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Sir James Mackintosh's Address respecting the Criminal Laws.—Trial by Battle Abolition Bill.—Firsi Ikeport of the Secret Committee, on the Expediency of the Bank resuming Cash Payments.-Proceedings in both Houses respecting the Claims of the Roman
So, R James Mackintosh, on March 2, in rising to address the House of Commons concerning the system of Criminal laws, began with noticing some concessions made by the noble lord (Castlereagh) which would tend much to narrow the grounds of difference between them, in so much as both were agreed that the state of the criminal law in this country called for investigation, and that a select committee, would be the proper course to pursue in it. Proceeding then to the narrower question, which was a comparison between the noble lord's system and his own, he proceeded to show that in accordance with the usage of the House, he should propose that the House itself should nominate separate committees; whereas the noble lord proposed that the committee which had been named, should again nominate three committees. Sir James found no difficulty in giving his own proposition the superiority to that offered by the noble . He next inquired into the examples which the House of Commons afforded him by their former proceedings, and he began with that of 1750, when, in consequence
of the alarm created by 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.” The persons of whom the committee were then composed were Mr. Pelham, Mr. Pitt. Mr. G. Grenville, Mr. Lyttleton, Mr. C. Townshend, and Sir Dudley Ryder. The first resolution in which these distinguished persons... agreed, was, “ that it was reasonable to exchange the punishment of death for some other adequate punishment. A bill was brought in, founded on the resolutions of the committee: it passed this House, but was thrown out in the House of Lords. In 1770, another alarm, occasioned by the increase of a certain species of crime, led to the appointment, on November 27, of another committee, of which Sir Charles Grenville, Sir William Meredith, Mr. Fox, Mr. Serjeant Glynn, Sir Charles Bunbury, and others, were members. That committee was occupied for two sessions with the subject, in the second of which
they brought their report to maturity. It passed the House of Commons, but was thrown out by the House of Lords. Sir James M. now said, that it was upon these precedents that he had formed, and that he brings forward, his motion. But he must first mention what his object is not, in order to obviate the misapprehensions of overzealous supporters, and the misapprehensions of desperate oppoments. “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 long and happily lived, is a proposition very remote from my notions of legislation. Neither is it my intention to propose the abolition of the punishment of death. I hold the right of inflicting that punishment to be that part of the right of selfdefence with which societies, as well as individuals, are endowed. 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. 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. One of my objects is, to approximate them: to make good men the anxious supporters of the criminal law, and to restore that zealous attachment to the law in general which has distiguished the people of England among the nations of the world.”
Having (said Sir James M.) concluded my general remarks, I will now enter into a few illustrative details. Among these, we shall take no notice of the least important articles, but go directly to those which constitute the main purpose of the eloquent speaker's address.
The real state of the case (said he) is, that in the first or highest class of felonies, the law has been executed in every case; that in the middle class it has sometimes been executed ; and that in the lowest class it has not been executed at all. To correct this anomaly, so injurious, and so subversive of the great purposes of criminal jurisprudence, is the object that I have in view.
For the sake of clearness, the hon. and learned member divided the crimes against which our penal code denounces capital punishment into three classes. In the first, murder, and murderous offences, or such as are likely to lead to murder, such as shooting or stabbing with a view to the malicious destruction of human life, on which the law is invariably executed; in the second, arson, highway robberies, piracies, and other offences, to the number of nine or ten, on which, at present, the law is carried into effect in a great many cases. On those two divisions, he admitted, 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; and he was 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, he saw a third class of o some connected with frauds of various kinds, but others of the most frivolous and fantastic description, amounting to about 150 in number, against which the punishment of death is denounced by the law, although that punishment is never at present executed. There can be no doubt that these capital felonies should be expunged from our Statutebook as a disgrace to our law, and as creating a false opinion, much more sanguinary than it has ever been rendered in practice. 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 an enlightened and thinking people. For such of. fences, punishments quite adequate, and sufficiently numerous, remain, which the wisdom of the legislature may order to be inflicted. The debateable ground on this subject (Sir James Mackintosh goes on to say) is afforded by a sort of middle class of offences, consisting of larcenies and frauds of a heinous kind, though not accompanied with violence and terror. I do not propose, in any degree, to interfere with the discretion of the judges in deciding upon any crime to which the punishment of death ought, under some circumstances, to attach ; but to examine whether or not it is convenient, upon the whole view of the subject, that death should remain the punishment Vol. LXI.
expressly directed by the law for offences, which, in the administration of the law, are never more severely punished than with transportation, either for life, or for limited periods. On this subject, he took occasion to pay an affecting remembrance to the late Sir Samuel Romilly, with whom he fully concurred in thinking, that the punishment of death ought not to attach by law to any of those offences for which transportation is a sufficient punishment. In this case, he joined his late friend in the conviction, that the balance of advantage is decidedly against the continuance. of the existing system. The House (said he) will still bear in mind that I do not call for the abolition of the punishment of death, but only in those cases in which it is rarely, and ought never, to be carried into effect. In such cases I propose to institute other milder but more invariable punishments. Nothing, in my opinion, can be more injurious than the frequency with which the sentence of death is pronounced from the judgmentseat, when it is evident, even to those against whom the punishment is denounced, that it will never be carried into effect. 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 them is committed, in great measure, to the people themselves. I know not how to contemplate, without serious apprehension, the consequences that
may attend the prolongation efa system like the present. My object is, to make the laws popular, to reconcile public opinion to their enactments, and thus to redeem their character. The just and faithful administration of the law is the great bond of society. If those who hold the reins of government, instead of attempting a remedy, content themselves with vain lamentations at the growth of crime, that growth must continue to spread a just alarm. I will now, Sir, conclude by moving, “ That a Select Committee be o to consider of so much of the Criminal Laws as relates to Capital Punishments in Felonies, and to report their observations and opinion of the same, from time to time, to the House.” Lord Castlereagh then rose; and after complimenting the hon. and learned member on a speech, in the temperate and candid style of which . was sure he joined the whole House, he said, that the true question on which he was at issue with the hon. and learned gentleman was, to consider the species of proceeding which would be most likely to lead to a wise and salutary result. In his notions concerning this matter, it was evident, that the noble lord had a decided preference to a ractical view of the subject, while he held, in profound contempt, what he called the abstract and visionary opinions of his antagonist. These differences constituted the whole of his argument, which he concluded with a motion. He felt it, he said, his duty to move the previous ques
tion on the motion made by the hon. and learned gentleman, not from a wish to o pose him, not from any disposition to throw obstacles in the way of inquiry, but because he conceived the adoption of the hon. and learned gentleman's views would tend to separate the inquiry into the state of the criminal law, from the inquiry into the nature of punishments; thus defeating the united consideration of such important and concomitant topics; and because he therefore thought the appointment of the committee of last night was the step most calculated to lead to advantageous
results. Among the speeches in favour of his hon. and learned friend, one of the most decided was, that of Mr. Wilberforce. He began with declaring, that in his long experience of that House, he had never heard a more able address, a more splendid display of profound knowledge of the subject, with such forcible reasoning from the facts which that knowledge had called forth. He had not only derived great pleasure from what he had heard, but also from what he had not heard in the course of the discussion; namely, those arguments, or rather those objections, against alterations of, or inquiry into, old laws and customs, which had been so vehemently urged at former periods. He had heard opinions at that time, which any man would blush to hold at the present day. No such objections were, however, made on this occasion; and the ...} one to the motion of his hon. and learned friend was, that it would be better to refer the matter matter to the committee proposed by his noble friend. Why should he prefer the expectation of a committee, when he might have one at the present moment, when there were so many reasons urging to the immediate inquiry P Why should not some alteration be made, which would take from a jury the painful task which they had so often to perform at present? and yet that could be done by an alteration of the laws. It had been said, that our laws had not been made all at once, but had been the result of gradual legislation. That was the fact; but it argued nothing against the original motion. It was thought a safe way of checking the crime, to fix the penalty of death against its commission. But experience taught, that this was a most erroneous mode of legislation. The persons with whom we had to deal, were such as were careless, as well of this life, as of the life to come. They looked not to the enormity of the crime, but to the chance of escaping the punishment. Ought, then, the system to be continued which this very principle brought into action? If not, there was the very best reason for a committee. He could not but think, that instead of being considered hasty in their desire for a committee on this subject, they ought rather to be accused of being tardy in not having called for it before; and that the legislature was to blame in having so long neglected a
matter wherein human life was at .
stake. Several other members spoke
upon this occasion. At length,
the previous question being put,
“That that question be now put," the House divided: Ayes, 147; Noes, 128: Majority in favour of Sir James Mackintosh's motion, 19. The main question was then put and agreed to; and a committee was appointed, consisting of several leading members.
Trial by Battle Abolition Bill.
The Attorney General having, on March 19, moved the order of the day for the farther consideration of the report of this Bill, Sir F. Burdett rose, to consider at large how it would affect the right of appeal, with which, he conceived, it had nothing whatever to do, any more than an indictment at common or statute law. It was, he thought, a measure which went to increase the power of the Crown, inasmuch as it would deprive the subject of an appeal against what might be an illegal and unjust extension of the power of the Crown in pardoning criminals in cases of murder. After a considerable discussion upon this subject, Sir F. Burdett moved, to leave out from the word “That,” to the end of the question, in order to add the j “That this bill be recommitted.” l d
Mr. Sergeant C said, that he would #. ...”. bill of his hon. and learned friend should be lost altogether, than that an attempt should be made to carry it into effect with the amendment proposed to be made. He then adduced a considerable number of facts, to show, that the right of appeal was still acted upon, and considered as the law of the land. Proceeding to the speech
of the hon. baronet, he said he