Front Page Titles (by Subject) SPEECH ON MOVING FOR A COMMITTEE TO INQUIRE INTO THE STATE OF THE CRIMINAL LAW, DELIVERED IN THE HOUSE OF COMMONS, ON THE 2 d MARCH, 1819. * - The Miscellaneous Works
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SPEECH ON MOVING FOR A COMMITTEE TO INQUIRE INTO THE STATE OF THE CRIMINAL LAW, DELIVERED IN THE HOUSE OF COMMONS, ON THE 2 d MARCH, 1819. * - Sir James Mackintosh, The Miscellaneous Works 
The Miscellaneous Works. Three Volumes, complete in One. (New York: D. Appleton & Co., 1871).
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SPEECH ON MOVING FOR A COMMITTEE TO INQUIRE INTO THE STATE OF THE CRIMINAL LAW,
I now rise, in pursuance of the notice which I gave, to bring before the House a motion for the appointment of a Select Committee “to consider of so much of the Criminal Laws as relates to Capital Punishment in Felonies, and to report their observations and opinions thereon to the House.” And I should have immediately proceeded to explain the grounds and objects of such a motion, which is almost verbatim the same as a resolution entered on the Journals in the year 1770, when authority was delegated to a committee for the same purpose,—I should have proceeded, I say, to state at once why I think such an inquiry necessary, had it not been for some concessions made by the Noble Lord* last night, which tend much to narrow the grounds of difference between us, and to simplify the question before the House. If I considered the only subject of discussion to be that which exists between the Noble Lord and myself, it would be reduced to this narrow compass;—namely, whether the Noble Lord’s proposal or mine be the more convenient for the conduct of the same inquiry; but as every member in this House is a party to the question, I must make an observation or two on the Noble Lord’s statements.
If I understood him rightly, he confesses that the growth of crime, and the state of the Criminal Law in this country, call for investigation, and proposes that these subjects shall be investigated by a Select Committee;—this I also admit to be the most expedient course. He expressly asserts also his disposition to make the inquiry as extensive as I wish it to be. As far, therefore, as he is concerned, I am relieved from the necessity of proving that an inquiry is necessary, that the appointment of a Select Committee is the proper course of proceeding in it, and that such inquiry ought to be extensive. I am thus brought to the narrower question, Whether the committee of the Noble Lord, or that which I propose, be the more convenient instrument for conducting an inquiry into the special subject to which my motion refers? I shall endeavour briefly to show, that the mode of proceeding proposed by him, although embracing another and very fit subject of inquiry, must be considered as precluding an inquiry into that part of the Criminal Law which forms the subject of my motion, for two reasons.
In the first place, Sir, it is physically impossible; and, having stated that, I may perhaps dispense with the necessity of adding more. We have heard from an Honourable Friend of mine,† whose authority is the highest that can be resorted to on this subject, that an inquiry into the state of two or three jails occupied a committee during a whole session. My Honourable Friend,‡ a magistrate of the city, has stated that an inquiry into the state of the prisons of the Metropolis, occupied during a whole session the assiduous committee over which he presided. When, therefore, the Noble Lord refers to one committee not only the state of the Criminal Law, but that of the jails, of transportation, and of that little adjunct the hulks, he refers to it an inquiry which it can never conduct to an end;—he proposes, as my Honourable Friend§ has said, to institute an investigation which must outlive a Parliament. The Noble Lord has in fact acknowledged, by his proposed subdivision, that it would be impossible for one committee to inquire into all the subjects which he would refer to it. And this impossibility he would evade by an unconstitutional violation of the usages of the House; as you, Sir, with the authority due to your opinions, have declared the proposition for subdividing a committee to be. I, on the other hand, in accordance with ancient usage, propose that the House shall itself nominate these separate committees.
My second objection is, Sir, that the Noble Lord’s notice, and the order made by the House yesterday upon it, do not embrace the purpose which I have in view. To prove this, I might content myself with a reference to the very words of the instruction under which his proposed committee is to proceed. It is directed “to inquire into the state and description of jails, and other places of confinement, and into the best method of providing for the reformation, as well as for the safe custody and punishment of offenders.” Now, what is the plain meaning of those expressions? Are they not the same offenders, whose punishment as well as whose reformation and safe custody is contemplated? And does not the instruction thus directly exclude the subject of Capital Punishment. The matter is too plain to be insisted on; but must not the meaning, in any fair and liberal construction, be taken to be that the committee is to consider the reformation and safe custody of those offenders of whom imprisonment forms the whole or the greatest part of the punishment? It would be absurd to suppose that the question of Capital Punishment should be made an inferior branch of the secondary question of imprisonments, and that the great subject of Criminal Law should skulk into the committee under the cover of one vague and equivocal word. On these grounds, Sir, I have a right to say that there is no comparison as to the convenience or the efficacy of the two modes of proceeding.
Let us now see whether my proposition casts a greater censure on the existing laws than his. Every motion for inquiry assumes that inquiry is necessary,—that some evil exists, which may be remedied. The motion of the Noble Lord assumes thus much; mine assumes no more; it casts no reflection on the law, or on the magistrates by whom it is administered.
With respect to the question whether Secondary Punishments should be inquired into before we dispose of the Primary, I have to say, that in proposing the Present investigation, I have not been guided by my own feelings, nor have I trusted entirely to my own judgment. My steps have been directed and assured by former examples.
The first of these is the notable one in 1750, when, in consequence of the alarm created by the increase of some species of crimes, a committee was appointed “to examine into and consider the state of the laws relating to felonies, and to report to the House their opinion as to the defects of those laws, and as to the propriety of amending or repealing them.” What does the Noble Lord say to this large reference,—this ample delegation,—this attack on the laws of our ancestors? Was it made in bad times, by men of no note, and of indifferent principles? I will mention the persons of whom the committee was composed:—they were, Mr. Pelham, then Chancellor of the Exchequer; Mr. Pitt, afterwards Lord Chatham; Mr. George Grenville, afterwards Lord Grenville; Mr. Lyttleton and Mr. Charles Townsend, afterwards Secretaries of State; and Sir Dudley Ryder, the Attorney-General, afterwards Chief Justice of England. Those great lawyers and statesmen will, at least, not be accused of having been rash theorists, or, according to the new word, “ultra-philosophers.” But it will be thought remarkable that those great men, who were, in liberality, as superior to some statesmen of the present day, as in practical wisdom they were not inferior to them, found two sessions necessary for the inquiry into which they had entered. The first resolution to which those eminent and enlightened individuals agreed, was, “that it was reasonable to exchange the punishment of death for some other adequate punishment.” Such a resolution is a little more general and extensive than that which I shall venture to propose;—such a resolution, however, did that committee, vested with the powers which I have already described, recommend to the adoption of the House. One circumstance, not necessarily connected with my present motion, I will take the liberty of mentioning:—to that committee the credit is due of having first denounced the Poor-laws as the nursery of crime. In this country pauperism and crime have always advanced in parallel lines, and with equal steps. That committee imputed much evil to the divisions among parishes on account of the maintenance of the poor. That committee too, composed of practical men as it was, made a statement which some practical statesmen of the present day will no doubt condemn as too large;—namely, “that the increase of crime was in a great measure to be attributed to the neglect of the education of the children of the poor.” A bill was brought in, founded on the resolutions of the committee, and passed this House. It was however negatived in the House of Lords, although not opposed by any of the great names of that day,—by any of the luminaries of that House. Lord Hardwicke, for instance, did not oppose a bill, the principal object of which was the substitution of hard labour and imprisonment for the punishment of death.
In 1770, another alarm, occasioned by the increase of a certain species of crime, led to the appointment, on the 27th of November in that year, of another committee of the same kind, of which Sir Charles Saville, Sir William Meredith, Mr. Fox, Mr. Serjeant Glynn, Sir Charles Bunbury, and others, were members. To that committee the reference was nearly the same as that which I am now proposing; though mine be the more contracted one. That committee was occupied for two years with the branch of the general inquiry which the Noble Lord proposes to add to the already excessive labours of an existing committee. In the second session they brought their report to maturity; and, on that report, a bill was introduced for the repeal of eight or ten statutes, which bill passed the House of Commons without opposition. I do not mean to enter into the minute history of that bill, which was thrown out in the House of Lords. It met with no hostility from the great ornaments of the House of Lords of that day, Lord Camden and Lord Mansfield; but it was necessarily opposed by others, whom I will not name, and whose names will be unknown to posterity.
Sir, it is upon these precedents that I have formed, and that I bring forward my motion. I have shown, that the step I proposed to take accords with the usage of Parliament in the best of times, but that if we follow the plan recommended by the Noble Lord, we cannot effect the purpose which we have in view without evading or violating the usage of Parliament. Accepting, therefore, his concession, that a committee ought to be appointed for this investigation, here I might take my stand, and challenge him to drive me from this ground, which, with all his talents, he would find some difficulty in doing. But I feel that there is a great difference between our respective situations; and that, although he last night contented himself with stating the evils which exist, without adverting to the other essential part of my proposal for a Parliamentary inquiry,—namely, the probability of a remedy,—I must take a different course. Although I cannot say that I agree with my Honourable Friend, who says that a Select Committee is not the proper mode of investigating this subject, yet I agree with him that there are two things necessary to justify an investigation, whether by a committee, or in any other manner:—the first is, the existence of an evil; the second is, the probability of a remedy. Far, therefore, from treating the sacred fabric reared by our ancestors more lightly, I approach it more reverently than does the Noble Lord. I should not have dared, merely on account of the number of offences, to institute an inquiry into the state of the Criminal Law, unless, while I saw the defects, I had also within view, not the certainty of a remedy (for that would be too much to assert), but some strong probability, that the law may be rendered more efficient, and a check be given to that which has alarmed all good men,—the increase of crime. While I do what I think it was the bounden duty of the Noble Lord to have done, I trust I shall not be told that I am a rash speculator,—that I am holding out impunity to criminals, or foreshadowing what he is pleased to call “a golden age for crime.” Sir Dudley Ryder, at the head of the criminal jurisprudence of the country, and Serjeant Glynn, the Recorder of London,—an office that unhappily has the most extensive experience of the administration of Criminal Law in the world,—both believed a remedy to the evil in question to be practicable, and recommended it as necessary; and under any general reprobation which the Noble Lord may apply to such men, I shall not be ashamed to be included.
I must now, Sir, mention what my object is not, in order to obviate the misapprehensions of over-zealous supporters, and the misrepresentations of desperate opponents. I do not propose to form a new criminal code. Altogether to abolish a system of law, admirable in its principle, interwoven with the habits of the English people, and under which they have long and happily lived, is a proposition very remote from my notions of legislation, and would be too extravagant and ridiculous to be for a moment listened to. Neither is it my intention to propose the abolition of the punishment of death. I hold the right of inflicting that punishment to be a part of the rights of self-defence, with which society as well as individuals are endowed. I hold it to be, like all other punishments, an evil when unnecessary, but, like any other evil employed to remedy a greater evil, capable of becoming a good. Nor do I wish to take away the right of pardon from the Crown. On the contrary, my object is, to restore to the Crown the practical use of that right, of which the usage of modern times has nearly deprived it.
The declaration may appear singular, but I do not aim at realising any universal principle. My object is, to bring the letter of the law more near to its practice,—to make the execution of the law form the rule, and the remission of its penalties the exception. Although I do not expect that a system of law can be so graduated, that it can be applied to every case without the intervention of a discretionary power, I hope to see an effect produced on the vicious, by the steady manner in which the law shall be enforced. The main part of the reform which I should propose would be, to transfer to the statute book the improvements which the wisdom of modern times has introduced into the practice of the law. But I must add, that even in the case of some of that practice with which the feelings of good men are not in unison, I should propose such a reform as would correct that anomaly. It is one of the greatest evils which can befall a country when the Criminal Law and the virtuous feeling of the community are in hostility to each other. They cannot be long at variance without injury to one,—perhaps to both. One of my objects is to approximate them;—to make good men the anxious supporters of the Criminal Law, and to restore, if it has been injured, that zealous attachment to the law in general, which, even in the most tempestuous times of our history, has distinguished the people of England among the nations of the world.
Having made these few general remarks, I will now, Sir, enter into a few illustrative details. It is not my intention to follow the Noble Lord in his inquiry into the causes of the increase of crimes. I think that his statement last night was in the main just and candid. I agree with him, that it is consolatory to remark, that the crimes in which so rapid an increase has been observable, are not those of the blackest die, or of the most ferocious character; that they are not those which would the most deeply stain and dishonour the ancient moral character of Englishmen; that they are crimes against property alone, and are to be viewed as the result of the distresses, rather than of the depravity of the community. I also firmly believe, that some of the causes of increased crime are temporary. But the Noble Lord and I, while we agree in this proposition, are thus whimsically situated:—he does not think that some of these causes are temporary which I conceive to be so; while, on the other hand, he sets down some as temporary, which I believe to be permanent. As to the increase of forgery, for example (which I mention only by way of illustration). I had hoped that when cash payments should be restored, that crime would be diminished. But the Noble Lord has taken pains to dissipate that delusion, by asserting that the withdrawal of such a mass of paper from circulation would be attended with no such beneficial consequences. According to him, the progress of the country in manufactures and wealth, is one of the principal causes of crime. But is our progress in manufactures and wealth to be arrested? Does the Noble Lord imagine, that there exists a permanent and augmenting cause of crime,—at once increasing with our prosperity, and undermining it through its effects on the morals of the people. According to him, the increase of great cities would form another cause of crime. This cause, at least, cannot diminish, for great cities are the natural consequences of manufacturing and commercial greatness. In speaking, however, of the population of London, he has fallen into an error. Although London is positively larger now than it was in 1700, it is relatively smaller:—although it has since that time become the greatest commercial city in Europe,—the capital of an empire whose colonies extend over every quarter of the world,—London is not so populous now, with reference to the population of the whole kingdom, as it was in the reign of William III.
It is principally to those causes of crime, which arise out of errors in policy or legislation, that I wish to draw the attention of Parliament. Among other subjects, it may be a question whether the laws for the protection of the property called “game,” have not created a clandestine traffic highly injurious to the morals of the labouring classes. I am happy to find that that subject is to be taken up by my Honourable Friend the Member for Hertfordshire,* who will draw to it the attention which every proposition of his deserves. A smuggling traffic of another species, although attended with nearly the same effects, has been fostered by some of the existing laws relating to the revenue. I would propose no diminution of revenue, for unfortunately we can spare none: but there are some taxes which produce no revenue, and which were never intended to produce any, but which are, nevertheless, very detrimental. The cumbrous system of drawbacks, and protecting duties, is only a bounty on smuggling. Poachers and smugglers are the two bodies from which malefactors are principally recruited. The state which does not seek to remedy these diseases, is guilty of its own destruction.
Another subject I must mention: for, viewing it as I do, it would be unpardonable to omit it. On examining the summary of crimes which has been laid on the table, it appears that it was in 1808 that the great increase of crime took place. The number of crimes since that time has never fallen below the number of that year; although subsequent years have varied among one another. But it is extremely remarkable, and is, indeed, a most serious and alarming fact, that the year 1808 was precisely the period when the great issues of the Bank of England began. As it has been observed in the “Letter to the Right Honourable Member for the University of Oxford,”† a work which has been already mentioned in this House (the author‡ of which, although he has concealed his name, cannot conceal his talents, and his singular union of ancient learning with modern science), it was at that time that pauperism and poor rates increased. Pauperism and crime, as I have before said, go hand in hand. Both were propelled by the immense issues of Bank paper in 1808. By those issues the value of the one-pound note was reduced to fourteen shillings. Every labourer, by he knew not what mysterious power,—by causes which he could not discover or comprehend,—found his wages diminished at least in the proportion of a third. No enemy had ravaged the country; no inclement season had blasted the produce of the soil; but his comforts were curtailed, and his enjoyments destroyed by the operation of the paper system, which was to him like the workings of a malignant fiend, that could be traced only in their effects. Can any one doubt that this diminution of the income of so many individuals, from the highest to the lowest classes of society, was one of the chief sources of the increase of crime?
There is one other secondary cause of crime, which I hope we have at length seriously determined to remove;—I mean the state of our prisons. They never were fitted for reformation by a wise system of discipline: but that is now become an inferior subject of complaint. Since the number of criminals have out-grown the size of our prisons, comparatively small offenders have been trained in them to the contemplation of atrocious crime. Happily this terrible source of evil is more than any other within our reach. Prison discipline may fail in reforming offenders: but it is our own fault if it further corrupts them.
But the main ground which I take is this,—that the Criminal Law is not so efficacious as it might be, if temperate and prudent alterations in it were made. It is well known that there are two hundred capital felonies on the statute book; but it may not be so familiar to the House, that by the Returns for London and Middlesex, it appears that from 1749 to 1819, a term of seventy years, there are only twenty-five sorts of felonies for which any individuals have been executed. So that there are a hundred and seventy-five capital felonies respecting which the punishment ordained by various statutes has not been inflicted. In the thirteen years since 1805, it appears that there are only thirty descriptions of felonies on which there have been any capital convictions throughout England and Wales. So that there are a hundred and seventy felonies created by law, on which not one capital conviction has taken place. This rapidly increasing discordance between the letter and the practice of the Criminal Law, arose in the best times of our history, and, in my opinion, out of one of its most glorious and happy events. As I take it, the most important consequence of the Revolution of 1688, was the establishment in this country of a Parliamentary government. That event, however, has been attended by one inconvenience—the unhappy facility afforded to legislation. Every Member of Parliament has had it in his power to indulge his whims and caprices on that subject; and if he could not do any thing else, he could create a capital felony! The anecdotes which I have heard of this shameful and injurious facility, I am almost ashamed to repeat. Mr. Burke once told me, that on a certain occasion, when he was leaving the House, one of the messengers called him back, and on his saying that he was going on urgent business, replied, “Oh! it will not keep you a single moment, it is only a felony without benefit of clergy!” He also assured me, that although, as may be imagined, from his political career, he was not often entitled to ask favour from the ministry of the day, he was persuaded that his interest was at any time good enough to obtain their assent to the creation of a felony without benefit of clergy. This facility of granting an increase of the severity of the law to every proposer, with the most impartial disregard of political considerations,—this unfortunate facility, arose at a time when the humane feelings of the country were only yet ripening amidst the diffusion of knowledge. Hence originated the final separation between the letter and the practice of the law; for both the government and the nation revolted from the execution of laws which were regarded, not as the results of calm deliberation or consummate wisdom, but rather as the fruit of a series of perverse and malignant accidents, impelling the adoption of temporary and short-sighted expedients. The reverence, therefore, generally due to old establishments, cannot belong to such laws.
This most singular, and most injurious opposition of the legislative enactments, and their judicial enforcement, has repeatedly attracted the attention of a distinguished individual, who unites in himself every quality that could render him one of the greatest ornaments of this House, and whom, as he is no longer a member, I may be permitted to name,—I mean Sir William Grant,—a man who can never be mentioned by those who know him without the expression of their admiration—a man who is an honour, not merely to the profession which he has adorned but to the age in which he lives—a man who is at once the greatest master of reason and of the power of enforcing it,—whose sound judgment is accompanied by the most perspicuous comprehension,—whose views, especially on all subjects connected with legislation, or the administration of the law, are directed by the profoundest wisdom,—whom no one ever approaches without feeling his superiority,—who only wants the two vices of ostentation and ambition (vices contemned by the retiring simplicity and noble modesty of his nature) to render his high talents and attainments more popularly attractive. We have his authority for the assertion, that the principle of the Criminal Law is diametrically opposite to its practice. On one occasion particularly, when his attention was called to the subject, he declared it to be impossible “that both the law and the practice could be right; that the toleration of such discord was an anomaly that ought to be removed; and that, as the law might be brought to an accordance with the practice, but the practice could never be brought to an accordance with the law, the law ought to be altered for a wiser and more humane system.” At another time, the same eminent individual used the remarkable expression, “that during the last century, there had been a general confederacy of prosecutors, witnesses, counsel, juries, judges, and the advisers of the Crown, to prevent the execution of the Criminal Law.” Is it fitting that a system should continue which the whole body of the intelligent community combine to resist, as a disgrace to our nature and nation?
Sir, I feel that I already owe much to the indulgence of the House, and I assure you that I shall be as concise as the circumstances of the case, important as it confessedly is, will allow; and more especially in the details attendant upon it. The Noble Lord last night dwelt much upon the consequences of a transition from war to peace in the multiplication of crimes; but, upon consulting experience, I do not find that his position is borne out. It is not true that crime always diminishes during a state of war, or that it always increases after its conclusion. In the Seven-Years’ War, indeed, the number of crimes was augmented,—decreasing after its termination. They were more numerous in the seven years preceding the American War, and continued to advance, not only during those hostilities, but, I am ready to admit, after the restoration of peace. It is, however, quite correct to state, that there was no augmentation of crime which much outran the progress of population until within about the last twenty, and more especially within the last ten years; and that the augmentation which has taken place is capable of being accounted for, without any disparagement to the ancient and peculiar probity of the British character.
As to the variations which have taken place in the administration of the law, with respect to the proportion of the executions to the convictions, some of them have certainly been remarkable. Under the various administrations of the supreme office of the law, down to the time of Lord Thurlow, the proportion of executions to convictions was for the most part uniform. Lord Rosslyn was the first Chancellor under whose administration a great diminution of executions, as compared with convictions, is to be remarked; and this I must impute, not only to the gentle disposition of that distinguished lawyer, but to the liberality of those principles which, however unfashionable they may now have become, were entertained by his early connexions. Under Lord Rosslyn’s administration of the law, the proportion of executions was diminished to one in eight, one in nine, and finally as low as one in eleven.
But, Sir, to the Noble Lord’s argument, grounded on the diminution in the number of executions, I wish to say a few words. If we divide crimes into various sorts, separating the higher from the inferior offences, we shall find, that with respect to the smaller felonies, the proportion of executions to convictions has been one in twenty, one in thirty, and in one year, only one in sixty. In the higher felonies (with the exception of burglary and robbery, which are peculiarly circumstanced) the law has been uniformly executed. The Noble Lord’s statement, therefore, is applicable only to the first-mentioned class; and a delusion would be the result of its being applied unqualifiedly to the whole criminal code.
For the sake of clearness, I will divide the crimes against which our penal code denounces capital punishments into three classes. In the first of these I include murder, and murderous offences, or such offences as are likely to lead to murder, such as shooting or stabbing, with a view to the malicious destruction of human life:—in these cases the law is invariably executed. In the second class appear arson, highway-robbery, piracy, and other offences, to the number of nine or ten, which it is not necessary, and which it would be painful, to specify:—on these, at present, the law is carried into effect in a great many instances. In these two first divisions I will admit, for the present, that it would be unsafe to propose any alteration. Many of the crimes comprehended in them ought to be punished with death. Whatever attacks the life or the dwelling of man deserves such a punishment; and I am persuaded that a patient and calm investigation would remove the objections of a number of well-meaning persons who are of a contrary opinion.*
But looking from these offences at the head of the criminal code to the other extremity of it, I there find a third class of offences,—some connected with frauds of various kinds, but others of the most frivolous and fantastic description,—amounting in number to about one hundred and fifty, against which the punishment of death is still denounced by the law, although never carried into effect. Indeed, it would be most absurd to suppose that an execution would in such cases be now tolerated, when one or two instances even in former times excited the disgust and horror of all good men. There can be no doubt—even the Noble Lord, I apprehend, will not dispute—that such capital felonies should be expunged from our Statute Book as a disgrace to it. Can any man think, for instance, that such an offence as that of cutting down a hop vine or a young tree in a gentleman’s pleasure ground should remain punishable with death? The “Black Act,” as it is called, alone created about twenty-one capital felonies,—some of them of the most absurd description. Bearing particular weapons,—having the face blackened at night,—and being found disguised upon the high road,—were some of them. So that if a gentleman is going to a masquerade, and is obliged to pass along a highway, he is liable, if detected, to be hanged without benefit of clergy! Who, again, can endure the idea that a man is exposed to the punishment of death for such an offence as cutting the head of a fish-pond? Sir, there are many more capital felonies of a similar nature, which are the relics of barbarous times, and which are disgraceful to the character of a thinking and enlightened people. For such offences punishments quite adequate and sufficiently numerous would remain. It is undoubtedly true, that for the last seventy years no capital punishment has been inflicted for such offences; the statutes denouncing them are therefore needless. And I trust I shall never live to see the day when any member of this House will rise and maintain that a punishment avowedly needless ought to be continued.
The debatable ground on this subject is afforded by a sort of middle class of offences, consisting of larcenies and frauds of a heinous kind, although not accompanied with violence and terror. It is no part of my proposal to take away the discretion which is reposed in the judicial authorities respecting these offences. Nothing in my mind would be more imprudent than to establish an undeviating rule of law,—a rule that in many cases would have a more injurious and unjust operation than can easily be imagined. I do not, therefore, propose in any degree to interfere with the discretion of the judges, in cases in which the punishment of death ought, under certain aggravated circumstances, to attach, but only to examine whether or not it is fit that death should remain as the punishment expressly directed by the law for offences, which in its administration are never, even under circumstances of the greatest aggravation, more severely punished than with various periods of transportation.
It is impossible to advert to the necessity of reforming this part of the law, without calling to mind the efforts of that highly distinguished and universally lamented individual, by whom the attention of Parliament was so often roused to the subject of our penal code. Towards that excellent man I felt all the regard which a friendship of twenty years’ duration naturally inspired, combined with the respect which his eminently superior understanding irresistibly claimed. But I need not describe his merits; to them ample justice has been already done by the unanimous voice of the Empire, seconded by the opinion of all the good men of all nations,—and especially by the eulogium of the Honourable Member for Bramber,* whose kindred virtues and kindred eloquence enable him justly to appreciate the qualities of active philanthropy and profound wisdom. I trust the House will bear with me if, while touching on this subject, I cannot restrain myself from feebly expressing my admiration for the individual by whose benevolent exertions it has been consecrated. There was, it is well known, an extraordinary degree of original sensibility belonging to the character of my lamented Friend, combined with the greatest moral purity, and inflexibility of public principle; but yet, with these elements, it is indisputably true, that his conduct as a statesman was always controlled by a sound judgment, duly and deliberately weighing every consideration of legislative expediency and practical policy. This was remarkably shown in his exertions respecting the criminal code. In his endeavours to rescue his country from the disgrace arising out of the character of that code, he never indulged in any visionary views;—he was at once humane and just,—generous and wise. With all that ardour of temperament with which he unceasingly pursued the public good, never was there a reformer more circumspect in his means,—more prudent in his end;—and yet all his propositions were opposed. In one thing, however, he succeeded,—he redeemed his country from a great disgrace, by putting a stop to that career of improvident and cruel legislation, which, from session to session was multiplying capital felonies. Sir, while private virtue and public worth are distinguished among men, the memory of Sir Samuel Romilly will remain consecrated in the history of humanity. According to the views of my lamented Friend, the punishment of death ought not to attach by law to any of those offences for which transportation is a sufficient punishment, and for which, in the ordinary administration of the law by the judges, transportation alone is inflicted. In that view I entirely concur.
I will not now enter into any discussion of the doctrine of Dr. Paley with respect to the expediency of investing judges with the power of inflicting death even for minor offences, where, in consequence of the character of the offence and of the offender, some particular good may appear to be promised from the example of such a punishment on a mischievous individual. The question is, whether the general good derived by society from the existence of such a state of the law is so great as to exceed the evil. And I may venture to express my conviction, that the result of such an inquiry as that which I propose will be to show, that the balance of advantage is decidedly against the continuance of the existing system. The late Lord Chief Justice of the Common Pleas,* whose authority is undoubtedly entitled to great consideration in discussing this question, expressed an opinion, that if the punishment of death for certain crimes were inflicted only in one case out of sixty, yet that the chance of having to undergo such a punishment must serve to impose an additional terror on the ill-disposed, and so operate to prevent the commission of crime. But I, on the contrary, maintain that such a terror is not likely to arise out of this mode of administering the law. I am persuaded that a different result must ensue; because this difference in the punishment of the same offence must naturally encourage a calculation in the mind of a person disposed to commit crime, of the manifold chances of escaping its penalties. It must also operate on a malefactor’s mind in diminution of the terrors of transportation. Exulting at his escape from the more dreadful infliction, joy and triumph must absorb his faculties, eclipsing and obscuring those apprehensions and regrets with which he would otherwise have contemplated the lesser penalty, and inducing him, like Cicero, to consider exile as a refuge rather than as a punishment. In support of this opinion I will quote the authority of one who, if I cannot describe him as an eminent lawyer, all will agree was a man deeply skilled in human nature, as well as a most active and experienced magistrate,—I allude to the celebrated Henry Fielding. In a work of his, published at the period when the first Parliamentary inquiry of this nature was in progress, entituled “A Treatise on the Causes of Crime,” there is this observation:—“A single pardon excites a greater degree of hope in the minds of criminals than twenty executions excite of fear.” Now this argument I consider to be quite analagous to that which I have just used with reference to the opinion of the late Chief Justice of the Common Pleas, because the chance of escape from death, in either case, is but too apt to dislodge all thought of the inferior punishments.
But, Sir, another most important consideration is, the effect which the existing system of law has in deterring injured persons from commencing prosecutions, and witnesses from coming forward in support of them. The chances of escape are thus multiplied by a system which, while it discourages the prosecutor, increases the temptations of the offender. The better part of mankind, in those grave and reflecting moments which the prosecution for a capital offence must always bring with it, frequently shrink from the task imposed on them. The indisposition to prosecute while the laws continue so severe is matter of public notoriety. This has been evinced in various cases. It is not long since an act of George II., for preserving bleaching-grounds from depredation, was repealed on the proposition of Sir Samuel Romilly, backed by a petition from the proprietors of those grounds, who expressed their unwillingness to prosecute while the law continued so severe, and who represented that by the impunity thus given to offenders, their property was left comparatively unprotected. An eminent city banker has also been very recently heard to declare in this House, that bankers frequently declined to prosecute for the forgery of their notes in consequence of the law which denounced the punishment of death against such an offence. It is notorious that the concealment of a bankrupt’s effects is very seldom prosecuted, because the law pronounces that to be a capital offence: it is undoubtedly, however, a great crime, and would not be allowed to enjoy such comparative impunity were the law less severe.
There is another strong fact on this subject, to which I may refer, as illustrating the general impression respecting the Criminal Law;—I mean the Act which was passed in 1812, by which all previous enactments of capital punishments for offences against the revenue not specified in it were repealed. That Act I understand was introduced at the instance of certain officers of the revenue. And why?—but because from the excessive severity of the then existing revenue laws, the collectors of the revenue themselves found that they were utterly inefficient. But I have the highest official authority to sustain my view of the criminal code. I have the authority of the late Chief Baron of the Exchequer, Sir Archibald Macdonald, who, when he held the office of Attorney-General, which he discharged with so much honour to himself, and advantage to the country, distinctly expressed his concurrence in the opinion of Lord Bacon that great penalties deadened the force of the laws.
The House will still bear in mind, that I do not call for the entire abolition of the punishment of death, but only for its abolition in those cases in which it is very rarely, and ought never to be, carried into effect. In those cases I propose to institute other, milder, but more invariable punishments. The courts of law should, in some cases, be armed with the awful authority of taking away life: but in order to render that authority fully impressive, I am convinced that the punishment of death should be abolished where inferior punishments are not only applicable, but are usually applied. Nothing indeed can, in my opinion, be more injurious than the frequency with which the sentence of death is at the present time pronounced from the judgment-seat, with all the solemnities prescribed on such an occasion, when it is evident, even to those against whom it is denounced, that it will never be carried into effect. Whenever that awful authority,—the jurisdiction over life and death, is disarmed of its terrors by such a formality, the law is deprived of its beneficent energy, and society of its needful defence.
Sir William Grant, in a report of one of his speeches which I have seen, observes, “that the great utility of the punishment of death consists in the horror which it is naturally calculated to excite against the criminal; and that all penal laws ought to be in unison with the public feeling; for that when they are not so, and especially when they are too severe, the influence of example is lost, sympathy being excited towards the criminal, while horror prevails against the law.” Such indeed was also the impression of Sir William Blackstone, of Mr. Fox, and of Mr. Pitt. It is also the opinion of Lord Grenville, expressed in a speech* as distinguished for forcible reasoning, profound wisdom, and magnificent eloquence, as any that I have ever heard.
It must undoubtedly happen, even in the best regulated conditions of society, that the laws will be sometimes at variance with the opinions and feelings of good men. But that, in a country like Great Britain, they should remain permanently in a state not less inconsistent with obvious policy than with the sentiments of all the enlightened and respectable classes of the community, is indeed scarcely credible. I should not be an advocate for the repeal of any law because it happened to be in opposition to temporary prejudices: but I object to the laws to which I have alluded, because they are inconsistent with the deliberate and permanent opinion of the public. In all nations an agreement between the laws and the general feeling of those who are subject to them is essential to their efficacy: but this agreement becomes of unspeakable importance in a country in which the charge of executing the laws is committed in a great measure to the people themselves.
I know not how to contemplate, without serious apprehension, the consequences that may attend the prolongation of a system like the present. It is my anxious desire to remove, before they become insuperable, the impediments that are already in the way of our civil government. My object is to make the laws popular,—to reconcile them with public opinion, and thus to redeem their character. It is to render the execution of them easy,—the terror of them overwhelming,—the efficacy of them complete,—that I implore the House to give to this subject their most grave consideration. I beg leave to remind them, that Sir William Blackstone has already pointed out the indispensable necessity under which juries frequently labour of committing, in estimating the value of stolen property, what he calls “pious perjuries.” The resort to this practice in one of the wisest institutions of the country, so clearly indicates the public feeling, that to every wise statesman it must afford an instructive lesson. The just and faithful administration of the law in all its branches is the great bond of society,—the point at which authority and obedience meet most nearly. If those who hold the reins of government, instead of attempting a remedy, content themselves with vain lamentations at the growth of crime,—if they refuse to conform the laws to the opinions and dispositions of the public mind, that growth must continue to spread among us a just alarm.
With respect to petitions upon this subject, I have reason to believe that, in a few days, many will be presented from a body of men intimately connected with the administration of the Criminal Law,—I mean the magistracy of the country,—praying for its revision. Among that body I understand that but little difference of opinion prevails, and that when their petitions shall be presented, they will be found subscribed by many of the most respectable individuals in the empire as to moral character, enlightened talent, and general consideration. I did not, however, think it right to postpone my motion for an inquiry so important until those petitions should be actually laid on the table. I should, indeed, have felt extreme regret if the consideration of this question had been preceded by petitions drawn up and agreed to at popular and tumultuary assemblies. No one can be more unwilling than myself to see any proceeding that can in the slightest degree interfere with the calm, deliberate, and dignified consideration of Parliament, more especially on a subject of this nature.
The Petition from the City of London, however, ought to be considered in another light, and is entitled to peculiar attention. It proceeds from magistrates accustomed to administer justice in a populous metropolis, and who necessarily possess very great experience. It proceeds from a body of most respectable traders—men peculiarly exposed to those depredations against which Capital Punishment is denounced. An assembly so composed, is one of weight and dignity; and its representations on this subject are entitled to the greater deference, inasmuch as the results of its experience appear to be in direct opposition to its strongest prejudices. The first impulse of men whose property is attacked, is to destroy those by whom the attack is made: but the enlightened traders of London perceive, that the weapon of destruction which our penal code affords, is ineffective for its purpose; they therefore, disabusing themselves of vulgar prejudice, call for the revision of that code.
Another Petition has been presented to the House which I cannot pass over without notice: I allude to one from that highly meritorious and exemplary body of men—the Quakers. It has, I think, been rather hardly dealt by; and has been described as containing very extravagant recommendations; although the prayer with which it concludes is merely for such a change in the Criminal Law as may be consistent with the ends of justice. The body of the Petition certainly deviates into a speculation as to the future existence of some happier condition of society, in which mutual goodwill may render severe punishments unnecessary. But this is a speculation in which, however unsanctioned by experience, virtuous and philosophical men have in all ages indulged themselves, and by it have felt consoled for the evils by which they have been surrounded. The hope thus expressed, has exposed these respectable Petitioners to be treated with levity: but they are much too enlightened not to know that with such questions statesmen and lawyers, whose arrangements and regulations must be limited by the actual state and the necessary wants of a community, have no concern. And while I make these remarks, I cannot but request the House to recollect what description of people it is to whom I apply them,—a people who alone of all the population of the kingdom send neither paupers to your parishes, nor criminals to your jails,—a people who think a spirit of benevolence an adequate security to mankind (a spirit which certainly wants but the possibility of its being universal to constitute the perfection of our nature)—a people who have ever been foremost in undertaking and promoting every great and good work,—who were among the first to engage in the abolition of the slave trade, and who, by their firm yet modest perseverance, paved the way for the accomplishment of that incalculable benefit to humanity. Recollecting all this, and recollecting the channel through which this Petition was presented to the House,* I consider it to be entitled to anything but disrespect. The aid of such a body must always be a source of encouragement to those who are aiming at any amelioration of the condition of human beings; and on this occasion it inspires me, not only with perfect confidence in the goodness of my cause, but with the greatest hopes of its success.
[* ] This speech marks an epoch in the progress of the reformation of the Criminal Law, inasmuch as the motion with which it concluded, though opposed by Lord Castlereagh, with all the force of the Government, under cover of a professed enlargement of its principle, was carried by a majority of nineteen in a House of two hundred and seventy-five members.—Ed.
[* ] Viscount Castlereagh.—Ed.
[† ] The Honourable Henry Grey Bennet.—Ed.
[‡ ] Alderman Waithman.—Ed.
[§ ] Mr. Bennet.—Ed.
[* ] The Honourable Thomas Brand.—Ed.
[† ] The Right Honourable Robert Peel.—Ed.
[‡ ] The Rev. Edward Copleston (now Bishop of Llandaff)—Ed.
[* ] This passage is left intact on account of the momentous nature of its subject-matter, but the speaker has evidently been here too loosely reported—Ed.
[* ] Mr. Wilberforce.—Ed.
[* ] Sir Vicary Gibbs.—Ed.
[* ] Since published by Mr. Basil Montagu, in his Collections On the Punishment of Death.—Ed.
[* ] It had been presented by Mr. Wilberforce.—Ed.