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Sir Samuel Romilly's bills for restricting Capital Punishments.-Lord Holland's motion concerning Informations ex Officio.--The same subject discussed in the House of Commons.-Motion concerning delays in Appeals and Chancery Causes. New clause in the Mutiny Act.
MONG the various proposals for reform in the system of our jurisprudence which are occasionally offered to the notice of parliament, none are more interesting than those, the object of which is the melioration of the criminal law, and especially the reduction of that numerous list of capital punishments, which, while it impresses a sanguinary character on our code, in reality tends to encourage offenders with the hope of absolute impunity. The person who has most distinguished himself by his humane and patriotic labours in this matter, both as a writer and a senator, is Sir Samuel Romilly. This eminent lawyer rose on Feb. 21st, in the House of Commons, to make a motion relative to the criminal law. He said, it would not be necessary for him to preface his motion with many observations, since he understood that it was not to meet with any opposition. Of the different bills which he formerly had offered on the subject of capital punishments, one only, that for repealing the act which made it capital to steal privately from the person to the amount of five shillings, had been passed last session. He had the satisfaction to find that great benefits had already resulted from its consequences. The principle
on which he had proposed most of these bills was, that the severity of capital punishments, prevented men from prosecuting and juries from convicting, in cases which appeared to them not to deserve such a penalty; and that therefore lessening this severity would prevent crimes from escaping so often with impunity. The increase of prosecutions and convictions since the passing of that bill was a proof of the justness of this reasoning; and he was convinced that the same effects would follow from the adoption of the others which he was now about to propose. The first, that for repealing the act making it capital to steal to the value of forty shillings in a dwelling house, was rejected last session in a thin house by a majority of two. The next was for repealing the act respecting stealing on navigable rivers and canals. Sir Samuel concluded by moving for leave to bring in a bill to repeal so much of the act of the 10th and 11th of William III. as takes away the benefit of clergy from persons privately stealing from ships, warehouses, coachhouses, and stables.
The Chancellor of the Exchequer, regarding the grounds stated for bringing forward these measures, as satisfactory, did not mean
to oppose the motion; though he thought his Hon. friend somewhat prejudiced in favour of his plans when he stated the increased number of convictions last year as a proof of the beneficial effect of his bill, which might be owing to other circumstances.
Mr. Davies Giddy said that he had opposed the former bills from an apprehension that the principle would be pushed further; but should feel disposed to support these particular measures.
The Solicitor-General would not oppose the motion, though be would reserve his claim to resist the measure.
After a few words from Sir Samuel Romilly, the motion was agreed to; and also a similar motion for a bill to repeal the capital part of the punishment for stealing privately on navigable rivers and canals.
On Feb. 27th Sir S. Romilly presented a petition to the House from several proprietors of bleaching grounds in the north of Ireland, praying for the repeal of several acts which made stealing cloth from bleaching grounds a capital felony, giving it as their reason that the excessiveness of the punishment deterred both juries and witnesses from doing their duty, so that the petitioners were left without redress. He also presented a petition to the same effect from the calico-printers in the neighbourhood of London; and he gave notice that he should take an early opportunity of offering bills for the repeal of the acts complained of. On March 4th he accordingly moved for leave to bring in two bills for taking away the capital part of the acts of his pre
sent Majesty respecting robbing is bleaching grounds, and stealing linen cloth, which was granted.
On March 29th the proposed bill for repealing the act making it capital to steal in a dwelling house, was read a second time in the House of Commons, after a division in which the numbers were, for the second reading 79, against it 53. On April Sth it was read a third time and passed, after another division, in which the numbers for it was 50, against it 39, and the other four bills brought in by Sir Samuel Romilly were also passed.
After they had been sent up to the House of Lords, Lord Holland, on May 24th, rose to move the second reading of the bill relative to stealing in a dwelling house. He entered into a brief review of the origin, purpose, and history of the laws which it was the object of the bills in question, particularly that immediately before them, to repeal. He affirmed that they had by no means answered the purpose for which they were made; and then proceeded to show the inefficacy of the laws, as they at present stood, for the prevention of offences, and the striking contradiction between the law and its administration. He contended that certainty of punishment was much more effectual in deterring from crimes, than a severity which humanity prevented from being carried into execution; and after a variety of observations tending to prove the propriety of making the criminal law consistent in theory and practice, he concluded with the motion for the second reading.
Lord Ellenborough said he was convinced that the present bill
would not produce any beneficial change, but the reverse; and affirmed that such had been the case with respect to the bill passed two years ago relative to privately stealing from the person. He saw no alternative between the present system and punishments held out in terror to the guilty, modified by the judges' discretion according to the varying shades and degrees of offences, and a graduated scale of penalties which he thought vi sionary in theory, and impossible to be reduced to wholesome practice; and he instanced a variety of cases to prove its impracticability, and the superior advantages of the Jaw and practice as it now stands. He made a general panegyric on the system of criminal law in this kingdom, and the wisdom of its founders, and cautioned their lordships against alterations suggested by the speculations of modern philosophy; and he concluded by moving that the bill be read a second time on that day six months. The Lord Chancellor spoke on the same side, and argued on the great variety of shades that occurred in the complexion of offences which might make capital punishment proper in some cases, though too severe in others, which yet could not be discriminated in a definition. He said the universal opinion of those who were engaged in the administration of justice was against the bill, which circumstance, added to his own doubts respecting its utility, would induce him to vote against it.
Lord Erskine acknowledged that there were difficulties on both sides, but if out of a great number of capital convictions the actual executions were very few in propor
tion, he should not doubt that capital punishments were improper for that offence; and this being the case with the enactment which the bill proposed to repeal, he should support the bill.
After Lord Redesdale and the Earl of Liverpool had spoken against the bill, and Lord Holland had made his reply, the House divided, and the second reading was negatived by 27 votes against 10.
Three out of the five bills sent up were thus thrown out; but the two bills relative to stealing from bleaching grounds in Ireland and England were read a second time and ordered to be committed. They afterwards passed without opposition.
In the House of Lords, on March 4th, Lord Holland made his announced motion respecting informations ex officio. In the speech by which it was introduced, his Lordship began with impressing upon the minds of his auditors the great importance, as well as the reasonableness, of the measure he was about to submit to them. His motion went merely to the production of such documents as either were, or ought to be, public to all the kingdom, concerning matters that related to the administration of justice in the case of individuals accused of libels. To such production he thought parliament ought not to object. In the other House there was a standing Committee of justice appointed every session to watch against any abuses in its administration; and in their own House, their Lordships had information recently moved for before their Committee, of the number of prosecutions entered in the lower courts against
persons for offences incurring capital punishment under the revenue laws. It was not the purpose of his motions to meddle with the law of libel as it stood: he admitted the difficulty of defining libels, though he thought the law had not solved that difficulty as he could wish to see it done in a complete Utopia. One great point to which he would call their Lord. ships' attention was, that the crime of libel (state libel) was placed on a different footing from all others, with the exception of treason. In both these cases, the persons who must be the agents of government could not but have a bias towards viewing offences as great crimes, even where they could not be denominated such by any just definition. In the case of treason, the law had guarded against this cireumstance by a careful definition of the crime, but nothing of the kind existed in the case of libel. It was evident that even lawful discussion was often thought libellous by persons in power where it was disagreeable to them, and in opposition to their views. His Lordship then proceeded to consider the particular point of the power vested in the AttorneyGeneral to file his informations er officio. He did not mean to dispute the legality of such a mode of proceeding, though this had been called in question by high authorities in the law, but to shew that they were never meant to be carried to the extent now complained of. For this purpose he gave a history of their introduction, and quoted Blackstone's account of the object of the power thus granted, which was, that immediate prosecutions might be commenced
against such enormous misdemeanours as disturbed the government, and impeded the exercise of the royal functions. If then (his Lordship said) he could shew to the House that not only such prosecu tions had been instituted against such crimes as were considered of an inferior nature, and not of that dangerous description which alone required them, but also that no prosecution was followed up in a great proportion of those cases, and that by this practice the filing of an information was in many cases fining the party in the expenses, he would assert that he had proved an abuse in this power which called upon their Lordships to search into the instances, and to devise some remedy against the repetition of the abuse. He then mentioned the fact, that from 1801 to 1806 only fourteen informations er officio were filed, and that in the three succeeding years they amounted to forty-two, of which only sixteen had been brought to justice; and he adverted to the case of a nolo prosequi having been granted on a prosecution for libel by the present Attorney-General in favour of the Morning Post, a ministerial paper, as a proof that such power was partially exercised. He stated the ulterior proceedings which he should propose, were his motion agreed to. In that case he should move certain resolutions; one, to confine the filing of ex officio informations to a certain period from the publication of the paper charged with being libellous; another, that it be compulsory on the AttorneyGeneral to bring the matter to trial within a certain time, or to state to the court the reasons why be does not; and that after a verdict
had against the defendant, judgment should be prayed against him within a limited period. He should also be disposed to move for the repeal of the late act of parliament which enabled the Attorney-General to hold to bail any one against whom he chose to file an information. After some further remarks, relative to the liberty of the press, his Lordship concluded by moving, "That there be laid before that House a list of all the informations ex officio filed by the Attorney-General from the 31st of January 1801 to the 31st of January 1811, with the names of the persons against whom the informations were filed."
Lord Ellenborough then rose, and said that he had expected, that when the noble Lord moved for these files of informations, he I would have stated some abuse or grievance as the foundation for his motion; whereas nothing had been particularized but a simple act of lenity towards the editor of the Morning Post. He greatly deprecated any attempt to impress the public mind with an opinion that informations ex officio were in any respect illegal; and made some personal reflections on the mover, which called up Lord Holland again to vindicate his conduct.
Earl Stanhope and Lord Erskine then spoke in defence of Lord Holland, and in favour of his motion. The Lord-Chancellor on the other side made various observations on the invidious nature of the office of Attorney-General, and attested the forbearance with which for many years past it had been exercised.
He declared that he must oppose the motion, because the very adoption of it would, in some
in some degree, sanction a suspicion that there was something im proper in the administration of justice.
Other lords spoke on the subject, and after Lord Holland's concluding reply, the House divided, when there appeared for the mo tion 12, against it 24.
On March 28th the same topic was brought before the House of Commons by a motion from Lord Folkstone, of a similar import with that made by Lord Holland. In the introductory speech he went over much of the ground taken by that speaker, but entered more into a personal attack upon the present Attorney-General, attempt. ting to shew that great partiality had been displayed in his prosecu tions by information, the objects of them being almost exclusively writers or editors in opposition to the ministry, while others, equally culpable for virulence and invective, had been passed over.
The Attorney-General, who was called up by this attack, went through a variety of particulars relative to the late prosecutions, in his justification.
Sir Francis Burdett, who followed, took up the matter of prosecutions for libel on a general and constitutional ground; and asserted his conviction of the illegality of informations er officio. He also took a view of the manner in which special juries are struck (to which Lord Folkstone had adverted) and spoke from his own experience in his action against the Speaker of the House of Commons.
He was applied to in a personal manner by Mr. Stephens, who likewise defended his learned friend on the charge of the late frequency