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late not only on the chance of their , That course he was aware was not the way escape, but upon the common feelings of to effect any thing brilliant, either in that mankind, which would probably prevent | House or out of it ; but then he was in. parties from taking away the life of a fel- clined to prefer what was useful to what low creature by a prosecution for so dis- was splendid. In the pages of the hon. proportionate an offence. All writers and learned member (sir S. Romilly) be were agreed upon the point, that the cer- found it stated, that to the discretion protainty, not the severity of punishment, posed to be allowed to judges, nature had was most likely to deter from the com-assigned one limit. For his own part, if mission of crimes. If, as the hon. gent. they could be sure, that juries would be had said, the laws when too severe were competent to sift and ascertain all the not put in force, because individuals then circumstances of each case that might be declined to prosecute, was not that a rea- brought before thein, so as to be enabled son why such laws should be modified to decide according to its real merits, he in order that they might no longer should feel no objection at leaving juries remain a dead letter? The leaning of in possession of full discretion. But when juries to the side of mercy was another it should be considered from what des. argument for the alteration, because the cription of persons juries were usually mitigation of the excessive severity of chosen, it must be obvious that they the laws was in such cases produced some- would be as liable as any other body to times by what should be deprecated by fall into error. In stating what he felt every legislature-perjury, however it upon this point, he did not wish to shelter may be defended from a consideration of himself from any construction which the motives. - The hon. gent. had asked might be put upon his use of any particular triumphantly what punishments were to expression. He was not afraid to add be resorted to ; but if he had read the therefore, that in his view of the subject a bill, he would have been enabled to an- certain degree of arbitrary discretion apswer that question by all that appeared on peared necessary, absolutely essential, in the face of the bill. He would have all administrations of justice. In admitting seen the discretion to be given to judges this, however, he must also state, that this to change transportation for solitary arbitrary discretion should not be unlimita confinement. However solitary confine. 1 ed. If all the difficulties on this head ment might appear worse than death could be ascertained, then the House to a person who could be guilty of preine- could attain the perfection of human juditated crimes, it would have a good effect risprudence ; and if such perfection was on the interests of society. The individual desirable, it must be obvious that approxiwould not be lost to the community ; he mations to it must also be desirable. He would come forth from confinement a thought that in some instances this discre. better man than he entered it ; and, as in tion was carried too far. If it were adthe case of hanging or transportation, the mitted as a principle, that in the case of effect of the example of punishment would crimes' of difficult detection, the quantity not be lost to the public. He should most of punishment or the deterring principle heartily, therefore, support the motion should be greater, it would follow, that in of his hon. and learned friend, who, he crimes of easier detection the quantity of trusted, would not be diverted by any punishment should be less. It was not interruptions from the career of humanity his intention to go into any of the more he was pursuing.
heinous offences to apply this principle, Mr. D. Giddy begged leave to submit but confine himself to the more ordinary to the House the few observations that oc- | offences. Sheep-stealing he thought very curred to him on this subject. If he felt properly punished with death ; because, any difficulty upon the measures then in considering the manner in which sheep progress through the House, it would were fed upon extensive downs, the ex. arise from considering a part of that ge- posure to depredation, and the difficulty neral system which had been alluded to of detection, such a severe punishment by the hon. baronet, and characterised as was necessary for the sake of preserving a career of humanity. He was not friendly the vast quantity of wholesome food and to any great or violent changes. It had warm raiment for human use. It was his always been bis practice in that House, to opinion too that all circumstances of age steer a middle course between the conflict-gravation or mitigation should be attended ing opinions respecting public measures. to in the apportioning the punishment ; such, for instance, as the case of actually ments in the publication of sir S. Romilly forcing the door, or striking the blow, on this subject, from the greater part of circumstances at present attended to in which he expressed his dissent. He deproclamations. Such circumstances would nied that a man was ever punished because unquestionably have effect in deterring he had been guilty of another crime, diffrom the commission of crimes under such ferent from that on account of which he aggravated circumstances. The necessity was tried; or that, in the language of his of allowing a discretion in these cases hon. and learned friend's pamphlet, the flowed from the imperfection of the human person so condemned suffered not for the powers of judgment. But whether the crime of which he was found guilty, but discretion was to be given to the judge or for another of which he laboured only the jury, as far as he could form an opi- under the suspicion. It was an old aud a nion, be thought it should be left to the true saying, that the last feather broke the judge. When the House considered the horse's back, but he presumed, it would manner in which the judges, not alone of hardly be said that a feather would break the present day, but for many years back, a horse's back, if there was no pre-existwere selected from a description of persons ing weight imposed on him. In this view against whom no reflection could lie, he did he regard the argument now used by was persuaded that it would be evident the his hon, and learned friend. He conceivdiscretion could no where be better placed. ed that laws were originally made, not so He would much rather see it lodged in / much for the punishment, as for the pretheir hands than with juries, unless it could vention of crime. Intimidation, he main. be made subject to definite rules, and tained, was the best method of effecting juries should be found enlightened enough this. His hon. and learned friend seemed to discern and decide upon the actual to argue that no sentence ought to be merits, upon a comprehensive view of all passed which should not be executed. But the circumstances of each case. But was it possible to lay down such a rule? though a friend to discretion under the It was impossible to judge of any case till qualifications he had stated, he should it actually occurred; but to apply the never accede to the establishment of un-argument of his hon. and learned friend, limited discretion in any quarter. He it would be necessary to look to cases should here enter his protest against the known and unknown. It was possible to general principle of any extensive altera- | distinguish things obviously different in tion, at the same time reserving to him themselves, but it was impossible unconself the right of agreeing to such parts of ditionally to provide for different degrees the measures of the hon. and learned of the same species of offence. The right member in which he could, consistently hon, gent. proceeded to allude to a bill with his views and principles, concur. | which, he understood, was once more to He was convinced that any reformation come before them, for preventing cruelty to be beneficial must be made in the de- to animals, on which no two men could tail; and whilst he entertained that opi have the same feeling for any considerable nion, he must at all times oppose any period of time, and on which no one man large or extensive steps towards an object could think alike for half an hour together, which, in his view, was only to be gra. He could not help looking with an eye of dually attained. Though he respected | jealousy on all such visionary schemes, and admired the laws of England, he which had bumanity and justice for their should never suffer his veneration for them ostensible causes. What had we witnessed to induce him to resist any measure, which within the last twenty years. Had not might be brought forward for their actual the French Revolution begun with the improvement.
abolition of capital punishments in every Mr. Windham conceived the present to case; but not till they had sacrificed their be a question if, where guilt was found, sovereign, whom they had thus made the execution of the sentence annexed must grand finale to this species of purushment. follow as the necessary consequence. When he looked, however, to the millions This it was impossible ever to lay down. who had since fallen in the course of the Such a doctrine would require certain and Revolution, he could not but regard all precise rules of proceeding, which it schemes of the kind with an eye of would be impossible to lay down as ap- jealousy. He asked, therefore, if such a plicable to every particular case. He system as this was, without considerasion, proceeded to notice the different argu- to be put up against that of Dr. Paley?
The Master of the Rolls said, that it was / upon themselves a discretion which the a principie which was agreed to on all law never intended to give them. Even bands, that the prevention of crinies was the sanctity of their oath was sometimes the object of punislıment; and the ques. | obliged to yield to the feelings of nature, tion only was, whether the plan proposed and they were guilty of what had been by his hon. and learned friend (sir S. sometimes called a pious perjury, to acquit Romilly) would not be, in all probability, a prisoner. The fault was in the law as more efficacious for the attainment of that it now stood; for every law must be faulty object than the system of criminal laws which acts so decidedly against the feelwhich now exists. If it were only equally ings of the whole country. He did not efficacious with the existing system, every mean to say that the law should in every body must prefer it, as producing the case be carried into strict execution, nor same effect by means less severe; but it would he wish that his Majesty should be appeared to him that it would not only be deprived of the power of granting paras efficacious, but probably more so. It dons. He thought, however, that pardons was evident that either the law or the should be only exceptions to the general practice must be wrong, and whichever rule, and that it was by no means right was wrong ought to be remedied. Now that the general administration of the cria the practice of not inflicting the punish minal laiv of the country should be founded ment denounced by the law, came every on the King's pardon, whether his Ma-, day before the observation of the public, I jesty was advised by his judges or his and under the inspection of parliament, other advisers. He never could conceive and yet no fault had been found with it. how he could agree to passing any law There was no disposition to censure the unless it were his intention that it should judges, or his Majesty's advisers, for not be generally executed. It had been putting the law in execution. It there: urged, that in the plan proposed by his fore did appear to him to be most clear hon. and learned friend (sir S. Romilly) that in the public opinion the laws ap. there was a considerable degree of discrepeared too severe in their punishments. tion given. It was true that there necesIt was wrong, in any country, that the sarily was a considerable degree of dislaws should be in direct opposition to pub- lcretion, but then it was a discretion of a lic opinion; but it would be particularly | very different nature. It was not a dis'improper in this country, where offences cretion going to life or death, but merely are tried by a jury, and where laws con- of proportioning the gradations of a cer. trary to the general opinion were not tain sort of punishment to the gradations likely to be well executed. There, in of crimes. in capital punishments there fact, appeared to be an universal confeile. | was no possible gradation; and he thought racy in this country against the criminal it too much generally to leave the life law as it now stands. In the first place, I or death of persons convicted to the mere the juries, notwithstanding the paucity of discretion of the judge. It was this which executions, still were unwilling to trust induced juries so often to acquit prisoners the lives of the prisoners to the discretion when there could be hardly any doubt of of the judge, but took hold of every pos- their guilt. If, however, a milder system sible circumstance to acquit them of the should be introduced, there would be no capital part of the charge. Next came longer so much repugnance to prosecutthe judges; and lastly his Majesty's ad. ing offenders, or so much disinclination to visers, who were all anxious to spare the convict thein. He therefore approved of lives of those who had been capitally con the principle of the bill of his honourable victed. It therefore appeared to be ge. and learned friend, and thought that an nerally agreed by all men, that the pu: experiment of that sort might very safely nishment of death was much too severe | be tried. He thought that it was better for the generality of offences against which calculated than the present system for it was denounced. If intimidation would preventing crimes, by rendering the pum, absolutely prevent crime, the punishment nishment more certain. He therefore of death might be held out for the most should support the bill. trifling offences; but it was well known The Attorney General, confining himself that the terror even of death would not to the particular bills before the House, altogether prevent the commission of maintained that, as far as his experience crimes. Juries were now in a manner went, parties were not, by the existing forced by the severity of the law to take law, restrained from prosecuting, nor juries VOL. XVI.
from finding the fact. He argued that the he did the highest respect for the talents law was already armed with all the power and motives of his hon, and learned friend, given by this bill, and so far executed, that he could not agree with him in his views although felons of this description were of the subject before the House. He often exempted from death, they were | wished that his learned friend, previous still transported, imprisoned, &c. Thus to the introduction of his series of bills, the law, as it stood, had all the power of had consulted those who were best compunishment and prevention given by the petent to give him information. Howbills, and the power of death in addition. ever sanguinary our criminal code might He argued that the possibility of inflicting be in appearance, there was not upon its death did operate as a prevention; though practical application so mild a system he, and others who thought with him, la- | under the sun. In fact many of our laws boured under a disadvantage from not were only preserved in terrorem. They being able to produce instances, because were like a blunderbuss and rattle in the what was prevented was never seen. He window of an honest citizen retired into maintained that these cases were often at. | the country; kept there to frighten away tended with circumstances which rendered the thieves, and from which a shot might it extremely proper that there should be not have been discharged in twenty years. a power of inflicting the punishment of He contended against the repeal of the death; and be illustrated this by cases law against stealing in a shop; the exist. which he had seen on the circuit in the ence of which was absolutely necessary to early part of his life, where the dwellings protect the justifiable artifices employed of poor cottagers had been plundered in the exposition of goods. In a commerwbile they were at their labour. The cial country like this, such laws were nesituation was different in originating a cessary, for property could not be safe Jaw entirely from that of proposing a re- without them. He was adverse to weak. peal of an old law on the same point ; lening the penal code, the effect of which unless experience proved the old to be would be more mischievous than the pernicious it ought not to be altered on House was aware of. He was persuaded mere theory. He denied that experience it would be better to leave the application had proved the existing law to be perni- of the criminal laws to the conscience of cious or inefficacious. The judges, who the juries, the discretion of the judge, and must be best acquainted with its practical the royal mercy, whenever it should be effect, had not been consulted, or, at least, necessary. There was a discretion of they had not given their sanction to the punishing desertion with death in the mi. proposed change. Conceiving tbat no litary code, and yet bardly one out of particular good would result from this 100,000 deserters was put to death. In a change, he was adverse to the bills. country where political and personal free* Mr. Morris maintained, that it was no- | dom was so much enjoyed as among us, torious that parties were often prevented our criminal statutes must of course be from prosecuting, and witnesses from com- numerous and severe. These multiplied ing forward by the severity of the exist- punishments were part of the price we ing law, and that juries were often obliged paid for our liberty; they were counterto have recourse to a pious perjury, as it | balances that must unavoidably take place. had been called. It was unnecessary for | By altering our criminal system, or dishim to state the importance of not relax. turbing it in any material degree, we ing the obligation of an oath; he was for should destroy those high and lofty senleaving this amiable weakness, or pious timents which were ihe best safeguards of perjury, or whatever it might be termed, our constitution. He thought the code to the circulating libraries, and for keep. might be safely allowed to remain as it ing it out of the courts of law. These was. It was less formidable in effect than bills were brought forward as a remedy | appearance. It prevented crimes without against existing evil an evil which every | recurring to punishment. No other sysone in the habit of attending on criminal tem he was persuaded would answer the courts must know to exist. The discre great end of legislation so well. He artion as to the infliction of death the judges gued, that the penal laws of England were would, he believed, very readily dispense necessarily more severe than those of with. It was one which they felt the other countries, because the controul and most painful anxiety in exercising.
suspicious watching of private actions was Mr. Prankland said, that entertaining as less rigid. Such, a system of suspicion was utterly inconsistent with the feelings | ception. Instead of severe punishments and liberties of the people of this country, which had no effect in preventing the reand therefore the penal law must be more petition of crimes, or promoting the severe. In other countries the armed amendment of criminals, he would strongman was every where, and he himself had ly recommend the general establishment seen him among, a crowd of young people of the system of penitentiary houses not at a ball, and interfering to tell one of the only with respect to this case, but to many dancers, that he must not turn his partner others; he could not help considering the that way. Our code had grown out of severity of our penal code as inconsistent the commercial system. Forgery was with justice and humanity, as a disgrace formerly but a larceny; but the security to the character of the country. So much of property made it necessary to punish it | indeed was his right hon. friend, now no with death. He deprecated these altera- | more (Mr. Pitt) persuaded of the rectitions of the law, as attended with the lude of this opinion, that to his knowledge worst effects. He therefore felt it his that distinguished person had it in conduty to oppose the bill.
templation to commit the whole of our Mr. Wilberforce observed that the penal code to the revision of some able greater part if not the whole of the argu- lawyers, for the purpose of digesting a ment used by the gentleman on the other plan to lessen the sanguinary nature of its side, would apply more correctly to any | punishments, and the knowledge of this measure for the establishment of a totally circumstance ought to have considerable new system of police than to the bill | weight with those who respected the opiunder consideration. But, even supposing nion of that great man. To the able and this bill involved a proposition for the dial eminent lawyer who had undertaken this minution of capital punishments gene- / revision, and who had brought forward the rally, could gentlemen put the test of that bill under discussion, he for one would experience, upon which they professed so declare, as he felt the most unfeigned much to rely, against the propriety of thanks, and he could not avoid adding the such a proposition. How did experience expression of his regret, that his hon, and argue upon this question? Why, that the learned friend was not in his benevolent infliction of capital punishments had be- undertakings more adequately supported. come comparatively infrequent and unne- Mr. Solicitor General cordially agreed cessary. In the reign of Henry 8, the with his hon. friend, that the law of the number of capital punishments was at the 19th of the King, which, though dormant, rate of 2,000 per annum ; in the time of would not, he hoped, be inefficacious, and Elizabeth it fell to 400; and, he under- which provided for the amendment of cristood, that of late years since the Revolu- / minals by their confinement in peniten. tion, a very small proportion of those who tiary houses, ought to be put in force, in were sentenced ever suffered death. From order to prevent the contagion of vice, this he inferred that such a punishment and to render it practicable for a criminal had been found in great part unnecessary; to come out of confinement an amended and why then should the power of inflict. subject and capable of returning to an ho. ing it be allowed to remain in so greatnest course of life. His hon. and learned proportion of our penal laws subject to friend, in whom the discussion originated, the discretion of the judges, and subject contended that the present law, by hold. also to all the inconveniences which had ing out the punishment of death, augmentbeen already stated with regard to prose ed the evils which it professed to di. cutors, juries and witnesses, and the fre- minish. With all his respect for his hon. quent impunity of guilt in consequence of and learned friend, he must say that his the excessive severity of punishment? As own experience, confirmed by the opito the measure before the House, the nions of those who were the best qualified plain question was, whether the offence to judge upon the subject, was directly described was of that nature to which the the reverse. Would any one state a case punishment of death ought to apply? in which a prosecutor had been deterred And he was fully prepared upon the from proceeding for fear of bringing the fullest deliberation to decide in the nega- criminal to a capital punishment ? (Hear, tive. Out of 1,000 sentenced only one hear!) It might be so ; but until such a being executed, it was clear that the law case was stated to him he would not bewas unnecessary, and that the exception lieve its existence. If a prosecutor were was the rule while the rule was the ex. desirous of avoiding the capital part of the