§ On the Motion of Mr. Jervis, the House resolved itself into a Committee, upon the Bill for providing for the Execution of Criminals in Chester.
§ On the first clause being read—
§ The Attorney-General
rose to propose an Amendment. Whatever might be the legal interpretation put upon the Act, it was certainly not the intention of those who framed it, that the duty of executing criminals for offences committed within the city should devolve upon the Sheriff of the county. Matters had, however, come to such a pass, that the Grand Jury of the county of the town threw out all bills for capital offences which might give their Sheriff the trouble of superintending an execution, and the Grand Jury of the county did the same for their Sheriff. It was, however, a great question whether this duty ought, in consequence, to be thrown on an officer like the Constable of the Castle of Chester, of little or no station, and of little or no responsibility. Nobody before this Bill was brought in ever dreamt of those functions being committed to that officer; yet the preamble of the Bill stated, that doubts having arisen whether the Sheriff of the county of the city of Chester or the Sheriff of the county should perform the duty of executing criminals for offences committed within the city of Chester, the Constable of the castle of Chester should execute that office. Hon. Members would, he thought, agree with him that a goaler, a mere subordinate officer, receiving a small salary, and removable at the pleasure of the Crown, ought not to have the responsibility of carrying the last penalty of the law into execution, which required to be attended with every circumstance that could impart to it the character of solemnity. Unless a great impression were produced upon the mind of the public by the 556 execution of a criminal, the loss of life was hardly to be justified. He was not for extending the punishment of death—be was for abolishing it wherever it could be done with safety; and he thought it would tend greatly to lessen its effect if the infliction of it were to be left to a subordinate officer. There was something unseemly, also, in the gaoler of the criminal being his executioner. He was aware that in law, the Sheriff had the custody of the criminal's person; but it was not in fact under his charge, and the union of the two offices, which would be created by the Bill, would be most distressing to the feelings of the unhappy person to be executed. He proposed, therefore, that instead of saying that an act should be passed to remove doubts which had arisen as to the jurisdiction of the Sheriffs, the act should recite, that whereas the Sheriffs of the county of the city of' Chester were by law liable and were used and accustomed to execute all criminals executed for of, fences committed in the county of the city of Chester, and whereas since the passing of the said act the said Sheriffs have executed such criminals, the said Sheriffs shall in future obey the order of the judge of assize, in the same manner as they before obeyed the order of the Court of Grand Session, with reference to such execution as aforesaid; and the sheriffs of the county shall in like manner be bound to obey the order of the judge of assize in respect to the execution of criminals convicted of capital offences committed within the county of Chester." He should be sorry to see the judges of assize deprived of the power of ordering, in a very large county, a person to be executed near the place where the crime for which he was to suffer was committed. His noble Friend the Chief Baron of the Exchequer to this day contended that the Sheriff of the city was liable to the duty which his (the Attorney Generals)Amendment would declare belonged to him, and that duty had always been performed by him till somebody scanned the Act of Parliament with a curious legal eye, and discovered what was supposed to be a flaw in it. The hon. and learned Gentleman concluded by proposing his Amendment.
§ Sir John Campbell
differed from his hon. and learned Friend opposite, as well as from the hon. and learned Gentleman by whom the Bill was introduced. His opinion was, that it would be better to 557 abstain from legislating on the subject altogether, and to leave the question under debate to be settled by a judicial tribunal. The last trial had gone off on a technical point; but, no doubt, an opportunity would be afforded of having the point decided by a court of law. He should, therefore, move as an Amendment, that the Chairman do leave the Chair.
§ Lord Robert Grosvenor
supported the Amendment moved by the hon. and learned Member for Edinburgh, (Sir John Campbell).
§ Mr. Hardy
agreed with the hon. and learned Attorney General, that it would be most unadviseable to devolve the duty of executing criminals condemned at Chester, upon the Constable of the Castle. The Crown might at any time dispense with an officer of that description, and then the city would be left in the dilemma of having nobody to execute the sentence pronounced upon the prisoners confined in its gaol. He saw no reason why the practice which prevailed throughout the rest of the kingdom should be departed from in the case of Chester. Elsewhere the duty of executing criminals invariably fell upon the Sheriffs for the county. York castle was generally considered to be within the county of the city of York, but for legal purposes it was taken from the county of the city, and placed within the county of York. Why should not the same course be adopted with respect to Chester.
The Solicitor General
thought it absolutely necessary that something should be done to prevent a recurrence of the distressing delay which had recently taken place in the execution of two criminals who had been condemned at Chester. It was also necessary that the Judges who presided at the assizes, held at that city, should not again be placed in the situation of having their orders disregarded. Yet such at present was the feeling between the Sheriffs for the county, and the Sheriffs for the county of the city, that in all probability, should the Judges again have the melancholy duty of pronouncing the last sentence of the law upon any unfortunate criminal tried at Chester, the order for the execution whether made upon the county Sheriffs or the city Sheriffs, would be refused by both. Under these circumstances, he agreed with his hon. and learned Friend the Member for Chester, that some declaratory act upon the subject was necessary; but, at the 558 same time, he was far from thinking that the Constable of the Castle was the proper person upon whom to devolve the duty; in his opinion, it should be fixed either upon the Sheriffs for the county, or the Sheriffs for the city.
§ Mr. Jervis
said, that as his hon. and learned Friends, the Attorney and Solicitor General had admitted the necessity of passing some declaratory act upon the subject, he should have no objection to withdraw that part of the clause which went to fix the duty upon the Constable of the Castle, and to adopt the words proposed by the Attorney General, provided that by so doing no further objection. would be raised to the Bill.
thought that that would be the most satisfactory course, after what had fallen from the two hon. and learned Gentlemen opposite (the Attorney and Solicitor Generals) nobody could doubt but that it would be improper to transfer the duty of executing criminals to the constable, who was a mere gaoler, he thought that the duty ought to devolve upon the Sheriffs of the county.
§ Mr. Aglionby
thought it was the bounden duty of the Legislature, by a short declaratory act to take care that such a lamentable occurrence as had led to the present measure should not happen again.
§ Sir John Campbell
would not oppose what appeared to be the general feeling of the House, namely, that to remove all doubt for the future, a declaratory act should be passed. He would, therefore, withdraw his Amendment, and support that proposed by the hon. and learned Attorney- General.
§ The Committee divided on the Attorney-General's Amendment—Ayes 115—Noes 55—Majority 60.
§ The other Clauses of the Bill were agreed to—the House resumed, and the Report was brought up.