HC Deb 15 March 1867 vol 185 cc1918-32

rose to call attention to the present mode of carrying out life sentences, and to ask the Secretary of State for the Home Department, Whether, having in view the immediate discontinuance of transportation to Western Australia, and the proposal to substitute in many cases sentence of penal servitude for life for the punishment of death, he intends to make any better provision for the effectual treatment of such sentences. He believed that great progress had been made of late years in regard to penal legislation, and the treatment of criminals in prisons, and there had been a great tendency in their legislation to do away with capital punishment and add to the number of life sentences. When it was remembered that those sentences were applicable to the most hardened class of our offenders—to those who had their capital sentences commuted to penal servitude for life, and who had committed the most violent offences, such as burglary and the like, the House, he thought, would agree with him that those sentences ought to be carried out in a manner which was properly deterrent, and that those on whom they were passed ought not too easily or too soon to be thrown back into society. According to the rules laid down by the Directors of Convict Prisons, a different rule applied to those prisoners who were sentenced to penal servitude for life before the 12th of July, 1864, and those who had received such sentences after that date. The rule as to the first-class was this— Convicts under sentence of penal servitude for life received on public works prior to the 12th of July, 1864, to be brought forward when they have served twelve years from date of conviction; but it is clearly and distinctly to be understood that, although no recommendation for release is to be made until after twelve years, no right of release at that period is to be conceded, nor is the expectation to be held out that it will be granted. The rule with regard to those convicts who had received life sentences since the 12th of July, 1864, was that no expectation of release from prison after a certain number of years should be held out to them, and that every case must be taken on its own merits. The rules of the system, however, were not observed in practice. According to the evidence of Colonel Henderson, the chairman of the Directors of Convict Prisons, every prisoner expected a remission of his sentence at the end of about twelve years. If the fact were so, it was quite time to consider whether that was a proper mode of dealing with sentences of that nature. Colonel Henderson was asked by the Capital Punishment Commission in 1864 whether they had then in their convict prisons in England a considerable number of persons under sentences of penal servitude for life. He answered "Yes:" and when further questioned whether all these persons had not hopes that, after some time, by their good conduct and industry, they would get out of prison, his reply was again in the affirmative; and he added that he believed it would take a century to prove to the criminal class that they were in earnest and that they would be kept locked up; not one of them would believe it. Colonel Henderson went on to say— All those men now under sentence of penal servitude for life are told that they can expect no remission whatever; but they do not believe it; they know perfectly well that ten or twelve, or fourteen or fifteen years hence their cases will be brought forward, and that the crime will be almost forgotten; they are quite sure that something will happen, and that they will be released. Captain Cartwright, Governor of Gloucester Prison, was asked— Do you think that any of the convicts believe in the existence of such a thing as perpetual imprisonment under the present system?—No, they do not. They are perfectly aware that it will not be perpetual?—They are perfectly aware of it. Similar testimony was borne by the Governor of the Portland Convict Prison. It was not the custom to retain these prisoners in confinement beyond twelve, fourteen, or fifteen years, even though they had been sentenced to penal servitude for the whole of their lives. All these convicts were placed under the separate system for nine months at one or other of the separate system prisons. They were then carried forward to the public works at Chatham, Portland, or some other public works prison. The whole system of public works prisons was based on the convict gaining his liberty at some future time by good conduct and industry. Therefore, if prisoners under these sentences were to be detained for life, it was impossible that they could be kept in the convict prisons and put upon public works, where the prisoners obtained their release after a certain period by their good conduct and industry. The system of our convict prisons was not intended, at the time it was established, for sentences of this kind. It was originally intended entirely for dealing with sentences of ten, twelve, fifteen, or twenty years, which were to be carried out on public works, with the chance of a remission of the term on account of industry and good conduct. Formerly we sent away criminals to the Australian or other colonies; but that system had ceased. Western Australia declined to Receive any more convicts from this country, and for the future we must provide for their retention in this country. Sir Walter Crofton, a very able man, in the evidence which he gave before the Capital Punishment Commission) said— 3,554. The convict system in England, as established by Sir Joshua Jebb, was meant for an intermediate system?—It never contemplated keeping these men for life. Practically; if you have this class mixed up with others, they will be so accustomed to see stimulants to good conduct given in the way of tickets-of-leave, and other inducements, that they, not having anything of the sort, would be likely to be very troublesome; whereas, if they were in a special prison by themselves, where they would not be surrounded by those kinds of stimulants, they would be content with any slight improvement in position; you can preserve hope among prisoners by taking them from very hard and distasteful labour and placing them gradually to industrial employment. Again, when asked— 3,549. What do you suggest is the proper place? He said, I should keep them in prisons by themselves. I am firmly convinced, from my own personal experience, that almost all serious and successful assaults upon prison officers arise from negligence or carelessness on their own part, or from the want of what has been termed 'individualization,' or study of the individual character of the prisoners; so that many of them are placed in situations and at work from which they should have been carefully excluded. The danger of successful murderous assaults on officers will be found absolutely nothing under a judicious management. But two distinct objections were advanced against the detention of persons in prison for life. It was said that it would be bard to confine a man without holding out to him some hope of a remission of his sentence or some hope of some kind, because perpetual confinement with no other prospect before him would be dangerous to both his mental and physical health. In answer to that argument, he (Mr. Hibbert) might state, on the experience we had gained from our convict prison at Broadmoor, that there were on an average 100 prisoners kept in confinement at Broadmoor for nearly the whole of their lives without any such evil results being in their case produced. Another argument used against life confinements was this, it was contended that the safety of the warders would be endangered if they had to deal with prisoners sentenced to confinement for the whole of their lives. This argument was equally unsupported by experience. The number of the attacks made on the warders at Broadmoor did not, he believed, exceed those which were made on the officers of other prisons. He might add that in those instances in which such attacks were made his opinion was that they resulted from a neglect of the proper principles of treatment. A very able man, Captain Knight, formerly director of the Portland Prison, said he was perfectly convinced, after a long experience in such matters, that almost all the serious assaults which were made on the officers of prisons were in great measure due to their own carelessness, or from the want of what was termed "individualization." It was also shown by very important information which had been furnished by Sir Walter Crofton with respect to the prisons in Belgium and Baden, that the prisoners under life sentences there underwent long periods of solitary confinement, if judiciously treated, with little or no mental or bodily deterioration. The information which was furnished by Captain Knight with respect to the prisons of Louvaine, Ghent, and Namur, was still more important. Several prisoners were reported as having been subjected in those prisons to confinement for periods ranging from ten to twenty-five years, and one thirty-three years, without having their physical or mental health in any way injured. At Baden prisoners for life passed the first six years in solitary confinement, and that treatment was continued after that period if a prisoner wished it. At present there were six prisoners there under life sentences who were kept in solitary confinement, one of whom had been under that treatment for fifteen years, another for nine years, but their mental and bodily health had not suffered. Twelve other convicts had been in prison from twelve to fifteen years—they enjoyed good health mentally and bodily and were by no means depressed. Colonel Henderson said he might add that prisoners without the hope of liberty could only be confined in ordinary convict prisons by treating them as wild beasts in the Zoological Gardens. But, when asked if they could be kept in a prison apart from other convicts, under a separate provision, he stated that that could be done. The question which he had brought under the notice of the House was all the more important that the system of transportation was being done away with. He found that during the last six years 98 life sentences had been passed in this country, while 62 capital sentences had been commuted into life sentences, making altogether 160 which came under the latter head. Now, it was no easy matter to deal with so large a number of prisoners of that class. In 1856 no less than 31 convicts under life sentences were sent to West Australia, there being already there 83, so that there were thus 114 of those prisoners taken off our hands. Colonel Henderson, indeed, said in his Report for 1865 that there were only 81 life-sentenced convicts in the English prisons, 51 of whom were invalids. It was difficult to get at the exact number, but let him suppose there were only 81—it might very fairly be assumed that the state of things would be very different for the future. Owing, as he had said be- fore, to the abandonment of transportation to West Australia we would have to deal with an increasing number of those convicts at home, while the tendency to do away with capital punishment, except in extreme cases, would also operate in the same direction. Under those circumstances, he felt assured his right hon. Friend the Home Secretary and the House would concur with him in the opinion that it was highly desirable our penal system should be established on a sound basis and on large and intelligible principles. We had been going on very well of late years, building up a penal system which had obtained the approval of the French Government, whose Commissioner sent over to inquire into its working had reported favourably with regard to it. He hoped his right hon. Friend would not hesitate to do everything in his power to render it still more worthy of the country. He begged, in conclusion, to ask him, Whether, having in view the immediate discontinuance of transportation to Western Australia, and the proposal to substitute in many cases sentence of penal servitude for life for the punishment of death, he intends to make any better provision for the effectual treatment of such sentences?


said, it was impossible to overrate the importance of this subject, which he thanked the hon. Gentleman for having brought forward. He most emphatically agreed with the hon. Gentleman that the tendency of our legislation was towards, and would very shortly culminate in, the abolition of capital punishment, though a few antediluvians still clung to the belief that it was the great protector of our lives and liberties, just as the Judges of old believed that the jibbet was necessary to prevent stealing from a dwelling-house to the value of 40s. But just as he believed that capital punishment would soon be abolished, so to the same extent did he believe in the necessity for the establishment of such a system of secondary punishment as should act as a deterrent from crime. He was not one of those who could be charged with sentimentality in advocating the abolition of capital punishment; but he desired to prevent crime, and that the Judges should really mean what they said when they sentenced criminals to longer or shorter terms of imprisonment. The object of punishment should be threefold—first, the protection and security of society; secondly, the reformation of the offender; and, in the third place, any system should be deprecated which absolutely shut out all hope from the criminal, however abandoned he might be. And when he said "hope," he did not mean the hope of freedom; there were other sources of hope for prisoners. He did not say that the prison doors should ever be opened again to the worst class of criminals; but even to them there should be offered the opportunity of getting their prison condition improved in consequence of their good conduct in prison. He trusted that our future legislation would have the tendency to make the sentences that were passed real instead of merely nominal, and that the exception and not the rule should be to make the sentence less severe than the Judge had pronounced in open court.


said, he took a great interest in the question. At the last Social Science Congress held in Manchester in the autumn, he presided over the Jurisprudence Department of the old Law Amendment Society, which had been included within the scope of the Congress; and, on that occasion, at a meeting of one of the sections, presided over by the hon. Member for Middlesex (Mr. Hanbury), Sir Walter Crofton read a paper on this subject, which led to a very interesting and able discussion, in which a great number of those best acquainted with the subject took part. The result was that a large and very intelligent meeting came to a strong and almost unanimous resolution that the proposition now brought to the notice of the House was one that ought to be adopted as part of the law. There were, at the present moment, reasons of the greatest urgency why that should be done. One was that the old system of transportation to Western Australia was at an end; and another was, as he had heard Judges over and over again declare, that it was a great derogation to their high judicial office that they should be obliged to pass sentences of penal servitude or imprisonment for life, which they, and the jury, and the audience, and the prisoners, perfectly well knew would never be carried out. That was a mischief which tended to bring the law into contempt. The present was a fitting time to bring the question forward, because Parliament was on the verge now of considering carefully a Bill to limit the number of offences to which capital punishment should be applicable; and it was absolutely essential that the question which had been introduced that evening should also at the same time, and in view of such a change, receive consideration. If the Bill became law, a great additional number of life sentences would be passed; and it was admitted on all hands that prisoners on life sentences, if placed with other prisoners not sentenced for life, and if deprived of all hope of obtaining, as the others might, a diminution of their sentence, or of procuring better treatment for themselves, in consequence of good behaviour, would be rendered unmanageable; but, if separated from the rest, their health would not suffer, and they could be induced by the hope of improvements in their condition, short of the recovery of their liberty, to behave themselves well.


said, he was present at the discussion in Manchester which had been referred to by his hon. and learned Friend (Mr. Denman), and he listened for three or four hours until his blood ran cold at the elaborate descriptions of the system which was now proposed for adoption. The arguments in favour of the suggested change implied an absolute alteration in the present system of punishments. As long as transportation to the colonies could be continued it was known that the prisoners, if they behaved well, would obtain tickets-of-leave; and though they could not return to this country, they regained their liberty, and they or their children sometimes reached the highest positions in the colonies to which they had been sent. But since the convicts had been retained at home thousands of persons had been sentenced to penal servitude and transportation for life, but the sentence was never literally and exactly carried out, and no Judge who uttered it ever imagined that it would be. There had never been any false pretence about the matter as has been alleged, and no Judge had ever been wronged, or ever thought himself wronged, by the remission of the sentence. It might be doubted whether the public knew as well as the Judge did that the sentence would not be strictly carried out; and therefore the sentence when pronounced in court might have its full deterrent effect. But now, under the pretext of altering the administrative arrangements for carrying out the criminal law, Parliament was asked to make a substantial alteration in the system of punishment in this country. It was proposed that a man sentenced to imprisonment for life should have that sentence strictly carried out; and a man so convicted would be loft without hope—except such hope as it was suggested he would get from the prospect of an alteration in the circumstances of his confinement—the lightening of his fetters or of his labours—the confinement itself, however, lasting until his death. Nothing could be more unequal or unfair than that proposal which might condemn the young prisoner to sixty or seventy years of dreary imprisonment, while the old prisoner would die in a year or two after his sentence, and so escape. The principle of the English law had hitherto been to improve a prisoner under the influence of hope; but here was a new doctrine seeking to improve him without the use of that great agent for reformation. The proposal with all its surroundings was a step back towards barbarism, and not an advance in civilization, nor was there any excuse for the change. He contended that murder was almost invariably the single crime of a life. A man who might in every respect be good and exemplary—a good husband, a good father, a good neighbour—from some motive or impulse might be hurried into committing a murder, and for that he very justly forfeited his life; now, however, the law said to its administrators that the capital sentence might safely be done away with; but was it therefore necessary that a man who had committed a murder and whose sentence was imprisonment and not death should be kept in prison forty or fifty years without being allowed even the hope of getting out? Would any man say that it was probable if he should come out of prison that he would go and commit another murder? The pickpocket who was imprisoned and then let out again might very naturally return, and very frequently did return, to his former evil courses; but the man who committed murder was not at all likely to commit another if he were liberated. There was no danger or peril to society in letting such a man out of prison after he had been confined some time; and he could not therefore see why this stringent rule of confinement for life should not be relaxed. It appeared to him that some of the arguments used in favour of this proposal were the strongest arguments against it. It was said by those who were advocating such a course that if sentence of death was commuted into penal servitude for life it would take a hundred years to make the convicts comprehend that this sentence would not be further commuted to a sentence of imprisonment for years. It was satisfactory, however, to find that there was such faith in the clemency of the Crown that the convict who deserved the clemency of the Crown would get it, and he rejoiced that to root out that conviction from the mind of the convict would be no easy matter. Those men who were sentenced to penal servitude for life were to be kept like wild beasts in a menagerie. The effect of that would be most disastrous. The prison would in that case become a hell upon earth, because the very meaning of hell was a place whence hope was excluded. All hope of release was to be taken away from the convicts, which would reduce them to a condition that could not easily be imagined. Even those who favoured such a scheme acknowledged this, for they gave colour to the belief that the warders' lives would be endangered in having to take charge of men rendered desperate by despair of release, by making certain provisions which it was hoped would secure the warders from personal violence. One great and convincing argument against such a system was that men could not live under such circumstances. Mind and body would break down under a system so remorseless as this. The experiment, it was said, had been tried on the Continent to what extent they could inflict prolonged pain without destroying life. He hoped such an objectionable experiment would not be carried out in this country. The object of punishment was to protect society against crime and its consequences; but if care were not exercised we might establish a system of punishments which would re-act most unfavourably upon the moral tone of this country. Flogging, for instance, was a punishment which he should be sorry to see permanently established as a punishment in this country, not because he sympathized with the men who were to be flogged, but because he sympathized with the warders who were to inflict it, and with the public who had to read most revolting descriptions of the punishment. Another argument against the employment of extreme punishments was that crime was not increasing in this country, and that cruel and violent crimes—such as burglary with violence, and highway robbery with violence—were rapidly diminishing. For one burglary where the parties in the house were put in terror there were twenty where it was a merely secret entry; whereas burglaries used to be committed by half-a-dozen men with crape over their faces and bludgeons in their hands, and the utmost violence was used to the parties in the house. Extreme punishments were therefore not wanted to deter from crime. The nation was advancing favourably in this respect, and unfortunate indeed would it be if they should set up an entirely novel system of punishment, excluding hope and inflicting as much pain as possible, and for as long a time as possible, only not mitigating, not moderating, but graduating it to such a nicety as just to preclude the escape of the wretched victims from their tortures by dying.


said, he took a great interest in this question, and desired to point out that the hon. Member's (Mr. Hibbert's) proposition went to this extent only, that remission of life sentences should be made the exception, instead of being the rule, as it was at present. He could not help thinking the great desideratum was that it should be known what would be the effect of the sentences as pronounced by the Judge, and that the public at large should know what it meant. This was not the case at present. When a man was sentenced for only a certain period people knew what his punishment would be; but when he was sentenced for life they did not know. Up to the year 1864, the rule as regarded life sentences was that during the first twelve years of his imprisonment the convict could expect no remission, but that after that time the sentence would be taken into consideration and might be commuted. The result was that men sentenced to penal servitude for life got released sooner than men who had only been sentenced for twenty years. This was a great anomaly; and the alteration proposed was not a subversion of our criminal system, but carried it out to its logical conclusion.


In order to discuss this question in a fair manner, I think it may be as well to pay attention to what is the present state of the law—or rather the practice—as applicable to the existing state of things, and what will be the state of the law if the alterations be made in it proposed by the measures now before Parliament. The two questions are quite distinct. With regard to the first question the hon. Gentleman (Mr. Hibbert) is not quite accurate in his representation of the state of the law as regards life sentences. It is perfectly true that from the year 1857 down to the year 1864 the practice with respect to life sentences was that they should be brought forward for the consideration of the Home Secretary at the end of twelve years, although it did not necessarily follow that any immediate action should be then taken upon them. But this is not the present practice. When last year I succeeded to the office which I have now the honour to hold, I found that the right hon. Gentleman who preceded me (Sir George Grey) had had his attention drawn to the question whether twelve years was the proper period at which life sentences should be brought forward for further consideration, and that he had given a qualified approval—which met with my concurrence—to the proposition that life sentences should not be brought forward for the consideration of the Home Secretary until twenty years after they had been passed. The state of the practice under the present law is therefore much more severe than it was three years ago. The reason for this alteration is unanswerable, and has been pointed out by the hon. Gentleman who has just sat down (The O'Conor Don). According to the present practice a convict who has been sentenced to twenty years is not entitled to a remission until the end of fifteen years; and a man sentenced to twenty-four years is not so entitled until the expiration of eighteen years; and it appears to me that it is most unjustifiable that a man on whom has been passed what purports to be a much heavier sentence—imprisonment for life—should have it commuted at the end of a shorter period. The Secretary of State for the Home Department has three things to look at in the remission of sentences. In the first place, they have to take into consideration the heinousness of the crime committed; and this very year I have refused to look into case after case upon the ground of the enormity of the crime committed by the convict whose case was sent up for remission. In the second place, the Home Secretary has to look at the conduct of the convict in prison; and thirdly, he has to take into consideration the health or age of the convict, or any other peculiar character the case may present which may constitute a reason for the remission of the sentence. I need scarcely point out that as under the present practice a life sentence cannot, as a matter of course, be brought up for remission until after a period of twenty years it constitutes a most terrible punishment. With reference to the number of life sentences, I may observe that there exists some misapprehension. I have been much surprised at the small number of cases in which such sentences are pronounced. Thus, in the year 1865, there were only eleven, and in the year 1866, there were only sixteen instances in which convicts were sentenced to confinement for life; while the total number of convicts in England subject to such a punishment is only; eighty-one—a state of things which is very different to what is generally supposed to exist. Of these there were sixty-three, I who, from age or state of health, it had not been practicable to transport. That being the state of the law as it stands at present, a very difficult question arises as to whether any and, if so, what alteration can possibly be made in the law when transportation has been discontinued, which will, in all probability, be the case at the end of the coming summer. A ship was dispatched to West Australia the other day with 250 convicts; and probably another ship, which would be the last dispatched, would carry out about 280 more. When that event takes place the question will arise as to what is to be done with our convicts who have been guilty of the graver offences. When I had to consider this question in 1852, it was then represented that it would be necessary to secure some place near the United Kingdom—Lundy Island was at one time thought of—where the worst class of convicts might be sent, and where they could be placed under a more severe discipline and punishment than those who had been convicted of lesser offences. That, however, is a matter for future consideration, although at the time it was made, I thought the suggestion was a proper one. Some such system ought, I think, to be adopted, especially with regard to convicts who, having had their life sentences remitted, have afterwards forfeited their light to be at large. I must further say a few words as to the mode in which life sentences ought to be carried out. Life sentences are now passed for the crimes of murder, attempts to murder, manslaughter, rape, arson, and one or two other offences. Persons convicted of these different crimes are, have been, and should be, dealt with in precisely the same manner. Therefore, I think, some discretion should be given to the Secretary of State as to the principle upon which these sentences, passed upon convicts whose crimes must necessarily vary somewhat in degree, should be carried out. I own I rather shrink from the notion that you are to lay down a rule by Act of Parliament which is to be inflexible under any circumstances. It must not be forgotten that if you destroy hope you destroy one of the great objects of punishment—namely, the reformation of the offender. I therefore think that no better rule can be adopted than to say that these life sentences shall not be brought up for remission until after a period of twenty years, and I would then leave the Minister who has to administer the law with reference to this subject free to exercise his discretion in the matter, to take into consideration all the circumstances of the individual case brought before him, and to decide whether the convict should remain in prison for life, or whether his sentence might be properly commuted. The conclusions I have come to upon this subject are that it is desirable, in view of the alteration in our convict system about to be introduced in consequence of the abolition of transportation, we should have some penal establishment near this country, where we can send the worst class of offenders; and secondly, that some discretion should be left to the Minister who has to administer the law with regard to the remission of life sentences, so that the prisoner should not be left entirely without hope in case he redeems his character after undergoing punishment for a long period. But, in saying this, let it not be understood that I have made up my mind upon either of these points absolutely, since, before any practical decision can be arrived at, the whole matter must undergo very careful consideration.


said, he did not understand the hon. Member for Oldham (Mr. Hibbert) to object to any remission of life sentences, but merely to propose that in cases where those sentences had to be carried out in their entirety a separate place of confinement should be provided for those undergoing penal servitude for life. He had no desire to aggravate that punishment, or to lay down any rule by which the exercise of the prerogative of the Crown in remitting the punishment was to be controlled. He had risen for the purpose of calling the attention of the Home Secretary to a Return laid upon the table of that House in 1865 in relation to penal servitude in Ireland, which showed the number of prisoners undergoing penal servitude for life, the crimes for which that sentence had been awarded, and the number of cases in which the punishment of death had been remitted to that of penal servitude. It appeared from that Return that on the 14th of June, 1865, out of thirty-eight persons who were then undergoing penal servitude for life, ten of these had been found guilty of murder, and sentenced to death, but their sentences had been commuted; one was a case of manslaughter. Of the remaining twenty-seven persons eight were for crimes of violence to the person, two had been convicted of having base coin in their possession after a previous conviction, one for sheep stealing, after a previous felony. One was for robbery from the person, two for highway robbery, one for sacrilege, four for burglary, one for burglary and robbery, and others for robbery. If therefore, as had been suggested, it were made an inflexible rule that no application for the remission of life sentences should be entertained till after twenty years, it would operate very harshly on prisoners whose offences had been of a much less serious character than murder. He felt no hesitation in saying that, in many of the cases set out in the Return, not such sentence as that of penal servitude for life ought ever to have been passed. With regard to persons who had given such reins to their passions as wilfully to take the life of a fellow-creature, he thought they could rarely be allowed to regain their liberty, and that their confinement was necessary for the protection of society. He believed that the subjects of life sentences were humanely treated, and that there was no reason to fear the infliction of the severities deprecated by the hon. and learned Member for Marylebone (Mr. Chambers.)

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