The reward would therefore have little tendency to endanger innocent men by false accusation. The evidence on which the conviction would rest, must be of a sort which can hardly deceive. The informer would only furnish the key by which the means of evidence would be found; the reward would rather be for detection than for conviction.

There are several points on which your committee are desirous of offering some observation to the House; two of these are of great importance: the first relates to the best means of enabling judges to pronounce sentence of death only in those cases where they think it probable that death will be inflicted; the second, whether the establishment of unexpensive and accessible jurisdictions, for the trial of small offences, with the help of juries, but with simple forms of proceeding and corrective punishments, might not be a means of checking the first steps towards criminality. These and other parts of this great subject, the committee hope that the House will allow them another opportunity to consider, by permitting them, in the next session, to resume, and if possible to complete their inquiries.

Thomas Shelton, Esq. Clerk of Arraigns at the Old Bailey,

examined.

What do you, speaking upon conjecture and general estimate, take to be the proportion of the persons capitally convicted, compared to the proportion of those who receive sentence of death?

I believe in the paper which you

alluded to just now, the number of capital convictions and executions are stated; this is a copy of that account, showing the number for London and Middlesex [handing it in.]

The proportion in that account is rather more than one in twelve?—Yes.

In your experience of these proceedings, what do you think is the effect or result, with respect to the impression made by pronouncing sentence of death, on the minds of malefactors and spectators?-It depends a great deal upon the address made to them by the judge who passes the sentence, I have not an opportunity of seeing the prisoners afterwards when they go from the bar; many of them receive it with great indifference indeed, many of them, but some of them are greatly affected.

What have you observed to be generally the apparent effect produced upon criminals, by hearing an unfavourable verdict given against them in a capital case?Some of them seem to labour under great anxiety, and you may discover it particularly in their attention to the jury whilst they are considering their verdict; some of them show a considerable degree of feeling when they hear the verdict pronounced, if it be a verdict of guilty; and others (and I am sorry to say the greater part by far) hear it with great indifference.

Should you judge, from the way in which generally old offenders receive the verdict of the jury against them in capital cases, that they conceived it to be a sentence which is to be accom

panied with the loss of life?— They certainly appear, some of them, to be more alarmed than others.

You mean old offenders ?Yes,

Do you suppose that that arises from their belief that judgment will be more likely to be executed against them than others, or from the experience they have had of the law taking its course in the case of other people?-It occurs to me, that it is from the apprehension that the law will take its course, and that they conceive it probable the sentence of the law will be executed.

A very considerable number of those persons who are tried at the Old Bailey, one may say, are malefactors by profession; that is, persons habitually engaged in crimes? Yes, they are. A great number of persons are more than once or twice brought to that bar?-O dear, some are brought many times.

Allow me to ask you, if you have had considerable experience of the reluctance of prosecutors to appear against criminals ?Yes.

Pray to what extent has that been observable in small offences that are capital by law; do you not find, in almost all instances where the crime is not in itself of an atrocious description, but capital by law, that there is a reluctance in individuals to prosecute? No, not generally; in cases of stealing in a dwellinghouse to the amount of upwards of forty shillings, and privately stealing in shops to the amount of five shillings and upwards, great anxiety on the

part of the prosecutors generally to undervalue the property stolen, and to reduce it under the sum that makes it capital. ·

What do you suppose to be the cause of that ?-It is lest the party should be capitally convicted?

Then there is a considerable reluctance in those instances you mention in the parties to prosecute capitally?-Certainly; but the officer who frames the indictment frames it according to the nature of the offence, and that has been done with more particularity lately than in former years; in many cases formerly it was omitted to be stated, that the property was stolen in the dwelling-house, or that it was to the amount of forty shillings.

That was the case at the beginning of your time?—Yes.

In the case of murder, do you find any reluctance to prosecute?-No, except in the cases of the murder of bastard children.

But not in cases of the murder of men and women?—No.

Do you find it so in very atrocious cases of burglary; do you find that there is, in such case, a great reluctance to prosecute? -I recollect but very few instances of burglary, unless it be constructive burglary, where a shop-window is broken, or a latch lifted, and the party enters into a house in that way; in many cases of that sort, the prosecutors would willingly forbear, or seek to elude the indictment being capitally framed.

As there is no reluctance in very atrocious crimes, and considerable reluctance in smaller

crimes,

crimes, you would infer, that as the offence diminishes, the disinclination to prosecute increases; that is, that the punishment being less, the disinclination to prosecute becomes greater? Certainly.

Allow me to ask you this question, whether you think, from your experience, that if sentence of death were pronounced only in those cases where it is in general executed, it would much increase the effect of the sentence of death on the minds of malefactors and spectators?—Yes, I conceive it would, because when a person is sentenced who is convicted of murder, there is a great impression made on the mind of the offender, and also on the mind of every person present.

Pray have you observed, in cases of forgery and other offences not affecting personal security, that there is a reluctance in witnesses to appear?-I believe it very frequently happens in cases of forgery.

Do you think that there is a reluctance in witnesses to give their full evidence on those occasions; I mean, is there a disposition to suppress facts that materially affect the life of the prisoner?-I have not observed particularly that there is, but rather that there is a reluctance in witnesses to appear; and I believe persons have relaxed much in cases of forgery of late years. Bankers were extremely rigid formerly, but latterly persons have been discharged by proclamation for want of prosecution.

Taking the charge as to stealing in a dwelling-house, is there

a greater reluctance to convict in a jury, when it is a capital of fence, than when it is not capital?

They seek every opportunity, when it can be done with propriety, to reduce the value of the articles stolen under forty shillings; and that they do very frequently indeed; for it often happens, where property is missed, that it cannot possibly be proved to have been all stolen at one time, although every person who hears the evidence given will suppose it taken at one time; yet inasmuch as it is not proved that it is all taken at one time so as to amount to forty shillings, they make it amount only to thirtynine shillings.

Then I understand you to say, that juries are willing to resort to any expedient they can, in order to reduce the penalty of capital punishment to some other punishment?-Yes, if they can devise means not contrary to their conscience, and justify it to their own minds, they being on oath, they certainly will take every means they can to excuse the party charged of the capital part of the charge.

Have you not seen many instances, in which juries have brought in a verdict of "Not Guilty" directly contrary to the evidence in capital cases, accord ing to your own view of the evidence?-It sometimes happens that juries acquit prisoners in cases where persons who are in the habit of attending.courts would find no difficulty in convicting them; but I have not observed a reluctance in juries to find a verdict of "Guilty" more in these cases than they have in

other

other cases; but where persons are indicted for privately stealing in a shop or dwelling-house, and where the crime is capital by the law and the opinion of the court, they have done every thing they can to excuse the -party.

Do not the juries often resort to the expedient of finding prisoners guilty of the lesser of fence, in a manner not suggested by the judge from the bench? They do.

In shoplifting do they not find a verdict often upon the ground that it is not privately stealing?Certainly.

Have

you

observed that there is an indifference in the demeanor of prisoners during their trial for crimes when the punishment is not executed; and has not that indifference increased in your experience of late years? No, not at all.

I think I understood you to say, that in the case of smaller crimes, which are made capital, you have observed a disinclination on the part of witnesses to appear?- In the cases of forgery.

Have you observed such a disinclination on the part of witnesses to come forward in cases of murder, or in cases of very atrocious burglary?- Certainly

not.

I would ask you generally, Do you not think that in offences not atrocious, if the punishment were mitigated the prosecutions and convictions would become more certain? No; parties are not prevented after the offences are committed, for then they are irri

Now supposing, in that particular offence, if the punishment were mitigated, do not you think that persons might be more disposed to prosecute?—Yes.

It would cause a greater certainty of conviction and punishment? Yes, because generally persons convicted of forgery were executed, and indeed it was almost universally the case.

Do you think that the severity of the punishment operates to the encouragement of the crime, by the not carrying that punishment into effect? It increases the number.

Right Honourable Sir A. Macdonald, late Lord Chief Baron, examined.

One of the objects of inquiry of the committee is, whether the degree of severity which exists, with respect to some of the penal laws against the minor offences, has or has not the effect of preventing convictions, or deterring prosecutions ?-In what instances prosecutions may have been deterred, or convictions may have been evaded, it is impossible for

any

any one to say, but it is a very strong symptom, both of suppressing prosecutions and of preventing convictions, to see the extreme avidity with which juries will look to those points by which they may favour a prisoner. For example, in the notorious diminution of the value of a shilling. The shilling, at the time of the reign of king Athelstan, between eight and nine centuries ago, was considerably different from what it is now. It is well known, that stealing up to the value of one shilling constitutes the crime of petty larceny, and stealing to an amount above the value of one shilling constitutes a capital felony, excepting where the the benefit of clergy intervenes. It is known too that the conviction of a capital felony has very strong and dangerous consequences, if followed up by judgment of death. The consequence of judgment of death is attainder, a word derived from attinctus, stained, and the consequence of attainder is a loss of lands, an absolute loss of goods and the corruption of blood, which corruption of blood impedes the possibility of making a pedigree through the person who is attaint ed, and the corruption of blood cannot be pardoned by the king, nor can the goods be restored merely by pardon. Now, the sums which discriminate the various kinds of grand larceny are small, and in the instances where they are largest, say 40s., the jury are constantly anxious, even though the articles stolen are worth 201., to find them worth only 39s. In the very nature of things, the prosecutor must be

reluctant to prosecute in proportion to the severity of the punishment, but I recollect an instance in the Statute book, where it is the avowed cause of repealing a former act of parliament because the severity of that former act discouraged prosecution. Many instances might be given, in which it would appear that a person must with reluctance prevail upon himself to bring the offender to justice. For instance, breaking down a tree in a garden, of any value whatever, is a felony without benefit of clergy. It is not probable that any offenders should be so indicted, in that or in many other instances where the punishment seems greatly disproportioned to the offence. The penal statutes have been accumulating for a great length of time, and few only, comparatively speaking, have been put out of the Statute book. Lord Bacon, fas long ago as the reign of James I, complained of this as an evil then existing. But since that time a very great multitude of new. felonies have been created, and many, for want of a revision, remain on the Statute book and are in a manner obsolete; yet as no statute by the law of England becomes virtually repealed by time, they might be put in execution. Upon the whole, I cannot but think, that inadequacy in the nature of the punishment to the nature of the crime, must necessarily be an impediment to the even administration of justice.

Will you have the goodness to inform the committee, whether you have observed at any time the same reluctance to convict in

cases