§ MR. W. EWART
rose to move for a Select Committee to inquire into the expediency of maintaining the punishment of death. It is now nearly a quarter of a century that the opponents of capital punishment in this country have contended for its repeal. They hold it to be a great question of religion and civilization. But, in a more practical point of view, and in one less connected with feeling and opinion, they support it, because they believe 2056 it would give certainty to justice and punishment to crime—and they base that belief on this maxim of the illustrious Beccaria:—"The certainty of even a moderate punishment will always make a greater impression than the fear of a more severe punishment, which is accompanied by the expectation of impunity." We apply this maxim to our present system, and we maintain that ours is not the more "moderate" system which "makes the greater impression," but that it is the "severer system which is accompanied by the expectation of impunity." Are we not justified in saying that great inconsistency, great uncertainty, prevail under our present system of capital punishment? Have we not arrived, with regard to cases of murder, at a similar position to that which we held with regard to other crimes punished capitally many years ago? For a long time it was said of horse-stealing, sheep-stealing, stealing in a dwelling-house to the value of £5, and forging (all of them crimes which we remember to have been punished with death), "It is true you can seldom execute offenders for such crimes, but on occasions execution will suffice to terrify them." In those cases it was found that the "occasional system" induced, by its uncertainty, the very crime it was intended to prevent. For this reason capital punishment was, in those cases, repealed. Is not the case of murder in the same phase of its course at present? That it is so has recently been proved by the able treatises of Mr. Amos and Lord Hobart—The practice (says Lord Hobart) really is, not to punish with death criminals who are murderers in the sight of the law, but to select a few such criminals for execution; and the fate of a murderer depends, not on any fixed rite of penal legislation, but on the idiosyncrasy of a jury or of a Minister of the Crown.The press very generally argues in a similar strain. Let us take a Whig paper—The Globe. The Globe says:—"Instead of a certainty, punishment for murder has become a lottery." Take a Tory paper— The Standard. "The law of the gallows (says The Standard) is a game of hazard between society and the criminal," If from opinions we turn to statistics, the logic of figures gives a similar result. First, let us take the evidence of one year only. In a paper read before the Society for the Amendment of the Law in 1856, it was shown that, out of every 100 persons tried for capital offences in 1852, only 32 were convicted (how much smaller a proportion must have been executed); while 2057 out of every 100 tried for offences—not capital — as many as 78 were convicted. The same result may easily be proved from other single years. But, next, let us take a period of three years. In.1861 Lord Hobart showed that, acccording to the judicial statistics of 1857–8–9, the chances of escape from the penalty awarded by law for crimes punishable with death was 4½ times greater than the chances of escape for crimes not so punishable. Next, let us take a period of five years. By a calculation which I now offer to your inspection, taken from the authorized "Judicial Statistics," it appears that, during a period of five years, the chances of escape in capital cases were, to the chances of escape in cases not capital, in the ratio of 5 to 1. Let us next take a period of ten years. A carefully prepared table (also compiled from the "Judicial Statistics") for the ten years ending with the year 1862, which I also offer for inspection, shows that, while the chances of escaping the punishment awarded by the law was, for all offences, as 1 to 4, the chances of escaping it for the capital case of murder as 5½ to 1. This result seems to correspond nearly with Lord Hobart's calculations, and with the Returns moved for by the hon. and learned Member for Clare (Sir Colman O'Loghlen); so that it is not unreasonable to conclude that the chances of a murderer escaping the punishment of death — to a great degree because it is the punishment of death—are as 4 or 5 to 1. Yet surely these cases, in which punishment fails to attain its end, are the most serious of all cases, and those which should be punished with the greatest certainty. So that, according to the administration of our law, the small offender is most certain to be punished; the great offender is least certain to be punished.
But it may be said, in the words of Lord Macaulay, "Statistics are mercenaries, and may be made to fight on either side." Let us then turn from figures to facts. Facts show the same results—great uncertainty arising from great fluctuation in punishment. For a certain time it appeared to be understood that women were not to be executed. Most of us remember the cases of Annette Meyer, Celestina Summers, and others, who, though guilty in law, escaped in fact. The policy of entirely exempting women from capital punishment was maintained, or suggested, by some of the leading journals. Then a sudden re-action took place. It was found 2058 to be at once unjust and illogical to subject men to one punishment and women to another. The execution of women was recommenced. Women were again dragged shrieking and fainting to the scaffold; or we waited till a woman produced a child into the world, and then tried and executed her. Under such a system, guilty persons frequently escaped. Numerous cases might be cited—I have a long list here. In the first place, in cases of infanticide, the destroyer of her own offspring almost always escapes the punishment of death. Let me, however—though it is needless to cite examples, when examples are so many—give one instance of the practical effect of such examples. In 1851 a woman was tried for the murder of her child. The Judge said, "It was murder or nothing." The jury found her "not guilty,"—women outside the court were heard to exclaim, "We need not mind what we do now." But we cannot, perhaps, more strongly put the case of the inefficacy of the punishment of death, than by showing that the very same persons who are acquitted when tried for an act for which the law assigns capital punishment, are found guilty when tried for the same act on a charge which does not involve capital punishment. Three men, Barker, Breckon, and Raine, were tried at York, in 1846, for murder. They were acquitted. The same men were tried the next year for the same offence as a robbery only, which, of course, did not involve capital punishment. They were all found guilty. Joseph Travis was tried in 1848, at Lincoln, for murder. He was acquitted. He was tried again the next year for the same offence as a robbery. He was found guilty. At the Maidstone Assizes in 1855, Elizabeth Laws was tried for murder. She was acquitted. She was again tried for the same act on a charge for stealing only, and was found guilty. But, as she could only he tried for stealing, she escaped with six months' imprisonment. Had she been tried on the first trial on a charge of murder, for which the law had ceased to assign capital punishment, she would have been properly and effectively punished by penal servitude for life. If I were to pursue the list I could add very many more cases of acquittals by juries. Let us now, however, turn to cases brought before coroners. In their court no cases are so fearfully common as cases of infanticide. That crime has become painfully common in this country. Foreigners have observed its frequency. There is 2059 an article in the Révue Chrétienne which points to it. According to the Globe newspaper, 800 cases of infanticide, at least, occur yearly. Yet they continue to escape due punishment. Why? Because the law awards the punishment of death for infanticide. In October last Mr. Humphreys, the coroner for the Eastern division of Middlesex, said that the failure of justice in cases of infanticide is "attributable to the law. The legal punishment is death. The consequence is that all sorts of excuses are made rather than find the prisoner guilty." Dr. Lancaster, also another coroner, has recommended the repeal of the punishment of death, because it "made juries less willing to convict."
Let us now turn to the effect of maintaining the punishment of death on the minds of our Judges. As long ago as the year 1847, a Committee of the House of Lords examined the Judges by written inquiry on the subject; several of the Judges declined, or avoided giving an answer; but among them Baron Alderson admitted that "verdicts," in cases involving the punishment of death, "are continually given in the teeth of law and evidence." Mr. Justice Coltman was "disposed to think that imprisonment for life might be substituted for capital punishment." "Many guilty persons," he said, "now escape who would then be convicted." Mr. Justice Wightman says, "There can be little doubt that secondary punishment may be made so severe as to be a sufficient substitute for the punishment of death." Mr. Justice Perrin says, "I am convinced that, in many cases of murder, when juries have either acquitted or not agreed on a verdict, the apprehension of taking away life has been the cause." It is probable that a greater number of Judges would say so now. But, not only among juries, coroners, and Judges, but in the Homo Office itself, there is reason to believe that conviction is forcing its way, and that some of our most eminent official men are convinced of the inexpediency of maintaining the punishment of death. A similar metamorphosis of opinion is taking place, as that which sprung up in our public offices during the agitation of the Corn Law Question. The most distinguished officers of the Board of Trade then became the most strenuous opponents of the Corn Laws. It is an ominous symptom when, in the language of Moore the poet,The extinguishers themselves take fire.2060 But this conversion is natural; for in the public offices they see most clearly, and, as it were, inwardly, the effects of a faulty system, even more strongly than the great mass of observers outside. We have lately seen the effects of such cases as those of Townley, Wright, and Hall, at the Home Office. Can we say that, if Wright was fairly executed (which I deny), Townley was fairly exempted from execution? Hall, indeed, was wisely spared; but, if Hall was spared, ought Wright to have suffered the punishment of death? So argued the public. But why was Hall spared? Avowedly, and avowedly on the part of the Secretary of the Home Department, on account of the strong expression of popular feeling in his favour. I admit the propriety of the concession. But on what dangerous grounds was it made, and how dangerous a precedent was given to the public in favour of popular agitation against the sentences of the law? I boldly say that, when such a reason for infringing the law is not only acted on but avowed, the law ought to be altered; for the law can no longer be maintained consistently with its own consistency and dignity. Now, let us ask ourselves this question. Why do jurors, coroners, Judges, and the Home Office, and finally, the public itself, all act on these motives, and share in these opinions? It is because capital punishment differs from all other punishments. First, because it is irremediable. Every one shrinks from that which, when once done, cannot be repaired. Shakspeare, who rarely, or never, was wrong in sounding the depths of the human heart, qui nil molilur ineptè, makes a character, familiar to us all, say to the lamp—If I quench thee, thou flaming minister,I can again thy former light restore.But who can restore the lamp of life, or revive its once-extinguished light? Another objection to the punishment of death is, that it admits of no gradations. There are different shades of criminality even in murder; yet the punishment is sternly, uniformly one. Another punishment may be adapted to the varying physical powers, or the varying nervous susceptibilities of the sufferer—the punishment of death cannot. The robust man, the feeble woman, the hardened offender who laughs at death, the trembling coward who shrinks from it, all undergo the same unvarying, unbending punishment. Therefore it has, besides being irremediable, this fault also, that it is an unequal punishment. Be- 2061 cause it is unequal, it is therefore unjust. But it is unjust in another sense also, for it overwhelms the innocent descendants of the criminal with an oppressive weight of infamy, and consigns them to an heritage of disgrace, unknown to any other punishment. A very important consideration here suggests itself. Are these objections shown to exist among jurymen, coroners, Judges, in the Home Office, and among the public, likely to increase, or is there a probability that they may diminish? In all likelihood they will increase. I think it is clear that such objections uniformly increase with the progress of civilization. Increased sympathy in the fate and fortunes of each other is one of the tests and consequences of increased civilization. We also may observe that, as time advances, minute distinctions as to insanity are drawn, unknown to law or medicine before. It is not the exposition of the Judge, or the opinion of the jury which decides the question of sanity, but the opinion, perhaps the caprice, of the doctor. So that if such an allusion may be allowed on such an occasion, the scene is like that in the Malade Imaginaire of Molière, where authority is given to the doctor, not only medicandi, purgandi, and saigniandi, but also occidendi. Another source of increasing uncertainty, in the infliction of capital punishment, is to be found in the increase of infanticide. Hence arises this difficulty. If you maintain capital punishment for infanticide, the chances of escape will greatly increase. If you abolish capital punishment for infanticide, how can you maintain it for other kinds of murder? For what life more justly claims our protection than that of the infant which cannot protect itself? Another cause of the increased uncertainty of capital punishment may be found in the increased facilities for poisoning which scientific chemistry affords. In 1861, Sir George Lewis gave this opinion, "With all the modern improvements in medical science, it is still very difficult to form a judgment in cases of medical poisoning." Here, again, the varying opinions of medical men decide the question. Supposing, then, that the aversion to inflict capital punishment goes on increasing, what remedies are proposed? One remedy suggested is, no longer to execute women; but such a distinction between the sexes is at once illogical and cruel. Another suggestion, also referring to women, is no longer to execute them for infanticide; but this distinction is also 2062 forbidden by reason and humanity. A third remedy suggested, is to establish a system of private executions. This would only be a palliative or concealment of the evil. It would be a confession that we are ashamed of what we are doing. The whole scene of the execution, though excluded from the public gaze, would re-appear, perhaps more vividly, in the public press. But, even were the desire to read of such horrors to diminish (which I admit to be probable owing to improved education and better feeling) the precaution of private executions would become needless. For, as the influence of civilization, above all of Christianity, extends, the people will voluntarily withdraw themselves—they are even now beginning to withdraw themselves — from suchPomps of death, and theatres of blood.Are we then to go on with a sort of legislative vis inertia, in the course we have already followed? Can no remedy be proposed? I propose that we have a solemn inquiry. Let us endeavour first to ascertain whether executions really do deter from crime; secondly, with what results they have been abolished in other countries; thirdly, what would be the most effective substitute for them? But it may be said, "Go no further, let premeditated and aggravated murder be an exceptional case, reserved for capital punishment. There is something so special in such a crime that you should maintain it in this case, though you abolish it in other cases." I answer, there are other crimes of violence which, for atrocity, can scarcely be distinguished from murder, such as rape and violent attempts to murder. Rape is sometimes a worse crime than murder. Attempts to murder are also sometimes as bad as murder. If a man all but kill his victim—if he leave him for dead, believing that he has killed him—here the intent to murder exists, and the act of murder is merely prevented by an accident. Yet you do not execute in such cases; and society bears the exemption from execution with safety. May you not, with equal safety, extend the mitigation of punishment to cases of murder, which are many of them scarcely distinguishable from the cases I have mentioned? But, besides this, capital punishment has been safely abrogated in other countries. Our proceedings, our interest in this subject, are not peculiar to this nation. In other countries there is the same shrinking from the punishment of death. In France, we are 2063 told, the juries persist in returning verdicts of murder, "with extenuating circumstances," which exempts the accused from execution. In Italy there is the same reluctance to return a verdict which involves a loss of life. Russia has long abolished capital punishment. I know it is said that capital punishment is virtually inflicted there, because its intended substitute, corporal punishment, is so severe that it kills the criminal. But I hold it impossible that in a civilized nation like Russia this can, except accidentally or exceptionally, be the case. Baden, Oldenburg, Louisiana followed the example of Russia. In Tuscany the abolition of capital punishment has been maintained consistently with public safety, and with a diminution of crime, for more than seventy years. During an interval when it was restored, the authorities had great difficulty in finding an executioner, and could not even raise the guillotine. A new one was procured from Paris, but it was never unpacked. In 1859 capital punishment was finally abolished; and all Tuscany heard with joy, throughout its length and breadth, the decree, La Pena di Morte sarà abolita. In Belgium, we are told, in four provinces, no execution has occurred since 1839. Yet the number of criminals has diminished. In Portugal it has been recently abolished. Will it be said that there are nations more refined than ours, and that the English are too barbarous to dispense with executions? Then we cite the case of a nation said to be even an exaggeration of ourselves—the United States—No execution now takes place in Maine, and capital punishment has been abolished by law in Alabama, Michigan, and Louisiana without any evil results.Two of the cantons of Switzerland, Frieburg and Neufchatel, have also abolished it; and it is stated, in the Report of a Commission lately appointed in Frieburg, that, though for a short time after the repeal of capital punishment crime may increase, yet that, after an interval, the increased certainty of punishment begins to operate, and crime is diminished. In a journal ably conducted at Bologna by Signor Ellero (Giornale per l'Abolizione delta Pena di Morte) a list is given of no less than seventeen countries or states where the punishment of death has been abolished, containing a population of many millions, without including Russia generally, but only the Grand Duchy of Finland.
One argument I desire to press before I 2064 close—that is, the effect of the retention of capital punishment on the administration of justice. In this country our boast has been the supremacy of the law, alike over the power of the Crown and the turbulence of the people. In the late case of Hall it was thought right to make the execution of the law give way before the strong expression of popular feeling. I think that Hall was justly reprieved. But is it expedient, is it not derogatory to the steady administration of justice, that these outbreaks of popular feeling, these incursions of public excitement into the calmer regions of justice and of law, should exist? And must you not expect such outbreaks and such excitement in certain cases if you maintain capital punishment? We are accustomed to think in this country, in the language of a distinguished lawyer and poet, that—Sovereign law, the State's collected willO'er thrones and globes elate,Sits empress, crowning good, repressing ill.But how can she firmly hold the balance, if popular impulse sways it; and how can you exclude popular impulse, if you maintain the punishment of death?
I have shown that figures, facts, and the tendency of the feelings of mankind are against the continuance of the punishment of death. I desire to express my own conviction that it is opposed to the spirit of Christianity and the progress of civilization. I have shown that the remedies usually proposed are inadequate to counteract the evil we complain of. I have shown that the objections to capital punishment go on increasing. Every passing and improving day, which makes man more deeply feel his own responsibility, will make him more averse to the punishment of death. This feeling is deeply seated in the mind, or rather in the soul, of man, and cannot be extinguished. Impressed by this conviction, impelled by these feelings, I once more ask you to reconsider this vital question, and inquire whether you cannot safely resign the awful attribute of disposing of human life into the hands of Him who gave it.
§ MR. DENMAN
said, that in seconding the Motion, he would claim the indulgence of the House for a few minutes, as he could speak from considerable experience in criminal courts, both as a prosecuting counsel and as counsel retained to defend prisoners. He did not intend to argue this Question on the ground that the State had not a perfect power and a perfect right, if it was 2065 necessary for the protection of society, to inflict the punishment of death on those who had deserved it; but he would contend that the burden of proof lay on those who maintained the necessity of retaining that punishment, and that before they intrusted to any one the power of taking away the life of a human being they should have some probable ground for believing that doing so was necessary for the safety of the community. If it could be proved to his satisfaction that by the infliction of capital punishment murders had on the whole decreased, and not, as he thought, in all probability increased, he should give his vote for the retention of the punishment, at least to a certain extent. But from all lie had seen and read, he believed that the punishment of death, instead of diminishing crime increased it. He need not consider the exceptional case of treason; and as, practically, capital punishment was inflicted for no other crime than that of murder, he should argue the question as one relating to punishment by death for murder only. In considering this question it was desirable that hon. Gentlemen should bear in mind how the crime of murder was defined by law—it was defined by law as of malice aforethought taking away the life of another; but when we come to consider what it was in practice, it turned out to be a very different thing. Under the expression "malice aforethought" every variety of murder, wilful and unwilful, was included. When we considered the various circumstances under which the offence was committed, we could not treat murder as an offence which was invariably uniform and equal in its gravity. He was told it might be suggested in the course of the debate that a Committee might be appointed, but with the limited object of considering whether murder ought not to be differently defined; whether, admit ting that capital punishment ought to be retained in aggravated cases of murder, there were not other cases of murder in which it ought not to be resorted to. He hoped that no such course would be adopted; he hoped that the Committee would not be crippled or confined in that way, but that it should be at liberty to take evidence generally, and to consider whether capital punishment ought not to be abolished entirely. He had said that there were different cases of murder, and he should in the first instance take the worst. He would take those committed from the lowest passions, and with the most guilty motives; 2066 and let the House consider whether the class who committed those murders were likely to be deterred from the commission of the crime by the small chance there was of their coming to the gallows. All experience of society and all knowledge of human nature led to the conclusion that they were not. Let them take the case of Palmer or that of the notorious poisoner, Mrs. Chesham, who poisoned her children, and was brought to trial on a charge of poisoning her husband. To the crimes of such persons, the lines of our great poet were peculiarly applicable—Between the acting of a dreadful thingAnd the first motion, all the interim isLike a phantasma or a hideous dream.And equally applicable to their case were the concluding lines—And the state of man,Like to a little kingdom, suffers thenThe nature of an insurrection.The contemplation of the punishment of death was not likely to have the slightest deterring effect on the deliberate intention of those who were of a gambling, reckless disposition, and who were determined at all events to obtain their object. But suppose they did calculate the consequences, what would those consequences he, as such persons would be likely to look at them? A great chance of absolute impunity. In all other crimes the chances of escape were but 22 per cent on the committals, whereas in the case of murder the chances were 50 per cent. In the year 1852, which was a very fair year to choose as an illustration, there were eighty-one persons committed for murder. In the case of eight of these, the grand jury ignored the Bill; five were acquitted on the ground of insanity at the time of committing the offence; six on the ground of insanity at the time of trial; sixteen were convicted, and no less than forty-six were acquitted. The effect of the existence of capital punishment was to secure acquittals for the crime of murder enormously beyond the average of acquittals for other crimes. If criminals calculated upon anything, would they not calculate upon that? It had fallen to his lot to prosecute and defend many persons for murder, and he believed he spoke the experience of all who had been placed in a similar position, in saying that in cases of murder an amount of evidence was required far beyond anything required in other cases, owing to the extent to which Judges, juries, counsel, and all concerned in the administration of the law were constrained by the 2067 horror of sending a fellow-creature to death to distort the facts and strain the law. As to the encouragement which was thus given to crime, he believed there were few, if any, cases in which when a person had been found guilty of murder, and not receiving capital punishment, had been afterwards set at large, such a person had ever committed murder again. But there were cases in his own experience in which persons having been tried for murder and acquitted, because juries shrank from the infliction of capital punishment, had immediately gone to work to commit murder again. There was the case of Mrs. Chesham, who poisoned two children, and who was tried in 1847, and again in 1848. The evidence against her was very strong. Professor Taylor, the Professor of Chemistry at Guy's Hospital, proved that though he had not found arsenic in the stomachs of the children in quantity sufficient to cause death, yet its presence could only be accounted for on the supposition that it formed a portion of a larger quantity that had actually been administered; but because he would not say that he had found sufficient arsenic actually in the stomachs to cause death, she was found not guilty on both occasions. It was proved afterwards that on being taken into custody she had concealed the arsenic in the trunk of a hollow tree, and after the lapse of two years she went and got that arsenic and poisoned her husband with it. She was tried again before Lord Campbell. The evidence was precisely the same, except that the quantity of arsenic found in the stomach was rather smaller than that found in the stomachs of the children; in fact, as she afterwards acknowledged, she had taken a hint from the former trials, and administered the poison in smaller doses. The experienced counsel who conducted the prosecution, knowing the reluctance of juries to convict on capital offences, especially where it would lead to the execution of a woman, and calculating that the jury would most likely not know whether an attempt to murder was punishable capitally, deliberately advised that the prisoner should be indicted for poisoning with intent to murder, in the hope that it would be easier to get a conviction. The jury did find her guilty and she was executed. About the same time there were other similar cases tried on the same circuit. A woman named May was tried for the same offence of murdering her husband, who, it was shown, had 2068 actually gone to consult Mrs. Chesham between the second and third trial as to how the thing was to be done. She was found guilty; but another woman, who was tried under precisely similar circumstances, was aquitted. These cases, he believed, were entirely owing to the encouragement given to crime by the acquittal of Mrs. Chesham. He believed that had Mrs. Chesham been tried in the first instance for a non-capital offence she would have been found guilty, and neither her own second crime nor the crimes of the other women would have been committed. It was a considerable time since the question had been considered by the House, and in that interval considerable changes had been made in the law. There was also a great lack of reliable statistics on the subject, and the proposed Committee would, he thought, do great service if they could throw light upon that part of the question, for in no country, he believed, in which capital punishment had been abolished, had it afterwards been re-imposed. M. Dupetiaux, the Inspector General of the Belgian Prisons in 1834, declared it to be his belief that the infliction of the punishment of death had the effect of increasing the number of murders. In support of that position he stated that, while in the five years ending 1804 there were in Belgium 235 executions, there were in the five years ending 1829 only 22 capital executions, the result being that there were in the latter period only 34 convictions for murder as against 150 in the former; there being no executions in the five years ending 1834, and only 20 convictions for murder. From a Return, he might add, which had lately been published on the Motion of the hon. Member for Clare (Sir Colman O'Loghlen), he found that there were in the year 1857 57 committals for murder, 28 acquittals, 10 no bills, and 11 sentences of death. In 1858 there were 16 sentences and 11 executions; in 1859, 18 sentences and nine executions; and in 1860, 17 sentences and nine executions. Those figures showed that for a considerable number of years the punishment of death had been inflicted only in a very limited number of cases and for very aggravated murders, and the number of those crimes showed during the same period a tendency to diminution. But for the last three or four years a change, he found, had for some reason taken place, and a tendency had sprung up to inflict the sentence of death in a 2069 larger proportion as compared with the number of convictions. The result of that change was not to diminish, but rather to increase, the number of convictions for murder. In 1859 there were 18 persons convicted and 9 executed; while in the next year the proportions were 17 convicted and 12 executed. What followed? There were in 1861, 26 convictions for murder and 14 executions; in the following year, 28 convictions and 15 executions; and in 1863, 22 executions out of 29 convictions. It appeared, therefore, that for a period of 21 years there had not been so large a number of executions for murder as last year. From those statistics he was, he thought, entitled to argue that the carrying out capital punishment on a larger scale had had no tendency to diminish the number of murders. The uncertainty as to whether the sentence of the law would or would not be carried into effect acted, moreover, as a reason to induce the criminal to hope that he might offend with impunity. There were every day cases occurring in which the exercise of the prerogative of the Crown was discussed, and in which the propriety or impropriety of the action of the Home Secretary was canvassed, and all those circumstances operated to the encouragement of the criminal, by, among other things, inducing juries to hesitate before they convicted, inasmuch as they were un certain what the effect of conviction might be. In his own experience he knew of instances in which jurors, whose recommendations to mercy had been set aside by the Home Secretary, had on subsequent occasions refused to convict of the capital offence; and more than this, he had known the same circumstance deter oilier jurors from convicting prisoners of murder. All these things tended greatly to diminish the efficacy of capital punishment, and to produce an impunity, or a belief in impunity, which, if there was any speculation in such matters, must encourage people to commit murders. And what was there in a public execution which could tend to the prevention of crime? Two almost opposite accounts had been given in that House of the effect which the recent execution of the five pirates produced upon those who witnessed it; but, whichever was correct, he was convinced that executions were mischievous. If they did not produce a feeling of sympathy for the criminal, they excited in the minds of the spectators a 2070 brutal feeling which was quite as injurious to public morality. He did not go to the execution to which he had just referred, but he saw hundreds and thousands of men and women coming away from it, and among them was a group of young girls from fourteen to eighteen years of age; and, so far from the spectacle having made a serious impression upon their minds, they were jeering and laughing and throwing themselves into contortions in imitation of the men who had just undergone the last sentence of law. That did not look as if they had been much impressed by the scene. It was illogical to retain the punishment of death for murder, after it had been abolished in the case of attempts to murder, leaving the punishment of the criminal to depend upon the accident whether his victim lived or died. If it was asked what were we to do with murderers, if we did not hang them, he replied "What do you do with them now?" From the year 1838 to 1852, 269 persons were convicted of murder, of whom 148 were executed. Of the rest, 92 were transported for life, and 29 were transported or imprisoned for short terms varying from seven years to six months; but he did not know that any of those persons had ever committed another murder. What did other countries do? He believed that upon inquiry it would turn out that in practice there were very few countries which adhered to capital punishment as a rule; and although we had lost a portion of our power of transportation, we were not worse, but rather better off in that respect than most other countries. All these matters were well worthy the consideration of a Committee of that House, or of a Royal Commission, and if such an inquiry resulted only in a diminution of the offences for which this punishment was inflicted, some advantage would have been gained. But if the Report was that capital punishment was a mistake, and if that Report led to its abolition, the statute which effected that reform would be the most glorious of all the beneficent enactments which had signalized the reign of our gracious Queen.
Motion made, and Question proposed,
That a Select Committee be appointed to inquire into the expediency of maintaining the Punishment of Death."— (Mr. William Ewart.)
LORD HENRY LENNOX
rose to move as an Amendment— 2071That a Select Committee be appointed to inquire into the operation of the laws relating to capital punishment.Whatever might be his own opinion, and he had a very strong one on the subject, he was not about, on that occasion, to attempt to advocate the abolition of capital punishment. All he should do was to give the House a truthful sketch of the operation of the laws relating to capital punishment since the last inquiry was made, now many years ago. He hoped that after he had laid before the House statements tending to confirm some of the views entertained by the hon. Member for Dumfries (Mr. Ewart) and the hon. and learned Member for Tiverton (Mr. Denman), on the subject, the right hon. Gentleman the Home Secretary would not hesitate to grant the inquiry which was asked. Capital punishment had been described by a high authority in English law (Blackstone) as not being of a retaliatory or vindictive nature, but as an example and a means to deter others from committing similar crimes. It must, therefore, be looked upon simply as a police regulation. The question then was, whether it fulfilled the requirements of a police law. One of the greatest requisites of healthy police regulation was certainty of the conviction of the guilty; and there could be no doubt that in many cases the difficulty in getting a jury to convict was occasioned by the penalty which it was known would follow upon their sentence. The House would excuse him if he stated to them the circumstances of a case which occurred some two years since in the city which he had the honour to represent in Parliament (Chichester), and which made at the time a profound impression on his mind. The circumstances were as follows:—An unfortunate young student at the Training College in that city was passing along a lane; when he reached a certain spot he was shot by a person in a soldier's dress, lingered for two days and died in great agony, so much so that he was unable to give any accurate account of the transaction. The shot was evidently not intended for this unfortunate youth, but for the colonel of one of the regiments stationed in the barracks, and whose wont it was to pass that spot at that hour. Suspicion at once fell upon a soldier in those barracks. He had been heard to vow vengeance against the officer in question. The corporal who slept in his room testified to the man leaving in the night, and to observing that in the place where the musket 2072 should have been it was not. He also heard the shot fired about the time the murder was committed. The soldier, shrinking with a guilty fear, instead of remaining in barrack to meet the charge, conscience-stricken fled across the fields, and was taken hiding himself in a ditch; his musket, with barrel exploded, was picked up in a neighbouring field. He was brought to trial. A stirring speech was made by his counsel, who threw doubts upon the circumstantial evidence, told the jury that if they convicted the man they would consign him to certain death, and was it not then much better that ten guilty men should escape rather than that one innocent man should suffer? The prisoner was acquitted. He (Lord Henry Lennox) felt at the time, and felt now, that a stronger instance could not be brought forward of the extreme difficulty of inducing jurymen to convict in capital cases. But can any man in his senses doubt, if the penalty had been one of penal servitude instead of capital punishment, that the jury would have returned a verdict of guilty? Now, if juries shrink from conviction in cases of adult murders, what shall we say of the cases of infanticide? No one who had watched the course of events for the last few years could doubt that this crime was greatly upon the increase. The public mind had lately been shocked by the accounts of dead bodies of infants stowed away wholesale in every cranny, and even in the coffins of adult strangers, in order to prevent the necessity of obtaining a medical certificate. Medical certificates were very properly designed as a protection to life by stating officially the cause of death; therefore he held that, when they found that these means were resorted to to avoid the ordeal of a medical certificate, they had primâ facie evidence for believing that, in many instances at least, those bodies had been the victims of foul play. After the cases brought forward by the hon. Member for Dumfries (Mr. Ewart), he would only trouble the House with one or two more. Some four or five years ago there was a remarkable case tried at Exeter. A woman named Boucher, tried at the spring assizes at Exeter last year, was found pressing the body of a new born infant in a tub — the child's neck bore marks of strangulation. The mother had been once before charged with a similar crime, but, having partially burnt the body, it could not be shown that the 2073 child had been born alive, and could only be found guilty of concealment of birth. Still more recently a young woman (Margaret Robinson) was tried for child murder at Carlisle. She had stuffed two rags down the child's throat; that they could have been there by accident was an utter impossibility. In addition to this, the infant had been strangled, and was found with a rope and a black mark round its neck. The jury, however, found her guilty of concealment of birth only, the verdict extracting from Mr. Baron Martin the exclamation of "Not guilty of murder, gentlemen!" These expressive words he used to show his surprise at such a verdict. He (Lord Henry Lennox) did not think that any one would deny that some inquiry was necessary after the remarkable speech which had lately been delivered by the Lord Chancellor, one of the most distinguished lawyers of this or any other times. He distinctly affirmed it as his conviction, that the time had come for a classification of cases of homicide. The hon. and learned Member for Tiverton (Mr. Denman) said truly that several crimes came under the category of murder, and that for those crimes there was but one punishment. He appealed to any Gentleman in the House whether it was possible to see a greater variation of vice, premeditation, and guilt than could be found in the capital cases tried at the assizes. Yet for one and all the sentence was death. What more could be said against the actual state of the law than this—that at present there is the same penalty attached to the case of him who, for a trifling gain with subtle skill, administers in small doses the deadly poison, and smiles upon the prolonged agonies of the fading victim, and for him who in a fit of drunken brawl, while the blood is heated with liquor, and some fancied wrong, if not in self-defence, destroys the life of his paramour or companion? What shall we say to the law which administers the same punishment to Palmer or Catherine Wilson, and the wretched man Wright? It was impossible for any one to say that that was a healthy state of the law, where two crimes so dissimilar in their character received the same punishment. A sentence, he thought, should rest upon such solid grounds that, once passed, it should be irreversible, and should not be dispensed with either at the caprice of the Minister or in obedience to popular clamour. From the speeches of the right hon. Gentleman the Secretary for the Home Department, he gathered that the existing law on the sub- 2074 ject of capital punishment was as follows:—When a man was convicted and sentenced to death, the Judge wrote immediately to the Home Secretary apprising him of the fact. Thereupon his friends or the humanitarians got up a petition to the Home Office for the commutation of the sentence, and the Secretary of State referred the matter back to the Judge. According to theory, if the latter held that there was no ground for revising the sentence the matter was dropped, and the man went forth to be hanged. To the state of things represented by that description of the law he objected strongly. In the first place, it was putting too much upon the Judge, and, moreover, leaving the issue dependent very much on his personal character. There were some Judges who, like himself, shrank with horror from the thought of taking a human life; while others of stronger minds were known in the popular phrase as "hanging Judges." Even, therefore, supposing this were a fixed law, he should protest against it. The facts, however, were the reverse of what had been represented to the House, for the fiat of the Judge was not always final. The case of Jessie MacLachlan had caused the greatest dissatisfaction, and not twelve months ago a case occurred which was much discussed both in that House and out of it. The Judge confirmed the verdict, and not only that, but he applied to the senior Judge of the Court, who confirmed it also; the jury not only agreed upon their verdict, but afterwards with praiseworthy industry went through the evidence, and came to the same conclusion again. This double conclusion was in accordance with the opinion of the Judge, confirmed by that of the high functionary; yet the Secretary of State for the Home Department, who in other cases rested everything upon the fiat of the Judge, disregarded that and the opinion of the jury as well, and by the exercise of the irresponsible power committed to him rescued from execution one of the greatest criminals in the country. Since then they had had another case, in which he (Lord Henry Lennox) concurred in the course the Home Secretary had adopted. He alluded to the case of Hall. But what were the circumstances in connection with that case? Mr. Waddington, of the Home Office, wrote a reply to a memorial which had been addressed to the Home Secretary for a commutation of sentence in which the following words occurred:— 2075There can be no doubt from the evidence that the murder was deliberate and premeditated.… Sir George Grey feels that it would be of most dangerous consequences to society if such provocation as the prisoner received were held sufficient to exempt a man from the penalty attached by the law to deliberate and premeditated murder; and therefore he regrets to be compelled to come to the conclusion that it would be inconsistent with his duty to recommend a commutation of the sentence.What followed? Yielding to the blandishments of some of his (Lord H. Lennox's) hon. Friends, the Secretary of State, at the last moment, respitcd Hall, and having pronounced that, in his matured judgment, the prisoner had been guilty of "deliberate and premeditated murder," he consented to forego that opinion in deference to popular opinion and to public clamour. If popular clamour and public opinion were to prevail, he would ask the right hon. Gentleman why they did not prevail a few weeks ago. Was there no popular clamour or public opinion in favour of Thomas Wright being reprieved? Did not large bodies of his fellow-workmen press to the Home Office, and even go as far as the threshold of Windsor, to pray for the remission of the sentence on that man, but in vain? He thought it much to be regretted that the right hon. Gentleman did not remit the sentence upon Wright. The noble words used by the right hon. Gentleman in the case of the woman MacLachlan could not he too often repeated, and he would ask permission to read them to the House—I think it is most important that the administration of the law should not only be right, but that there should exist a general impression in the public mind of the country that it is right and just; and especially in regard to capital punishment is it undesirable that it should be inflicted where there prevails a general, I may almost say a universal, feeling that there were circumstances in the case which rendered that course inexpedient."—[3 Hansard, clxx. 693.]On another occasion the right hon. Gentleman said—I mention this to show that a case may be quite clear, and no ground for a commutation of the sentence may arise from any doubts as to the facts, and yet if you mean to retain capital punishments at all, it may not be expedient under some circumstances to let the law take its course. I think that capital punishments ought to be maintained, but I feel that they cannot be maintained if you stretch the law to the extreme, and execute every sentence without regard to its effect upon public opinion."—[3 Hansard, clxx. 694.]There never was a case in the annals of capital punishment in which public opinion was so strongly enlisted as in favour of Wright. There were great apprehensions 2076 of a popular attempt at rescue. He died in a spirit of bravado, expressing his thanks to the crowd, amid uproarious expressions of sympathy. Even the wretched creatures in the opposite houses, who usually made money by letting their windows on those occasions, showed their sympathy by closing their windows and putting down their blinds. They were willing on that occasion to forego their unholy gains. With three such cases—of mistaken clemency in the instance of Jessie MacLachlan, of rightful clemency in the case of Hall, and wrongful severity in the case of Thomas Wright—it was reasonable to ask at the hands of the Home Secretary that he should grant the inquiry and enable the House to obtain that evidence which they had had no opportunity of acquiring on this subject since 1847. Whatever his opinions might be, and they were strongly against the continuance of capital punishment, he wished to point out to his hon. Friends near him, many of whom did not share his opinions, that even from their point of view there were strong grounds for this inquiry. Not many nights ago, in another place, one of the most talented and most vigorous-minded members of the House of Peers (the Earl of Ellenborough) moved the first reading of a Bill to alter the law in respect of the revision of capital sentences. He did so, saying that recent proceedings had shown the absolute necessity of a change in the present practice at the earliest period. The noble Earl contended that the practice of the law ought to be amended, so that the utmost authority and weight should attach to decisions in regard to capital sentences, and that the whole responsibility should not be thrown on the Home Secretary alone. The noble Earl added that—Unless the country was made to understand that entire confidence could be placed in the decisions on these questions, there would be some danger of our being forced to abandon a punishment which he believed to be necessary to the interests of society."—[3 Hansard, clxxiv. 1484.]Being himself an advocate of the repeal of capital punishment, he (Lord H. Lennox) would appeal to his hon. Friends around him to follow the lead of the noble Earl in another place, and to join him in asking the Home Secretary to consent to this inquiry. The hon. and learned Member for Tiverton (Mr. Denman) had alluded to a statement he had made in that House relative to an execution some short time ago. He believed that his statement simply applied to the demeanour of the crowd on 2077 that occasion, which led him to suppose that those upon whom it was expected a salutary impression would be made were not in any way awed by the sight which they witnessed, but, on the contrary, viewed the spectacle with levity and indifference. Since then he had looked to the Report of the Lords' Committee, and found that it confirmed the opinion he had then expressed as to the effect of capital punishment upon the lower classes. The writer of a pamphlet which he held in his hand stated that the criminal classes expressed a deliberate preference of the violent death to the punishment of transportation for life. The Rev. James Amos, incumbent of St. Stephen's, Southwark, containing a population of 8,000, many of whom were of the lowest class, in a pamphlet which he held in his hand, stated that he had heard the punishment of hanging spoken of by that class with the most complete indifference, and that on the occasion of the execution of Wright nothing was heard except sympathy for the criminal and colloquial jokes among the crowd. If the right hon. Gentleman thought him incapable of deciding whether capital punishment should be retained or not, he could assure him he had not the slightest wish personally to take part in the deliberations of the Committee. He trusted, however, that there would be a Committee appointed, and that it would not be limited in its operations. He moved his Amendment with the view of widening the field of the inquiry, because he believed the Motion of the hon. Member for Dumfries (Mr. Ewart) to be far too confined to meet the object in view. He felt the most extreme confidence in the result of the deliberations of the Committee, because he believed that such an overwhelming mass of evidence would be brought forward as to compel the Committee to recommend to the House a change in the law, and thus remove from our country one of the greatest scandals that could possibly afflict it. The noble Lord concluded by moving, as an Amendment, that a Select Committee be appointed to inquire into the operation of the laws relating to capital punishments.
§ MR. MITFORD
said, he would second the Amendment, because he thought it would open a much wider range of inquiry than the original Motion. They must all admire the spirit which animated the hon. and learned Member for Tiverton (Mr. Denman) during his speech; but, at the same time, as long as human nature was 2078 what it was, he thought it would be necessary that capital punishment should be retained until they had devised some secondary punishment which would have the same deterring effect. He believed, however, that there was a strong feeling on the public mind in reference to the horrible spectacles sometimes presented at public executions, and the discussion in that House in February last, and the Report of the Select Committee of the House of Lords some years ago, had given great support to that feeling. In his opinion the hon. Member for Oldham (Mr. Hibbert) did good service in bringing this matter before the House last February. It was with much sorrow and disappointment he (Mr. Mitford) heard the right hon. Baronet the Home Secretary, treat on that occasion the Report of the Lord's Committee with apparently very little respect. That Report recommended that executions in public should be suppressed, whilst the utmost precaution at the same time should be taken to secure the due execution of the sentence. The right hon. Baronet said he thought that no Committee had ever come to a positive decision on a subject on less clear and conclusive grounds. Now this was an extraordinary observation, considering that some of the most eminent Members in the Upper House, including three Chancellors, were Members of that Committee. He need only mention the following names:—The Marquess of Lansdowne, Earl Stanhope, Earl Grey, the Bishop of Oxford, Lord Lyttelton, Lord Brougham, Lord Campbell, and Lord St. Leonards. Such men as these were not likely to put forth a Report on grounds that were not clear and conclusive. There was a time when the rotting carcases of malefactors might be seen swinging from gibbets on our highways; at another time it was thought that no better ornaments could be placed upon our city gates than the heads of traitors; and at those periods men in authority were found to advocate the practices, on the ground of their deterring effects. Happily we had lived to see those practices abolished without any of those evil results which had been anticipated. In like manner it was now argued that criminals should be publicly executed in order to deter others from the commission of dreadful crimes. But what evidence was there to show that public executions had a deterring effect? The right hon. Baronet said, "Who knows how many persons out of the crowd that witnessed those execu- 2079 tions might be impressed with the sense of fear against the commission of murder who would otherwise be likely to fall into that crime?" Well, he (Mr. Mitford) echoed the right hon. Gentleman's language by asking—Who knows? But the evidence which had been given on the subject was all the other way. Public executions did not appear to impress any one on the spot with any good feeling whatever. They appeared to cause unmitigated evil by bringing together masses of people who, for reasons of policy and morality, should be kept isolated and dispersed. They knew that a place of execution was a scene of debauchery of the grossest nature. They knew that when the unfortunate criminals were brought on the scaffold men whistled and behaved as though in the gallery of a theatre, and while the attention of the spectators was attracted to what was going on their pockets were picked. He thought the practice of public executions was unworthy of the age, and he hoped the time would come when they would cease. He called the attention of the House to a letter on the subject from Mr. Charles Dickens, written since the execution of the pirates at Newgate. Mr. Dickens said he ventured to suggest that the question of public executions was not one to theorise about. No man's opinion on the subject was worth anything to him unless he had seen the shameful sight. He (Mr. Dickens) was, he said, outside of Newgate on the occasion of the execution to which he referred, and declared the scene was diabolical.
To leave out from the word "The "to the end of the Question, in order to add the words "operation of the Laws relating to Capital Punishment,"—(Lord Henry Lennox,)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. ALDEEMAN ROSE
said, as the speeches had hitherto been all on one side, he thought something should be said on behalf of the public. As far as he could judge, the tendency of the speeches they had just heard was simply this—"Murder made easy." Having had some ten years' experience as Commissioner of the Central Criminal Court, he was bound to say that his idea of the conduct of juries was quite different from that of the hon. and learned Member for Tiverton (Mr. Denman). It was his belief that, in the main, juries 2080 performed their functions faithfully and honestly; they were, no doubt, always very jealous of the evidence upon which a man was to be convicted, and anxious to give the prisoner the full benefit of any doubt which might arise in their minds as to his actual guilt; but that was nothing more than what was in accordance with the law of the land and of humanity. Taking everything into account, it would be found that on the whole just verdicts were given. The hon. Member (Mr. Mitford) said that the punishment of death for murder must be retained until they had discovered some secondary punishment which should have an equally deterring effect. Well, did the hon. Member know what "secondary punishment" meant? It meant giving a convicted criminal a ticket-of-leave, entitling him to go about freely, perhaps to rejoin his old associates, and join in the perpetration of new crimes. Was secondary punishment applicable to such cases as Catherine Wilson, the notorious poisoner, who had succeeded for years in carrying her deadly designs into execution? or as Mrs. May's, or Mrs. Chesham's, or the notorious Palmer's? He believed the public out of doors would not think that kind of punishment the cure for that kind of crime. They were there to legislate for the people. He was quite aware that much sympathy was felt for the convicted murderer, and it was said "a hanged man was past recovery;" but so was the victim. It was quite right, no doubt, that every secondary punishment should be of such a nature that it should have a deterring effect; but it had been and always would be regarded as a deterring circumstance by the class of people who attended executions that the punishment of death should follow such crimes as that for which the man was hung yesterday. That man did not intend to commit murder, it was said. But what did he do? He got an iron bar, came behind his victim, and battered his skull in, whereas if he had only committed robbery he would have got off with secondary punishment. He happened to be Sheriff of London and Middlesex in 1856, and was instrumental in saving the life of a man who had murdered his wife while under the influence of drink. The execution was to have taken place on the Monday, but the reprieve came on Saturday night, and the man was consigned to penal servitude. But what was the effect of this secondary punishment? He believed the man had become penitent, and he had had several 2081 letters from him; but the man hail actually made application to him to obtain a free pardon. But with what face could be (Alderman Rose) urge that that man, who had murdered his wife and ought to have been hanged according to law—but that there were mitigating circumstances in the case—should within seven or eight years he not only freed from the consequences of his crime, but enabled to come home to his family and enjoy his secondary punishment. The hon. and learned Member for Tiverlon had quoted instances of a number of persons charged with murder who had been acquitted on the ground of insanity. But, then, these persons were sent to a lunatic asylum, and were to be kept there for life. But that was not secondary punishment. If a criminal was sane, and if he did as Mrs. Wilson, Mrs. Chesham, and Mrs. May had done, the only safeguard to society was to hang them out of the way, and free society from the chance of further injury from them.
§ MR. NEATE
said, that as the forms of the House precluded him from moving the Amendment of which he had given notice (for an Address for the Appointment of a Royal Commission to inquire into the provisions and laws under which the punishment of Death is now inflicted), he desired to show that the terms of the Motion of his hon. Friend (Mr. Ewart), or of the noble Lord, would not give as comprehensive a scope to the inquiry as the circumstances warranted. The subject of inquiry ought to be not only the law as regarded murder, but also as regarded treason, which had been disposed of in a rather summary way as an offence not likely to occur. They had been so much accustomed to hear of the crime of murder, that it had come to be believed that it rested on the common law, without any reference to statute law. But this was not so, and the Criminal Law Commissioners, who had gone very fully into the subject, had pointed out how the Judges had departed from the plain meaning of the statute inflicting capital punishment, and suggested that there should be a better definition of the crime of murder, and they said that, the construction put upon the words malice prepense was not that which was intended by those who framed the statute. He (Mr. Neate) thought it would be right to consider whether a distinction could not be established by law between aggravated cases of murder and other cases which were not of so deep a die. In other coun- 2082 tries the juries were allowed to declare, if they so thought fit, that "extenuating circumstances" existed, and, in his opinion, that practice might be introduced into this country. With regard to the Amendment moved by the noble Lord (Lord Henry Lennox), the question arose whether the inquiry would not be better conducted by a Commission than by a Committee? Without any disrespect to the Committees of that House, he thought it would be difficult just now to appoint a Committee composed of men of sufficient authority who would be able to give up their time to an inquiry on the subject; and he also conceived it to be desirable that the inquiry should be conducted by a body less numerous than Committees generally were, and not so much by formal discussion as by the results of frequent suggestion and intercourse. On the other hand, if a Commission were appointed, the country might have the advantage of the presence of one or two of the Judges as members of that body. Still, whether by Commission or Committee, the subject ought to be inquired into. He believed that the first effect of doing away with capital punishment might probably be an increase in the number of crimes; but ultimately a decrease in the number was to be anticipated, as the Penal Servitude Commission had shown that generally crime had diminished within the last twenty years, during which period offences had been less severely punished. The number of exceptional cases had increased so much that it had become very difficult to draw the line between the exceptions and the rule; and the result must, sooner or later, be, that in attempting to deal with the exceptional cases it would be found necessary to give up capital punishment altogether. But however that might be, the time had come when it was essential that there should be inquiry.
§ SIR GEORGE GREY
Sir, I will, with the permission of the House, state the course which the Government think it right to take on the important subject now under its consideration. Some years have now passed since my hon. Friend the Member for Dumfries (Mr. Ewart), who has always been a strenuous advocate of the abolition of the punishment of death, brought this question before the House. I think he acted wisely and with a sound discretion in discontinuing to pursue the course of annually submitting this Motion to Parliament; and, no doubt, he must have been 2083 aware that the object he had in view, "a declaration that the punishment of death ought to be entirely abolished," was contrary to the general feeling of the House and to the country. However a considerable interval has elapsed since he last brought forward this proposition. I think no one can find fault with him for now reviving the Question. It is a matter of the utmost gravity and importance, and one with respect to which I hope the House will exercise much caution before adopting any determination. Since the last Motion on this subject was made, a considerable change has taken place in the law with respect to capital punishment. For many years past capital punishment has been limited almost exclusively to cases of wilful murder, but there wore, until lately, other crimes on the statute-book to which the penalty of death was attached. However, upon the consolidation of the criminal law in 1861 an important change was made, and the law was brought into harmony with what had been recently the practice, and the penalty of death was repealed, so far as concerned England and Ireland, in all cases except wilful murder and treason. Happily treason is a crime scarcely known in our country in modern days, and therefore we may treat the penalty as now attaching only to wilful murder. Under these circumstances, my hon. Friend asks the House to remit to the consideration of a Select Committee the important question whether it is or is not expedient that capital punishment should be maintained in the case of that crime. I must say at once, on the part of the Government, that I do not think this is a question which should be referred to the opinion of a Committee. It is a question of the gravest character, most seriously concerning the interests of society, and deeply affecting the security of human life. I do not say it is not a subject which the House should entertain. Far be it from me to set up my individual opinion against that of those who have come to the conclusion that capital punishment should be abolished; but I say it is a subject which, if it is to be dealt with at all, should be carefully and maturely considered by the House itself. It is a question which ought not to be referred to the judgment of fifteen gentlemen upstairs, and decided, perhaps, by an accidental majority in a Committee—more especially as after all the decision would not in the least degree bind the future action of the House. On the general ques- 2084 tion I adhere to the opinion I have frequently before expressed in debates on this subject—that it would neither be safe nor expedient to abolish capital punishment altogether in all cases—even of the gravest kind—cases of wilful and deliberate murder. I believe that by its abolition you would remove a security which now protects human life; and while my hon. Friend (Mr. Neate) believes that the abolition would cause only a temporary increase in the number of murders, I believe that it would not only tend to increase the number of such crimes in the first instance, but that it would do so permanently, because the deterring effect which capital punishment now has, not on the criminal class only, but on those who are only just removed from it, would be lost. My hon. Friend the Member for Dumfries has referred to the Report of the Lords' Committee in 1847, who no doubt expressed an opinion in regard to capital punishment which is well worthy of consideration; but I would observe to my hon. Friend that that Committee was appointed in different terms from what he proposes. It was a Committee to inquire generally into the execution of the criminal law, especially as regarded juvenile offenders and transportation. It was presided over by Lord Brougham, and questions were addressed to the Judges in England, Scotland, and Ireland. One of these questions was whether any form of secondary punishment could be devised as an effectual substitute for capital punishment. The answers given by the Judges, and, indeed, the evidence taken generally before the Committee, deserve the careful consideration of hon. Members. To my mind, the evidence fully bears out the opinion which, in one sentence of a very long Report, was expressed by the Committee. They say—Respecting the expediency of abolishing capital punishment the Committee found scarcely any difference of opinion. Almost all witnesses, and all authorities, agree in opinion that for offences of the gravest kind, the punishment of death ought to be retained.I am satisfied that there is no punishment so much dreaded; and whatever arguments to the contrary may be derived from statistics, I am afraid that they form rather an unsafe guide on this matter. Common sense tells us that capital punishment is looked upon with horror and dread; and no one who has filled the office I have now the honour to hold, who knows how constantly efforts are made to ob- 2085 tain a commutation of the sentence, and how the most severe secondary punishment is gratefully received as a substitute for the extreme penalty, can doubt that it is so regarded. My hon. and learned Friend the Member for Tiverton (Mr. Denman) says that capital punishment exercises no deterring effect on that limited portion of the criminal population by whom murders are committed. On that point I would invite his attention to the replies which the Judges gave to the questions of the Lords' Committee. The Judges draw a distinction between one class of the community and the other. They point out that the deterring effect of punishment is not to be measured merely by its influence on men who are hardened in crime, who are actuated by evil passions, and who, from a total absence of all principle, are almost reckless of the consequences which they entail on themselves. The deterring effect on the great mass of the population who do not belong to the criminal class must also be considered. One of the most distinguished men who had adorned the judicial bench, Lord Denman, the father of the hon. and learned Member for Tiverton, in reply to the question as to whether a secondary punishment could safely be substituted for the capital penalty, declined to express any opinion, as he had not sufficiently considered the question.
§ MR. DENMAN
desired to explain. He had the opportunity of knowing that the reason why his father abstained from expressing an opinion was that, as a judge, daily called upon to execute the law, his views might have been quoted as a reason why the law should not be carried into effect.
§ SIR GEORGE GREY
I believe I stated correctly the answer which the late Lord Denman is recorded to have given. I did not cite his opinion as in favour of capital punishment. On the question of the deterring effect of that punishment, however, the late learned Lord said—I think I have seen many instances of for bearing to add aggravation to the criminal act from fear of the severer punishment. I allude in particular to burglary and highway robbery.Again, Mr. Justice Cresswell, an authority of great experience, expressed this opinion—Where burglaries and robberies are committed with deliberation, I think that the fear of capital punishment often saves life.The truth is that the saving the life of a criminal may, in certain cases, in- 2086 volve the sacrifice of an innocent person. That is, in my opinion, the only ground on which capital punishment can be maintained, and I believe it to be sufficient. If you can show me a punishment of a secondary kind which has the same effect in deterring from the perpetration of murder, I will, by all means, support its adoption; but till convinced that an effectual substitute can be found, I cannot consent to the total abolition of the punishment of death. As to its deterring effect on the population above the criminal claw, we have the explicit opinion of Baron Rolfe, the present Lord Cranworth, who said—Capital punishment is now practically confined to cases of murder, and in such cases I think it ought to be retained. I think it very important to leave to every criminal the strongest possible motive for abstaining from murder, in whatever crimes he may be engaged. I think that the deterring effect of punishment generally is very great, not upon the actual criminal population, but upon the vast masses a little removed above guilt,The late Lord Cockburn, an eminent Scotch Judge, also stated—I think the deterring effects of punishment very great, not on the hardened, or on those to whom the commission of crime has become a sort of necessity, but on those who are still guiltless.A living Irish Judge, Chief Baron Pigot, expressed the following views:—I think the fear of punishment does substantially operate upon the large class of culprits who are tempted to crime, without the incentive of violent passion, and whose habits previous guilt has not depraved, including those who have not hitherto been at all engaged in crime.My hon. and learned Friend the Member for Tiverton gave us some statistics as to Belgium. He stated that at one period executions there were very numerous, and convictions equally so; but that subsequently the executions diminished and so did the number of convictions. My hon. and learned Friend inferred that the decrease of convictions was due to the decrease of executions, and that there was less crime; but I would reverse the argument, and say that the executions were fewer because fewer persons were convicted. In speaking of the number of acquittals, my hon. and learned Friend also omitted an important consideration, which is that a man may be put on his trial for murder and acquitted of that charge, but convicted of manslaughter. The distinction between the two is in some cases almost imperceptible; and a man may be convicted on the less serious charge without an acquittal in the sense referred 2087 to by the hon. and learned Member, and without evidencing any disinclination on the part of the jury to convict. The hon. and learned Member had also alluded to cases of infanticide, in which it was difficult to obtain a conviction. But with regard to this crime, one of the Judges lately expressed the opinion that women were often committed on that charge on most insufficient evidence taken at the coroner's inquest; and many of the cases cited by his hon. and learned Friend as cases of murder resolved themselves, on careful inquiry, into mere cases of concealment of birth. It is clear in like manner that in many cases of committal for murder the evidence was primâ facie sufficient to justify the committal on that charge; but the result of the trial might show that murder was not the crime committed, and that manslaughter would, in accordance with the opinion of an honest jury, he the right verdict. With regard to the increase of the crime, I will not weary the House with statistics, but I must say that I do not think any one can allege that, looking to the vast and rapid increase in population, murders have increased. We know there has recently been an increase of crime of all descriptions, though we cannot very easily determine the cause, and there have been rather more murders committed in 1863 than there had been in some previous years; but, compared with many years ago, murders have considerably diminished, and no one can say that the crime is substantially on the increase. Considering the vast increase of the population, I believe there has been a great decrease of this crime. There are very few cases in which, I think, you can say that the verdict of acquittal was actually against the evidence. Such cases occasionally happen; but in ordinary cases the jury, acting under the direction of the Judge as to the law, return the proper verdict. I think any one who reads the charges of the Judges must say that nothing can be more fair and impartial than the manner in which they leave these cases to the consideration of juries; and, speaking of juries generally, no complaint can be made of the manner in which they consider the facts before them, and there is no reason to charge them with any violation of the oath they have taken to return a verdict according to the evidence. No doubt there are cases in which the jury, acting on their conviction of duty and the evidence, and relying on the law 2088 as laid down by the learned Judge, find the prisoner guilty and recommend him to mercy; and it has been said that in such cases it is the duty of the Secretary of State to attend to that recommendation. The usual practice is, when such a recommendation is made by the jury, that the Judge asks the grounds on which it rests; he reports it to the Secretary of State, and says whether, in his opinion, the recommendation is borne out by the facts, and is entitled to weight. It would be a most dangerous doctrine to hold that the recommendation of a prisoner to mercy by a jury must in all cases have that weight given to it, and that, irrespective of the grounds on which it rests, it should interfere with the execution of the sentence. Indeed, such a course would be fatal to the administration of the law. For these reasons I certainly am not prepared to assent to the Motion of my hon. Friend the Member for Dumfries, either for the introduction of a Bill to abolish capital punishment, as originally placed on the notice paper, or for a reference to a Committee of the simple question whether, in their opinion, capital punishments ought to be maintained or abolished. But two other notices have been given on this subject in the shape of Amendments—one of which has been moved by the noble Lord the Member for Chichester (Lord H. Lennox), and the other was intended to be moved by the hon. Member for Oxford (Mr. Neate). These Motions have the same object. They both evade the direct question. They do not ask the Committee to report whether capital punishments ought to be maintained or abolished, but they suggest an inquiry as to the operation of the law of capital punishments, and report whether any alteration should be made in it. Now, there are many points connected with capital punishments, and indeed with the law of homicide generally, which I think might usefully be the subject of inquiry. First of all, I would say there are certain homicides punishable with death in this country not so punishable in many of the Continental nations and in several of the States of America, although in those nations and states capital punishments form part of their criminal code in cases of crime of the gravest character. The definition of murder has been referred to; and I would call the attention of the House to that definition—By the English law murder is the unlawfully killing another with malice aforethought, express 2089 or implied. 'Malice afterthought' is a mere technical term, and is frequently a conclusion of law, rather than a question of fact. No actual forethought or premeditation is required; if the wicked intent, which is not necessarily an intent to kill, is executed the moment it springs up in the mind, the act may yet be murder. The rules for determining when malice afterthought is to be implied from circumstances, and when not, are not laid down in any statute, but are to be collected from a great variety of eases to be found in the books, and though resting, sometimes, upon nice distinctions, are, upon the whole, pretty well settled and understood. The law always infers it when death is inflicted in the act of committing a felony, though there is neither premeditation nor intention to kill, or even to do serious injury to the person killed. And even when the wrongful act causing the death is not done in the prosecution of a felony, still, if it be done wilfully and deliberately (that is, with no such provocation as by law reduces murder to manslaughter), with a malicious and mischievous intention seriously to injure the person killed, or any other person in particular, or all persons indiscriminately, the crime amounts to murder.Now, it is obvious that under this large definition there must be a great variety in the degrees of guilt attaching to crimes which legally constitute murder according to the law of England; but, although there is this great variety in the nature of this crime, the law toot only attaches to each the punishment of death without distinction, but it leaves no discretion to the Judge as to the punishment to follow conviction. A change in the law in this respect took place in 1861. Before 1861 the practice was for the Judge, when he thought the capital sentence ought not to take effect, although there had been a conviction for a crime to which the law attached the punishment of death, to direct that that sentence should be recorded, and he abstained from passing the sentence. It was then perfectly understood at the time that the Judge, having presided over the trial, heard the evidence, weighed it, and considered the verdict of the jury, was of opinion that the extreme penalty ought not to follow, but that, although death was recorded, the sentence ought to be commuted; and the practice was for the Judge to write to the Secretary of State, report the case and sentence as recorded, and suggest to the Secretary of State that the sentence should be commuted, and a minor sentence adequate to the crime committed substituted for that which had been recorded. In the case of manslaughter, the next crime in gravity and guilt to murder, a discretion is left to the Judge. There are cases of manslaughter where the Judge assigns a merely nominal punish- 2090 ment, such as imprisonment for a day, and others where he passes a sentence of penal servitude for life. With regard to murder, the Judge is required in every case, since the change in the law in 1861, to pass the capital sentence. Now, I think there is ample room for inquiry whether that change of the law has been beneficial. An instance occurred at the last assizes. A woman was tried for murder and convicted; the Judge passed sentence of death; she was carried away from the dock, and, to use the common terra, left for execution. The crowd disperses; they have seen the Judge, in conformity with the law, and with all the solemnity observed on such an occasion, pass sentence of death, and they do not know whether that sentence is to be executed or not. The Judge then writes to the Secretary of State, reports the case, says that if he had had the power he should not have passed the sentence, and that he is perfectly satisfied it is a case in which no good result can follow from the sentence being executed; that, in fact, it ought not to be executed, and recommends a commutation. Well, that commutation of course takes place—for a sentence which the Judge said, if he had not been compelled by law he would not have passed, cannot be carried into effect. In accordance with the common practice, the Judge informed me what sentence he thought would have been adequate under the circumstances. Thus the discretion formerly exercised by Judges in capital cases is now taken away from them; they represent the matter to the Secretary of State, and upon him is thrown the whole responsibility of doing that which the Judge in any other case would have had the power of doing himself. It would, I think, be much better that the sentence should be passed by the Judge in the presence of those who heard the trial, rather than that he should make a private communication to the Secretary of State, who, acting on his recommendation, appears to the public to be overruling the sentence of the Judge, while, in fact, he is only carrying out the views of the Judge. This is a point connected with the subject of capital punishment which I should be glad to see inquired into. There are many difficulties attending the execution of this branch of the criminal law, and I think it would be advantageous, and would strengthen the hands of any person who fills the office I now occupy, if an inquiry 2091 took place which would show what the real practice is, and which at present is very little understood. There is another part of the subject which needs consideration, and that is the law of Scotland. I have already said that a change in the law of England and Ireland took place in 1861; but no alteration was made in the law of Scotland. In many instances the law of Scotland may be better than the law in England, but I think it would be well to ask whether it is necessary to retain upon the statute-book as crimes punishable in Scotland by death offences which have ceased to bear that penalty in England and Ireland. Practically there is no distinction between the three countries, because power is vested in the Lord Advocate to prevent a capital sentence being passed in cases where the nature of the offence does not demand the extreme penalty. I know it is not so easy to abolish capital punishment for all the crimes which are not now so punishable in England and Ireland; and those who have read the answers of the Scotch Judges to the questions of the Lords' Committee will observe that the subject needs very careful consideration. These and many other points might well be made the subjects of inquiry, and useful results would doubtless be arrived at. Then comes the question as between the Amendment of the noble Lord the Member for Chichester (Lord H. Lennox) and that of which my hon. and learned Friend the Member for Oxford (Mr. Neate) has given notice; and I cannot but think that as to the manner of inquiry, whether by a Committee or a Commission, the House would do well to adopt the proposition of the hon. and learned Gentleman. His proposition is not only to inquire into the operation of existing law, but, what is of very great importance, into the actual law of murder—that is, into the provisions of the law as well as into its operation. I am far from saying that this inquiry could not be conducted by a Committee. But let the House consider how we are placed in respect of Committees. I ascertained this morning that there are now no less than twenty-four Public Committees sitting. If this Committee should be appointed, it could not sit for a long time if members of weight and authority were to be placed upon it; and, indeed, I think it would be impossible to have a satisfactory inquiry by a Committee into this subject during the present Session. I also think there is great weight in what was said by the hon. and 2092 learned Gentleman the Member for Oxford—that if you desire to give weight and authority to the opinion of the tribunal to which you intrust the inquiry, it should comprise some men who are or who have been Judges—men of experience in the criminal law; and I think an inquiry would be more satisfactorily conducted by such a body, and their conclusions would carry greater weight than the Resolutions of a Committee. If my hon. Friend the Member for Dumfries (Mr. Ewart) will accept such an inquiry instead of that which he has suggested, and if the noble Lord will withdraw his Amendment, I shall he quite ready to accept the Amendment of my hon. and learned Friend, and the Government will recommend Her Majesty to issue a Commission in accordance with its terms. I hope that course will be adopted, as all agree that this is a subject deserving of careful inquiry; and if we can come to an agreement as to the objects of the inquiry, it is very desirable that we should avoid the necessity for a division.
§ MR. BRIGHT
Sir, I shall not, after the discussion which has taken place, and which has been, I think, almost on one side, take up the time of the House by making a speech. But the right hon. Gentleman (Sir George Grey) has said something which I am obliged to contest to some extent. He has quoted the opinions of Judges upon this question, and he has laid, I think, more stress upon those opinions than they generally deserve. I think, if there is one thing more certain than another, it is this—that every amelioration of the criminal code of this country has been carried against the opinion of the majority of the Judges. And I may on this point quote the opinion of an eminent Irish Judge, who, I believe, is still living, and with whom I had some conversation in Ireland some fifteen years ago. The conversation turned on this very question. He said, "Beware of the Judges. If Parliament had acted on the opinion of the Judges we should have been hanging now for forgery, for horse stealing, and for I know not how many other offences for which capital punishment has long been abolished." Now the right hon. Gentleman proposes to have a Commission, as I understand, instead of a Committee. There was an inconsistency in his speech I thought, on that point; for at first he seemed to say that the question, whether capital punishment should be continued or be abolished, was not one which a Com- 2093 mittee of this House was fitted to consider; but towards the close of his speech he moderated that by admitting that some of the points referred to in the Amendment, which is, I suppose, to be agreed to, might be considered by a Committee. I will undertake to say that if he were to inquire in every civilized country in the world where there is a representative legislative assembly, he would find that the changes which had been made in their laws have been made invariably in consequence of inquiries instituted by those Chambers and carried on by means of Committees formed amongst their members. I admit that the bulk of the Committees of this House are not fairly constituted. I served very assiduously on Committees for the first ten or fifteen years after I became a Member of this House, and I did not find out till about the year 1850 or 1853 that a Committee was generally of no use; and from that time to this I have avoided, in nine cases out of ten, when I have been applied to, sitting upon a Committee. But that observation refers principally to questions where political interests are concerned. When, however, you come to a question of this nature, where we should necessarily take the opinion of Judges, to whom the right hon. Gentleman pays so much attention, and of those men of whose great authority he has spoken, and of a great many other men who are not wedded to existing systems, and of men who could give us the facts with regard to other countries, I say that, a Committee of this House, so far at any rate as obtaining evidence is concerned, I think would be equal to any tribunal, or any court of inquiry, which the right hon. Gentleman could establish. The right hon. Gentleman has led the House away a little from the main question. The main question proposed by my hon. Friend the Member for Dumfries is whether capital punishment should be retained or abolished. The right hon. Gentleman has led the House into a discussion of a question somewhat personal to himself—in connection with recent cases. I know the right hon. Gentleman was justified in what he said in reference to the position which he holds in the performance of his painful duties with regard to the execution of the criminal law. But that is not exactly what is wanted — this Motion was not brought forward for that purpose. I think the House would agree with great unanimity if the right hon. Gentleman would 2094 introduce a Bill proposing certain changes at which he has hinted. This country has always been the most barbarous of all civilized nations in its punishments; and at this moment is the most barbarous still, notwithstanding what the right hon. Gentleman said about the punishment of death being inflicted only for the crime of murder. But did he not afterwards tell the House that this crime of murder is a net which includes cases as different in their quality as in their guilt and in their consequences to society, as the difference between the lowest class of murder which the law now includes and the pettiest larceny which is punishable before a single magistrate. Yet all these are part of the same list of crimes, and if a jury does its duty—that is what is always said, as if a jury had no other duty but inexorably to send a man to the scaffold—if a jury will find a verdict of guilty, the punishment is death, unless the right hon. Gentleman, importuned by a number of persons, or having examined into the case himself, will interfere to save the unfortunate wretch from the gallows. There can be no doubt whatever that if capital punishment be retained, and if it be absolutely necessary that there should be a crime called murder to which capital punishment attaches, it is no less necessary that there should be, as there are in some other countries, three or four degrees of manslaughter, and that for the highest degree of manslaughter there should be the highest kind of secondary punishment, and that the power should be placed in the hands of the jury of determining what should be the particular class in which the criminal should be placed. There is no doubt that this is necessary to be done. I think Voltaire—who said a good many things that were worth remembering—remarked that the English were the only people who murdered by law. And Mirabeau, when in this country, hearing of a number of persons who had been hanged on a certain morning, said, "The English nation is the most merciless of any that I have heard or read of." And at this very moment, when we have struck off within the last fifty years at least a hundred offences which wore then capital, we remain still in this matter the most merciless of Christian countries. If anybody wishes to satisfy himself upon this point let him take those late cases in which the right hon. Gentleman has had so much trouble. Take the case of Townley; take the case 2095 of Wright; take the case of Hall, of Warwick; and I will take the liberty of repeating—what I said to the right hon. Gentleman when I was permitted to see him on the case of the convict Hall—that there is not a country in Europe, nor a State among the Free States of America, in which either of those criminals would have been punished with death. Yet we have gone on leaving the law as it is; and the right hon. Gentleman, to my utter astonishment, every time this question has been discussed, has given us very much the same speech as he has addressed to us to-night: he has repeated the same arguments for continuing a law which drives him to distraction almost every time he has to administer it. I am surprised that the right hon. Gentleman, who has had to face the suffering which has been brought on him by this law, has never had the courage to come to this House and ask it fairly to consider, in the light of the evidence which all other Governments and the laws of all other countries afford, whether the time has not come when this fearful punishment may be abolished. The right hon. Gentleman says the punishment is so terrible that it will deter offenders from the commission of crime. Of course it is terrible to one just standing upon the verge of the grave; but months before, when the crime is committed, when the passion is upon the criminal, the punishment is of no avail whatsoever. I do not think it is possible to say too much against the argument that this is a dreadful punishment, and is very efficient to deter a criminal from the commission of crime. As the right hon. Gentleman proposes to give a Commission, I shall not trouble the House with the observations that I had intended to make. There are, however, two or three cases which have not been mentioned and which I should like to bring under the notice of the House. My hon. Friend the Member for Dumfries referred to Russia. Russia is a country in which capital punishments have for almost a hundred years been unknown. I was reading yesterday a very remarkable Report of a Committee of the Legislature of the State of New York, written in the year 1841. It states that the Empress Elizabeth determined that for twenty years there would be no capital punishments in Russia. The Empress Catherine, in giving her instructions for the new Grand Code, stated her opinion upon the subject in these words— 2096Experience shows that the frequent repetition of capital punishment has never yet made men better. If, therefore, I can show that in the ordinary state of society the death of a citizen is neither useful nor necessary, I shall have pleaded the cause of humanity with success.She then says what I think is worthy of hearing—When the laws hear quiet and peaceful sway, and under a form of government approved by the united voice of the nation, in such a state there can be no necessity for taking away the life of a citizen.The exception is in the case of some great political offender whose incarceration did not destroy his power of doing mischief; and I believe that since the enactment of this law there have been only two cases of persons who have been put to death by law in Russia, and that these have been cases arising out of circumstances of a political and insurrectionary character. Count Ségur, the French Ambassador at St. Petersburgh, states that the Empress Catherine said to him—We must punish crime without imitating it. The punishment of death is rarely anything but a useless barbarity.In reporting this to the French Government, Count Ségur stated that under the mildness of the law murders were very rare in Russia. My hon. Friend the Member for Dumfries referred to the case of Tuscany, where it is well known that for a lifetime capital punishment has never been inflicted. In the case of Belgium, to which reference was made by my hon. and learned Friend the Member for Tiverton, as one of the most remarkable, I think the right hon. Gentleman was not successful in getting rid of his figures. It happens, as I understand, the law in Belgium does not prohibit capital punishments; but the result of omitting to inflict capital punishment has been so satisfactory that now the law is literally obsolete, and that capital punishment is never inflicted. Take then the case of Bombay, which is of a very striking character. We have the evidence from the pen of Sir James Mackintosh, who says —It will appear that the capital crimes committed during the last seven years (1804 and 1811) with no capital executions, have in proportion to the population not been much more than a third of those committed in the first seven years (1756 to 1763) when forty-seven persons suffered death.He adds—The intermediate periods lead to the same results,2097 The House ought to bear in mind, that to us who have examined this question for many years, no fact is more clearly demonstrated than this—that there is no country in the world, be it a great empire or be it a small state—where the law has been made milder, and capital punishment has been abolished, in which there is any proof that murders have been more frequent, and the security of life in the slightest degree; endangered. If that be so—if I could convince every Member of this House that the abolition of capital punishment would not cause more murders than the average of the last ten years—if all that would be left would be that those ten or twelve wretches who are publicly strangled every year would be living in some prison, or engaged in some labour with a chance of penitence, and with life not suddenly cut off by law—is there a man in this House,—I speak not of party, or to one side or the other—who durst demand that we should still continue these terrible punishments? There used to be in this: House a venerable old Gentleman who represented the University of Oxford, who in the discussion on this subject constantly quoted a certain verse of a certain chapter in the Book of Genesis. I am delighted that in the seven or eight years that have elapsed since this question was last discussed, we have advanced so far that nobody has brought forward that argument. We have discussed it: to-night by the light of proved experiments, of facts, and of reason. Seeing what has been done in this country by the amelioration of the Criminal Code, and what has been done in all other countries, is there any man with one particle of sense or the power of reason who believes that human life in this country is made more secure because ten or twelve men are publicly put to death every year? The security of human life does not depend upon any such miserable and barbarous provision as that. The security for human life depends upon the reverence for human life; and unless you can inculcate in the minds of your people a veneration for that which God only has given, you do little by the most severe and barbarous penalties to preserve the safety of your citizens. If you could put down what it is that secures human life in figures and estimate it at 100, how much of it is to be attributed to your savage law, and how much of it to the reverence of human life implanted in the human soul? No doubt 2098 5 or 10 per cent out of the 100 may be owing, for aught I know, to the influence of the law; but 90 or 95 per cent is owing to that feeling of reverence for human life. Whenever you hang a man in the face of the public under the circumstances to which we are so accustomed in this country, if you do in the slightest degree deter from crime by the shocking nature of the punishment, I will undertake to say that you by so much—nay, by much more—weaken that other and greater security which depends upon the reverence with which human life is regarded. Since this notice of this Motion was given by my hon. Friend I took the liberty of writing to the Governors of three of the States of America in which capital punishment has for several years been abolished; and, with the permission of the House, I will read extracts from the answers which I have received. I think they are important in a discussion of this nature when we are attempting to persuade doubtful and timid people that we are not proposing a rash or dangerous change. In the State of Rhode Island, one of the small States of America, with a population of not more than 200,000, capital punishment has been abolished. The Governor, the Hon. J. Pye Smith, writing from the Executive Department, March 21, 1864, says—1. The death penalty was abolished in this State in the year 1852. 2. I do not think its abolition has had any effect upon the security of life. 3. Is the law against the death penalty sustained by the public opinion of the State? Very decidedly. 4. Are convictions and punishments more certain than before the change was made? I think they are. 5. What is the punishment now inflicted on such criminals as were formerly punished with death? Imprisonment for life at hard labour. I have conversed with one supreme Judge, State attorney, and warden of the State prison, and they support my own established views upon the subject.In a second letter, dated April 4, and which I received a few days ago, he says—Our present able Chief Justice says:—'Although disposed to the present law when passed, I am equally opposed to a change in it until the experiment has been tried long enough to satisfy us that it has failed. I am clearly of opinion that the present state of the law is sustained by public opinion, and I believe it will continue to be until it is satisfactorily shown that crimes against life have been considerably increased in consequence of it. My observation fully justifies me in saying that conviction for murder is far more certain now in proper eases than when death was the punishment of it.'Here is the answer which I received from 2099 the Hon. Austin Blair, the Governor of the State of Michigan—Executive Office, Lancing, March 23, 1864.1. The death penalty for murder was abolished March 1, 1847, when the revised statutes of 1846 went into effect. 2. Life is not considered less secure than before; murders are probably less frequent in proportion to population. Twenty years ago the population of the State was 300,000, and we have now a population of about 900,000. Then it was chiefly agricultural, and now we have mines of copper, iron, coal, &c., bringing into proximity dissimilar classes, and increasing the probabilities of frequent crime. Before the abolition of the death penalty murders were not unfrequent, but convictions were rarely or never obtained. It became the common belief that no jury could be found (the prisoner availing himself of the common law right of challenge) which would convict. Since the abolition there have been in seventeen years thirty-seven convictions. 3. There can be no doubt that public opinion sustains the present law and is against the restoration of the death penalty. 4. Conviction and punishment are now much more certain than before the change was made. Murder requires a greater amount of proof than any other crime, and it is found practically that a trial for murder excites no very unusual interest.It, therefore, does not make a hero of the criminal. The letter proceeds—5. The punishment now is solitary confinement at hard labour for life. Since 1861 this class of prisoners have been employed as other prisoners, as it was found difficult to keep them at work in cells without giving them tools, and there was danger of their becoming insane. The reform has been successfully tried, and is no longer an experiment.The last letter is from the Hon. J. S. Lewis, the Governor of Wisconsin, and is dated Madison, March 29, 1864—The evil tendency of public executions, the great aversion of many to the taking of life rendering it almost impossible to obtain jurors from the more intelligent portion of the community, the liability of the innocent to suffer so extreme a penalty and be placed beyond the reach of the pardoning power, and the disposition of courts and juries not to convict, fearing the innocent might suffer, convinced me that this relic of barbarism should be abolished. The death penalty was repealed in 1853. No legislation has since re-established it, and the people find themselves equally secure, and the public more certain than before. The population in 1850 was 305,000; in 1860 it was 775,000. With this large increase of population we might expect a large increase of criminal cases, but this does not appear to be the case.If you take those two last States of Wisconsin and Michigan which have been comparatively recently settled, you will see that it was highly probable, as they are on the outskirts of advancing civilization, that crimes of violence should not be uncom- 2100 mon. But here, with the abolition of this punishment, crimes and violence are not more common than before; people are just as secure, the law is upheld by public opinion, and the elected Governors of those three States, after the experience of these years, are enabled to write me letters like these, so satisfactory and so conclusive with regard to the effect of the experiment as it has been tried with them. The special cases that have been mentioned to-night with regard to executions have not been by any means the most fearful that have occurred. There was a case last year at Chester of so revolting a nature that I should be afraid to state the details to the House. I think it is hardly conceivable that a Christian gentleman, a governor of a gaol, and a clergyman, another Christian gentleman, should be concerned in such a dreadful catastrophe as then took place. Sir, if there be fiends below, how it must rejoice them to discover that, after the law of gentleness and love has been preached on earth for 1,800 years, such a scene as that should be enacted in our day in one of the most civilized and renowned cities of this country. Well, but these are cases which will happen again if this law remains; and all the difficulties which the right hon. Gentleman has alluded to to-night and on previous occasions are difficulties inseparable from the continuance of this punishment. Now, the right hon. Gentleman has referred to one or two cases; the noble Lord opposite (Lord Henry Lennox) has likewise referred to one or two. Why, the case at Glasgow, the case at Derby, the recent case in London, and the recent case at Warwick, are cases which move whole populations; and, if that be so, how can any man argue that this law is in a satisfactory state, or that this punishment can be wisely and beneficially administered and executed in this country? Why, Parliament, unfortunately—we need not disguise it, and I will not at any rate conceal it—Parliament has been very heedless upon this question. Secretaries of States have gone on from year to year hobbling, as it were, through the performance of their duties in connection with great pain to themselves, and yet they have never had the courage to ask Parliament to consider whether the system might not be entirely abolished. Does not every man now feel that it is in opposition to the sentiment of what I will call—and I think I may say it without disparaging anybody 2101 —the most moral and religious portion of the population of this country—the men who have led the advance during the past century in every contest that we have had with ignorance, and crime, and cruelty, in whatsoever shape it has shown itself? And every day they are becoming more and more estranged from the spirit and operation of this law. Whenever there are paragraphs floating about in the newspapers that on the 15th or the 25th of such a month such a one is to meet his doom for some crime, however foul, there is in every city, in every parish, and in almost every house in this country where there is any regard to humanity and to Christianity, a feeling of doubt as to whether this law is right, and a feeling of disgust and horror amongst hundreds of thousands of the beat portion of our people. Now, merciful laws are, in my opinion, the very highest testimony to any Government, as I likewise think that they are the highest blessing a people can enjoy. I believe they give security to a Government, and they soften and humanise the people. Now, all the steps that have been taken in this direction have been so successful, that I wonder that even the late Lord Mayor of London should not himself have come to the conclusion that after all he would still sleep comfortably in our beds if men were not hanged; and that, if the law were gentle; and merciful whilst it was just, he would find gradually growing up in the minds of all classes a greater dislike to crime and violence, and a greater reverence for human life. Benjamin Franklin, a great authority on matters of this nature, said that the virtues are all parts of a circle; that whatever is humane, is wise whatever is wise is just; and whatever is wise, just, and humane, will be found to be the true interests of states, whether criminals or foreign enemies are the objects of their legislation. Would any one of us like to go back to the barbarism of that time when Charles Wesley wrote a note to the celebrated and excellent John Fletcher, the vicar of Madeley, in 1776. We were then trying to keep the empire together, and neglecting this great work at home. He says—A fortnight ago I preached a condemned sermon to about twenty criminals, and every one of them, I had good grounds to believe, died penitent. Twenty more must die nest week.And there were then cases in which twenty were hanged, not one of whom had been convicted or found guilty of the 2102 crime of murder. Have we not from that time made great and salutary and satisfactory advances in this question? Is there any man who wants to turn back to the barbarism of that day? But if you turn back to the Secretaries of State of that day, or to the Judges of that day, or even to the Bishops of that day, you will find that they had just the same sort of arguments in favour of the barbarism in which they were then concerned that the right hon. Gentleman, I suppose forced by the necessities of his office, has offered to the House to-night. I confess I wonder that all the right hon. Gentleman has gone through in these painful cases has not driven him stark mad many times. At any rate, I wonder that it has not driven him to the table of this House to propose, under the solemn feelings with which he must often have been impressed, that the House should take into consideration whether this vast evil—as I believe it to be—might not be put an end to. Is the Englishman worse than another man? Is this nation worse than other nations? Cannot the lenient laws practised with perfect safety in every other—not every other, but in many of the nations of the world — be practised in this nation, and at the same time leave us perfectly secure—at least as much so as we are at present? I say we may wash vengeance and blood from our code without difficulty and without danger. The right hon. Gentleman is going to appoint a Commission—he prefers it to a Committee, and I will not contest the point with him if the Commission be a fair Commission; but I should not like to see it a Commission of Judges. Mind I am not wishing to speak disrespectfully of Judges. I agree with what the right hon. Gentleman has said, that with the exception of a case or two, perhaps, in one's lifetime, we notice nothing on the bench but that which is honourable to the Judges of this country; and I would say that the Judges of this country may be compared with advantage probably with the Judges of any other country. But Judges are but men. Several of them, as a proof of that, have been Members of this House. And I am free to confess that the feelings I had when I was a schoolboy at York, and first went to an assize trial and saw that venerable old gentleman in his wig, were those of utter awe and astonishment; but those feelings have been considerably modified by my experience of many of the present Judges when they were Members of this House. But we 2103 know that Judges are like other men in this — they have trodden a certain path which has led them to the honourable position which they hold. They are there, however, not to make law, but to administer it; and they have tempered its seventy, as the noble Lord said, as their judgments are merciful or otherwise. But they adhere to the law, for it is that which they have to administer. Some of them are not desirous, perhaps, to express an opinion, like the noble Lord, the father of the hon. and learned Member for Tiverton (Mr. Denman). They are strongly attached to that system which they have been administering; and, as I said at the beginning of the observations I have offered to the House, they have been in all past times—not all of them, but a majority of them—generally opposed to the amelioration of our Criminal Code. Although, therefore, I believe that at this moment there are more Judges on the bench who are in favour of the abolition of capital punishment, yet I should not like the right hon. Gentleman to leave the inquiry into this question entirely or even to a majority of the members of the bench. There is no reason to believe that a Judge is more competent to give an opinion on this question than any other intelligent, educated, and observing man; nor would I admit that the right hon. Gentleman himself, who is in his whole person the whole bench of Judges, is more capable of giving an opinion than any other Member of this House who has paid long and careful attention to this subject. Therefore, I hope that if the right hon. Gentleman does appoint a Commission he will put upon it—I do not say men who have not an opinion on one side or the other, for men who have no opinion at all are not likely to give any worth hearing—but men in whom the House and the country and those in the House who are against capital punishment shall have confidence, feeling that they would take evidence from every source whence it could be fairly offered to them, and that they would give to the House and the Government a fair opinion on that evidence in their Report. If that be done I am quite certain that the result will be a great improvement of the law, although it may not carry it to the point which my hon. Friend the Member for Dumfries has so long desired to carry it. But I should be very thankful if that much is accomplished; and if ever we come to that point, I have confidence 2104 too that even you Gentlemen opposite, who are so very timid, always fancying that the ice is going to break, will be induced to go further than you seem inclined to do now; and perhaps the ten or twelve who are now hanged annually may be brought down to three or four, and at last we may come unanimously to the opinion, that the security of public life in England does not depend upon the public strangling of three or four poor wretches every year. This Parliament is about to expire, I suppose, before very long—though some say it is to endure during another Session; I should be glad indeed if it might be said of this Parliament at some future time, that it had dared to act upon the true lessons, and not upon the—what shall I say?—the superstitions of the past; and that this Parliament might be declared to be the Parliament which destroyed the scaffold and the gallows, in order that it might teach the people that human life is sacred, and that on that principle alone can human life be secured.
§ MR. NEWDEGATE
The House has just listened to the eloquent and carefully prepared speech of the hon. Member for Birmingham, and I think that the public will be a little surprised to hear that the hon. Member has declared that this country is one of the most barbarous in the world. [Mr. BRIGHT: I said in its laws.] I can only refer to a note which I made when the hon. Member was speaking. It was a surprising announcement to me, for, in common with a large number of Her Majesty's subjects, I have been accustomed to believe that in England we enjoy a greater amount of personal freedom, a higher state of civilization, and a greater degree of personal safety than any other nation in the world. The hon. Member would have us doubt these facts, and upon what grounds? Upon this ground—that our law is unduly severe. Well, if that severity is necessary to the personal freedom, to the political freedom, and to the civilization which we enjoy—a freedom and a civilization enjoyed by a greater variety of classes, by persons in a greater variety of circumstances than are to be found in any other nation in the world—I am inclined to believe that the very severity of the law tends to the emancipation of the community; and I also feel this, that such is the pressure exercised by a certain section in favour of the mitigation of capital sentences, that it did high honour to the hon. Member for Southampton (Mr. Rose), 2105 that he should venture in a very plain-spoken, sensible, and prudent speech to vindicate the state of the law which the hon. Member for Birmingham denounces, but the blessings derived from which are patent to every class and in every home. The hon. Member in the course of his argument referred to various authorities in favour of the abolition of capital punishment for murder, and one was the Empress Catharine of Russia. Does he mean to hold up that powerful but misled woman for our imitation, either as a moralist or a philanthropist? Will he adduce the condition in which she found and left Russia as a condition of advancing civilization? Will he compare the condition of the people of Russia now with the condition of the people in this country, and constitute by such a comparison a preference for the opinion of Catharine of Russia against the opinion of his own countryman? He cited also Voltaire and Mirabeau; but what was the condition of France when their opinions were given? where was the freedom of France ere yet the ink was dry with which their opinions were recorded, and where is the freedom of France now? At this hour France is struggling under a despotism, that despotism being the consequence of the endorsement of the principles of those very authorities whom the hon. Member for Birmingham would have us adopt for the Government of England. I hope that we shall not pursue that path which the hon. Member desires to commend to us by a sympathy that is amiable in itself, but which has so often been proved mistaken when applied to the government of mankind. The hon. Member trusts to his hopes and his wishes for the advancement of mankind to a degree of morality which unfortunately has never yet been witnessed; and then basing his conclusions, not upon the actual state of humanity, but upon his hopes, he draws on his audience to conclusions which are amiable, but which have been proved in the history of the world to be fallacious, the fallacy of which is shown in the difference in the condition of the countries to which he refers, and that of this country existing under laws enacted by the will of the people, but which the hon. Member declares to be barbarous. The hon. Member condemned our Judges. I am convinced of this, that there are no men who feel more severely than do the Judges the painful responsibility which they incur in pronouncing sentence of death, and I am convinced that they concur in 2106 the convictions only under that sense of public duty that has made this country what it is. Judges, in acting as they always have done, do violence to their own sympathies, to those sympathies to which the hon. Member himself yields, and would induce the House to yield, to the detriment, aye, to the destruction of the blessings which we enjoy. These blessings this country gained gradually by an adherence to law. I believe that the respect for human life is greater in this country than in any other, and this respect is not only grounded upon religious conviction, but is also enforced by the dictates of that law which the hon. Member condemns. The hon. Member has quoted letters from various Governors of States in America; but will he say that there is in the United States the personal freedom that exists in this country? If the hon. Member were to state truly his opinion, I believe that he would say that, even before those convulsions which have lately occurred, the personal freedom of individuals and the security of life were as inferior in the United States to what we possess as it is possible to conceive. I have been there when an individual, during an election, dare not walk alone down the middle of the street, and in periods of excitement life itself is not safe. The hon. Member spoke of the convict Hall, but the hon. Member has been lauding the state of the law in the United States, and I ask him whether he is prepared to allow every man who has a cause for jealousy to exercise his own discretion as it was exercised by Mr. Sickles in New York? Is impunity for the commission of deliberate murder in open day and on the highway the kind of liberty he values? The truth is this, we are involved in the dangers of an advanced civilization, and I am afraid that this clamorous sympathy of which we have heard so much in this debate is sympathy rather for your own outraged sensibility — that with you sympathy for the sufferings of jurors and for the position of the Home Secretaries is far greater than for the welfare and the safety of the community at large. It appears to me to be most unfortunate that, just at the time when we are about to enter upon an experiment in the system of secondary punishments, and to make up our minds to retain among us those persons who are stained by crimes of a grievous character—I say that it is unfortunate at this very time we should be raising doubts whether it is prudent to continue the capi- 2107 tal punishment for murder. Let me for a moment point to the tendency of this debate. There is always the danger, in a high state of civilization, that the legislation should lapse into refinements, should attempt definitions which cannot be justly carried out by law, should run after the impossible rather than the carrying out what is practically just in the administration of the law. We are asked to grant more discretionary powers; and why? Because difficulty has been found in reference to the discretionary power that exists at present. We always find two parties converging to one end; and here we have hon. Members who represent Democratic opinions assailing the law, and seeking to substitute for it discretionary power; and in this concurring with those on tins side of the House, who scarcely disguisedly recommend an arbitrary system of Government very different from that which exists in this country. I deprecate the notion that the laws of this country with regard to capital punishment are barbarous. My belief is that he who deliberately takes human life owes his own to the community whom he robs of one of its citizens; and this opinion is supported, not only on the ground of abstract justice, but by the expressed will of the Almighty for the government of mankind. I hope the House will excuse these words, spoken with a view to vindicate the laws under which we live from the imputation that they are barbarous. The laws of England follow and protect each citizen from the cradle to the grave—in childhood, boyhood, manhood, and old age—and even care for each of us when we are consigned to the grave. The Home Secretary has so far yielded as to grant the Commission. I can only say that if he had thought fit to withstand the grievous pressure directed against him, I should have been prepared to support him, notwithstanding any clamour which might have been raised by those who affect a sympathy. I have been frequently applied to to make representations to the Home Office, and these applications I have refused. If there be any new facts I sift them to the best of my ability, and am ready to state them, but upon these facts I will express no opinion. I will use no influence that may interrupt the due course of law, and I hope no constituent of mine will approach me with a request to tamper with the law, the sanctity of which is the basis both of our freedom and of our civilization.
said, he did not intend to enter upon a defence of the hon. Member for Birmingham, who was well able to defend himself, but it was not a fact that his hon. Friend had condemned the Judges. All he said was that they were not better able to decide questions of this sort than other enlightened and intelligent men. The hon. Gentleman opposite (Mr. Newdegate) had talked of the democratic tendencies of the hon. Member for Birmingham; but that objection, if it could be accounted one, could not be brought against Dr. Lushington, who, in 1840, submitted a Motion for the abolition of capital punishments, which Motion was supported by the present President of the Poor Law Board and other distinguished Members. It was not for him to pretend to express the opinions of the Government, but upon the Treasury bench there were, besides the right hon. Gentlemen whom he had just mentioned, the President of the Board of Trade, the Judge Advocate, the Vice President of the Board of Trade, and several others, who had uniformly given their support not merely to an inquiry but to a Motion for the immediate abolition of capital punishments. No one could venture to say that the Judges were the best fitted to be upon the proposed Commission, far less to be the sole members of it. He could not forget that in 1811 the Recorder of London objected to the punishment of death being done away with for the crime of pocket-picking; that in 1813 the Lord Chancellor regretted the removal of the capital penalty for the offence of stealing property to the amount of 5s. from a dwelling house; that Lord Ellenborough thought it should be retained in the case of stealing linen from a bleaching ground; and that other Judges had advocated its retention in cases of forgery. He repudiated the idea of charging the advocates of the abolition of capital punishments with any sympathy with crime, with any mawkish sentimentality, with anything but a sincere desire to support that punishment which experience proved to be the most effective deterrent from crime. His right hon. Friend the Secretary of State had said that if any other punishment could be shown to be equally deterrent from crime, he would give up capital punishment; and he (Mr. Gilpin) said that the advocates of the abolition would give up their whole case if capital punishment could be shown to be best. He held that all punishments had, or ought to have, three objects in view 2109 of crime, restitution to the injured where—the security of society by the prevention ever possible, and he was not ashamed to add even in the case of the worst murderers, the reformation of the offender himself. Not one of these objects was accomplished by the punishment of death. Another important point for consideration was the fact that many innocent persons had suffered the penalty of death. The judgment of man was too weak and wavering to be intrusted with the infliction of an irrevocable punishment. Innocent men had been hanged, and their innocence had been established after their death. There was a case in which cries were heard from an apartment, and when it was reached, a man was found over a body with a weapon in his hand. This man was innocent.
The hon. and learned Gentleman may say that Mr. Dickens is no authority—some people may say that the hon. and learned Gentleman is no authority. I well recollect the late Daniel O'Connell relating in Exeter Hall, in 1844, the touching account of three brothers—I myself (said he) defended three brothers of the name of Cremming within the last ten years. They were indicted for murder. I sat at my window, as they passed by, after sentence had been pronounced. There was a large military guard taking them back to gaol, positively forbidden to allow any communication with the three unfortunate youths. But their mother was there, and she, armed with the strength of her affection, broke through the guard. I saw her clasp her eldest son, who was but twenty-two years of age; I saw her hang on her second, who was not twenty; I saw her faint, when she clung to the neck of the youngest son, who was but eighteen—and, I ask, what recompense could be made for such agony? They were executed—and—they were innocent.I think," said Sheriff Wilde in his examination (Report 1836, p. 101), "many innocent persons have suffered. I think that if the documents at the Home Office are examined, many instances will be found in which—by exertions of former sheriffs—the lives of many persons ordered for execution have been saved.He was well authorized to say so. This most estimable gentleman is still alive, so we may not speak of him as we sincerely feel; but we shall chronicle his acts—they are his best eulogy. During the seven 2110 months of Mr. Wilde's shrievalty he saved the lives of six innocent persons who had been actually ordered for execution! The records and the documents are at the Home Office. These six men would have been hanged save for the volunteer philanthropy of this Christian man, who gave his time, his talents, his money, and his toil in behalf of hapless strangers. Where are we to find such men, at once so able and self-sacrificing? Let Sir Frederick Pollock answer—Though I believe undoubtedly the sheriffs of London are, in general, conspicuous for an active, humane, and correct discharge of their duty, they have not all, and cannot have, the means of bringing to the investigation of such subjects the same facility and the same unsparing exertion that Mr. Wilde afforded while he was sheriff.… It is impossible to speak in too high terms of the zeal, humanity, unsparing labour and expense which he bestowed upon those occasions, but the result satisfied me (says Sir Frederick Pollock) that the parties were in several instances guiltless of any crime, and in all, the cases were such as did not justify capital punishment; and Sir Robert Peel, after much labour in the investigation, was of the same opinion.… My impression is that several of these cases were cases of perfect and entire innocence, and that the others were cases of innocence as to the capital part of the charge. I had frequent communication (he adds) with Mr. Wilde on them as they proceeded.The hon. Member quoted several other cases on the authority of Charles Dickens. He also instanced the case of the Cormacks, executed in Ireland in 1858, on which he had spoken shortly after coming into Parliament. Other cases there were also in which, whether the convicts were innocent or guilty, the strongest conviction prevailed among the public of their innocence; in these cases the whole end and object of the punishment was lost. He would only, in conclusion, call the attention of the House to this simple fact. We sentenced men to death as the last and greatest punishment of the law, and assumed to execute them for the sake of the example. He asked the House to consider for one moment what that example was. It was an example of revenge; an exemplification of what might be characterized the law of tit for tat; it was an example of life for life. In his opinion it was a reading backwards of the principles of the New Testament, and after paying great attention to the matter for the past twenty years he was convinced it did not prevent crime. It entailed the suffering of the innocent; it favoured the escape of the guilty; it was opposed to the spirit of Christianity and true civilization; and he trusted the time 2111 was not far distant when the result of the inquiry of this Commission, and the opinion of the public, would be the entire abolition of the punishment of death.
§ MR. ROEBUCK
said, that the speech of the hon. Gentleman who had just addressed the House ought to have been spoken twenty years ago. He had charged upon the administration of justice that it put to death people who were not guilty. That was not true. Could anybody assert that anybody had been hanged within the last ten years who was believed to be not guilty of the crime for which he suffered? He allowed that heretofore the administration of justice in this country had been a bloody administration; but now, so great had become the regard for human life, the tendency was entirely in the opposite direction. The Home Secretary would undoubtedly say that he had more difficulty in hanging a man now than former Secretaries had had in transporting one. What were the objects of punishment? The first object of punishment was no doubt reformation. Hanging he allowed did not reform a man; but the next object was the putting out of danger the society in which a murderer lived. Hanging certainly did that. The removing of a man so dangerous to society—and very cheaply—was a thing to be considered by society. The murderer was hung, and there was an end of him. Society was in no more danger from him. The House was not chargeable with a mawkish sentimentality; but if a man killed his own mother, people would be found to get up petitions to save him from death. He had no sympathy whatever with those petitions. He wished to see a man of that sort removed out of life—he had no hesitation in saying that. It was mock sentimentality to pray for that man's life. He had not thought of his mother's life, and why should we think of his? Then came the question, would hanging him do any good? We could not reform him—there was an end of him; and what injury had been done to mankind? The hon. Member for Birmingham had spoken with his usual eloquence to-night, and no one felt his power more or listened to him with more admiration than he did; but still, as a practical legislator, he was bound to see what was best to be done for the advantage of society. He wished to vote with the hon. Member, and, as far as possible, to do away with the punishment of death; but lie was bound to consider the advantage of society. The hon. Member 2112 had referred to the example of America, and he himself had paid much attention to the example of America. The hon. Gentleman said that men condemned to death went mad in confinement. That was true—but what had happened in America? Many years ago Chancellor Livingstone wrote a code for Louisiana, and in that code lie recommended the abolition of capital punishment and the condemnation of prisoners to solitary imprisonment for life. That was adopted, but all the prisoners went mad. Now, which was the more merciful, to kill the murderer outright at once, or to put him in a dungeon and condemn him to perpetual insanity? Notwithstanding the writings of Mr. Dickens and others, who attempted to mislead mankind on this subject, he asserted that it was much more, merciful to hang a man at once than to condemn him to insanity and lifelong solitary confinement.
§ SIR FRANCIS CROSSLEY
said, he was sure the House would not put into the scale the cheapness of the process of getting rid of a criminal by hanging him against the value which they attached to human life. He should vote with the hon. and learned Member (Mr. Neate), because he did not believe that capital punishment was agreeable with the merciful character of the Christian dispensation; and he believed it was not so deterrent as other punishments. He quite agreed that the murderer ought to be deprived of the opportunity of repeating his crime; but he should be deterred from doing so by a punishment which, while it did not go so far as to produce insanity, should be effectual for its purpose. He thought that nothing less than a plain command given to us by the Creator himself could justify us in depriving a fellow-creature of life. No doubt civilization had greatly advanced since the days when men were hanged for stealing horses and sheep, and for forgery. Against the advance of civilization in one direction must be set the increase in population; but, on the whole, no doubt these crimes had greatly diminished since capital punishment had been abolished as the penalty for them. The Secretary of State had admitted the necessity for inquiry by saying that if they could show that any other punishment was equally effectual in deterring from crime, he would give up capital punishment. He thought if a mode could be devised whereby they could deter the murderer from committing crime without taking his life, they were bound to adopt that mode; and that 2113 for that purpose a most careful and anxious investigation ought to be pursued. So far he should support the proposition of the hon. and learned Member (Mr. Neate).
§ SIR JOHN WALSH
deprecated the introduction into the discussion of the theological argument, on which he maintained the House of Commons was not a fitting tribunal to form an opinion. He might, however, incidentally remark that, before and since the foundation of Christianity, capital punishments had been almost universally adopted by mankind. But, passing to the point more immediately before the House, whether a Committee or a Commission should be appointed to inquire into the subject, he must say that, for his own part, he should prefer a Commission. He might add that he had never been able to arrive at the conclusion that capital punishment was not on the whole the most deterrent of all. If a milder punishment could accomplish the same end, he would, of course, at once say, let it be adopted; but, then, other punishments did not exercise the same effect on the imagination, the feelings, and the fears of men. A fallacy ran through the whole of the arguments on this subject. The noble Lord the Member for Chichester (Lord Henry Lennox) had given the House an interesting account of the recent execution. In the interests of science, and in a desire to enlighten and benefit mankind, the noble Lord sacrificed his own feelings and personal convenience and attended the execution of the five pirates. The noble Lord's arguments went to show that the awful spectacle produced no effect on the 20,000 people who witnessed it; and the admirable and clever novelist (Charles Dickens) took the same view as the noble Lord as to the effect of public executions. Now, there could be no doubt that the spectators at such scenes did not belong to a very refined class, and that much coarseness and want of feeling were displayed by them; but it did not follow that because they indulged in unseemly levity in the public view they were not in the solitude of their own homes impressed by a deterrent influence against the crimes for which they had seen the punishment of death inflicted, and in the belief that that was so he was corroborated by the fact that what was called the criminal or dangerous class, seldom or never committed the crime of murder. They were stopped by something, and that something, he was disposed to think, was the fear of the gallows. Murders were, or al- 2114 most all, committed by persons who were unknown to Sir Richard Mayne and to the Home Secretary as criminals. He did not agree with those who looked upon murder in the light of Hogarth in The Idle Apprentice, as a progressive crime, or that a youth began by picking pockets and ended at the gallows. On the contrary, the criminal class stopped at murder, because they knew and had calculated the consequences of the act. It was remarkable, and had not been sufficiently noticed, that the greater number of murders were committed by persons of a superior condition to the criminal class. To illustrate this, he need only mention Rush, Palmer, Mrs. Catherine Wilson, Mrs. Chesham, and the Mannings. It was also curious to observe that murders were almost always committed by solitary individuals. There were no gangs of men who associated themselves together for the purpose of murder. The fear of being hung not only prevented the criminal classes from committing murder, but it prevented murderers from seeking for accomplices. Those who dwelt upon the smallness of the deterrent influence which was exercised by capital punishment limited their consideration to the effect which an execution produced upon the few thousand persons who witnessed it. But he believed that it produced less effect upon those persons than upon the rest of the community. Every man who read The Times was affected by the detailed description of the last moments and of the execution of the five pirates. An execution produced an effect upon the fears of the whole nation; and it was impossible to trace the remote consequences of this deterrent principle. Early impressions produced sensible effects in after life, and the existence of capital punishment was no doubt of value in disciplining the passions, even in circles where such things as murders were hardly known. All experience confirmed the necessity of stringent punishment for grave crimes, and though others might be suggested which were more painful to individuals than that which was known to the law of England, none, he believed, had ever exercised so wholesome an effect on the imagination and feelings of mankind.
§ MR. HIBBERT
, in opposition to the view taken by the hon. Baronet as to the deterrent effect of public executions, read a passage from the letter of a philanthropic gentleman in Manchester, who had attended more than fifty culprits to the scaffold, and who declared that means 2115 ought to be taken to put an end to the demoralizing effects of public executions, which hardened instead of softening the hearts of the spectators. At the execution of Taylor and Ward at Kirkdale, a young man named Thomas Edwards was present. In six days afterwards he was committed to gaol for taking the life of a young woman, and was the very next to suffer upon that scaffold.
§ MR. MAGUIRE
said, he never heard a speech which so conclusively proved the case against capital punishment as that of the hon. Baronet. Every one who had studied the question knew that public executions had a brutalising effect upon the minds of those who witnessed them. Those Gentlemen who were in favour of private executions conceded half the argument against the punishment of death, because they admitted the injurious and demoralizing effect of executions in public. There was a time when stealing a piece of cloth was punished with death; but society had gone on very well since that was abolished. There had been much fewer forgeries since that crime ceased to be punished with death, and he believed that a still further beneficial effect would be produced by the entire abolition of the punishment. He thought the Government had acted wisely in consenting to a Commission, and he hoped that the present Parliament would, in its declining months, pass an Act on the subject which, while it satisfied the best feelings of the country, would do no injury to the interests of society.
§ MR. W. EWART
, in reply, said, he would gladly accept the proposal of the Home Secretary that a Royal Commission should be appointed. He could not concur in the suggestion that the Judges should form part of the Commission. He felt confident that the right hon. Baronet would appoint a good Commission, composed of fair-minded and untrammelled men, and he would therefore withdraw his Motion.
§ Amendment, and Motion, by leave, withdrawn.
§ MR. NEATE
then moved, as a substantive Resolution—That an humble Address be presented to Her Majesty, praying that she will be graciously pleased to issue a Royal Commission to inquire into the provisions and operation of the Laws under which the Punishment of Death is now inflicted in the United Kingdom, and the manner in which it is inflicted; and to report whether it is desirable to make any alteration therein.
§ Resolution agreed to.