HC Deb 24 July 1872 vol 212 cc1707-41

Order for Second Reading read.


, in moving "That the Bill be now read a second time" said, that the question was making a considerable advance not merely in public opinion out-of-doors, but in the minds of that House, and was proving itself to be sound philosophically, sound in practice, and approved by Christianity. He would also point out that none of those who opposed it in that House, even the right hon. Gentleman the Secretary of State for the Home Department, approved the law relating to capital punishment as it stood, and was now administered, and the right hon. Gentleman had admitted that it could not be rightly carried out. Under the existing system the punishment of the criminal was frequently a matter of chance; and his (Mr. Gilpin's) conviction was, that it was the certainty and not the severity of the punishment which acted efficiently as a deterrent and preventive of crime. Could it, he would ask, tend to the reputation of the judicial Bench that the Judge should be obliged to pass sentence of death, when he knew perfectly well that that sentence would not be executed? There were many cases in modern times which showed the great uncertainty of capital punishment. There was the case of the clergyman Watson, who had unquestionably been guilty of an atrocious murder, but who yet obtained a reprieve; and there was the Brighton poisoning case, in which Christina Edmunds was found guilty of murder, and the Judge who tried her declared that the jury had done quite right in rejecting the hypothesis of her insanity; and yet that same Judge shortly afterwards recommended her to mercy, and she was sent to a lunatic asylum. On the other hand, there was the case of a man named Addington, a shoemaker, in Northamptonshire, who was unreasonably jealous of his wife, and who murdered her. There could be no doubt that the man was mad, but he was tried and convicted. Strong efforts were then made to save the man's life, and Dr. Pritchard, one of the best medical authorities in Northamptonshire, went with him (Mr. Gilpin) to the Home Secretary, to whom Dr. Pritchard said he would stake his professional reputation on the prisoner's insanity; but the Home Secretary said he was unable to interfere in the case, and the madman was hanged. [Mr. BRUCE said, that the hon. Member was not justified in calling that convict a madman.] He could not agree with that, for not only himself, but the first authority in Northampton on insanity called him mad. He asserted, without fear of contradiction, that a poor man had not the same chance of having his life spared, after conviction for a capital offence, as the rich man, for whom the influence of a large circle of acquaintances was brought to bear at the Home Office. ["Oh, oh!"] He did not wish to be misunderstood, for he was ready fully to admit that no person could be more anxious to discharge his duty conscientiously than the present Home Secretary; but it was not possible in the great majority of cases, especially in those of the very poor, to bring to bear on the Home Office all the influence which it was well known was exerted in the cases of Mr. Watson and Miss Edmunds. He remembered one Home Secretary who was not satisfied in merely recording the capital sentences passed by the Judges, and that was Sir George Lewis, who took upon himself in more than one instance to differ from the Judges and to act upon his own opinion. [Mr. BRUCE: So does every Home Secretary.] He was glad that such was the mode of proceeding; but the right hon. Gentleman knew as well as he (Mr. Gilpin) did, that practically, it was the opinion of the Judge that decided these cases. In the course of the speech he made on this subject three years ago, he mentioned the case of Samuel Wright as that of a man who ought to have been reprieved. That man, under circumstances of provocation, having when asleep been dragged out of his bed in the struggle that ensued, cut the throat of the woman who lived with him in Southwark. The man was conscientious in his way, and directly he had committed the crime he gave himself up to justice, stating that he was guilty of murder. He was tried immediately, and nothing could persuade him to plead "Not guilty;" for he said that he killed the woman, and he was guilty. Two thousand of his fellow-workmen, appreciating his character, went to the Home Office to petition for his life; but the man was hanged, and every house in the neighbourhood where he had lived had the shutters up or the blinds drawn down, showing the strong feeling which the execution had excited. Let hon. Members compare such a case as that with those of Watson and Miss Edmunds. There could be no doubt that the question of the abolition of capital punishment was only a question of time, and that before long the object he had in view would be accomplished by the substitution of a certain punishment for what he maintained was an uncertain one. Indeed, many leading men were adopting views in favour of the abolition of capital punishment, and in confirmation of that statement, among those whose opinions were in favour of the abolition of the death punishment, he could instance Earl Russell, Mr. John Bright, M.P., the Duke of Argyll, the Lord Chief Baron, Lord Lytton, Mr. Henley the right hon. Member for Oxfordshire, the late Lord Brougham, and others. [The hon. Member here quoted extracts from speeches and writings of those authorities.] This was a matter on which the security of society depended, and he wanted to have a law which would prevent the crime of murder by the certainty of conviction, and by offering the least possible chance of escape to the perpetrators of the crime. In Tuscany, Portugal, part of Russia, Saxony, Belgium, Holland, and other countries on the Continent, and in several States of the United States, where capital punishment had been abolished, it had been found that the result of the relaxation of the law had been beneficial in checking the crime; and as juries in this country hesitated to pronounce a conviction which might be followed by the loss of life, the penalty of death was itself becoming the cause of its own abolition. It appeared from a Parliamentary Return for the 10 years ending in December, 1870, that during that decade there were 242 convictions for murder, and that 129 persons were hanged, the sentence of death in 113 cases being commuted. In 1835 Lord Chancellor Lyndhurst pointed out, that of the total committals for murder only half resulted in convictions, and only one-third of the prisoners were put to death. In 1867 there were 255 verdicts of wilful murder returned by coroners' juries, and 261 in 1868, and those verdicts resulted in 94 persons being committed for trial in 1867, and 71 in 1868. Of the persons committed for trial 7 were found insane in 1867 and 12 in 1868; 60 were acquitted in 1867 and 38 in 1868; 27 were sentenced to death in 1867 and 21 in 1868; and 10 were hanged in 1867 and 12 in 1868. The experience of other countries produced a very similar result. In Holland there had been no execution for murder since 1860, and in the 20 years previous to that time there were only 11 executions arising out of 205 committals. To show that the fear of the death punishment had not a deterrent effect he would cite the case of Sarah Chesham, who, in 1847, was indicted at Chelmsford on a charge of poisoning. She was however acquitted, and rumour declared that her acquittal was brought about by the efforts of an influential juryman who was opposed to capital punishment. In 1848 she was indicted for the murder of her children, and was again acquitted. She afterwards murdered her husband, for which, crime she was executed. In all, the deaths of 14 persons were laid to her charge; but if the punishment had been anything short of death, society would have been rid of her after the first case. There could be no doubt that in most cases where the evidence was overwhelmingly strong a jury would be found to convict; but there could be no doubt also that jurymen engaged in trying murder cases were apt to do what jurymen should not do, and what they would not do if the punishment was not one from which there was no appeal—namely, try to find out loopholes which would enable them to give such a verdict as would not involve the last penalty of the law. Hon. Members might, perhaps, be disposed to say that all his sympathy was for the criminals and that he had none for the victims; but that was not the case, for his argument was, that by the punishment of death no good was done to the victims, and that harm was done to society. There were many instances of innocent persons being found guilty of murder, and Chief Baron Kelly had mentioned that in his experience he had become acquainted with 22 cases of capital convictions, in all of which the innocence of the accused had been subsequently established. In connection with this part of the subject, he would refer to the case of the Saffron Hill murder, in which Pollizioni was tried before Baron Martin, and sentenced to death, the learned Judge remarking that he was satisfied the prisoner was the man who inflicted the wound. Four weeks afterwards new facts were collected by Mr. Negretti, and subsequently a man named Gregorio was found guilty of the offence with which Pollizioni was charged. But Pollizioni had stood upon the very verge of the scaffold—was in the condemned cell, saw no escape from it but through the gallows; and yet was as innocent as the right hon. Gentleman in the Chair whom he (Mr. Gilpin) was now addressing. They should also bear in mind that although it might be said that there were very few cases comparatively in which innocent people had been hanged, that after the drop had fallen there would not exist the same reason for attempting to prove the innocence of the culprit that would exist if he were still alive. In all countries where capital punishment had been altogether discontinued the detection and punishment of murderers were much more certain than in those countries where the death penalty prevailed. The accounts of the revolutionary trials and executions that were still going on in France were enough to chill the blood of Europe; and, as one might anticipate future revolutions in that country, one could not doubt that the present sowing of dragons' teeth would produce its terrible reprisals. In America, on the contrary, after the Civil War, as soon as order was proclaimed, the pardon of rebels was almost unlimited, and not one was executed. Of the recommendations of the Capital Punishnment Commission, only one, relating to the privacy of executions, had been acted upon. He appealed to the Home Secretary, whether he could defend the law as it stood, which could not be carried out, and would not be as long as the right hon. Gentleman retained his present office? The Commissioners unanimously recommended that juries should have the opportunity of deciding in reference to a murder whether it was of the first or of the second degree. Adopt the recommendation for the classification of murders, and we should be certain of convictions in all cases of murder of the second degree; and then, instead of murderers being let loose upon society, we should have the crime of murder effectually discouraged. It was true Lord Mayo would have escaped assassination at the hands of the man who murdered him, if that man had been hanged on his former conviction; but let it be remembered that in this and other cases convictions were made under the law as it was, and not under the law as he proposed it should be. We had abolished a large number of capital offences by making the punishment secondary, and the offences had not increased either in number or in atrocity; and that which had checked other crimes would have an equal, if not a greater, effect in checking that of murder. In fact, every amelioration of the penal laws had been attended by a lessening of the crime against which the laws were directed. The punishment of death for small offences had been abolished, because it was found that juries would not convict, in spite of Legislature and Judges, when it was known that execution would follow conviction In confirmation of that fact he would quote the opinion of Charles Dickens, who, writing in The Daily News many years ago, said— If I were a juryman, and were called upon to decide whether a man were guilty of murder, I would go over the whole case, and if I could by any amount of special pleading find that there was the slightest possible ground for declaring the man mad, I would do so. Hon. Members might not be so plain spoken; but he ventured to say they would cordially concur in the sentiment. Convinced that the interests of society required the abolition of capital punishment as the foundation of all right prison reform, and that society would be much safer without it, because convictions would be much more certain, he would move the second reading of the Bill, the passing of which, in the language of Earl Russell, would be a step in the progress of enlightened legislation, of civilization, and of Christianity. In doing so, he gave expression to a desire that this country should not be behind other nations in the progress of civilization and Christianity, but that, imitating the example of our Divine Master, we should give the greatest sinner time for repentance, and allow him an opportunity of turning from the error of his ways.


, in seconding the Motion, said, his own view was expressed by the extract which his hon. Friend had read from Earl Russell, whose experience as Home Secretary during a very critical period, made his opinions of great value. He doubted whether anyone would contend in that House that the present state of the law was altogether satisfactory, and when the hon. Member for North Wiltshire (Sir George Jenkinson), while strongly opposing the Bill, placed Amendments on the Paper, he thought that that must be taken as an admission that the law was unsatisfactory. Returns relating to specified crimes, such as forgery and arson, showed that the percentage of convictions to charges was much increased since the abolition of capital punishment in respect of those crimes, while the offences themselves were much diminished in number; while with respect to murder, between 1861 and 1870, 678 persons were shown to have been committed for wilful murder; but of those only 242 were convicted, and 129 hanged. Those figures showed how unwilling juries were to convict, if the probability existed that the conviction would end in capital punishment. It used to be said that the Bank of England hanged 30 men a-year for forgery; but now we seldom hear of a man forging a banknote. Of course, juries had, theoretically, nothing to do with the penalty that would follow conviction; but it was practically impossible to get them to take that view, and the result was, that murderers were often acquitted who otherwise would be convicted. That state of things was not satisfactory, and although the majority of the Judges were against the abolition of capital punishment, they were not unanimous; and an eminent Irish Judge had declared that a Judge had no better opportunity of forming an opinion on the subject than any other man. Indeed, those who were professionally connected with a system were often least sensible to its defects; and barristers and Judges would naturally be more disposed to regard the present system with favour, than those who viewed the matter from a more impartial stand-point. The present system practically left the power of life and death in the hands of the Home Secretary; and no human being was competent to discharge the duty thus cast upon the Home Secretary with satisfaction to himself and the public, for, without invidiousness, it might be said that any two gentlemen who had filled the office would be apt to come to different conclusions in any particular case. He felt as much confidence in the present Secretary of State on these questions as he could in any man; but the right hon. Gentleman was but human, and, of course, liable to err. Whenever a man was sentenced to death the Home Office was flooded with applications that the mercy of the Crown would be extended to the criminal; but, personally, he had never signed a requisition in favour of a condemned criminal, for in his opinion, if the present system was to be maintained, the right course was to leave the Home Secretary at liberty to consider these cases in a judical spirit, in order that he might arrive at an unbiassed judgment. If the House rejected the Bill, the inference would be that it considered the existing system to be satisfactory; but he hoped that no hon. Gentleman who voted against the Bill would afterwards take up the time of the House by putting questions as to whether any murderer was to be pardoned or hanged. If it were safe to abolish the death penalty in Tuscany, surrounded, as it had been until recently by States in which life and property were not secure, owing to the brigandage which prevailed, surely it would be safe to abolish it in England. He trusted the House would give a favourable reception to the measure; but, whatever might be its fate, he believed the arguments against capital punishment were making way, and that sooner or later the penalty of death would be abolished.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Charles Gilpin.)


, in the absence of the hon. and learned Member for Launceston (Mr. Lopes), who had given Notice of his intention to move that the Bill be read a second time upon that day three months, said he rose to move the Amendment at the request of his hon. and learned Friend. He would commence by remarking that the first part of the speech of his hon. Friend the Member for Northampton (Mr. Gilpin) had consisted of cases; but he (Mr. Lewis) considered it dangerous to quote isolated cases when the whole of the circumstances were not before the House. It should be remembered, in reference to some of the cases mentioned, that the legal and medical definitions of insanity were very different. Besides, the argument of the hon. Gentleman, who had introduced the Bill went to show not that capital punishment should be abolished, but that some alteration should be made in the law, and as to that he thought all must be agreed. For instance, no person should be tried for murder without having the assistance of counsel in his defence. The uncertainty spoken of as attending trials for murder might be described as uncertainty as to whether the man would be convicted, and whether, if convicted, he would undergo a capital sentence. Returns moved for since 1869 proved that the proportion of convictions in relation to charges of murder was about one-third; whereas of other crimes the convictions were about two-thirds; but those Returns were vitiated by the circumstance that they included cases of infanticide, when everyone knew that trials for infanticide were a farce in this coun- try, and that only in rare instances were women executed for that crime. It was necessary that the promoters of the Bill should show that there really was hesitation on the part of juries to convict in bad cases of murder when they knew that the capital sentence would be carried out. Evidence given by the Judges in 1865 before the Royal Commission was to the contrary effect, with the exception of the testimony of Mr. Justice Shee. Last year there were 13 convictions for murder and four executions, while one person charged with infanticide was respited, and the others were sentenced to penal servitude. In fact, if a man committed what was called a bad murder he was tolerably certain of being convicted, and if convicted, supposing he escaped the capital penalty, be sent to penal servitude for life. It was difficult to see how the removal of the possibility of execution would be deterrent; but at the same time he must concede that some alteration in the law was necessary. With regard to other countries, the new German Code prescribed capital punishment in cases of treason and murder; and that looked something like a re-imposition of the death penalty in the German Empire. At the Social Science Congress of 1868, Lord Carnarvon, as President, said that the necessity for relaxation was no argument for abolition, and argued that the action of other countries was not necessarily an example for this, which was very differently situated. It had not been shown either, by the following facts, that in Tuscany, Portugal, and the United States, abolilition had been followed by good results. A Report of the Minister of Justice of Tuscany stated that murders had nearly doubled in numbers since the abolition of the death punishment, and the statement related for the most part to murders committed for the sake of plunder. If we were to accept the figures adduced respecting Portugal, murders had been 50 times more frequent there than here; and it was quite clear the statistics were valueless, because wanting in discrimination, and that the diminution of crimes never punished by death could not have been produced by the abolition of capital punishment. In the United States, he understood, there was no disposition to extend the abolition of the death punishment. The allowance of one year's grace after sentence, followed as it had been by executive inaction, was declared authoritatively to have produced an erroneous impression that capital punishment was abolished, when it was not; and it was said that the result of that impression had been a great increase in the number of murders. The case of Fisk and Stokes did not affect the question, because you would not get a conviction for murder in the United States in a case in which there was sympathy with the murderer, and a moral stigma attached to the person murdered. A year or two ago a young man who had murdered a little girl in a hop-garden under circumstances of peculiar atrocity, was rescued with difficulty by the police from the hands of the enraged populace. If, however, the people had known that he could only be legally sentenced to a term of imprisonment, they would, in all probability, have torn him to pieces. He used the phrase "term of years" advisedly; for although the supporters of the Bill believed murderers would be confined for their natural lives, it would practically be impossible to do so, as some hope must be held out to criminals. In the State of New York, for instance, prisoners sentenced to life-long imprisonment were, on the average, released at the expiration of seven or eight years; and, in connection with that practice, he would refer to the case of a man who cut a man's throat from ear to ear, and who had been previously sentenced to death for murder, though his sentence was commuted to penal servitude for life, and he had been released at the expiration of eight years and four months. The right hon. Gentleman the Member for Oxfordshire (Mr. Henley), on a former occasion, said he recollected the time when capital punishment was inflicted for offences of a comparatively trivial nature; but it should be borne in mind that when that was the case prosecutors and witnesses were reluctant to come forward, whereas no such reluctance was evinced in cases of murder. He believed, indeed, there were one or two instances of members of the Society of Friends being unwilling to give evidence on trials for murder; but these exceptions only proved the general rule. The State ought certainly in his judgment to retain the power of inflicting capital punishment in cases of high treason. It was true that the French Republic of 1848 abolished the death penalty for political offences, and Mr. William Howitt and others taunted England with being behind her neighbours in this respect; but Colonel Merlin, at one of the recent trials at Versailles, said—"Capital punishment for political offences being abolished, the prisoners will not be beheaded, but shot." It would be impossible for an army to be sent into the field or for a fleet to put to sea unless the power of inflicting the punishment of death were vested in somebody. Again, what was his hon. Friend going to do with one of his criminals, who, after being committed for life, murdered a jailer? If the Bill passed nothing more could be done with the criminal in such a case. Cantabit vacuus coram latrone viator. Even The Westminster Review admitted that if such prisoners could not be controlled, the death penalty might be retained in their case; but surely that was giving up the whole point. Without accusing his hon. Friend of undue sympathy with the criminal, he thought there were so many respectable, virtuous, and honest persons knocking at the doors of Parliament and seeking redress for their grievances, that he would invite the House to "pass to the Order of the Day," as the French said, even though some injustice might be done to that—to him at least—uninteresting animal the British murderer. The hon. Member concluded by moving the rejection of the Bill.


, in seconding the Amendment, said, it was not quite so clear to his mind as it appeared to other hon. Members, that a reduction of punishment produced a general diminution of crime. There was a deep feeling in human nature that crime deserved punishment, and that feeling was naturally strongest in regard to human life. No doubt, it was right to have sympathy and respect for human life; but they ought not to evince that sympathy and respect in a greater degree for an assassin than for his unoffending victim. The great question to consider was, whether the punishment of death had a deterrent effect. With regard to that point, they ought not to disregard, the testimony of the Judges and prison chaplains. He believed that all their inclinations were against capital punishment, and hence the House could not disregard their opinion in favour of re- taining capital punishment without incurring grave responsibility. In face of all the evidence which he had seen, therefore, he was not prepared to advocate the abolition of capital punishment in extreme cases of murder, for if the desire for punishment in those cases were not satisfied, it would find vent in such scenes as occurred in America. At the same time, the object of the punishment should be to strike terror into the hearts of those outside its effects, and not to unduly torture the criminal who had to suffer. There was a morbid sensibility on that subject to which Parliament ought not to yield. He denied that the Home Secretary had, as had been stated, the power of life and death in his hands. His power was entirely restricted to the Prerogative of mercy; and under no system could the exercise of such a Prerogative be avoided; and he was the proper person to be invested with it. In conclusion, he must say he should be shocked by seeing in this country such a state of feeling as had been described by Mr. John Stuart Mill—persons revolted by an execution, but not shocked by an assassination. While, however, he desired that human life should be respected, he must agree with the French reviewer, who said—Que Messieurs les assassins le commencement.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. J. D. Lewis.)


said, he must dispute the remarks respecting Tuscany which had been made by the hon. Member for Devonport (Mr. J. D. Lewis) in the course of his able speech. Those remarks were founded upon statistics which had been challenged, and were now admitted to be imperfect; and, according to Returns furnished to the Howard Institute, crimes of violence were far fewer in Tuscany, where capital punishment was abolished, than in any other part of the kingdom of Italy. It was argued that you could not inflict perpetual imprisonment by reason of its effects upon the health and reason of the prisoner. But in Belgium there were instances to the contrary, and one of the American delegates at the recent International Prison Congress stated that the most cheerful man in the gaol of Pennsylvania was a man who had been con- fined there for 26 years. At home, too, perpetual imprisonment was inflicted in the case of criminal lunatics without bad results. As to the Judges, we could not forget that they had uniformly resisted all ameliorations in our criminal code; and when Sir Samuel Romilly, in the commencement of his beneficent labours, 50 years ago, proposed merely to abolish the punishment of death for stealing property to the value of 5s. from a shop, Lord Ellenborough and Lord Eldon unanimously declared that it was not safe to abolish capital punishment even for that trifling offence. Our criminal code was then the most barbarous and most ferocious of any civilized country. It contained 230 capital offences, and these had not come down to us from remote and barbarous times, but many of them were actually created in the reign of George III. Nothing however was more gratifying than the progress since made in the matter, for instead of 230 offences punishable with death, there was now only one; and in that crime there were many shades of difference, so that it was often difficult to say whether the punishment of death would, or would not be inflicted. He thought, therefore, that taking it into consideration, his hon. Friend had no cause to fear for the ultimate success of his measure. Lately, in the discussion of this question, we had got rid of the Scriptural argument and also of the lex talionis—the idea that the punishment of death must be inflicted for purposes of mere retribution, on the principle of an eye for an eye and a tooth for a tooth. The simple question was, did the punishment of death give greater security for life? Sir George Grey had admitted that if the State were as safe without the punishment of death as with it, we should have no right to inflict it. Did, then, the punishment of death exercise a deterrent influence upon the population? No doubt, the prospect of death, especially of an ignominious death, must have great power over the minds of most men. But it was liable to be counteracted by other influences, which reduced its power very greatly. In crimes of deliberation it was counteracted by that curious principle which led men to except themselves from contingencies to which they saw that others were liable—the principle on which All men think all men mortal but themselves. Juvenal at greater length, but in similar reasoning, had described the course of thought in the mind of a man, in doubt whether the crime he was committing would be punished by the gods— But grant the wrath of Heaven be great; 'tis slow, And lets full many a year precede the blow. If, then, to punish all the gods agree, When, in their vengeance, will they come to me? But I, perhaps, their anger may appease, For they are wont to pardon faults like these: At worst there's hope; for every age and clime See different shades between the self-same crime. Archbishop Whately said these conditions applied with double force to crimes exposed to the less certain risk of discovery through human agency, and this calculation of impunity was necessarily great through the absence of all certainty in the administration of the law. As to crimes of passion, we knew that men committed them without reckoning the punishment of death. As Lord Bacon said— Revenge triumphs over death; love slights it; honour aspireth to it; grief flieth to it; fear preoccupieth it. Nay, we read, after Otho the Emperor had slain himself, pity, which is the tenderest of affections, provoked many to die out of mere compassion to their Sovereign, and as the truest sort of followers. Was it true, then, that severity of punishment tended to diminish crime? History pointed to an entirely different conclusion. When our Code was most sanguinary it seemed to give a stimulus to crime. Henry VIII. hanged 72,000 persons for robbery alone, yet Sir Thomas More wondered that while so many thieves were daily hung, so many still remained in the country, robbing in all places. Again, Queen Elizabeth hung 500 criminals a-year, yet she complained that that severity was ineffectual. When forgery was punishable with death, also, it multiplied enormously, notwithstanding. As to the deterrent effects of executions, it had been found that criminals so punished had almost invariably attended executions themselves, for out of 167 condemned convicts, according to the testimony of a gaol chaplain, 164 had seen persons hung; and another witness said that 38 out of 40 had done the same. In conclusion, he would contend that on account of the infinite gradations in the crime of murder; the sanctity of human life; the awful and irreparable nature of the punishment, which admitted of no redress in case of error, the penalty of death in all cases ought to be abolished.


said, he did not think that a case in which we should be guided by opinion. There was an overwhelming weight of opinion in favour of punishment by death; but since he had examined the catena of official facts, he could not share that opinion, for there were certain facts in connection with this matter which should have much more weight than any mere opinions, no matter from whom they might come. The question was—"Is the punishment of death deterrent in connection with the crime of murder?" On that point, he doubted whether the practice of foreign countries was of much value, for the circumstances of every country differed materially. Nor did it weigh with him that the punishment of death was irreversible, because in these matters we must do our best, and trust to Providence to avoid mistakes. In his opinion, however, punishment by death was not deterrent, and, in fact, seemed almost the reverse of deterrent. Our criminal Returns showed that from 1836 to 1840—both inclusive—the number of persons committed for murder in England and Wales was 191. In the five years from 1866 to 1870—he had not received the criminal statistics for 1871—the number was 324. That was strange evidence as to the deterrent effects of hanging. The increase in the number of committals for murder in the latter period was in the ratio of 69 per cent, whereas the increase in population was only 37 per cent. Nor did that increase apply in the same degree to other classes of crime, because, taking the whole of the five classes of crime—excluding larcenies—the number of such offences in 1836–40 was about 25,000, while in 1866–70 it was 29,000 showing an increase of only 15 per cent, while—as he had before observed, the increase of population was at the rate of 37 per cent. It might be said that the increased number of committals for murder was due to the increased vigilance of the police. But from 1866 to 1870, when—as he had said—there were 324 trials for murder, the police returns showed that 630 murders had been reported to have been committed, while the coroners' inquests showed 1,274 verdicts of murder. These facts did not indicate that the police were over effective, nor did the fact that out of 630 reported murders, 324 persons were tried, and only 107 found guilty—in round numbers, one person in every three. But that was not all, for out of those 107 who were convicted, only about 50 were executed. What a chance, therefore, a murderer must feel that he had of escaping punishment! Two things deterred from crime—the severity of the punishment, and the chance of being caught out and convicted; but no one could say there was much chance or certainty of punishment when only 107 persons out of 630 offenders received the reward of their crime. He would turn now to other crimes for which the punishment was less severe than it had formerly been. In 1836–40, 777 persons were tried for horse stealing; in 1866–70, only 534. In the former period, 454 persons were tried for forgery; in 1866–70, there were 845; and considering the vast increase of population, and of written instruments bearing value, it was marvellous that the increase had not been infinitely greater. He had shown that in trials for murder, two persons were acquitted for one found guilty; but taking all crimes—including murder—the convictions were 73, and the acquittals only 27 per cent, so that there was a far greater chance of escape for murders than for other criminals, and that must tend to prevent the punishment of death from being deterrent. He quite concurred in the principle that the worst use to which a man could be put was to hang him, and he did not think anybody desired to hang men now-a-days, unless reasonable ground existed for believing that hanging would act as a deterring punishment. In the face of the criminal Returns and of the facts to which attention had been called, the only conclusion he could come to was that hanging did not act as a deterrent, and that view being once adopted, all the other considerations as to the possibility of error in the conviction, the uncertainty of execution of the sentence and so forth, all came into play with redoubled force. Under such a conviction he should support the second reading of the Bill.


said, he viewed the measure now under discussion as a demand following upon the natural progression of steps taken within the last few years for the mitigation of the severities of our criminal laws. The first of those steps was the appointment of a Royal Commission, consisting of 12 of the most competent men, to inquire into the question of capital punishment. Four of those Gentlemen had declared themselves unconditionally, and one (Lord O'Hagan) conditionally, in favour of the immediate abolition of capital punishment, and the whole Commission concurred in the opinion, that unless in the most aggravated cases of murder, capital punishment should not be carried out. The question as to whether capital punishment really acted as a deterrent seemed to him (Mr. Whalley) to have been determined and given up when the public executions of criminals were stopped, and he was well aware that no part of their present duty was more repugnant to governors of gaols and other gaol officials than that of assisting at executions within the walls. The hon. Member for Devonport (Mr. J. D. Lewis) destroyed the effect of his otherwise admirable speech when he contended that if capital punishment were abolished, soldiers and sailors guilty of flagrant misconduct in front of the enemy could not be put to death. But in that case the offenders would be engaged in an attempt to take life on a great scale, and there would accordingly be a clear necessity for putting them to death for the sake of preserving the lives of others. In Switzerland he had ascertained personally that they recognized the existence of a disease under which certain individuals felt themselves mysteriously impelled to commit murder. They viewed it as an uncontrollable monomania, and provided hospitals with specifics, for the reception of such cases. It appeared to him that they ought to act in a somewhat similar way in this country in reference to many cases of alleged murder.


Sir, in the course of this debate two remarkable speeches have been delivered. The able speech of the hon. Member for Devonport (Mr. J. D. Lewis), in opposition to this Bill, has made me to regret that he has not more frequently brought his discriminating powers and logical arguments to bear upon the debates of this House. But the hon. Member had the misfortune to speak to almost empty benches; and I fear that may happen on this occasion, which I have often known happen on a Wednesday, that hon. Members will come down to this House and vote without having heard arguments which I am sure would have carried conviction to the mind of any impartial person who entertained even a doubt upon this subject. The other remarkable speech was the speech of the right hon. Gentleman the Member for Oxford (Mr. Henley). I am sorry to say that this is another instance in which we find, with regard to that right hon. Gentleman, that his former principles have now nearly reached the vanishing point. What was the ground, and the only ground, upon which the right hon. Gentleman relied? He relied upon this—that whereas there has been a decrease in other crimes and in the convictions for other crimes, there has been an increase in the number of accusations for murder, and that the Returns failed to show that there has been a proportionate increase in the infliction of capital punishment. I know not why the right hon. Gentleman adduced the increase of the crime without alluding to the cause of the decrease in the infliction of the penalty upon that crime, which I hold to be the proportionate penalty for it—I mean capital punishment? It is now five years since I first called the attention of the House to the evil effects which were being produced in the Midland Counties by the uncertainty with which the capital penalty was inflicted as the consequence of the crime of murder. I then predicted that murder would increase—and murder has increased. The right hon. Gentleman the Home Secretary ought to know that the crime of murder is yet on the increase, and it seems to me very much in proportion to the uncertainty which has been superinduced, as to the infliction of the capital punishment which should be the certain consequence of the crime. That is my explanation of the ground upon which the right hon. Gentleman rests. I acknowledge that capital punishment as now inflicted is less deterrent. Why? Because its infliction has been constantly intercepted by the action of the Secretary of State. Then the hon. Member for Peterborough (Mr. Whalley) has had the hardihood to declare that the Royal Commissioners recommended the abolition of capital punishment. They recommended nothing of the kind. They recommended a more accurate definition of the crime of murder, and that only in cases of aggravated murder should capital punishment be inflicted; but they recommended its invariable infliction in those cases.


Sir, I rise to Order. I trust the House will pardon me, while I state that I did not say that the Royal Commission recommended the abolition of capital punishment. I said that they never did so; but that they did so with regard to one class of murder.


The hon. Member, I am glad to hear, is more correct than I understood him to be. It is quite true that there was a minority of the Commission who recommended the abolition of capital punishment; but the majority were distinctly opposed to it. I am willing to admit to the hon. Gentleman that the Commissioners wished the crime to be more accurately defined, and I think there are strong reasons for taking infanticide out of the category; but nothing can be more emphatic than the declaration of the majority of the Judges that for the safety of the community, capital punishment should not only be retained, but with certainty inflicted upon those who are guilty of deliberate murder. [Mr. WHALLEY: No, no; it is not so.] That was the recommendation of the Commissioners, and therefore I am not wrong in saying that the hon. Member for Peterborough has misinterpreted their Report. Well, Sir, but there are reasons why this proposal for the abolition of capital punishment has grown into importance. There is an active political agency at work. I brought forward a case of undue remission of capital punishment upon the murderer Scott. The murder was committed in Birmingham in 1867. I was threatened by that Society. As the House might reasonably expect, I set that threat at defiance. This is, I believe, a democratic agency; and it is one phase of modern democracy to object to the legal infliction of capital punishment, whilst the practice of democracy in the United States, as shown by the hon. Member for Devonport and elsewhere, is this—that, whilst it objects to the deliberate trial, the calm sentence, and the solemn infliction of capital punishment, it seeks to grasp the use of that penalty for itself, and to inflict death not as the result of deliberate judgment, but as the effect of the impulse of the multitude. That agency, being democratic, is found in active operation in this country. There is another agency at work—it is the Ultramontane agency. We shall have evidence of it in the division. The Ultramontane agency is opposed to capital punishment, because it is opposed to law. ["No, no!"] But I say, yes. I say this, basing my assertion upon the experience of the German Empire and the German people—and that one instance will suffice for the present—that the Ultramontane agency is jealous of the execution of any law which it cannot influence. It is as hypocritical as the Inquisition, the memory of which it eulogizes. What is the history of the Inquisition? Oh, the Inquisition never inflicted capital punishment! It was too holy an office to inflict capital punishment! So it made over its criminals to the civil power; and then in modern days its advocates have had the hardihood to condemn the civil power for executing that which were, in fact, its own decrees. That is the other agency which is opposed to capital punishment. Sir, I have brought case after case from the Midland Counties before this House, ever since 1867, as the representative of an intelligent constituency. In 1867 John Scott deliberately murdered John Prise, and was sentenced to death. That sentence was commuted. Ten magistrates and 3,000 inhabitants of Birmingham requested me to remonstrate in this House, and I remonstrated. Another murder was also committed in the county which I represent. Michael Atkins murdered his wife on the 22nd of April, 1869. That sentence was commuted by the present Home Secretary in the strangest way. The capital sentence was commuted into a year's imprisonment. Well, the American feeling began to arise among my constituents. I warned the right hon. Gentleman that if this man, at the expiration of his sentence, went back to the neighbourhood where he committee the murder, the people would be inclined to adopt the American fashion and take the law into their own hands, and so the right hon. Gentleman provided him with means to go I know not where. There is an illustration of the modern system of commuting punishment. Then comes the case of Arthur Brown, who this year murdered John Milward at Coventry I am sorry to say that the Lord Lieutenant, with some ill-advised persons prayed for the commutation of the sen- tence. Well, it was commuted, and within a few days William Randall stabbed George Johnson to death within eight miles of the same place. These are a series of crimes which have followed upon this system of commutation; and then the right hon. Gentleman the Member for Oxfordshire rises up and says that capital punishment is of no avail, because it has ceased to be deterrent. Why has it ceased to be deterrent? Because it has not been regularly inflicted. That is the reason the punishment has not been deterrent. We feel it in the Midland Counties. I have represented it to this House. It is a punishment that will not be deterrent—it is not justifiable if it is not certainly inflicted. If this Motion had been in the terms of the Amendment of which Notice has been given by the hon. Baronet the Member for North Wiltshire (Sir George Jenkinson), an Amendment that would have carried out the recommendations of the Commission, I would have voted for it. But I believe that the highest modern intellect at present evinced in the acts of the German Empire is not deceived when it declares that the Scriptural dictum is right—that his blood shall be required by man who sheds man's blood deliberately for his own purposes. Believing that that is a fundamental truth, I shall most certainly vote with the hon. Member for Devonport in support of that which I love not better than any other man—the maintenance of the punishment which I value because my nature shrinks from it. All that has been said about the horror which this punishment excites, to my mind justifies its infliction, because it is pointed out in the Sacred Writings as the appropriate punishment of a crime which from the time of our first parents has stood alone in its consequences. Sir, there is a great deal of morbid sentiment displayed about this question. We have had here amiable persons collected in order that they may devise some better means of secondary punishment. Let us consider your secondary punishment. You had the other day a murder—and I say it was murder—the murder of William Murphy. His murderers were tried for a secondary offence. There was a secondary punishment inflicted upon the murderers. It was only a year's imprisonment; but that was subjected to the same rule of commutation, for immediately the murdered man was buried, the Home Secretary remitted two months of that year's hard labour which had been imposed upon the murderers. Talk not to me of your secondary punishment. Imprisonment for life, without hope of remission, is a punishment more cruel than death. I have seen something of it in the United States. I have seen the attempt made, and the miserable wreck of human nature resulting from the slow and gradual progress of infernal and cruel oppression of the vital faculties which that punishment inflicts, until human nature dissolves beneath its pressure. Talk not to me of mercy, if you mean imprisonment for life. But you do not mean imprisonment for life; you mean imprisonment nominally for life, to be commuted to imprisonment for a certain period, according to the pressure that shall be brought to bear, by some popular or other agency, upon the authority having power to remit the sentence. And to what does all this tend? It tends to this—that the inhabitants of this country shall hold their lives free from danger of murder on the same terms as future murderers—if according to your wishes you pass this Bill—shall hold theirs—at the pleasure of the Secretary of State. That is what it means. The increase of power in the hands of the Secretary of State by this practice of commutation is enormous. Our forefathers thought it enough that their property was held subject to the political agency of the State. You would make us hold our lives upon that condition. And now I state this—the English people are of the same race as the Americans, and if you will not give them the security for their lives, which the law enforcing this punishment has for ages afforded, I believe they will do—whether you like it or whether you do not—just what the Americans habitually do, and take the law into their own hands in cases of aggravated murder.


I ask permission of the House to set myself right with regard to the contents of the Report of the Royal Commissioners, which I think the hon. Member for North Warwickshire said I had misinterpreted. The Report says— The Commissioners unanimously forbear to enter into the abstract question of the expediency of abolishing or maintaining capital punishment, on which question differences of opinion exist among them but they are of opinion that certain alterations ought to be made in the existing law. And four of them signed the following:— The undersigned were of opinion that capital punishment might safely and with advantage to the community be at once abolished.


That is the Report of the minority.


, whose experience had lain in a British community at the other end of the world, said, that as the holder of a patent office it had been his duty to attend all the criminal trials in Sydney and on circuit; and the opinion which he formed was that the fear of death was not deterrent to any considerable extent. On the contrary, it seemed to him that one murder, in fact, led to another. Having on one occasion seen a man condemned to death who was innocent, and who was only saved by the accidental discovery of some material circumstances between the conviction and the day fixed for execution; and having suspected, with fully good reason, that there had been a miscarriage of justice in other cases, he should support the Bill.


entertained no doubt that the State had as good a right to execute persons who committed murder as to do any other action in the world. But believing from his own experience in criminal trials that the existence of capital punishment threw difficulties in the way of obtaining convictions for undoubted crimes, he was disposed to vote for the Bill. There had been a case within the last fortnight in which but for the existence of capital punishment a conviction would undoubtedly have been obtained; and within the last 48 hours he himself had prosecuted in the county Cork a man about whose conviction, but for the penalty of death, he felt certain, but who, in consequence of the state of the law, had been acquitted. There were other cases which he could mention; but as the prisoners might be put on their trial again, he refrained from doing so. Every one of the Crown Solicitors on the Munster Circuit, and he believed the majority of the Judges, were of opinion that if capital punishment were done away with the number of convictions would be increased. At a trial in Limerick, where a great crime in law, amounting to murder, had been committed, if those acting for the Crown had not thought proper to strain the law a little and consent to a verdict of manslaughter, five persons, who, as it was, had been sentenced to periods of penal servitude varying from five to 20 years, would have been walking about the country, exulting in the impunity with which their crime had been committed.


said, he should have taken no part in the debate but for the remarks of his right hon. and learned Friend who had just sat down. He could not allow those observations to go forth to the public uncontradicted, as if they represented the views of those who were intimately acquainted with the criminal jurisprudence of Ireland. For his own part, he entirely differed from the conclusion arrived at by his right hon. and learned Friend. There was no doubt that in particular instances the view which juries took of their duty had been affected by the knowledge that their verdict would endanger the life of the prisoner. But because individual prejudice had taken that view, was that any reason for making an alteration of such vast importance in the general law? Juries had differed in England and in Ireland upon other subjects than trials for murder. He held, for instance, in his hand a telegram from the assizes in the Queen's County informing him that the jury had disagreed in a case of effigy-burning of Mr. Justice Keogh. The penalty of death did not enter into the deliberations of those jurymen. Juries were influenced by many motives in coming to a decision; some might be incapable of understanding the evidence, and some might be influenced by political or religious considerations. His unqualified opinion was that death should follow murder in the first degree without exception. There could be no such deterrent as death. Let any hon. Member ask himself the question which would be the greatest deterrent to him, death or penal servitude for life? With reference to the case tried at Limerick, be supposed his right hon. and learned Friend had made a slip of the tongue, for it was obviously inaccurate to say the Crown in that case had directed a verdict of manslaughter.


I rise to offer a short comment—a very short comment—upon the speech of the hon. Member for Merthyr (Mr. Richard). That hon. Member asks that the law which permits the infliction of capital punishment for a capital offence shall be repealed, and that henceforth, murderers even in the first degree shall escape their liability to execution. And he does so principally upon two grounds—first, because, in his opinion, experience proves that, where death sentences are legal, the crime of murder largely prevails; whereas, where sentences for these crimes are less severe, the crimes themselves are fewer in number and less atrocious in degree. And, secondly, because, taken as a whole, severe sentences are not deterrent. In reference to the second argument, which has been dealt with by other speakers, I shall only remark that I thought we were all agreed that in brutal offences—as, for instance, in the prevalence of garrotting—the application of the lash, as a part of the punishment after conviction, had been found very efficacious, the number and the violence of those crimes having greatly decreased since the change in the law. [Mr. GILPIN: No, no!] The hon. Member for Northampton says "No, no;" but this I am able to say of my own experience—that whereas, prior to the change in the law to which I have referred, I felt it necessary to carry my loaded revolver in my nightly passages across Hampstead Heath, after the change in the law that precaution became entirely unnecessary. The criticisms, however, to which I ask the attention of the House, I desire to direct principally to the first argument of the hon. Member for Merthyr. In the course of his argument that hon. Gentleman, favoured us with statistics which he had received from the Italian authorities, and which said that whereas convictions for murder in Sardinia were 1 in 13,000 of the population per annum, they were proportionately less numerous through the various divisions of Italy, until in Tuscany, the most favoured division of all in this respect, the convictions for murder were only 1 in the 160,000 of the population per annum. The hon. Member for Merthyr went on to say that in Sardinia death punishments were still the law, whereas in Tuscany the punishment of death had been entirely abolished; and he desired the House to infer that the frequency of murders in Sardinia resulted from this state of the law, and the unfrequency of them in Tuscany from the milder form of punishment which prevailed. If the hon. Member for Merthyr had been practically acquainted with these countries, he would not have felt at liberty to make the deductions which he has made from the statistics which he has submitted; but would have sought otherwise in order to inform himself why this great difference prevailed. It is true—and in this respect the hon. Member for Merthyr has not overstated his case—that murders are much more prevalent in Sardinia than they are in Tuscany and in some other parts of Italy; but it is equally true—and this fact is essential to the clear appreciation of the truth—that although the punishment of death remains upon the statute book of Sardinia, it is nevertheless but very seldom indeed inflicted. It has been my fortune four times to visit Sardinia, and upon the two latter occasions to reside there for some little time, having continuously the opportunity of a free, friendly, and confidential intercourse with the principal authorities of the island. My experience leads me to the conclusion that the prevalence of murder results, not because the punishment of death remains upon the statute book, but because, in the first place, the crime of murder is not looked upon with that abhorrence with which it is regarded in this country; but, on the contrary, it is usually treated but with too great an indulgence, if not with actual sympathy; because, also, it is but too commonly the case that inhabitants of Sardinia habitually carry knives, daggers, and other offensive and dangerous weapons, available upon short notice and upon slight provocation; and because that spirit of vendetta, for which the Italian races have been too notorious, has been but partially uprooted by the advancing tides of civilization. Another reason why the crime of murder prevails, especially in Sardinia, may be found in the fact that convictions for murder are extremely difficult: with every desire to administer justice on the part of the authorities, it is extremely difficult to obtain reliable evidence, and thus also to secure convictions; and so in the best percentage of cases murderers escape almost with impunity. Within a few weeks of the present time an employé of my own was stabbed in the streets of Cagliari; and although his companion gave me the circumstances of the attempted assassination in considerable detail, he declined to give evidence to the authorities, lest the spirit of vendetta might bring upon him the same danger from which his companion had only just escaped with his life. Mr. Speaker, as in Sardinia, so in other parts of Italy, the crime of murder prevails, not in proportion to the severity of the law, but in proportion to the developed civilization of the Province, and in proportion to that wholesome explosion of public opinion, which gradually but certainly educates each rising generation. So in our own country. I believe that the abolition of death punishment would not bring about a more rapid decline in the crime of murder; but that that decline would go on and continue, in exact proportion with the horror and contempt in which it is held by our populations; and I think that we shall all of us best advance the object we have in view, not so much by exhibiting a sympathetic desire to save the forfeited lives of individual criminals, as by each doing his part to educate the developing thoughts upon this subject in the direction which shall make the offence of murder secure to the murderer that great and certain punishment which is his due, and which in the end will best impress upon all the thought of the Commandment—"Thou shalt commit no murder."


said, he could entirely corroborate the opinion expressed by the last speaker. His experience, gathered during a residence at Palermo of some considerable duration, had led him to the conclusion that there was a want of moral fibre, and that the whole of the sympathies of the population of Italy, especially in the South, were with the criminal; and this state of things was accompanied by a strong feeling of terror at the idea of giving evidence, so that it was next to impossible to procure a conviction. He gathered from a report of a recent debate on the question of punishment by death in the Italian Chamber, that the majority of the Council of Ministers was in favour of the punishment. Sella went further, and maintained that not only should the punishment of death be maintained, but that it should be used "without too much parsimony." "Italy," he added— was the country in all the world where the people killed the most and hanged the least; whereas in England they killed the least and hanged the most. The most determined opponents to capital punishment was the Society of Friends and the humanitarian revolutionary party. With regard to the first, as in everything else, they were truly consistent, and he honoured them for it. It must, however, be remembered that they were not only opposed to capital punishment per se, but to war, and to the sacrifice of life in any shape whatever. The second, however, objected to hanging because they objected to anything which gave expression to the principle of authority. They denied that society was divinely constituted—having divine rights and attributes; they maintained it was a mere affair of convention; and that the exercise of authority was an affair of personal tyranny. Invariably, however, that party, when they had gained possession of power—and more especially in France, after abolishing with great pomp and circumstance the punishment of death, were the first to erect the "great national chopper." The heroes of the Reign of Terror, for instance, were all humanitarians at one period of their career. The director of the executions at Arras was originally a humanitarian; but in later times he entertained his friends upon the balcony of his house at Arras with, a good view of the chopping of the guillotine. The growing softness of juries, which had been commented upon so persistently by the hon. Gentleman who introduced the Bill (Mr. Gilpin), was a relaxation of the moral fibre, and merely another example of the growing tendency to flinch from, duty when it was not agreeable. Many persons, too, were incited to argue against capital punishment from a feeling of supreme pity for the right hon. Gentleman opposite (Mr. Bruce). He (Mr. Tipping) had no pity for him. The right hon. Gentleman had accepted a post of great distinction, and he must bear the responsibilities attached to the position. No doubt some of his duties were painful; still they must be fulfilled as a man of courage knew how to fulfil them. At the risk of shocking some hon. Members, he would take the hon. Member opposite (Mr. Richard) upon his own ground. The hon. Member relied upon the Christian argument, and asserted that it was part of the design of Christianity to abolish capital punishment. It was impossible, however, to disassociate logic altogether from the consideration of this point, and he would remind the House that the very first judicial act of the Apostles under the new dispensation—that in the case of Ananias and Sapphira—was an award of the punishment of death for an offence which an English jury would regard as very far short of a capital crime, and which, according to English law, would be considered as less than a misdemeanour. In conclusion, he would express a conviction that it was necessary to encourage in England a strong sense of duty, and a courageous performance of duty; and that it was equally necessary to destroy that feeling of mawkish sentimentality which found expression in proposals such as that contained in the Bill before the House, and which if allowed to gain ground would undermine the national character.


said, he had not purposed to trouble the House upon that occasion; but he thought it was due to the great eminence of the right hon. Gentleman the Member for Oxfordshire that he should make a few observations upon the speech which he had addressed to them, and call the attention of the House to the fact that many of his statistics were not such as the House could, in the shape in which he was pleased to give them, altogether rely. The right hon. Gentleman met this case, as he had every case, like a man. He dismissed from consideration many of those arguments which he, probably, felt were rather of a sentimental than of a real character, and he said we must do our duty according to the light that we possessed, and that we should not be doing wrong in taking away a man's life if the justice of the case required it. He (the Attorney General) did not complain of that line of argument. His opinion was that it was better to argue a question of this kind upon the ground of fact rather than from the basis of opinion. The right hon. and learned Member for Clare (Sir Colman O'Loghlen) had argued that in certain cases juries went wrong because the punishment of death was not likely to be inflicted; and that in certain other cases they went wrong because the punishment of death was likely to be inflicted. It was impossible, however, to judge of particular cases without being in full possession of the facts, and he deprecated raising an argument upon isolated instances, from which the House could not judge, because it had not an adequate knowledge of the details, and therefore could not apply the proper test to these arguments. The hon. Member for North Warwickshire (Mr. Newdegate) had said that the punishment of death had ceased to be deterrent in consequence of the number of sentences commuted by successive Home Secretaries. The hon. Member had, no doubt unintentionally, been misled by his well-meaning but extreme zeal in his reference to the case of Murphy to speak of the persons concerned therein as having been tried for the murder, whereas they were tried for aggravated assault only.


said, that he had considered the case of the infliction of secondary punishments, and had stated with, reference to Mr. Murphy that he was proved to have been murdered.


understood that the hon. Member had referred to the trial for murder.


said, the wrongdoers were tried for a secondary offence, and he complained that the secondary punishment had been commuted.


must appeal to the recollection of the House upon the question. He had no doubt that, from the peculiar temper of his mind, the hon. Gentleman had been unintentionally misled; because there were such things as prejudices on most subjects, and they were calculated to mislead the judgment. He took the argument of the hon. Gentleman to mean that the secondary punishment was improperly commuted by the Home Secretary. But from the earliest time the property of mercy had resided in the Crown, even in the most despotic times, such as those of Henry VII., Henry VIII., and Queen Elizabeth; but those monarchs had not proceeded on a perusal of the documents, but had entrusted that office to a Lord Chancellor, a Secretary of State, or a Lord President, upon whose advice they acted. As soon as constitutional Government was established, it became the rule to depute authority to the Home Secretary in the matter, and for a long series of years that practice had been followed. He now came to the manly and straightforward argument of the right hon. Member for Oxfordshire—that the punishment of death was not deterrent, and that if it was not necessary to the safety of the State it was not justifiable. He could not put the right of the State so low as did some, for the mind of man was so constituted that it was not satisfied with taking less than life for certain offences of great enormity. The right hon. Gentleman took two periods of five years each—one period extending from 1836 to 1840, the other from 1866 to 1870—and he stated that the committals for murder in the first period were 191, and in the second period 324. But the right hon. Gentleman said that this did not represent the whole case, because the police returns showed that there were 630 offences committed. The right hon. Gentleman referred further to the coroners' inquests, the facts revealed before many of which established a primâ facie case of murder, the whole number being 1,274. Thus, the right hon. Gentleman assumed that 1,274 murders were committed while punishment of death was being carried into execution. What was the answer? It was that the right hon. Gentleman had not completed his figures, and had not stated the convictions and executions. If the right hon. Gentleman had given convictions and executions during the first five years, and those which had taken place during the second five years, and shown that there was an increase of crime of murder proper, he might have established a strong argument; but the right hon. Gentleman did not supply the House with the real list of the whole case. He (the Attorney General) would try to supply that. In the first series of five years, from 1836 to 1840, the number of convictions was 87, and the number of executions 40. He could not speak so certainly of the correctness of the figures for the years from 1866 to 1870; but he believed he was correct in stating that the number of convictions was 111, and of executions 49—showing the proportion during the two periods to be almost as close as possible. What, then, became of the argument of the right hon. Gentleman? The right hon. Gentleman, too, had quoted in his figures cases of infanticide which, by the law of England, came under the technical designation of murder, but which were not visited with its penalty, and, indeed, no one expected they would be. Moreover, the number of inquests could surely be no test; an inquest was held in almost all cases of sudden or violent death, whether the result of accident or other abnormal cause; and, in the majority of cases of inquests, murder was not only not suggested, but not even suspected. The only way, however, to arrive at a sound conclusion was to take the crime of murder in its worst development, where it had been committed deliberately and with malice, and to see whether convictions and executions for that kind of crime had increased. He thought that if the right hon. Gentleman did so, and applied the talents which he so often exercised as objector extraordinary to loosely-drawn Bills to the subject before the House, he would not come to the conclusion which he had announced. He (the Attorney General) must say that he had failed to be convinced by the arguments adduced, and he thought the House would be doing wrongly if it were to assent to the abolition of the punishment of death.


said, that after the exhaustive speech of his hon. and learned Friend (the Attorney General) it would be unnecessary for him to detain the House at any length. He would at once admit that if it could be shown that capital punishment had failed to have a deterrent effect, a fair case would have been made out in favour of its abolition. The argument of the right hon. Member for Oxfordshire was that, in spite of the infliction of capital punishment, the crime of murder was increasing; and, on the other hand, the argument of the hon. Member for North Warwickshire was that capital punishment had ceased to be deterrent in this country in consequence of the prerogative of mercy having been improperly exercised by himself in his capacity of Home Secretary. With regard to the first objection, it could not be denied that our system of police had greatly improved throughout the country, and that the chances of escape of a murderer had much decreased of late years. To show that the crime of murder had not increased in recent years, he might state that in the three years ending in 1868, when his right hon. Friend the Member for the University of Oxford (Mr. G. Hardy) was Home Secretary, 148 males had been tried for murder against 102 tried for that offence in the three years ending in 1871, being a diminution of 46. In the first three years 74 males had been sentenced to death and 32 executed against 46 sentenced to death and 20 executed in the latter three years. He was content to show that this diminution of crime had occurred under a system which had been approved by the intelligent portion of the community. Were every person upon whom sentence of death was passed to be executed the result would be that next year a Bill for the abolition of capital punishment would be passed. It must be remembered that the Judges could exercise no discretion in passing sentence; if the jury found a man guilty of murder the Judge was bound to pass sentence of death upon him, although both he and the jury might be of opinion that the sentence ought not to be carried into execution. Our law admitted of but the one punishment for the crime of murder, although the circumstances under which the crime was committed might vary infinitely; and the only person who had the power of tempering the occasional harshness of the law was the Home Secretary. It had been alleged in the course of the debate that the Home Secretary was liable to be influenced, however right-minded and upright he might be; and that, under these circumstances, it could not be otherwise than that the law would be strained in favour of the rich as compared with the poor. The only reply he had to make to that insinuation was, that neither himself nor his predecessor had ever allowed themselves to be influenced in their exercise of the prerogative of mercy by anything except the written documents in each particular case. In the case cited by the hon. Gentleman the Member for Northampton (Mr. Gilpin), in such a way as to excite the horror of the House, in which it was alleged that a medical man had declared that the person guilty of the murder was a madman, all he could say was that one medical gentleman had set himself up to decide the case against the opinion of the jury who had heard his evidence, and the Judge who had presided over the trial, and who had both declined to give any indication that they were dissatisfied with the result, which the Home Secretary would not have been justified in setting aside on the ipse dixit of one medical gentleman. He could not refrain from saying that the occasional display of humanitarian feelings on the part of some persons rendered the exercise of the prerogative of mercy by the Home Secretary even more difficult than it otherwise would be. Juries who might hesitate to find persons guilty of murder if it were certain that the sentence would be carried into effect, now gave their verdicts according to law, in the full belief that justice would be done according to the real guilt of the criminal. He was satisfied that the system of punishment for capital offences in this country might advantageously compare with that which existed in any other country. It was, however, quite useless to compare the systems of criminal law in various countries unless we were thoroughly acquainted with the exact state of their civilization. The hon. Member for Devonport (Mr. J. D. Lewis) had shown that in many countries where the criminal law was lax the people took the law into their own hands, and that in other countries, where capital punishment had been abolished, some of the highest intellects had grave doubts whether the change had been beneficial. In his opinion, capital punishment had a general deterrent effect, although, perhaps, not sufficient to prevent the indulgence of wild feelings of vengeance, of cupidity, and of brutality. Under these circumstances, he must give his vote against the Bill.


, in reply, said, he had nothing to complain of in the tone of either the hon. Mover or the Seconder of the Amendment. The former had made a speech of great ability, but the hon. Member would not feel offended if he (Mr. Gilpin) expressed a wish that it had been made in a better cause. He had done his best to show that the punishment of death did not deter from the commission of the crime of murder. He denied that there was any maudlin sentimentality mixed up with the agitation of this question, and he confidently asked for the favourable verdict of the House.

Question put, "That the word 'now' stand part of the Question."

The House divided:—Ayes 54; Noes 167: Majority 113.

Words added.

Main Question, as amended, put, and agreed to.

Second Reading put off for three months.