HC Deb 14 February 1867 vol 185 cc359-69

, in moving for leave to introduce a Bill to amend the law relating to murder, and for giving further protection to new-born children, said: The two Bills which stand on the paper in my name—this and another Bill to provide for carrying into effect capital punishments within prisons—are measures which are brought forward in pursuance of the recommendations of the Royal Commission which was appointed to inquire into the state of the law by which the punishment of death is inflicted on persons convicted of certain crimes, and into the mode in which that punishment is carried into execution. The House will see that the subject divides itself into two distinct branches—the law relative to capital offences, and the manner in which that law is put in force. A Bill which was brought into the other House of Parliament, and which came down to this House at the end of last Session, comprehended within its provisions both those branches; but I have deemed it right, inasmuch as the subject divides itself into two distinct parts, to deal with this subject in two distinct measures. There are some persons who are of opinion that capital punishment ought to be abolished, and that executions ought not to take place in private; whereas there are others who think that executions ought to be private, and that capital punishment should be retained. By dividing the proposals which I have to submit to the House into two parts, I thought I should be furnishing a better opportunity to both the one side and the other to take objections and to state their views upon each of these points than if I were to combine those, proposals in a single Bill. It will, perhaps, be more convenient if I state on this occasion what is the character of each of the Bills which I am about to ask for leave to bring in, rather than enter into any of those controversial points which may, and probably will, arise with reference to the expediency of abolishing the punishment of death in all cases or of maintaining it in some. Although some of the Commissioners thought it might in the abstract be wise to get rid of the punishment of death, yet they all agreed that if it were not absolutely done away with, the law with respect to it, at all events, stood in need of alteration. I see opposite to me a Member of the Commission who has taken a great interest in this question ever since he entered the House of Commons, and I believe that he and all those who desire the abolition of the punishment of death agreed that a considerable change in the state of the law was desirable. [Mr. EWART: Hear, hear!] The Commission came to the conclusion that it was advisable that heinous and aggravated cases of murder should be separated from those which are less deliberate and founded on constructive malice. The House will bear in mind that the strict definition of murder is the "unlawful killing of any person with malice aforethought;" and the malice, in the opinion of a great many able jurists, must be so express that it can be proved as a matter of fact, and not merely implied as a constructive inference from other acts consequent on the supposed wickedness of the person committing the offence. The Commissioners, in dealing with that view, point out the state of the law in several other countries with regard to murder—especially in America—and argue in favour of having the offence classed under two heads—murder in the first and murder in the second degree. The Bill founded on the Report of the Commission, and brought in last Session, was framed in accordance with that distinction. A very able debate took place in the House of Lords on the clause embracing that particular point, when thirty-eight voted in favour of the distinction and thirty-eight against it, and the Lord Chancellor, in accordance with the maxim prœsumitur pro negante, withdrew the clause, and introduced another in a different form. That clause, when the Bill came down from the other House, contained the following definition of murder, which would be punishable by death:— No person shall, under any indictment or inquisition, be convicted or deemed guilty of murder, unless the jury by whom he is tried shall be satisfied that he intended to do grievous bodily harm endangering the life of the person whom he killed, or to do grievous bodily harm endangering the life of any person whatsoever. On the part of the Government I had to consider whether, in point of fact, that definition would or would not carry into effect the view taken by the Commission; and also, whether there was not such an ambiguity in its terms that in many cases, assuming capital punishment still to be continued, it would not be deemed right that execution should follow. Now, I think it clear that there are several cases in which, whether according to that definition or not, you could not execute a convicted, criminal; while yet they are cases in which the Commissioners intended that the capital sentence should be carried out. I will give the House two instances by way of illustrating my meaning. I will take the case of a garotter. He need not primarily intend to do bodily harm endangering the life of the person whom he assails—he may merely intend to disable him for a time for the purpose of robbing him, and the probability is that a jury would, in many instances, come to the conclusion that that was his intention. Again, let me suppose the case of chloroform being administered with the view of committing a rape. There may be in such a case no intention of doing grievous bodily harm endangering life. Now, I do not think it would be satisfactory to the community or sanctioned by public opinion that, so long as capital punishment is part of the law of England, we should not have the option of classing such crimes as those with others in which the infliction of capital punishment might be deemed to be necessary, I forebore, therefore, from proceeding with the Bill of last Session because I could not see my way to adopting the definition which was sent down to us from the House of Lords. Nor did I think it advisable to accept the line drawn by the Commissioners in classing the crime of murder into first and secondary degrees. Murder in either degree would still be looked upon as murder, and I doubt very much whether it would be rightly understood if we should endeavour to place that kind of crime under distinct heads or in different categories. The substantial object which the Commission had in view in their Report may probably be accomplished without adopting such a distinc- tion which would not, I believe, recommend itself to the feeling of the country. What, under these circumstances, I propose to do, after due consideration, is to specify the cases of murder for which the punishment shall be capital, and, having specified those cases, to say that in all others a different punishment shall follow. The different cases of murder for which capital punishment will be inflicted, if the Bill becomes law, will be the following:—First, if any jury before whom any party is tried find that he committed the crime with the deliberate intention to kill or to do some grievous bodily harm to the person killed, or to kill or do some grievous bodily harm to some other person, I substitute the words "deliberate intention" for the words "express malice aforethought," because that is the definition of Sir Matthew Halo, and it seems to be open to less ambiguity. Secondly, capital punishment will be inflicted if a jury find that a man committed the crime with a view to, and in or immediately before or immediately after, the commission by himself of any of the following felonies:—Rape, burglary, robbery, piracy, or the felony of unlawfully and maliciously setting fire to any dwelling-house or any person therein. The third case in which the punishment of death will be inflicted is when a jury find that a man committed the crime for the purpose of thereby enabling himself or any other person to commit any of the above-mentioned felonies. The fourth case in which capital punishment will be applicable is when a jury find that a man committed the crime in the act of escape from, or for the purpose of thereby enabling himself or any other person to escape from or avoid lawful arrest, immediately after he or such other person has committed or attempted to commit murder or any of the above-mentioned felonies; and the last and fifth case for the infliction of capital punishment was suggested by the late Lord Chancellor, and it is the case with respect to which a jury shall find that a man murdered a constable or other peace officer acting in the discharge of his duty. These are the five and only cases in which, if this Bill passes into law, the crime of murder will be punished by death. The Bill goes on to provide that in any other case of murder the offender shall be liable, in the discretion of the court, to be kept in penal servitude for life, or for any term of not less than seven years. Such are the alterations proposed in the Bill with reference to the punish- ment of the crime of murder. It will be punishable by death in five cases, and in five cases only. No doubt there are some who think that the punishment of death should be absolutely abolished, and four Commissioners added a paragraph to the Report to that effect. Those hon. Members who entertain that opinion will have an opportunity to take a discussion on the subject in the simplest form when that part of the Bill shall come on for consideration. Another part of the Bill I am now asking to bring in relates to what is commonly called infanticide. I do not anticipate any great objection to this part of the measure. It is quite clear that the crime of infanticide very often goes unpunished because a conviction may be followed by capital punishment, and it is probable that a less punishment, such as penal servitude, will be more likely to secure convictions, and so operate as an increased protection to the lives of innocent infants. The only other clause to which I need refer is a restriction of the law which enabled a Judge to abstain on a conviction for murder from pronouncing judgment of death, and in that case judgment of death be recorded against the offender.

With respect to the other measure which it is my intention to ask leave to introduce, I may here state that it has for its object the carrying into execution capital punishments within prisons, and it follows very closely the recommendations contained in the Commissioner's Report. The main question which will arise in connection with this measure is whether due securities are taken for carrying out the execution with propriety, and in a manner which will satisfy the law, leaving no doubt that the execution has taken place. It is provided that certain officers of the gaol shall be present at every execution; and there is power given in the Bill to the visiting justices to authorize the admission into a prison where any execution takes place of the relatives and friends of the criminal, in order that they may see the way in which the sentence is carried into effect. The Bill requires the surgeon of the prison to certify to the death, and a coroner's inquisition is to be held after each case of execution. With all these securities it seems to me that the community may feel complete confidence as to the way in which the execution is carried into effect. Those of the Commissioners who object to capital punishment have objected also to private executions. But I cannot help thinking that the little good which results from such scenes as occur at a public execution—false heroism which the criminal puts on, and the morbid sympathy which is sometimes felt for him—constitute reasons of the strongest kind for changing the law in this respect; while the knowledge that the punishment is duly and properly and certainly inflicted will strike more terror, by way of example, than that which arises from the brutal horrors of a public execution. The right hon. Gentleman concluded by moving for leave to introduce a Bill for amending the law relating to murder, and for giving further protection to new-born children.


I was one of the Members of the Commission upon whose Report this Bill has been introduced into the House; and I cannot help saying that I am sorry the right hon. Gentleman has thought it necessary to change the form of doing that which I understand he wishes to do, and which the Commission wished to do—that is, to except a considerable number of cases, hitherto capitally punishable, from the punishment of death. The question was discussed in the Commission very fully on several occasions, and on one occasion the Commissioners came to the opinion that it would be better not to have two classes of the crime of murder. Afterwards dissatisfaction was expressed because it was believed that, leaving the crime still to be only one class, there would be great difficulty in making the real change in the administration of the law which the Commission desired. Therefore the first Resolution to which they had come was abandoned, and another Resolution was passed, after much consideration, that two classes of murder should be established. I was one of those who was opposed to the first Resolution, and who supported the decision which was afterwards arrived at. I did so on this ground—and I think the Commissioners came to that conclusion—that it was desirable that the jury should be permitted to decide distinctly this fact—whether the given crime was a murder of the first class or a murder of the second class. If it was of the first class, it would be in the position that all murders are in now, and the capital sentence would be executed unless the Home Secretary thought proper to interfere. At present there is no doubt whatever that there is the greatest possible and painful irregularity in the final determination in what cases the sentence shall be carried out. Notwithstanding that the right hon. Gentleman proposes to do—as far as I could gather from what he said—exactly what I want, and what the Commissioners wanted, I do not think he does it—as far as I comprehended from the explanation which he has given us. I am glad he alters the law in this respect, that instead of that monstrous interpretation of what is called malice, which is really Judge-made law, we are to have what is described as "deliberative intention." Assuming the act to have been committed, the jury must bring in a verdict of either murder, manslaughter, or justifiable homicide. Putting the latter out of the question, and remembering that manslaughter remains where it is, we come to murder, and that is left pretty much as it is now. The jury cannot say whether it is a murder of the first class, or whether it is a murder of the second class, and therefore is not capital. As I understood the right hon. Gentleman, the jury, if it be murder, must bring in a verdict of murder, and the sentence will be determined either by some explanatory words which the jury may add, or by the decision of the Judge as to whether there was sufficient deliberativeness to make it what I shall call a classified murder. The object of the Commission was to do something like what there is in France, though not exactly like that system. In France, the juries in general being opposed to capital punishment will bring in a verdict, in a case of murder, "with extenuating circumstances," and in that case the crime is not capital. The Commissioners were of opinion, and I agreed with them in that opinion, that this was not a desirable thing to introduce here. It was better that the law should be more definite. At the same time, we were anxious that the law should be so fixed that every jury, in coming to a verdict, should know exactly into what list they were putting the crime and into what risk they were putting the prisoner. Unless I have misunderstood the right hon. Gentleman—and I hope I have—the jury will be left almost in the position they are now in; and they will be only taken out of it by the decision of the Judge in the particular case. I should be glad to take a good many of these things out of the hands of the Judges. They are by no means infallible, and some are less wise than others. We have seen, within two or three years, one case especially, in which, owing to the course of the Judge, a man was hanged in this city whose case infinitely less called for capital punishment than many others to whom mercy has been extended. I am altogether against leaving the whole decision of these questions to these Judges. It was the object of the Commissioners to leave it to the jury; and unless the right hon. Gentleman can show that the object of the Commission in giving an absolute decision as to which list the criminal should be put in is wrong, I should be sorry to give my sanction to the alteration which he has made in the Bill which he is about to introduce.


said, he was very much disposed to agree with the observations of his hon. Friend who had just sat down. The two classes of murder should be distinctly defined, and should not be left to the discretion of the Judge. He had always maintained the expediency of abolishing the punishment of death entirely, and most probably he should again submit to the House a Motion to that effect. With regard to executions within the prison walls, the fact of being private would add to the interest excited in the public mind; and as the press would give every detail of the conduct of the prisoner, there was great danger lest the felon should be made into a hero. He thought the right hon. Gentleman had done well to adopt the definition of the House of Lords; but he considered with Sir FitzRoy Kelly that, resort to what contrivances they might, they never would arrive at a solution of this question without abolishing the punishment of death altogether.


said, he did not mean to oppose the introduction of a Bill which came to them on the responsibility of the Government; but he must even at that early stage, enter his protest against the retention of the punishment of death. The subject was thoroughly understood outside the House, and the great mass of the people were disgusted to see the Legislature still discussing the propriety of putting men and women to death, whether publicly or privately, and still viewing the penalty of death as a deterrent punishment, which the experience of ages had proved the contrary. But further, they were now called on, whilst retaining the capital punishment, to deprive it of its public character, which was considered to work so well in the way of example. He believed it was a great and ghastly blunder this putting of men and women to death in order to teach others the sanctity of human life—it was discreditable alike to our intelligence and our Christianity. He believed the time would shortly arrive when, instead of tampering with the law, the House would see the propriety of altogether abolishing the punishment of death.


said, as the right hon. Gentleman had pointed out that there would be opportunities for fully discussing the subject on the second reading and in Committee, those who were opposed to the punishment of death would not in the least degree advance their views by opposing the introduction of the Bill. As he understood, the Bill was substantially the same as that which was brought in by the late Government last Session and passed through the House of Lords, founded on the Report of the Commission, which had paid the greatest attention to the subject and made a very valuable Report. He therefore thought the Bill should be received by the House with favour. With regard to the alteration made, it did not strike him as an improvement. Great advantage would have been secured if the division of murder into two degrees had been retained, allowing juries to decide into which class the criminal should fall; and this would have removed what was the necessary consequence of the present law—namely, the frequent interference of the prerogative of the Crown, after a review of the evidence and consultation with the Judge. The fewer of these cases the better; the more certainty in the administration of the law the better; and that certainty would have been secured in a much greater degree if the distinction to which he had referred had been retained. He did not clearly understand what part the jury would have in pronouncing to what category the criminal should belong; but it would be better to wait till the Bill was printed to see whether there was any substantial practical difference between the two proposals. With regard to the second Bill, the great argument that weighed with him in favour of executions, not strictly speaking "private," but within the walls of prisons, was derived from the Australian colonies, where the practice was attended with complete success, while the scandal of public executions was obviated.


believed that the country generally would cordially approve of the Bill which the right hon. Gentleman had just laid on the table—the feeling of the country had gradually become stronger and stronger on this subject. He could not help expressing his surprise at the argument of the hon. Gentleman that execu- tions within the precincts of the gaol would not be of any value as examples. On the contrary, he thought they would be even more deterrent than when they were made public spectacles. The first execution in Manchester lately took place, and there was a concourse of 20,000 or 30,000 spectators to witness it; and there was no person in that large city whose opinion was not that executions ought to take place private, and should no longer be made public spectacles.


hoped that if the Bill passed it would rest with the jury, clear of all misunderstanding, to say whether a prisoner was or was not guilty of murder, in the first or in the second degree—that they should be made clearly to understand and pronounce of what offence they were finding a man guilty. It seemed to him that the definition of the offence was wholly changed, and he hoped that change would not lead them into the position that they should be attaching the penalty of death to a crime which was not murder according to the old definition of the term. For his own part, he was one of those who wished to get rid of capital punishment altogether. We were fast approaching that now. So much success had attended the abolition of capital punishment for various classes of offences that it was a great inducement to follow in that course, and he did not think that in cases where the extreme penalty of the law had been abolished for any description of crime it had been followed by any increase in that particular description of crime. Another reason that weighed with him was that there was at present no secondary punishment for an offence that was not exactly murder, but which was next door to it, except by inflicting the same punishment as that meted out to the man who had committed a number of repeated petty felonies—so many years' penal servitude. He regarded that as a misfortune of the law, which he hoped would be remedied. When the Bill was before them, however, they would be better able to judge to what extent these various questions were affected.


thought that the Bill did not carry out so well the intentions of the Commission as that which had been introduced by the late Government had done; but since a discretion as to the class of offence must be left somewhere he preferred to leave it with the jury. He should oppose the Bill when it came before the House for discussion.


wished to know whether the provisions of the Bill were to extend to Scotland and Ireland as well as to England?


said, that the Bill was only intended to apply to England. As, however, there was a difference between the Scotch and the English criminal law, he thought it would be better if a separate Bill could be introduced to Scotland. In answer to the observations of several hon. Members, he had to state that it was intended in every case that the jury and not the Judge should find the "deliberate intention" to murder. The Bill is drawn up in accordance with the recommendations of the Commission, and the only case which is added to the list of capital offences is that of the murder of a policeman in the execution of his duty. If, in the opinion of hon. Members the Bill failed to carry out the intention of the framers, he had no objection to its being amended.


urged, in the strongest possible manner, upon the right hon. Gentleman the Home Secretary that he should include Scotland within the operation of the Bill. The question of capital punishment had long been a question upon which great interest was excited in Scotland, and he himself, twenty years ago, had signed a petition to this House praying for the abolition of capital punishment altogether. Any modification in the law proposed for England should, he thought, be extended also to Scotland. It was a mere matter of framing two or three clauses, and he objected to the principle of passing an Act of this kind which should be applicable only to England. The Law Officers of the Crown were competent to frame two or three clauses that would be sufficient, and he hoped, therefore, that they would be introduced.


wished to know if the Bill would apply to Ireland?


said, it would; and, with regard to Scotland, he would be willing either to bring in a separate Bill for that country, or to insert such clauses in the present Bill as would be sufficient for that purpose. But upon that he must consult the Scotch Law Officers.

Motion agreed to.

Bill for amending the Law relating to Murder, and for giving further protection to New-born Children, ordered to be brought in by Mr. Secretary WALPOLE, Mr. ATTORNEY GENERAL, Mr. SOLICITOR GENERAL.

Bill presented, and read the first time. [Bill 25.]