HC Deb 03 December 1867 vol 190 cc551-72
MR. NEWDEGATE

, in moving an Address for Returns for Copies of Memorials for the Commutation or Remission of Sentences of Death or to Penal Servitude, addressed to the Secretary for the Home Department, and of the Replies to such Memorials, as also of the Correspondence relating thereto, said: Sir, I need all the indulgence which the House may think fit to extend to me in bringing under its notice a subject which has occupied the grave attention of the Commissioners on Capital Punishment; a subject which also fills with apprehension those whom I represent in this House, as expressed in a petition that I presented to the House from Birmingham a day or two before the 13th of August, which referred to the reprieve of the convict Scott. The reprieve of this convict produced a very deep impression in the Midland Counties. It raised a spirit of inquiry as to the terms upon which the sentence pronounced by the Judges had been practically defeated. It is reported to me that the feeling prevails to a wide extent that punishment by law is uncertain; that punishment by imprisonment has lost a great part of its deterrent effect; and subsequent inquiries have convinced me that the representations made upon this subject by the Commission on Capital Punishment are well-founded. With the permission of the House, then, I will read the concluding portion of the Report of the Commissioners. On the 13th of August last, in speaking upon a Motion which I then made at the instance of 3,000 of the most respectable inhabitants of Birmingham, among whom were ten magistrates, including the stipendiary magistrate, by whom the convict Scott was originally committed, I ventured to call the attention of the House to the last paragraphs in the Report of the Commissioners who sat in the year 1866. I then expressed a doubt whether these passages did not tend to aggravate the evil which already existed—namely, the feeling that punishment was uncertain; that when Her Majesty's Judges had fully heard the trial of a case, after the jury had pronounced a verdict of guilty, that after sentence had been pronounced, without any intimation that it was likely to be mitigated, or that the mercy or pardon of the Crown were likely to be extended to the prisoner, all knew that these sentences were never likely to be carried out; that punishment in the case of those who were sentenced to penal servitude was utterly uncertain; that men sentenced to long periods of penal servitude were virtually liberated at the expiration of seven or four years, while those who were sentenced to minor periods of punishment were liberated, God knows how soon. I was not then aware of the extent to which the public mind had been unsettled. Now, this is the conclusion of the Report of the Commissioners on Capital Punishment:— Upon another important point there is also a great preponderance of opinion against the present state of the law. The witnesses whom we have examined are, with very few exceptions, in favour of the abolition of the present system of public executions, and it seems impossible to resist such a weight of authority. We therefore recommend that an Act be passed putting an end to public executions, and directing that sentences of death shall be carried out within the precincts of the prison, under such regulations as may be considered necessary to prevent abuse, and satisfy the public that the law has been complied with. I venture very clearly to dissent from this; but I have thought it necessary to read it to the House in order to introduce the paragraph which follows, and because I wish to distinguish my Motion as not being directed solely to the subject of capital punishment, but as bearing with, even greater force upon the system of secondary punishment adopted by law in this country. The Commissioners say— There are other questions of great importance upon which we have taken evidence—namely, 1. The propriety of allowing an appeal on matters of fact to a Court of Law in criminal cases. 2. The mode in which the Crown is advised to exercise the prerogative of mercy by the Home Secretary. 3. The present state of the law as to the nature and degree of insanity, which is held to relieve the accused from penal responsibility in criminal cases. It is obvious that these difficult cases are not confined to capital crimes only, but pervade the whole administration of the criminal law. They therefore require a more general and comprehensive treatment than the terms of the commission under which we act will admit. We think, therefore, that while we should not be justified in making any recommendation to Your Majesty on any of these points, we should fail in our duty did we not humbly solicit Your Majesty's attention to them as requiring further investigation. There could, Sir, scarcely be a stronger opinion expressed than this, enunciated at the conclusion of their Report by the Commissioners on Capital Punishment. I will now proceed to point out the terms of my Motion, in order to guard myself against the imputation of presumptuously or hastily suggesting a change in the criminal law of this country. I beg to call the attention of hon. Members to the terms of the Motion, because I have endeavoured in those terms to express the exact intention with which I submit the Motion to the House. What I desire to move, then, is— That an humble Address be presented to Her Majesty, that She will be graciously pleased to give directions that there be laid before this House, a Copy of all Petitions or Memorials and of all Communications praying for or recommending the suspension, commutation, or remission of sentences of death or of penal servitude, received by the Secretary of State for the Home Depart- ment, or at the Home Office, during the six months ending on the 30th day of November and on the 30th day of June of each year, together with Copies of the Signatures attached to such Documents and of the Replies thereto, except Communications between the Secretary of State and the Judges, be presented to Parliament on each of the aforesaid days of each year if Parliament be then sitting; or if Parliament be not sitting, then on the first subsequent day on which Parliament may sit, or on the fifth day of the first Session of a new Parliament. What I ask of the House therefore is this:—to obtain information with regard to the operation of the criminal law, as it is practically put into execution, apart from the sentences pronounced by the Judges. I do not propose that Parliament should interfere in any particular case. No one would be more averse than I should be to the idea of Parliament trespassing upon the province of the Executive, or of Parliament endeavouring to intercept the exercise of the discretion which it has vested in the Executive. But what I desire is this:—that Parliament, which is supreme in its power of altering the law; that Parliament, acting with the consent of the Sovereign, should seek information for its guidance in the exercise of its supremacy in sanctioning, in the maintenance of, in making, and in altering of the law, and thus should secure to itself such a record of the real execution of the laws, of the actual operation of the law upon the people of this country—whether upon criminals or in respect of the peaceful citizen—as shall enable us to judge with what success we have sanctioned, made, or altered the criminal law; and thus ascertain in what direction Parliament may best proceed in reforming the penal jurisdiction of the country. I propose no change in the law; but I ask Parliament, which is responsible to the country for the state of the law, to obtain periodically such information as alone can enable it to judge of the actual operation of the law upon the criminal classes of the country in furtherance of that great object, securing to the peaceful citizen, securing to the owners of property, securing to the fathers of families, securing to every individual safety for property, safety for the person, security against outrage and violence. I think I can show the House that the information which I seek to obtain is not only consistent with, but is absolutely necessary to, the due performance of the functions of Parliament. Let us for a moment glance back to the changes that we have made, during the last twenty years, in the whole criminal jurisprudence of the country, in the administration of our penal laws. We have practically abolished transportation; we have adopted a totally novel system of prison discipline; we have aimed at the reformation of prisoners until we have deprived the law of that deterrent effect, which is valuable if there is any truth in the maxim, that "prevention is better than cure." Throughout the whole of our penal system, from the Government prisons, through the county prisons and the borough prisons, we have established the reformatory principle; but we have neglected the established and ordinary principle of repression; we have established reformatories so called, which are a kind of subsidiary prison for carrying out the Reformatory principle. It is a principle which has at all times been recognised in our penal legislation, but we have made it so predominant that we have come to this point:—We have so extended the Prerogative of the Crown as to make the exercise of it not exceptional, but regular. We have produced this state of things:—we have told every one who is guilty of crime—"You shall not be punished according to the sentence pronounced upon you in the court in which you have been publicly tried, but you shall be punished according to the discretion which we have vested in the Home Minister, as the representative of the Crown." And what has been the effect of this course? It was but the other day that we saw the Home Office—to use an expression contained in the written evidence of the late learned Recorder of Birmingham—literally the Home Office positively besieged. We have seen a deputation take possession of the Home Office, and in that Office they used expressions which, only a few years ago, would have been held to be seditious, if not treasonable, and certainly criminal. What further have we seen? We have seen a deputation go down to Windsor and attempt to supersede the Executive Government by thrusting themselves between Her Majesty's person and her responsible Ministers. Are not these grave symptoms? And do not such facts as these furnish evidence in support of the allegations of the Commissioners on Capital Punishment, and of the feeling which I represent as prevailing in the Midland Counties, that the uncertainty of punishment, the uncertainty of our criminal law, is such as to undermine the confidence of the country? Well, Sir, I think no one who is cognizant of this state of things can doubt that it is the effect of the changes that have been made in the law of late years, with a view to the reformation of prisoners. Is it not clear and evident to us, and to Parliament generally—to us who are responsible for the state of the law—that we have proceeded to such an extent in the Reformatory system, in granting discretionary power to the Executive, that it has become absolutely necessary that this House should obtain information periodically, which will enable us to judge how successive Ministers of the Home Department have acted in the discharge of the grave responsibility imposed upon them by virtue of the discretionary powers with which we have invested them as the representatives of the Prerogative of the Crown? and this, Sir, is my excuse for undertaking so grave a subject. If no Motion is made in this House, if no independent Member of the House takes up this question, any Government would be beset with great difficulty in attempting to deal with it. The ex-Government would immediately say, "You desire to reflect upon our conduct." Yet, this is no party question. If I have confidence in any of the Ministers who now sit on the Treasury Bench I have confidence in the present Home Secretary, and it is because I have confidence in him, that I feel now is the time that I may ask Parliament to obtain, if possible, this information; because in doing so I cannot be suspected of any minor or party purpose. I have spoken of the great changes which we have made in the criminal law by the abolition of transportation and the alteration of the whole system of prison discipline, but we have done still more. Not content with investing the Home Secretary with an increased discretionary power, as the virtual administrator of the Prerogative of the Crown in dealing with sentences to penal servitude, but by the Summary Jurisdiction Act, we have vastly increased the discretionary power of the minor and subordinate administrators of justice. There has, however, been a recoil. Outrages were committed in the streets; Parliament took fright and recognised the fact that the punishment of imprisonment has lost its terrors. And what is the result? A result which I deprecate. We turned suddenly round and pursued a reactionary course by resorting to the infliction of corporal punishment. Parliament rushed back into barbarism. The fact that Par- liament has been compelled by outrages committed in our streets to turn back in its course of leniency and restore corporal punishment, is a proof in itself that we ought to re-consider the policy which we have adopted, and satisfy ourselves whether it is altogether safe. The result has been that the certainty as to the duration of imprisonment, the chief deterrent element of that punishment for the prevention of crime, is impaired; that prevention, which is so much better than cure, the cure represented by the Reformatory system—a system which confers its benefits only on the individual prisoner, and even of this object, though carried out at such an enormous expense, is not always successful. The system fails, I am afraid, too often, even in this success. In this House, and in addressing my fellow-Members, I feel sure that they will not be offended at my appealing to a great principle—to first principles, which of late years have been too much forgotten. It happens that a friend of mine has put into my hands a work which has had far too small a circulation among those who, like ourselves, are bound to seek every means of information, in order to the due performance of the high duties which devolve upon us. It is a work on Civil Liberty and Self-Government, written by Dr. Francis Lieber, a distinguished American Jurist, and one of the most trusted and accomplished instructors in the United States. I quote from a document which he has appended to this most valuable work. I have not had time to take more than a hasty glance at this work generally; still, I am confident that every hon. Member who values the Constitution of this country, and desires to understand it and make it his guide, would do well to peruse the work to which I refer. I quote a paper appended to this work; it treats of the abuse of the pardoning power. Dr. Lieber writes p. 390)— This paper was originally a report. I had been appointed by a meeting of the Friends of Prison Discipline, without being present, the chairman of the committee, which was requested to report to the next meeting on 'the pardoning privilege and its abuse.' The following was the result of this appointment:—The Legislature of the State of New York did me the honour of publishing it as a document; but that was so incorrectly done, the subject is of such vital importance to the people, who desire to live under the supremacy of the law, and the abuse continues in many parts of our country to so alarming an extent, that I do not hesitate here to produce the paper. Therefore, this document having been first tendered to the Legislature of Massachusetts, was thought so valuable that the Legislature of New York reprinted it. The passage to which I refer the House is this (appendix, pp. 392–3)— Although the pardoning power has always existed, and has been abandoned by ultra-despotism for the sake of despotism itself, yet the abuse to which it easily leads, and the apparent incongruity which it involves, have induced many men of deep reflection, in ancient as well as modern times, to raise their voices against it, of whom we mention Plato and Cicero (Cicero in Verrem) among the ancients, and Pastoret (des Lois Penales), Servin, Filangieri, and the benevolent Beccaria among the moderns. The latter, the pioneer of penal reform, and one of the benefactors of mankind, has the following remarkable passage—and to this I beg the particular attention of the House, because there is an exactitude, a truth, and a force in the mode of expression that I could not pretend to imitate:— As punishment becomes more mild, clemency and pardon are less necessary. Happy the nation in which they will be considered as dangerous. Clemency, which has often been deemed a sufficient substitute for every other virtue in Sovereigns, should be excluded in a perfect legislation, where punishments are mild and the proceedings in criminal cases regular and expeditious. This truth may seem cruel to those who live in countries where, from the absurdity of the laws and the severity of punishment, pardons and the clemency of the Prince are necessary. It is, indeed, one of the noblest Prerogatives of the Throne; but, at the same time, a tacit disapprobation of the laws. Clemency is a virtue which belongs to the legislator, and not to the executor of laws; a virtue which ought to shine in the code and not in private judgment. To show mankind that crimes are sometimes pardoned, and that punishment is not a necessary consequence, is to nourish the flattering hope of impunity, and is the cause of their considering every punishment inflicted as an act of injustice and oppression. My object is not to increase the severity of the laws, but to enable Parliament to proceed by legislation in the direction of clemency. The passage then proceeds— The Prince, in pardoning, gives up the public security in favour of an individual, and by ill-judged benevolence proclaims a public act of impunity. Let, then, the legislation be tender, indulgent, and humane. Now Lieber qualifies his use of this quotation on account of the inevitable imperfection of all human legislation and the equally inevitable failure in the symbolical power of language. I admit the necessity for qualification; but Beccaria admirably states a principle which Parliament seems to have forgotten. Is it not evident from the language of the Fenians and their friends? Is it not evident, I am sorry to say, from the articles which have appeared in some Irish newspapers, that the infliction of punishment even in the case of deliberate murder is not considered by them to be the due vindication of the law, made by the representatives of the people, but that it is simply an act of revenge on the part of the Executive. A recent article in The Times comments most ably and rightly upon those articles in the Irish papers, the whole purport of which was that the executions which lately took place at Manchester were an act not of justice but of revenge—the vindictive act of an enemy who sacrificed his adversary, not the execution of a just law, the only object of which is to secure the freedom and the safety of peaceful citizens, to preserve in peace the community and the State. Sir, the time has arrived when Parliament ought to arm itself with information to which we may be able to refer when we consider the present state of the law, and direct our efforts to recovering the confidence which, as one of the representatives of the Midland Counties, I affirm has been, to a great extent, lost, in consequence of the present state of the criminal law and the uncertainty of its execution. When I point to the Home Office, I do so in no spirit of hostility towards the Minister; but I do this on no light grounds. I have the support of some of our most distinguished Judges. If any man is competent to form an opinion of the effect of the penal code, surely it must be a Judge; but I have selected the evidence of only one of the Judges, who gave evidence before the Commissioners on Capital Punishment, because that opinion happens to be expressed with peculiar distinctness. Before the Commission on Capital Punishment Baron Bramwell gave the following evidence. He was asked by the Attorney General for Ireland, Question 228— Have you considered the question at all, whether in criminal cases there should be a new trial allowed to the prisoner under any circumstances? His answer is— I have. Then he is asked— What is your opinion upon that subject? And he says— Again I speak with great embarrassment, because I am afraid that I shall detain the Commission some time to explain myself. So long as the Queen has the Prerogative of pardon, which one would be very sorry to see taken away from Her, there always will be a Court of Appeal, because She may be asked to pardon as a matter of grace, and She may be asked to pardon on the score of mistake. You cannot take away from Her that jurisdiction, which one never wishes to see taken away. One cannot help feeling that the Court of Appeal as at present constituted, except that it has one of the best Judges which such a court can possibly have, yet it is the worst court which can possibly exist, because it is not a public court—I mean the Secretary of State for the Home Department—and except that the Secretary of State is always so fit a man, and is always so ably advised, I say unfeignedly that it is the worst court which there can possibly be. It is no court at all in reality, but practically it is a tribunal of appeal—it is private, it proceeds upon written statements and upon ex parte statements, it does not hear the other side, and therefore no doubt there is very great difficulty in saying that it is a satisfactory tribunal to which to appeal from the judgment of a jury, and yet you cannot get rid of it. On the other hand, you cannot have a Court of Appeal without augmenting that uncertainty which it is so desirable to diminish, and without giving more chances and more hopes; and you cannot have it without doing what it is also most desirable to avoid—namely, worrying prosecutors. At present people are very reluctant to prosecute, and I suppose that a very great number of offences go unprosecuted, and there are continued applications made to magistrates to dispose of the case summarily; but, nevertheless, a certain amount of that business comes before the ordinary tribunals where cases are tried by jury. But if you had a Court of Appeal you must properly have the prosecutor, or somebody representing the prosecutor, to take part in the transaction. The reluctance of prosecutors would therefore really be greater than it is now, and I think that that is very much to be deprecated. If such a thing existed, it could not exist except upon the terms of some public prosecutor taking the matter entirely out of the hands of the private prosecutor, who would be likely to be tampered with, and who would otherwise be reluctant to interfere in the matter. In addition to that there would be a great deal of trouble and expense; and I cannot help thinking for my own part, that inasmuch as a Court of Appeal is not what we may call a natural thing, that is to say, is not a thing of necessary existence, there is no more reason why there should be an appeal to one court above than to another court above it, and so on; and inasmuch as people in England are never convicted except in my judgment on the very clearest evidence, I cannot help thinking, that any advantage to be gained from the establishment of a Court of Appeal, although theoretically more perfect than the one which now exists, would not compensate for the disadvantages which would be attendant upon it. The House will forgive me for reading this long quotation; but I did not think it fair to stop short of the end of the section in quoting the opinion of the learned Judge. Now I do not advocate the establishment of a final Court of Appeal in criminal cases, though it may be that the production of the information, for which I would have the House ask Her Majesty, might lead to the erection of such a court; but as at present advised, I do not seek a final Court of Appeal in criminal cases. Yet I think I may invite those who are adverse to the continuance of capital punishment, and those who desire the appointment of a final Court of Appeal in criminal cases, to give their support in requesting that we may have information placed at our disposal whereby we may be enabled to judge whether a final Court of Appeal in criminal cases is necessary or not. And I would point out this, moreover to those who, actuated by humane motives, seek the abolition of capital punishment—that if our secondary punishments remain uncertain; if they are, as I have shown they are, losing their deterrent effect, then all their hope of obtaining the abolition of capital punishment must be vain, perfectly vain; because at present capital punishment is the only punishment which is certain in its effect, which removes the eventual execution of the sentences from uncertainty. We have abolished transportation. All our convicts are now detained in this country. They can constantly, or rather, periodically communicate with their friends; and the consequence is, as I have been informed on excellent authority, that the Home Office is literally besieged, not only on particular occasions, such as the execution at Manchester, to which I have referred; but that habitually there is such a constant stream of applications for the commutation or remission of punishment, as requires the exercise of such an amount of exact information as to the mental, the physical, and even the moral condition of particular prisoners, and of firmness, as it is almost unreasonable to expect from any man, however trained, and however powerful may be the intellect he possesses. I can speak upon this subject from my own personal experience. As a Member of this House, I have been urged in the most stringent manner to apply for commutations of sentences. I have been literally threatened with the loss of my seat in this House, unless I yielded to what I was told—and let hon. Members observe this, that it is a common practice on the part of Members of this House; not the practice, which I have always pursued, of showing readiness, as a representative of the district in which the conviction has taken place, to press upon the Home Office the consideration of any new facts that may have come to light after the trial; but a practice of seeking, as a matter of favour to the relatives, to the friends, aye, to the patrons of the person convicted, a remission of punishment; a remission, mark you, based neither upon new facts discovered since the trial, nor upon the merits of the case, nor upon any real evidence of the reformation of the prisoner. That is what I have been told. These threats and solicitations had no effect upon me, except this, that I determined to appeal to this House on the ground that such reports, whether well or ill-founded, are current with respect to the conduct of its Members. This circumstance not less than any other has prompted my proposal that this House, as one of the constituent elements of the Imperial Parliament, should address Her Majesty, praying that she will direct that periodically there be laid before us information, which will enable us collectively to judge how far individual Members of this House are really amenable to the grave imputation of yielding to solicitations such as I have had to repudiate. It is our duty as Members of this House, wherever the conduct of the Government directly affects our constituents, to intervene individually; but there is no power that can regulate the conduct of the Members of this House, except that of the House itself; and if the House knows not what is the conduct of its Members in this respect, may we not fear that some of us do lapse into the vice of individually contributing to that uncertainty of punishment which is fraught with so much mischief? These sentences, pronounced by the Judges, vary from one to ten years' imprisonment, and even for life; the Judge pronounces the sentence, and not a soul believes that it will be carried out as he declares, for all know that, by the law, Parliament has granted a discretion to the Executive Government with the express intention that the sentences pronounced by the Judges should not be carried out. I respect the Prerogative of the Crown as much as any one, though I think that Parliament has unduly extended it. I have no desire to invade that Prerogative, when confined to its former limits; but I have never yet heard or understood that secret action was among the Prerogatives of the Crown. I have always understood that the intention of the Constitution in making the Ministers responsible (and they became doubly so under the settlement arrived at by the Revolution) was, that the Prerogative of the Crown, and every act of the Sovereign in his official capacity, which might affect the subject, should be made public, as that of his responsible advisers, for the information and comment of Parliament. But here, on the authority of Mr. Baron Bramwell, we have, under cover of an extended prerogative, a tribunal—practically, a secret tribunal—a tribunal which by law habitually supersedes the sentences publicly pronounced by the Judges in the courts of this country. I repeat that I am not desirous of invading the legitimate Prerogative of the Crown, the prerogative of mercy or of pardon, nor do I desire that the exercise of the Prerogative in any particular case should be thrust on this House for its immediate comment, so that the action of the prerogative should be intercepted; but that which I desire and propose is, that periodically—and I hope the House will sanction my object—that periodically, information with respect to the general practice of the Home Office in the exercise of the Prerogative, extended, as I have shown, should be placed at the command of Parliament. I know it has been said, "Oh! but think of the expense in printing which you will entail upon the country." Sir, the accomplishment of such an object as I have in view would, in my opinion, be well worth that expense. But I do not desire that all these documents should be printed. Many important documents are now furnished for the use of Parliament which neither House prints. There they are, however, in the Library, accessible to the Members of either House, any one of whom may move that the whole or part of any of these documents be printed, but he must obtain the consent of the House. If the improved action of the criminal jurisprudence of this country, if the improvement of the administration of the law is an object worthy the consideration of Parliament, surely it is worth the small wages of a few copyists, which is all that would generally be required, in order to furnish us with information, without which I very respectfully say to this House we are not justified in proceeding to make any fundamental alterations of the law in matters that affect the personal freedom, the property, and the security for the lives of our fellow countrymen. I thank the House most sincerely for the kindness with which it has allowed me to trespass so long upon their attention. I feel that we are not returned to this House for the gratification of personal ambition, or merely to attend to the details of minor matters—such as Railway Bills, Dock Bills, and Turnpike Bills. If there is any meaning in the Constitution of the country; if there is any value in the freedom which we enjoy; if there is anything in the principle of self-government, which Dr. Lieber says is a special property of the Anglo-Saxon tribe, whether in England, in the United States, or in the colonies—and I use the word "property" advisedly—the property of the Anglo-Saxon race, because it is the capacity of the race for self-government, which has enabled us to secure that blessing—if, I say, there is any value in the principle of self-government, then it is the duty of both Houses of Parliament, in a matter which so seriously affects that principle, humbly to address Her Majesty in pursuit of information that will enable us to judge of the operation of the laws that we have passed, and how best we may amend them. The hon. Member concluded by moving an Address.

MR. NEATE

seconded the Motion.

Motion made, and Question proposed, That an humble Address be presented to Her Majesty, that She will be graciously pleased to give directions that there be laid before this House, a Copy of all Petitions or Memorials and of all Communications praying for or recommending the suspension, commutation, or remission of sentences of death or of penal servitude, received by the Secretary of State for the Home Department, or at the Home Office, during the six months ending on the 30th day of November and on the 30th day of June of each year, together with Copies of the Signatures attached to such Documents and of the Replies thereto, except Communications between the Secretary of State and the Judges, be presented to Parliament on each of the aforesaid days of each year if Parliament be then sitting; or if Parliament be not sitting, then on the first subsequent day on which Parliament may sit, or on the fifth day of the first Session of a new Parliament."—(Mr. Newdegate.)

MR. GATHORNE HARDY

Sir, I should be the last person in this House to take exception to any increase of expenditure or the increase of the staff of any office in connection with the Government if I were thoroughly convinced that the information sought by the hon. Member for North Warwickshire were really information that was valuable and worth the expenditure which the procuring of it must cost, or even if I were persuaded that it was information that ought to be laid before the House. I have, however, come to the conclusion that the informa- tion now asked by my hon. Friend would not be of the slightest value, so far as advancing the purposes which he has in view is concerned; but would, on the contrary, often mislead those who read it, and cause them to form totally opposite conclusions to those arrived at by those who were in possession of all the information upon all sides of the question. I shall only refer for a moment to the subject which has been the cause of my hon. Friend bringing forward this Motion—that of the remission of a sentence in the case of a man who was convicted of murder at Birmingham. I have already explained to the House the grounds upon which that remission took place. Whether it was right or wrong, it was at least in conformity with the precedent of a great number of years—a precedent which I did not feel myself in that instance called upon to break through. My hon. Friend, as I understand him, says that the object of his Motion is to form a basis of legislation for the administration of the criminal law. Now, the information asked for has, in the main, nothing whatever to do with the administration of the criminal law, as law. It will affect rather the administration of the Prerogative of mercy invested in the Crown. It is information sought for in order to enable those who are responsible to the Crown to arrive at satisfactory conclusions. But there is left out of this Motion—naturally because it would be most improper to produce it—all mention of the important evidence which comes before the Home Secretary, and which enables him to come to and justifies him in his conclusions—there is no mention made of the Judge's notes, the depositions, and the other weighty documents which I, in my official capacity, have always before me in dealing with cases brought under my notice. My hon. Friend says that Members of Parliament often take an active part in procuring remissions of sentences. Now I frankly own that I object extremely to personal communications on such a subject. I think it is far better that all communications on such matters should be made in writing to the Home Secretary, in order that he may have the opportunity of calmly sifting the facts for himself, or of placing documents in the hands of those who are capable of assisting him to form his judgment. If the Home Secretary is to listen to personal arguments, to pick up one person's story here and another's there, he will be led into difficulties, and the probability is that in the end he may be led into quite erroneous conclusions. For these reasons alone I think it is preferable that every representation to be urged upon the Home Office should be committed to writing. The Motion that has just been moved does not refer to cases of ordinary imprisonment. My hon. Friend alludes only to cases of penal servitude and capital punishment. Now I contend that if the information sought for is valuable in respect to the two first classes of cases, it is equally so with regard to the other class. I do not think that hon. Members have the least notion of the enormous number of memorials that are yearly presented to the Home Office. I have not calculated the number received in relation to imprisonments; but as respects penal servitude and capital punishment, I am told that they may be assumed to be not less than 1,000 in the course of the year. These involve a large amount of correspondence; and in addition to this there cannot be less than 4,000 or 5,000 documents connected with the memorials, irrespective of Judges' notes and other documents not included in the Motion. I shall assume for a moment that the House will agree to print such a voluminous mass of documents. The difficulty of expense got over, there would be another most serious one to contemplate. Many of the memorials sent to the Home Office are of an extremely libellous character. They almost all impute perjury and falsehood to some of the witnesses who have given evidence at the trial, and many of them charge other persons with the crimes for which the prisoners were convicted. I would ask the House whether it would be desirable to print such documents, or lay them upon the table of the House? Moreover, a great many anonymous communications are sent in; but these cannot be rejected because they are anonymous, for they sometimes contain arguments which are as worthy of consideration as those which are forwarded under signature, and they are not rejected if they contain anything in the shape of argument which can impress the mind of the Home Secretary. On the other hand, there are memorials containing an enormous number of signatures, and if we were to print these they would be mere lists of names bearing no meaning. My hon. Friend says the Home Office sees one side, but never sees the other. But that is not so, because the Home Secretary has the Judge's notes and evidence before him. With respect to the case to which my hon. Friend called attention last Session, I understood that a complaint was made because I referred at once to the Judge. That, however, was a necessity. I was not in possession of the slightest information until I got the Judge's notes; and when a memorial for remission of sentence was forwarded to me I sent for these notes, and asked the Judge to enclose any remarks which he saw fit to make. The Judge's notes form the most material evidence as to the facts of a case; and his comments one of the most important aids which the Home Secretary can procure in forming his decision. My hon. Friend says he does not wish to interfere with the Royal Prerogative of mercy, but that he merely desires this information in order to see how the Home Secretary uses it. In answer to that, I have only to say that even if he did get all the information he desires it would not inform him correctly how the Home Secretary has acted, because the documents relating to the memorials, such as the Judge's notes, would be left out, and the memorials themselves would be as misleading as documents could possibly be. I can quote an example. Very soon after acceding to the office I have the honour to hold a case of great importance was brought under my notice, in connection with which long memorials, some of which would take hours to read and discuss, were forwarded. A great many of these memorials were argumentative, but the whole of them were based upon the assumption that the chief witness had been guilty of falsehood. These representations came from so many quarters that I was anxious to ascertain whether the witness could have possibly made any mistake in his evidence, and I accordingly had a letter written to the man himself, asking whether his evidence had been correctly reported, and whether he adhered to it. The man, after considering what had been said by others, replied, "I adhere to everything that I have here said." Now, suppose that these memorials had been laid upon the table of the House without the evidence of the man himself and without the Judge's notes—the House would have entertained a very different impression of the case to that which, with better means of judging, was arrived at by the Home Office. These memorials would, in fact, have been libellous, and I think it would be a most un- just thing for the House to make itself a receptacle for libels which could not be published in any other way. It is most desirable, when the exercise of mercy is under consideration, that nothing that can possibly be said should be shut out; but a great deal that should be considered would be shut out under the terms of this Motion. Upon these grounds, I cannot accede to the Motion of my hon. Friend. I cannot consent to it, because I do not believe it will lead to the results he anticipates. I cannot consent to it because I think it would be unjust to many persons who would have no opportunity of defending themselves; and because I think it would throw a very great impediment in the way of the exercise of the prerogative of mercy, which, as a last resort, must be brought into requisition. Baron Bramwell himself stated before the Commission that whatever Courts of Appeal may be instituted we must in the last resort have some one to exercise the prerogative of mercy. After the trial and condemnation facts might come out which it would be desirable to sift; and however long it might be after a man's conviction, if circumstances transpired showing that the conviction was unjust, or throwing such a doubt upon it as to make it clear that there ought to be some interference, there must necessarily be some authority to exercise the prerogative of mercy. Personally, I am not advocating the prerogative of mercy as a matter pertaining to my office, for I know no duty so painful as that which the present practice devolves upon me. But that prerogative must occasionally be exercised, and some one must take upon himself the responsibility of acting on the part of the Crown. That duty falls upon me at present; and I say that, so far from this Motion, if carried, giving the information desired—information such as would lead the House to just conclusions—it would mislead them, and cause them to arrive at conclusions the reverse of correct. I do not wish to go into all the questions adverted to by my hon. Friend, because the opportunity does not appear to me to be favourable. If the great questions he has alluded to are to be properly judged, they must be judged upon distinct and specific Motions brought before the House, and not in connection with another matter.

Before sitting down, however, I desire to call the attention of the House to the last Report of the Directors of Public Prisons, and to the extraordinary revela- tions which it makes as to the effects of those punishments which are said not to be deterrent. It is a remarkable fact to observe how steadily during the last few years the number of cases of penal servitude has decreased. In the year 1853 the number of life sentences was 783; in 1857 the number was only 35; while in 1866 there were only two life sentences given during the whole of the year. That shows a most remarkable diminution in the number of cases of extreme punishment, which we may fairly attribute to a diminution in the enormity of the offences committed. In the year 1858 the number of life sentences was 17; in 1859 the number was 16; in 1860 the number was 21; in 1861 the number was 16; in 1862 the number was 25; in 1863 the number was 20; in 1864 the number was 12; in 1865 the number was 4; and in 1866 the number was 2. These figures, as I have already remarked, show that there is an immense diminution in the enormity of the offences committed, and they also show that the Judges, looking to the deterrent influence of punishment, do not consider it necessary to pass such heavy sentences as they formerly did, and the Judges are in the best position to form an opinion as to what is sufficient punishment for an offence. I do not wish to enter upon the questions whether there ought to be a Court of Appeal or whether the Home Secretary ought in the last resort to exercise the prerogative of mercy? These questions did not properly arise upon this Motion. With great respect for my hon. Friend I oppose the Motion, because the adoption of it would rather defeat than promote the object my hon. Friend has in view.

MR. NEATE

said, the right hon. Gentleman the Home Secretary had given such good reasons for objecting to the Motion as it stood, that he hoped it would be withdrawn; but he had scarcely met the meaning and spirit of the Motion. The House was entitled to know a great deal more than it did of the circumstances under which the Home Secretary exercised the prerogative of mercy, which really was in his hands, although it was the fashion to speak of the uncontrolled and unquestioned Prerogative of the Crown. If the Motion had been so worded as to ask for a Return of the number of cases in which the Home Secretary was asked to remit or commute sentences, the number in which he refused to do so, and the reasons which influenced his decisions, the Return might have guided Parliament in future legislation, and might have had a bearing on the desirability of exercising greater control than was exercised over the mode in which Judges were appointed. He did not see the difficulty of making a Return which should state that in one case there was an insufficiency of evidence, that in another a man had borne a good character, and that in another a man's behaviour in prison had been good, and for such a Return the Secretary of State ought to be accountable to the House.

SIR GEORGE BOWYER

said, a great deal of confusion had been introduced into the question by the practice of speaking of the Home Office as a Court of Appeal, which it was not. Whether we had a Court of Appeal or not, we must have some person responsible to Parliament for the advice given in regard to the exercise of the prerogative of mercy. The reason why people had come to speak of the Home Office as a Court of Appeal was that there was no Court of Appeal in England, as there was in every other civilized country; and this was a matter which must force itself more and more upon the public mind. Many of the arguments against a Court of Criminal Appeal were equally applicable as against a Court of Appeal in civil cases. Appeal was as necessary and useful in criminal as in civil cases. While Judges saw and heard witnesses, and could examine them, and also heard the arguments of counsel, the Home Secretary had only the notes and opinions of the Judge; and it was impossible, under these circumstances, that the Home Office could be a satisfactory Court of Appeal. It would be deemed absurd to appeal to the Home Secretary against a decision in the Court of Chancery, and yet in principle the absurdity existed; for, although the Home Office was not a Court of Appeal, cases came before the Home Secretary which ought to be decided by such a Court, and they were brought before the Home Secretary because we had no Court of Appeal. This question of a Court of Appeal in criminal cases must engage increasing attention, and he believed that common sense and reason would ultimately induce Parliament to establish such a Court, leaving still to the decision of the Home Secretary those cases which were not properly the subject of appeal, but belonged to the Prerogative of the Crown, exercised under the advice of a responsible Minister.

MR. REARDEN

said, that a Court of Appeal in criminal cases could not do harm, and might prevent a judicial murder. The establishment of such a court would give satisfaction to many persons who thought that capital punishment should be abolished altogether.

MR. NEWDEGATE

Mr. Speaker—In reply to the hon. Member for Dundalk (Sir George Bowyer) I beg to say, that whatever opinion he may entertain with respect to my view of the abuse of an extended prerogative, no one who knows anything about the hon. Baronet doubts that he is in favour of the establishment of absolute power in Government. It is in a different sense that I shall endeavour to answer the observations of the right hon. Gentleman the Secretary for the Home Department (Mr. Gathorne Hardy). He appears to me to have used several arguments that support my case. Supposing these memorials, to which he has referred, are of the libellous character he has described, whilst many of the signatures attached to them are fictitious, is that a reason why this House should be kept in ignorance of the fact or of the proceedings to which those resort who attempt to interfere by such means with the administration of justice? One fact which I believe would come out if the information I ask for were granted is this—that it is only a small number of persons who create the greater part of the pressure that is brought to bear upon the Home Office, persons who are ever ready to interfere. I know that the system has grown up in recent years. There are persons, there is an organization, employed in beseeching jurymen the instant they leave the box to sign memorials in favour of reversing the effect of the verdict which they have just given. There is a regular machinery at work for this very purpose. Let not the House imagine that this is likely to be a small evil. I have here the authority of M. de Tocqueville, and others, cited by Lieber, that in the United States of America the abuse of the privilege of pardon had, until the matter was taken up by the State Legislatures, grown to the most frightful proportions; and it appears to me that, as we have copied the system of prison discipline and penal legislation which the Americans first adopted, we are bound to guard against the evils against which, those who first tried it, have had to provide. Then the right hon. Gentleman says that the number of sentences of penal servitude for life are not so many as they were. And why is this? Because it is notorious that the present system of separate confinement cannot be carried out for life with safety to either the intellect or bodily health of the prisoner. The present system of prison discipline does not admit of long sentences, and that is one reason why many of our Judges do not pronounce them. I am grateful to the House for hearing me at such length on this occasion. I yield to the opinion of the Home Secretary, that this Motion will not accomplish my object, and therefore, with the permission of the House, I will withdraw it, but upon the understanding that I shall seek other means, either by appointment of a Select Committee, or in some other manner, which may induce the House to turn its attention to that which is really a growing evil in the Midland Counties, trusting that the wisdom of Parliament may discover some remedy.

Motion, by leave, withdrawn.