HC Deb 15 February 1864 vol 173 cc567-94

Order for Second Reading read.

Motion made, and Question proposed, "That the Bill be now read the second time."—(Sir George Grey.)


said, it was not his intention to enter into the controversy which had arisen with respect to Townley's case, and which had been sufficiently discussed in the press and to some extent in that House. He was not present however when this measure was introduced, and he wished to take the opportunity of saying that, while there was much that was unsatisfactory to the country in the case, he was far from imputing blame to the right hon. Gentleman (Sir George Grey) for the course he had taken. He doubted, indeed, whether any Home Secretary, under similar circumstances, could have acted differently. The conflict of evidence with respect to Townley's state of mind made the case one of great difficulty. A verdict that appeared to be conclusive established his sanity at the time of his trial, but afterwards the evidence of medical men and others pointed to the conclusion that Townley had become insane. Two or three things, however, appeared to the public out of doors to be in consistent with fairness and impartiality. One was that the initiative was not taken after the trial by responsible persons, and another was the supposed compulsion upon the Secretary of State to remove the prisoner to an asylum on the certificate of any two justices and two physicians. And thirdly the public were dissatisfied, not from any thirst for Townley's blood, but because it did not seem fair to them that his sentence should by such means not only be respited, but commuted. For it practically amounted to a commutation of the sentence, because he agreed that it was impossible for the Secretary of State to bring Townley to execution after he had been removed to a lunatic asylum. But the Bill before the House did not provide an adequate remedy for such cases. The law was founded on two Acts of Parliament. The first was the 9th of Geo. IV., but it only applied to prisoners under sentence of imprisonment and transportation. Here the initiative was given to the Secretary of State. He was to direct the removal to an asylum in cases of insanity, and there was no intermediate process as in the next Act, the 3 & 4 Vict., under which Townley was removed. The case of persons under sentence of death was, he thought, advisedly omitted from the first-named Act. It ought to be kept separate, and dealt with in a different manner. Many persons had interested themselves in the state of Townley's mind while he was under sentence of capital punishment, but all the zeal, energy, and prejudice exhibited by these persons had disappeared as soon as the sentence was commuted. The new species of insanity, indeed, was never brought forward except when prisoners were sentenced to death, although if Townley was really believed to be irresponsible for his actions it was as great a cruelty to put him on the public works as to take his life. These persons, however, drew a distinction which might be useful to the Legislature in amending the law. It was monstrous that any two justices should intrude themselves into a gaol with any two doctors they might select, and then make out a certificate binding on the Secretary of State. That might be a light evil in the case of persons under sentence of imprisonment, but if prisoners under sentence of death were once removed to an asylum, the Secretary of State could not carry out the original sentence. It was, he repeated, impossible for the right hon. Gentleman to bring Townley from the asylum and put him to death. Parliament would guard itself sufficiently in the case of prisoners sentenced to transportation and imprisonment by giving the visiting justices the initiative. But in the case of a prisoner under sentence of death, there was an opportunity before trial and at the trial to inquire into the state of his mind. [Sir GEORGE GREY: If the objection is taken before the trial.] The verdict should, he thought, be conclusive as to the state of his mind up to the period of the verdict, and the inquiry should only refer to the state of his mind after the verdict and up to the period of his proposed execution. The question then arose, how the friends of such a prisoner would be able to bring a certificate under the notice of the Secretary of State? He suggested that the Bill should be left as it then stood in respect to persons under sentence of imprisonment or penal servitude, and be altered only in cases where the prisoner was condemned to death. The words of the clause were, "If any person shall appear to be insane;" but did not say to whom. He would suggest that the words should run, "If any person shall appear to the visiting justices to be insane." The visiting justices should represent the insanity to the Secretary of State, who ought thereupon to issue a commission, The inquiry need not be public, but it should be of a solemn and judicial character, and the proceedings should be published. The report of the commission as to the sanity of the prisoner should be binding on the Secretary of State, but that would by no means affect the Royal prerogative of pardon or commutation of sentence. It was casting an unwarrantable and unfair burden on the Secretary of State to leave the decision to his discretion after a fair and complete inquiry and judgment by competent persons. Much dissatisfaction would be felt if the Home Secretary allowed a man to be executed in spite of a certificate of his insanity. It would, therefore, be in the interest of the Secretary of State to adopt such an Amendment as he now recommended, because he did not propose to touch the prerogative of the Crown. Parliament ought, however, more carefully to define the power of the Home Secretary, not only for his sake, but for the sake of the public. Why should such a duty be thrown upon him under the statute? The right hon. Gentleman had had difficulties enough in recommending the exercise of the prerogative of the Crown, having not unfrequently of late brought himself into collision with public opinion, and caused great ill-feeling. In the existing state of things it had come to this:—If a man was respited and an inquiry commenced into his sanity or insanity, once that he had been removed to a lunatic asylum he was practically saved from execution. He (Mr. G. Hardy) took it to be the law that capital punishment was to be inflicted; and, if so, nothing should be done in any preliminary inquiry to prevent that punishment being carried out if they came to the conclusion that the man was in a sane state of mind at the time the excecution was to take place. The Secretary of State would have the power to appoint a commission, and he (Mr. G. Hardy) would be sorry to see the commission composed wholly of doctors. For when one took up the papers and read them through, it was clear there must be lay persons to decide where doctors differed. For in the first place they had a surgeon who decided when the prisoner was committed that he was sane, and made an entry in the prison book to that effect, and afterwards the same surgeon said that the man was mad, though he believed him to be then in the same state as he was in before, but that when he made the entry in the book the man was not legally insane. Then the Commissioners of Lunacy drew a distinction most dangerous to society, for they thought the man was of an unsound mind, but that he was in such a state that he ought to be responsible for his actions. Finally, they had a commission issued, composed of most eminent and experienced men, who seemed to have conducted their inquiry with a good sense which contrasted strongly with the previous mode of inquiry, and they came to the conclusion that he was not insane when they examined him. In the old times, when an inquiry was made it was always as to the motive, but now when they got the very strongest motive, jealousy, it was said the man was mad because he had been actuated to commit a crime by the most violent of passions. If the visiting justices represented to the Secretary of State that the man was insane, and ought not to be hanged in that state, then the Secretary of State ought to appoint a commission, an independent tribunal, who should publish openly what they had heard and the result at which they had arrived, and the Secretary of State, as far as his statutory capacity was concerned, should be bound by that decision; but if he chose afterwards to advise Her Majesty to take another course he should be responsible for that advice, as he was now. With respect to the statute, the Secretary of State, for his own sake and for the safety of the public, ought to be bound by the decision of the tribunal which he had called into existence. The question was one that would not often arise, and therefore there was leas reason for being in haste to decide as to the nature of the tribunal. Let there be a solemn recognized tribunal. The man having been pronounced sane by a jury and a pre-residing Judge, if a contrary conclusion was to be come to, it ought to be by a tribunal equally solemn and equally judicial; and, in that case, the right hon. Gentleman, who he believed conscientiously discharged his duty, would be relieved from a serious embarrassment, and the public would be satisfied with the decision which would be come to.


said, there were two modes of correcting an error in the law, one by a declaratory Act, the other by an enacting statute. In the present case, the latter had been adopted, and in his opinion unwisely. The ground upon which the measure had been introduced was this: —The right hon. Baronet, construing the statute of the 3 & 4 Vict, as absolutely imperative upon him, introduced the Bill for the purpose of freeing himself from that obligation. His (Mr. Macdonogh's) opinion was very clear that the statute was not imperative but permissive, and that a discretion was left to the right hon. Baronet. That view had been confirmed by several Acts of Parliament with reference to lunatics, in which the words "shall be lawful" had received the explanation for which he contended, and in which the Secretary of State was said to be "empowered" to do so and so. If that view of the case was right, what was the result? They were now introducing a piece of patchwork. One of the blemishes attributed to our English legislation was, that whenever a fault was found we attempted to patch it up, instead of proceeding upon broad principles and with due regard to reason. The result of passing this Bill would be to give the assent of Parliament to the construction put by the right hon. Baronet upon the words "it shall be lawful," so as to make them absolutely mandatory, and they would then fall into a series of absurdities, for wherever these words occurred in statutes in pari materiâ they must receive an imperative construction. He would suggest that the matter might be remedied by a declaratory statute of some ten lines to this effect:—"Whereas doubts have arisen as to the construction of the words 'it shall be lawful,' in the 3 & 4 Vict. c. 54, be it enacted that the words shall be held to be discretionary." That was the suggestion he had to make, and if the learned Attorney or Solicitor General was in the House he would see its force. He ventured to think that the Bill was wrong in principle, and that its effect would be to leave their legislation in a state of confusion.


said, that he agreed with many of the observations that had fallen from the hon. Member for Leominster (Mr. Hardy), but on the whole, he was prepared to support the Bill of the Government. Still, he thought that there were some points in the proposed measure which were susceptible of improvement. The Secretary of State, on being furnished with the certificates by the magistrates, possessed absolute discretion as to how he was to act. He would have been better pleased if, instead of leaving that discretion to the Secretary of State, the measure had proposed to have made some public investigation as to the alleged lunacy of a convict obligatory, so that in the face of the public the alleged lunacy should be tested either by a jury or by some properly constituted tribunal. He regretted that the Secretary for the Home Department had thought proper to confine the operation of the Bill to England alone. In a case of such public importance, there should be uniformity of legislation for the three portions of the United Kingdom; and yet, if the Bill passed in its then shape, the effect would be, that on that subject there would be one law for England, another for Scotland, and a third for Ireland. Was the House prepared to sanction such a course? By the Scotch law, the initiative in the case of prisoners supposed to be insane is taken by the sheriff, who is authorized to call in to his assistance two medical persons, and they forward to the Home Secretary their opinion of the insanity of a prisoner. The moment that opinion is given it is final and conclusive, and the very same mischief which the Bill was brought in to remedy in respect to England might still occur in the case of Scotland. The right hon. Baronet the Home Secretary said, that there had been a miscarriage of justice in a recent case. Was the House prepared, then, to leave the law in Scotland as it is until the same miscarriage of justice occurred there? It was proposed by the present Bill that the certificate of the visiting justices should be backed by duly registered physicians or surgeons; but in Scotland the certificate of the sheriff might be backed by an apothecary. If the English Act required amendment, so, he thought, did the Scotch Act in this respect. In Ireland the law was different from the law in England in regard to insane convicts, and applied only to persons under sentence of imprisonment. It was not applicable to persons under sentence of death, so that a prisoner there under sentence of death, becoming insane, must, if the Act were strictly carried out, be hanged, because no power was given to send him to a lunatic asylum, or else he must receive a free pardon. By the ingenuity of the Law Officers that difficulty might be got over, because the Lord Lieutenant of Ireland might commute the capital punishment to penal servitude; and then the convict, being under sentence of imprisonment, might be sent to a lunatic asylum. But that was not the way in which the law ought to stand, and when an alteration was made, the law in England, Scotland, and Ireland ought to be assimilated. He concurred with those who thought the words "it shall be lawful" in the English Act not imperative; but, at the same time, he considered that the Secretary of State was bound by the practice of the Home Office since 1840. The words in the Irish Act, however, were different, and were not imperative. He had not made these observations in any hostile or unfriendly spirit; on the contrary, he would support the second reading; but in Committee he would propose clauses to make the Bill applicable to the whole of the United Kingdom, or would place them in the hands of the right hon. Baronet if he preferred to propose them himself.


said, that he had conferred with many persons whose opinions were well entitled to consideration in respect to the Townley case, and they all admitted, when asked how they would have acted had they been in the position of the Home Secretary, that they must have done just what the right hon. Gentleman did. After all that occurred, it would have been contrary to the sentiment of the country to carry the capital sentence into effect. The question before the House was, whether the present Bill should be adopted? Every one thought that its provisions were unobjectionable, but some persons conceived that it did not go far enough. In his opinion, caution was a fault on the right side in drawing such a Bill, and he was prepared to support the measure. It had been suggested that a commission should be issued, composed of legal and medical men, to determine the question of the insanity of a prisoner. The result of such an arrangement would be that the obscurity which then enwrapped the subject would be as the noon-tide sun compared with the darkness and chaos which would then ensue. The medical man and the lawyer necessarily looked at the question of insanity in different lights. The doctor was bound to consider the welfare of the patient and the mode of curing him. The lawyer, on the other hand, was bound to consider the interests of the community at large and the safety of the public. It was most important, in his opinion, that in determining who was and who was not insane the legal opinion should not be subordinated to the medical. Years ago when the excesses of monomania had risen to a very great height, nothing but determination on the part of the Judges prevented the most serious consequences that threatened to ensue. The report clearly showed that, unless the opinions there laid down by medical men were closely watched, they would be attended with the most dangerous consequences. For example, it was alleged that unconsciousness of guilt was a symptom of insanity. No doubt it might be one of the symptoms, but it was too much to say broadly that the criminal who was contrite and repentant was sane and deserving of the full penalty of the law, while another who justified his misdeeds and would not express any compunction for them should be deemed insane and allowed to escape with impunity. Again, if the tribunal were to be composed of medical men and lawyers, the question would arise—was the decision to rest with the majority? On the whole he supported the Bill, as concentrating the responsibility of the Secretary of State. He was rather puzzled to comprehend how certain letters had crept into the report. There was one from a lady who knew nothing of the case or the prisoner, except what she gathered from the newspapers, but who had been moved to give the Secretary of State some advice on the subject. She was a well-meaning and, no doubt, educated person, for she quoted the case of Lucy Ashton, in the Bride of Lammermoor, as bearing on the Townley affair. The Parliamentary papers were voluminous enough already, but if such letters as that were to be published, there was no saying where they would stop. The lady herself expressed a hope that she might hear no more of her communication; but that judicious wish had been disregarded. One person who had some reason to complain of the publication of that epistle was the Judge who tried the case. The lady suggested that the Judge was, perhaps, prevented by some deficiencies in his own mind from discriminating justly as to a case of insanity, and had been influenced by "the maxim only made for dastards," that, if he did not take care, he might lay down principles adverse to himself. The Judge was, fortunately, a man of so much good sense and good humour that he would doubtless bear the castigation thus inflicted on him with perfect resignation. Such letters, however, ought certainly not to be published in official papers.


said, he should be glad to know what provision there was in the Bill, for such a case as that which had suggested the measure, where a prisoner, having been certified to be insane, was removed to an asylum, and afterwards pronounced to be sane. He did not think that the Bill met that case.


said, he hoped that the right hon. Gentleman would give due weight to the objections which had been raised by the hon. and learned Member for Leominster, the principal of which was that the Bill did not draw a distinction between persons imprisoned for minor offences and persons sentenced to death or penal servitude. That was a branch of the subject which ought to be seriously considered. By the Bill, the visiting justices and two medical men were to deal with all cases, whatever the sentence might be and so far as regarded sentences of short duration, it was an improvement on the existing law; but with respect to cases similar to the Townley case, it was hardly any improvement at all. Supposing the Bill had been law at the time Townley was convicted, what would have been the result? If it had appeared to two visiting justices and two medical men that Townley was insane, they would have given a certificate to that effect to the right hon. Gentleman. Why, what was there to have prevented the visiting justices being put in motion under the Bill if it had been then law? The surgeon of the gaol might have set them in motion, and they could not refuse to make the investigation. Suppose they had called in Dr. Winslow or any other medical man, they would have had his evidence and that of the surgeon of the gaol that Townley was insane, and would have had to send up a certificate to that effect, and then the right hon. Gentleman would have been placed in exactly the same position as he was under the existing law, ex- cept that the certificate would have had greater weight, being signed by two visiting justices, instead of two justices who might have been picked up here and there in the street. There ought to be a distinction in these cases. When a man was working out an ordinary punishment he had no adequate motive to affect lunacy, and there was no scope for the energies of those philanthropists who were always ready to save a murderer from the gallows. When, however, the sentence was of a very grave and heavy nature, such as penal servitude for a long period or death, there was a strong temptation to the prisoner to feign insanity, and to his friends to urge that plea in his favour. Hence greater precautions were required in the latter than in the former case to prevent a miscarriage of justice. He therefore trusted the right hon. Gentleman would draw a distinction between the cases to which he had referred before the Bill went into Committee. He concurred with the hon. Member for Leominster, that where a plea of insanity had been set up at the trial, the solemn verdict of a jury ought not to be overruled by the opinions of visiting or any other justices. In the case of Townley the plea of insanity had been put in, and the Judge and jury decided that Townley was sane at the time of the murder. Supposing that the certificate of two justices and two medical men had followed that verdict, would it have been satisfactory if the verdict had been set aside in that way? In all the graver cases the verdict of a jury should stand, unless some equally solemn tribunal should decide that the particular party was of unsound mind. The only case in which a new investigation should be permitted was when the prisoner became insane after the passing of the sentence. By the Bill as it stood a discretionary power was given to the Secretary of State to remove a prisoner certified to be insane, to an asylum; but what Secretary of State would venture to hang a man in the face of such a certificate? He quite agreed that the right hon. Gentleman the Home Secretary could have taken no other course than he did in Townley's case, and therefore he thought that all the obloquy which had been cast upon him was entirely undeserved. At the same time, he thought the Bill before the House would not have the effect which was intended—that of placing the law upon a satisfactory footing.


said, that passing by the legal aspect of the question he wishe to observe that some safeguard ought to be given to the visiting justices, who would then be glad to take upon themselves the responsibility, which, if they had not that safeguard, many would shirk. If the visiting justices thought that the state of mind of a prisoner after conviction was such that further inquiry was necessary, they would report to the Secretary of State who, after weighing the whole case, would commission proper legal and medical authority to inquire into the matter. He believed that no miscarriage of justice could happen if the visiting justices were intrusted with the safeguard which the Member for Leominster suggested.


said, that the Secretary for the Home Department must, no doubt, have been considerably perplexed by the difficulties by which the Townley case was beset, but he had the satisfaction of knowing that ample testimony had been borne in that House to the conscientious manner in which he had discharged the duties of his office in connection with that case. He was sorry, however, to find that the proceedings in the matter seemed to have given rise to the feeling out of doors, that there was one law for the rich and another for the poor, a feeling for which there was not the slightest foundation; for, as one conversant with legal proceedings, he could safely say that if tenderness was ever shown in the administration of the law it was rather in favour of the poor man, and if rigid justice was exacted it was against the rich. The same principle, he believed, prevailed at the Home Office as in the courts of justice. The existing law not only placed the Secretary of State in great difficulty, but tended to throw suspicion on the pure administration of the law. If it was desirable to relieve the Secretary of State from the painful position in which he was placed in such cases as that of Townley, it was no less desirable that justice should be relieved from the scandal of having the solemn verdict of a jury reversed by a secret tribunal of no authority, the evidence taken before which was not published. These were the two evils for which it was sought to provide a remedy, and having looked at the Bill under discussion, he had, quite independently of the hon. Member for Leominster, come to precisely the same conclusion as that at which he had arrived. It appeared to him that the Secretary of State would be left in precisely the same position after the passing of the Bill as that in which he was before, with the exception that the Act would give him a discretion which it was then supposed to be a matter of doubt whether he did or did not possess. For his own part, he was disposed to concur in the opinion that the words of the statute were not mandatory; but be that as it might, if any one in authority supposed the matter was doubtful, and that the Act was imperative, the Secretary of State might well be pardoned for acting on that construction. But the proposed remedy was utterly insufficient. What, he would ask, would be the position of the Secretary of State when the Bill under discussion became the law of the land? He must act on a certificate from the visiting justices without any means of ascertaining whether that certificate was correct or not; and when further inquiry took place, as in the case of Townley, he would have precisely the same difficulties to contend with as then existed. But if the Bill would give the Secretary of State no relief, would its operation be satisfactory to the public? Would they like to see the verdict of a jury solemnly given, and three or four days after reversed by means of a certificate given by two justices and two medical men? He thought not, and he was therefore of opinion with the hon. Member for Leominster (Mr. G. Hardy), that there should be some more open mode of proceeding before the sentence should be even respited. Various suggestions had been made, and one was that a kind of congress of lawyers and doctors should be called; but that, he agreed, would be anything but a satisfactory tribunal. Who were to be the Commissioners? That was a great difficulty. His suggestion was, that the old constitutional tribunal of a jury should be adopted. Twelve men in the jury-box were the persons who could best decide between conflicting evidence, and not only would they be likely to decide rightly, but their decision would give a satisfaction to their fellow-citizens which could be given by that of no other tribunal. In making that suggestion he was not proposing anything which would be regarded in the light of an innovation. There were instances which bore a close analogy to the matter under discussion. Sir Matthew Hale, for instance, said, touching the plea of insanity— And if such person after his plea and before his trial becomes non-sane he shall not be tried; or if after judgment, his execution shall be spared. He added— But because there may be great fraud in this matter, yet if the crime be notorious, as treason or murder, the Judge before such respite of trial or judgment may do well to empannel a jury to inquire, ex officio, touching such insanity, and whether it be real or counterfeit. The justices of Derbyshire, he might add, said, in writing to the Secretary for the Home Department— In this and other like cases the prisoner has been tried by Judge and jury, acting under the sanction of an oath, aided by the counsel employed on both sides, witnesses examined and cross-examined, all in open court. We think that respect for trial by jury in criminal cases and confidence in the pure administration of justice will be seriously weakened if a verdict and sentence, following such a fair and solemn public trial, may in this or any other criminal case he interfered with by any inquiry less public and complete than the trial itself. We, therefore, most earnestly urge on you the propriety and necessity of abstaining from further acting upon this private and ex parte information, and of causing a full inquiry to be made into Townley's state of mind and the inquiry before referred to by some responsible authority, and in as public, fair, and complete a manner as criminal trials are conducted. These justices had great experience in the administration of justice, and knew the feelings of their fellow-citizens, and therefore their opinions were entitled to respect. It was only in the case of prisoners sentenced to death that such a mode of investigation would be necessary. In the case of prisoners who had been sentenced to transportation or imprisonment, and who afterwards became insane, it was rather the place of confinement than the sentence which was altered; but in the case of a person condemned to death there was an alteration of the nature of the sentence. The provisions made for the case of prisoners under sentence of imprisonment were totally inapplicable to persons under sentence of death, and originally they were not applied to the case of such persons. In the case of prisoners who were sentenced to death the conflict between the verdict of the jury and the subsequent inquiry necessarily arose almost immediately, for the execution of such prisoners took place in two or three weeks. It was plain, therefore, that one inquiry was brought, as it were, face to face with the other; and it never would or could be satisfactory to the public mind, that the solemn decision of a judge and jury should virtually, if not technically, be overborne, almost as soon as it was pronounced, by a ' secret inquiry before justices.


said, he had been a good deal concerned in the unfortunate matter of Townley, and concurred in the opinions which had been so generally expressed, that under the circumstances his right hon. Friend the Secretary of State could not have acted otherwise than he did with regard to the case, and that he had done quite right in taking the first opportunity of proposing an alteration of the law which had, in that instance, been attended with such unfortunate results. Although he admitted that there was some force in the observations which had been made by the hon. Member for Northamptonshire, and the noble Lord the Member for Middlesex (Viscount Enfield), he thought that some security against the evils which they feared would be provided by its being required that the certificate should be signed by two visiting instead of by any two justices. It was necessary that there should be some power of staying execution in the case of persons who became insane immediately before the time fixed for their execution; that, if done at all, must be done upon the representation of some one, and the persons at whose instance the Home Secretary could most properly act were those who had the superintendence of the gaol in which the prisoner was confined. As he had signed several of the memorials which had been presented to the Home Secretary, he might be allowed to say that the justices of Derbyshire were decidedly of opinion that an entirely different system, which was not at all alluded to in the Bill before the House, ought to be established for the revision of these cases. That, however, was a separate matter, and in his opinion the right hon. Baronet was right in first dealing with the manifest defects of the existing law. It was desirable that when a Judge certified that further inquiry ought to be made into the state of mind of a prisoner, some tribunal, concerning the competence of which there could be no doubt whatever, and the proceedings of which should be public, should be constituted to decide the question. Such was the opinion of all the magistrates of the county of Derby with whom he had spoken on the subject. He hoped that when the right hon. Baronet rose to reply, he would explain the meaning of the latter part of the second clause, and tell the House whether it was intended to provide that in no case in which a prisoner had been reprieved should the sentence of death be carried into execution. He, for one, certainly thought that it could not be carried out in Townley's case after the inquiries which had taken place.


said, he was anxious to explain that he had never recommended the adoption of the scheme of a congress of doctors and lawyers. On the contrary, he had endeavoured to give some reasons why such a Congress could produce no satisfactory result. He wished also to call the attention of the House to a question which had excited considerable interest in the medical profession. The certificate in Townley's case was signed by a gentleman named Harwood, who was not a practitioner registered under the Medical Act. A doubt having occurred to the right hon. Baronet the Home Secretary whether, under those circumstances, the certificate was valid, he had consulted the Lord Chancellor, who had given it as his opinion that, although Mr. Harwood was not registered under the Medical Act, the certificate signed by him was perfectly good. Now, it so happened that the 27th section of the Medical Act contemplated the very case, and it enacted that— No certificate required by an Act now in force, or that may hereafter be passed, from any physician, surgeon, licentiate in medicine or surgery, or other medical practitioner, shall be valid unless the person signing the same be registered under this Act. There was clearly a conflict between the opinion of the Lord Chancellor and the words of that section, and he should like to hear what the right hon. Baronet thought upon the subject. The proper time to discuss the details of the Bill would be when it got into Committee. All he could say upon the second reading was that a change of the law was undoubtedly necessary, and, therefore, they were bound to support a measure which was brought forward by the Government for the purpose of remedying notorious and undoubted evils. He objected to the joint Commission composed of physicians and lawyers, because he thought that the two classes of men would, to a certain extent, act at cross purposes. The legal and medical ideas of insanity were quite different. Physicians would examine a man's sanity with reference to the existence of disease and with a view to medical treatment; while the only question which would present itself to the mind of Judges or lawyers would be, was his state of mind such that he was responsible for his actions? A man might have some- thing morbid in the recesses of his brain, and still be sane for practical purposes, and amenable to criminal law. A man, on the contrary, who even after sentence fell into a state in which he became unaccountable for his actions, was justly exempted from punishment, being, in the words of a great authority, "sufficiently punished by the insanity with which he was visited by Providence." The only constitutional method of testing whether a man had become insane after his conviction was, in his opinion, trial by jury. But whether the fact were established by the decision of a jury or of a commission —whether the question of the prisoner's sanity arose before or after conviction— medical men ought to appear only as experts, and not as judges. The great defect of the present practice was, that medical men appeared not as witnesses, but as advocates. If called for the prisoner, their object, disguise it as they might, was really "to get him off." The question of sanity, if raised at all, ought to be treated by parties having no interest in the case other than the elucidation of truth; and he thought it might be worth considering whether the Crown ought not to appoint professional gentlemen of high standing, who would deliver their opinions officially —of course, receiving a proper remuneration.


said, that whatever might be the tribunal which the House might think fit to constitute, the difficulty in a great measure arose, both as the law stood at present and as it was proposed to be left by this Bill, from the circumstance that the decision of that tribunal might conflict with that which had been pronounced by the jury. He thought it highly desirable to prevent any such conflict of opinion; and that result might easily be achieved if the inquiry of the commission were limited to the state of mind of the prisoner after his conviction, taking it for granted that his sanity at the time the act was committed and at the time of the trial had been duly established.


said, that though the Bill would be ample in all cases short of a capital conviction, he was convinced that the single clause to which the assent of the House was asked would neither extricate the Home Secretary from his difficulty, in cases where a sentence of death had been passed, nor would it satisfy the public mind. He felt sure that a Court or commission of inquiry, locally consti- tuted, as the Bill proposed, would never give satisfaction, as the members of it, whether magistrates or doctors, would he influenced, or exposed to the suspicion of being influenced, by prejudices or by the solicitations of friends. He would therefore urge upon the right hon. Baronet to give that circumstance his consideration, and to endeavour to frame a clause upon a system which would admit of a proper investigation being made in cases where insanity had supervened upon capital conviction. There was another subject to which he wished to allude. The eighth section of the 23 & 24 Vict, gave the Secretary of State, in the cases of ordinary prisoners, the opportunity of discharging those prisoners after the expiration of their sentence, to the intent "that they should be sent to lunatic asylums." This seemed to him almost to contain a contradiction in terms, because those persons remaining insane, to use the term discharge, implied a contradiction. It appeared to him that they should be removed to their legal settlement, the counties from whence they came; and a few words inserted in the clause would meet that object, and the country would be saved the enormous expense of keeping, for an indefinite time, a great number of persons, no longer criminal, in the confinement provided for criminal lunatics.


said, they were called upon to amend the law in relation to criminal lunatics, and before they proceeded in the execution of that task it would be well to consider the course of legislation and the state of the law as it then existed. If the common law had been left untouched to its own unaided operation, he believed they should have avoided many of the evils and mischiefs of which they now complained. By the common law no man could be found guilty of an offence when it appeared that he was a lunatic at the time of the commission of that offence. If put upon his trial, and it appeared that he was then insane, the trial was at once stopped, and proceedings were adopted which allowed an opportunity for further and ultimate inquiry. The common law in such cases was assisted and carried into practical effect by the 39 & 40 Geo. III., by which, when a man was put upon his trial and found insane, a verdict of acquittal was to be pronounced, but power was given to the Crown to keep the lunatic in such custody as might be thought expedient during the pleasure of the Sovereign. If it were sug- gested that insanity existed at the time of the trial, an appeal must be made to the jury; and if the jury found the prisoner insane then a verdict was recorded of insanity, and no verdict was pronounced with regard to the commission of the offence or the guilt or innocence of the prisoner, in whose case proceedings were afterwards taken at the pleasure of the Crown, according to the exigencies of the case. The law continued in that state until the 56 Geo. III., passed in the year 1816. The law had already provided for cases of insanity at the time of the offence, and at the time of the trial, but no provision, at least no express provision, had been made otherwise than by the common law for insanity supervening after the trial and before the execution of the sentence. Accordingly, by the 56 Geo. III., and afterwards by the 9 Geo. IV., it was enacted that where the prisoner convicted of any offence should appear to have become insane after the conviction, and before the carrying out of the sentence, then an inquiry was to be made by the justices, and upon the report of the justices to the Secretary of State that the prisoner had become insane, the Secretary of State had to deal with the case, and send him to a lunatic asylum, with the result that if he recovered he might be remitted to custody and the sentence carried out; or he might be pardoned and liberated. But throughout the whole of these Acts of Parliament no attempt was made, and no suggestion that he was aware of was offered in either House of Parliament, that it was expedient to empower those occasional and limited tribunals to deal either with cases of capital conviction, followed by sentence of death, or with cases in which insanity was alleged to have existed, at the commission of the offence, or at the time of the trial. But in 1840 the Act was passed which they were called upon to amend, and for the first time the Legislature assented to an extraordinary provision, the effect of which, incredible as it might appear, was to enable any two justices, with the aid of two medical men, by a decision of their own, by a proceeding conducted in secret, without the administration of an oath, without an opportunity being given to the prosecutor or the Crown to cross-examine the witnesses, or to contradict or explain the evidence, to set aside and nullify the verdict of a jury, the judgment of the Judge, and even the decision of the Secretary of State himself.

It was necessary, in the next place, to consider what the Act before them provided. They had heard something of late in that House about special pleading; but if the most astute special pleader had been instructed to draw a statute calculated to create litigation, doubt, error, and confusion without end, he could not have better performed his task than in framing the statute after the model of 1840. That statute was full of errors, and some of those errors were not corrected by the Bill under consideration. He had pointed out that under the Act of 39 & 40 Geo. IV., and the subsequent statutes passed in that reign, no power was given either to justices of the peace or to medical men, by any secret process whatever, to interfere with the verdict of a Judge and jury. It was the Act of 1840 which conferred jurisdiction on two magistrates and two medical men, and constituted a secret and unseen tribunal. That great and fundamental error was continued in the proposed measure. Whatever might be the right construction of the present Act, whether it rendered it imperative or only permissive on the part of the Secretary of State to remove the prisoner to a lunatic asylum, the words providing for what was to be done afterwards were clear and unambiguous. Then it was made compulsory on the Secretary of State, and on the keepers of the asylum, that the prisoner, once removed there, should remain in the asylum until a medical certificate was obtained, that he had become sane again—that is, had recovered his soundness of mind. What was the effect of that as applied to Townley's case? Having once directed Townley to be transferred to the lunatic asylum, the Secretary of State had no legal power to send him back to prison, except upon a certificate such as had not been, and as under the circumstances could not be, given. The certificate testified that he was now sane, not that he had "become sane;" for to "become sane" obviously implied that he had previously been insane. He did not blame the right hon. Gentleman for the course lie had pursued in that case, although he believed that if the right hon. Gentleman, with his great legal knowledge and ability, had been guided by his own unaided and unbiassed judgment, he would have concluded that the words of the Act did not make it imperative on him to transfer Townley to a lunatic asylum. He had, however, so transferred him, acting upon the precedents and traditions of the Home Office; and, having done that, the right hon. Gentleman had again no other alternative but to send the prisoner back to his former custody upon a medical certificate, not that he had recovered his sanity—for he could not recover what he had not lost—but that he was sane, which was not what the Act contemplated. Now, the Bill before the House provided no remedy for the great and most important error in the Act of 1840. It only proposed to leave it discretionary with, instead of making it compulsory upon, the Secretary of State to act upon the original certificate of two magistrates and two medical men. He believed that capital cases must have crept into the existing Act entirely per incuriam, for that Act for the first time gave jurisdiction to a secret tribunal to interfere with the verdict of a jury. If they were to exclude capital cases from the operation of the Act, and to limit the discretionary power vested in the Secretary of State to cases of felony and minor offences, no great mischief would ensue should a prisoner happen to be certified to be insane when he was really sane. Either the right hon. Gentleman and every future Secretary of State would, in capital cases, determine whether or not a prisoner was insane, in which event the whole machinery of the Bill would be superfluous and useless; or he and they would adopt the certificate, setting aside the verdict of a jury, the judgment of a Judge, and perhaps the decision, as in the Townley case, of persons competent to decide and actually deciding that the prisoner was not suffering from any species of insanity which absolved him from responsibility for his acts. The proper course was to exclude capital cases altogether from the Bill, as was done in all the Acts preceding the statute of 1840.

With respect to the case of Townley, he would make a few remarks, and he did so not for the purpose of throwing the slightest reflection on the right hon. Baronet, or upon any of the parties concerned, but with the view of showing, that so long as the law allowed the Secretary of State a power of supervision—under the pretext (and he said that without wishing to give offence) of exercising the Royal prerogative of mercy—so long would the law be ill-administered, unsatisfactorily executed, and be exercised in a manner repugnant to the principles of the constitution. What had occurred in the case of Townley? A heinous murder was committed, the accused was put upon his trial before a very competent and intelligent jury, and before a Judge whom all agreed in praising for his great knowledge of the law and for his humanity. After a long and solemn trial the jury pronounced a verdict of guilty, the Judge was satisfied with that verdict, and the prisoner was sentenced to death; but in consequence of a communication from the learned Judge, the right hon. Baronet sent down the Lunacy Commissioners to inquire into the prisoner's sanity. But here he (Sir FitzRoy Kelly) would insist that no distinction could be satisfactorily drawn as to the insanity which should absolve, or the sanity which should condemn, a prisoner, except before a Judge and jury. The Report of the Commissioners, disfigured by a great deal of verbiage, which he regretted to see in it, was, in substance, that the prisoner was sane and ought to be held responsible for his acts. The Lunacy Commissioners saw no reason why the sentence should not be executed, and the right hon. Gentleman, agreeing with the Judge, with the jury, and with the Lunacy Commissioners, expressly said that he was not disposed to interfere. Then came the certificate, and the right hon. Gentleman, without inquiring as to who set the proceedings in motion which led to the prisoner's certificate of insanity, without inquiring whether it was the prisoner himself or his attorney who named and feed the medical men who signed the certificate, made himself the mere minister of that secret and unconstitutional tribunal, and at once sent his warrant to remove the prisoner to an asylum. The right hon. Baronet told the House, that by the force of precedent and the usage of the Home Office, a prisoner once sent to a lunatic asylum under warrant— no matter how procured—could not afterwards be executed. He urged this upon the House, not for the purpose of imputing a shadow of blame to the Secretary of State, but of showing the unconstitutional and mischievous character of the Home Office jurisdiction. He trusted that jurisdiction would soon be put an end to, and with that object he should shortly ask leave to introduce a measure, by which the great question of life or death should be referred to the true, constitutional, and legal tribunal —a Judge and jury. Throughout the suggestions which had fallen from hon. Members in the course of the discussion, that appeal to a Judge and jury was pointed at. In order to avoid the absurdity of acting on the certificate sent up from the country, the right hon. Gentleman was obliged to send four medical men to examine Townley in the asylum, and they reported not that the prisoner had become sane, which was what the Act of Parliament required, but that Townley was then sane. That, to his mind, was proof conclusive that the Act never contemplated conferring such powers on two justices, and that a discretion was left to the Secretary of State in the matter. The Bill before them repeated the original vice in the former Act, for under it two visiting justices, with any two medical men they might select, would have the power, in a case of life and death, of setting aside the verdict of a jury. He should object to that clause, and he trusted that when the House went into Committee the provisions of his own measure would be before the Committee. It would then be for the House to say, whether the duty of deciding in such cases should rest with the Secretary of State, or whether it should be decided by a Judge and jury, whose verdict would he conclusive on all such questions. Until the whole system of capital punishments was entirely abolished, they would not be able to get a complete remedy. Until the time should come—and he trusted it might soon come—when capital punishments would be altogether abolished, and when they might impose on criminals the next severest punishment — namely, an effective condemnation for life—these unseemly questions must arise. Till then it was their duty to look at the statute hook and consider how best they could provide for justice being done. But he trusted that they would not, by passing the Bill in its then shape, perpetuate the fundamental error which had led to all the mischief— the error of including prisoners under sentence of death in a measure relating to cases of ordinary felony and misdemeanor, and which had led to that popular dissatisfaction which, with some exaggeration and much injustice, had been thrown upon the right hon. Baronet.


said, he wished to make only one remark, that all such cases as they were discussing were provided for by the New York code, which required cases of lunacy, occurring after conviction, to be tried by a Judge and jury.


observed, that he could bear testimony to the anxiety always manifested by the right hon. Gentleman at the head of the Home Office, to perform his duties in all such cases with fairness and impartiality. But during the discussion of the celebrated case of Townley, another case of murder had occurred, to which public attention had been directed, and which, by its different conclusion, had given rise to the impression that there was one law for the rich and another for the poor. The second murder was one of a very mild character; and, looking to those crimes which had escaped capital punishment, it might he considered that if the wretched man Wright had had anyone to advise him to plead not guilty, or to have obtained the postponement of the trial, he would not have suffered death. It should be understood that there was only one law for the rich and the poor, but he was satisfied that the working classes throughout the country entertained a strong impression that this poor man—who committed the murder on a Sunday, in a state of semi-intoxication, and possibly in the heat of passion, when provoked by a violent, exasperating woman, who, when apprehended the following morning, was so penitent that he confessed his crime, and who, when brought to trial on the Wednesday, persisted in his plea against the advice of every one in the Court, the trial following so closely the commission of the act that the first impression had not left him—would not have been executed if he had been well advised. There were extenuating circumstances in that case, and it was not surprising that when this man was hung, while another, a rich man, who deliberately planned and carried into effect the coldest-blooded murder that was ever committed, escaped, that amongst the unthinking classes there should be an impression that the rich man was more favoured than the poor. He should be unwilling to make medical men the sole judges in cases of insanity. He happened to be High Sheriff of London and Middlesex, when several important trials came before the Court, including the Palmer case, in which the medical evidence occupied fourteen days. The right hon. Gentleman had suggested that such questions should be left to a medical tribunal, but experience showed them that any amount of medical evidence was to be procured on either side. If it were necessary to have the opinions of medical men as to the soundness of a prisoner's mind, they ought to be submitted to a jury under the direction of a Judge, who might be able to distinguish between the niceties arising upon the question; and independent jurymen should be called on to say "ay" or "no" upon the point. Upon the decision of such a tribunal only would the country be satisfied whether the prisoner was responsible or not. It was argued that the difficulty in carrying out any suggestion of the kind was, that a man could not be twice placed in peril of his life for one offence; but that would not be the case, for the man's life was already forfeited before the question of sanity would be tried. With respect to the question raised by another hon. Gentleman, his experience as a public man led him to believe that it would be a great calamity if when a life had been taken by a murderer, his life should not be required.


Before I notice the remarks that have been made in debate, I must express my thanks, not only for the fairness with which this Bill has been discussed, but also for the justice, candour, and, I will add, generosity, with which my conduct has been regarded in the case out of which the necessity for this Bill arose. I think it undesirable, on this occasion, to discuss the question of capital punishment, or to go into the ca3e to which the hon. Alderman has referred. I will only just say that in what he has said he has appeared to cast a grave imputation on a learned Judge by complaining that the trial was not postponed. If that learned Judge, with all the facts before him, had thought there would have been the slightest injustice to the prisoner in proceeding, he would have postponed the trial.


I did not intend to cast any imputation on the learned Judge. What I said was, that an impression was created out of doors that injustice had been done.


I hope the hon. Gentleman does not share that impression. [Mr. ALDERMAN ROSE: Not at all.] With respect to the various suggestions that have been made, I should be sorry to express a very decided opinion upon them till the Bill is in Committee, though they have all been considered by us. The main suggestion made by the hon. Member for Leominster (Mr. Hardy) is this, that capital cases which were brought within the provisions of the law for the first time by 3 & 4 Vict. should no longer be subject to the same rule as other cases. But I must remind the House that the 3 & 4 Vict, did not merely include capital cases, and that without consideration, but it included, clearly and deliberately, the case of every criminal, not only the highest, but the lowest—all cases, in fact, except of prisoners confined on civil process. It also included cases of prisoners charged with an offence who have never been put upon their trial, but become insane before the time of their trial. I thought there were good reasons for including every class of prisoners in the same provisions, the effect of which would be to remove them from prison to an asylum where they might be not only in a place of safety, but where, with a view to their recovery, they might be properly cared for. The principal object of the Act was to insure the removal of pauper lunatics and prisoners from the workhouse on the one hand, and the prison on the other, to asylums with a view to their proper treatment. It has been said that there ought not to be any certificate from either visiting justices or medical men, as the effect of such certificate was to reverse the solemn verdict of a jury, which ought not to be done except upon an inquiry equally public and equally solemn.

But the real question is not whether the verdict of the jury is right. The verdict only decides that at the time of the commission of the offence the prisoner was of sound mind. In the case of Townley there were five months between the time the offence was committed and the trial. The trial took place in December, and the offence was committed in July. There was no question before the jury as to the state of Townley's mind at the time of the trial; the question was, whether he was sane when he committed the offence? The evidence adduced did not profess to go to this extent, that the prisoner was insane at the time the crime was committed; the witnesses merely spoke of the prisoner's state of mind at the time they gave their evidence; and the learned Judge subsequently called attention in a marked way to that evidence, as showing that the prisoner might have become insane since the commission of the offence. In the case of Clarke, tried at Newcastle two years ago, before Mr. Justice Willes, the prisoner was convicted, and rightly convicted in the Judge's opinion, having been of sound mind at the time he committed the crime; but doubts arose in the Judge's mind as to the actual state of Clarke's mind at the time he was being tried. The Judge, in summing up the evidence to the jury, told them however insane the prisoner may have been at the time of the trial, the jury had no right to acquit him on the grounds of insanity unless he was insane when the crime was committed. Therefore, the investigation as to the insanity of the prisoner at the time of, or subsequently to, the trial does not at all involve the assumption that the verdict is wrong or overrides the verdict. If the hon. Gentleman takes the trouble to read my letter to the Lunacy Commissioners, he will find that I excluded from the scope of the investigation any inquiry as to the state of Townley's mind at the time of the trial, and limited it to the question raised by the Judge, whether he had since become insane? Any inquiry that takes place subsequent to the verdict is with that view. It is not a reversal of the verdict, therefore, but, according to the common law of England, has the effect of interposing between the judgment and the execution. It has been suggested that the visiting justices in capital cases should not sign a certificate, having called in medical men to make an inquiry, but that they should write to the Secretary of State to inform him that they believe the prisoner to be insane, and that some public inquiry ought to take place. In introducing this Bill I explained the reasons why it was thought better the visiting justices should call in two medical men to make an inquiry, and obtain their certificate before any subsequent steps are taken. It is an undoubted fact that there is a great anxiety on the part of many persons throughout the country to rescue a man from capital punishment, and great exertions are made for that purpose. No doubt a very great pressure would be put upon the visiting justices if they were authorized, without going through the form of an inquiry, or without any medical advice, to write to the Secretary of State suggesting that the prisoner was insane; and if that was sanctioned by law, and the Secretary of State authorized to make an inquiry, there is no case in which he would not be bound to institute such inquiry, as the pressure would be irresistible. We therefore thought it better there should be some solemn and deliberate act on the part of the visiting justices and medical men previous to setting the Secretary of Stale in motion. The hon. Member for Northamptonshire (Mr. Hunt), would not allow any prisoner to be considered insane without a solemn inquiry before Judge and jury. My objection to such an inquiry is that it would take a long time, and I agree with the hon. Gentleman the Member for Leominster, that this would interfere with the administration of justice. If this inquiry is to be final, I quite admit it ought not to be couducted exclusively by medical men; but the mode proposed by the hon. Gentleman might not lead to a more satisfactory result than the inquiry by the Lunacy Commission in this case, which was conducted by two laymen and one medical man, while the subsequent inquiry by four medical men was much more conclusive. If there was to be a public inquiry, the only course to take would be, where there was primâ facie evidence of insanity, to respite the prisoner, and then before a Judge and jury to carry on the inquiry. But then it should be borne in mind that great delay would be inevitable, and all the consequences of delay must follow. Taking all these circumstances into account, it was fully considered by the Lord Chancellor and myself, that it would be better, on the whole, to leave all the increased responsibility upon the Secretary of State, as to whether he would be justified in interfering to prevent the execution of the sentence or allowing it to take place, and to leave also to him to determine by whom any further inquiry should be made. At the same time, I should be better pleased to leave this point for further consideration in Committee.

With regard to the want of confidence expressed in the visiting justices, if that consideration is to prevail it comes very much to this—that they ought not to be charged with the responsible duties devolving on them, and thus the principle is involved of placing the administration of our gaols in the hands of a central authority. As to the question put by an hon. Gentleman (Mr. D. Seymour) whether it would be competent, under the last clause of the Bill, for the Government to order the execution of a person who having been removed to a lunatic asylum under the Bill should afterwards be certified to be sane, there can be no doubt that under this clause, and under the existing law also, the Secretary of State would be justified, technically and legally, in directing the sentence to be carried into effect; but, as I said on a previous occasion, there is no instance of that having been done. The hon. Baronet opposite (Sir George Bowyer), had asked a question as to the fact of the registration of the surgeons, which might have turned out to be of some importance. It was a fact, that one of the medical men who had signed the petition in Townley's case was not registered as a surgeon, though he was registered under the Act; but, as I have said before, having communicated with the Lord Chancellor, and taken, into considera- tion the fact that he had acted for forty-three years as a surgeon, and that he had been frequently in the habit of signing such certificates, we came to the conclusion that the certificate was correct. Had the Commission, which I afterwards appointed, certified that the prisoner was insane, a question might possibly have been raised as to the validity of the removal under the certificate, but that question cannot arise now. To make the matter perfectly clear for the future, this Bill provides that the physician or surgeon signing the certificate must be registered as such under the provisions of the Medical Registration Act. The hon. and learned Member for Clare (Sir Colman O'Loghlen), alluded to the state of the law in Ireland and Scotland. I am quite aware of the provisions of the law in both those countries; but if I had attempted to make the law uniform in the three kingdoms it would have involved the consolidation of a great many statutes, would have occupied a great deal of time, and would have made it impossible to apply the prompt remedy which was needed. In Scotland and Ireland there are no visiting justices. The law in Scotland is very similar to what it now will be in England. The certificate must be given by the sheriff, who is a judicial officer; there is, therefore, no fear of his being set in motion by any improper influence; and he is instructed to call to his aid physicians and surgeons. In Ireland, there is clearly a discretion left to the Lord Lieutenant. But I am quite ready to admit that the whole subject of criminal lunatics is not in a satisfactory state. The review of the whole law would be very desirable, but it would have to be preceded by a protracted inquiry. This improvement of the law will not in the least degree prevent the consolidation of the various existing Acts, so as to render the law as uniform as the different machinery existing in the three kingdoms will allow. There seems to be a general concurrence in the second reading of the Bill, and I shall say no more than that in Committee I shall he ready to consider any suggestions which may be made by hon. Gentlemen; and I hope, that at no distant period, we shall see the law placed on a footing which will effectually prevent the repetition of any such case as that which has recently occurred.

Motion agreed to.

Bill read 2°, and committed for Friday.