§ MR. EWART
said: Sir, in moving again for leave to bring in a Bill totally repealing the punishment of death, I am impelled by two considerations: one, the deeply increased conviction of my own mind on the subject; the other, the accumulating force which this question is acquiring in the public mind. But a few years ago, and scarce a magistrate, scarce a clergyman, not a judge of the land, was avowedly favourable to the principle of the inviolability of human life. Now, our cause is strengthened and adorned by the support of many magistrates, many clergymen (blending the sacred spirit of the gospel with the more worldly principles of human expediency), and, as I shall hereafter show, by the expressed opinions of several of the judges of the land. Among the mass of the people generally, in society itself, the feeling against capital punishment is more widely spread. It finds a faithful echo in the more modern portion of the press. It is traceable in the verdicts of your juries, given in several cases against evidence, but in favour in human life; verdicts induced not only by the well-known tendency of jurors to avert from the criminal the punishment of death, but by other circumstances which come in aid of that tendency—I mean the connexion now supposed to exist between extraordinary crime and temporary or partial, insanity; and 541 especially that species of it which consists in a perversion of the moral sense, and which modern medical writers describe under the name of moral insanity. When names of such evidence as those of Pinel, Esquirol, and Conolly, are cited before a jury in support of such a theory—be it right or be it wrong—a new apology is offered for finding a verdict which shall not involve the punishment of death. We have seen this conflict between medicine and law recently occur: are we not likely again to witness its occurrence? But, still it is said, "juries do find a verdict of guilty in cases of murder: the example, though occasional only, has its effect upon the people; they imagine a connexion, however vague, between the offence and the punishment; the occasional infliction of the one, deters the frequent perpetration of the other. "But to this reasoning we oppose the admitted legislative axiom, that uncertainty of punishment is promotive, rather than preventive, of crime. Your capital punishments, even for murder, are occasional. Can they act as steady, efficient, impediments to crime? Nay, even when you make a violent effort, and sternly carry the law into effect for a time, visiting every case of murder with capital punishment, it is doubtful whether you will succeed in repressing crime. And why? Because your effort is only for a time. It is a convulsive effort, which you cannot continue. You may make it for a year. Can you maintain it for a series of years? Such is now your course in Ireland. I know the case of Ireland will be pleaded against me. It will be alleged, that since executions have been inexorably carried into effect, these murders have been checked in Ireland. I do not believe this to be the case. I have here confidential communications from Ireland, which show that executions have been constantly followed by murders. Nay, the case of a family is mentioned in these papers (and on them I believe I can rely), showing that the execution of the grandfather did not deter the father of the criminal, and the execution of both did not deter that criminal himself from following each other in the bloodstained path of crime. Sanguinary punishments suggest sanguinary crimes. The connexion between them is one which experience has often traced. I believe it will now be traced in the criminal annals of Ireland. But let me give you a passing instance—one just recorded in our Journals—and ask you whether the exhibition or the description of such 542 scenes as I am about to depict, will allay, or excite, the spirit of sanguinary vengeance. The scene is Clonmel. The occurrences are these. The report I have ascertained to be a correct one. John Lonergan, Henry Cody, and Philip Cody are about to be executed:—At twenty minutes to eleven o'clock, a strong body of police arrived. At a quarter to eleven, Colonel Dundas came on the ground, followed by other bodies of military. On their arrival, the people began to accumulate; more numerous than I ever beheld in this country at any previous occurrence of this nature. As far as the eye could reach, there was a perfect sea of human heads. Previous to the sheriff's arrival, the hangman, attired in a gaol dress, his head and face enveloped in crape, appeared. At ten minutes past ten o'clock, Henry Cody the elder came on the drop with a firm step and clear lively countenance. John Lonergan next appeared, much emaciated and careworn, very faint, but perfectly resigned to his fate. Philip Cody, the younger, then appeared. His appearance created a lively sensation. Young, handsome, and athletic, be elicited a strong ebullition of feeling. Henry Cody next reappeared, much excited. He walked with a rapid firm step, made directly at the executioner, caught him in his pinioned arms, and attempted to throw him over the balcony. Finding himself foiled, he kicked the executioner. Mr. Power placed him on his knees, and reasoned with him as only a minister of the Roman Catholic religion can do, and having (as he conceived) pacified him, led him forth again. The executioner was then standing on the platform with his hands folded. The culprit again attacked him; but not being able to catch him, he kicked him frightfully. His brother, during this scene, cried piteously, seeming naturally very anxious to aid him. During all this time, Lonergan was allowed to remain in suspense on the fatal drop. The younger Cody was then solicited to retire. This he refused, until persuaded by Mr. Power. The fatal bolt was instantly drawn, and the three men were launched into eternity amidst the execrations of a vast multitude. Curses loud and deep were vociferated during this awful scene, which continued for twenty-seven minutes. Revenge was sworn to audibly and determinedly in the Irish language, and imprecations awful to mention were levelled at the aiders and abetters of this awful scene,Will sights such as these allay, or arouse, the spirit of murder and revenge? Will they not fan the flame which they are intended to extinguish? Time alone can satisfactorily answer these questions. But even as it passes by, it admonishes us that the people are not learning civilisation from the deliberative atrocities of the law. I am aware that it is usual, on these occasions to appeal from facts to figures: and statistical returns have been made the ground of arguments against us, as they have been in our favour. Into these I entered fully the two last times when I 543 brought this Motion forward. But I have always said that on statistics you cannot implicitly rely. If a year or two years of distress enter into the period for which you make your calculation, they are the real causes of augmented crime. It is sufficient if it be shown that a series of years during which the capital punishment has been not only lawful but inflicted, compared with a similar series during which it has been legally or virtually repealed (omitting exceptional years such as those I have alluded to), justifies our theory and supports our facts. I believe this to be the case. I believe it to be proved so by the statistical returns. Having quoted many of them in former years, I shall confine myself to one moved for in the last Session of Parliament by Sir Fitzroy Kelly. It relates to the two years ending in December, 1844, and the two years ending in December, 1846. It shows a great diminution of crime generally, and a great one in crimes for which capital punishment has been remitted or relaxed. Thus—
|In the biennial period of 1844.||In the biennial period of 1846.|
|The murders were.||160||…||133|
|Attempts to murder (increased)||29||…||42|
|Attempts to murder, with bodily injuries (decreased)||42||…||24|
|Setting fire to houses, &c.||323||…||201|
§ I am aware that a winter assize was held in the two years ending in 1844; and that in 1845 and 1846, it was held only in the counties of Lancaster and York. But the dispensation with the winter assize in the two latter years showed that crime was diminished in the country generally, otherwise that dispensation could not have been admitted. Still, I only quote this return as confirmatory of those previously quoted, as tending to show that your repeals of capital punishment have not hitherto been unsuccessful, and that you may successfully go further.
I now, however, appeal from figures to evidence of a more important nature—I mean the opinions of those persons whose experience qualifies them to judge peculiarly and practically on this subject. Such persons being practical men, are naturally
the last to sanction the application of a theory to their own daily familiarity with fact. When they therefore admit, or begin to admit it, their opinion is of the greater value. As they are the last to move, the impulse of conviction must have been proportionately powerful. It is known that evidence on the criminal law was taken by a Committee of the House of Lords last year. Allow me to show the weight of evidence which was either favourable to the repeal of capital punishment, or doubful of its efficiency. Among the witnesses favourable to entire repeal, I am happy to class some of the Judges of the land. Let me, however, first take the valuable opinion of Mr. Cope, the Governor of Newgate. I cannot cite him as favourable to our views. Still he doubts—and it is something that he doubts—the possibility of dispensing with the punishment of death. The Rev. Mr. Field, the exemplary chaplain of the gaol at Reading, is so far favourable, that he is at all events adverse to public executions. He is asked—
Is the deterring effect of capital punishments great upon those who witness an execution?" He answers, "I conceive that a man who has witnessed an execution once, or at any rate repeatedly, would be more likely to commit murder than one who has not.
Mr. Charles Phillips, a barrister of great experience in our criminal courts, is "decidely favourable to entire abolition." Let us now come to the authorities of a judicial character. Mr. Bullock, the chief judge of the city court, owns that he has "changed his opinion" on the subject several times. Mr. Rushton, the stipendiary magistrate of Liverpool, a gentleman of well-known character and talents, and of great legal experience, is asked—
Is it your opinion that capital punishment can in all cases safely be dispensed with? "He answers, "It is." Again: "Is it your opinion that, supposing a person is doubting whether he shall shed blood, the fear of death may have the effect of deterring him?" "I do not believe it at all.… The punishment, in my opinion, produces no sort of salutary effect. It often excites sympathy with the sufferer.
Let us now ascend higher in the scale of authority; to the Judges of the superior courts themselves. Lord Denman, the Chief Justice of the Court of Queen's Bench, will give no opinion. At least, then, Lord Denman doubts. Mr. Justice Erie grounds his support of the punishment of death on the supposition that the community is not reluctant to inflict that punishment. But the stability of the learned Judge's premise may very reasonably be
doubted. Mr. Justice Maule gives no opinion. Mr. Justice Maule, therefore, may reasonably be deemed to doubt. Chief Justice Wilde says—
The question involves considerations too grave to warrant a hasty opinion, however great the objections to the punishment of death may be; and, in my opinion, they are very great.
Mr. Justice Coltman says—
I am disposed to think that imprisonment for life (without hope of remission of the sentence, unless the innocence of the accused should be made to appear) might be substituted without in-convenience for capital punishment. Many guilty persons now escape who would then be convicted; and, though the punishment has little to excite apprehension in comparison with that of death to the majority of persons, I do not think the apprehension of death operates much on the mind of a man who is meditating a great crime.
Mr. Justice Wightman answers the question proposed to him as follows:—
There can be little doubt that secondary punishment may be made so severe as to be a sufficient substitute for the punishment of death, provided such secondary punishment is invariably and inflexibly carried out. But whatever the substituted punishment may be, it should be fixed and certain, leaving no discretion to be exercised by the Judge who passes the sentence.
Next we come to the Irish Judges—I continue to cite those who are doubtful, or favourable—Mr. Justice Crampton gives no answer. He, therefore, at least, may be held to doubt. Mr. Justice Perrin is asked—
Do you think that punishment by transportation or imprisonment would be a sufficient substitute for the punishment of death?
I do. I would add, that the increased certainty of conviction and of some heavy punishment, though short of capital, must operate strongly. I am convinced that, in many cases—in murder cases—when juries have either acquitted or not agreed in a verdict, the apprehension exists of taking away life where a mistake might, by any possibility, be made.…And that, if the punishment had been short of death, convictions would have taken place.
Here we have a Judge—and a most able as well as enlightened one—stating that the abolition of the extreme punishment would especially apply in the only remaining cases for which we seek that abolition—in cases of murder. Let me now add the testimony of another Irish Judge—Chief Baron Richard:—
I am of opinion," he says, "that public executions ought not to be persisted in. They are, in my opinion, calculated to degrade and demoralise the people. I am inclined to think that transportation, attended with the most stringent regulations, might be substituted for the punishment of death.
I admit that Chief Baron Richards does not give a fixed and final opinion on the subject; but he adds that—
Hanging is a very cruel method of taking away life, and should, in any case, be abolished.
So far the Judges. The opinion of such distinguished and responsible persons—cautious and qualified as it must necessarily be—given now for the first time, or rather extorted from them, publicly, is of great weight, and must exercise a powerful influence on the public mind. Granted that the majority of those learned persons are against the change which we solicit, it is much to have any of them, seeing their great responsibility, give a decidedly favourable answer on such a subject. And be it remembered that the Scotch Judges—who are scarcely ever called upon to pass the extreme sentence of the law, and are, therefore, least familiar with the effect of public executions—are the least inclined towards abolition; while the English and Irish Judges, who more frequently witness the effects of the punishment of death, show an increased leaning towards its abrogation. A few years ago, I doubt if any such opinions would have been maintained, or divulged, by any of the Judges. But let me ask. Sir, whether this civilised and Christian view of the question is not supported by the experience of every species of government as well as of our own? Take a republic—take a despotism—take your own colonial administration. In each form of government you will find that the evidence of facts gives validity to our theory, and that the testimony of past history sustains the inferences of modern experience. In the Roman republic—it is familiar to every reader—the famous Lex Porcia, in the 454th year of the republic, abolished the punishment of death. Cicero—as I stated last year—could not violate this law, even in the exceptional case of the Catalinarian conspiracy, without resistance. And what do we learn to have been the results of the abrogation of death-punishment in Rome? Montesquieu—he has often been quoted—states that the republic was not the worse regulated, and that no injury was done to the police of the country. Our own Blackstone connects the repeal of capital punishments with the most flourishing era of the Roman republic, and their revival with the decline and fall of the empire. Turn to the case of a despotism. In Russia, I believe, there has scarcely been an execution since the time of the Empress Elizabeth. She, herself
(it is stated), allowed none to take place for twenty years. Only one is said to have occurred under the Government of Catherine; and a case of five persons executed altogether for rebellion under the Emperor Nicholas. As to the result, we have the evidence of Count Ségur, so long resident in Russia, who says that, under this law, Russia was one of the countries in which the least number of murders was committed. With respect to the success of this great moral experiment in our own dependencies, the instances of Bombay under Sir James Mackintosh, and of Delhi under Sir Charles Metcalfe, have been often cited. Let us, however, turn to that which is now passing before our eyes. Tuscany (a country which successfully abolished capital punishment seventy years ago, and in which Napoleon unsuccessfully restored it), Tuscany has again, within the present year, abolished the punishment of death. Within this year also, the Duchy of Lucca has abolished capital punishment. And, almost within this month, the Parliament of the Grand Duchy of Baden has repealed it. But a greater example, and of more recent date, remains behind. Within the last fortnight, the new Government of France, wisely directed by that distinguished man—so long the advocate of the repeal of capital punishment—M. De Lamartine, has abolished it for political offences, and suspended it for all offences whatsoever. Do we need, then, examples to lead us in the course of civilisation and Christianity? Should we not rather, famed as we are for the freedom of our institutions and the humanity of our people, should we not rather have been the first to infuse a milder wisdom into our legislation, and give a higher and a purer character to our country. For the executioner is the worst of public instructors, and an execution is a great public lesson in favour of immorality and bloodshed. As surely as the sanguinary shows of ancient Rome degraded and barbarised the Romans, what time Rome herself—
…, "forgot whate'er was great and good For pomps of death, and theatres of blood,
So surely do public executions degrade and and barbarise our country. On the other hand, the disappearance of such scenes would tend to exalt and purify our national character, "to inbreed"—let me quote as I once before did, the words of Milton—
To inbreed in a great people the seeds of civility and virtue, to calm the perturbations of the spirit, and to sot the affections in right tune.
But here I am perhaps to be interrupted by an objection which, if admitted, would take the question out of the region of legislation, and transfer it to the region of theology. My hen. Friend the Member for the University of Oxford (Sir Robert Inglis), is wont to bar our passage by a single text of the Old Testament, so familiarly quoted that I will not here repeat it. Into the theological argument I will not enter. I do not hold this to be the place for theological discussions. Seldom are they more misplaced than when they are admitted within the walls of Parliament. But I will meet the objection by a single question to which I have not yet heard an answer. If the Bible prescribes, if our religious duty enjoins us, to take life for life, are we not bound to carry the mandate into unvaried execution? And must we not, therefore, entirely put an end to the Royal prerogative of mercy, the exercise of which would, according to this mode of reasoning, be a contravention of the law of God? Our religion breathes a holier spirit, and inculcates, not the prodigality, but the sacredness, of human life. Let this spirit diffuse itself through our legislation: suicide, duelling, capital punishment, all violate this great and sacred principle. Let all be alike condemned as derogatory to the responsibility and dignity of man, and at variance with the genius of Christianity. On this great principle, on the sacredness of life, which no human being has the right deliberately to take away; in taking away which we transgress the boundaries of human jurisdiction, and assume the infallibility of the Deity; in taking away which we limit the power and prerogative of repentance—on this great principle we take our stand. We adjure you, especially at the present moment, to respect it. Human institutions are shaken to their basis. Great principles, the principles of humanity and religion, will still survive; and, whether the dangers of disorder or the blessings of repose hang over the future destinies of this country, your repeal of sanguinary punishments will either mitigate the fury of the tempest, or add sunshine and serenity to the calm. The hon. Gentleman concluded by moving for leave to bring in a Bill to abolish the punishment of death.
§ SIR G. GREY
regretted having to take the same course on the present occasion which he had found to be his duty to take last year on a similar Motion of 549 his hon. Friend, namely, to oppose the application for the introduction of the Bill. If his hon. Friend had proposed to bring in a Bill for removing the punishment of death from some of the offences that still remained capital a law, he would willingly have consented to the introduction of the measure. But as his hon. Friend invited the House to sanction the principle of the total abolition of the punishment of death for all offences, however enormous, he considered that there was no use in allowing the Bill to be introduced, because he felt that the House was now as well able to form an opinion of the principle of the Bill as it should be on the second reading. He believed that the punishment of death for crimes of the blackest dye—and by such he meant to refer to deliberate and premeditated murder—he believed that for such crimes the punishment of death was essential for the safety of society. His hon. Friend invited the House, out of consideration for the sacredness of human life, to abolish capital punishment; but could the hon. Gentleman guarantee that, when capital punishment was abolished, murder would cease? Could he guarantee that, when capital punishment was abolished, cases of murder would not even become more numerous and more frequent than before? He would not complain of the subject being brought forward, because he considered that it was one of the gratifying features connected with the present day that public attention was directed to the subject of punishment for offences. But still he felt that in the strong desire manifested for the treatment of criminals with humanity, and which it was so essential should prevail in all civilised countries, it was necessary to bear in mind whether that feeling might not be carried to a morbid extent. They should bear in mind that those who followed the pursuits of life peaceably and honestly required to be protected against the hands of the robber and the murderer. The hon. Gentleman had not throughout his speech stated one practical grievance existing under the present state of the law. He believed that within the last ten years no person had been executed, except for the crime of murder, or for attempt at murder, which was tantamount, in point of criminal intent, to the commission of murder itself. The hon. Gentleman spoke of the unwillingness of parties to prosecute, of the unwillingness of witnesses to give evidence, and of the 550 unwillingness of jurors to convict, in cases where the punishment of death would be awarded. But it was well known and perfectly understood that in cases where the offence did not involve the highest amount of guilt, the punishment of death was merely recorded, but was never carried into effect. He would not object to the Motion of the hon. Gentleman, if the object were to introduce a Bill for doing away with the penalty of death in cases where it was not advisable or usual to carry it into effect. In fact, he had a Bill prepared on that subject, but he had doubts whether it was worth while bringing it before the House at the present time. The objection urged by his hon. Friend as to the unwillingness of parties to give evidence, and of jurors to convict, applied to the former state of the law, when the punishment of death was carried into effect for comparatively light offences; and the force of this objection had nearly disappeared since the alterations in the law had been effected, which had been originated by the exertions of the Father of his hon. and learned Friend behind him (Mr. Romilly). In cases of deliberate murder, when there was clear evidence of the guilt of the prisoner, he did not think it could be said that juries hesitated to convict. At the same time he was ready to admit that cases had occurred where juries had admitted very slight evidence of insanity. He was glad, however, to perceive that latterly medical men of high standing had expressed an unwillingness to give evidence in such doubtful cases that would load jurors to acquit. But his hon. Friend ought to recollect that this unwillingness to return verdicts had occurred in other cases besides those of a capital nature. The hon. Gentleman had referred to the statistics on criminal matters, and had remarked truly that statistical returns were not always to be depended upon. But the hon. Gentleman did not compare the returns of crimes for the series of years immediately before capital punishment was abolished for certain offences, with the returns for the years immediately following the change in the law; and if he had, his hon. Friend would probably not be found to rely on statistics in support of the theory which he now supported. He thought the punishment of death had a deterring effect on the commission of crime, which no other species of punishment could have. It was not on the spectators of the punishment alone that this 551 deterring effect was produced. Those who went to see a malefactor struggling in the agonies of death were generally persons familiar with crime, and displaying an absence of moral feeling; but the conviction in the community generally that the punishment of death will follow certainly on the commission of particular offences, must have an effect on the great mass of the people, who knew what they rendered themselves liable to by the commission of crime of that magnitude. Now, with respect to the statistics referred to by his hon. Friend, he found that in England and Wales the total number of persons committed for trial in the following years was—in 1840, 27,187; in 1841, 27,760; in 1842, 31,309; in 1843, 29,591; in 1844. 26,542; in 1845, 24,303; in 1846, 25,107, In cases of attempts to murder, capital punishment having been abolished in 1831 in all cases except where bodily injuries dangerous to life were inflicted, the number of commitments for the five years ending 1831 was 451; for the five years ending 1836, 668; for the five years ending 1841, 937; for the five years ending 1846, 1,099. Of rapes, as to which capital punishment was abolished in 1841, the number in the five years ending 1831 was 252; in the five years ending 1836, 278; in the five years ending 1841, 319; in the five years ending 1846, 597. Of arson, as to which capital punishment was abolished in 1837, except of dwelling-houses or ships, when life is endangered, the number in the five years ending 1831 was 212; in the five years ending 1836, 336; in the five years ending 1841, 183; in the five years ending 1846, 581. Of forgery, the capital punishment in all cases remaining capital having been abolished in 1837, the number for the five years ending 1831 was 312; for the five years ending 1836, 350; for the five years ending 1841, 564; for the five years 1846, 731. And of burglary, the capital punishment having been abolished in 1837, except in cases where persons in the dwelling were wounded or assaulted, in the five years ending 1831 the number was 1,299; in the five years ending 1836, 1,060; in the five years ending 1841, 2,154; and in the five years ending 1846,2,701. He madeuse of these returns merely in order to caution the House against supposing that if they abolished the punishment of death for murder, there was no danger of an increase of that crime. With regard to murder, he was happy to say that there had not been 552 the same increase which appeared in the returns for these other crimes. The number of commitments for murder in the five years ending 1831 was 317; in the five years ending 1836, 355; in the five years ending 1841, 284; in the five years ending 1846, 360; or, for the ten years ending 1836, 672; for the ten years ending 1846, 644, showing a diminution of crime in favour of 1846 when the two periods of ten years were taken into account. His hon. Friend had referred to the report of the Committee moved for by Lord Brougham, in the House of Lords, on the amendment of the criminal law; and it was remarkable that he had intended to refer to the report as making out a strong case on the contrary side. His hon. Friend had not referred to the opinion of the Committee itself, but he selected various witnesses, some of whom gave a very qualified opinion indeed in favour of the hon. Gentleman's Motion. One of these witnesses was Mr. Cope, the governor of Newgate; but that gentleman, on being asked—Do you think we might safely dispense with the punishment of death for grave offences, such as murder?" replied, "I doubt that very much.Much of what the hon. Gentleman had said applied to public executions. Public executions might be right or they might be wrong, but that question was entirely distinct from the question of the total abolition of death. He doubted whether any other mode of execution could be introduced into this country; but, as he had just said, that was a different question from that which the hon. Gentleman contended for. The hon. Gentleman quoted the opinion of Mr. Justice Coltman, which appeared in the following passage:—Do you think any punishment by transportation or by imprisonment would be a sufficient substitute for death in the cases still left capital?—I am disposed to think that imprisonment for life, without hope of any remission of the sentence (unless the innocence of the accused should be made to appear), might be substituted without inconvenience for capital punishment. Many guilty persons now escape who would then be convicted; and though the punishment has little to excite apprehension, in comparison with that of death, to the majority of persons, I do not think that the apprehension of death operates much on the mind of a man who is meditating a great crime: he is generally, I conceive, under the dominion of some overpowering passion, which leads and enables him to set all consequences at defiance.Mr. Justice Wightman was of the same view, his opinion being as follows:—There can be but little doubt that secondary punishment may be made so severe as to be a sufficient substitute for the punishment of death, 553 provided such secondary punishment is invariably and inflexibly carried out; but whatever the substituted punishment may be, it must be fixed and certain, leaving no discretion to be exercised by the judge who passes sentence.But in reply to these opinions, he would ask, was it possible to take away all hope of an appeal to the mercy of the Crown, or to the result of the intercession of friends at some future time, no matter how remote? While the hon. Gentleman, however, picked out two or three of the Judges who gave a qualified opinion in favour of his views, he passed over the great number of these eminent persons who gave a very unqualified opinion against the abolition of the punishment of death. The great majority of the English Judges, the whole of the Scotch Judges, and eight out of ten of the Irish Judges who returned answers, were all decidedly against the abolition of death in all cases. Again, the Committee were unanimous in the opinion which they expressed on this subject. The passage in the report referring to it was this:—Respecting the expediency of abolishing capital punishments, 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.There was nothing in Scripture opposed to the doctrine of capital punishment. He doubted the propriety of going back at the present day to the criminal laws of ancient Rome, or of following the criminal code of Russia. The hon. Gentleman said that capital punishments had been abolished in Russia for the last 100 years; but was it not a fact that criminals in that country were often subjected to a punishment which, though not called capital, they did not survive for six-and-thirty hours? He did not think that his hon. Friend, in citing the law of Russia as an authority in his favour, would consent to the substitution of the knout for the present system of capital punishment. Again, with regard to France, he was aware that the Provisional Government in that country had, very much to their credit, abolished the punishment of death for political offences; but he had not been before aware that they had, as the bon. Gentleman said, provisionally abolished capital punishment for all offences. He had doubts as to the correctness of the hon. Gentleman's authority on that point; and he might refer to the circumstance of a man having been put to death for stealing a silver spoon out of the palace of the Tuileries. A great 554 many others were also executed summarily during the recent events in Paris, and as he thought, very justly, in order to put a stop to depredations during the existence of such a crisis. As he had before stated, he should have been prepared to consent to the introduction of a Bill for abolishing the punishment of death in certain cases, reserving to himself the right of considering in Committee what the various offences were for which the capital punishment was to be remitted; but considering the extent to which the present Motion went, he hoped the House would, on the grounds he had stated, join with him in resisting the introduction of the Bill.
§ SIR CHARLES BURRELL
said, that he hoped he should never live to see the day when the jurisprudence of England would be so altered as to afford no security for life and property in the country; and he should, therefore, give his cordial support to the right hon. Baronet in the course which he proposed taking with regard to this Motion.
§ MR. OSBORNE
said, the hon. Baronet who had just spoken seemed to think that hanging formed an essential part of the constitution of this country. It reminded him of the anecdote told of a man who was cast upon the shore of a strange country, and who, on seeing a gallows, cried out, "Thank God that I am in a constitutional and civilised country." He thought that the House owed much to the hon. Member for Dumfries, for the great trouble which he had taken with regard to this question; because if they sat there for any object, it should be to make their fellow-creatures more happy, and to benefit their condition. He, however, should say that he was not fully prepared to agree with the hon. Gentleman altogether as to the extent to which he proposed repealing the punishment of death, though he could not see why a difference of opinion as to details formed any possible reason why the House should not allow the hon. Gentleman to bring in a Bill which might do something to render the law of this country more humane than it now was. He objected to public executions. He thought the spectacle which occurred the other day at Clonmel, was a strong argument against their continuance. Three men were sentenced to be hanged, and the execution was said to have been performed by a man who was the approver against them on the trial. This man came forward before an enormous mob who had 555 assembled on the occasion, and regardless of their execrations proceeded deliberately to soap the rope, and to go through the other horrid details of his office. He was seized by one of the wretched convicts, and actually thrown over the rails, and remained for some time clinging to them; and there could have been little doubt but that his life would have been sacrificed, were it not for the exertions of the Roman Catholic clergyman who was present. For an entire quarter of an hour, while this scene lasted, the other unfortunate wretch was waiting his fate. What was the impression which such a scene must have produced on the multitude below? The men, though guilty of great crimes, had the sympathy of the crowd, who rushed forward in order to rescue them; and there was little doubt but that if they had got the hangman into their hands, they would have sacrificed him on the spot. In London, executions were attended by women, children, and pickpockets; and the latter made their richest harvest at such places. He thought the time had arrived when they should consider whether capital punishments, if retained, ought not to take place within the walls of the gaol, in the presence of officers appointed to attend them. He begged respectfully to throw out the suggestion as one well worthy the attention of Her Majesty's Government. He admitted that he had some doubt whether the time had arrived for doing away with capital punishments altogether; but still he thought that the hon. Member for Dumfries was deserving of the thanks of the House for bringing the question before them.
§ MR. LENNARD
said, that the result of the abolition of capital punishments had, so far as it had gone, been satisfactory; but the House was now called upon to legislate upon different principles, and it was questionable whether the same arguments that applied to offences against property would apply to those against life. There was too much reason to believe that innocent persons had suffered from incorrect but honest verdicts; and, if that occurred, be it ever so seldom, it was an argument in favour of a substitute for the punishment of death, if an efficient one could be found. His hon. Friend had one argument, which ought to carry with it great weight, in favour of his Motion. In the case of a man unjustly convicted of murder, and afterwards executed, they placed it out of their power to remedy the 556 wrong on his innocence being eventually proved; but if capital punishment were done away with, they would retain in their hands the opportunity of reversing the mistaken sentence, and of restoring him to his position in life. He referred to the dreadful assassinations which disgraced Ireland as furnishing them with the most palpable evidence of the inutility of capital punishment as deterring from the commission of crime; and he thought that if by their legislation they evinced that reverence for human life that they would not execute the most hardened of offenders, they would be taking the most direct means to educate the people up to the same standard of morality. It was well known that among juries called upon to decide in murder cases, there existed a nervous disposition to avoid the verdict of "guilty," by finding the prisoner "insane;" and when this feeling was prevalent among the class from which juries were taken, the Legislature was called upon to interfere. He considered that, at any rate, the experiment ought to be tried for a time; it could not do much evil, and it might be productive of much good by satisfying the whole community as to what would be the effect of a permanent departure from the existing code. He had great pleasure in supporting the Motion of his hon. Friend.
§ ALDERMAN SIDNEY
had been in communication with Mr. Cope, the governor of Newgate, who had informed him, that in his fifteen years' experience he had never known but one criminal hanged for murder who had not witnessed an execution. He had paid some attention to the motives which led to these horrible crimes; and he attributed many of them to the fact that the perpetrators had been frequent witnesses of public executions. There were many cases which proved this. For instance, Connor was present at the execution of Tapping, and on the following Monday deliberately murdered the woman with whom he cohabited, for some trifling offence. Again, T. W. Wicks paid 2s. 6d. for a seat to witness the execution of Connor, and had witnessed every execution in the city for several years; and he went, in the coolest possible manner, and shot his master for stopping some few shillings of his wages. If hon. Members had ever undertaken the painful duty of examining the tumultuous crowds which stationed themselves around Newgate on the morning of an execution, they would no longer doubt 557 the inefficacy of those dreadful spectacles as an example. In courts of justice, when the awful sentence of death was passed, he had seen the Judge, the counsel, the jury, and, indeed, the whole court, dissolved in tears; but the spectators who witnessed the death of the criminal were in a state of licentious riot during the whole scene. At the request of Tapping he had attended him to the scaffold. That malefactor, up to that moment, had made no confession of his guilt; and when he appeared, he was received with waving of hats and cheers, and as much token of approval as a successful candidate at a city election. He went afterwards among the mob, and heard the conversation which took place at the foot of the scaffold, and there he found every species of ribaldry going on, and every kind of assignation in which vice and crime rejoice, were made there by persons unmoved by the awful spectacle above. The vast importance of this question would be perceived, if it were remembered what a large number of persons perished by the sentence of the law. In the twenty years ending with 1833, 1,597 persons were executed in England; and in London, from the year 1825 to 1830, no fewer than 105. In 1840 to 1845, the number was reduced to five only. When, therefore, in addition to this fact, experience showed him, that with this diminution of capital punishments, offences of a frightful nature had greatly diminished, he could not but regret that the right hon. Baronet opposite had thought it consistent with his duty to oppose the introduction of this Bill. He would not go into the scriptural argument; but he believed that the sword was given to the hands of the magistrate to exercise at his peril. He believed this was simply a question of expediency, and that the sentence of death might be abolished with perfect safety. The returns of the Central Criminal Court might be taken as a fair sample of the whole criminal returns of the kingdom; more than a quarter of the whole number transported from this country received their sentences at that court; and he would, therefore, refer for a moment to those returns. In 1840, the committals were 3,240, and the number transported 218; in 1841, the committals were 3,369, and the transportations 745; in. 1842, the committals were 3,763, and the transportations 719; in 1843, the committals were 3,753, and the transportations 727; in 1844, the committals were 3,079, and the transportations 558 527; in 1845, the committals were 3,253, and the transportations 459; and in 1846, the committals were 3,701, and the transportations 448. Thus it appeared, that in 1846, the number of transportations had decreased nearly one-half, the numbers being in 1840, 918; and in 1846, 448. The hon. Gentleman, in conclusion, intimated his intention to vote for the Motion of the hon. Gentleman the Member for Dumfries, and expressed a hope that if the Government persisted in their opposition upon this occasion, that they would, at some future and not remote period, sanction the principle of the abolition of capital punishment.
§ MR. ROMILLY
expressed his approbation of the motives which for several years had prompted the hon. Member for Dumfries to persevere with this question. The punishment of death was certainly limited, in practice, to cases of murder; but there were a number of offences to which it was still attached, for which the offender was liable to death. In all those cases the Legislature would act wisely in making the law conform to the practice by removing the capital punishment from the Statute-book; but the crime of wilful and deliberate murder stood upon a different footing. If death were not inflicted for wilful and deliberate murder, that crime would of necessity increase, because of all others it most completely destroyed the evidence of guilt. He was not prepared, therefore, to go along with the hon. Member in the measure he proposed for the purpose of taking away the punishment of death in all cases, including wilful and deliberate murder; but in all cases short of that, he fully concurred in the proposition. Under these circumstances, he would suggest to the hon. Member the expediency of withdrawing the Motion, in order that when the measure which the right hon. Baronet intended to move was in Committee, amendments might be introduced which would meet the views which he had urged with so much force. He might add some observations on the disgraceful scenes at the exhibitions (for they were nothing more) which usually occurred at public executions; but he would only ask, whether it would not be wise to enact that no execution should take place in public. He was convinced that a knowledge of the fact that the offence of murder would be followed by the punishment of death, would have great effect in preventing crimes of this description; and he also believed, that those who witnessed the dying 559 struggles were not the most deeply impressed with the scene. The fact was, public executions were exhibitions of a most demoralising character; but if, as soon as sentence was pronounced, the criminal were taken back into prison, and it was universally known that that was the last moment he would ever appear alive in public, the result of such knowledge would be much more effectual in the way of terror to evil-doers than any public execution whatever.
§ SIR G. GREY
said, that in order to prevent any misapprehension, he would again state, that a Bill had been prepared to assimilate the law to the existing practice; and in speaking of cases of wilful and deliberate murder, he meant to include cases such as the intended assassination—though it was not actually effected of Mr. Uniacke Bailey.
said, agreeing in much of what had fallen from the hon. and learned Gentleman (Mr. Romilly), to whose authority on such subjects his hereditary name gave additional consideration, strengthened, might he be allowed to say, by what must always be to himself (Lord Nugent's) most affectionate remembrances, he could not agree with him in recommending the hon. Member for Dumfries to take the offer of his right hon. Friend (Sir G. Grey), and to withdraw his Motion, for the sake of the chance of prevailing upon the Committee on the right hon. Baronet's Bill to adopt the principle of the great measure he had brought before the House that night. In the first place, he doubted whether he could make up his mind, or arrive at a conviction, to vote the affirmative with his right hon. Friend, that it was desirable to read any Bill the second time, the object of which might be to retain in any of its provisions the punishment of death; and, in the next place, it would not be an advantageous mode of recommending the great principle to the House, if it were to end in inducing the Committee to retain in such a Bill a clause including such a punishment. The hon. Gentleman (Mr. Ewart) had brought before the House the statistics of the effect which always and everywhere, as far as statistics could be obtained, the punishment of death had had in increasing instead of diminishing the prevalence of great and atrocious offences. From the Porcian law of the Romans-commended by Julius Cæsar, extolled by Cicero, and by Seneca, suspended by the Triumvirs, and abolished by the Emperors, 560 and, with it, all respect and all security for human life—again, from the example of the Tuscan Code, which for twenty years ruled that people without a capital punishment, and almost to the extinction of all crimes of violence, until repealed by the French conquerors of Italy, when assassinations again and instantly began to prevail—to our own experience in our own country of the abatement of all crimes successively from which the death punishment has been withdrawn—he had shown that, everywhere, and always, crimes of violence had increased in proportion to the violence of punishment, and decreased in the ratio of its moderation. He knew it had been said that within the last five years some crimes, in respect to which the punishment of death had been abolished, had increased. He was well aware of Mr. Redgrave's last two years' returns, and begged attention to them, as powerfully supporting the hon. Mover's argument. What did they show? Prosecutions and convictions for the crime of violence against the other sex, had, it seemed, increased; but he held this fact to be a most valuable admission in their (the abolitionists') favour. What did it show? That prosecutions and convictions, whilst the punishment of death was affixed to the offence, were rare; and as soon as capital punishment was repealed, prosecutions and convictions became more frequent, because all reluctance on the part of the injured party was removed, and attorneys ceased to recommend, as they generally did before, a prosecution for the lesser offence, knowing the disinclination of juries to convict for the capital offence. "But there is another crime, and but one other, which, by these returns, appears to be on the increase; and, I pray you, mark it—whilst all others have decreased from which the death punishment has been removed—the offence of shooting or stabbing, with intent to kill. What is this but the attempt to commit the only crime for which the death punishment is practically retained? "He put this offence in the same category as successful attempts to murder; and if there had been an increase in attempts to murder, notwithstanding the punishment of death, so much, then, in further proof that capital punishment did not deter from the crime of murder. He would not refer to authorities—Sir Samuel Romilly, Sir W. Grant, Sir James Mackintosh—all of whom maintained that the punishment of death was inefficacious to prevent crime; but he should go at once 561 to fresh and recent evidence, contained in reports of some of the most distinguished practical lawyers in this country. He would take the second report of the Lords' Committee on Criminal Law now before him. It did appear strange, that whilst this great question had made progress in two of the States of America—whilst it was acted upon in the Grand Duchy of Tuscany and in Baden—was in balance in Prussia, and almost adopted in Bavaria, and, he believed, in Belgium—and in Sweden was under discussion (thanks to the invaluable work, shedding glory how much brighter than the crown he wears upon the present King of Sweden, whom God long preserve for the happiness of his own country, and an example of wisdom to other rulers!) with a view to the abolition of the punishment of death, it should have been treated of so shortly, so succinctly, and so lightly, as in four lines of this report. But what did those four lines say?—Respecting the expediency of abolishing capital punishments we have found scarcely any difference of opinion; almost all the witnesses agree in opinion that, for offences of the gravest kind, the punishment of death ought to be retained.In that second report he found only four witnesses filling judicial offices, out of a large number to whom that question had been suggested. Mr. Baron Platt and Mr. Serjeant D'Oyley gave their opinion distinctly in favour of retaining the punishment, and they alone. But he turned to the opinion of no less an authority than the Lord Chief Justice of the Common Pleas; and what said that great and eminent Judge? He begged the House to mark it:—This question involves considerations much too grave to warrant a hasty opinion, however great may be the objections to the punishment of death, and, in my opinion, they are very great.Could any learned Judge, he asked, have given, in all the circumstances of that eminent man's position, a more distinct or conclusive testimony? "However great may be the objections—and in my opinion they are very great!" He (Lord Nugent) knew not, nor did he wish to know, by what hand this second report to the Lords was drawn up. But he left the value of that report to be judged of by the House; when, in the face of that evidence, the writer permits himself to say—We have found scarce any difference of opinion. Almost all the witnesses agree in opinion that for offences of the gravest kind the punishment of death ought to be retained.562 He rejoiced, at all events, that to such a report was appended the evidence on which it was founded. He (Lord Nugent) was aware of the difficulty and delicacy of putting a question as to the abolition of the punishment of death to a Judge holding a seat upon the bench of a criminal court. A Judge could not be fairly asked his opinion upon such a subject, liable, afterward."), to sit in judgment in a capital case, at the mercy of every advantage which the counsel for the defence would not fail, in duty to his client, to take—appealed to by the prisoner, on whom he must, according to law, pass sentence of that awful and irrevocable penalty, which, peradventure, in another place, he had declared it to be his opinion, no longer answered the purpose of its institution, and, therefore, must be utterly unjustifiable. But, in the first report, Judges had given their opinions, and much stronger opinions. Mr. Justice Coltman said, he was disposed to think that imprisonment for life, without any hope of a remission of the sentence, might be beneficially substituted for capital punishment. The learned Judge further said, that he did not think the apprehension of the punishment of death operated much upon the minds of men who contemplated the commission of the crime. The Lord Chief Justice of England, your first and highest criminal Judge, Lord Chief Justice Denman said—I have not yet sufficiently considered the queestion to be able to come to a decisive judgment upon it.An answer, from one placed and charged with such duties, well befitting the discretion, gravity, high feeling, and lofty integrity of that excellent and admirable man. He felt the question to be one unfit to be propounded to him, and, with his characteristic propriety and quick sense of duty, declined to give an opinion upon it. The opinion of Mr. Justice Wightman was also one which he might cite—it was not so strong against the punishment of death as those to which he had previously referred, but it nevertheless was clear and decisive. In the evidence appended to the first report, there was the evidence of eight persons holding high judicial offices; and yet, disregarding the opinions of those eight eminent persons, the Committee ventured to tell the House they had scarcely any difficulty in declaring that the punishment of death could not be relaxed. Looking then at the known humanity of the Judges—looking at the mercy of the Crown, acting under the 563 advice of his right hon. Friend opposite—looking at the mitigations which the influence of public opinion had effected, he still could not help observing that the best position in which the law could stand would be that of bearing a character for certainty and sternness, marked, however, by mildness, and checking the crime at the least practicable amount of suffering to the offender. Further he would say, that the character of those who administered the law, ought to be one of severe and inexorable obedience to that law. At present the law was sanguinary; but the Judge and the Crown were most merciful in its administration; and, in every instance where mercy interposing casts its bias into the scales in which criminal justice has weighed the case, the Judge-the Home Secretary, and the Crown, give sentence of remission to the offender, and of condemnation upon the law. The best conceivable state of criminal justice is that in which the law is as mild and merciful as is consistent with its duty of protection to the public—but the ministers of the law inflexible, inexorable, in their obedient administration of it. Here the plain maxim is inverted. The law, fierce and inconsiderate—the Minister, ever anxious to thwart, where practicable, the overmuch fierceness of the law. It was a trite and ordinary remark, very often made, that there must be something wrong in a system of legislation when those whose duty it was to administer it, performed that duty with feelings of disgust and horror. Judges were always in this country looked up to with the utmost reverence—and may they ever be so! The sheriff, whose duty it was to carry out the judgment of the court, was also a person of worship and of high authority; but the sordid and degraded hangman—he who executes what the judge has enjoined, and is in the exetion but the vicarious minister of the sheriff's appointed duty—a man forbid, outcast, and excommunicated for the act—for that act becomes a being with whom the meanest wretch upon the streets would not, for his reputation's sake, break bread. Nothing plainer than this trite maxim—let it not be a dishonour to perform what it is righteous to enjoin. But here you are ever dissembling your partnership in the act, and disguising and veiling the example which you profess to be one of public good. If the example be good, why draw the cap over the sufferer's face? Nay. The death struggle, the suffering, 564 are parts of the public example. But, here, for very decency's sake, to spare the hideous outrage on humanity and morals, you draw a veil over the loathsome act you are performing. You tell the people you are doing what it were unfit for human eyes to witness; and you call this public example! You talk, forsooth, of executing a man. You do not execute the man. You execute the law. You kill the man. You murder even your language to dissemble your act. He would repeat, that the general feeling of mankind was opposed to the punishment of death. When a culprit appeared upon the scaffold his crime was almost forgotten; and it could not be denied that the legislators, the judges, and the executive authorities of this country had never taken any pains to render the criminal law either certain or uniform. Not a moment ought to be lost in at least rendering it certain. The principle of gambling ought at once to be taken out of it; and the guilty ought no longer to be sustained by calculations of impunity or the influence of public sympathy. His right hon. Friend opposite seemed to attach some importance to the manner in which the punishment of death operated as an example; the supporters of the punishment very frankly admitted that it produced no good effect upon those who were the actual spectators of the dreadful scene called an execution, but that it had an indirect effect upon the population at large through the publicity which newspapers gave to the history of such events. We are then to cull the example and communicate it to our children and household, by reading attentively the details of what it is a wound to public morals to witness. Read the tragedy, for example's sake, which it would be contamination to see enacted. He understood there was a penny theatre—he believed in York—but if misinformed respecting the locality, he begged pardon of that splendid city—there could, however, be no doubt of the fact that there was a penny theatre in which the likeness of a man was hanged, clad in the clothes—warranted to be really the clothes—worn by a person who had been hanged; and, for the purposes of that dramatic execution, a man was employed to hang the effigy of the supposed culprit, warranted to be the same man who had hanged the original offender. The most awful consideration connected with this subject yet remained to be noticed, and he purposely reserved it for the last; it was 565 the irrevocable nature of the punishment. No truth could be more evident or more practically important than this, that an irrevocable punishment was incompatible with the notion of a fallible tribunal. This was no fanciful hypothesis. It was a grim truth from which they could not escape. It appeared from the evidence taken before Sir James Mackintosh's Committee on the Criminal Laws, that during a cycle of many years, when capital executions were much more frequent, on a careful average, one person in every three years had suffered capital punishment whose innocence had been subsequently proved. The fact established before this House, much later, but seven years ago, by Sir Fitzroy Kelly, was yet more frightful—that during the last fifty years as many as forty-one persons had been executed whose innocence had been discovered too late. It appeared that the lives of as many as five persons had been saved through the exertions of Mr. Sheriff Wilde; of whom that excellent and able Judge, Chief Baron Pollock, says before the Lords' Committee, that he had reason to be convinced that three were entirely innocent. Attention had recently been called to the case of Michael Howard, in Limerick, who had escaped by mere accident. By mere accident he had been saved from being added as one more to the blaak catalogue of those who, too late, had been found to have been sacrificed to the error of a fallible tribunal usurping the prerogative of the Infallible, in whose hands alone can justly rest the infliction of irreparable, irremediable punishment. Upon the Legislature of England a deep and heavy responsibility rested—a cry of innocent blood rose up against them. It was no forced gloss on the words, "Vengeance belongeth unto God," to say that they formed a phrase of high importance in the present discussion. Vengeance belonged alone to that tribunal whose decision could neither be gainsayed nor questioned. He well remembered that Members of that House had often said murder could not be effectually stayed without the aid of capital punishment; but such hon. Members were bound to show that no other punishment would be efficacious-that the death punishment did tend to repress murder—and that, even if so (which all statistics disproved), murder could not be as effectually or more effectually staunched, that at the expense of the paradox which would teach respect for human life by the publicly violating of 566 its sanctuary—the onus probandi rested upon them. He conjured them to remember that the responsibility rested on their votes; and, above all, not to think they could innocently defer the repeal to a further day; that if, peradventure, they should find they had been wrong, with them rested the great blood-guiltiness of delay. In the present age we looked back with horror and wonder at the severities practised by our ancestors; and the next generation would regard with equal astonishment the legislators of these times. He hoped, however, that the period was not distant when the punishment of death would be abolished; and he doubted not that, in very few years from that time, we, or those who came after us, would look back with as much horror and astonishment at the present state of the law, as we at the death punishments of private stealing, shoplifting, cattle stealing, and forgery, which we and our fathers, thirty years ago, looked upon with the same complacency and sense of their fitness with which men now (as good and humane as they, and not more so), cry out for the compensation of blood for blood. He hoped that the vote of that night would give the country an assurance that capital punishments would be speedily abolished.
§ SIR R. H. INGLIS
, though he rejoiced at the reappearance in that House of the noble Lord who spoke last, yet differed from him on many points. Their attention had been called to the opinions delivered by more than one Judge respecting the punishment of death. He did not inquire who put these questions; he did not ask whether any one put them, being himself a Judge; but he thought that such interrogatories must have proceeded from one who had not well considered the responsibility of the judicial character. The proposition referred to the whole empire; and, therefore, it ought to be remembered that Scottish and Irish Judges had given evidence on the subject, and their opinions were certainly in favour of retaining capital punishment in certain cases. They certainly were opposed to any statutory changes in the law upon this subject. Amongst the minor observations which fell from the noble Lord, there was a complaint against lawyers for mutilating the English language. He was surprised to hear a scholar like the noble Lord say that "kill" and "execute" might not be used as synonymes. He was almost ashamed to pursue such a trifle; but, as 567 his noble Friend had reasoned upon it, be could not help adding, that the highest authorities had so used them: Dryden had said—O Tyburn! couldst thou reason and dispute, Then couldst thou judge as well as execute.There were some, but he was not one of those, who, maintaining indeed the punishment of death, defended it on the ground of its necessity as an example. He defended it on a higher ground; and he took his stand on the Bible. He believed that neither his hon. Friend the Member for Dumfries, nor his right hon. Friend the Secretary of State for the Home Department, who deprecated the discussion of the theological branch of the question in that assembly, would shrink from the application of the authority in private life. Why, then, should they throw aside the argument which the word of God would supply in legislation? His hon. Friend said, indeed, last year that "the rigours of the Levitical law had been softened by the humanising influences of Christianity." He (Sir R. Inglis) contended, however, that God had not repealed that law which he gave not to his own peculiar people only, but to the whole new-replenished world, "Whoso sheddeth man's blood, by man shall his blood be shed;" the reason assigned being, "for in the image of God created He him. "It was not laid down that the end of all punishment, as is now maintained by some, was the peace of society, the prevention of crime, or the reformation of the criminal: but the Scriptures said that the shedding of man's blood required the blood of man, "for in the image of God created He him." He was aware that these were solemn and sacred subjects, but they only became improper for discussion when they were either referred to in an irreverent or an improper spirit. This was not the case on the present occasion; and he thanked God that the reference had been received as he could have wished it should have been received—not with assent, perhaps, that was quite another thing, but with respect. The object of punishment, then, was not that which the philosophic legislators either of Tuscany or of this country would fain induce us to believe. He would not shrink from saying, that the object of punishment was to carry on under the authority of God's law the government of his people. This was the primary consideration; but he would admit that no legislator could properly fulfil his duty who did not seek to combine 568 with it other considerations. Among these were the security of society, and the reformation of the criminal in cases in which the highest penalty of the law was not inflicted; but so long as he believed in the words of Scripture which he had quoted, he would be no party to any enactment which should deprive those words of the sanction of the Legislature; and with his consent man should not blot out of the statute that which he believed was commanded by the word of God. From the earliest time the legislation on this subject had been guided by Scripture authority; and he was surprised to hear the hon. Member for Middlesex ridicule the hon. Member for Shore-ham for saying that it was in accordance with the principles of the constitution to inflict the punishment of death. He should have remembered that the earliest legislation of England was founded on the word of God. The laws of Alfred began by reciting the Ten Commandments; and before Alfred had proceeded ten pages, he enacted the punishment of death. Thus it appeared that this law was part of the ancient constitution. The laws relating to capital punishment had been reviewed about twenty years ago; a short time before that, he believed 200 statutes, inflicting the punishment of death for various offences, had been repealed; there had then been left about thirty or forty offences to which the punishment of death was attached. After that, about seven years ago, another deliberate review of these laws had been taken; and he had no hesitation in saying that in his opinion on that occasion the revision of these laws had been carried too far, and the punishment of death had been removed from many crimes for which it ought to have been continued; and he could not consent to any further removal of this punishment. His hon. and learned Friend the Member for Dumfries must not imagine that all who had spoken in favour of his general principle, were in favour of the total abolition of the punishment of death. The hon. and learned Member for Devonport (Mr. Romilly), who had spoken on the subject with talent and with principles worthy of his name, had said, that so far from being desirous of doing away with the punishment of death for the crime of murder, he would be unwilling to remove it from the crime of high treason. The hon. Member for Stafford, alluding to his own experience as one of the sheriffs of London and Middlesex, had expatiated on 569 the evils of public executions. Now, those evils were not necessarily connected with the subject at present under the consideration of the House; those evils might be removed without the abolition of the punishment itself. If any hon. Member intended to propose in Committee the introduction of any clause to excépt certain crimes from the repeal of the punishment of death, he ought to oppose this Motion. They had twice during the debate heard the narrative of the late executions in Ireland; that matter had no more to do with the abolition of the punishment, than it had with the abolition of any minor punishment for petty larceny. It was possible to" continue the punishment of death, and to divest it of all its horrors and of all its temptations to vice. Executions were now very rare. On an average of the five years from 1784 to 1789 there had been seventy-three capital executions in London and Middlesex alone; while in one week in London and Middlesex twenty-five persons had been hanged. He did not wish that the law should be again so sanguinary; he wished for the extreme penalty of the law to be mercifully administered as now it had been and would be; but still believing that the sword was not committed to the magistrate in vain, and that it was committed to the magistrate by a higher authority than any human hand, he would not consent to stigmatise all former executions of the law under any form of government whatever, by stating that he did not think it to be consistent with the word, and will, and mind of God, that such a punishment should be inflicted. On the contrary, while he adopted the view of punishment which he had stated to the House, from a serious conviction that it was the scriptural and therefore the true view, he was not insensible to the subsidiary advantages which might be connected with the administration of the law, where the extreme penalty was not involved, by measures taken for the reformation of the criminal, and the general security of society. But when he came to the question of secondarv punishment, he found, as on questions of political economy, that every man's hand was against his neighbour. One man objected to transportation to a penal colony; another recalcitrated against the punishment of whipping. Another objected to solitary confinement as a secondary punishment. Many objected to the silent system. The pillory had long since been abolished. 570 His hon. and learned Friend, when he proposed to abolish totally the punishment of death, ought to be prepared to state what other punishment he desired to inflict; and here were the difficulties of a legislative and administrative system. It was not enough that you should pull down: it was essential in legislation that you should be prepared to build up simultaneously with the work of destruction; and he hoped he did not do an injustice to his hon. and learned Friend when he said that, taking the whole of his speech, there was not one single suggestion from which he could collect an idea that he had in reserve, in petto, any plan which would satisfy even himself instead of the punishment he was prepared to abolish. Did he approve of those punishments which were frequently seen in other countries? His right hon. Friend had reminded the House of punishments worse than immediate death; and in point of fact ending in death, which were inflicted in Russia. Would his hon and learned Friend propose the importation of any such punishments? Would he even propose perpetual imprisonment and solitude? Would he propose walking in the streets in gangs and in a prison dress? Many of these things had been adopted in other countries in a far different state of society. He had seen so much of other countries as to justify this general observation, that that which was good for one region of Europe, was utterly inapplicable in another. He believed that it was impossible to have criminals sweeping the streets of London. The great name of the hon. and learned Member for Devonport (Mr. Romilly) had never been connected with any proposition so extensive as the present. Believing that the hon. Member's general view of punishment was such as might satisfy perhaps a heathen moralist, but ought not to satisfy any one entrusted with the word of God, as the guide of his public and private conduct, he concurred with the Government in resisting the introduction of this measure, and cordially gave his support to his right hon. Friend.
§ MR. HUME
said, that he had had the advantage of having heard Sir Samuel Romilly raise his voice against capital punishments; but no man now could form an idea of the comparative state of punishment now and what it was in former years. With the changes of manners crime would change, and he was satisfied that if Romilly had now lived, he would have been among the first to deprecate this punishment. His 571 hon. Friend (Sir Robert Inglis) had taken on himself to state to the House that he was in the councils of the Almighty, who had handed down from the earliest generations the power of one man to hang another. He knew no portion of Scripture which authorised any one man to hang another. There was indeed one important passage in Scripture, which he advised his hon. Friend to take as his guide, which was, "I will have mercy, and not sacrifice." He interpreted that as strongly against the punishment of death as any passage which his hon. Friend could interpret in its favour. He had also this authority, "Thou shalt not kill;" which might be interpreted against the murderer only. The object of legislation should be to put an end to the crime of murder. In what way could that crime best be prohibited? All experience showed that it could not be prohibited by hanging up men in dozens. The first and only execution he had ever witnessed at Newgate was where, unfortunately, twenty individuals were hung at one time, and on inquiry he found that it was for crimes which had now been blotted entirely out of the Statute-book. This fact had always struck him forcibly, that wherever life was held cheap by the public authorities, in that country life was held cheap by the populace; and the best way to protect the lives of our countrymen was to render exhibitions of death as scarce as possible. No power on earth could prevent murder occasionally taking place; but all history would support him, that where executions had been frequent, reckless assassination and murder was a matter of course. When the punishment of flogging was attacked, officers who were accustomed to inflict that punishment held that it was impossible order and discipline could be preserved without it. We had already witnessed the good effects of the ameliorations which had taken place; and he had heard with satisfaction the Secretary at War and the noble Duke (the Duke of Wellington) declare that they expected to see flogging altogether removed. In the Navy we had gained thousands of citizens who would have been ruined if the former system had continued. He recollected hearing it stated by Sir Samuel Romilly, that at one time eighty-five crimes were subjected to capital punishment. Did the calendars show any increase of crime since its abolition? On the contrary, he believed that society had improved. When the hon. Gentleman who was in power, and the 572 hon. and learned Member for Devonport, declared that all public executions were in themselves evils; let their statement be compared with the statement that these executions were as examples to deter others. He was satisfied that every execution for murder led to similar acts. It was well known to those who had observed events in this country, that one murder of great atrocity was generally followed by others of a similar character. As to executions in secret, which some had advocated, they degenerated into acts of revenge. He approved of the discussion of this matter, which he thought would be soon attended with the best possible results, in the complete extinction of these sanguinary laws.
§ MR. W. P. WOOD
would not enter into what was called the theological view of the subject; it was sufficient for him to say, that he differed from the hon. Member for Dumfries as to the infliction of the punishment of death for the crime of murder, thinking, as a Christian, that there were sufficient authorities for the magistrate to bear the sword for that purpose. This subject was one which, above all others, required to be considered most dispassionately, and with a just frame and temper of mind, because he believed that our good feelings were extremely likely to lead us astray. He was happy to hear his hon. and learned Friend the Member for Devon-port say that he had in view, as a primary object, the sacrcdness of human life. He looked upon that as the great object which they ought to have in view in considering this question; and, taking that view, they would be led to a contrary conclusion from that to which the hon. Member for Dumfries had arrived. They were asked by the noble Lord the Member for Aylesbury not to arrive at a conclusion, unless it was one they had deeply reflected upon. He could not pretend to be able to form an opinion on the subject in the manner in which that opinion was formed by such men as Romilly and Mackintosh; but he could say, that from an extremely early period his attention had been turned to this subject, and he had never lost sight of it. From an early period he had been led to hear the trials at the Old Bailey, and was extremely shocked at that early period with the frightful state of our criminal law. It had occurred to him to observe at the Old Bailey seventy criminals receive judgment of death at one time, it being perfectly certain that judgment would not be 573 executed upon more than seven or eight; and he could perceive the gestures of contempt and scorn which the remainder were exhibiting to the Judge. At a later period, in 1826, he was about to visit a sick person in the city of London, and, passing by the end of the Old Bailey, he saw a scaffold prepared for six criminals. He visited that sick person, who said, amongst other things, "It is hard to die at twenty-four." He looked the next morning at the paper with some anxiety to see who were the criminals for whom the scaffold was prepared, and found that one was a young woman, and the other five young men, all under twenty-four, who had not committed any crime attended with murder. In the following year he was delighted by the introduction of the Bill of Sir Robert Peel, reducing the number of crimes for which capital punishment was inflicted; but there still remained an extraordinary number of cases in which the punishment was unrepealed. The Bill applied to crimes against property, and to none against the person; yet of the former class, seventeen (as we understood) were still punished capitally. He remembered having been much struck at the time with the slow progress of legislation on that subject. It having been formerly a capital offence to steal property of the value of 40s. in a dwelling-house, the only alteration made by the Bill was that of raising the amount to 5l. He had noted down at the period the various offences for which capital punishment was inflicted, and he found that the whole amounted to twenty-three or twenty-four. At that time but little interest was felt in such questions as that before the House. Since the reform of Parliament a very great change had taken place, and the subject had been frequently brought before the House, because the community at large felt a deep interest in it. Now, having bestowed his best attention on the whole matter under consideration from a very early period—having read almost every English publication which treated of it, and a great many works of foreign writers—he must confess that he had come to the conclusion that capital punishment ought not to be abolished in reference to the crime of murder. The grounds upon which he had arrived at this conclusion he would briefly state. It was true that the vindictive element of punishment should be eliminated; but not a single argument had been advanced against the right of the State to protect the lives of its subjects in the most effectual 574 manner; and while they were not fettered by any theological considerations in adopting the most effectual method of protecting life, he had at the same time arrived at the conclusion that there was no method so effectual as that of capital punishment. In the prevention of crime there were two points to be considered, though but too frequently only one of them was contemplated. It was desirable to prevent crime, not merely for the sake of the community at large, but also with a view to the promotion of the moral welfare of the classes who were most prone to its commission. They had to devise a mode of punishment which would so terrify those who were criminally disposed as to prevent them entering upon a career of crime. There was a class of persons who—chiefly, perhaps, from their not having been rightly educated—were not open to any other influences than those of terror; and that being the case, he maintained that the infliction of the punishment of death was consonant with the best feelings of humanity. In dealing with that question he would not refer to Scripture; but he might observe, that when a subject of the most awful description was being treated by one of the greatest poets that the world had seen—he meant Dante—an inscription was affixed to the gates of a place of hopeless and eternal punishment, which appeared to him to convey a great and sublime thought:—I was created by the Almighty Power,The highest Wisdom and primeval Love.Now, if they believed future punishment to be consistent with the Divine love, they must also believe it to be consistent with the sincerest and most earnest love to man, to deter him, by means of threatened punishment, from the commission of crime. The revulsion of feeling which had followed the Draco-like code that formerly existed in this country, now made numbers shrink from lawful and proper modes of punishment. He could not help remarking, that since the trials and convictions which had recently taken place in Ireland, they had not heard of a single case of assassination in that country. There had recently been alarming exhibitions of public feeling in reference to capital punishment. They had seen instances in which prisoners convicted of the most atrocious crimes had been recommended to mercy. There was one case of the kind which be should never forget. It occurred at Chester, and was that of a young woman who, 575 having murdered her own father because he opposed her marriage to a particular individual, was recommended to mercy by a reverend prelate of the Church. The principal ground for mercy stated in the petition was, that the criminal had been a Sunday-school teacher. He was not sure whether or not the petition proceeded to say that she might possibly be useful afterwards in that capacity. To him it appeared most revolting that a person who had been convinced of such a gross crime, should meet with sympathy. He believed that the evil arose in a great degree from the habit of attracting so much attention to public criminals. If a similar display were made in the case of a murdered man—if his widow and orphan children were seen walking publicly to the grave in all the misery to which they had been reduced—public feeling would be equally excited against the criminal, and he would possess no power of attracting sympathy. Neither feeling, however, could be wholesome. He had no desire to witness exhibitions similar to that which had taken place on the occasion of a French trial, when the dead body of a murdered husband was exhumed and placed in the next room to that occupied by the wife who was supposed to have committed the crime. The only effect of such scenes must be, to produce feelings of execration like those expressed two or three weeks ago, when a yell of satisfaction attended a criminal to the scaffold. He disapproved of religious exhibitions, and of visits paid by ladies to the condemned; and he agreed with his hon. and learned Friend the Member for Devonport, that when a man had been condemned, he should at once walk from the dock and never be heard of again, except through a certificate from the proper authorities, declaring that the sentence had been duly executed. One ground of objection to capital punishment had been most powerfully put by the noble Lord the Member for Aylesbury. That noble Lord had spoken of the irrevocable nature of such punishments, and of the fallibility of man's judgment. That, no doubt, was an awful consideration. But there were many occasions in life in which persons were called upon to incur serious responsibilities. How often, for example, in times of trouble and disturbance, was a responsibility of that kind necessarily assumed by the magistrate? With regard to the number of innocent persons who were stated to have been executed, he apprehended that if the 576 fifty-one instances alleged were sifted, it would be found that they did not embrace many cases of murder. And, on the other hand, let it be remembered how many murderers escaped, from the impossibility of detecting the crime, or because jurors were unwilling to convict on circumstantial evidence. Of late years, indeed, there had been many apparent interpositions of Providence, affording a clue to the criminal. Yet, how nearly had the prosecution failed in Thurtell's case; while in that of Courvoisier, down to the last day of trial, conviction appeared uncertain. Could any one doubt that if persons of hardened character found that the crime of robbery was most likely to be effectually screened by their taking a step beyond, that step would frequently be taken? The minds of such persons could only be acted upon, he believed, by means of terror. For these reasons he had come to the determination not to support the Bill of the hon. Member for Dumfries, in reference to the present punishment for murder; and, believing that what the hon. Gentleman desired was an expression of opinion on the subject, he should waive the usual form with regard to the introduction of Bills, and vote against the Motion before the House.
§ MR. BRIGHT
said, that notwithstanding that for some period during that evening there had been but a thin attendance of the Members of that House, yet he thought he was able to discover that there was a stronger interest felt in the present discussion than there had been during some of the past years, when the hon. Member for Dumfries brought the question before the House. And if he had any doubt as to the increasing interest in the House, he was sure there could be none as to the increasing interest without the walls of Parliament. He was perfectly certain that from the right hon. Gentleman the Secretary of State for the Home Department, to any Member who might have formed an opinion on this question, there would be a universal admission, that whether the abolition of capital punishments was in the abstract right or wrong, this question was one which was making extraordinary progress in the public mind—and was proceeding to that final and complete fulfilment which had attended many other questions which had been brought before that House, and supported year after year, for a time, by very small minorities. They had not been charged upon this occasion, at least to any great 577 extent, with "morbid feelings and sickly sentimentality," in advocating the view which they took upon this question. It had been said by the hon. and learned Gentleman who had just sat down, and by some others who had preceded him, that he thought there was a revulsion of feeling, and that the interest taken upon this question at present was in that direction which was but the natural reaction resulting from the operation of a sanguinary code of laws which existed in this country some years ago. Now, he was of a directly contrary opinion. He believed that the feeling which now existed was but an increase of that feeling which was created by the revered Father of the hon. and learned Member for Devonport (Mr. Romilly), and by other Gentlemen who acted with him during his life-time. The hon. Baronet the Member for the University of Oxford had, he thought, developed the foundation of his policy to that House: he expressed his gratification that the hon. and learned Member had not gone any further than his father. Well, he (Mr. Bright) should like to know what ancestor of the hon. Baronet the hon. Baronet had gone beyond in the progress of his political opinions? The hon. Baronet the Member for the University of Oxford was consistently opposed to the abolition of the punishment of death; he opposed it upon grounds which he (Mr. Bright) believed were not rested upon by any hon. Member of that House, at least by any hon. Member who had spoken that night. He would not make any answer to what he said with regard to the theological part of the question, if there were such a part; for the House, by such arguments, did more, in his opinion, to overthrow all faith in that New Testament, that new covenant which was made to our race, than could be done almost by any other line of argument, or by any other conduct that it could pursue. He rejoiced unfeignedly that, the sentiments which prevailed in Oxford (if the hon. Baronet were the true representative of those sentiments) were not entertained by the great mass of the thinking population of this country. The hon. Baronet, he believed, declared his honest and conscientious convictions; but he (Mr. Bright) did not believe that they were participated in by any large portion of the population of this kingdom. He was of opinion that this punishment of death did not convey the awful threats that many supposed it did to that condition of men by 578 whom crimes of this grievous nature were committed; even the threat of eternal punishment which every week was held over men's heads from the 20,000 pulpits of this kingdom did not deter them from the commission of vice and crime of every conceivable character. And yet it was supposed by Gentlemen in that House that the threat of punishment—a threat which was so vague and uncertain, ay, probably much more vague and uncertain than the threat of eternal punishment—they thought that such a threat would prevent the commission of crimes by men of exciteable minds, who were left altogether in a state of uncertainty as to the consequences of their crimes. But he would not go into an abstract discussion of this question; he would rather consider the question with regard to the condition of this country at the present time. Punishment was now inflicted, notwithstanding that the law did not say so expressly, only for the crime of murder. Now he asked the right hon. Baronet the Secretary of State for the Home Department to give his attention for a little time till he laid before him what appeared to him, apart from the abstract part of the question, the most complete condemnation that, could be produced of the law as it now exists. The law was uncertain, irregular, and unjust to a degree which could not be imputed to any other law which was upon the Statute-book of this country. For example, let the right hon. Gentleman turn his attention to the columns of the daily newspapers at the time of the assizes, and he would sec how criminals were tried for murders-murders apparently differing in no respect from each other in criminality—and yet the amount of punishment was as different as sudden death was from prolonged existence. He recollected a few years ago there was a case in Somersetshire—tried, he believed, at Taunton—in which two sisters of the name of Seeley, if he was not mistaken—he spoke from memory—were tried for the frightful crime of murdering their own relatives. He believed they had poisoned two, if not three, of their nearest relatives. There was not a human being in court that was not thoroughly convinced of their guilt; there was not a shadow of a ground for a verdict of exculpation on the part of the jury; and yet, so abhorrent to that jury was the idea of sending two girls, sisters, to the scaffold, that they brought in a verdict of "Not Guilty," in defiance of the evidence; and he had it from, he believed, 579 a gentleman concerned in the trial for the prosecution, that a subscription was afterwards made to send those two young women out of the country. Where they now were, he (Mr. Bright) knew not; but at any rate, he held it to be a crime against society that those two individuals were permitted, in the face of divine, and he thought of all human law, to he set free upon the world again to commit, it might he, similar crimes, and to contaminate the society in which they might move. Well, now there were, he was going to say, a score of cases since then, two or three of which he would submit to the House. There was the case of the man who committed murder not long ago at the Guildhall Coffee-house. The hon. Member for Stafford (Alderman Sidney), if he recollected rightly, was instrumental in making strong applications to the Government for the respite of that prisoner. And what were the facts of the case? The man, for a provocation that could scarcely be considered a provocation at all—indeed, he believed there was no evidence of any provocation whatever—cut the throat of his fellow-servant. He was tried and convicted. He did not deny the crime at all—there was not a doubt of his guilt. Intercession was made on his behalf to the Secretary of State, by sheriffs, aldermen—[Mr. Alderman HUMPHERY: Order, order!]—and other humane individuals. He was extremely sorry that the hon. Member (Mr. Alderman Humphery) should consider it an imputation on an alderman to come forward in so humane a work. At any rate, the criminal was respited. Now, he asked upon what ground was that? If this punishment of death was intended to put down those ebullitions of passion by which murders were committed—if it was to be held out as a terror to men of ungovernable temper, he contended that this was precisely a case in which the application of this punishment was likely to have a beneficial effect. There was a murder committed not long ago down in Worcestershire—the murder of Lord Coventry's gamekeeper. There were eight or ten persons tried for that. It was, he believed, one of the most barbarous murders that had ever been committed; there was no doubt of the guilt of the parties; and yet he had it from a lawyer who was engaged upon the trial, that, in consequence of the aversion which the jury had to the punishment of death, this gang of murderers was not convicted of the capital but of a secondary offence, for which they were 580 sentenced to transportation. But he now came down to the last assizes; and he asked the right hon. Gentleman (Sir G. Grey) to pay attention to this subject. There was a case of murder at Liverpool; there was one of the male prisoners from the neighbourhood of Bolton who was charged with killing his wife. He (Mr. Bright) never heard a more barbarous, more unjustifiable, or inexcusable case. And yet, without any reason being assigned, so far as appeared from the public journals, this man did not suffer the extreme sentence of the law. Going to York, they found two men tried for one of the most frightful murders ever committed in this country. Both of them were convicted, and both were sentenced to be hanged. One of them confessed, and upon his conviction and his denial of guilt he was not hanged. And yet, although from the evidence it appeared that this man had committed three murders, he was respited, and not executed. At the previous assizes three men had been tried at York for a murder committed in the county of Durham—he believed in Bishop Auckland. A verdict of not guilty of murder was brought in by the jury, who could not bear the thought of sending three men to the scaffold together. Those three individuals were tried again upon almost the same evidence; they were convicted of robbery, and sentenced to fifteen years' transportation; the highest punishment to which on that indictment they could be subjected. Well, he asked the right hon. Gentleman to look at another case—that which had occurred at Maidstone, where a man was indicted for poisoning his wife. He did not say that the man was guilty; but it appeared from the public papers that the authorities at the Home Office were actually deliberating as to his guilt or innocence at the very time when the execution should have been going on. [Sir G. GREY: No, no!] It appeared then that people came, up to the very last moment, to make applications on his behalf. His execution was stayed by a telegraphic message, and yet it was on record in the public journals, that there was not a man that witnessed his execution who had the slightest belief that he was guilty of the crime for which he suffered. Then there was the case of that woman who had been indicted a fortnight ago. It was true that she was met with execration by some portion of the crowd; but there were circumstances of palliation, and it was of that class of 581 cases in which respites had been hitherto granted. The criminal in this case had just been respited. Let the House bear in mind that he was not crying down this exercise of the Royal prerogative. There was not a man in that House, or out of it, who rejoiced more than he did that these unhappy criminals had not been hanged. He looked upon every respite that issued from the Home Office as another evidence of the growing power of public opinion on this question, and as a proof that by and by the Home Secretary would be relieved from this onerous, this fearful, responsibility of acting as the judge of the life or death of his fellow-countrymen. With regard to the criminal who was now under sentence of death, he had received a letter only last night from a near relative of that miserable soldier who was recently murdered—a letter which spoke strongly in favour of the opinion which was spreading upon these questions; it spoke most feelingly of the character of the family to which he was so great a disgrace. The House would probably pardon him if he read an extract from it when they had heard it. It was written by a brother-in-law of the unhappy soldier. After alluding to the meeting which he had lately attended, it said—However much we may deplore the melancholy catastrophe which has cast such a gloom over so many families, yet we can deeply sympathise with the perpetrator of the awful tragedy, when we take into consideration the extenuating circumstances connected with it. I have corresponded with the various members of the family on the subject, and find a strong and earnest desire to second the efforts you are making to mitigate the awful sentence. Should it be thought advisable to draw up a petition, with the signatures of the bereaved parents and the other members of the family, to be forwarded to Sir George Grey, the Secretary of State for the Home Department, I will immediately attend to it; or if you think the sentiments embodied in this letter to be sufficient, I am authorised to say that you are at liberty to use it to the best advantage.Well, now, he thought that letter reflected the highest credit on the writer and on the family. He thought it might fairly be taken as some proof that there was a feeling spreading even amongst those who were supposed to be the supporters of the present system, that it had now become the duty of the Government to arrest the arm of the law if possible, and to carry on the judicial proceedings of the country without having recourse to this greatest and most fearful of all punishments. Now, he asked the House, whether they would 582 tolerate the existence of any other branch of the law for an instant, if such irregularity could be charged against it, as he had proved to be the case with regard to the system of capital punishment? It was quite impossible for judges and juries, and Secretaries of State, to maintain the execution of this law of capital punishment. One man in a jury would defeat them; or, if the jury did convict, the Home Office would be so besieged as that no Secretary of State could possibly lend a deaf ear to the importunities of sympathisers. And those very importunities, which were daily increasing with regard to parties sentenced to death, showed the growing conviction in the public mind that human life ought to be held sacred and inviolate. The hon. Member, after alluding to the recent execution of Reid, in Yorkshire, which had attracted 30,000 individuals, asked the right hon. Gentleman (Sir G. Grey) how he believed that other countries in which capital punishment had been abolished compensated themselves for that security which, in his speech against the Motion of his hon. Friend, an abolition of capital punishment entailed? Let us have such a law as existed in France, by which extenuating circumstances were allowed to prevent capital punishments. Such circumstances, in fact, were allowed to operate with the right hen. Baronet on recommendations properly made; and that being so, he could assure the right hon. Baronet that this exercise of the Royal prerogative of mercy had well nigh brought the days of the gibbet to an end in this country. He held in his hand a report of the Legislature of the State of New York on this subject. That report was drawn up in a most elaborate and able manner. It recommended very strongly that this punishment should be totally abolished; and the only reason why that recommendation had not been adopted by the Legislature was, that, on a division, 48 voted for the continuance, and 42 or 43 for the abolition. In that State, therefore, they were wavering in the balance; and whenever, in that House, there came a vote which brought the minority within five, or ten, or twenty, ay, or fifty, in anything like a full House, in favour of the abolition of capital punishment, he had the fidlest confidence in the present Government, and he should have the same confidence in the late Government, that they would bring forward a measure for its total abolition. The hon. Member concluded by asking whether England would 583 disgrace itself by being behind Tuscany, France to a large extent, Belgium, America, he might almost say, and some other countries with regard to this question. He believed that by abolishing capital punishment, and substituting a secondary punishment, we should find that crime, instead of increasing, as was dreaded, would be considerably diminished.
§ Mr. F. O'CONNOR
having had a good deal of practical experience in the criminal law, could not allow this debate to close without making a few observations. He would vote for the first reading of the Bill, but would pause in Committee before agreeing to abolish capital punishment in some cases of murder. The hon. Member for Manchester said, that if there were three, or four, or five, or six, all convicted at the same assizes of apparently the same crime, they were all visited with different punishments. He (Mr. O'Connor) would state, that although no difference in the degree of guilt was visible to the hon. Member, it was visible to the Judge and juries who tried the cases. Formerly, when a man was indicted for murder, the jury had no alternative but either conviction or acquittal of the capital charge; and the result of that system was, that in some instances there was difficulty in obtaining convictions. That was now obviated by the power which there existed of convicting of the secondary offence of manslaughter. The hon. Member for Manchester had shown, however, that a feeling existed adverse to the repeal of the punishment altogether, when he stated that several criminals met with great execration when brought to the scaffold. There was, he believed, no set of men in society who entertained a greater degree of horror and aversion to the crime of premeditated murder than the working classes; and many of them would be averse to see the extreme penalty removed from that offence. The opinion of Mr. Justice Coltman, given on the subject, seemed to warrant the belief that the extreme penalty could not be entirely removed from cases of murder—there would be so many inducements to the hardhearted, greedy, cruel, or savage man to commit murder, which could only be restrained by the fear of death. One man could, if the law were altered with regard to the punishment of death, induce another to commit murder; for men who could not be suborned under the fear of the extreme penalty, would not, perhaps, dread any other 584 kind of retribution. Let what would be said of such men not fearing death, all men clung to life as long as they could; and even the hardened culprit sentenced for murder hoped to the last that he would be pardoned. In legislating on this subject, let the House take care that it did not render the lives of persons who were not murderers less secure. He, for one, should be at all times ready to take his share of the unpopularity which would follow the expression of his conviction on the subject; but he did not think that the punishment could be totally done away with. He admitted the uncertainty of the law as to conviction in capital offences. A case came to his mind, to which he invited the attention of the right hon. Gentleman the Attorney General, for it would show the horrors of the profession to which he belonged. He (Mr. O'Connor) was counsel for two men at the Cork assizes, who were tried for the murder of two soldiers. Mr. Freeman was counsel for two others who were tried for the same offence. The two men for whom he appeared were guilty of the crime—those whom Mr. Freeman defended were innocent. He advised Mr. Freeman to take a certain line of defence. Mr. Freeman, who was the leading counsel, told him to mind his own business. "What was the result?" (continued the hon. Gentleman.) "I cross-examined the witnesses for the prosecution, and they broke down; my clients were acquitted, whilst those of Mr. Freeman, the really innocent men, were found guilty." [The ATTORNEY GENERAL shook his head.] The right hon. the Attorney General might shake his head as much as he liked, but the fact was as he stated; and it showed how far professional vanity made the advocate forget his moral duties—how it rendered him dishonest, and induced him to prostitute himself, and confound the distinction between right and wrong. A memorial was got up to the Lord Lieutenant, and the lives of the two innocent men were spared. Allusion bad been made to the secret mode of putting to death persons convicted of capital offences; and he was much surprised that such a recommendation should come from the hon. Member for Manchester (Mr. Bright). To that he would never consent; and he was satisfied that such a practice would never be tolerated in this country. Nobody had a greater horror of taking human life than he had; but he thought there ought to be some difference made between those who 585 took away life in a moment of passion and those who did so premeditatedly and in cold blood, and that the terrors of the law should be reserved for the latter.
§ MR. BRIGHT
had never stated he was in favour of putting people to death secretly. On the contrary, he had a perfect horror of private executions.
§ MR. G. THOMPSON
would trouble the House for a short time upon this subject, which he conceived to be of some importance. He would say that if he had heard any argument that evening which could demonstrate the reasonableness of, and the necessity for, the proposition of his hon. and learned Friend for the abolition, total and immediate, of capital punishments, it was the argument used by the hon. and learned Member who had just resumed his seat, that two men known to have been guilty should have been acquitted, and two men known to have been innocent should have been convicted, and only saved from execution by an application to the Lord Lieutenant of Ireland. That case demonstrated as strongly as any which had been quoted the necessity of saving themselves as a Legislature, and their judges and juries, from the awful predicament of finding themselves parties to the execution of the irrevocable decree of death—led away by the ingenuity of counsel, and discovering when too late that they had inflicted the last punishment on one or more human beings who were guiltless of the crime laid to their charge. The cessation of crime and outrage in Ireland, in consequence of the measure passed during the short Session last year, had been referred to, as showing the wholesome effects produced by capital punishment; but those who used this as an argument begged the question, and forgot to take into account the number of persons who were deprived of the power of carrying arms, the greatly increased amount of the police force, and the vigilance of the landowners in consequence of the extra expense thrown upon them by the precautionary measures. He had received two letters from most trustworthy informants in Limerick, assuring him that the shocking spectacle exhibited by the execution at Clonmel had not produced the desired effect, for a fearful number of murders had followed. The hon. Baronet the Member for the University of Oxford justified the punishment of death by Divine authority, and was of opinion that the magistrate, in his ministerial capacity, was intrusted with authority to inflict 586 capital punishment; and, forgetting that if he could make good that argument, nothing more need be said, went on to use the argument, that they ought not to abolish the punishment of death unless they could find secondary punishments to meet all the necessities of the case. For his own part he did not think the necessity of making provision for eight, ten, or twenty persons who might be convicted of murder in the course of a year, any very formidable obstacle in the way of abolition. One great argument against capital punishment was, the necessary fallibility of all human tribunals. Unless they possessed omniscience and infallibility they had no right to take away human life. Another argument was, that when they consigned a man to the gibbet, the punishment did not end with the man's life, but stretched into the future. Thus, in the case of the impenitent man, they inflicted a punishment which never came within the scope or design of the law; and, in the case of one who was penitent, they put a man out of the world who had every claim to live, as far as he could do so with safety and security to society at large. These were his reasons for voting in favour of the Motion. He could confirm all that had been said by the hon. Member for Manchester as to the growing interest which the subject was exciting in the country; and although the Motion might not be successful on the present occasion, the time would soon come when the right hon. Baronet the Secretary of State for the Home Department would have to discharge that which, to him, he could not but believe would be the pleasurable duty of bringing in, and carrying triumphantly through the House, a Bill for the abolition of the punishment of death in all cases, murder in-cluded.
MR. HENRY DRUMMOND
was understood to say, that he was induced to rise solely for the purpose of noticing some extraordinary assertions which had been made in the course of the discussion. With reference to what had fallen from the hon. Member who spoke last, it appeared to him that, in inflicting punishment upon a criminal, we had nothing whatever to do with the consideration of what might be his eternal state. Then, again, he must deny that men ought to be gifted with infallibility before undertaking to pronounce and execute judgment on individuals. The objection would apply equally to any other subject upon which men were called to 587 pronounce an opinion. A conscientious man in every circumstance of life ought to form an opinion to the best of his knowledge and ability. He could do no more. When reference was made to the sanguinary code which existed in former years, it should be borne in mind that the punishment of death was attached to many offences in compliance with the urgent demands of merchants and traders, who were continually pressing their representatives in the House of Commons to afford them protection for their property. It was in that way the code was formed. It was difficult to understand whence all the existing anxiety about the fate of criminals arose. Doubtless there was a charm in an hon. Member being able to boast, that year after year he had stood forward as the consistent advocate of the convict. Perhaps, also, those who had distinguished themselves as the advocates of freedom of trade were desirous of emancipating ill-doers from all restraints, and leaving them at liberty to exercise their skill in landlord-shooting. Such a result would not be inconsistent with the maudlin humanity of the present day. It would be remembered that Robespierre, when young, was remarkable for the tenderness of his heart. He left his calling of commissary to the Bishop of Arras because he could not bear the shedding of human blood; but every one knew what a proficient in that line he afterwards became. Whether it would be possible to substitute any fear which would be as effectual as the fear of being hanged, he could not undertake to determine; but his belief was that it was not possible. Those persons who called upon the House to take example by the French code, and to import "extenuating circumstances" into our judicial system, surely could not be well read in the trials of that country at no very remote period. Take the case of Madame Laffarge who was tried for poisoning her husband. The lady pleaded, as one of the circonstances attenuantes of her case, that her husband had bad teeth. The French jury admitted the validity of the plea, and Madame Laffarge was not executed. The reduction of the amount of corporal punishment in the Army and Navy had been referred to as an argument in favour of the abolition of the punishment of death; and the House had been reminded of the saying of the Duke of Wellington, that he hoped to live to see the day when no soldier would be flogged, by which his Grace meant that he hoped to live to 588 see the day when no soldier would deserve flogging. Every military man knew that it was impossible to do without flogging. One hon. Member had referred to what he called the introduction of a theological argument into the present discussion. It was not easy to understand how anything which had been said merited that description. He never knew anybody who could not find a text of Scripture to support anything he pleased. That, however, was not theology; but this he knew, that if there was a clear expression to be found in the world it was in the words, "Whoso shed-deth man's blood, by man shall his blood be shed." Another clear declaration was, that "the civil governor shall not hold the sword in vain. "Now, certainly the civil governor would hold the sword in vain if he were not allowed to use it. These references to Scriptural texts reminded him of what a Scotch clergyman once said to him; the rev gentleman said, that if a man had not got common sense it was of no use for him to read the Bible, for the Bible would not give him common sense. It was said that the proposition submitted to the House was to be only an experiment. Then, of course, the hon. Member for Manchester would not object to have it tried first in his own district. It would, however, be only fair to permit the hon. Member for Dumfries to share in the advantage to be derived from the experiment. Let it be proclaimed, that in future no person should be executed for murders committed in Manchester and Dumfries; and if the plan should be found to work well in practice in those places, it might be extended to the whole of the empire. The anti-punishment-by-death-agitation had its origin in a bastard humanity. Influenced by that, juries, instead of doing their duty in the fear of God and man, and confining themselves to the single question, "Is this man guilty according to the evidence?" turn themselves into judges and a thousand other things, and do not keep their oaths. The fact is, that our sympathy is always for rogues. He would give the House proof of his assertion: the labourers were not so well fed as the people in the union workhouses; and the people in the union workhouses were not so well fed as the people in gaols; and the people in gaols were not as well fed as those of them who were condemned felons.
§ MR. NAPIER
said that, having had considerable experience in civil and criminal justice, perhaps the House would bear 589 with him for a few moments while he alluded to one or two observations which might throw light upon the question. It appeared that there was one point on which all were agreed, and which was taken as the basis of the argument on both sides—he meant the principle of the sacredness of human life. He thought that any one who had witnessed the administration of the criminal law in this country, could not but see in every department of criminal justice the most striking evidence of this tenderness for human life—this extreme caution—this almost Divine carefulness that not the hair of a man's head should be injured unless upon the clearest proof of his guilt. The question had been argued by some hon. Gentleman, on the ground that Government had no power to execute capital punishments. If that were so, there was an end of the question; but how had that point been maintained? It was said that human tribunals were fallible, and might make mistakes. But, if that were so, the same argument would prevent human tribunals from dealing with liberty or with property, and from all the concerns of life. Nay, those Members of the House who were Protestants would thus be precluded from judging in matters that concerned those eternal interests; for his own part, he thought, with the hon. Member for the University of Oxford, that the power of society to take away life rested upon the Divine precept, or upon the parallel principle, that all human society was of Divine appointment. But, admitting this, there was still the important question remaining—and it was a very important question—under what circumstances might human life be taken away? His own tendency had ever been to reduce the power of taking away life to the utmost possible limit. Without pretending to have any stereotyped opinions on the subject, he had come to the conclusion that murder was the only crime for which human life should be taken away. The hon. Member for Manchester had argued against the punishment of death in any case; because, he said, the fear of inflicting that punishment deterred juries from finding a verdict of guilty. But he thought this argument only went to show that this was the highest sentence known to the law—that it ought not to be lightly inflicted; and, for himself, he was satisfied that in no case ought the punishment to be inflicted unless the evidence was such as to leave the case 590 free of all doubt. He remembered being engaged in an argument one morning with some of his brethren at the bar, when he maintained, perhaps somewhat rashly, that an innocent man was never convicted. That very day he was called upon to defend a man for the crime of murder, but which the prosecutor put as a case of manslaughter; and in that case the innocent man was convicted, while the guilty escaped. At the same time, as he had said before, if simple error was to be allowed as an argument against punishment, there would be an end to human tribunals. It was his intention to oppose the Motion.
§ MR. BROTHERTON
wished to enter his protest against this question being argued merely on the ground of expediency. The hen. Member who spoke last said, that the Government of the country had power over the life of man. He (Mr. Brotherton) should admit that they had the power, but he disputed their right to take the life of man. He who alone gave life had a right to take it away—man had no right to destroy his own life, and therefore, in entering into civil society, he could not delegate to another a right he did not himself possess. There was a sentiment and feeling in the mind of man superior to the written law which says, "Thou shalt not kill." The hon. Member for Surrey had quoted the passage, "He that shed-deth man's blood, by man shall his blood be shed;" but he (Mr. Brotherton) contended, that that was no more a precept than the declaration of our Saviour, when he warned his followers, saying, "He that taketh the sword will perish by the sword," in the way of retributive justice. The aim of all punishment should be the prevention of crime; and if we wished to cherish the principle of the sacredness of human life in others, the best way was to respect it ourselves. Believing that capital punishments were not sanctioned cither by the divine law, the spirit of humanity, or sound policy, he should support the Motion of his hon. Friend the Member for Dumfries.
§ MR. MUNTZ
said, that upon this question he had no morbid feeling like that which had been alluded to by previous speakers; if any man should attack his person or his House, he should make no scruple of killing him; but that was a very different question to hanging a man in cold blood. The hen. Member for the University of Dublin would prefer that an inno- 591 cent person should suffer sooner than a guilty one should escape. Now, he was of opinion that it were better one thousand guilty persons should escape, than that one innocent man should be punished. It was not so great a punishment to hang a man as to transport him; he himself would sooner be hung than transported. What was life worth if it was rendered miserable for ever? They did not benefit society by hanging a man—they only encouraged crime by making the punishment familiar to the eyes of men; but let them remember, that when they once hanged a man, they could not unhang him. He himself had been once tried criminally for a crime of which he was perfectly innocent—as innocent as any man among them; and were it not for the charge of the Judge, who summed up decidedly in his favour, he should most probably have been convicted. He would support the Motion of the hon. Member for Dumfries.
§ The House divided:—Ayes 66; Noes 122: Majority 56.
|List of the AYES.|
|Adair, H. E.||King, hon. P. J. L.|
|Aglionby, H. A.||Lennard, T. B.|
|Alcock, T.||Lushington, C.|
|Barnard, E. G.||Meagher, T.|
|Birch, Sir T. B.||Masterman, J.|
|Bowring, Dr.||Milnes, R. M.|
|Bright, J.||Mowatt, F.|
|Brotherton, J.||Muntz, G. F.|
|Callaghan, D.||O'Brien, T.|
|Clay, J.||O'Connor, F.|
|Cobbold, J. C.||Pattison, J.|
|Cobden, R.||Pechell, Capt.|
|Cowan, C.||Pilkington, J.|
|Crawford, W. S.||Power, Dr.|
|D'Eyncourt, rt. hon. C.||Power, N.|
|Divett, E.||Raphael, A.|
|Duff, G. S.||Robartes, T. J. A.|
|Duncan, G.||Roche, E. B.|
|Fagan, W.||Salwey, Col.|
|Fagan, J.||Scholefield, W.|
|Fox, W. J.||Sidney, Ald.|
|Greene, J.||Smith, J. B.|
|Grosvenor, Lord R.||Strickland, Sir G.|
|Hall, Sir B.||Tennent, R. J.|
|Headlam, T. E.||Thompson, Col.|
|Henry, A.||Thompson, G.|
|Heywood, J.||Thornely, T.|
|Hindley, C.||Turner, E.|
|Hodges, T. T.||Walmsley, Sir J.|
|Hume, J.||Wawn, J. T.|
|Hutt, W.||Williams, J.|
|Keating, R.||Ewart, W.|
|Kershaw, J.||Nugent, Lord|
|List of the NOES.|
|Abdy, T. N.||Adderley, C. B.|
|Adair, R. A. S.||Anson, hon Col.|
|Anstey, T. C.||Inglis, Sir R. H.|
|Armstrong, R. B.||Jermyn, Earl|
|Arundel and Surrey, Earl of||Jervis, Sir J.|
|Johnstone, Sir J.|
|Bagge, W.||Keogh, W.|
|Barrington, Visct.||Keppel, hon. G. T.|
|Bellew, R. M.||Labouchere, rt. hon. H.|
|Berkeley, hon. Capt.||Langston, J. H.|
|Blackall, S. W.||Lascelles, hon. W. S.|
|Blackstone, W. S.||Lewis, G. C.|
|Blakemore, R.||Mackenzie, W. F.|
|Bouverie, hon. E. P.||M'Naghten, Sir E.|
|Boyle, hon. Col.||Magan, W. H.|
|Brockman, E. D.||Maitland, T.|
|Bunbury, E. H.||Marshall, W.|
|Burrell, Sir C. M.||Matheson, Col.|
|Burroughes, H. N.||Melgund, Visct.|
|Busfeild, W.||Meux, Sir H.|
|Campbell, hon. W. F.||Mitchell, T. A.|
|Carew, W. H. P.||Morpeth, Visct|
|Chichester, Lord J. L.||Morris, D.|
|Clive, H. B.||Napier, J.|
|Coke, hon. E. K.||Norreys, Lord|
|Colebrooke, Sir T. E.||O'Brien, J. S.|
|Coles, H. B.||O'Connell, M. J.|
|Compton, H. C.||Paget, Lord A.|
|Conolly, Col.||Paget, Lord C.|
|Craig, W. G.||Palmer, R.|
|Deering, J.||Parker, J.|
|Drummond, H.||Patten, J. W.|
|Duncuft, J.||Pigot, Sir R.|
|Dundas, Adm.||Pinney, W.|
|Dundas, G.||Rice, E. R.|
|Du Pre, C. G.||Romilly, J.|
|East, Sir J. B.||Rushout, Capt.|
|Ebrington, Visct.||Sandars, G.|
|Edwards, H.||Seymer, Lord|
|Evans, W.||Sheil, rt. hon. R. L.|
|Farrer, J.||Sibthorp, Col.|
|Forbes, W.||Somerville, rt. hn. Sir W.|
|Fordyce, A. D.||Stafford, A.|
|Gladstone, rt. hon. W. E.||Stanley, hon. E. J.|
|Goring, C.||Stanton, W. H.|
|Greene, T.||Strutt, rt. hon. E.|
|Grenfell, C. W.||Stuart, H.|
|Grey, rt. hon. Sir G.||Sullivan, M.|
|Haggitt, F. R.||Thesiger, Sir F.|
|Hamilton, G. A.||Tollemache, J.|
|Heathcoat, J.||Verney, Sir H.|
|Heathcote, Sir W.||Vivian, J. E.|
|Heathcote, G. J.||Vyse, R. H. R. H.|
|Heneage, G. H. W.||Walter, J.|
|Henley, J. W.||Ward, H. G.|
|Hildyard, R. C.||Westhead, J. P.|
|Hildyard, T. B. T.||Whitmore, T. C.|
|Hodges, T. L.||Wilson, M.|
|Hope, Sir J.||Wood, rt. hon. Sir C.|
|Hope, A.||Wood, W. P.|
|Howard, hon. C. W. G.||TELLERS.|
|Howard, hon. E. G. G.||Tufnell, H.|
|Humphery, Ald.||Hill, Lord M.|
§ Leave refused.