The Sun.
London, England, 1837-03-24 00:00:00

feeling rising up in the public mind, a feeling among judges
and jurors, different front that entertained by the persons
convicteu th 6 ‘l,.:inte..qttletic. vihich was, that while the
punishment of deatli riot Meter r..?iany from committing
crimes; it prevented prosecution.; frtiro being successful
The law, t!:i:Se; acte.d not on those againt w horn it
was framed, but it :u.ted injui'inti on thoge for whose sake
it was td be Carried into efLet. I may a,ll, tit great al-
tera;On:, rrildniti the criminal law of almost all
the States of Europe, tutu i7oit.N.l States of America
the number of offences for which capital pdt-iijlanant is in-
flicted is very restricted. It appears, from the evidenco of
Mr% J; Vickery; that tti the State of Massachusetts it is
limited to high tiCagon; tiwrder; rolikry ttith n dangeronti
weapon, violation of:a child under ter/ years of age, arson if
the house is inhabited, ;Ind burglary tfith tiolence. I aced
not go through the list of offences fin. which capital punish-
ment is inflicted in the ether States of the Union ; I may
merely mention that in one of them i confined to murder.
in latafbi and Prussia the number or capital ptini.bments
has also been greatly diteluishud, In France there had been a
similar diminution ; and that leads rod to "tate to the House,
the means that may be adopted for relaxing the :an., There
are two ways in which the number of capital punishmeins
may be diminished, one by a stricter definition of the crime,
and by saying that no crime shall be capital unless so de-
fined ; and a second, by leaving it to the Jury to say gene-
rally whether it is an aggravated offence, and merits capital
punishment. The latter is the mode adopted in France,
and the following statement will show how it operates in

that country :
" While the capital punishments have in many cases
been abolished in this country, changes of a similar nature
have been effected in the French laws. By a recent modi-
fication Juries are permitted to attach to their verdicts a
spontaneous declaration of circumstances in extenuation
(circonstanccs exti'munntes), and thereby to proportionate
the sentence to their opinion of the crime. Thts change,
the Minister states in his Report, experience has proved to
have had an influence on the truth of the verdict, and to
have greatly lessened the practice of Juries giving a ver-
dict at variance with the evidence (which has been a com-
mon practice also of English Juries) solely with a view of
reducing the severity of the sentence ; and he remarks that
the law has gained in certainty what it has lost in severity.
" The numbers capitally convicted and executed in
France in the three last years, published in the tables, es
compared with the same three years in England, were—
IN FRANCE.
1822. Sentenced to death . 90—Executed 4l
1833. Ditto 5O Ditto
1834. Ditto 2s—Ditto
ENGLAND AND WALES.
1832. Sentenced to death .480—Executed 34
1833. Ditto 523—Ditto
1834. Ditto 494 Ditto

In 1826 the numbers capitally convicted in France were 150,
of whom 111 were executed."
By this statement it appears that the number of capital
punishments has decreased ; but it must be evident to every
one that by giving the jury the power to say whether the
offence is extenuated or aggravated, and by deciding in
what cases the capital punishment shall be inflicted, the law
is totally uncertain.—(Hear, hear.) And it was uncertain
not as regarded the Crown or the Judges, but as regarded
the individuals who composed the jury. Different juries
might take different views of the same crime ; and this
might be carried so far that though some of them might
admit that a man was guilty of the horrible crime of mur-
der, yet they might return a verdict of guilty, under exte-
nuating circumstances, thereby screening him from the
capital punishment, fixing the law in every particular
case, and exercising _a peculiar and undefined prerogative
of mercy. It appears that an alteration of this kind never
would give satisfaction in this country. Juries, as I have
said, would differ in different places, and even in the same
place. What might be considered an aggravated case at
York might be regarded in a different light at Exeter, and
the consequence would be a demand on the part of the pub-
lic that the law should be better defined, and a question of
life and death not left so uncertain.—(Hear, hear.) In a
letter which I addressed to the Commissioners for inquiring
into the state of the criminal law, I stated that I was dis-
posed to follow their suggestions in the report, where they
proposed that capital offences should be reduced to-
1, high treason ; 2, murder; 3, attempt to murder;
4, burning of buildings or ships ; 5, piracy ; 6, bur-
glary ; 7, robbery ; 8, rape ; leaving out of conside-
ration a nameless offence of great enormity. In the
answer which I received from the Commissioners, dated
January 19, 1837, they say—" the doctrine which we
attempted to establish in onr report was, that capital pu-
nishment should be confißed to high treason, and, with some
exceptions, to offences which consist in, or are aggravated
by, acts of violence to the person, or which tend directly to
endanger human life. In carrying this doctrine into prac-
tical effect, as well in regard to the capital offences which
we have retained, as in those which we have classified as
secondary crimes, we have endeavoured to define with pre-
cision those acts which now form no part of the crime ; but
are merely taken into consideration as guides in the ap-
portionment of the punishment, and -to constitute them a
part of the corpus delicti." But, Sir, with respect to high
treason, to murder, and to the crimes of violence, 1 know
that in the opinion of very competent authorities the defini-
tions of the Commissioners are thought to be capable of
very considerable improvement. The answer of the Com-
missioners thus proceeds :—" We propose by one Bill ex-
pressly to abolish capital punishment with respect to all the
following crimes, substituting for it a discretionary punish-
ment, varying between transportation for life and imprison-
ment for five years : these are-1. Offences against the Riot
Act, Ist Geo. 1., stat. 2, c. 5, s. 1. and 5.-2. Rescuing
persons committed for or convicted of murder, 25th
Geo. 11., c. 37, sect. 9.-3. Setting on fire or destroying
ships or stores in his Majesty's dock-yards, &c., 12th
Geo. 111., c. 24.-4. Pndeavouring to seduce soldiers
or sailors from his Majesty's service, or inciting them to
mutiny, 37th Geo. 111. c. 70.-5. Administering unlawful
oaths or engagements, 52d Geo. 111., c. 104, sect. 1.-6.
Escaping from the Milbank Penitentiary, .59th Geo. IV., c.
136, s. 17.-7. Offences against the Act for the Abolition
of Slavery, sth Geo. IV., c. 113, s. 9.-8. Offences against
the late Smuggling Act, 3d and 4th Wm. IV., c. 53, s. 58,
59." Now, Sir, I say generally that the rule which the Corn-
sioners have taken as the principle of their recommenda-

. .
tions (although that rule is certainly not accurately defined)
is, that capital punishments should be retained only in
cases of high treason, or, with some exceptions, to offences
which consist in or are aggravated by acts of violence to
the person, or which tend directly to endanger human life.
They propose to abolish the punishment of death in all
cases of forgery, and to modify and restrict the application
of capital punishment, and to provide appropriate secondary
punishments for—" Malicious injuries ; burglary ; robbery,
and stealing from the person ; burning or destroying build-
ings or ships ; piracy." Then, Sir, with respect to the
definitions which Commissioners have given of these
respective offences, I must say that they were the subject
of great, anxious, and elaborate consideration on their
part, and that I have had the advantage of consulting
Lord Denman as well as Baron Alderson, who did me the
honour to write me a letter on the subject. O❑ some points
those Learned Judges differed, but they agreed that a more
distinct line should be chalked out. I certainly agree ge-
nerally with the definition of the Commissioners ; but in
some eases it may be desirable to consider whether they
have not made too wide, and in other cases too narrow, a
distinction. The first class of offences, besides treason,
murder, rape, and sodomy, respecting which the Com-

missioners propose to retain the punishment of death,
are—" Administering poison ; attempting to drown, suf-
focate, or strangle ; stabbing, cutting or wounding, or doing
actual bodily harm by any other means, manifesting a de-
sign to kill ; with intent in any of the above cases to mur-
der." Now, as to " doing actual bodily harm," it is proper,
perhaps, to take the distinction (although a popular one),
between an attempt to murder where no personal injury has
been inflicted, and an attempt to murder where a personal
injury has been inflicted. There can be no doubt that
when an attempt to commit murder has altogether failed,
although morally speaking the guilt is precisely the same as
if it had succeeded, yet, the offence not having been com-
pleted, there is a great difference in the public feeling re-
specting it, and threfore, that it ought not in some cases to
be visited with capital punishment. It is the opinion of
Mr. Baron Alderson that shooting at the person should be
made capital. In my opinion, instead of " actual bodily
harm," there ought to be " grievous bodily harm." Where
the injury is only slight, capital punishment ought not to
follow. It may be contended that the question as to
" grievous bodily harm" will be a subject for medical
rather than judicial inquiry.—(Hear, hear.) But the law
as it now stands on that subject is very defective.
By Lord Ellenborough's Act, any person stabbing, cutting,
or maiming another with intent to commit murder, was
held to be guilty of a capital offence. It was held, how-
ever, that if an injury was inflicted by a blunt instrument,
that that was not within the meaning of the Act. And in
this country there are so many capital offences, that judges
and juries are always disposed, if they can, to soften the
application of the law. In his consolidation of the criminal
law, the Right Hon. Baronet introduced the word " wound-
ing" to obviate this defect ; but at the April Old Bailey
Sessions, in 1834, a man was indicted for maliciously
wounding a peace-officer, by biting off the end of his finger,
with intent to resist his apprehension. He was convicted
by the jury ; but a doubt having arisen upon the construc-
tion of the words of the Statute, whether this act was a
" wounding," the question was reserved for the opinion of
all the Judges, who held, by a majority of seven to six, that,
in order to constitute a " wounding," so as to bring the of-
fender within the 9th George IV., c. 31, the injury must
be inflicted with some instrument. Another instance oc-
curred in a case tried before Lord Denman, at the sum-
mer assizes for Somersetshire, in 1834, in which a man,
with the • deliberate and avowed purpose of destroy-