§ SIR GEORGE GREY
—Sir, in rising to make the Motion of which I have given notice for leave to bring in a Bill to amend the Act 3 &c 4 of Her Majesty, c. 54, relating to the care and treatment of criminal lunatics, I think I ought at the outset to state what is the existing law on the subject which I propose to amend. That law is contained in the 3 &c 4 of Her present Majesty's reign, c. 54, s. 1. That Act was an amendment of the 9 & 10 Geo. IV., c. 40, s. 55, to which it may be necessary, for a few moments, to refer. It was a general Act, and was entitled "An Act to amend the Laws for the Erection and Regulation of County Lunatic Asylums, and more effectually to provide for the Care and Maintenance of Pauper and Criminal Lunatics in England." That Act embodied in its 55th section the provision of a former Act upon the same subject, with but slight and immaterial alterations. The law, therefore, before the present Act of 1840, provided that, with regard to two classes of prisoners only, under certain circumstances a prisoner might be certified by two medical men to be insane, and on such certificate might be removed by a warrant of the Secretary of State to a lunatic asylum, The two classes of prisoners to which the Act of 9 Geo. IV. related were persons imprisoned in any county or borough prison, under any sentence of imprisonment, and persons under sentence of transportation in this country. All other classes of prisoners were excluded from the operation of the Act. With respect to those two classes of prisoners the Act provided that they might be certified to be insane while in a borough or county gaol, or in the hulks, or in a convict prison, by two physicians or surgeons; and it went on to provide, that when a certificate to that effect was received by the Secretary of State, "it shall be lawful for him to direct by his warrant the removal of such prisoner to some lunatic asylum," to be detained there, or in some other asylum to which he might subsequently be removed, until he should be certified by two physicians or surgeons to have become sane; in which case, upon the receipt of such certificate, the Secretary of State was authorized, if the term of the sentence had expired, to discharge the man, or if the sentence was not expired, 244 then to remit him to the hulk or convict prison, or county or borough gaol as the case might be, in which he had been originally confined, there to undergo the remainder of his punishment. In 1840 those provisions were revised, and the present law was passed, with some material alterations. The first alteration referred to the class of prisoners comprised within the Act; and the object of that Act seems to have been—an object in which the public interest was concerned—to authorize the removal of prisoners charged with or convicted of any class of crime, and who had become insane, from the prisons in which they were confined, and to subject them to proper medical care in some lunatic asylum. The Act provided that,If any person while imprisoned in any prison or other place of confinement, under any sentence of death, transportation, or imprisonment, or under a charge of any offence, or for not finding bail for good behaviour or to keep the peace, or to answer a criminal charge, or in consequence of any summary conviction or order by any justice or justices of the peace, or under any other than civil process, shall appear to be insane, it shall be lawful for any two justices of the peace of the county, city, borough, or place where such person is imprisoned, to inquire, with the aid of two physicians or surgeons, as to the insanity of such person;And it went on to enact that, when such insanity was so certified to the Secretary of State, it should be lawful for the Secretary of State to direct the removal of the prisoner to a lunatic asylum. Thus the effect of this alteration was to include every class of prisoners except those under civil process, for whom other provision was made. Beyond thus including every class of criminal prisoners, the Act went on to require—I presume with a view to greater care and precaution in the giving certificates, the effect of which would be to remove criminals from prisons to lunatic asylums—that an inquiry should be made which was not required in terms by the previous Act, and that such inquiry should be made by two justices of the county, borough, or place where such person was in prison, with the aid of two medical men. This Act threw the chief responsibility upon the justices who were to make the inquiry, with the aid of two medical men; and the certificate upon which the Secretary of State was to act was required to be signed by the justices and the physicians or surgeons. The latter part of the clause in the former Act remained unaltered, and it is important to bear that in mind when we are considering the operation of this Act in a case 245 which has recently occurred. The old Act only related to the two classes of prisoners I have described—those who were imprisoned in any borough or county gaol, and those who were under sentence of transportation and were retained in this country in the bulks or in convict prisons—and the latter part of the clause, therefore, had reference only to those two classes; but no alteration was made in the Act of 1840 calculated to meet the case of prisoners differently circumstanced. The Act of 1840 went on to provide, that upon the receipt of a certificate properly signed, it should be lawful for the Secretary of State (exactly in the terms of the former Act) to order the removal of the prisoner so certified to be insane, to a lunatic asylum, there to remain, subject to removal from one asylum to another, until certified to be sane, whereupon he was to be discharged if his term of imprisonment had expired, otherwise to be sent back to prison for the remainder of the term of imprisonment to which he had been sentenced. It is under this Act that the recent case of George Victor Townley has occurred; a case which has not unreasonably—I may say has properly—excited public attention, and in respect of which I feel bound to give the fullest explanation in my power. It is well known that Townley was convicted of murder. I need not enter into a detail of the circumstances of the crime, but will simply say that he was tried at the last winter assize for wilful murder, was convicted, and sentenced to death. The defence of insanity was set up at the trial and failed. The day after the trial the Judge, Mr. Baron Martin, addressed to me this letter—Nottingham, Dec. 13, 1863.Sir,—George Victor Townley was convicted yesterday before me at Derby of murder, and sentenced to be executed. I have directed a copy of my notes to be made for you, should you desire to have it; but there is a full report of the trial in the newspapers. The conviction was in my opinion right; but Mr. Forbes Winslow and Dr. Gisburn were examined at the trial, and both deposed in the strongest manner that the prisoner is now of diseased mind and absolutely insane. I think it right to call your attention at once to the subject, with a view to a correct opinion being formed as to the propriety of his execution.I have, &c.,SAMUEL MARTIN.Upon receiving that letter, I read, as it was my duty to do, with attention the evidence at the trial, including, of course, the evidence of the two medical witnesses, to which the learned Judge had pointedly called my attention. I intimated to the 246 learned Judge that that evidence did not impress me to the same extent as it appeared to have impressed him. But then a Judge who tries a case, whose whole attention is given to the evidence, who sees the manner in which the witnesses give that evidence, is more competent to form an opinion of its weight than a person who merely reads a report of it. I wrote, therefore, to the learned Judge, intimating that to me the evidence did not appear to be conclusive as to the insanity of the prisoner, hut that I wished to know from him whether—from the evidence given at the trial, or from the demeanour of the prisoner, which might form an essential element upon a question of this kind — he had formed any opinion of his own as to whether the prisoner was insane, or whether, as I rather collected from his letter to me, he was of opinion that the case was one in which further inquiry ought to take place. In reply, Mr. Baron Martin wrote to the Under Secretary of State as follows:—Norwich, Dec. 18, 1863.Sir,—I have received your letter of the 17th instant, requesting me to inform Sir George Grey whether the impression produced on my mind by the evidence of the two medical witnesses on the trial of George Victor Townley, coupled with the demeanour of the prisoner, was such as to induce me to believe that the prisoner is now insane, or that there is such reason to believe him so as to call for further inquiry. I cannot say that I have formed any decided opinion upon the point. The demeanour of the prisoner afforded me no means of arriving at one. He sat during the trial with his head depressed; I scarcely once saw his countenance; and he never spoke. I would not be justified in saying that the evidence of Mr. Forbes Winslow and Dr. Gisburn is not correct, but I certainly think, and have thought ever since the trial, that there ought to be further inquiry.I enclose a copy of my notes of the evidence. You will find that of Dr. Winslow and Dr. Gisburn at page 25 and following pages.I am, &c,SAMUEL MARTIN.Let me say here that this has been by no means the first case in which there have been similar recommendations of a Judge after trial of a prisoner convicted of murder—sometimes where the evidence of insanity has failed, and sometimes even when the defence of insanity was not set up at the time, and when counsel had not been instructed to press that defence. There have been, during a series of years, cases which have been brought to the notice of the Secretary of State—not only my own notice,—as some of the most remarkable cases have been submitted to the decision of other Secretaries of State; cases in which either by recommendation 247 from the Judge, or representations from other persons entitled to credit, sufficient grounds were shown to exist for further inquiry; and in some cases the inquiry has gone so far as to recur back to the time when the crime was committed, so as, in effect, to revise the evidence at the trial, and actually to reverse the verdict of the jury. I believe in all those cases the result was a commutation of the capital sentence. There is the remarkable case of Dalmas, about twenty years ago, who committed a murder on Battersea Bridge under somewhat similar circumstances to those in the present case. That prisoner was removed by the order of Sir James Graham, who was then Secretary of State, to Bethlehem Hospital, after an enquiry by two medical men. Shortly afterwards he was certified to be sane and was then sent back to prison, but his sentence was commuted to transportation for life, and I believe he is now in one of the Colonies, by virtue of the commuted sentence. There have been many cases in which, after representations from Judges or other persons, the Secretary of State has made inquiries as to the sanity of the particular prisoner. I do not think any fault can be found with the Judges on this account, and I would specially wish not to be understood as implying that any fault can be found with Mr. Baron Martin for having called my attention to the subject. The comments of the newspapers upon the case, or at least of some of them, seem to indicate ignorance on the part of the writers of what is the law of England upon this subject. I find it stated in a late edition of Blackstone's Commentaries, by Serjeant Stephens—By the Common Law, if a man in his sound memory commits a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought; and if after he has pleaded the prisoner becomes mad he shall not be tried, for how can he make his defence? If after he be tried and found guilty he loses his senses before judgment, judgment shall not be pronounced; and if after judgment he becomes of nonsane memory, execution shall be stayed; for, peradventure, says the humanity of the English law, had the prisoner been of sound memory he might have alleged something in stay of judgment or execution." [Stephens' Blackstone, bk. vi., chap. 2, s. 2.]He goes on to say (and these are Black-stone's words)—In the bloody reign, indeed, of Henry VIII. a statute was made, which enacted that if a person being compos mentis should commit high treason and after fall into madness he might be tried in his absence and should suffer death as if he were 248 of perfect memory. But this savage and inhuman law was repealed by the statute 1 & 2 Philip and Mary, a. 10. For, as is observed by Sir Edward Coke, 'The execution of an offender is for example, ut pœna ad paucos, metus ad omnes perveniat; but so it is not when a madman is executed, but should be a miserable spectacle, both against law and of extreme inhumanity and cruelty, and can be of no example to others.'I will only add to this a short passage taken from some remarks made by Sir John Hawles, the Solicitor General in the reign of William III., on the trial of Mr. Bateman in the previous reign. It will be found in the 11th volume of the State Trials. After stating that—Nothing is more certain law than that a person who falls mad after a crime committed shall not be tried for it, and if he falls mad after judgment he shall not be executed.He adds—That it would be inconsistent with humanity and inconsistent with religion to make examples of such persons, as being 'against Christian charity to send a great offender quick, as it is styled, into another world when he is not of a capacity to fit himself for it.'Such being the humane and Christian principle of English law, let me ask whether, if serious doubts present themselves to the mind of a Judge as to the sanity of a prisoner, it is not his duty, whatever may have been the verdict of a jury, to call the attention of the Secretary of State to the case—the Secretary of State being the only authority through which any intervention can take place—to prevent the execution of a prisoner contrary to the common law of England? If Mr. Baron Martin was impressed by evidence which tended to show that Townley was of unsound mind, he was only performing an obvious duty in calling my attention to the facts. Well, then, knowing what the law of England was on this point, was I not bound by the respect due to any Judge, and especially to so distinguished a Judge as Mr. Baron Martin, to pay proper attention to such a representation? Would it not, in fact, have been a gross violation of my duty if I had not done so? I could not have justified myself to Parliament or the country, to my own conscience, and before God, if, after the representations that had been addressed to me by the Judge, I had abstained from instituting further inquiry. Sir, I felt that I had no choice. In communication with the Under Secretary of State it occurred to us that the best persons to conduct the inquiry would be the Lunacy Commissioners, who are intrusted with large powers by law to inquire into the 249 state of mind of persons in public and' private asylums, and either to continue them in confinement or discharge them. Their experience is consequently great. The Under Secretary of State having ascertained, by a communication with them, that they were willing and able to undertake this inquiry, I addressed a letter to them requesting them to do so. In that letter I stated what the precise point of inquiry was. I stated that the Judge had expressed an opinion that the verdict was right; that having read the evidence I concurred with the Judge in that opinion; but that as the Judge had also expressed doubts, founded upon the evidence, whether at that time—which was some months subsequent to the commission of the crime —the prisoner was or was not insane. I desired them, if they could, to solve that doubt, and, abstaining from any review of the trial, and from any interference with the verdict, to inform me what their opinion was as to the prisoner's present state of mind. On the morning of the 29th of December I received the Report from the Lunacy Commissioners. It is necessary to bear in mind the date, for it was just forty-eight hours before the time fixed for the execution. The Report of the Commissioners was not so clear and explicit as I had hoped for, and it did not distinctly answer the question which had been addressed to them. The Commissioners stated that in their opinion, so far as they could collect from the evidence, no change had taken place in the state of mind of the prisoner since the trial, or since the commission of the offence. They further stated that in their opinion, for certain reasons which they gave, they could not consider the prisoner to be of sound mind, but that according to the law, as it was laid down by Mr. Baron Martin, which is in accordance with the law as it has been collectively declared by the Judges in M'Naughten's case, the prisoner was responsible for his acts. Now, it is clear upon this Report, that if the prisoner had been one of the patients examined by the Lunacy Commissioners they would not have declared him to be of sound mind with a view to his discharge; but the Commissioners found it impossible, according to the law as laid down, to come to any other conclusion than that he was responsible for his actions. I must say, for my own part, that, believing that the law as laid down by the Judges in criminal cases ought to be acted on, I should not, upon such a report, have felt 250 justified in interfering to stay execution. At the same time, this report placed me in a painful position. The Lunacy Commissioners said, in effect, "We do not consider this criminal to be of sound mind, and yet, according to the law of the land, he was responsible for his acts." On such a Report alone, I repeat that I should not have felt justified in interfering to prevent the law from taking its course. But at the same time that I received this Report, I received a certificate purporting to be signed by three magistrates — two of of whom were magistrates of the borough of Derby, and one was a county magistrate—and by two medical men, a surgeon and a physician, as required by the existing law. That certificate was in the following terms:—"Derby County and Borough Gaol." It is material that these words should be borne in mind, with reference to the jurisdiction of the magistrates, considering some of the objections taken to the course which I followed:—Derby County and Borough Gaol, Dec. 27, 1863. "We, the undersigned, William Thomas Cox, Thomas Boden Forman, and Thomas Roe, being three justices of the peace for the county or borough of Derby, as hereunder described, hereby certify that we this day attended at the County and Borough Gaol, situate in the said borough of Derby, and with the aid of Henry Goode, of Derby, aforesaid, Doctor of Medicine, and Thomas Harwood, of the same place, surgeon, then and there proceeded to examine and inquire into the mental state und condition of George Victor Townley, confined in the said gaol under sentence of death: and we, the said William Thomas Cox, Thomas Boden Forman, Thomas Roe, Henry Goode, and Thomas Harwood, further certify that the said George Victor Townley is insane.It must be borne in mind that an immediate decision was necessary as to the course to be taken. Since this case has been under discussion it has been said that the certificate was invalid, and that I ought to have disregarded it, to have taken no steps with respect to it, and to have allowed the law to take its course, if I thought the report of the Lunacy Commissioners justified that step. Two reasons have since been alleged—I say since, because I believe that at the time no one thought of them—why the certificate was invalid. One—I am almost ashamed to men- 251 tion it—was that it was signed on a Sunday. The next was that the Act required that the justices who signed the certificate should be justices of the county, the prisoner referred to being in the county part of the gaol, where the borough justices had no jurisdiction. Now, if my attention had been called to these facts at the time (which they were not), the result would have been the same; I should not have hesitated to take the course 'which I really adopted. Well, then, great stress has been laid upon the fact that I signed a respite and forwarded it to Derby in consequence of this certificate. Sir, I avow that I did so; and I could not have done otherwise. Remember there were but forty-eight hours before the execution; and though to have referred the matter to the Law Officers of the Crown and to have instituted an inquiry at Derby would have been all very well if I had had a month before me, as the case stood the man would meanwhile have been hanged. Even had there been the delay of a day, the respite could not have reached Derby till the night before the execution, and the accident of a train breaking down, or any occurrence of that nature, might have prevented the receipt of the respite until after the execution had taken place. I determined, therefore, at once—not to commute the sentence—butrespitethe execution, taking time to consider the steps which should be resorted to. As it was, the respite did not arrive in Derby until the day before that fixed for the execution. The certificate I have read to the House was followed by a letter from the Governor of the gaol, stating that he had been requested to forward the certificate, showing that what was done was done with the full acquiescence —at all events, with the full knowledge —of the authorities of the gaol. It was accompanied by no intimation to me from any of the authorities that any irregularity had been committed, or that there was any reason to suppose that the certificate ought not to have been given. I was left to act upon it, without any intimation from that quarter; and I therefore took the course which I thought my official duty and regard for the law required. Next day—the 30th December—I received a second certificate, also without any intimation, on the subject, from the local authorities; and that was the first circumstance that suggested a doubt to my mind whether the first certificate was not informal, and whether it was not necessary that the certificate should be signed, not by borough 252 magistrates, although the gaol was within I the borough, and was both the county and borough goal, but by two county magistrates. This second certificate was identical in terms with the former; but the names of the borough magistrates were omitted, and those of two county magistrates were substituted. No suggestion was made that this certificate was not in perfect conformity with the Act, and on it, and it alone, the warrant for the prisoner's removal to Bethlehem Hospital was founded. If the warrant had been founded on the other certificate, I could understand the doubts which were subsequently suggested: there might have been some material question for a court of law, as to whether the warrant of removal was right on technical grounds; but in the case of the second certificate, no point whatever as to the validity of the warrant could arise. The effect of the two certificates together was that four justices and two medical men had certified in the terms required by the Act—having that Act before them, and knowing what the effect would be — as to the insanity of the prisoner. Well, on receiving the second certificate, I issued a warrant for the removal of Townley to Bethlehem. It has, however, been said that I had a perfect discretion in the matter, and that I was not bound to take the step even after the receipt of those certificates—that, however regular the second certificate may have been, I was not bound to act on it, but might have disregarded it, it being a matter of discretion. Now, let me say that such a construction of the Act is contrary to that uniformly put upon it by every Secretary of State who has been in office since it passed. Many cases have occurred in which certificates, signed by two magistrates and two medical men, have been sent to the Secretary of State; and I have not been able to find one in which he has not felt bound, as a matter of course, or rather positive duty, to order the removal of the prisoner to a lunatic asylum. But my argument does not rest merely on the construction given to the Act by successive Secretaries of State; because there have been several solemn decisions of Judges in which it is held, that where an Act of Parliament is for the public benefit—as is clearly the case here—words "empowering" or "enabling" have a compulsory sense, and that the exercise of the power depends upon the point whether the case conies within the Act, and not on the discretion of the 253 person intrusted with the duty of giving it effect. Any one reading this Act will find that it makes the certificate of two medical men and two justices final on the question of sanity up to the removal of the prisoner, and until the date of a subsequent certificate of sanity after inquiry held in the asylum after his removal. Even the very form of the certificate to be signed by those intrusted with the inquiry in the asylum assumes that the certificate on which the warrant of removal had been issued was well founded, because it states that the prisoner "has become sane," thus pointing to the state of mind of the prisoner when examined in the asylum, as having undergone a change since his admission. I therefore think it was clearly contemplated that the certificate of insanity on which a prisoner is entitled to removal from gaol must be considered final up to the issuing of the certificate of the medical men who shall have examined the prisoner in the lunatic asylum. I therefore felt myself bound to issue a warrant for the removal of the prisoner. I signed the order for Townley's removal on the 30th of December; but, owing to some cause, of which I am not aware, it was not executed till the 11th of January, and it was not until then that he was received into Bethlehem. A correspondence has taken place between my Office and the magistrates of Derby, to which I do not think it necessary to refer in detail on this occasion. An additional reason for my not doing so is, that I received a letter from the hon. Member for Derbyshire (Mr. Mundy), who is chairman of the Visiting Justices, stating, that owing to an accident he would not be able to attend in his place this evening. In reply I stated that though it would be impossible for me to avoid making a reference to the Townley case in moving this Bill, I would advert to the correspondence as slightly as possible. I may, however, observe, that owing to a communication from the magistrates, I felt it my duty to ask an explanation of the justices who had signed the certificate. It may be asked why I did not take a similar course with regard to the medical men who signed it. The reason is, that as Secretary of State I had a right to call on the justices for an explanation; but I had no such right in the case of the medical men. I will not refer to the letters I received in reply, further than to say that they satisfied me on two points — first, that those certificates signed by the magistrates 254 had been signed by them bonâ fide, and after due inquiry, and with a conviction on their minds that Townley was insane, however mistaken that opinion may have been; and, secondly, that the machinery of the law had been put in motion by the attorney for the prisoner, who had called on the magistrates to go to his client and examine him, and who had, I believe, also called on the medical men with the same object. I impute no blame to the prisoner's attorney for taking this course as long as the law sanctioned it. I do not think he was to blame for using every effort to save the life of his client. But I think it is a serious defect in the law that the attorney of a prisoner, acting irresponsibly, should be able to select the magistrates and the medical men who are to make an inquiry of this kind. Such a circumstance is calculated to affect, not the validity of the certificate to be signed, but its value. At the same time I think that no blame is to be attributed to the magistrates for the course which they took under the existing law. One of them who signed the certificate seems to have been anything but favourably disposed towards the prisoner, or inclined to believe him insane before he went to make the examination. But as the matter now stands, the clearly expressed report of four men, of the greatest eminence and the greatest experience, which has since been received, leads me to believe that a miscarriage of justice has taken place in this case, against the recurrence of which we ought to provide. With regard to the opinion of medical men on insanity, there is one point which has not been sufficiently adverted to—that is, the great difficulty there is in defining insanity. Hale says, "It is very difficult to draw the invisible line that divides perfect and partial insanity;" and in Blackstone's Commentaries, Stephen's edition, 1863, vol. iv. p. 112, it is stated:—
- "W. T. Cox, Justice of the Peace for the County and Borough of Derby.
- T.B. FORMAN, Justice of the Peace for the Borough of Derby.
- THOMAS ROE, Mayor of the Borough of Derby.
- "HENRY GOODE, M.B., M.R.C.S.
- "THOMAS HARWOOD, Surgeon and Apothecary, and Medical Officer of the Derby Union."The line of distinction referred to by Hale has never yet been fully traced. The judges on a late occasion (Macnaughten's case in 1843), however, gave it as their opinion, that if a man who takes another's life appears to have known at the time that he was acting contrary to law, his being under an insane delusion that he was thereby redressing some supposed grievance or producing some public benefit will not exempt him from the guilt of murder; neither will he be exempted by being under an insane delusion as to facts, provided the supposed facts, if real, would not have justified the act; but that, on the other hand, he will be exempted by such delusion as last mentioned where the facts, if real, would have justified the act.255 It is impossible for me, as long as that is the law, not to feel that a conviction may be right on the principle laid down by the Judges; and that, at the same time, justices and medical men may conscientiously arrive at the conclusion that a prisoner is insane. I think the conviction in this case may have been right, and that still the certificate may have been honestly given. I think the Amendment which I propose to the House, and which I hope the House will entertain, is calculated to correct this defect in the law, which allows its machinery to be put in motion, not necessarily by an impartial person, but by the agent of the prisoner, selecting himself the instruments by which the law ia to be carried into effect. What I propose to do in the Bill is to repeal altogether the first clause of the Act 3 & 4 Vict. c. 51, and to substitute an enactment having the same object—namely, proper provision for the care and disposal of criminal lunatics, who clearly ought not to remain in a prison, but to be removed to an asylum. I do not propose to limit the general operation of the Act. It is clear that every prisoner, if lunatic, should be removed without making any distinction as to the nature of his crime. I do not propose in any way to exempt from the provisions of the law any class of prisoners to which the law now applies. But, instead of leaving this delicate, difficult, and responsible duty to any two justices, I propose that the duty shall be imposed exclusively on the visiting justices of the prison. I propose, further, that instead of any two medical men volunteering their services, which must necessarily be most hazardous when we bear in mind the vague and crude opinions entertained by some medical men with regard to insanity, that upon the visiting justices upon whom will be cast the duty of inquiring, shall also devolve the duty of selecting the medical men whom they shall call in to aid their inquiry. I think these duties may safely be left to the visiting justices. They are selected from the general body of magistrates; all the internal arrangements of the gaol are under their supervision, and they have constant intercourse with every officer of the gaol; they know or have the means of knowing the mental and bodily conditions of every prisoner; and if they cannot safely be intrusted with these duties, we had better decide that they should be relieved of the general administration of the gaol, and 256 that it should be transferred to some central authority; which would be a change I could not recommend, and one not expedient, I think, for the House to adopt. I propose in addition that the physicians or surgeons who are called in should be registered as such under the Medical Registration Act. This brings me to a point which I ought to notice. Some time after the certificate in Townley's case was signed, I was informed that Mr. Harwood was not a surgeon registered under the Act, and I was asked whether the certificate was legal. He is described as "surgeon" by the visiting justices who gave the order for entering the prison. He is described as surgeon in the body of the certificate, and he is described as surgeon and medical officer of a board of guardians in the words attached to his signature. There is nothing to suggest a doubt on the face of the document; but when I was told that he was not a surgeon registered under the Act, I thought it my duty to call for an explanation of it. I received a letter from him, which, I think, is not necessary to read, but in which he distinctly admitted that although registered, he was not registered as a surgeon. In fact, Mr. Harwood is a general practitioner, who has for forty-three years acted as a surgeon, who is well known to every one in the locality, and who has frequently signed certificates relating to insanity in connection with the union of which he is medical officer. No question arose in this case upon the point. But I communicated with the Lord Chancellor, and the Lord Chancellor gave me an unqualified opinion that Mr. Harwood was a surgeon within the meaning of the Act. Here I may say, that although for all that happened up to the reception of Townley into Bethlehem Hospital I am alone responsible, every act done by me since that time has been with the advice and concurrence of the Lord Chancellor. I think it right, in the Amendments which are now proposed, in order to remove all future doubt, to provide that the physicians or surgeons called in aid by the visiting justices shall be registered as such under the Medical Registration Act. The other, and perhaps the most important, provision in the Bill is, that the certificate of insanity, signed by the visiting justices and medical men, shall no longer be final or conclusive. In the great majority of cases, no doubt, it will still be final. The certificate will be, not a mere surmise or suggestion to the Secretary of 257 State, but the deliberate and recorded opinion under the hands of the visiting justices and two medical men, of the insanity of the prisoner to whom it refers; but by the insertion of words showing that it is not mandatory, but permissive, the Secretary of State, "if he thinks fit," will be able to institute further inquiries in any case before he directs the removal of the prisoner, so as to satisfy his mind, if he entertains any doubt, that the certificate is correct. If these alterations are made, I think effectual precautions will be taken against any such miscarriage of justice as may have happened in this case, and that the increased responsibility of the Secretary of State and the new responsibility imposed on the visiting justices will prevent any risk of the course of justice being improperly interfered with.
Having said thus much, I must be allowed to say a word upon the course finally taken with regard to Townley. He was removed to Bethlehem on the 11th of January. I received no intimation from the officers of Bethlehem as to the state of his mind. In ordinary cases, if the medical officers of an asylum to which a prisoner has been removed are satisfied of his sanity, they send a certificate to the Secretary of State, and the Secretary of State acts upon their certificate and removes the person back to prison. It would have been very wrong if the officers of Bethlehem had hastily formed an opinion without allowing time to insure their arriving at a sound conclusion by observation and examination, and, as I have said, no certificate was received by me. But at the end of the week following that when Townley arrived in London, with the concurrence of the Lord Chancellor, I requested Dr. Hood and Dr. Bucknell, Visitors of Chancery Lunatics, who have had great experience in such cases, Dr. Meyer, medical superintendent of the Broadmoor Criminal Lunatic Asylum, and Dr. Helps, resident medical superintendent of Bethlehem Hospital, to examine the prisoner, and after sufficient examination to report as to the state of his mind. Dr. Hood was absent on a tour of inspection in the North, which caused a delay of two or three days; but having had two interviews, and having taken the opinion of the medical officers of Bethlehem, on the 28th of January those four gentlemen gave a most clear and explicit opinion, that the prisoner was of sound mind. That opinion appears to me to be conclusive: while, as I have said before, I do not 258 impute to any one who signed the certificates of insanity—whether medical men or magistrates—that they signed without a full conviction at the time of the truth of that which they certified. It then became necessary to determine what course should be taken. In anticipation of the possibility of a report such as that which I did receive, I had conferred fully with the Lord Chancellor, in order that whatever course was taken might be taken at once. I stated to the Lord Chancellor my own opinion as to the proper course, and I had the satisfaction of finding that the Lord Chancellor concurred with me in a course which was afterwards also concurred in by Her Majesty's Government. I was of opinion that under the circumstances of the case—after the prisoner had been respited under the certificate, after he had been removed to an asylum, and after the doubts which had existed as to his sanity — it would not be right to carry the capital sentence into execution, to send him back to Derby, and to direct the sheriffs to fix another day for carrying the sentence into effect. Under these circumstances we thought it proper that the sentence of death should be commuted into one of penal servitude for life, and that the convict should be removed from Bethlehem Hospital to Pentonville Prison, which had become the proper legal place of custody under the commuted sentence. If we had acted otherwise, and had ordered the original sentence to be carried into execution, we should, I think, have strained the law beyond what had been done before in our criminal practice, and I think the public feeling has been best consulted by the commutation of the punishment. I have now stated all' the facts connected with the case, and I trust the hon. Member for Derbyshire, the chairman of the visiting justices, will not be of opinion that I have in his absence made any unfair reference to a correspondence in which he was concerned. For my own part, I attribute no fault to the visiting justices or any one else. The defect was in the law, and I, feeling myself called upon to act without delay and without any opportunity of taking any other advice than that legal advice which is always open to the Secretary of State, and in which I place the greatest confidence, I took that course which I considered to be consistent with my sense of duty and with the law. I have only to add that I hope the House will assent to the amendment 259 of the law which I now propose, and thus take an effectual precaution against the recurrence of such a miscarriage in any future case. The right hon, Gentleman then moved for leave to bring in a Bill.
Moved, That leave be given to bring in a Bill "To amend the Act 3 and 4 Victoria, c. 54, for making further provision for the confinement and maintenance of Insane Prisoners."
said, that the question involved in the case on which the Secretary for the Home Department had dwelt at such length was of the utmost importance, as affecting the prerogative of the Crown and the due administration of justice; and it was desirable, that before the House proceeded to legislate on this subject, they should clearly understand what was the state of the law at present. The course taken by the Government on this occasion was a novel, but perhaps a necessary course for their vindication. Still, he thought the Government were acting with a most suspicious alacrity. On the very first day of the Session, the right hon. Gentleman the Secretary of State for the Home Department gave notice of his intention to introduce this Bill, and that step was followed by a Motion of the Under Secretary that the papers should be laid on the table. That seemed to be done with the view to gain priority over assailants, and to submit the first statement to this House and to the country. The right hon. Gentleman in bringing in this Bill has favoured the House with a laboured defence of his conduct. His first proposition might be admitted without difficulty. The right hon. Baronet testified, in the first place, to the admirable manner in which the trial had been conducted by Baron Martin, and in the observations which fell from him on that head he entirely concurred. Baron Martin had submitted the question of sanity or insanity to the jury with the most entire accuracy in point of law, nor was the part which he took in the proceedings subsequent to the trial less worthy of commendation. The right hon. Gentleman himself, too, took at the outset a very proper course. Having received the suggestion of Baron Martin that further inquiry should take place as to the prisoner's sanity, he applied to the Lunacy Commissioners to undertake that inquiry. They did so; and reported that, according to the law laid down by Baron Martin, the prisoner was 260 sane enough to be responsible for his acts. Not satisfied with this opinion, he subsequently ordered a fresh inquiry to be made by four most competent persons, who, having examined and re-examined the prisoner, reported that he was a sane man. But in the meantime there had been a miscarriage of justice. Two certificates had been sent to the Home Office, prepared in such hot haste as to be irregular, the attorney who set the parties in motion having procured to one of them the signatures of the borough justices. Now, passing over the objection of its having been signed on the Sabbath, he would observe that if the right hon. Baronet had taken the trouble of reading the existing Act in conjunction with preceding Acts in pari materiâ, he would find that, the prisoner having been confined in the county gaol, the jurisdiction was in the county justices, and that it was they who ought to have signed the document. He would not, however, rely on technical objections, and would proceed to deal with the argument of the right hon. Gentleman, that the statute of Victoria was absolutely binding on him and left him no discretion. Now, this he (Mr. Macdonough) denied. The words "it shall be lawful" were words of a permissive character, and were imperative only in those cases in which public duty required that a thing should be done; they were permissive in general, and imperative when for the sake of justice or the public benefit, or looking to the clear context of the statute, they were evidently intended to be so. In the case under discussion they were not imperative, but permissive. All that the Act did was to enable the Secretary of State to remove the prisoner to Bethlehem Hospital if he should think fit. The right hon. Baronet seemed to think, he might add, that the first statute on the subject was the 9 Geo. IV.; but there was a previous statute, the 56 Geo. III., which contained no expression rendering it incumbent on the Secretary of State to act as if he were an automaton. Then came the 9 Geo. IV., and lastly the statute of Victoria, which it was now sought to amend. The common law of England was clear, that if a man was insane when he committed the offence he was not guilty of murder. It was a part of the very essence of the offence that it should be commited by a person of memory and discretion. Then came the statutes, of Geo. III., providing for cases in which persons became insane after conviction. 261 These provisions were intended for the care of the lunatic until the return of reason rendered him a fit subject for punishment, and not to enable justice to be defeated by trick or dexterity. On the receipt of the certificate a temporary respite might have been granted by the prerogative of the Crown, and thereupon there should have been an inquiry why the borough justices went to the county gaol, who were the physicians employed by the attorney for the prisoner, and what was the real state of mind of the convict. That was within the competency of the right hon. Baronet, and it was his duty to the Sovereign and to the people of this country to take care that a convicted murderer did not escape by a trick. Assuming, however, that the right hon. Baronet's construction of the statute was the correct one; that the words of the statute were absolutely mandatory; that the verdict of a jury pronounced after the correct legal instructions of a learned judge was to be set aside by the certificate of two physicians; and that, although their sworn statements on the trial might have been disregarded, their unsworn statement embodied in a certificate tied up the prerogative of the Crown and made one of Her Majesty's Secretaries of State a mere automaton, who must instantly direct the removal of the prisoner to a lunatic asylum—assuming all that, what followed? Why, that this should be done, not as a conditional or absolute pardon, but merely as a respite of the execution until the return of sanity, and to insure the lunatic being cared for and the law fully carried out. The case was analogous to that in which there was an interference with justice on account of a prisoner's pregnancy. When a woman who had been convicted of murder pleaded that she was quick with child, a jury was empanelled to try whether she was so or not. If the plea was found against her she was not respited; if it was found for her she was respited, but she was respited only until she was delivered of the child, and when that was over she was executed.
The right hon. Baronet first said never, and then not for thirty years. His idea of everlasting was rather limited. There were numerous instances in the books in which women had been executed after such respites. If 262 while the woman was in prison she became in the familyway again she could not repeat the plea. What he was seeking to establish was the analogy of these temporary respites. He further maintained that if the first part of the section was mandatory the latter part was equally so. The first part of the clause empowered the Secretary of State to direct the removal of the prisoner to a lunatic asylum, and the latter part directed that upon two physicians certifying that he had become sane, the Secretary should order his recommittal to the criminal prison until his sentence of imprisonment had expired. What did that prove? It showed that the respite, which was the necessary consequence of the transfer of the prisoner to the lunatic asylum, was to be only temporary, and was intended for the care of the lunatic, and to prevent justice being defeated. Therefore, he cared not whether the statute was permissive or obligatory. In either case, the law of this country had been violated, and there had been, as was admitted by the right hon. Baronet, a miscarriage of justice—a miscarriage brought about by the attorney for the prisoner who set these people in motion. Was that to be tolerated? It had been announced tonight that after a report had been received from four eminent men declaring that Townley was sane, he was not to be executed. What was the explanation given of the facts of this extraordinary case, upon which the law of the land was now to be altered? If the right hon. Baronet had pushed his inquiries into the law of the country, or had consulted the Attorney or Solicitor General, he would have learnt that in his last act he had violated all the analogies of the law. In former times pardons for the greatest crimes, such as treason and murder, were often obtained by the undue influence of high officers of State. To prevent this the Parliament of England passed certain restricting statutes, which were very ingenionsly contrived so as not to trench upon the prerogatives of the Crown. By one of these statutes it was provided that in all charters of pardon for murder the particular manner in which the murder had been committed should be set forth. The reason of this was, that it was thought that if the murder had been committed after lying in wait, or by other shocking means, no Sovereign would put his hand to a pardon in which such heinous circumstances were disclosed. It was also a principle of the common law, that if a 263 Charter of pardon was obtained upon a false suggestion it was void ab initio. That was the case here. The pardon, or respite, or commutation had been obtained upon an absolute falsehood; because it was incredible that after the Judge and jury, the Lunacy Commissioners, and the four gentlemen appointed with the sanction of the Lord Chancellor, had all pronounced this man to be sane, he should really be insane. The Secretary of State should have acted upon analogy with the statute and common law, and then this miscarriage of justice, arising out of a false suggestion made by the prisoner's attorney, would not have taken place. For it certainly was a violation of the analogy of the law if a man was pardoned through the aid rendered to him by others who had used their influence unscrupulously. The spirit of all the older statutes was entirely opposed to the theories which were now put forward, and so much was this the case that, after the Revolution, when the doctrine of non obstante was done away with, it was generally argued that the King had no power to pardon for murder; but the contrary was decided, and the Prerogative remained untouched. But if the punishment of death was to be continued in this country it was absolutely necessary that greater caution should be observed in future, for we had gone lamentably far in our interference with the manner in which sentences were carried out. He deeply lamented that a recent instance had occurred in which the last words an unfortunate culprit heard were, not the consolations of religion, but cries of "Where is Townley? Where is Townley?"
§ MR. NEATE
viewed with surprise and some little indignation the attacks to which the right hon. Baronet had been subjected by the press; and if he differed in opinion from the Secretary for the Home Department, in offering criticism upon his actions, he should at least remember that he was speaking of a man inferior to none in that House for judgment and ability, and superior to all in opportunities for becoming acquainted with the duties of the office he now held. However much he might differ from him, he should certainly express his opinions with forbearance and respect; and this, he thought, had hardly been evinced in the observations of the hon. and learned Gentleman opposite. It was not, however, as the apologist of the right hon. Baronet, but as a critic of the measure which had been laid on the table, that he had risen to address the House. The Bill was, in his 264 opinion, very far from being an adequate remedy for the evil the right hon. Gentleman had so clearly pointed out. Such was the barbarous and unfortunate state of the law at the present day, that it was possible for a confirmed lunatic to be guilty of murdering his keeper, provided only that the act were done in what the law chose to call "a lucid interval;" but though they might convict a lunatic of murder, common sense would not permit him to be hung for the offence. This measure was a very imperfect remedy to the existing conflict between law and common sense and common justice. The law respecting lunatics dated from a time when there was very little knowledge of mental disease, and when the Judges who administered the law believed in witchcraft, and absolutely sent persons to the stake and the gallows for being guilty of that offence. One of the most distinguished of these Judges was Sir Matthew Hale, who was, no doubt, a very good and useful man, but certainly not a very wise one, and to quote him as an authority upon any point of criminal law affecting lunatics would be something like citing the author of the Pilgrim s Progress as an authority in Biblical criticism. But since those days no branch of knowledge had made more progress than that relating to mental disease. The result of the law as it stood had been a state of hopeless discrepancy between the legal notions of insanity and the medical notions. He did not mean to say that medical science had yet succeeded in pointing out any satisfactory test of insanity. It might be that the very nature of medical researches, which, traced the disease from its worst manifestations up to its first slight indications, when the mind was hovering between sanity and insanity, would disqualify medical men from laying down any satisfactory test as to the mental condition at a given moment; but, at any rate, they had arrived at conclusions utterly at variance with those of the lawyers. The test of law was, "Is a man capable of distinguishing between right and wrong?" A medical man declared that one of the most fatal signs of mental disease was an exaggerated sense of moral and religious duty. He did not cast any reflection upon Baron Martin, than whom a more patient and humane Judge did not sit upon the bench, and he gave the learned Judge great credit for the manner in which he dealt with the perplexity in which he found himself; but being a sensible man as well as a sound 265 lawyer, Baron Martin was conscious, no doubt, that when he was laying down the legal test of insanity he was laying down a test altogether at variance with justice and common sense—["No, no!"]—at any rate he must have been aware that Dr. Forbes Winslow and the other medical witnesses knew more about insanity than he did, and therefore he was unwilling to take upon himself the responsibility of allowing the law to take its course. For these reasons, he was unwilling to throw undue responsibility upon the shoulders of the right hon, Baronet who had already so much to bear. He would not have made these observations if he had not a suggestion to make which might lead to a practical remedy. He would suggest that if the representatives of the medical and legal notions could be brought together—not in the arena of a court of justice, where there was a sort of conflict between them, and where medical men might, under the pressure of cross-examination, and under feelings of natural irritation at being treated with disrespect by persons who knew much less about the subject than themselves, give exaggerated opinions, but where legal and medical men could meet together and discuss the matter upon an equal footing—the result might lead to the clearing away the difficulties and prejudices which now perplexed the subject, and some more satisfactory rule might be arrived at than that which the present state of the law afforded. He recommended, therefore, for the consideration of the Home Secretary whether a Royal Commission or a Committee of that House might not be appointed before which lawyers and physicians might have the opportunity of giving their opinions upon this perplexing question. As to the recent case which had given rise to the proposed change in the law, he could not understand upon what grounds the medical gentlemen who last reported upon the case arrived at so very satisfactory a conviction of the sanity of Townley, and still less could he understand why such great stress was laid upon the opinion of these four gentlemen, so that their evidence was considered more conclusive than that of persons who were much better acquainted with that particular case. He admitted that the report was an able document; but he thought that, of all who were consulted, these gentlemen were the least to be relied on, because, from the very nature of their office, they were only brought into contact with the more developed and unmistakable evidences of insanity, and 266 were less capable than others of tracing the disease in its earlier stages.
§ MR. LOCKE
said, he regretted that the necessity for the introduction of this Bill should appear to many to have arisen from the circumstance that a very large proportion of the people were of opinion that there was one law for the rich and another for the poor. There could be no doubt that, in consequence of the provision in the statute which was now about to be modified, persons of wealth had an opportunity of putting the law in operation, while the poor man was entirely debarred from doing so. But he would ask the right hon. Baronet whether he thought his present proposal, if carried into effect, would get rid of all the objections which had been brought into notice by the late case of Townley? By the law as it existed at present, any two magistrates of a county, coupled with two medical men, might sign a certificate of insanity, and obtain a respite for a criminal. The alteration proposed was that two visiting justices, instead of two justices of the county, simply should have that power. Now, the visiting justices were not always men in whom complete confidence might be placed. They were as any other men liable to be actuated by feelings of detestation for capital punishment, and they were just as likely to be led away as other men. If, then, for the future, a certificate came up to the Home Secretary signed by two visiting justices and two medical men, would that act as a pardon for the criminal? [Sir GEORGE GREY: No.] The right hon. Gentleman said that, under the circumstances, he should have been acting contrary to all precedent if he had not respited Townley on receiving the certificate, and had not commuted the sentence of death to one of penal servitude for life. But in what material particular would the law be amended if there was only a substitution of visiting justices for justices of the peace? Punishment ought to be certain; and unless the punishment of death were abolished altogether, there never was a case which called more for the punishment of death than Townley's case. There were no mitigating circumstances in his crime, and, at the time of its commission, it was proved that he was perfectly sane, that is, as far as any one could judge of the sanity or insanity of a fellow-creature. As to the suggestion of the hon. Member for Oxford (Mr. Neate), that there should be a Committee or Commission composed of doctors 267 and lawyers, he did not think that the proposition made was by any means clear. This, however, he knew, that if a man had any peculiar turn of mind which was a little different from that of his neighbours, you could easily find a couple of doctors to come and say that he was a madman. If a man were addicted to hunting—a pastime in which, of course, he ran the risk of breaking his neck—and if he followed that pursuit to any great extent, he (Mr. Locke) would undertake to say that he could find doctors who would say that the man was not of sound mind. This being the case, there was no implicit reliance to be placed upon doctors any more than upon any other class of men. The jury, however, after hearing the doctors, found Townley guilty of murder and held him to be sane. He had since been certified to be insane, and was now shown to be sane. Was there any reason, therefore, why Townley should not have been executed? He was at a loss to know what reason could be adduced for respiting him unless it was intended to abolish the punishment of death altogether, nor was he prepared to say that this would not be advisable. But because, in the interim between his trial and the day on which he would have been executed he had been declared insane, was that any reason for commuting the sentence, when it was found that he was sane when he committed the crime and sane now? The very circumstance of his being placed upon his trial might have rendered him for the time insane. With regard to the Bill now proposed to be brought in, was it intended that if similar representations were hereafter made by the visiting justices and by doctors as had been made in the Townley case, that the same course was to be taken as at present? Because, if so, the friends of a person under sentence of capital punishment would avail themselves of the same opportunity that now existed, find which had been taken advantage of by those who had got up the representation to the Secretary of State. He sincerely hoped that the Bill would be most carefully looked at by hon. Members, so that they might avoid the opprobrium that had been recently cast upon the law in consequence of an execution that had taken place—he meant that of Wright; for it was very generally believed that if he had had rich friends he would have had a better claim than Townley to have his life spared. That Wright was in a fit state to be tried most people would doubt.
§ SIR GEORGE BOWYER
observed, that much had been said, both in the press and in the course of recent discussions, with regard to the supposed conflict between the medical and the legal idea of insanity; and the hon. Member for Oxford (Mr. Neate) had suggested a conference between medical men and lawyers to settle the supposed conflict. In reality, however, such a conflict did not exist; for the medical idea of insanity and the legal idea of it had perfectly different objects; and that was the real solution of the difficulty. The medical man was bound to ascertain the smallest trace of mental disease, with the view of finding a cure or an alleviation of it. The legal idea of insanity was always applied to a particular act. For instance, if a man had executed a deed or a will, the legal question was whether at the time he was competent to do that legal act; and so it was in the criminal law, for if a man committed an offence, the question was not whether he was of perfectly sound mind at the time, but whether he had that degree of knowledge of right and wrong to which the law attached responsibility and liability to punishment. He thought that it very often happened, that in criminal trials the distinction to which he had referred was lost sight of; and no doubt counsel were interested in doing so in order to induce the jury to believe that any amount of unsoundness of mind in the prisoner would warrant an acquittal. Medical men should not on such occasions be asked the question whether the man was of sound mind, but whether the insanity or unsoundness of mind under which he might labour was such as to deprive him of the knowledge of right and wrong, and of that responsibility, without which the law never inflicted criminal punishment. If the distinction between medical and legal insanity were kept clearly in view, a great deal of the difficulty that was now felt would be avoided. He would not stop to inquire whether the words in the Act, "It shall be lawful," were mandatory or permissive, for in the face of that Act of Parliament it would have been hardly possible for the Secretary of State to do otherwise than he had done, when the doubt was once raised. As long as there was a doubt on the point of law it was impossible for him to do otherwise than grant a respite. But there was one other subject in reference to which he did not think that the Secretary of State had acted with as much judgment as was desirable; he meant the case of the 269 prisoner Wright, who was executed. It seemed that Wright and the woman had been quarrelling all night—he believed they were both drunk—and in the morning it was found that Wright had murdered the woman. But it was at least doubtful whether he had done it in hot blood or with deliberation; and there being this doubt he thought that it was possible for the Secretary of State, without departing from the usual course, to have commuted the sentence. His own opinion was that it would have been wise to do it. He did not say whether the man deserved to be hanged or not, for that was not the question; prisoners were not hanged because they deserved to be hanged, but because it was good for the community that deserving death they should suffer death. If all those who deserved to be hanged were hanged, a great many would be put out of the way. In his opinion the execution of Wright had not a beneficial effect. Wright's execution took place immediately after Townley was saved from death. This had a very bad effect upon the lower class of the people; it had produced a strong impression among them that there was one law for the rich and another for the poor. Hon. Members knew that that was really so, and to some extent it was unavoidable; but still it was a very dangerous thing that that impression should be deeply rooted in the minds of the working classes. He took some pains to ascertain the feelings of the people in reference to Wright, and he went to various parts of London, and among others to the neighbourhood of Horsemonger Lane, and heard many speeches made by working men. Some of them were as good as some he was in the habit of hearing in that House, though a good deal of nonsense was also spoken, and he came to the conclusion that the execution of Wright would produce a bad feeling between the poor and the higher classes. One man was declaiming against the aristocracy; and he (Sir George Bowyer) took the liberty of saying that he did not think that the aristocracy had anything to do with it, but that it was simply a mistake on the part of the people in authority. He (Sir George Bowyer) could not say that the feeling which had sprung up among working men was groundless, but he hoped that time would alleviate it. With regard to the Bill which would be brought in, he hoped that it would have the fullest attention of the House, so that an efficient remedy might be applied to the evil which now existed. In his opinion, 270 where it was clear that prisoners had become insane between the sentence and the time for the execution, there should be a discretion to send the prisoner to a lunatic asylum; but the discretion should be vested in the Home Secretary, and exercised on his responsibility. It was too important a matter to be left to the visiting justices. He himself was at that moment a visiting magistrate, and he should be very sorry to have such a responsibility thrown upon him. The Act should be framed in such a way that where it was pretty clear a man had become insane there should be a discretionary power in the Home Secretary to take evidence in a formal manner, and act upon his own responsibility.
§ SIR BALDWIN LEIGHTON
said that the law relating to insane prisoners was much more frequently put in force than hon. Members seemed to suppose. He imagined that the Secretary of State must receive at least fifty certificates of insanity every year. The average from the gaol of which he was a visiting magistrate was about one a year, and he should be very much surprised if the matter did not meet with the immediate attention of the Home-office—in fact, if an answer was not received by return of post. It was very seldom, however, that a certificate was sent up about a prisoner under sentence of death. In this instance he was certainly surprised at the Derby magistrates who signed the certificates—one of them, he believed, said he did not know much of the law. In most counties there was a certain courtesy among the magistrates which prevented one magistrate from interfering with the visiting duties of another, and in his own county he should be very much surprised if two Shrewsbury magistrates should come into the county gaol on such business, unless asked by the visiting magistrates. With regard to the medical men, they always employed their own gaol surgeon and gaol physician, and he thought that the gaol surgeon, being appointed by the magistrates, should be one of the persons who should sign the certificate, and not any medical man who might anywhere be found. It was said the visiting justices were like other magistrates. But they were selected by their brother magistrates as having some knowledge of their duties, and being likely to attend to them; and therefore they were in a certain sense not like the other magistrates. He would recommend the right hon. Gentleman to repeal the present Bill and bring in an 271 entirely now one, because it was astonishing what trouble it gave the magistrates to have to look after the practical working of two Bills. He was not likely to be ever in a position to arbitrate upon the fate of an unhappy man, but if ever he should be, he should act precisely as the right hon. Gentleman had done; and he believed that there was no Member of that House who was at all acquainted with the course of criminal procedure who would not have acted in the same way.
§ MR. BRIGHT
I have heard with a good deal of pain the speech of the hon. and learned Gentleman who has left the House (Mr. Macdonough), who has repeated in the House a great deal of what we have seen in certain newspapers out of it. The hon. and learned Member and the writers in question, who probably represent some portion of the public, seem to be extremely unhappy because a criminal has escaped, not punishment, but a certain punishment which is generally considered to be the most dreadful of all the penalties the law can inflict. I confess that the calamity seems to be—and is, I believe— to the country much less than if an innocent man had happened to be hanged—and therefore I feel a great consolation. I think, if I were in favour of capital punishment—which I am not—1 should feel a great consolation that it was not an innocent man that had been hanged, but a guilty man that had escaped a certain punishment which the law apportions to his crime. The right hon. Baronet (Sir George Grey) has made a statement which, I think, to every person who heard it, except the hon. and learned Member for Sligo, must have been a complete justification for his whole course in this matter. The hon. Gentleman who has just sat down has made a statement with regard to its effect on his own mind; and I am rather sorry that the hon. and learned Gentleman opposite (Sir G. Bowyer) has mixed up the case with that of another unhappy man who was executed. That is a question not before this House; the two questions made into one are not before the House; the subject for consideration is the Bill which the Home Secretary asks the House to agree to. I believe there is no man in the House, unless it be the hon. and learned Member for Sligo—and I will not even except him—who, had he been in the position of the Secretary for the Home Department, would have taken any course other than that which the' right hon. 272 Gentleman pursued. Why, it is a saying of an ancient writer—and not a Christian writer even—that when the life of man is in debate no delay is too great. And when the right hon. Gentleman had the facts brought before him which were disclosed at the trial, of the notorious insanity of members of the prisoner's family—when he had the, I will not say opinion, but, at least, I may say the doubts of the Judge, which he afterwards received — when he had medical evidence brought before him, besides other testimony other than that of medical men—I say it was impossible for the right hon. Gentleman to take any other course. I did not distinctly hear one part of the right hon. Gentleman's speech; but he referred, I think, to a case which occurred some years ago at Newcastle-upon-Tyne. I speak from memory. It was my fortune at that time to be applied to by medical men at Newcastle on behalf of the prisoner under sentence of death. He, it appeared, being a morose and passionate man, had quarrelled with a tax or rate collector, and, having followed him into the street, had stabbed him in the back and killed him. He was tried, and, if I am not mistaken, the plea of insanity was set up; but the jury, exactly as in the case at Derby, thought that if there was insanity at all it was not the sort of insanity of which the law takes cognizance, and he was accordingly convicted. The Judge who presided wrote to the Home Secretary expressing his doubts as to the sanity of the condemned man, and I think, also, he expressed a stronger opinion in favour of the view of insanity of the man than did the Judge in the case at Derby. An investigation took place, and the result was the same as in the case of Townley—the prisoner was respited, and transferred from gaol to some hospital for criminal lunatics, where, if he is yet living, he still remains. From the time of his removal he remained hopelessly insane. The medical gentleman who generally attends my family was at that time living in Newcastle, and he lately told me that he had had an opportunity frequently of seeing the prisoner in gaol, at times, too, when the man could not see him; and he stated there could be no doubt of his insanity. However, he was tried and convicted; and if it had not been for the interference of somebody who thought he ought not to be hanged, and for the proper view which the Home Secretary took of the case, the man, who was a confirmed 273 lunatic, would have been put to death in the presence of thousands of the people of Newcastle. Townley's might have been precisely a similar case. For anything any one knew, at the commencement of the trial he might have been as complete a lunatic as the criminal at Newcastle. Looking at the case in this light, the right hon. Gentleman could take no other course than he did. And if any additional feeling has been created because it occurred so near to another case in which the execution took place, I can only think that to be very unfortunate. It is unfortunate for the right hon. Gentleman and for a fair view of that case. But I shut that case out entirely. It is most unjust, in my opinion, to associate one case with the other. I have been in Parliament now twenty years, and during that time have been frequently in communication with the right hon. Gentleman the Secretary for the Home Department, as well as with others who have filled that office; and I must say that every man holding it whom I have had occasion to see, and no one more than the right hon. Gentleman, has showed the most intense anxiety to do that which was just, and that which the law and public opinion would sanction in respect of such cases. I have not agreed on several occasions with the decisions which were come to; but it was not my office to decide. My business was to state all the facts I could in favour of a merciful consideration; and I believe that every gentleman who has held the office of Secretary of State has decided impartially in every case, without reference to the consideration, who was rich or who was poor. There must, however, be a difference between the rich and the poor, if you have a law, and if you enforce the execution of that law; because it is clear that in this, as in almost every other situation of life, the poor man is placed at a disadvantage. He cannot bring down a practised lawyer from London, and pay a fee of three hundred guineas; he cannot send two or three keen-scented solicitors to discover every particle of evidence that can be obtained. A poor man, therefore, stands before the tribunal in a different position from the rich—in a position which challenges the sympathy and merciful consideration of every man engaged in the administration of justice, and especially in the case of the penalty of death.—a punishment so dreadful, be unlike other punishments, and, still more unlike them, irrevocable. In this case the poor 274 man's position is still worse. It used to be far worse when the execution took place within three days of the conviction. Now, when it is extended to three weeks or a month after sentence, his case is charged with difficulty. An unknown man lies in gaol, and unless some one, actuated by a higher and better spirit, endeavours to rescue him from his doom, he passes to it, and the public know little about it, except from a newspaper paragraph or two from time to time of the progress of the dismal story. It is in the punishment of death that the evil lies. It is inseparable from that punishment that this great and terrible injustice is committed; and there can never be any remedy so long as that punishment remains. There may be more care—but I do not know that there can—and the Home Secretary may be appealed to in the matter; but there can be no remedy so long as the punishment remains. And with regard to the uncertainty of it—the hon. and learned Gentleman said that what was wanted was certainty of punishment. How can you have any certainty of punishment with the punishment of death? It is a remnant of the savagery and barbarism of old times, which has already perished before the enlightenment and indignation of the people as applied to every crime but that of murder; and whether you hang Townley or Wright, or any one else, your punishment is at war with the best and noblest sentiments of the noblest portion of your people. That warfare which you allow to remain year after year, will continue to be a warfare with the best sense of the Home Department and the best sense of our population. I am astonished—and I say now publicly what I said to the Home Secretary in private—I am astonished that there is a man to be found who has held the office for several years to sit down again after his address—for I have seen the agony of doubt which has seized the Minister who has had to decide in these cases—without stating that upon a philosophical consideration of the whole question, he has come to the conclusion, with the approval of his colleagues of the Cabinet, that capital punishments are unnecessary, and without stating that he is able to submit to the House a measure for its abolition. There has been no country in the world in which, for any length of time, capital punishment has been abolished in which there has been an increase of crime. Since that punishment has been abolished in this country for all other offences, crimes have, 275 on the whole, diminished, and the public have gained immensely; and I believe now, as much as I believe anything that I do not know for a fact, or as much as anything that is past, that the abolition of capital punishment in this country would not be accompanied by an increase of murder; but I believe it would tend to make life more sacred amongst all the people, and would cease to subject in the course of a year scores of thousands of your population to the most demoralising and frightful spectacle which it is possible to hold forth to civilized men.
§ SIR JOHN PAKINGTON
said, he wished to make a few observations on the measure proposed by the right hon. Baronet, and upon the case of Townley, which had excited so much public attention, the phases and circumstances of which he (Sir John Pakington) had followed with the utmost care and attention. He believed it would be very satisfactory to the public that this case had been brought forward in the House of Commons and been fairly and impartially discussed, and he must add that he did not think it could have been brought forward in a more satisfactory manner than by the introduction of the Bill which the right hon. Baronet had moved to bring in that evening. He thought that the right hon. Baronet had taken a course the most becoming his position, and that he had done no more than his duty in bringing forward the present measure. He would go further, and say he was of opinion that the right hon. Gentleman would have failed in his duty if he had not, upon the first opportunity afforded him, dealt with what he (Sir John Pakington) must call the bad and objectionable law under which Townley had just escaped the consequence of his great crime. The right hon. Baronet had only to choose one of two alternatives—either to repeal the law altogether or amend it. He (Sir John Pakington) thought there were obvious reasons why it would have been unwise to propose a total repeal of the law, and therefore he considered that the right hon. Gentleman had acted wisely in proposing to amend it. Concurring then in the intentions of the right hon. Gentleman, he was bound to say lie thought that the right hon. Baronet could not have made more wise or judicious provisions for the amendment of that objectionable law than those he proposed in his new Bill. The hon. and learned Member for Southwark (Mr. Locke) took an objection to the provision 276 respecting visiting justices, observing that they were not better than other justices, and were liable to the same infirmities. That was very likely; but if it were right to maintain the principle of the enactment of the law, some such power as that proposed must be given to some persons. The law itself enacted that the justices in conjunction with medical men were to exercise the power in question. Surely the hon. and learned Gentleman (Mr. Locke) would not say that the justices were to be selected, as heretofore, by the agent of the prisoner. Some mode of selection must be adopted in confiding this power into particular hands, and he confessed he could not see any better mode than that proposed of entrusting this power to the hands of the magistrates who were in the habit of visiting gaols. And as to the choice of the medical men, he was also of opinion that the right hon. Gentleman was right in leaving it to the visiting justices on their own responsibility. It appeared to him to be of little importance how the medical men were to be appointed, provided they were not selected by the agent of the prisoner. He must now allude to the obloquy to which the right hon. Gentleman was exposed in consequence of the part which he had felt it his duty to take in the case of Townley. It was no part of his (Sir John Pakington's) duty to pay compliments to the right hon. Baronet, but he would tell him frankly he very much doubted whether he would have been so severely attacked if it had not been for the distrust created in the public mind by, as he (Sir John Pakington) ventured to think, the mistaken conduct he pursued in the case of Jessie Maclachlan at Glasgow last year. He thought that those attacks would not have been made upon the right hon. Gentleman but for the serious error he had committed in the case to which he had referred. But, in regard to the case of Townley, he considered it would be an injustice to the right hon. Gentleman, of which he would not consent to be guilty, if he did not express in explicit terms his opinion that he did not deserve the blame that had been cast upon him. The chief attack to which the right hon. Baronet had been subjected was for having acted as he had done in relation to the certificate sent in to him from Derby. Technical objections had been taken against the certificate itself, as well as to the authority of the borough magistrates in the county gaol. The right hon. Gentleman treated with 277 very proper ridicule the difficulty suggested on account of the certificate having been signed on a Sunday. The other objection was of more weight, and turned on the formal question whether the magistrates of the borough of Derby have any authority in regard to the county gaol. But that, he submitted, was not the fair way to look at this question. The Act of Parliament was clear and definite in its provisions, and the certificate was a document in exact compliance with the statute. The proper way to look at the question was this— Would any reasonable or sensible man, in the position of the right hon. Baronet, venture to send Townley to execution in the face of that certificate? If the right hon. Gentleman had taken that course, he would indeed have incurred a grave and serious responsibility, from which any other man in his place would have shrunk. The Only course open to the right hon. Baronet, under the circumstances, was to obey the Act of Parliament, and that was the course which the right hon. Baronet had taken. Nor did he think that any blame could be cast upon the attorney for the defence for having availed himself of every means within his power to extricate his client from the fate that seemed to await him. Every person of common sense, however, must feel that Townley had been saved from execution by what he could not call anything better than a juggle or a trick. As to the man's insanity he believed there were not fifty men in England who did not think that when Townley committed the crime, and at that present moment, that he was as sane as any man could be whose state of mind was such as to permit him to commit so atrocious a crime. Up then to the period of the report of the four medical men who went to visit Townley at Bethlehem Hospital, it appeared to him (Sir John Pakington) that the right hon. Baronet had been most unfairly blamed, and that, under the very difficult and painful circumstances, he took the only course that was open to him. In what I am about to add, he was glad to have the sanction of the hon. and learned Member for Southwark (Mr. Locke); but he feared he should not express an opinion which was shared by the public generally. He felt bound to say that he thought that the right hon. Gentleman had committed a mistake in the ultimate reprieve which he granted to Townley. He confessed he could not see upon what principle Townley had been saved at last from execution. They had heard from the hon. Member for 278 Birmingham (Mr. Bright) a great deal of argument in opposition to the punishment of death. But that was not the question before them. Such was the law, and so long as it existed the Government were bound to see it carried out. The case of Townley was a case in which one of the most atrocious crimes on record, without one palliating circumstance, had been committed. Now, if ever a man were to be executed, Townley should have been the man; he was not, and he is not, insane; but his life had been saved by a mere juggle or a trick. And let him remind the House that when writing to the Derbyshire magistrates the right hon. Gentleman distinctly told them to recollect that Townley's sentence was only respited; it had not been commuted. As soon, however, as the right hon. Baronet was at liberty to order the execution of Townley, then the respite ceased, and the sentence of death was commuted to one of penal servitude for life. The right hon. Gentleman quoted a precedent for the course he had taken by referring to a case that had occurred two years before of a somewhat similar character; but he (Sir John Pakington) did not think that that was a fairway of treating so serious a question as the one under observation. The case of Townley ought to be decided on its own merits, in connection with all its circumstances. The shortness of time which had elapsed in the course of the proceedings ought to be borne in mind. Had there not been a special winter assize Townley would not have been tried until March. The right hon. Gentleman no doubt deserved credit for having lost no time in making those inquiries, and in sending a most competent tribunal to inquire into the sanity of Townley's mind at Bethlehem. They reported in favour of the sanity of the prisoner, and the Act really stated that when the sanity was established the punishment was to revive. He was struck by a quotation from Blackstone, made by the right hon. Baronet, as to the definition of insanity, and its effect as regarded the operation of the law. It was therein laid down that where insanity was proved execution must be stayed. No one can doubt the propriety of the rule; and it must necessarily be left a matter of discretion, under the circumstances, how far the punishment is to be revived. Seeing, however, that in this case the sanity of the prisoner was placed beyond a doubt, considering the shortness of time which had elapsed, and the atrocity of the crime, 279 he could not but think that justice should have been allowed to take its course. Whilst differing from the right hon. Baronet as to the propriety of commuting the punishment to which Townley was condemned, he felt bound to say that in the case of Wright the conduct of the right hon. Gentleman was characterized by a firmness and determination, under the most difficult and painful circumstances, which reflected upon him the highest credit. He could take no exception to the course pursued by the right hon. Gentleman in that case. The right hon. Baronet had a most painful duty to discharge, and was exposed to a degree of pressure which required the utmost firmness to withstand. The conduct and demeanour of the right hon. Baronet all through those proceedings were most creditable to him.
§ Motion agreed to.
§ Bill to amend the Act 3 and 4 Victoria, c. 54, for making further provision for the confinement and maintenance of Insane Prisoners, ordered to be brought in by Sir GEORGE GREY, Mr. BRUCE, and Mr. ATTORNEY GENERAL.
§ Bill presented, and read 1°. [Bill 4.]