.7

19.5

6.8

Sheep-stealing

787

67.3

22.8

9.9

716

72.1

19.1

8.8

Larcency in a dwelling-house

422

69.6

20.4

10.0

526

75.1

17.5

7.4

Forgery (except of Wills and Powers of Attorney to transfer Government Stock.

155

58.1

28.4

13.5

210

71.0

21.4

7.6

Coining

14

50.0

50.0

—

39

71.9

23.0

5.1

Capital Punishment abolished 1833.

Housebreaking

2150

76.0

16.6

7.4

1578

77.8

15.9

6.3

Capital Punishment abolished 1834.

Returning from transportation*

Capital Punishment abolished 1835.

Sacrilege*

Letter-stealing*

Total

4068

72.7

19.0

8.3

3624

75.2

17.7

7.1

From these statements (the noble Lord continued) it appears that there is a clear increase in the number of convictions, as compared with former periods, and no considerable increase in the number of commitments. With these facts before us, I think we may proceed safely to relax the severity of the law still more in accordance with public feeling; for it cannot be denied that there is a strong feeling among almost all classes that the number of capital punishments should be diminished. I find that expressed in strong terms by several gentlemen who were examined before the Criminal Law Commissioners. Mr. Harmer particularly stated that he had had great experience in criminal
* In these offences the numbers are so few, and the period since the abolition of the capital punishment so short, that no useful results can be shown.
200 was uselessly deprived of life, all, I am sure, will rejoice at such a happy result. In the return to which I beg the attention of the House some facts are stated which illustrate my argument. The noble Lord read the following account of the "Number of Commitments for Offences from which capital punishment has been taken away, for three years before and since the alteration of the law," and of the proportion of convictions to acquittals and non-prosecutions for the like offences and periods, commencing from the year, 1827, when Sir Robert Peel's Acts for the consolidation and amendment of the Criminal Law were passed.
trials, and was well acquainted with the feelings of the public—that there was a general wish for a diminution of capital punishment; and in accordance with that in his opinion, it might be proper to limit capital punishment, to murder, arson, burglary, highway robbery, if accompanied with violence, and cutting and maiming, an offence made capital by Lord Ellen-borough's Act. Mr. Harmer stated also that he had been often present when criminals received sentence of death, and that they were often less affected on such occasions than the audience. That was another reason for a further relaxation of the punishment. There is a feeling rising up in the public mind, and among judges and

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jurors, different from that entertained by the persons convicted; the consequence of which is, that while the punishment of death does not deter many from committing crimes, it prevents prosecutions from being successful. The law, in such a case, operatesless against those whom it was framed to punish, than against those for whose sake it was to be carried into effect. I may add, that great alterations have been made in the criminal law of almost all the states of Europe, and in the United States of America the number of offences for which capital punishment is inflicted is very restricted. It appears, from the evidence of Mr. J. Vickery, that in the state of Massachusetts it is limited to high treason, murder, robbery with a dangerous weapon, violation of a child under ten years of age, arson if the house is inhabited, and burglary with violence. I need not go through the list of offences for which capital punishment is inflicted in the other states of the union; I may merely mention that in one of them it is confined to murder. In Bavaria and Prussia the number of capital punishments has also been greatly diminished. In France there has been a similar diminution; encouraged by these examples, as well as by the effects of limiting capital punishments, I will now proceed to state to the House the means that may be adopted for further ameliorating the law. There are two ways in which the number of capital punishments may be diminished, one by a stricter definition of the crime, and by saying that no crime shall be capital unless so defined; and a second, by leaving it to the jury to say generally whether it is an aggravated offence, and merits capital punishment. The latter is the mode adopted in France, and the following statement will show how it operates in that country:—
"While the capital punishments have, in many cases been abolished in this country, changes of a similar nature have been effected in the French laws. By a recent modification, juries are permitted to attach to their verdicts a spontaneous declaration of circumstances in extenuation (circonstances exténuantes), and thereby to proportionate the sentence to their opinion of the crime. This change, the minister states in his report, experience has proved to have had an influence on the truth of the verdict, and to have greatly lessened the practice of juries giving a verdict at variance with the evidence (which has been a common practice also of English juries) solely with a view of reducing the severity of the sentence;
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and he remarks that the law has gained in certainty what it has lost in severity."
"The numbers capitally convicted and executed in France in the three last years, published in the tables, as compared with the same three years in England, were—

IN FRANCE.

1832.

Sentenced to death

90—Executed

41

1833.

Sentenced to death

50—Executed

34

1834.

Sentenced to death

25—Executed

15

ENGLAND AND WALES.

1832.

Sentenced to death

480—Executed

34

1833.

Sentenced to death

520—Executed

34

1834.

Sentenced to death

494—Executed

17

In 1826, the numbers capitally convicted in France were 150, of whom 111 were executed."
By this statement it appears that the number of capital punishments has decreased; but it must be evident to every one, that by giving the jury the power to say whether the offence is extenuated or aggravated, and by deciding in what cases the capital punishment shall be inflicted, the law is made totally uncertain. And it is uncertain, not as regards the Crown or the Judges, but as regards the individuals who compose the jury. Different juries might take different views of the same crime; and the difference might be carried so far, that though some of them might admit that a man was guilty of the horrible crime of murder, yet they might return a verdict of guilty, under extenuating circumstances, thereby screening him from the capital punishment, making a new law for every particular case, and exercising a peculiar and undefined prerogative of granting mercy or inflicting punishment. It appears that an alteration of this kind never would give satisfaction in this country. Juries, as I have said, would differ in different places, and even in the same place. What might be considered an aggravated case at York, might be regarded in a different light at Exeter, and the consequence would be a demand, on the part of the public, that the law should be better defined; and a question of life and death not left so uncertain. In a letter which I addressed to the Commissioners for inquiring into the state of the criminal law, I stated that I was disposed to follow their suggestions in the report, where they proposed that capital offences should be reduced to—first, high treason; second, murder; third, attempt to murder; fourth, burning of buildings or ships; fifth, piracy;

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sixth, burglary; seventh, robbery; eight, rape; leaving out of consideration a nameless offence of great enormity. In the answer which I received from the Commissioners, dated January 19th, 1837, they say:—"The doctrine which we attempted to establish in our report was, that capital punishment should be confined to high treason, and, with some exceptions, to offences which consist in, or are aggravated by, acts of violence to the person, or which tend directly to endanger human life. In carrying this doctrine into practical effect, as well in regard to the capital offences which we have retained, as in those which we have classified as secondary crimes, we have endeavoured to define with precision those acts which now form no part of the crime; but are merely taken into consideration as guides in the apportionment of the punishment, and to constitute them a part of the corpus delicti." With respect, however, to high treason, to murder, and to the crimes of violence, I know that, in the opinion of very competent authorities, the definitions of the Commissioners are thought to be capable of very considerable improvement. The answer of the Commissioners thus proceeds:—"We propose by one Bill expressly to abolish capital punishment with respect to all the following crimes, substituting for it a discretionary punishment, varying between transportation for life and imprisonment for five years: these are—first, offences against the Riot Act, 1 George 1st, stat. 2, c. 5, s. 1 and 5; second, rescuing persons committed for or convicted of murder, 25 George 2nd, c. 37, s. 9; third, setting on fire or destroying ships or stores in his Majesty's dock-yards, &c, 12 George 3rd, c. 24; fourth, endeavouring to seduce soldiers or sailors from his Majesty's service, or inciting them to mutiny, 37 George 3rd, c. 70; fifth, administering unlawful oaths or engagements, 52 George 3rd, c. 104, s. 1; sixth, escaping from the Millbank Penitentiary, 59 George 4th, c. 136, s. 17; seventh, offences against the Act for the Abolition of Slavery, 5 George 4th, c. 113, s. 9; eighth, offences against the late Smuggling Act, 3 and 4 William 4th, c. 53, s, 58, 59." Now, Sir, I say generally, that the rule which the Commissioners have taken as the principle of their recommendations (although that rule is certainly not accurately defined), is, that capital punishments should be retained only in cases of high
722
treason, or, with some exceptions, to offences which consist in, or are aggravated by, acts of violence to the person, or which tend directly to endanger human life. They propose to abolish the punishment of death in all cases of forgery, and to modify and restrict the application of capital punishment, and to provide appropriate secondary punishments for—"malicious injuries, burglary, robbery and stealing from the person, burning or destroying buildings or ships, piracy." Then, Sir, with respect to the definitions which the Commissioners have given of these respective offences, I must say, that they were the subject of great, and anxious, and elaborate consideration on their part, and that I have had the advantage of consulting Lord Denman, as well as Baron Alderson, who did me the honour to write me a letter on the subject. On some points those learned judges differed; but they agreed that a more distinct line should be chalked out. I certainly agree generally with the definition of the commissioners; but in some cases it may be desirable to consider whether they have not made too wide, and in other cases too narrow, a distinction. The first class of offences, besides treason, murder, rape, and sodomy, respecting which the Commissioners propose to retain the punishment of death, are—"Administering poison; attempting to drown, suffocate, or strangle; stabbing, cutting, or wounding, or doing actual bodily harm by any other means, manifesting a design to kill; with intent in any of the above cases to murder." Now, as to "doing actual bodily harm," it is proper, perhaps, to take the distinction (although a popular one), between an attempt to murder, where no personal injury has been inflicted, and an attempt to murder where a personal injury has been inflicted. There can be no doubt that when an attempt to commit murder has altogether failed, although, morally speaking, the guilt is precisely the same as if it had succeeded, yet, the offence not having been completed, there is a great difference in the public feeling respecting it, and, therefore, that it ought not, in some cases, to be visited with capital punishment. It is the opinion of Mr. Baron Alderson that shooting at the person should be made capital. In my opinion, instead of "actual bodily harm," there ought to be "grievous bodily harm." Where the injury is only slight, capital

723
punishment ought not to follow. It may be contended, that the question as to "grievous bodily harm," will be a subject for medical, rather than judicial inquiry. But the law, as it now stands on that subject, is very defective. By Lord Ellen-borough's Act, any person stabbing, cutting, or maiming another, with intent to commit murder, was held to be guilty of a capital offence. It has been held, however, that if an injury were inflicted by a blunt instrument, that that was not within the meaning of the Act. And in this country there are so many capital offences, that judges and juries are always disposed, if they can, to soften the application of the law. In his consolidation of the criminal law, the right hon. Baronet introduced the word "wounding," to obviate this defect; but at the April Old Bailey Sessions, in 1834, a man was indicted for maliciously wounding a peace officer, by biting of the end of his finger, with intent to resist his apprehension. He was convicted by the jury; but a doubt having arisen upon the construction of the words of the statute, whether this act was a "wounding," the question was reserved for the opinion of all the judges, who held, by a majority of seven to six, that, in order to constitute a "wounding," so as to bring the offender within the 9th George IV., c. 31, the injury must be inflicted with some instrument. Another instance occurred in a case tried before Lord Denman, at the summer assizes for Somersetshire, in 1834, in which a man, with the deliberate and avowed purpose of destroying his wife, had assaulted her with a heated poker, had beaten her furiously till she was insensible, and had actually set her clothes on fire, when he was prevented from killing her by the interference of the neighbours. Though the bruises and burns occasioned by this ferocious assault had nearly produced death, no incised wound was inflicted, and, therefore, as the case did not fall within any of the clauses of the statute, the culprit could only be punished for an aggravated assault. Now, this I take to be a great defect in our criminal law, which ought to be remedied. For the purpose of remedying it, the Commissioners recommend the introduction of the words, "or shall by any other means whatsoever, manifesting a design to kill, do actual bodily harm, with intent to murder." The other offences respecting which the Commissioners are of opinion the punishment of death should
724
be retained, are—"Burglary, accompanied by an attempt to murder, or by stabbing, cutting, wounding, beating, striking, or any other personal violence to an inmate of the house broken into; robbery, and attempts to rob, accompanied by cutting, stabbing, wounding, or doing actual bodily harm, with any offensive weapon or instrument; setting fire to any building with intent to murder, or to any dwelling house actually inhabited, or to any building, parcel of such dwelling-house, or adjoining thereto." It is obvious, Sir, that these three classes of offences, although brought under one head, are very different in their nature; and that a line should be drawn with respect to them. I am satisfied with respect to the first two, that it would tend to produce more convictions, as well as to prevent much personal violence, if, where there was no violence, and where no weapons of destruction were found, a punishment less than death should be inflicted. With respect to breaking into houses at night, however, and disturbing the peaceful rest of the inhabitants, that certainly may be a fit subject for capital punishment. It is, however, in my opinion, desirable, to abolish the punishment of death for the offence of setting fire to stacks. It is certainly a great offence; and if I thought the continuance of the punishment of death would be effectual in checking it, I might hesitate; but I am persuaded, on the contrary, that the punishment of death prevents the conviction of many offenders. The compassionate feeling of the farmer induces him not to prosecute—that of juries not to find guilty. I was one of a small number who, in 1835, supported the abolition of capital punishment for this offence. Ten persons have been convicted of the offence, of whom seven have been executed. Although many hundreds have been committed, only sixty-four have been brought to trial; and, as I have already stated, only ten have been convicted—so strong is the prejudice against capital punishment for that offence. The remaining offences to which the Commissioners recommend that the punishment of death should still attach are—"Setting fire to, casting away, or destroying ships, with intent to murder, or whereby life is endangered; exhibiting false lights or signals with intent to bring ships into danger, or doing anything tending to the immediate loss or destruction of ships in distress; piracy, accompanied by an attempt to murder,

725
or by stabbing, cutting, or wounding." Having thus disposed of the offences with respect to which they are of opinion that the punishment of death should be retained, the Commissioners proceed to specify those offences, now capital, for which, in their opinion, appropriate secondary punishments ought to be substituted. Among these are—"Attempting to administer poison with intent to murder; shooting at, or attempting to discharge loaded arms with the like intent; shooting at, or attempting to discharge loaded arms with intent to maim, disfigure, disable, or to do grievous bodily harm, or to resist lawful apprehension for a crime; stabbing, cutting, or wounding, with the like intent." They also recommend a secondary to be substituted for capital punishment for various cases of burglary, and for an offence analogous to burglary, viz., stealing in a dwelling-house, any person therein being put in fear. The next point, however, to which I wish to call the attention of the House is the nature of the secondary punishment which the Commissioners wish should be inflicted on the offences I have just mentioned. I must say that I entertain considerable doubt whether the system of transportation ought to be continued as it has been carried on of late years. In theory it seems highly desirable to remove an offender to a great distance from the place where he committed the offence, and to leave him in that new country with means which may enable him to support himself by his labour. And I think that with respect to many offences, the punishment of transportation is the best that can be inflicted. But I propose, not only as the result of my own investigations of the subject, but in accordance with the opinions of the Governor of Van Diemen's Land, and the Chief Justice of New South Wales, that no person shall be transported for any period less than ten years; it being found that persons transported for a less period were unruly, insolent and disobedient. The next period of transportation which I propose is for fifteen years; and the last for life. I must, however, inform the House that it may be necessary at no distant period to abridge the number of persons sentenced to transportation. The accounts of the manner in which that punishment is carried on are very unsatisfactory. The great fault is, that the four or five thousand persons who are sent out every year to New South Wales are not
726
absorbed in the general population, but form a large and vicious separate mass. Crime and vice are there on the increase to a most lamentable extent, and after a short time these convicts, instead of undergoing punishment, become possessed of, and are admitted to, the enjoyment of great indulgences, and it also frequently happens that they there commit worse crimes than those for which they were originally sent out of this country. The letter addressed to the Commissioners by the Chief Justice of Australia, and the evidence of Colonel Arthur, both show the very unsatisfactory results of the system at present carried on. It appears by the letter of the Chief Justice that, according to the present practice, when a number of convicts are sent out, they are, on their arrival, immediately assigned to individuals; that moment the convict becomes, to a certain degree, the slave of his master—and if that master happens to be of a kindly indulgent disposition, the convict suffers but slight punishment; while, on the contrary, if the convict is assigned to an individual of a different temperament, the punishment, in all probability, is severe to a degree. And that although a saving of expense is thus effected, still the inequality of treament renders transportation a most uncertain mode of punishment. It would, then, be most desirable to define some remedy for this great uncertainty—in order to which I should propose that a certain hour of labour in the chain-gangs, or otherwise, be allotted to the convicts, and that they should afterwards receive indulgences only according to their conduct. But if such a regulation were adopted, it would, I believe, require an alteration of the law; for when the noble Lord opposite (Lord Stanley) was Secretary for the Colonies, he gave an order of this kind, but it was then found that, without some legislative enactment, it could not legally be acted upon. I cannot here avoid quoting a statement of Colonel Arthur's, contained in a letter addressed to Lord Goderich, in answer to Archbishop Whately's views on the subject of punishment by transportation. Colonel Arthur was well acquainted with the working of the system in Van Diemen's Land, and he said—"That the crimes of the convicts continually involved the settlement in trouble, though the discipline of Van Diemen's Land was carried to a much higher extent than could ever have been contemplated,

727
The colony might be travelled by night or by day; and there were amongst the inhabitants very many to be found always ready to support the Government in any exigency. Many of the convicts were much reformed under kind and considerate masters; but there was, nevertheless, so much peculation amongst them, so much disobedience of all lawful authority, and so much dishonesty, as to demand continual reference to the magisterial authority. If a case occurred which was at all of a serious nature, the master of the convict was bound to appear, and, in addition to the injury which he thus sustained, he had to suffer in various ways. There could be no question that things might be made much better than they really were. Under the present system the masters of the convicts or servants overlooked these frauds and acts of peculation rather than take the trouble to punish the offender." Now this it must be admitted is an extremely unfavourable picture of the proceedings in the colony; and if applied only to a small number of men, it might be considered that by a more rigid system of discipline these evils might be overcome; but when we reflect that this is a colony containing 100,000 persons, and that we send 4,000 or 5,000 convicts out every year, the obvious consequence must be to make that colony, in time, the most depraved community that has ever been seen in the world. I think, therefore, that it will be necessary before long to take some steps, not to abolish transportation altogether (for I do not go the length of Archbishop Whately,) but to make some change in our present mode of proceeding, and restrict transportation to certain classes of criminals and to certain offences. I will not go into all the evils which now exist in the colony, and I will therefore only state that the system of transportation as it at present prevails, if looked at on the score of economy only, is objectionable, inasmuch as it costs the country from 350,000 l. to 400,000 l. annually. The system requires the maintenance of a considerable force both in New South Wales and Van Diemen's Land, where the troops are of necessity far removed and remote from any service to which they might otherwise be occasionally required. I think that with respect to those grave offences for which the penalty is now transportation, we should, rather than diminish the term,
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establish the rule that no person should be transported for a less period than ten years. With regard, too, to the periods of imprisonment, I am sorry to say I cannot agreee with the Commissioners. Sir, the Commissioners have proposed that ten years shall be the maximum duration. I think that five years is the longest period to be named; and I am convinced that the effect of a ten years' imprisonment must be only to harden the criminal, and to destroy his powers and the capacities of the mind; and I hold, moreover, that it is a punishment the infliction of which, in some cases, is worse than death. Sir, in that opinion I know-one, at least, if not more of the learned judges coincide; and I shall certainly not be disposed to leave in the hands of any men the power to inflict a punishment of ten years' imprisonment. I may here observe that this is a punishment unknown to the common law, and in only one case is it known in the statute-book, and never has it been carried into effect. I allude to the act which refers to the Penitentiary at Millbank, by which it is enacted that if any person should be sentenced to be transported for life, he may under certain circumstances be retained in the Penitentiary, and imprisoned there for ten years. But what is the fact? Why, that up to the present moment few have been retained there for more than four years; and, from what I am generally told, I do not believe that any case has occurred in which the punishment hits been extended beyond that period. This experience, then, shows us, beyond dispute, that imprisonment is not a punishment the duration of which should be increased in this country. But, Sir, I cannot help thinking that there is great room for improvement in our system of punishment by imprisonment, I observe on looking to the last year, in order to make a comparison as between this and foreign countries in respect to the duration of imprisonments, that the instances are very rare indeed in other countries where imprisonment has exceeded two years. Now it will be curious to contrast the number of punishments for larceny in this country and France. The following is the state of committals and convictions in France and England, for a period of two years, for simple larcenies, viz.:—

729

IN FRANCE.

Committals

15,020

Convictions

11,568

Imprisonment for one year and up wards

3,646

Under one year

6,861

Fined

771

Infants sent to a House of Correction

290

IN ENGLAND.

Committals

11,597

Convictions

8,591

Transported for life

64

Transported for life 14 years

225

Transported for life, 7 years

1,451

Imprisoned for 2 years and above 1 year

83

Imprisoned for 1 year and above 6 months

698

Imprisoned for 6 months and under

6,023

Whipped, fined, &c.

47

Now, I should say it is most desirable (and I am happy to say that steps are now taken by the magistrates of counties and the magistrates in the different cities and boroughs in the kingdom) to make such regulations and arrangements in those prisons in which the punishment of imprisonment is inflicted, that there may not be the same risk of contamination amongst the various classes of prisoners. Nothing can be worse, or militate more against the diminution of crime, than the sending such persons as may have committed small offences into a prison to associate with more hardened offenders, and where, perhaps, they have to wait a long time before they are tried; or even if they are in an ill-regulated prison for a short time only the result is equally bad, because, if you take the better sort of individuals, say young persons or others who are committed to prison for the first time, and who are ashamed at the first moment of the crime which they may have committed, we send them to overhear and to mix in conversation with prisoners of the most abandoned characters. This is exactly the way to confirm these persons in bad habits; you take them from the society in which they were, in which honesty is held up and crime condemned, and you send them to a prison, where every person with whom they are compelled to associate, from the want of classification, holds up crime for imitation. Now the first thing you must do will be to adopt a better mode with respect to this class of persons, and to give them encouragement to pursue that honest course which they had
730
formerly followed. Sir, there has been a great difference of opinion amongst many Gentlemen, as opposed to the recommendations of the inspectors of prisons, with respect to the two modes of punishment, the one being the silent system, and the other the separate system. I own that I consider both these systems to be great improvements on the former mode of prison discipline. But one great fault in the silent system is, that it requiries a great deal of punishment to enforce its observance, and therefore it has the effect of irritating and provoking the prisoners. I have heard of a case in one large gaol where the silent system is kept up where the number of punishments was upwards of a thousand in one month. I am convinced, however, that by adopting one or other of the fixed terms of imprisonment, as the punishment for those offences which are not characterised by atrocity, those offences will be more properly punished by imprisonment than by transportation. I do not intend at present to bring in any measure either with respect to transportation or to imprisonment; but as I wished to state my views with reference to capital punishments, I thought it would be only proper to bring under the attention of the House, for further consideration, the subject of the punishments which are now adopted. I propose to bring in several Bills, because it is the opinion of several persons that whilst some of these questions require consideration, such as that of piracy, still they may be postponed for the present. For this purpose I have divided the subject into several Bills in order to take the course which has been suggested to me. One Bill will be to abolish the punishment of death in all cases of forgery; another for the same purpose in the case of offences against the person under certain circumstances; another to abolish the punishment of death in cases where it now exists; another is to abolish the punishment of death for robbery committed on the person; another for the same purpose in the case of burglary; and one relates to piracy and the destroying buildings or ships. I should say likewise that it is my intention to propose to bring in a Bill with respect to more than one law passed of late years. When the capital punishment was abolished, transportation for life was substituted for it in certain cases, but that is found to be a

731
most impolitic and a most inconvenient practice. There are offences, as has been once mentioned by Lord Lyndhurst, which came under this head; such as sheep-stealing (which was formerly a capital offence), and others slight in themselves, but where the judge is obliged to pass the sentence of transportation for life. Now, the consequence of this has been of late years, since I became the Home Secretary, that the sentence of the court is the sentence according to the law, namely, transportation for life; but the judge communicates with the Secretary of State as to whether a discretion shall be exercised and the prisoner shall be really sentenced to be transported for fourteen years, or seven years, or to two years' imprisonment, as the case may be; and I have always advised the Crown to comply with the wishes of the judge. Therefore the effort of the judge is not to carry into effect an unjust sentence, but the object seems to be to keep from the knowledge of the public the nature of the sentence which is really inflicted. Thus we have one sentence in court given according to law, and another is, in fact, practically put in force. But sometimes there is the chairman of a quarter sessions who pronounces the sentence, and these gentlemen have informed me that they have not themselves been allowed to make an application to the Home Secretary. I have appealed to some chairmen, and I have then found that they had not applied to the Secretary of State; but they have assured me that if they had known there was a discretionary power, they Would not have passed such and such a sentence. That, Sir, is an injustice and an inconvenience, and therefore I seek to repeal that part of the law, and to give a discretionary power in other cases. I shall likewise propose to bring in a Bill to abolish the punishment of the pillory—a punishment which is never inflicted. These are the measures which I now propose to introduce. I am aware that I have detained the House for a long time in making this statement; but I did think it my duty, in proposing such important alterations in the law, to give this mere outline of the changes which I propose to introduce, in order that they may be maturely considered. We have seen of late years very considerable alterations made with respect to our criminal law. Sir Samuel Romilly and Sir James Mackintosh led the way to mitigate its severity, and put into the
732
strongest light the faults, the absurdities, and the imperfections of our former code. The right hon. Gentleman opposite (Sir Robert Peel) has consolidated the various enactments on this subject, and by bringing them from the various statutes through which they were dispersed, he has brought them together, so as to make them more consistent and uniform, in order to enable the country and the world at large to know what is the law; and he has made a great improvement in that law. My noble and learned Friend, Lord Denman, the hon. Member for Maldon (Mr. Len-nard), and my hon. Friend, the Member for Liverpool (Mr. Ewart), have likewise introduced Bills to mitigate the severity of the criminal code. It has always seemed to me only proper that when a commission had been appointed by the Crown to revise and consider the criminal law, they should take into their view, in as comprehensive a manner as they could, the bearing of these different laws; and I shall be guided by the opinions of those whose opinions have been confirmed by former reports on this subject, and by those who administer the laws, in respect to any further alterations which may remain to be made. I do not anticipate that, with some few exceptions, such as in the cases of arson and burglary, the practical mitigation of the law will be carried much further than it is at present. There have been prodigious changes made in our criminal law as administered in all criminal cases, in proof of which I will read a statement of the average number of executions from the year 1805. Sir, the following is an account of the average number of persons executed at different periods from 1805 to the present year:—

From 1805 to 1811

average of 7 years

57

1812 to 1818

average of 7 years

90

1819 to 1825

average of 7 years

82

1826 to 1832

average of 7 years

59

1831 to 1833

average of three years

46

1834 to 1836

average of 7 years

28

Is it not, Sir, I ask, most satisfactory to find that we should have thus reduced the average number of deaths more especially in reference to the last seventeen or eighteen years? But I do think it a disgrace to us to have statutes by which five hundred persons may be condemned in one year; and I think that the feelings of the learned judges, the merciful consideration of the Crown, which was so universally exercised in all cases where it could be,

733
ought to be sanctioned by Parliament, and that we ought not to be behind other nations in mitigating the severity of our criminal code; but that we ought, moreover, to endeavour by every means to prevent crime in future periods by better and more certain methods of punishment. The noble Lord concluded by moving for leave to bring in Bills to abolish the punishment of death in cases of forgery; to abolish the punishment of death in certain cases to amend the laws relating to offences against the person; to amend the laws relative to robbery and stealing from the person; to amend the laws relative to burglary and stealing in a dwelling-house; to amend certain Acts relating to the crime of piracy; and to amend the laws relative to the burning or destroying buildings or ships.
Mr. Humefelt highly gratified at the statement just made by the noble Lord, and was satisfied that the whole country would participate in that feeling.
Mr. Ewartcordially approved of the measures as far as they went, but regretted that the principle of mitigation was not carried much further, as he thought it might have been. The hon. Member was proceeding to detail his views upon the subject, when it was moved that the House be counted; but, at the solicitation of the Chancellor of the Exchequer and Lord John Russell, the motion was withdrawn, and the hon. Gentleman was allowed to conclude his observations.
Leave given.

TOBACCO DUTIES.
Mr. Ewartrose to bring forward his motion for a reduction of the tobacco duties; but it was immediately moved that the House be counted.
House counted out and adjourned till Monday, the 3rd of April.