He might have said, with equal truth, that

“But for what cause was God’s creation robbed of this its noblest work? It was for no injury, but for a mere attempt to clothe two naked children by unlawful means. Compare this with what the State did, and what the law did. The State bereaved the woman of her husband, and the children of a father, who was all their support; the law deprived the woman of her life, and the children of their remaining parent, exposing them to every danger, insult, and merciless treatment that destitute and helpless orphans suffer. Take all the circumstances together, I do not believe that a fouler murder was ever committed against law than the murder of this woman by law. Some who hear me are perhaps blaming the judges, the jury, and the hangman; but neither judge, jury, nor hangman are to blame; they are but ministerial agents. The true hangman is the member of Parliament; he who frames the bloody laws is answerable for all the blood that is shed under it. But there is a further consideration still. Dying as these unhappy wretches often do, who knows what their future lot may be? Perhaps my honourable friend who moves this bill has not yet considered himself in the light of an executioner. No man has more humanity, no man a stronger sense of religion than himself: and I verily believe that at this moment he wishes as little success to his hanging law as I do. His nature must recoil at making himself the cause, not only of shedding the blood, but perhaps destroying the soul of his fellow-creature.

“But the wretches who die are not the only sufferers; there are more and greater objects still: I mean the surviving relations and friends. Who knows how many innocent children we may be dooming to ignominy and wretchedness? Who knows how many widows’ hearts we may break with grief, how many grey hairs of parents we may bring with sorrow to the grave?

“The Mosaic law ordained that for a sheep or an ox four or five-fold should be restored; and for robbing a house, double;—that is, one fold for reparation, the rest for example; and the forfeiture was greater, as the property was more exposed. If the thief came by night, it was lawful to kill him; but if he came by day, he was only to make restitution; and if he had nothing, he was to be sold for his theft. This is all that God required in felonies; nor can I find in history any sample of such laws as ours, except a code that was framed at Athens by Draco. He made every offence capital, upon this modern way of reasoning:—‘That petty crimes deserved death, and he knew nothing worse for the greatest.’ His laws, it is said, were not written with ink, but with blood; but they were of short duration, being all repealed by Solon, except one for murder.

“An attempt was made some years ago by my honourable friend, Sir Charles Bunbury, to repeal some of the most absurd and cruel of our capital laws. The bill passed this House, but was rejected by the Lords for this reason: ‘It was an innovation,’ they said, ‘and subversion of law.’ The very reverse is the truth. The hanging laws are themselves innovations. No less than three-and-thirty of them passed during the last reign. I believed I myself was the first person who checked the progress of them. When the great Alfred came to the throne, he found the kingdom overrun with robbers; but the silly expedient of hanging never came into his head. He instituted a police, which was to make every township answerable for the felonies committed in it. Thus property became the guardian of property; and all robbery was so effectually stopped, that (the historians tell us) in a very short time any man might travel through the kingdom unarmed with his purse in his hand.

“Treason, murder, rape, and burning a dwelling-house were all the crimes that were liable to be punished with death by our good old common law; and such was the tenderness, such the reluctance to shed blood, that if recompense could possibly be made, life was not to be touched. Treason being against the King, the remission of that crime was in the Crown. In case of murder itself, if compensation could be made, the next of kin might discharge the prosecution, which, if once discharged, could never be revived. If a ravisher could make the injured woman satisfaction, the law had no power over him; she might marry the man under the gallows if she pleased, and take him from the jaws of death to the lips of matrimony. But so fatally are we deviated from the benignity of our ancient laws, that there is now under sentence of death an unfortunate clergyman,^[13] who made satisfaction for the injury he attempted; the satisfaction was accepted, and yet the acceptance of the satisfaction and the prosecution bear the same date.

“There does not occur to my thoughts a proposition more abhorrent from nature and from reason than that, in a matter of property, when restitution is made, blood should still be required. But in regard to our whole system of criminal law, and much more to our habits of thinking and reasoning upon it, there is a sentence of the great Roman orator which I wish those who hear me to remark, exhorting the Senate to put a stop to executions. He says:—‘Nolite, Quirites, hanc sævitium diutius pati, quæ non modo tot cives atrocissimè sustulit, sed humanitatem ipsam ademit consuetudine incommodorum.’

“Having said so much on the general principles of our criminal laws, I have only a short word or two to add on the two propositions now before us: one, as moved by the honourable gentleman (Mr. Combe) to hang persons that wilfully set fire to ships; the other, moved as an amendment by my honourable friend (Sir Charles Bunbury), is to send such offenders to work seven years on the Thames.

“The question arises from the alarming events of the late fires at Portsmouth and Bristol, for which the incendiary is put to death. But will an act of Parliament prevent such men as Jack the Painter from coming into the world, or control them when they are in it? You might as well bring in a bill to prevent the appearance or regulate the motions of a comet. John the Painter was so far from fearing death, that he courted it; was so far from concealing his act, that he told full as much as was true, to his own conviction. When once a villain turns enthusiast, he is above all law; punishment is his reward, and death his glory. But, though this law will be useless against villains, it is dangerous and may be fatal to many an innocent person. There is not an honest industrious carpenter or sailor who may not be endangered in the course of his daily labour. They are constantly using fire and combustible matter about shipping, tarring and pitching and caulking. Accidents are continually happening; and who knows how many of those accidents may be attributed to design? Indeed, the act says the firing must be done wilfully and maliciously, but judges and juries do not always distinguish rightly between the fact and the intention. It is the province of a jury only to try the fact by the intention; but they are too apt to judge of the intention by the fact. Justices of the peace, however, are not famed for accurate and nice distinctions; and all the horrors of an ignominious death would be too much to threaten every honest shipwright with for what may happen in the necessary work of his calling.

“But, as I think punishment necessary for so heinous an offence, and as the end of all punishment is example, of the two modes of punishment I shall prefer that which is most profitable in point of example. Allowing, then, the punishment of death its utmost force, it is only short and momentary; that of labour permanent; and so much example is gained in him who is reserved for labour more than in him who is put to death, as there are hours in the life of the one beyond the short moment of the other’s death.”

Mr. Henry Dundas, M.P. for Edinburgh, Lord Advocate, here spoke against the motion.

The bill was ordered to be reported, but it dropped.

The present law with regard to the burning in docks is this:—By the 24th and 25th Vic., c. 97, sec. 4, whosoever shall unlawfully and maliciously set fire to any station, engine-house, warehouse, or other building belonging or appertaining to any railway, port, dock, or harbour, or to any canal or other navigation, shall be guilty of felony, and liable to penal servitude for life, or not less than three years, or to imprisonment not exceeding two years, with or without hard labour and solitary confinement; and if a male under sixteen years, with or without whipping.

By the Act for the Government of the Navy, the 24th and 25th Vic., c. 115, article 30, every person subject to this act who shall unlawfully set fire to any dockyard, victualling-yard, or steam factory yard, arsenal, magazine, building, stores, or to any ship, vessel, hoy, barge, boat, or other craft, or furniture thereunto belonging, not being the property of an enemy, pirate, or rebel, shall suffer death, or such other punishment as is hereinafter (in the act) mentioned.