Commons Sitting of 21 April 1868

MINUTES.
NEW WRIT ISSUED—For Grantham, v. William Earle Welby, esquire, Chiltern Hundreds.
SUPPLY—considered in Committee—Resolutions [April 20] reported.
PUBLIC BILLS—Ordered—Married Women's Property; Broughty Ferry Provisional Order Confirmation.*
First Reading — Married Women's Property [89].
Second Reading—Legitimacy Declaration (Ireland)* [87].
Committee — Capital Punishment within Prisons [36]; Religious, &c. Buildings (Sites)* [18]; Artizans' and Labourers' Dwellings [1].
Report — Capital Punishment within Prisons [36]; Religious, &c. Buildings (Sites)* [18]; Artizans' and Labourers' Dwellings [1–88].
Third Reading—Petty Sessions and Lock-up Houses* [75]; Prisons (Compensation to Officers)* [80], and passed.

MARRIED WOMEN'S PROPERTY BILL.

  LEAVE. FIRST READING.
  MR. SHAW-LEFEVRE, in rising to ask for leave to bring in a Bill to amend the Law with respect to the Property of Married Women, said that had there been any important Government Bill in the Paper for that evening he should have hesitated, in the present state of the business of the House, to detain it with any statement at the present stage of the Bill which he should ask the leave of the House to bring in; but, as there was nothing of importance, he hoped he might be permitted to take this opportunity of explaining its object. In the able speech of last year in which his hon. Friend the Member for Westminster (Mr. Stuart Mill) advocated the claims of female ratepayers to the suffrage the argument which had most weight with himself, and he believed with many others who voted with him, was that in which he pointed out the grievances resulting to large numbers of married women from the present state of the law relating to their property. He stated that, as a rule, the wealthy classes escape from the operation of the Common Law by means of marriage settlements; but that this course not being open to the poorer classes, they come under the full force of its severity. He said that if women had a share in the return of Members to this House there could not be a doubt that one of the first measures that would be forced upon our attention would be one for
  1016
  amending this law. The House rejected the claims of the hon. Member, and women would be no better represented in the new House than in the present. It would not therefore be unreasonable that they should take an opportunity of considering the grievances complained of. The Bill which he proposed with this object was almost identical with one which was drought into this House in 1857 by Sir Erskine Perry. That Bill had been prepared, after a long inquiry, by a committee of the Law Amendment Society, of which the noble Lord the Secretary of State for Foreign Affairs was a member, and the right hon. Baronet the Secretary of State for War an active supporter. The Bill was read a second time late in the Session by a majority of 120 to 65; but, notwithstanding this favourable start, nothing more had been done in the matter since that time. It happened that in the same year the Divorce Act was passed; and in the course of it a clause was inserted which, by giving magistrates power to make orders protecting married women from claims on their property and earnings by husbands who had deserted them, remedied to a small degree the evils then complained of. It was thought, he presumed, that, as something had been done, it was not desirable to renew the discussion on the broader question. In the course, however, of the last autumn a very numerous petition was presented to the Law Amendment Society, praying them again to exert themselves on this question, and in consequence another committee was appointed by that learned society, composed of able lawyers and others, who, after an independent inquiry, came to the same opinion as the previous one. It was at the invitation of that society that he now proposed the Bill. Before stating its purport he must ask the indulgence of the House while he stated briefly the effect of the law which was complained of. If he wished tersely and accurately to describe the present state of the Common Law, which regulates the status of nineteen out of twenty marriages in this country, he could not do better than take the words of Shakespeare, in which, when Portia gives her hand to Bassanio, she says—
  "Myself, and what is mine, to you and yours
  Is now converted: but now I was the lord
  Of this fair mansion, master of my servants,
  Queen o'er myself; and even now, but now,
  This house, these servants, and this same myself
  Are yours, my lord."

  1017
  That, which was then a true description of the Common Law, was true to this day. Marriage, in fact, operated as an absolute gift to the husband of all that the wife had or which would come to her during marriage. It was true that in the case of real property the husband could not dispose of it without the wife's consent; but he received the rents during their joint lives, and might dispose of this interest. With respect to her leasehold and personal property, it was absolutely at her husband's disposal, and if he was reckless or extravagant she had no means whatever of restraining his expenditure. If, in order to provide against penury, she earned any money by her labour, all she earned became the property of her husband, and all her savings belonged to her husband. It would be found, on looking at the depositors' books of the Post Office Savings Banks that a notice was attached to them stating that, although money would be received from married women, it would be paid over to their husbands on application. The husband did as he thought fit with her property, as, indeed, with his own; he was subject to no control on her part; if he was unfortunate it went to his creditors; if he was reckless she could not restrain him. Indeed, at Common Law the wife had no separate existence from that of her husband. She could not contract, or sue or be sued. She and her husband were considered as one person; but that person was not a combination of the two, but was represented by the husband alone. Blackstone, after stating the effect of the Common Law, remarked that the very disabilities to which women were subjected showed how great favourites they were to the law. No women, he thought, would agree to that. Nor, in fact, did the Court of Equity. It would be easy out of the practice and judgments of the Judges in Equity to pronounce the condemnation of the Common Law which it deserved. At what time the Equity Judges first introduced these exceptions it was now difficult to trace; whether it was due to the old ecclesiastical Chancellors or to the earlier lay Chancellors, like Lord Ellesmere and Lord Nottingham, who first transplanted some of the more equitable doctrines of the Civil Law, we could not now tell. All that we could say was, that from a very early date equity had recognized the separate existence of the married woman and the possibility of her having a separate estate. If Shakespeare had lived in the present day he would probably
  1018
  not have described the high-spirited, noble, and wealthy Portia as so completely handing over herself and her property to her husband; she would have made favourable arrangements for herself, and by means of marriage settlements and trustees have provided for a separate estate during marriage, free from her husband's control. It would not be uninteresting if he were to point out the various stages by which the Courts of Equity have advanced towards carrying out a more just policy to married women. They began by recognizing the fact that through trustees a separate estate could be secured to the wife free from the control of the husband; they then went a little further, and conceded to her what was called an equity to a settlement—that was, in the case of any money coming to her after marriage, they recognized that in certain cases the wife was entitled to a portion of this to her separate use, so as to secure her against her husband's improvidence. At the same time, they had proceeded very timidly and cautiously, not liking to give her all. By way of illustration he gave two cases; in one, a married woman, whose husband had become insolvent, and who was utterly unprovided for, became entitled as next of kin to £1,000. She applied to the Court of Chancery to have it settled to her separate use, free from her husband's creditors. Lord St. Leonards would not give her the whole of it; he directed £600 to be given to the wife and £400 to the creditors, who, he said, with curious logic, were entitled also to some compassion for their wives and children. In another case a husband had deserted his wife, leaving her unprovided for; he was living with another woman, under circumstances which made it impossible to suppose that he could ever return to his wife. The wife became entitled to £6,000, and applied to have the whole settled upon herself; the Court would not give her the whole, but directed one-fourth of the sum to be paid to the scoundrel who was her husband. Lord Cottenham in a case before him stated the grounds for giving a wife what is called her equity to a settlement in a way which clearly showed how inadequate the process of equity is for really dealing with the case. Lord Cottenham said—
  "The Common Law gives to the husband the property of the wife, upon the ground that he is liable to maintain her, and makes no provision for the event of his failing or becoming unable to perform that duty. If the property be attainable at law

  1019
  by the husband or his assignee at law, the severity of this law must prevail; but if it cannot be reached otherwise than by the interposition of this Court, equity, though it follows the law, and therefore gives to the husband or his assignee the life estate of the wife, yet withholds its assistance for that purpose, until it has secured to the wife the means of subsistence; it refuses to hand over to the assignees of the husband the income of the property which the law intended for the maintenance of both."
  The Courts of Equity had not only given to the wife her equity to a settlement, and recognized the possibility of her having a separate estate; but they had given her in respect of her separate estate all the incidents attaching to property, the right to contract with respect to it, and to sue and be sued in the Courts of Equity. A woman in equity could be a separate trader; she could also sue her husband in equity; and the Court would in some cases hold him to be a trustee for her, and compel him to do what was right. Through these decisions of Chancery a system had grown up, under which, by virtue of marriage settlements, the wealthy classes, almost without exception, escaped from the operation of the Common Law. No man of position or wealth would dream of allowing his daughter to marry under the simple condition of the Common Law, no matter how favourable appearances might be. He would very properly insist upon a marriage settlement, to secure her against the husband's misfortune or neglect. If the lady were wealthy a portion of her fortune would be settled on her to her separate use. It rarely happened in the upper classes, therefore, that a wife found herself under the provision of the Common Law only; but exceptional cases were sufficient to condemn that law, and he presumed few persons would fail to recollect some case of hardship to married women, even among the wealthy. The very fact that the wealthy as a rule set aside the law was the best evidence that they were not satisfied with it. But if this were so with the wealthy, far more so was it with the humbler classes. It was universally admitted that marriage settlements and trusteeships were quite inapplicable to the case of very small fortunes, or to cases where women were earning small incomes by professions or by wages. The result was that these people were left without any protection from the effect of the Common Law, and the consequences were often disastrous. If the marriage turned out well, if the husband were prudent, trustworthy, sober and kind,
  1020
  no harm resulted; but if he proved reckless, improvident, vicious, self-indulgent, drunken, or even only unfortunate, everything the wife had would be swallowed up, and her position would become one of great hardship. The fact that the husband had uncontrolled property in his wife's savings and earnings was then the fruitful source of wretchedness. It often acted as an inducement to the husband to become idle or drunken; it prevented the wife having that moral control over him which she might otherwise have; it sometimes took from the wife the motive for exertion, and urged the family downward in its career of misery. The Census showed that out of 3,200,000 wives in this country upwards of 800,000 were employed in professions and trades of various kinds. Almost without exception these persons were without the protection from the Common Law which the wealthy had found so necessary; their earnings belonged to their husbands and not to themselves. Yet it seemed that what a woman earned by her own exertions ought to be far better secured to her than anything even which comes to her by bequest or descent. If we reflected for a moment upon the number of those women who, having made an unfortunate choice, found themselves bound for life to bad husbands, some idea might be gained of the amount of unhappiness and wretchedness resulting from the operation of the Common Law, unhappiness which might be greatly alleviated, though not perhaps removed, by its change. There was, perhaps, no one in the House who had not become acquainted with some case of peculiar hardship. He could mention many, but would refer only to two. In one case a wife who earned money by her own work had, unknown to her husband, put by a little store in the savings bank against a bad day; her husband, a dissipated, improvident man, suspecting the fact, tested his wife by suddenly saying to her, "Do you know the savings bank has failed?" The poor woman fainted from the shock, and her husband immediately went off and drew out her money. In another case, which he had been told was very common, a married woman, who was clever and industrious and could easily earn money, had for a a husband an engineer on board a man-of-war, whose practice it was to come back to his wife after his cruize, and in a few weeks to clear his wife out by living upon her savings and the proceeds of a sale of her small stock in trade. As he was not cruel

  1021
  to her within the meaning of the law, and as his absence on a cruize could not be deemed desertion, she could get no reparation; she had no resource but to submit to his periodical visitation. He would not multiply cases; they were matter of common knowledge, and he was certain there was no statesman, philosopher, or lawyer who, after a candid consideration, would not admit the Common Law of this country was unjust in its operation upon large classes of people. The only question was whether to proceed further in the direction of the exceptional provisions of equity, eating into the principle of the Common Law, but leaving that law still in the fundamental groundwork of the system, or whether to make a change in the Common Law itself, and to give to the married woman an absolute property in her own fortune, earnings, and savings. He believed the latter was the true course to take. The whole process of equity was really inapplicable to the great bulk of the people; the law itself should deal equitably with the case of married women. It was not sufficient to meet the case by expedients, which could only be brought into operation by ante-nuptial arrangements or by special applications. It was often too late already when these applications were made; and the great bulk of people did not understand or could not get the legal advice to enable them to take advantage of them. The Bill, therefore, which he ventured to introduce proposed to make a change in the Common Law itself, so as to prevent in the future marriage operating as a transfer of the wife's fortune to the husband. In the case of existing marriages it would secure to the wife any future earnings which she might make or any property which she might hereafter become entitled to, and in respect of such separate property the wife would be able to contract and to sue and be sued in the Law Courts as if she were a single woman. The change might seem a startling one, but it would not really be very great. He believed it would make very little difference with the wealthy; it was not proposed to interfere with the power to make marriage settlements, but in those exceptional cases where no settlement was made the wife would have there her own fortune, just as if it had been settled to her separate use under a marriage settlement. It was with the humbler classes that the change would be the greatest, and it was there the change was most needed. He would not on the present occasion deal
  1022
  with all the objections which would probably be raised. There were two points, however, on which it was advisable to say a few words. It would be urged that, as the husband was responsible for the maintenance of his wife and children, it was only right that he should have his wife's fortune. He had already shown that there was no legal means of enforcing this obligation of preventing him from disposing of the means of fulfilling it, and that equity gave this reason for its interference; but even where the husband did not part with his wife's money, but retained it in his hands, his legal obligation to maintain her was of the most shadowy character. It had sometimes been thought that the wife, when living with her husband, had a right to pledge his credit with tradesmen for the supply of necessaries according to her station in life, but a recent decision had shown that even this was not so. The wife was now held to be only his agent for ordering goods of tradesmen as long as he pleased; and if he withdrew his authority, even without public notice, if he only forbade her to order goods or to pledge his credit, she had no right to do so. The ground on which this was held was that the husband ought to be absolute master of his own style of living, and that it ought not to be left to a jury to say how his wife should dress. The husband might treat her, in fact, as Petruchio did Katherine. Sir William Erle said—
  "If the wife, taking up goods from a tradesman, can make her husband's liability depend on the estimate by a jury of his estate and degree, the law would practically compel him to regulate his expense by a standard to be set up by that jury."
  The reasoning seemed sound, but the result was that the husband's legal liability to maintain his wife was reduced to the merest shadow; if she lived apart from him, without any fault of her own, then it seemed that he was liable to tradesmen who supplied her with necessaries; but she had no direct remedy against him, and this circuitous process was of very little value to the woman. He had received information from two of the leading magistrates in London, showing what hardship often resulted to women who had been deserted by their husbands and who refused to support them. There was no means of getting at them, even though they might be making good wages in the same parish in which their wives were receiving parochial relief. If the legal responsibility for the

  1023
  wife were small, it was still less in the case of the children.
  "However plain the moral obligation" (said Mr. Justice Blackstone) "that every man shall provide for those descended from his loins, it is one which the Common Law seems to have given no means of enforcing."
  The Statute Law had done no more except to provide against the case of the father allowing his children to fall upon the parish; if he did this, he was liable to be punished criminally. Short of this, he might do as he liked with his children; he was not bound to educate them, or feed, or dress them after any style appropriate to his own or his wife's fortune. Where the law had been content with the moral obligation, it was obvious that the children would be as well off where the mother shared that moral obligation as where it fell only on the father, and therefore, on the one hand, no argument could be founded on this in support of the present law; and, on the other hand, it was not necessary in any change that was made to provide specially that the wife should be liable to contribute; it might be properly left to moral obligations. Then, again, it would be said that it would be fraught with danger to teach married couples that there might be a separation of interests, and that to introduce into any home the principle of separate rights, interests, and a separate legal existence would detract from the sacredness of marriage. That argument, if good at all, was good against the whole doctrine of separate estate as now allowed by Chancery under marriage settlements. It did not seem that in the case of the wealthy they attached much importance to this argument; nor could he ascertain that any real harm resulted from those cases within his knowledge where the wife has a separate estate; but we had a far wider experience to draw upon than the comparatively few such cases in this country. In the United States for the last twenty-five years the various States had been legislating in the direction which he advocated. They inherited from us our Common Law, but they had not respected it as we had. Some of the States at once went the full length of the present Bill; others proceeded by slow degrees, but now, almost without exception, married women had their separate property throughout the States. Vermont adopted this in 1847; New York made a step towards it in 1840, and completed it in 1860; Pennsylvania in 1848; Massachu-
  1024
  setts in 1855; and the experience everywhere of the results had been favourable. The change had given great satisfaction. An eminent lawyer, Mr. Dudley Field, who was mainly concerned in drawing up the Code of New York, speaking on this point in public, said he did not believe there was a single person in his State who wished to return to the Common Law; every change had been in the direction of carrying out the new principle still further. It had not been found that any evil had resulted; the sanctity of marriage had not been impaired; the homes of New England were as happy as they were before, while cases of great hardship had been redressed, and the status of women, particularly in the lower classes, had been greatly improved. If he wanted further authority, he could quote from the recent Reports of the Indian Law Commission, composed of the most able lawyers in the country, Lord Romilly, Sir William Erle, Mr. Justice Willes, Sir Edward Ryan, the right hon. Gentleman the Member for Calne (Mr. Lowe), and others. They were instructed to frame a code of Civil Law framed on English principles, but with such alterations as they thought fit — a code which would form the general law of all classes in India, subject to the special customs of certain sects. [Mr. LOWE: Not of the Hindoos and Mahommedans; to the Europeans and Eurasians it will apply.] These Commissioners, after careful discussion, rejected the Common Law of England, and had given to married women their separate property and a right to contract. These recommendations had already passed into law. Could any one doubt if it were referred to the same Commissioners what ought to be the Law of England that they would report to the same effect? In conclusion, he would only add that just as there was no civilized country in the world where the law was so unfavourable to married women in respect of their property as in England, so he believed that there was no country where so much good was to be achieved in raising the status of women of the lower classes by giving to them their earnings and their savings. He did not take any sentimental view of this question; he refrained from expressing his opinion whether women were or were not the equals of men. He put the question upon expediency and experience. Let them have as far as possible fair play, remove unequal legislation, and women would then speedily find their true level, whatever that might be, for which by nature they were intended.
  Bill to amend the Law with respect to the Property of Married Women, ordered to be brought in by Mr. SHAW-LEFEVRE, Mr. RUSSELL GURNEY, and Mr. STUART MILL.
  Bill presented, and read the first time. [Bill 89.]

PROCEEDINGS IN COMMITTEE OF SUPPLY.—RESOLUTION.
Resolution [9th February 1858] relative to Proceedings in Committee of Supply read, as followeth:—
"That when it has been proposed to omit or reduce items in a Vote, the Question shall be afterwards put upon the original Vote or upon the reduced Vote, as the case may be, without amendment."
MR. AYRTONrose to move the following Resolution:—
"That the Resolution of the House on the 9th day of February, 1858, That when it has been proposed to omit or reduce items in a Vote the Question shall be afterwards put upon the original Vote or upon the reduced Vote, as the case may be, without amendment,"
be rescinded; and that, instead thereof, it be resolved—
"That when it has been proposed to omit or reduce items in a Vote the Question shall be afterwards put upon the original Vote or upon the reduced Vote, as the case may be, unless an Amendment be moved for a reduction of the whole Vote."
He had been induced to bring forward this Resolution in consequence of what occurred last night in Committee of Supply with regard to the Vote for Palaces, &c. In former times it was the practice of the Crown to make a general demand upon the House for certain sums which were considered necessary for the public service; and it was the practice of the Committee to express its opinion by granting the whole of the sums so demanded, or by diminishing it, leaving to the Crown the responsibility of applying the money to the necessities of the country. It was found that the Crown, instead of appropriating the public money in the manner suggested when the Supplies were asked, sometimes, by the ill advice of the Ministers of the day, appropriated the money for other and different purposes, and it was found necessary to provide means for more specifically applying them, and then the practice grew up of having the Votes divided under separate heads. But such was the disinclination of the House to any very minute investigation of the details of Supply, that the Government was permitted to apply any savings which might be made under one particular Vote to the purposes of any other Vote. That went on for some years,
1026
and it was competent for any Member to move to reduce the amounts. A few of the items of the great services of the country came before the Committee, and the miscellaneous Estimates in larger amounts. When the spirit of reform and retrenchment began to prevail, a new system was introduced—that of having each Vote divided into a number of items. In fact, each Vote came to be accompanied with a Schedule of explanatory statements. In 1857, when that practice had grown to a considerable extent, difficulties arose in Committee of Supply with respect to the expenditure for palaces and public buildings in the occupation of the Crown; and the confusion became so great that he (Mr. Ayrton) ventured to suggest that, when a question was raised as to a particular item, the discussion should for the time be taken on that item, and questions with respect to it should, at the close of such discussion, be put from the Chair. The subject was afterwards brought under the consideration of the House, and a Resolution was moved by Sir Denham Norreys, that if any question was raised in Committee of Supply respecting a particular explanatory item, that the Vote of that item should be debated, and the sense of the Committee taken upon it; but the right hon. Gentle man the present Prime Minister and other experienced Members of the House pointed out the great dangers that might arise from altering a proceeding that had prevailed for upwards of 200 years, and a Select Committee was appointed in consequence to consider what was the best mode of taking Votes in Committee of Supply. That Committee agreed to certain Resolutions, one of which stated that, when the question had been taken on a particular item, no question should subsequently be put on a preceding item; but, when any reduction occurred, the next question to be put was that on the Motion that the Vote should pass. The Committee reported at the end of the Session of 1857, and in 1858 a proposal was made by the then Chancellor of the Exchequer to give effect to the Report. With this object certain Resolutions were moved at two o'clock in the morning, without any serious consideration or discussion. Now, the point to which he had to call the particular attention of the House was that the most important of those Resolutions, instead of being identical with the Resolution to which he had just referred as having been adopted by the Select Committee, was not in ac-

1027
cordance with that Resolution. This Resolution was passed by the House—
"That when it has been proposed to omit or reduce items in a Vote the Question shall afterwards be put on the original Vote or on the reduced Vote, as the case may be, without amendment."
He thought the real signification of that Resolution had not been brought under the notice of the House. It amounted to this—that if any Member in Committee of Supply submitted for the consideration of the Committee the omission or reduction of an item, however small, from the explanatory statement of a Vote, after that proposition had been put from the Chair, it should not be competent to any Member to move the reduction of the whole Vote. The practical result was that if, on any great Vote, a Member proposed that an item in it, however trivial, should be considered, every hon. Member would be precluded from canvassing the expediency of the whole Vote and its general effects. In the Navy Estimates the first item was "Payment of Officers and Men." Supposing an hon. Member questioned the policy of maintaining the Navy on its present footing in time of peace, the proper mode of proceeding was to move the reduction of the number of officers and men. His objection was to the general policy of the Government. He objected to the policy of maintaining so large a force; and his mode of getting an expression of the opinion of the House was, to move that the Navy ought to be reduced one-fourth or one-fifth of its present number; but to cast on the Government the duty and the responsibility of determining, if the House decided in favour of the reduction, how the reduction should be carried into effect. His was a question, not of detail, but of policy. The item for wages was £3,036,000. He had a right to propose to reduce the number by 4,000 or 5,000 men. But, according to the decision of the Chairman last evening upon the Resolution inconsiderately adopted by the House, if an hon. Gentleman got up and said he observed that we employed 195 flag officers, which he thought was a monstrous number, and that they cost £49,000, and he desired to take the sense of the House whether there ought to be so many flag officers, and he proposed that the sum of £49,000 for 195 officers should be reduced by £10,000; this was a proper Resolution; but then the discussion must be confined to that item. This was a very reasonable and a
1028
very proper proceeding. But, if the Chairman put this Motion to the Committee, the Committee were thereby debarred from afterwards voting on the question of policy. Could it have entered into the contemplation of the House, when it passed that Resolution at two o'clock in the morning, that it had adopted a proper mode for conducting the Business of the House? It had been suggested by the Chancellor of the Exchequer that, if Members were at liberty to move the reduction of a whole Vote after a particular item had been canvassed, the same matter might possibly be discussed twice over. In point of fact, however, the particular and general questions were separate and distinct from each other, although they perhaps might, to a certain extent, go over the same ground; whereas, in order to uphold the Resolution, it must be shown that the two questions would necessarily and invariably go over the same ground. Again, the reason assigned by the right hon. Gentleman did not hold good; because, since these Resolutions were passed, it had actually been ruled by the Chairman, in Committee of Supply, that if an hon. Member moved the general reduction of a Vote, and if that Motion were carried against him, another Member might start up and propose a reduction of the items in detail. It so happened that the Resolutions did not prevent this from being done. But his difficulty was this: the Resolution expressly proclaimed that, if a Member discussed a particular item, it was the duty of the Chairman to put the Vote from the Chair; and then it could not be brought forward again. So that a Member had the power of preventing a general discussion of a question of policy. He (Mr. Ayrton) would amend the Resolution in this way: that, after a particular item had been the subject of discussion, any Member should be at liberty to exercise his constitutional right of moving a general reduction of the whole Vote. Was it desirable to have such a proceeding? He had heard the opinion of many Members of that House, and he believed that hon. Members would agree with him that nothing was more expedient, nothing more desirable, if they wished to enforce retrenchment and economy. He thought it most desirable to uphold that principle, and not endeavour to take out of the hands of the Ministers of the Crown the details of administration, but confine themselves to expressing an opinion that the expenditure was too large, and leave the Govern-

1029
ment to go into the details and ascertain in what way the retrenchment could be best carried into effect. He thought that both modes ought to be preserved. They ought not to allow any individual Member to deprive another Member of the opportunity of bringing any business of this kind before the House. The question was one of such grave importance that he had felt it his duty to bring it formally under the notice of the House.
Motion made, and Question proposed, "That the said Resolution be rescinded."—(Mr. Ayrton.)
THE CHANCELLOR OF THE EXCHEQUERsaid, that this was a matter of considerable importance, and he was not at all surprised that the hon. and learned Member who took objection to the proceedings of last evening had brought it before the House; but he thought it was not desirable to decide at once a point only just raised upon a Notice given at an early hour that morning, and of which many Members were not aware until breakfast time. It was desirable that hon. Members should have the fullest opportunity of discussing the Estimates in detail, and moving Amendments; but he did not think that practically the Committee were deprived of that privilege. The hon. and learned Member for the Tower Hamlets thought that every Member should have the opportunity of moving, not only the rejection of an item in the Vote, but the general reduction of the Vote itself. He concurred in this; but he reminded the hon. and learned Member that it was still open to a Member to move the general reduction of the Vote, notwithstanding that another Member had previously moved the rejection of a particular item. That being so, a Member must make up his mind in time whether he would move the reduction of an item or the rejection of a Vote, and would wait until he saw whether an objection to a particular item would succeed. If no such rule were adopted, they might have two decisions on a Vote, placing the Government in a position of considerable difficulty; because it might happen that the Committee would not entertain Amendments for the rejection of a particular item, and adopt that for a general reduction of the Vote, the consequence of which would be that the House having affirmed the item to which objection had been taken, the other items which had not been objected to would suffer in consequence of the gene-
1030
ral reduction of the Vote. For instance, if in Committee on the Navy Estimates it was affirmed that 195 flag officers were necessary, and the whole Vote was afterwards reduced, the Government would have considerable difficulty in saying how the reduction should be apportioned. He quite agreed that in all cases the better and more constitutional way was to move the general reduction of a Vote; but if the Committee took on itself to discriminate and to affirm an item which had been objected to, it was rather hard on the Government that they were to be called on to reduce others in the Vote. He admitted that there was considerable force in the objection of the hon. and learned Member; but, at the same time, he should be sorry to see the existing rule rescinded.
MR. J. STUART MILLsaid, that as it appeared likely that this matter would go back for re-consideration, he might be permitted to suggest a further point. The Motion of his hon. and learned Friend was on a very important and very valuable subject, and formed part of the largest questions. The rules which, in the course of centuries, had been elaborated in this House for the conduct of the Business had been most deservedly admired. But difficulties might arise when the House could only have one Amendment on the same point; because, as soon as one Amendment had been rejected, it had resolved that the original Motion should be put unamended. It might be well for the House to examine this point. According to the rule of the French Chamber, whatever number of Amendments there might be moved, the question of precedency was decided in this way:—The Amendment which was farthest from the original Motion was put first, and if this were lost, the others were put in succession. Might it not be as well to adopt the plan here?
MR. CHILDERSsaid, his right hon. Friend the Chancellor of the Exchequer had concluded his speech without making any recommendation to the House. In fact, the matter ought to be referred to a Select Committee, and he wished to know if his right hon. Friend had any objection to the adoption of that course; or did he merely propose the adjournment of the subject to a future day? He understood his right hon. Friend to say that if a particular item was objected to and discussed, the decision on that item must be conclusive as to the judgment of the Committee on the whole Vote.
THE CHANCELLOR OF THE EXCHEQUER: The rule laid down by the Chairman last night was, that after the decision of the Committee had been taken on a particular item in the Vote, it was not competent to an hon. Member to move the rejection of the whole Vote.
MR. CHILDERSwas quite aware of the fact, but he also understood the right hon. Gentleman to contend that that rule was quite right; because if it was afterwards competent to the Committee to reduce the whole Vote, the Government would be in a difficulty with respect to its distribution among items unobjected to; but he thought this hardly a conclusive objection. It often happened that while some hon. Member who objected to the whole Vote on general grounds of economy, not possessing the necessary information, which was in possession of the Government, to enable him to point out objections to particular items, adopted the plan of moving the general reduction of the Vote, there were others who, from having filled official positions, or having devoted themselves very sedulously to the study of successive Estimates, were enabled to point out the objectionable increase of particular items, and who therefore moved their rejection or reduction. He certainly did not think that those who wished to move a general reduction, ought to be precluded from doing so by the rejection of an Amendment reducing an item; and he suspected his right hon. Friend was in error in supposing that after an hon. Member had moved the general reduction of a Vote, a particular item could be discussed. The form of the Amendment to the whole Vote precluded such a course. But he would take higher ground. It was for the interest of the Government, and every Member of the House, to whatever party they might belong, to give the fullest and freest discussion to any criticism of the Estimates. The present process did preclude the House from criticising the Votes in the way which they wished. The present course might be convenient to the Government at the time; but he ventured to say that it would be more to their interest, and that of the public service if a fuller and better criticism of the Estimates could be obtained. If the adoption of the present rule precluded hon. Members from dealing with the Votes in the way which they desired, there would be always complaints till it was altered. The new arrangement might involve more time than was at present occupied; but he was sure
1032
the extra discussion would be for the benefit of the public service.
MR. GOLDNEYsaid, he could not understand how the ruling of the Chairman last night interfered in any way with the privileges or powers of hon. Members in criticizing the Votes. He believed he was right in saying that the effect of the present rules was this, that when the Vote was read from the Chair, any hon. Member might move that it be reduced. If that opportunity were not taken advantage of, and the items of which the Vote consisted had been gone through and discussed and passed, it was not then in the power of any Member to move the reduction of the Vote by any particular sum, though he could still divide the House on the question that the whole Vote be rejected. This seemed to him to be a common-sense and practical method of conducting Supply. It could give rise to no actual inconvenience if hon. Members clearly understood the effect of the rule, and he saw no ground for assenting to refer the point to the consideration of a Committee.
COLONEL FRENCHsaid, he could see no good cause of complaint against the course pursued. He did not see that the hon. and learned Member (Mr. Ayrton) had made out the slightest case; but if the House thought differently, he suggested that the question should be referred to the Standing Orders Committee.
MR. DISRAELIsaid, he was a Member of the Committee of 1858, and very much approved of the Resolutions then arrived at. With regard to the point now under discussion, his impression was not in favour of the course suggested by the hon. and learned Member (Mr. Ayrton); but he admitted the gravity of the point, and should like a longer time for its consideration. After what occurred last night, he had no idea that they would be called on to decide the point to-day. It did not appear to him to be a point which should be submitted to a Select Committee. It was a question which would be best discussed in open Chamber, and he thought they would be most likely to arrive at a satisfactory conclusion in that way. He would therefore suggest the adjournment of the debate, so that they might come to some decision after due consideration. He wished it to be understood that he was not pledged to anything, and should be ready to listen to any suggestion that should be made. If, however, the hon. and learned Member for the Tower Hamlets did not

1033
object, he should now move the adjournment of the debate till this day week.
Motion agreed to.
Debate adjourned till Tuesday next.

CAPITAL PUNISHMENT WITHIN PRISONS BILL— [BILL 36.]
(Mr. Secretary Gathorne Hardy, Mr. Walpole, Mr. Attorney General.)
CAPITAL PUNISHMENT WITHIN PRISONS BILL— [BILL 36.]

  COMMITTEE.
  Order for Committee read.
  Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."
  MR. GILPINsaid, he rose to move the Amendment of which he had given notice—
  "That, in the opinion of this House, it is expedient, instead of carrying out the punishment of death within prisons, that Capital Punishment should be abolished."
  He felt some difficulty and hesitation in asking the attention of the House to the Motion of which he had given notice. In the first instance, he would express his extreme regret at the absence of his hon. Friend the Member for Dumfries (Mr. Ewart), whose name had been so closely connected with the amelioration of the criminal law, and who had done so much to abolish capital punishment. His reason for bringing forward this Motion now was, that he had a strong conviction that capital punishment was inexpedient and unnecessary; that it did not ensure the purposes for which it was enacted; that it was unjust in principle; that it involved not unfrequently the sacrifice of innocent human life; and further, that it afforded an escape for many guilty of atrocious crimes. Holding these opinions, he could not permit to pass an Act which proposed to re-enact the punishment of death without entering his solemn protest against it, and submitting the reasons why he thought it inexpedient that capital punishment should be inflicted. The late division on this question was no test whatever of the feeling of the House on the question of capital punishment. He was now asked, "Will you bring forward a Motion for the abolition of capital punishment in the face of the frequent murders, of the increase of the crime of murder—at a time when no doubt there are influences at work"—to which he would not particularly allude—"which aggravate the crime to an extent almost unprecedented?" He unhesi-
  1034
  tatingly replied, "Yes; I will bring it forward now, because, if my principle is good for anything, it is good at all times and under all circumstances." He would remind the House that the atrocious murders which were now being committed, and which they all so much deplored, were murders which were committed under the present law, and he believed would not be committed under the altered state of the law which he desired to introduce. The question he had to deal with was — by what means could they best stop the crime of murder? He disavowed emphatically any sympathy with crime—he disavowed any maudlin sentimentality with respect to this question. He was sure his right hon. Friend opposite (Mr. Gathorne Hardy) would agree with him that the question between them was, how best to prevent the crime of murder. He said, without fear of contradiction, that almost in every instance in which capital punishment had ceased to be inflicted for certain crimes those crimes had lessened in frequency and enormity since its abolition; yet, as regarded murder, where the punishment of death was still retained, the crime had increased not only in number but enormity. In proof of that allegation he might quote statistics; but the fact was well known, and he would not take up the time of the House by doing so. It was also not to be denied that this was a question upon which there had been a very considerable change in public opinion within a comparatively short period of time. Some of those who had the administration of the law in their hands, and some of those who had occupied the position of the right hon. Gentleman opposite (Mr. Gathorne Hardy), had come to the conclusion, at which he arrived many years ago, that capital punishment was undesirable—that it was unnecessary—and that the time had arrived when some other system ought to be adopted. Surely they were not succeeding in putting down murder. They had for centuries tried the lex talionis—the life for life principle—and they had miserably failed, and murder still stalked abroad. Earl Russell, in the introduction to the new edition of his work on the English Constitution, thus expressed himself as being favourable to the abolition of capital punishment—
  "For my own part, I do not doubt for a moment either the right of a community to inflict the punishment of death, or the expediency of exercising that right in certain states of society. But when I turn from that abstract right and that

  1035
  abstract expediency to our own state of society—when I consider how difficult it is for any Judge to separate the case which requires inflexible justice from that which admits the force of mitigating circumstances—how invidious the task of the Secretary of State in dispensing the mercy of the Crown—how critical the comments made by the public—how soon the object of general horror becomes the theme of sympathy and pity—how narrow and how limited the examples given by this condign and awful punishment—how brutal the scene of execution—I come to the conclusion that nothing would be lost to justice, nothing lost in the preservation of innocent life, if the punishment of death were altogether abolished. In that case a sentence of a long term of separate confinement, followed by another term of hard labour and hard fare, would cease to be considered as an extension of mercy. If the sentence of the Judge were to that effect, there would scarcely ever be a petition for remission of punishment, in cases of murder, sent to the Home Office. The guilty, unpitied, would have time and opportunity to turn repentant to the Throne of Mercy."
  Now, the first objection which he (Mr. Gilpin) had to the punishment of death was its essential injustice. They gave the same punishment to the crime of a Rush or a Manning as they did to that of a Samuel Wright, and other less guilty persons. They had, under the present law, constant occurrences in which the feeling, intellect, judgment, and Christianity of the public were against carrying out the extreme penalty, even in cases where the law was clear and unmistakable as to the matter and there was every reason to believe that it had been justly administered by the Judge who had condemned the criminal. Take, for instance, the case of the woman Charlotte Harris. She was sentenced to death, being enceinte at the time. According to custom she was reprieved until her babe was born, and then if the sentence of the law had taken its course she would have been hanged; but public opinion in the meantime had become so strong that the Home Office, even, he believed, in opposition to the judgment of the Secretary of State, had to give way, though the case was a fearful and atrocious one, and her life was spared. Richard Cobden, writing to him (Mr. Gilpin) with reference to this case, said—
  "You are right. It is truly horrible to think of nursing a woman through her confinement, and then with her first returning strength to walk her to the scaffold! What is to become of the baby at its birth? is it to lie upon the mother's breast until removed by the hand of Calcraft? Oh, horrible! horrible! Could you not have a meeting to shame the authorities."
  Well, there were several meetings—one of 40,000 women, headed by Mary Howitt — and they petitioned the Throne for
  1036
  mercy, and mercy was extended. Then there was the case of Alice Holt. She, too, was pregnant; but the Home Office, having got wiser by this time, would not bring her to trial until after the birth of her child. Then they brought her to trial, sentenced her to death, and carried out the execution. Against the injustice of such a proceeding he had at the time most earnestly protested. A practical point most serious to the interests of society was this: numbers of criminals had escaped from the punishment due to their crimes, because of the unwillingness of juries to incur the possibility of convicting the innocent. He believed it was on this ground that Mr. Waddington, the former Under Secretary at the Home Office, came almost to the opinions that he (Mr. Gilpin) entertained. He knew it did not appear in his evidence before the Royal Commission; but Mr. Waddington told him though looking at the matter from a different stand-point and urged by different arguments, still he had very nearly come to his (Mr. Gilpin's) opinions that it would be desirable for the interests of society at large that the abolition of capital punishment should take place. He (Mr. Gilpin) believed it was not too much to say that there were men and women walking about red-handed amongst us—persons unquestionably guilty of the most atrocious murders—who, had the punishment for their crimes been other than capital, would be now immured in prison, utterly unable to repeat such crimes as those for which they had been already tried. This arose from the unwillingness of juries to convict—an unwillingness which did them honour—unless they had evidence positive and indisputable. It was right that evidence which would suffice to convict a man where the punishment would be fourteen years, or imprisonment for life, should be regarded as utterly insufficient to convict a man when the sentence would send him out of the world. Some twenty years ago Charles Dickens wrote a series of letters in The Daily News on the subject of capital punishment; and in one, headed "How Jurymen Feel," he said—
  "Juries, like society, are not stricken foolish or motionless. They have, for the most part, an objection to the punishment of death; and they will, for the most part, assert it by such verdicts. As jurymen in the forgery cases (where jurors found a £10 note to be worth 39 s., so as not to come under capital punishment) would probably reconcile their verdict to their consciences by calling to mind that the intrinsic value of a bank-note was almost nothing; so jurymen, in cases of murder, probably argue that grave doctors

  1037
  have said all men are more or less mad, and therefore they believe the prisoner mad. This is a great wrong to society: but it arises out of the punishment of death. And the question will always suggest itself in jurors' minds, however earnestly the learned Judge presiding may discharge his duty—which is the greater wrong to society?—to give this man the benefit of the possibility of his being mad, or to have another public execution, with all its depraving and hardening influences? Imagining myself a juror, in a case of life or death, and supposing that the evidence had forced me from every other ground of opposition to this punishment in the particular case than a possibility of immediate mistake or otherwise, I would go over it again on this ground, and, if I could by any reasonable special pleading with myself find him mad rather than hang him, I think I would."
  He had alluded to the numbers of persons who had escaped justice altogether, because juries could not make up their minds to convict under such circumstances; but there was another view of the case, and that was the execution of innocent persons, and when he said innocent persons, he meant persons innocent of the crimes with which they were charged. He would not delay the House by quoting what he quoted on a former occasion—the evidence of Daniel O'Connell, or the evidence of the present Lord Chief Baron, as to the frequency of the execution of innocent persons. But he would call the attention of the House to a case which occurred in 1865—that was the Italian Pollizzioni, who was tried for the Saffron Hill murder, when one of the most humane of our Judges expressed his entire belief that the conviction was right. Pollizzioni was sentenced, and was within a few days of being hanged. Law had done its best and its worst, when Mr. Negretti — of the firm of Negretti and Zambra—heard of the case, and became convinced that the man was innocent. He busied himself in getting evidence, which at last satisfied the Home Secretary, not that the prisoner deserved secondary punishment, but that he was absolutely innocent, and then he was taken out of the condemned cell. But for the interference of a private individual this man would have been hanged. It might be said that a case like this was very exceptional, and God forbid that it should be frequent; but within a few months there was the case of another man at Swansea, Giardinieri—oddly enough, also an Italian—who was sentenced to death, and was within a short time of being hanged. Evidence was, however, procured which showed him to be innocent. These were solemn facts. Charles Dickens said—
  1038
  "I entreat all who may chance to read this letter to pause for an instant, and ask themselves whether they can remember any occasion on which they have in the broad day, and under circumstances the most favourable to recognition, mistaken one person for another, and believed that in a perfect stranger they have seen going away from them, or coming towards them, a familiar friend."
  Hence there should be a reasonable hesitation as to an irrevocable verdict. The frequency of cases of mistaken identity were notorious. Mr. Visschers, who held a high position in the Government of the King of the Belgians, stated that in his experience three men convicted of murder appealed to the Court of Cassation, when the conviction was confirmed. The King, however, commuted their sentence into one of perpetual imprisonment; but their innocence being afterwards established, they were liberated, and granted annuities for life. Mr. Serjeant Parry stated, in reply to a Question by Mr. Waddington—
  "I could mention six or eight instances within my own knowledge in which men have been acquitted, purely upon the ground that the punishment was capital."
  And in reply to Mr. Bright, the learned gentleman said—
  "I know that juries have acquitted men clearly and beyond all doubt guilty of murder, and some of the very worst murders that have ever been committed in this country, and have done so simply because the punishment has been the punishment of death. They would have convicted if the punishment had been imprisonment for life, or any punishment short of taking the life of the man, and they have seized hold of any excuse rather than be agents in putting capital punishment into operation."
  This was not unreasonable; because a man, if wrongly transported, as in the case of Mr. Barber, the solicitor, could have compensation made to him, but not so if wrongly hanged. Many years ago Sir James Mackintosh stated before a Committee on the Criminal Laws that during a long cycle of years an average of one person was executed every three years whose innocence was afterwards proved. And Sir Fitz Roy Kelly stated, in 1839, that there were no less than fourteen innocent persons within the first forty years of this century who had been convicted, and whose innocence since their death had been fully established. And doubtless the average of one innocent person every three years was much too low, because it should be remembered that after the person was executed there was no motive to discover

  1039
  whether he or she were innocent or not. It was only necessary again to refer to the well-known case of Samuel Wright, a working carpenter in Southwark, to show the inequality of the law, and that, too, resulting simply from the character of the punishment. He believed no jury would have found Wright guilty on the charge of murder, and that no Judge but one would have left him for execution. The prisoner, it was true, pleaded guilty to the crime, and neither the counsel nor the Court could induce him to retract the plea; but it was clear from the facts of the case that this was not a case of wilful murder. The man was awoke in the night, and was dragged out of bed by a violent woman with whom he lived. He struggled with her, and seizing his razor, which was lying in his way, without premeditation he killed her. He was brought up for trial, and he pleaded guilty. They could not expect a carpenter to be trained to the niceties of the law, and it could not be wondered at that he, a conscientious man, determined to plead guilty. Almost at the last moment a very large body of his fellow-working men came up to the Home Office to plead that his life might be spared. The present Government was not then in office. [Mr. BUXTON: Who was the Home Secretary?] His right hon. Friend the Member for Morpeth (Sir George Grey). It was thought, most unwisely in his opinion, that the appearance of so large a body of working men on such a subject was an attempt to terrorise the Home Office, and a deaf ear was turned to their pleadings, which might wisely have been granted. Samuel Wright was executed, and that in the face of Charlotte Windsor, the hired murderess of babies, who, to solve some of the subtleties of law, was brought from one part of England to another, and after all was only imprisoned for life. He could never forget the morning of that execution. The people in the neighbourhood, instead of rushing to see the execution, had their blinds drawn down. It was a case which it would take a long time to wipe out from the memories of the people of that neighbourhood. That happened about the time that Townley, another murderer, was acquitted on the ground of insanity—a plea which his subsequent suicide showed to be true. But the question of insanity was one of the most uncertain character; the dividing line was disputed by doctors, and even by doctors in divinity; and the result was that in the case of men who were
  1040
  executed no time was allowed to show whether the crime was the result of a diseased brain, or of that moral obliquity which was rightly the subject of punishment. He felt grateful to the House for the indulgence they had shown him on a subject which had occupied his attention for twenty years. Now, he would ask, what was capital punishment? The punishment of death? No, it was not that. The sentence of death was decreed upon all of us by a higher than a mortal Judge. We but antedated the sentence, and by how much this was done no man could know. A man might be sent to the gallows who, according to medical opinion, could not live three months—and, in fact, a man had been recently executed, of whom the medical man said he could not live three months if he died in course of nature, and another man with a prospect of a long life. But what was the punishment? It was not death; it was antedating the sentence passed upon us all by the Most High. From ten thousand pulpits in the land, they were told, and rightly told, that for the repentant sinner the gates of Heaven were open, whether his death was a violent one or not; and yet in the face of those sermons they said—he did not mean that the Judges say it in so many words—"Your crime is so great that there can be no forgiveness with man; but appeal unto God and he may forgive you if you appeal in the right way and pay due attention to your religious advisers." We told the criminal in one breath that his crime was too great for man to forgive—that he was not fit to live on earth, but we commended him to the mercy of the Highest. We said, in effect, that those feet "which Would leave no stain on the pure pavements of the New Jerusalem would leave the polluting mark of blood upon the ground that mortals tread." He knew not how to escape from this argument. If criminals were fit to die the time of their going to Heaven was hastened; and if not fit to die, they were allowed to go with all their unexpiated crimes on their heads be fore their final Judge. If we believed that faith which we professed, then the greater the sin the greater the need for repentance; and it was something monstrous that we should set ourselves up to decide that a fortnight from the date of his sentence was enough time for the worst murderer to make his peace with God. If we believed there was need for that peacemaking, let us give the murderer the time

  1041
  which God would give him to make his peace with Him. If we wanted to teach mercy, let us set an example of that mercy, and at all events stop short of shedding human blood. And if we would teach reverence for human life, let us not attempt to teach it by showing how it may be speedily taken away. He therefore moved the Amendment of which he had given notice, convinced that by the entire abolition of capital punishment, and the removal from their criminal code of the principle of revenge—the life for life principle—they would inaugurate an era in which the sanctity of human life would be regarded more highly than it had hitherto been, and in which the sense of that sanctity, permeating through society, would result in a great lessening of the crime of murder, and consequently in increased security to the public of this country.
  MR. LEEMANseconded the Amendment.
  Amendment proposed,
  To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this House, it is expedient, instead of carrying out the punishment of death within prisons, that Capital Punishment should be abolished,"—(Mr. Gilpin,)
  —instead thereof.
  MR. GREGORYsaid, the question before them was not, as the hon. Member who had just spoken seemed to suppose, one of softening the heart or saving the souls of murderers, but of preventing the Queen's subjects from being murdered. The balance of all authority, as far as they could arrive at it, was that the punishment of death was the great deterrent for murder. Of the eminent men who composed the Commission of 1866, they had the authority of eight in favour of continuing capital punishment; and as to the four who were for abolishing it, they entered the Commission with minds already made up, having been Members of the Society for the Abolition of Capital Punishment. The opinion of all the Irish Judges was unanimous in favour of retaining that punishment, and the opinion of the English Bench was also unanimous to the same effect, with the exception of that of the late Mr. Justice Shee. The opinions of those best acquainted with the criminal classes were to the same effect. The governors of gaols stated that the fear of death alone restrained the miscreants they had
  1042
  in charge from attempts on the lives of the prison officials; and it was clear that it must be so. If a man be condemned for one murder to penal servitude for life, how could he be restrained from another murder. Punishment could go no further. He would be left to the indulgence of his brutal instincts without a check. The police officers examined before the Commission, who gave most intelligent evidence, one and all said that, from their experience of our most desperate criminals, they felt convinced they would have "knifed" this person and that, were it not that they were afraid, to use their own phrase, of being "scragged" or hanged. Pusey, a desperate burglar, who broke into a house in which an old lady and her housemaid lived, said, with an oath, that he would have "choked" both the housemaid and the old lady if it had not been that he was afraid of being "choked" himself. This they would find upon the testimony of Inspector Tanner, who added that such was the desperate character of the man that he would have carried out the threat with as much coolness as he would have eaten his breakfast. Another desperado, Palin by name, who committed murder, was sent to Australia, and after perpetratiug a horrible outrage in that country was condemned to death. Just before going to the scaffold he wrote a letter, in which he declared that the blood of his last victim rested upon those who had spared his life in the first instance, when he ought to have been hanged. But it was said that those who were assassins were not, generally speaking, persons who belonged to the marauding and dangerous classes. They committed every other crime but fell short of this, and the reason given was, that these people had a horror of taking life. This was a strange reason, and he should not have alluded to it but that some stress had been laid upon it by so high an authority as Lord Romilly. He (Mr. Gregory) had already shown from the evidence of police officers that it was precisely the fear of the gallows and nothing else, which had restrained these desperate men. Did they think that those garotters, who took as it were possession of the town a few years ago, were restrained by any tenderness for human life, when they left their victims senseless from blows and half strangled on the pavement? Unquestionably not. Did anyone imagine they were prevented from taking life by the risk of having their im-

  1043
  prisonment if tried and found guilty, extended from twenty years to imprisonment for life? Were there no punishment of death they would have done the business effectually and have no tales told. Inspector Tanner, who was as well acquainted with the criminal classes as any man in England, represented the invariable feeling among them, no matter how long the period of imprisonment, to be that something would turn up, and that they would eventually regain their liberty; and so great was the difficulty of dealing with the question found to be that even Lord Romilly proposed that, in the case of persons found guilty of murder, periodical flogging should be added to the punishment of imprisonment for life. But a deterrent was wanted, and that deterrent could not be had without publicity. If, therefore, a man were to be flogged within the walls of a gaol beyond the public view, and if he were never to emerge from the precincts of the gaol to tell others what had befallen him, this punishment would wear the aspect of revenge and torture instead of operating as a warning to others, so that that was the position to which Lord Romilly, with all his benevolence, was reduced in endeavouring to provide a substitute for death. Looking to the experience to be derived from other countries, it would be found by a Report which had some time ago been furnished by Mr. Rumbold, our Attaché at Berne, who had endeavoured to ascertain how matters stood in reference to capital punishment in several of the cantons of Switzerland, that though, as a general rule, the punishment was there inscribed on the statute book it was rarely enforced; but that, as far as he could ascertain, its maintenance as part of the legal system exercised a deterrent effect. It further appeared, from this Report that in Neufchatel and Friburg capital punishment had been of late years abolished; that in the case of the former no statistics were supplied; but that, so far as Mr. Rumbold's information went, the use of the knife there was steadily on the increase. In Friburg, where during the eighteen years from 1830 to 1848, when capital punishment was in force, only twenty-six murders had taken place, the number had increased during the sixteen years between 1848, when it was abolished, and 1864 to forty-seven. The Minister of Public Instruction in Tuscany gave pretty much the same account of the state of things there — robbery ac-
  1044
  companied by murder being, according to his statement, very much on the increase since capital punishment was done away with in 1859. He moreover states that the offenders were rarely detected, because the dead could not identify. But his hon. Friend the Member for Northampton, and those who supported his views, appealed to the number of murders which had been committed in this country within the last few years, for the purpose of showing that the existence of capital punishment did not prevent such crimes. The same argument, however, held equally good as applied to imprisonment, because it did not put an end to the frequent commission of assaults and thefts and burglaries. Were we, then, to give up imprisonment? Many thousand more assaults and robberies would surely be committed if imprisonment were done away with, and so would many hundred more murders be perpetrated if death were not the penalty of the crime. As to the argument derived from the alleged existence of insanity in the case of the offender, everybody well knew how often, after the commission of some desperate and deliberate murder, some soft-hearted doctor or some gentleman who was opposed to the punishment of death, tried to show that a great amount of unaccountable conduct had been exhibited by the culprit—that he had done many strange things in his youth, or that some members of his family had been eccentric. Now, juries listened to this argument. Half mankind is ready to believe the other half to be lunatics. Now, the accused knew well that, if acquitted on the grounds of insanity, he would be locked up for the remainder of his days, and the world would know him no more. But he strove to obtain—and rejoiced if he obtained—and his counsel also rejoiced exceedingly if he obtained this incarceration for ever—anything, in short, rather than hanging. As to the Bill on the subject which had been introduced by the right hon. Gentleman the Secretary for the Home Department, he must confess that he was entirely in its favour. He could not, however, at the same time, conceal from himself that public executions, though in this metropolis they were accompanied by scenes of ribaldry, yet in the country and in Ireland impressed those who witnessed them with a feeling of deep awe. He recollected a speech which a couple of Sessions ago was made by the noble Lord the Secretary to

  1045
  the Admiralty. He described in vivid language the desperate character of the crowd which he saw assembled at an execution in the metropolis at which he was present—their levity and obscenity up to and after the falling of the drop, and he wound up his observations by asking, what advantage could result from such a scene? Now, he was aware that the impression created by it was not all that could be desired; but it nevertheless conveyed to every miscreant in that crowd the lesson that the law had a long hand as well as a strong one, and that for the crime of murder death was the penalty which it inflicted. More than that, he would venture to say that scarcely a single man out of all that evil gathering returned to his home without the conviction that there was a barrier set up against the indulgence of his bloody and brutal instincts beyond which he might not pass without becoming, in all probability, a similar spectacle — finishing his life like some savage beast—an object of execration and abhorrence. Nevertheless, the time had, in his opinion, arrived when public executions ought to be abolished. They were not in accordance with the spirit of the age. They were barbarous and, he believed, demoralizing; and he felt convinced that equal, if not greater, awe might be impressed if they were conducted within the precincts of the gaol. But everything should be done to render the occasion solemn and momentous. Notice of the execution should be given beforehand; the death-bell should be tolled; the black flag raised; and, above all things, the whole of the inmates of the prison should be made witnesses of the scene. Under those conditions, the punishment of death ought, he contended, to be continued. It was better that the murderer should perish than that innocent men and women should have their throats cut. A witty Frenchman lately wrote a pamphlet on this subject, and said—
  "I am all for abolishing the penalty of death, if Messieurs the Assassins would only set the example."
  He quoted Montesquieu, who mentioned that, in his time, in England assassinations were rare, because robbers had the hope of being transported while assassins had not. In China, robbers guilty of cruelty were cut into pieces; consequently, they robbed but did not murder. In Russia, the punishment of robbers and murderers was the same; and they invariably assassinated
  1046
  because the dead told no tales. With all the respect, therefore, which he (Mr. Gregory) bore to his hon. Friend the Member for Northampton, he adhered to the opinion of such men as Bentham, Montesquieu, and Fenelon; to the verdict of the late Commission; to the almost unanimous testimony of the English and Irish Bench; and to the unanimous evidence of those best acquainted with the criminal classes; and, while giving his hon. Friend full credit for his benevolence and humanity, he must say "No" to his Amendment.
  MR. NEATEobserved that the hon. Gentleman who last spoke inadvertently committed an error in stating that only four members of the Commission were in favour of the abolition of capital punishment, because, in addition to the four members alluded to, Mr. Justice O'Hagan did at a subsequent period intimate by a private memorandum an opinion recommending, though not immediately, the abolition of that punishment. It was also stated before the Commission by many gentlemen representing the Bar of this country that the result of their experience was that there was increased difficulty in obtaining the conviction of guilty persons in consequence of the existence on the statute book of the penalty of death. The present Bill only dealt with the smaller part of the subject which came under the consideration of the Commission. One important object of the Commission was to provide a better definition of the law of murder, and the Bill of the late Government as well as the Bill of last year grappled with that matter; but the present Bill only dealt with the smaller part of the question, having reference to the infliction of capital punishment in private. He objected to the labours of the Commission being dealt with in that way; for he feared that the result would be that the more important part of the recommendations of the Commission would fall to the ground. He admitted that the punishment of death was the most deterrent; but he did not therefore admit that it was the most effectual, or that its abolition would lead to the multiplication of murders. Certainly nothing was so terrible as death; but those who were most impressed with the sight of the scaffold were those who thought least of it when it was removed from their eyes. The same sensual nature which yielded to the terror of present death was least able to realize it at a distance. Murderers were usually, in

  1047
  some sort, courageous men; and if it were put to a Rush or a Palmer, when about to commit a murder, whether in the event of his being found out he would wish that the penalty for his crime should be death or perpetual imprisonment, he believed he would say, "It does not much matter, if I am found out, whether I am hanged or not; but if I am to make a choice, I say let it be death—["No, no!"]—because I know I have a greater chance of escape from the scruples of the jury than if the punishment was perpetual imprisonment." But even allowing for the greater chance of a prisoner's escape from punishment when the penalty attached to the offence he was charged with was death, he nevertheless admitted that the punishment of death was more deterrent, though it did not follow that it was, therefore the the most effectual means for the prevention of crime; for were the punishment of death abolished, improvements in the efficiency of the police or in the character of legislation would more than compensate for the absence of the terror of the death penalty. No doubt sheep stealers were more afraid in former days of being hanged than they now were of being subject to the penalty at present inflicted for the offence of sheep-stealing; but, in consequence of capital punishment being abolished for that offence, the State felt the necessity of improving the police of the country. The county police was accordingly brought into existence, and the crime had since diminished. One great reason why he wished the abolition of this law of murder was that it would compel them to see what they could do, by education and legislation, for the better humanization and improvement of the people. He should vote for the Amendment of his hon. Friend.
  MR. J. STUART MILL: It would be a great satisfaction to me if I were able to support this Motion. It is always a matter of regret to me to find myself, on a public question, opposed to those who are called—sometimes in the way of honour, and sometimes in what is intended for ridicule—the philanthropists. Of all persons who take part in public affairs, they are those for whom, on the whole, I feel the greatest amount of respect; for their characteristic is, that they devote their time, their labour, and much of their money to objects purely public, with a less admixture of either personal or class selfishness, than any other class of politicians whatever. On almost all the great questions, scarcely any politicians
  1048
  are so steadily and almost uniformly to be found on the side of right; and they seldom err, but by an exaggerated application of some just and highly important principle. On the very subject that is now occupying us we all know what signal service they have rendered. It is through their efforts that our criminal laws—which within my memory hanged people for stealing in a dwelling house to the value of 40 s.—laws by virtue of which rows of human beings might be seen suspended in front of Newgate by those who ascended or descended Ludgate Hill—have so greatly relaxed their most revolting and most impolitic ferocity, that aggravated murder is now practically the only crime which is punished with death by any of our lawful tribunals; and we are even now deliberating whether the extreme penalty should be retained in that solitary case. This vast gain, not only to humanity, but to the ends of penal justice, we owe to the philanthropists; and if they are mistaken, as I cannot but think they are, in the present instance, it is only in not perceiving the right time and place for stopping in a career hitherto so eminently beneficial. Sir, there is a point at which, I conceive, that career ought to stop. When there has been brought home to any one, by conclusive evidence, the greatest crime known to the law; and when the attendant circumstances suggest no palliation of the guilt, no hope that the culprit may even yet not be unworthy to live among mankind, nothing to make it probable that the crime was an exception to his general character rather than a consequence of it, then I confess it appears to me that to deprive the criminal of the life of which he has proved himself to be unworthy—solemnly to blot him out from the fellowship of mankind and from the catalogue of the living—is the most appropriate, as it is certainly the most impressive, mode in which society can attach to so great a crime the penal consequences which for the security of life it is indispensable to annex to it. I defend this penalty, when confined to atrocious cases, on the very ground on which it is commonly attacked—on that of humanity to the criminal; as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime. If, in our horror of inflicting death, we endeavour to devise some punishment for the living criminal which shall act on the human mind with a deterrent force at all comparable to that of death, we are driven to inflictions less severe indeed in appearance, and therefore less

  1049
  efficacious, but far more cruel in reality, Few, I think, would venture to propose, as a punishment for aggravated murder, less than imprisonment with hard labour for life; that is the fate to which a murderer would be consigned by the mercy which shrinks from putting him to death. But has it been sufficiently considered what sort of a mercy this is, and what kind of life it leaves to him? If, indeed, the punishment is not really inflicted—if it becomes the sham which a few years ago such punishments were rapidly becoming—then, indeed, its adoption would be almost tantamount to giving up the attempt to repress murder altogether. But if it really is what it professes to be, and if it is realized in all its rigour by the popular imagination, as it very probably would not be, but as it must be if it is to be efficacious, it will be so shocking that when the memory of the crime is no longer fresh, there will be almost insuperable difficulty in executing it. What comparison can there really be, in point of severity, between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviations, or rewards—debarred from all pleasant sights and sounds, and cut off from all earthly hope, except a slight mitigation of bodily restraint, or a small improvement of diet? Yet even such a lot as this, because there is no one moment at which the suffering is of terrifying intensity, and, above all, because it does not contain the element, so imposing to the imagination, of the unknown, is universally reputed a milder punishment than death—stands in all codes as a mitigation of the capital penalty, and is thankfully accepted as such. For it is characteristic of all punishments which depend on duration for their efficacy—all, therefore, which are not corporal or pecuniary—that they are more rigorous than they seem; while it is, on the contrary, one of the strongest recommendations a punishment can have, that it should seem more rigorous than it is; for its practical power depends far less on what it is than on what it seems. There is not, I should think, any human infliction which makes an impression on the imagination so entirely out of proportion to its real severity as the punishment of death. The punishment must be mild indeed which does not add more to the sum of human misery than is necessarily or directly added by
  1050
  the execution of a criminal. As my hon. Friend the Member for Northampton (Mr. Gilpin) has himself remarked, the most that human laws can do to anyone in the matter of death is to hasten it; the man would have died at any rate; not so very much later, and on the average, I fear, with a considerably greater amount of bodily suffering. Society is asked, then, to denude itself of an instrument of punishment which, in the grave cases to which alone it is suitable, effects its purpose at a less cost of human suffering than any other; which, while it inspires more terror, is less cruel in actual fact than any punishment that we should think of substituting for it. My hon. Friend says that it does not inspire terror, and that experience proves it to be a failure. But the influence of a punishment is not to be estimated by its effect on hardened criminals. Those whose habitual way of life keeps them, so to speak, at all times within sight of the gallows, do grow to care less about it; as, to compare good things with bad, an old soldier is not much affected by the chance of dying in battle. I can afford to admit all that is often said about the indifference of professional criminals to the gallows. Though of that indifference one-third is probably bravado and another third confidence that they shall have the luck to escape, it is quite probable that the remaining third is real. But the efficacy of a punishment which acts principally through the imagination, is chiefly to be measured by the impression it makes on those who are still innocent: by the horror with which it surrounds the first promptings of guilt; the restraining influence it exercises over the beginning of the thought which, if indulged, would become a temptation; the check which it exerts over the gradual declension towards the state—never suddenly attained—in which crime no longer revolts, and punishment no longer terrifies. As for what is called the failure of death punishment, who is able to judge of that? We partly know who those are whom it has not deterred; but who is there who knows whom it has deterred, or how many human beings it has saved who would have lived to be murderers if that awful association had not been thrown round the idea of murder from their earliest infancy? Let us not forget that the most imposing fact loses its power over the imagination if it is made too cheap. When a punishment fit only for the most atrocious crimes is lavished on small offences until human feeling recoils from it,

  1051
  then, indeed, it ceases to intimidate, because it ceases to be believed in. The failure of capital punishment in cases of theft is easily accounted for: the thief did not believe that it would be inflicted. He had learnt by experience that jurors would perjure themselves rather than find him guilty; that Judges would seize any excuse for not sentencing him to death, or for recommending him to mercy; and that if neither jurors nor Judges were merciful, there were still hopes from an authority above both. When things had come to this pass it was high time to give up the vain attempt. When it is impossible to inflict a punishment, or when its infliction becomes a public scandal, the idle threat cannot too soon disappear from the statute book. And in the case of the host of offences which were formerly capital, I heartily rejoice that it did become impracticable to execute the law. If the same state of public feeling comes to exist in the case of murder; if the time comes when jurors refuse to find a murderer guilty; when Judges will not sentence him to death, or will recommend him to mercy; or when, if juries and Judges do not flinch from their duty, Home Secretaries, under pressure of deputations and memorials, shrink from theirs, and the threat becomes, as it became in the other cases, a mere brutum fulmen; then, indeed, it may become necessary to do in this case what has been done in those — to abrogate the penalty. That time may come—my hon. Friend thinks that it has nearly come. I hardly know whether he lamented it or boasted of it; but he and his Friends are entitled to the boast: for if it comes it will be their doing, and they will have gained what I cannot but call a fatal victory, for they will have achieved it by bringing about, if they will forgive me for saying so, an enervation, an effeminacy, in the general mind of the country. For what else than effeminacy is it to be so much more shocked by taking a man's life than by depriving him of all that makes life desirable or valuable? Is death, then, the greatest of all earthly ills? Usque adeone mori miserum est? Is it, indeed, so dreadful a thing to die? Has it not been from of old one chief part of a manly education to make us despise death—teaching us to account it, if an evil at all, by no means high in the list of evils; at all events, as an inevitable one, and to hold, as it were, our lives in our hands, ready to be given or risked at any moment, for
  1052
  a sufficiently worthy object? I am sure that my hon. Friends know all this as well, and have as much of all these feelings as any of the rest of us; possibly more. But I cannot think that this is likely to be the effect of their teaching on the general mind. I cannot think that the cultivating of a peculiar sensitiveness of conscience on this one point, over and above what results from the general cultivation of the moral sentiments, is permanently consistent with assigning in our own minds to the fact of death no more than the degree of relative importance which belongs to it among the other incidents of our humanity. The men of old cared too little about death, and gave their own lives or took those of others with equal recklessness. Our danger is of the opposite kind, lest we should be so much shocked by death, in general and in the abstract, as to care too much about it in individual cases, both those of other people and our own, which call for its being risked. And I am not putting things at the worst, for it is proved by the experience of other countries that horror of the executioner by no means necessarily implies horror of the assassin. The stronghold, as we all know, of laired assassination in the 18th century was Italy; yet it is said that in some of the Italian populations the infliction of death by sentence of law was in the highest degree offensive and revolting to popular feeling. Much has been said of the sanctity of human life, and the absurdity of supposing that we can teach respect for life by ourselves destroying it. But I am surprised at the employment of this argument, for it is one which might be brought against any punishment whatever. It is not human life only, not human life as such, that ought to be sacred to us, but human feelings. The human capacity of suffering is what we should cause to be respected, not the mere capacity of existing. And we may imagine somebody asking how we can teach people not to inflict suffering by ourselves inflicting it? But to this I should answer — all of us would answer — that to deter by suffering from inflicting suffering is not only possible, but the very purpose of penal justice. Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary, most emphatically our re-

  1053
  gard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself, and that while no other crime that he can commit deprives him of his right to live, this shall. There is one argument against capital punishment, even in extreme cases, which I cannot deny to have weight—on which my hon. Friend justly laid great stress, and which never can be entirely got rid of. It is this—that if by an error of justice an innocent person is put to death, the mistake can never be corrected; all compensation, all reparation for the wrong is impossible. This would be indeed a serious objection if these miserable mistakes—among the most tragical occurrences in the whole round of human affairs—could not be made extremely rare. The argument is invincible where the mode of criminal procedure is dangerous to the innocent, or where the Courts of Justice are not trusted. And this probably is the reason why the objection to an irreparable punishment began (as I believe it did) earlier, and is more intense and more widely diffused, in some parts of the Continent of Europe than it is here. There are on the Continent great and enlightened countries, in which the criminal procedure is not so favourable to innocence, does not afford the same security against erroneous conviction, as it does among us; countries where the Courts of Justice seem to think they fail in their duty unless they find somebody guilty; and in their really laudable desire to hunt guilt from its hiding-places, expose themselves to a serious danger of condemning the innocent. If our own procedure and Courts of Justice afforded ground for similar apprehension, I should be the first to join in withdrawing the power of inflicting irreparable punishment from such tribunals. But we all know that the defects of our procedure are the very opposite. Our rules of evidence are even too favourable to the prisoner: and juries and Judges carry out the maxim, "It is better that ten guilty should escape than that one innocent person should suffer," not only to the letter, but beyond the letter. Judges are most anxious to point out, and juries to allow for, the barest possibility of the prisoner's innocence. No human judgment is infallible: Such sad cases as my hon. Friend cited will sometimes occur; but in so grave a case as that of murder, the accused, in our system, has always the benefit of the merest shadow of a doubt. And this suggests another consideration very germane to the question.
  1054
  The very fact that death punishment is more shocking than any other to the imagination, necessarily renders the Courts of Justice more scrupulous in requiring the fullest evidence of guilt. Even that which is the greatest objection to capital punishment, the impossibility of correcting an error once committed, must make, and does make, juries and Judges more careful in forming their opinion, and more jealous in their scrutiny of the evidence, If the substitution of penal servitude for death in cases of murder should cause any relaxation in this conscientious scrupulosity, there would be a great evil to set against the real, but I hope rare, advantage of being able to make reparation to a condemned person who was afterwards discovered to be innocent. In order that the possibility of correction may be kept open wherever the chance of this sad contingency is more than infinitesimal, it is quite right that the Judge should recommend to the Crown a commutation of the sentence, not solely when the proof of guilt is open to the smallest suspicion, but whenever there remains anything unexplained and mysterious in the case, raising a desire for more light, or making it likely that further information may at some future time be obtained. I would also suggest that whenever the sentence is commuted the grounds of the commutation should, in some authentic form, be made known to the public. Thus much I willingly concede to my hon. Friend; but on the question of total abolition I am inclined to hope that the feeling of the country is not with him, and that the limitation of death punishment to the cases referred to in the Bill of last year will be generally considered sufficient. The mania which existed a short time ago for paring down all our punishments seems to have reached its limits, and not before it was time. We were in danger of being left without any effectual punishment, except for small offences. What was formerly our chief secondary punishment—transportation—before it was abolished, had become almost a reward. Penal servitude, the substitute for it, was becoming, to the classes who were principally subject to it, almost nominal, so comfortable did we make our prisons, and so easy had it become to get quickly out of them. Flogging—a most objectionable punishment in ordinary cases, but a particularly appropriate one for crimes of brutality, especially crimes against women—we would not hear of, except, to be sure, in the case of garotters, for whose peculiar

  1055
  benefit we re-established it in a hurry, immediately after a Member of Parliament had been garotted. With this exception, offences, even of an atrocious kind, against the person, as my hon. and learned Friend the Member for Oxford (Mr. Neate) well remarked, not only were, but still are, visited with penalties so ludicrously inadequate, as to be almost an encouragement to the crime. I think, Sir, that in the case of most offences, except those against property, there is more need of strengthening our punishments than of weakening them: and that severer sentences, with an apportionment of them to the different kinds of offences which shall approve itself better than at present to the moral sentiments of the community, are the kind of reform of which our penal system now stands in need. I shall therefore vote against the Amendment.
  Question put, "That the words proposed to be left out stand part of the Question."
  The House divided:—Ayes 127; Noes 23: Majority 104.
  Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.
  Bill considered in Committee.
  (In the Committee.)
  Clause 1 agreed to.
  Clause 2 struck out.
  Clause 3 (Execution to be within Prison).
  MR. DARBY GRIFFITHexpressed his opinion that, in introducing the element of privacy into executions, they would do their best to imitate the crime itself. It was, of course, a deed of violence. In taking away the element of publicity, they were taking away the chief authority for the act, which was to be sought, not in any written statute, but in the common feeling of mankind seated in the heart. This doing away with the consensus populi would be to realize the prediction that if they abolished publicity it would be impossible to maintain capital punishment at all, because the effect would be revolting to human feeling. They would only show that they were afraid of carrying out their own principle of capital punishment. It might be true that, when a crowd was collected at executions, scenes and incidents revolting to moral feeling took place; but this might equally occur if a number of people were admitted to what was called a private execution.
  MR. HIBBERTthought the speech of the hon. Member (Mr. Darby Griffith) should have been made on the second reading of the Bill. There were many countries in which private executions were established without the inconveniences asserted to be inseparable from them.
  MR. NEWDEGATEconcurred with the argument of the hon. Member for Devizes. He admitted that private executions prevailed in various countries; but there was no country in the world in which respect for the law was so high and deep as it was in England. The principle of secresy which the Bill contained was objectionable, because it would bring the carrying out of the law into suspicion and diminish the force of the law. Secresy in matters of this kind would excite against the Executive an amount of odium that must be deplored, and which had never previously attached to it. The principle of our law was, that the execution of a person was the act of the whole nation, and that being so, it should be public, in order that that portion of the nation residing in the immediate neighbourhood of the crime might, if they chose, attend and see their own punishment carried out.
  MR. M'LARENsaid, he entirely disagreed in the views taken by his hon. Friend on the other side. Even supposing that the scriptural argument could be maintained, and that the text, "Whoso sheddeth man's blood by man shall his blood be shed," was correctly interpreted, which he by no means admitted, where was it written that the shedding of blood should necessarily take place in the midst of a crowd composed of the most profligate and worthless part of the population that could be collected? Did the spectacle do good to the classes who furnished these crowds? All the evidence went to show that instead of doing them good, it had a tendency to demoralize them. The clauses of the Bill would insure every necessary publicity, and be cordially thanked the Government for the measure.
  MR. ALDERMAN LUSKthought the Bill a move in the right direction—that was to say, towards the total abolition of capital punishment. Public executions were an evil. He himself had had more than once to sentence numbers of persons in the police-court for robbing at executions. He asked whether "within the walls" of the prison would be interpreted within the external boundary walls or actually within the prison itself?
  MR. GATHORNE HARDY: The external walls.
  MR. DARBY GRIFFITHsaid, with reference to the remarks of the hon. Member for Oldham (Mr. Hibbert), that if any change took place from private executions it would most certainly not be to public executions, but to the total abolition of capital punishment; the national aversion to secresy would enforce this abolition.
  MR. DENMANadmitted that one reason why he had voted for the second reading of the Bill was because he believed it was a step towards total abolition. But even assuming that capital punishment was to be maintained in perpetuity, was it not far better that it should be carried out within the prisons, and thus avoid the horrible and disgusting scenes that took place at public executions? One great stumbling block in the way of total abolitionists hitherto had been the want of a sufficiently strong public opinion to justify their proposal; private executions would, he believed, remove the difficulty by leading the public to the opinion that it was not necessary to put a person out of the world for the public safety when he could be well secured from doing harm by closely confining him in prison. The hon. and learned Gentleman said that, in the case of Palin, the first murder case he had ever defended, if the punishment had been anything but death the prisoner would have been convicted, because there was the plainest evidence against him. Palin was afterwards transported for fifteen years, and finally committed a capital offence, for which he was executed. But that he did not wish to inflict a speech upon hon. Members he might have cited different cases in which criminals, undoubtedly guilty, had escaped conviction through the repugnance of juries to doom them to the extreme penalty of the law. It would not be long, he thought after this Bill passed, before public opinion would declare that a secret act of assassination within the gaol was not necessary or expedient. A plan had been suggested by Sir Walter Crofton, a very high authority on such a subject, under which prisoners might be confined for life, and practically without hope, in the interior of some prison, so that society would run no risk of their escape from prison, and would avoid the risks it now ran, in many cases, from their total impunity, owing to the unwillingness of juries to inflict an irrevocable sentence.
  MR. RUSSELL GURNEYsaid, the
  1058
  hon. Member for North Warwickshire (Mr. Newdegate) objected to all punishments carried out privately as unconstitutional, was he prepared to revive the abominable practice of public flogging? There was no objection to the clause.
  MR. NEWDEGATEsaid, he objected to flogging prisoners, because to degrade men was not the best way to fit them to continue in society. But the case of capital punishment is totally different, and the old principle of English law is that if a citizen of the country is to be deprived of his life the execution ought to take place in the face of the public.
  MR. M. CHAMBERSsaid, that if, as some predicted, the effect of passing the second reading of this Bill were to lead to the abolition of capital punishment, he should assuredly regret that he had been among its supporters. He could not agree in that prediction. He for a long time considered private executions anti-English; but the majority of the country, or at any rate of the House, has now decided the question. He protested against the representation of the hon. and learned Member for Tiverton (Mr. Denman) that juries had violated their oaths—["No, no!"]—for violating their oaths it is, because they objected to the penalty of death.
  Clause agreed to.
  Clause 4 (Sheriff, &c. to be present).
  MR. NEATEsaid, that even if the House agreed to deprive executions of their public character, there was much that might and ought to be done to give solemnity to executions within the walls of the prison. He wished, for instance, that the sheriff present should be the High Sheriff; and he further thought that the foreman of the grand jury and at least three of the grand jury ought to attend the execution. ["Oh!"] The clause, as it stood, was founded on a total misconception of the nature and object of capital punishment. Something should be done to supply the want of publicity by the presence of proper representatives of the public. If he were asked to name a suitable hour and place for the purpose, he should say New Palace Yard at four o'clock. ["Oh, oh!"] As he was sure there would be a very strong feeling in the country against the Bill he hoped the right hon. Gentleman the Home Secretary would allow a sufficient time between the Committee and the third reading to enable the House to learn what was thought of it out of doors. The

  1059
  hon. and learned Gentleman moved to omit the words, "The Sheriff charged with the execution," and insert—
  "The High Sheriff in person, and also the foreman of the Grand Jury by whom the Bill was found, and three other members of such Grand Jury, to be selected in such manner as the Judge of Assize by whom the case was tried shall direct."
  SIR JOHN SIMEONthought it would be unfair to require the attendance of either the High Sheriff or the foreman of the grand jury as they were unpaid officials.
  MR. GORSTsuggested that it would be well to provide for the attendance at executions of witnesses, independently of officials and the relatives of the criminal, whose evidence would satisfy the coroner's jury as to the mode of death. In Australia the attendance of two justices of the peace was required.
  Amendment negatived.
  MR. LOWTHERmoved to leave out the words "Relatives of the prisoner, or." Those who objected to public executions could not desire the presence of relatives of the prisoner when executions were carried out in private.
  MR. HIBBERTsuggested that, for the purpose of identification, the presence of relatives of the culprit might in some cases be very important. At present the Governor had the power of admitting them to the gaol to see the procession on its way to the place of execution.
  MR. GATHORNE HARDYsaid, that if the words proposed to be omitted were struck out, it would still be in the power of the Governor to admit relatives of the culprit under the words enabling him to admit "other persons" than the officials specially named.
  MR. WALPOLEremarked that the words applying to "relatives" might be taken as giving such persons a right to demand admittance. It would be well to bear this in mind before altering the clause.
  MR. DARBY GRIFFITHcould not suppose that the relatives of the prisoner would like to be present at such a distressing and shocking sight. At all events, it should be left to the discretion of the sheriff to determine whether they should be admitted.
  MR. M'LARENsaid, it was always the case that poor persons stuck to their relatives to the death; and it would only be right to accord to them the privilege of
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  being present at the execution of their relatives.
  THE SOLICITOR GENERALsaid, the clause is permissive, and therefore it will make no difference in point of legal obligation whether the words are omitted or retained, though they would be useful as an instrucion to the sheriff as to whom he should admit.
  MR. CANDLISHthought it important that the relatives of the prisoner should have a legal right to attend the execution.
  MR. LOWTHERsaid, if the words are retained the sheriff will still have power under the clause to refuse the relatives admission in certain cases.
  Amendment negatived.
  MR. ALDERMAN LUSKthought it desirable that a few of the general public should be admitted within the prison. If thirty, twenty, or even ten of the general public were allowed to be present the execution would not be a private one, any more than the Central Criminal Court was a private Court, although only a very limited number of the public could be accommodated in the building. He moved, therefore, an Amendment to the effect that the sheriffs and visiting justices should admit into the gaol as many of the general public as could properly and conveniently be accommodated.
  MR. GATHORNE HARDYsaid, he understood the proposition of the hon. Gentleman was that the gaol should be opened to any persons who might choose to come, as long as there was sufficient room for their accommodation. [Mr. Alderman LUSK: No!] If not, due provision was made in the clause as it stood for carrying out the hon. Member's intention. It was left to the discretion of the sheriff and the visiting justices to admit such persons as they thought fit, and therefore it would be unnecessary to introduce the words proposed by the hon. Member.
  MR. ALDERMAN LUSKexplained that it was his intention that the sheriff should admit as many of the general public as could be conveniently accommodated.
  THE SOLICITOR GENERALremarked that if the clause were altered in the way proposed, the sheriff would be bound to admit the public indiscriminately into the gaol as long as there was room to accommodate them. Thus boys, women, and others who ought not to witness executions, would have a right to admission. By the clause as it stood power was given

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  to admit the representatives of the Press and other persons of respectability who, in the opinion of the authorities, ought to be present at the execution.
  MR. ALDERMAN LUSKpointed out that boys and young girls might be excluded, as they were now from Courts of Justice in certain cases.
  THE SOLICITOR GENERALsaid, the reason why boys and girls were sometimes kept or ordered out of Court was that the Judge is assumed to have supreme control over the discipline of the Court, though some people doubted whether they have so much authority; but if this Amendment were adopted the sheriff would be bound to act according to the words of the statute, and to admit the public indiscriminately.
  MR. DARBY GRIFFITHthought what was proposed by the Bill would be very like a select audience. It would probably come to admitting people by ticket.
  MR. M'LARENsuggested the addition of words to the effect that the sheriff should admit such reporters for the newspapers connected with the county or borough as he might deem proper.
  MR. DENMAN, while agreeing with the spirit of his hon. Friend's Amendment, thought it quite superfluous and unnecessary. Under the term "persons," the representatives of the Press would be admissible.
  MR. ALDERMAN LAWRENCEthought that the representatives of the Press should have a right to be present, instead of their admission being at the discretion of the authorities, who, perhaps, might in some cases think it desirable that the public should not be furnished with a full account of the proceedings. He should therefore take an opportunity of moving an Amendment to that effect, and would certainly divide the Committee upon it.
  MR. HIBBERTopposed the Amendment as unnecessary, seeing that it must be left to the discretion of the sheriffs and the visiting justices to say how many people could be accommodated.
  MR. M. CHAMBERScould not see the use of adding the words, "of the general public" after "persons," as the latter included the former.
  MR. ALDERMAN LAWRENCEmoved the addition of the words, "and so many reporters of the public Press," the effect of which would be to secure the attendance of the representatives of the Press, so that the public might know what official persons
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  were present. He held that the decision of what persons to be admitted should not be left entirely to the discretion of the sheriff and visiting justices. He thought it would tend to the satisfaction of the people of this country that the admission should be ensured of those who would faithfully report what took place on such occasions.
  Amendment proposed, after the word "prisoner," to insert the words "and so many reporters of the public press."—(Mr. Alderman Lawrence.)
  Question put, "That those words be there inserted."
  The Committee divided:—Ayes 24; Noes 46: Majority 22.
  Clause agreed to.
  Clause 5 agreed to.
  Clause 6 (Coroner's Inquest on Body).
  MR. ALDERMAN LAWRENCEasked, if the representatives of the Press would be allowed to attend the inquests? Were those inquests to be private or public?
  MR. GATHORNE HARDY: The inquests will be conducted on precisely the same principles as at present.
  MR. ALDERMAN LAWRENCE: Will they be open to the public?
  MR. GATHORNE HARDY: They will be as open to the public as Coroners' inquests held in prisons now are.
  MR. ALDERMAN LUSKsaid, a sheriff might have particular views of his own with regard to the admission of unofficial persons to an execution; and supposing the sheriff excluded such persons, who were to be witnesses at the Coroners' inquests?
  MR. GATHORNE HARDY: If the hon. Gentleman thinks that an execution can be carried on without witnesses, I do not think so. There must be witnesses, whatever reliance may be placed upon their testimony.
  MR. ALDERMAN LUSK: I understand that there may be official persons present; but will that satisfy the public? This should be arranged beforehand. If the sheriff did not admit any of the public, who were to be the witnesses but the gaoler and hangman?
  MR. DARBY GRIFFITHcomplained that the matter was treated with levity on the Treasury Bench, and regretted to observe that the House seemed ready to relieve itself from a serious subject by ebullitions of that kind. There might be a crotchety sheriff, of opinion that it was in-

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  tended to carry out executions privately, and not admit the general public, and to that the hon. Member opposite took exception.
  Clause agreed to.
  Remaining clauses agreed to.
  THE LORD ADVOCATEproposed a clause extending the Act to Scotland, with the necessary modifications of language.
  Clause agreed to.
  MR. NEATEsaid, that the punishment of hanging, as practised in great Britain, was derived from barbarous countries, and was singularly unequal in its operation. He would suggest that the Government should have recourse to modern science with the view of discovering a less painful mode of execution. It was a mistake to suppose that dislocation of the neck produced instantaneous death. Sometimes it did so; at other times, the criminal was convulsed for some seconds. The garotte was a more merciful punishment; or life might be taken by means of carbonic acid gas—a process which would prevent the painful necessity of having the hands of the hangman about the culprit's neck. He wished to limit manual interference by one fellow-creature with another in such cases as much as possible, and would even go so far as to allow the prisoner to put an end to himself. He thought the suggestion was worth consideration when they were altering the old mode of execution. He would move as a new clause, but would not press it to a division that—
  "Her Majesty or her successors may, by the advice of their Privy Council, prescribe any other mode of execution in lieu of hanging."
  Clause negatived.
  House resumed.
  Bill reported; as amended, to be considered upon Thursday.

ARTIZANS' AND LABOURERS' DWELLINGS BILL.
(Mr. M'Cullagh Torrens, Mr. Kinnaird, Mr. Locke.)
ARTIZANS' AND LABOURERS' DWELLINGS BILL.

  [BILL 1.] COMMITTEE.
  Order for Committee read.
  Bill considered in Committee.
  (In the Committee.)
  SIR FRANCIS GOLDSMIDmoved that the Chairman report Progress with the view to the framing of a clause to protect the interests of reversioners, which, as
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  the Bill at present stood, had been altogether overlooked. The interest of the reversioner might be confiscated if the lessee neglected his duty.
  MR. GOLDNEYsuggested to the hon. Baronet to withdraw his Amendment until the clause framed by the hon. Member for Cambridge (Mr. Powell) to meet his objection was considered.
  SIR FRANCIS GOLDSMIDsaid, he would withdraw his Motion to report Progress.
  MR. POWELLthen proposed a clause providing that—
  "Application may be made to justices where more than one owner of premises included in order under Act, and any one owner neglects to comply with such order."
  SIR FRANCIS GOLDSMIDdenied that this clause would meet the difficulty. There might be half-a-dozen lessees, and finally the freeholder, and all those delicate interests required very careful consideration. He therefore hoped that the Chairman would be allowed to report Progress, in order that an opportunity should be afforded for the preparation of a new clause that would effectually protect the interests of reversioners.
  MR. POWELLsaid, he thought that in the clause he had proposed he had saved the interest of the reversioner.
  MR. GOLDNEYsaid, he was of opinion that the clause under consideration had been carefully drawn, and would meet the object of the hon. and learned Member for Reading (Sir Francis Goldsmid). Every class of interest in property was protected.
  SIR FRANCIS GOLDSMIDsaid, the description given did not tally with the printed words of the clause.
  MR. M'CULLAGH TORRENSsaid, there were no other powers in this Bill to take land than were contained in the Lands Clauses Consolidation Bill.
  SIR FRANCIS GOLDSMIDsaid, the effect of the Bill, even though including the proposed clause, would be to cause a forfeiture of the interests of reversioners, without their having any opportunity to prevent it.
  MR. AYRTONthought that some one should be responsible for the clause. The hon. and learned Member for Reading (Sir Francis Goldsmid), who was a good authority, told them the clause did not meet the wants of the case. It seemed to him it was necessary to have a well-considered clause.
  MR. HARVEY LEWISthought that the discussion showed the necessity of not

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  dealing with the rights of property in the off-hand manner proposed.
  LORD JOHN MANNERSsaid, he thought it would be a very great pity if the Committee were to lose this chance of getting through with the clauses of the Bill. There would be ample opportunity at its next stage to discuss the important subject which had been raised by the hon. Baronet.
  SIR FRANCIS GOLDSMIDsaid, they would not have an opportunity of discussing the matter fully when the Bill was reported, because at that stage hon. Members had only the privilege of addressing the House once. However, he would not further press the point.
  Clause agreed to.
  SIR FRANCIS GOLDSMIDmoved the following new clause, which he said was designed to obviate one of the many disadvantages which he believed would attend the working of the Bill if passed in its present form:—
  "This Act shall not apply to any premises as to which the owner of the freehold has instituted proceedings under the covenants contained in the lease under which the premises are held, in order to compel due performance of such covenants, as to repair or for forfeiture of such lease by reason of breach of any such covenants, provided such proceedings are bonâ fide and duly prosecuted, and provided that such owner shall succeed in obtaining judgment therein, and provided also that within three calendar months after such judgment obtained, such owner shall properly repair such premises so as to render them fit for healthy occupation, or pull down and demolish the same, at his option."
  MR. AYRTONsuggested that this clause should not be pressed; but that the matter should be allowed to remain in the hands of the Government.
  LORD JOHN MANNERSthought it would be only right for the Government to undertake some responsibility in connection with the Bill, and by the next stage attention would be paid to this matter.
  SIR FRANCIS GOLDSMIDsaid, on this understanding he would, for the present, withdraw the clause.
  MR. POWELLproposed a clause providing that, in case of leaseholds, the owner of the reversion have power to determine the lease, compensation being paid to the lessee.
  Clause agreed to.
  SIR FRANCIS GOLDSMIDmoved another clause—
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  "This Act shall not apply to any case in which the defective state or condition of the premises is attributable to or occasioned by the act, neglect, or default of the local authority, to put in force the powers for remedy of such defects already vested in such local authority."
  MR. GOLDNEYobjected to the clause.
  SIR FRANCIS GOLDSMIDmentioned the case of mischief being done by the authorities raising a road.
  MR. POWELLsaid the clause was inapplicable.
  Clause negatived.
  SIR FRANCIS GOLDSMIDnext moved the following new clause:—
  "In any case where any lessee shall refuse or neglect to execute the works required by the order of the local authority made under this Act, and the owner of the freehold shall elect to execute the same, such refusal or neglect of the lessee shall operate as a forfeiture of his interest in such premises, and if within one calendar month after such refusal or neglect the owner of the freehold shall commence such works, and he shall execute the same without delay, he shall be entitled to hold the said premises free from the interest of such lessee but subject to the payment by the freeholder to the lessee of the value of the interest of such lessee, according to the mode of valuation provided in the nineteenth Clause of this Act."
  MR. POWELLsaid, he did not see any objection to the clause.
  Clause agreed to.
  First Schedule.
  MR. AYRTONsaid, he observed that the corporation of London had made its influence felt in reference to the Bill, for by a note appended to the Schedule it was declared that the metropolis should not include the City of London; so that the result would be that the most wealthy portion of the metropolis would escape contributing towards the improvement of the dwellings of the poorest classes within the metropolis. Such an arrangement was most inequitable. He should move the omission in the Schedule of all words relating to the City of London, so as to make the metropolis at large, as defined by the Metropolis Local Management Act, liable to the charges for carrying this Act into operation.
  Amendment proposed, to leave out from the words "The City of London," in line 7, to "c. 91," in line 12, inclusive."—(Mr. Ayrton.)
  MR. GOSCHENopposed the Motion. There was a great deal of work to be done in the City of London of the nature contemplated by the Bill, and the City did not

  1067
  wish to escape from its fair share of public burden, but it desired to pay for that which was to be done within its own area.
  MR. HARVEY LEWISthought that the City had no claim for the exemption which was claimed. The metropolis should be regarded as one area for the purpose of carrying out all sanitary arrangements.
  Question put, "That the words proposed to be left out stand part of the Schedule."
  The Committee divided: — Ayes 26; Noes 19: Majority 7.
  House resumed.
  Bill reported; as amended, to be considered upon Tuesday next, and to be printed. [Bill 83.]

  BROUGHTY FERRY PROVISIONAL ORDER CONFIRMATION BILL.
  On Motion of The LORD ADVOCATE, Bill to confirm a Provisional Order under "The General Police and Improvement (Scotland) Act, 1862," relating to Brought; Ferry, ordered to be brought in by The LORD ADVOCATE, Mr. Secretary GATHORNE HARDY, and Sir JAMES FERGUSSON.
  House adjourned at half-after Eleven o'clock.