412.

Testimony to Prove the Penal Laws Ineffective

Mr. Shelton, who has been near forty years clerk of arraigns at the Old Bailey, states that juries are anxious to reduce the value of property below its real amount, in those larcenies where the capital punishment depends on value; that they are desirous of omitting those circumstances on which the capital punishment depends in constructive burglaries; and that a reluctance to convict is perceptible in forgery.

Sir Archibald MacDonald bears testimony to the reluctance of prosecutors, witnesses, and juries, in forgeries, in shoplifting, and offenses of a like nature. He believes that the chances of escape are greatly increased by the severity of the punishments.

T. W. Carr, Esq., solicitor of excise, a very intelligent public officer, gave an important testimony, directly applicable indeed only to offenses against the revenue, but throwing great light on the general tendency of severity in penal laws to defeat its own purpose. From his extensive experience it appears that severe punishment has rendered the law on that subject inefficacious. Prosecutions and convictions were easy when breaches of the law were subject to moderate pecuniary penalties; even a great pecuniary penalty has been found so favorable to impunity that fraudulent traders prefer it to a moderate penalty. The act of counterfeiting a stamp in certain cases, within the laws of excise, was, before the year 1806, subject only to a penalty of £500, but in that year it was made a transportable offense, of which the consequence was that the convictions, which from 1794 to 1806 had been nineteen out of twenty-one prosecutions, were reduced in the succeeding years, from 1806 to 1818, to three out of nine prosecutions.

Mr. Newman, solicitor for the city of London, speaking from thirty years’ experience of the course of criminal prosecutions in that city, informed the committee that he had frequently observed a reluctance to prosecute and convict in capital offenses not directed against the lives, persons, or dwellings of men.

Dr. Lushington declared that he knew that in the minds of many persons there is a strong indisposition to prosecute, on account of the severity of the punishment; and that he had heard from the mouths of prosecutors themselves, who have prosecuted for capital offenses, where there was danger of the person’s being executed, the greatest regret that they had so done; and many times they have expressed a wish that, had they been able to have foreseen the consequences, they would never have resorted to the laws of their country. He also related the case of a servant who committed a robbery upon him; the man was apprehended and his guilt was clear, but Dr Lushington "refused to prosecute, for no other reason but that he could not induce himself to run the risk of taking away the life of a man."