[BILL 75.] SECOND READING. (Hansard, 8 March 1876)

THE ATTORNEY GENERAL
said, there were many objections to the provisions of the measure, which was founded on the less preferable of two recommendations of the Commission on Capital Punishment. Instead of simplifying the law it appeared to him to complicate it and to render it more difficult for the Courts to administer. It divided the crime of murder into two classes—"offences of the first and second degrees." It defined murder of the first degree as "the unlawful killing of a human being by another, with deliberate intent to kill, and with malice aforethought;" but the 4th clause also declared it murder in the first degree "where death had been caused by the wilful act of any person when committing or attempting to commit any felony, or assaulting any peace officer or soldier in the lawful execution of his duty, or in attempting to rescue himself or another person from lawful custody." The consequence would be that much complication would arise from the question, what was "malice aforethought," and what was a "deliberate intent to kill." On the one hand, many acts of homicide, which were now murder, and which ought to be crimes of the first degree, would come under the second degree, because it might be impossible to prove "malice aforethought;" and, on the other hand, some offences would be murder which in the present state of the law were manslaughter only. What was required 1658 was to know what the crime was under the Act of Parliament, without having reference to the subtleties of textbooks. The definitions of the crime would be most difficult and perplexing. If, for instance, a man went out to shoot and steal a fowl, and in firing at it he missed the bird and accidentally killed a man who happened to be at the other side of the hedge—the Bill made that man liable to be tried for murder of the first degree, although he was innocent of all intention to kill the man. Again, where a constable took a drunken man into custody, and the man in the struggle injured the officer in such a way as to cause his death, the Bill made the offence murder, though the drunken man had no intention to commit murder, or to inflict any injury whatever. If a constable took a pickpocket into custody, and the pickpocket in his effort to escape injured the officer to such a degree that he lost his life, the Bill made it murder, although the poor wretch had no object but that of escaping. The only definition given of murder in the second degree was that it was not murder in the first degree. Murder in the first degree was punished with death; but the punishment for murder in the second degree were discretionary, varying from penal servitude for life to penal servitude for seven years. The Bill, in treating of infanticide, provided that the crime should be murder in the second degree if the act was committed at the time of the child's birth or within seven days after; if seven days had elapsed, it would be murder of the first degree. There was no class of murders so frequent as that of infants, and he saw no ground why the offence should not be treated as seriously as the murder of adults was treated. He could not see that there ought to be any difference between the deliberate murder of an infant and an adult. Another objection that he had to the Bill was that it, in effect, took away the prerogative of mercy from the Crown and handed it over to the jury. Those with whom the prerogative now rested were persons who were able to make a calm and unimpassioned inquiry into all the circumstances of the case, and were able to advise the Crown without prejudice; whereas the juries were peculiarly liable to be influenced by personal sentiment, by the skilled art of counsel, or the feelings ex- 1659 cited by the circumstances of the trial of the provocation suggested. On the other hand, the Bill took away the power of pardon or mitigation in the case of persons sentenced to penal servitude for life, for it provided that the order for liberation and the grounds thereof should be laid on the Table of the House of Parliament for one month before it took effect. The power to be given to the juries resembled that possessed by juries in some foreign countries—and which was constantly exercised in France—of returning a verdict of "Guilty, with extenuating circumstances." It might be that the law of homicide required amendment. Practically, he believed the law as it now existed worked well, because it was administered by Judges who thoroughly understood the law relating to the crime; but it might be well to make the theory more consonant with the practice. The question was one of the utmost importance, and should be dealt with by the Government, who could act under the advice of the most competent authorities, and should not be left to be dealt with by any private Member, however able and experienced a lawyer he might be.

§ SIR EARDLEY WILMOT
said, he must apologize to the Attorney General for having, as a private Member, undertaken such a task, but he had a strong feeling that the law respecting murder required amendment, and he was anxious to forward law reform to the utmost of his power. In relation to the appointment of a Public Prosecutor and other improvements in the criminal law he had put himself in communication with the Home Secretary, and it was only because no step was taken in the matter that he brought in the Bill. He hoped on a future occasion to be able to meet every objection taken by the Attorney General to the Bill, and seeing that the sitting had now almost drawn to a close he would move the adjournment of the debate.

§ MR. SPEAKER
said, it was not competent to the hon. Member as Mover of the second reading, to move the adjournment of the debate.

§ MR. WHEELHOUSE
Then, Sir, I move that the debate be now adjourned.