On the farther consideration of the report,
Sir S. Romilly: was sorry that the learned and hon. gentleman persisted in this Bill, for which there appeared to be no existing necessity. The conspiracies and disturbances which had occasioned its passing into a law had ceased; and it seemed a strong measure in legislation to make that felony, for which, as a simple act, no legal punishment had, he believed, before existed. The sentence for this offence was to be transportation for life. Now, whatever reasons there might be for preferring transportation for life to transportation for a limited time, in cases of habitual depravity, they could not apply to the present crime, which was the effect of ignorance and momentary delusion. As an instance of the loose and incorrect manner in which the Bill was drawn, sir S. Romilly observed, that the punishment was denounced against all those who entered a dwelling-house with intent to break frames, either by day or by night. How they could enter it, except by day or by night, he was at a loss to conceive.
The Attorney General: said, that though the judges could not themselves avoid pronouncing the sentence of the law in cases of felony, yet they could recommend the prisoner to the clemency of the crown, as was always done where there were circumstances of mitigation. He had no objection, however, to have the punishment altered from transportation for life to transportation for a term of years not exceeding fourteen, nor less than seven years. He thought the crime was punishable by law before the present Bill—not simply, but as an act of conspiracy. The learned gentleman then made a distinction between the idle or mischievous apprentice who should merely break his master's frames, who would not be punished, and the apprentice combining for the same purpose with the Luddites, who would be amenable to the law.
Mr. Horner: said, he believed no other person in the House had misunderstood his learned and hon. friend in the same degree as the learned and hon. gentleman who spoke last. He had totally misconceived, not only his expressions, but the whole scope of his argument. He had represented him as palliating the crime of the Luddites. No such thing. He had merely stated that it was a crime arising out of temporary circumstances and temporary irritation, and which might be effectually prevented by temporary punishment. As to the distinction between the idle apprentice, acting wantonly in violation of the law, or in concert with the Luddites, there was no such distinction laid down in the Bill. The question respecting the punishment to be inflicted by the Bill became the more important from the nature of the general doctrine on which it had been supported by his Majesty's Attorney General. The specific punishment denounced by the Bill was transportation for life. But the hon. and learned gentleman contended that the diminution of their punishment would be at the discretion of the judge. The House knew but too well the practice that had prevailed on this subject. The recent discussions on the proposed repeal of some of the old statutes had put them in possession of it. In the times when those statutes were passed, a more extended discretion might be necessary; but was it to be endured, when passing a new penal law, that parliament should be told, "Make the punishment as severe as you can; the judges will take care that it shall seldom be inflicted?" He had always thought that it was the peculiar praise of the British law, possessing as we did judges of great wisdom and unimpeached integrity—that, nevertheless, their discretion in cases of a criminal nature should be narrowed as much as possible. In the best works on jurisprudence it had always been laid down as a principle, that although the quantum of punishment might sometimes be left to the discretion of the judges, the description of it should always be regulated by the law. By contending that the mercy of the court would be so frequently exercised as seldom or ever to expose the offender to the highest punishment of the Bill, the hon. and learned gentleman substituted the exception for the general rule. The prerogative of mercy ought to be applied only to cases of rare occurrence; but, according to the argument of the hon. and learned gentleman, it should be put constantly in action.
The Attorney General: explained. What he had said with respect to apprentices was, that if an idle apprentice wantonly destroyed the frames of his master, he would not come within the operation of the Act; but that if he wickedly and maliciously did so, either alone or in concert with others, he would be subject to its punishments.
Mr. Bathurst: supported the necessity of enacting a severe punishment to prevent the recurrence of scenes, the terror attendant on which in the neighbourhood in which they had occurred was much greater than that occasioned in London and its neighbourhood by the riots of 1780. The question was, whether or not it was fitting that such a law as that before the House should be on the statute-book? The decided opinion was that it was fitting. He trusted there would be no occasion for its exercise; but if, unfortunately, there should, it was more likely to call for the utmost severity of the law than for its utmost mitigation. The capital punishment was gone from the Bill; and the least that could be substituted was the punishment of transportation for life; and under circumstances in which the gradation of crime must be so extensive, the judge ought to have the power of inflicting the highest punishment on the most atrocious offenders, and of obtaining a milder punishment for those whose guilt was not so extreme.
Mr. J. Smith: expressed his great satisfaction at the abolition in the Bill of the punishment of death. He was fully convinced that it had deterred many persons from prosecuting offenders. Nor would this be surprising, when it was considered that many of those offenders were boys and girls of 16 or 17 years of age. He confessed that he wished the term of transportation had been limited to seven years. However, he preferred adopting the Bill as it stood, to leaving such valuable property as the lace frames unprotected; he declared, that the right hon. gentleman who had just spoken, had by no means overstated the terror and dismay which, at the time of the disturbances, had spread over the counties in which those disturbances had occurred; and he trusted, that the measure now in progress would prevent any repetition of such outrages.
Mr. Abercrombie: observed, that the object of his hon. and learned friend's proposition to postpone for six months any further proceedings on this Bill, was by no means to leave the property of the lace manufacturers unprotected, but to give time for a more ample consideration than they had hitherto received of two most important questions in the Bill; namely, the quantum of punishment, and the description of the offence. He protested against the doctrines of the hon. and learned gentleman opposite (the Attorney General), which he confessed appeared to him to involve the most severe censure on the existing laws of the country that had ever been uttered within those walls. That hon. and learned gentleman had contended, that no person ought to be transported save for life. If so, where was the justice of annually sending, as we did, so many persons to New South Wales, for seven and fourteen years? Adverting to the condition of that colony, he felt happy, from the inquiries which he had been enabled to make in the committee on the subject, and from other sources, to bear testimony to the progress of that colony in improvement, and to the vigilant attention of government with respect to it. The result of all his examinations was, that the two great purposes of the prosperity of the colony, and the improvement in morals of the inhabitants, were commensurate. This fact afforded an argument against the hon. and learned gentleman, who wished that all transportation should be for life, because, as he contended, in cases of transportation for a limited period, the individuals so transported were restless and unhappy; nothing but the exclusion of all hope of a return to their native country being able to reconcile them to their exile. To the description of offence contained in the Bill he had great objection. The original cause of the measure was the combination of offenders, and to combination alone ought the punishment to apply.
Mr. Serjeant Best: denied that his hon. and learned friend (the Attorney General) had said that transportation ought in all cases to be for life. What he had maintained was, that unless the hon. and learned gentleman opposite could show that no offence of the kind described in the Bill could by possibility occur, to which the punishment of transportation for life ought to be applied, that punishment ought to be left as the highest punishment in the power of the judge to inflict, leaving it to his discretion and that of the executive government, in other cases, to reduce the quantum of punishment in proportion to the diminution of the guilt. It had been contended, that the crime described in the Bill ought not to be made a felony, because it was not so immoral an act as the acts which were usually termed felonious. For his part, he could not conceive any act much more immoral than a malicious destruction of the property of others. There were other acts not more atrocious in their character comprehended among felonies. To destroy a turnpike was a felony. With respect to the discretion to be vested in the judge, he maintained that it was not too great. The judge was obliged to pass a particular sentence; transportation for life. But no bad consequence would thence result to the individual, if there had been any favourable circumstances in his conduct; because a representation of those circumstances to the executive authority, would reduce the quantum of punishment. He did not understand, however, that his hon. and learned friend would object to the introduction in the Bill of a clause, giving to the judge, instead of to the executive authority, that discretion, if such a clause would satisfy the hon. and learned gentleman opposite. He would like to know what view the hon. and learned gentlemen opposite took of the crime? Some punishment they would undoubtedly affix to its perpetration. Would that punishment be transportation for seven years? Why in that case, and if that punishment, on the principles of the hon. and learned gentleman, were to be inflicted indiscriminately on all offenders, by far the greater part of them would be in a much worse situation than under the inflictions of the Bill as it stood. He confessed that he, for one, should have been better pleased had the capital punishment not been abolished in the Bill: not, he trusted, because he had any disposition capitally to punish, but because he was persuaded that, had it been retained, it would have operated not cruelly, but mercifully, by deterring from the commission of the crime; and by preventing the recurrence of those disturbances which had separated so many individuals from their friends, and deprived their native country of their services. As to the question respecting combination, to require that proof should be given of the existence of a combination, would be to make the Bill comparatively inoperative. All that it was necessary to prove was, that the offender acted maliciously.
Mr. H. Addington: argued against the substitution of the punishment of transportation for seven years for the punishment of transportation for life.
The Amendment was then negatived without a division, and the report was taken into consideration.
The Attorney General: proposed an amendment to the clause comprehending the punishment—namely, after the words that "the offender should be transported for life," to add the following, "or for such a term of years, not less than seven, as the judge before whom he may be tried shall think fit to pronounce."
Mr. Horner: declared that it was not in conformity to his opinion that this clause was proposed. He objected to a discretion so large being vested in the judge. It was true, that transportation for life seemed to him to be an unsuitable punishment for the offence described in the Bill; but if it were deemed by parliament suitable, he would much rather it should be absolute, than that the judge should possess such an extensive discretion as the amendment proposed by the hon. and learned gentleman went to give him. If it were not irregular to move an amendment on an amendment, he would move to leave out all the words of the clause after the words "the offender shall be transported," for the purpose of substituting the following, "for a term not exceeding fourteen years, or less than seven."
The Attorney General: repeated his objections to striking the punishment of transportation for life out of the Bill. If no case could exist in which a greater punishment than transportation for 14 years ought to be inflicted, he would adopt the proposition of the hon. and learned gentleman. Besides, that which was called transportation for life, was not, as it had been in the infancy of the colony of New South Wales, actually so; of this there were many instances. One of a very recent occurrence, in which the inhabitants of Cambridge had been thrown into great astonishment by the re-appearance of a person who some years ago had been transported from that place for life. On investigation, however, it appeared that he had conducted himself in a manner so exemplary, that the governor of the colony had exercised the power which he possessed, of granting him a free pardon.
Mr. Lockhart: thought, that when there must necessarily be so many shades of guilt, discretion was indispensable to the judge.
The Amendment proposed by Mr. Horner was then negatived, and the original Amendment proposed by the Attorney General adopted.
Several other amendments of an unimportant nature were introduced, and the Bill was ordered to be read a third time on Wednesday.
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