§ SIR EARDLEY WILMOT,
in rising to moveThat, while it is not possible at the present time to remove the penalty of death altogether from the Statute Book, it is desirable to consider whether the Laws under which offenders are liable to capital punishment should not undergo revision,said, he felt a great responsibility in having undertaken to bring before the House and the country a subject of so much gravity and importance, and the only apology he could offer was the long period of time during which, professionally and otherwise, he had been deeply interested in the question. The time had come when, if it were not possible to remove altogether the punishment of death from the Statute Book, it was necessary at least to re-consider the subject, inasmuch as it was universally 1664 allowed that the laws prescribing and regulating that severest of all penalties, were by no means a credit to our system of criminal jurisprudence. It had been investigated at various times by a Royal Commission and Select Committees. Yet Session after Session had passed away and nothing had been done. He wished it was possible to do without capital punishment altogether, and he for one should hail with very great satisfaction the day when it would be found possible to abolish it. When that day arrived, we should have advanced a great step in the path of Christian civilization; but assuming that this was not possible at the present time, he proposed to consider the subject under three heads. He would first show that the law of homicide was anomalous and unsatisfactory; he would then give a few details on the efforts made from time to time to reduce and restrict capital punishments; and, lastly, he would make one or two suggestions of his own as to what ought to be done at the present time. The law of murder rested upon no statute to be found in our Statute Book. The definition of murder was to be found in cases which had come before Lord Coke, Sir Matthew Hale, and Justice Foster. It was part of the unwritten law that had come down from ancient times, and which was to be found in our law-books and the decision of the Judges. It was generally supposed, that old statutes existed on the law of homicide long previously to Magna Charta, but that they had been lost in changes of dynasties, or in the remote darkness of antiquity. The record, meanwhile, of them had been handed down in the dicta and decisions of our Judges. Murder, in the first degree, was the unlawful killing of a human being with malice aforethought, either express or implied. In cases of express malice there was no difficulty; but the law had been carried a great deal further than express malice, and extended to many offences which there was no reason for calling murder. The cases before Lord Coke, Sir Matthew Hale, and Mr. Justice Foster went the length of saying that when parties were committing a felony, if they did an unlawful act which caused the death of a person, even by sheer accident, it was murder, and not misadventure. He was surprised that nothing had been done to 1665 clear up the law in such a matter. Lord Macaulay, in his admirable notes on the Indian Code, said, in eloquent and forcible language, which he (Sir Eardley Wilmot) proceeded to read, that the capital punishment added nothing to the security of human life, and that, as far as that consideration was concerned, culprits for execution might as well be selected by lot. Accordingly, the Indian Code embodied the conclusion he had arrived at—that if a man in the commission of an unlawful act accidentally caused the death of another, he was to receive no other punishment than that he would have received if death had not ensued. And this brought him to the class of cases in which there was no intention of causing death, but in which death unfortunately resulted from unforeseen circumstances; where the injury did not contemplate, nor was likely, in any probability, to occasion the death of the party injured. In most of them there was no intention to occasion more than a slight injury. There were the cases of a man who caused death by throwing a stone, and that of a man who caused the death of a woman by throwing a broomstick at her, she having enraged him by calling him the son of a whore. There was the well-known case of a man who, having received an injury to his finger, refused to have it amputated, and died in consequence; and the man who caused the injury was found guilty of murder. There was the case of the post-boy who, after being robbed, was left on the heath exposed to the cold, and died, and the robber was found guilty of his death. In these cases death was not contemplated, and it did not appear probable that it would ensue. In a case of robbery from the person by two boys, one took a watch, while the other struck the victim in the ribs to make him bend forward and loosen the chain of his watch; he died from the effects of the blow, and the boys were tried for murder at Warwick. A burglar was tried for murder for throwing a pillow at a woman who was in such a state of health that she died from the shock. These cases were cited by Mr. Fitzjames Stephen in his admirable evidence before the Select Committee of 1874. A third class of cases included those in which death resulted from wilful omission or neglect of duty. Under this head came the case of Mr. Blundell, of 1666 Ince, a Lancashire magistrate, who was put on his trial for murder, because a road in repair had been left, without protection and with a rope across it, and a woman had fallen and broken her neck. This case had been strongly commented upon by Lord Brougham in his speech on Law Reform, delivered in the House of Lords in 1848. [The hon. and learned Member hero read the passage from the speech.] A similar case was that of the miner who left an incompetent youth in charge of the engine at the pit-head, with the result of causing the death of a collier who was being drawn up. Lord Campbell in that case said that wilful omission or neglect of duty would make a man liable to be tried for manslaughter or even murder; and Lord Denman, in the case of Regina v. Green, quoted the dictum with approval, but said it was exceedingly difficult to draw the line between the major and the minor offence, and that the boundary limit was scarcely perceptible. He should now give some account of the attempts which had been made to deal with the subject of capital punishments generally. In 1808 Sir Samuel Romilly—a name never to be mentioned without respect and admiration—got the law abolished which made shoplifting a capital offence. Even Romilly's efforts at that time would have been unsuccessful against the united opposition of Lord Eldon and Lord Ellenborough, had not the public indignation in Mary Jones's case, who was hung for taking a loaf off a counter in a baker's shop, while she and her babe were starving, swept the penalty of death for shoplifting for ever from the bloody pages of the Statute Book. In that case her husband had been dragged to sea under a press warrant, and on the day of her execution, she went to Tyburn with her baby at her breast, amid the sympathy of assembled thousands, the journey being a triumphal procession to the gallows tree rather than the solemn expiation of a crime. Romilly also made several attempts to procure the abolition of capital punishment for the crime of stealing to the amount of 5s. in a dwelling-house; but from 1812 to 1818, in which latter year the melancholy and lamented death of Romilly occurred, Government after Government, and Bishop after Bishop in the House of Lords were found in 1667 the majority by which those efforts were defeated. Sir James Mackintosh then took up the question, and by his great exertions, assisted by Wilberforce, Canning, and Whitbread, succeeeded in procuring the abolition of capital punishment for that crime. Even in 1819, however, Sir James Mackintosh expressly guarded himself against being supposed to aim at the entire abolition of death punishment—he justified its retention in heavy and grave cases. In 1824 the power of recording sentences of death was given to the Judges, which continued till 1861, when the law thus empowering them was, he (Sir Eardley Wilmot) thought, unwisely repealed. The sentence of death was not passed, but recorded in a separate book from that in which the sentence of death was enrolled when there was an intention to carry it out. Now, by a late statute, the Judge was obliged in all cases to pass sentence of death upon the convict, even where it was quite certain execution would not follow; and in those cases, the Judge, after the solemn mockery of a sentence in Court, wrote to the Secretary of State by the next post, to inform him that it was not a case where the extreme sentence of the law could be carried out. In 1832 a most important step was taken by the abolition of capital punishment for forgery. The case of Fauntleroy excited great sympathy, and in Smith's case, where, on the promise held out to him before trial, that the punishment of death should not be inflicted, the prisoner pleaded guilty, the bankers almost to a man petitioned in his favour, saying that the death sentence lessened the security of property, and very much through the efforts of Mr. Brougham he was reprieved. The result was that the punishment of death was no longer attached to forgery. Before the accession of Her Gracious Majesty the improvements which had been effected in our penal code were mainly carried out by the energy and ability of the late Sir Robert Peel, who of all that ever presided over the Home Office had been most distinguished by his successful efforts to improve our criminal jurisprudence. The commencement of Her Majesty's reign was signalized by an act of grace which swept away capital punishment from the Statute Book except in the cases of murder and treason. But 1668 from that time to the present there had been very little improvement in our criminal law. In 1847, a Committee of the Lords sat, presided over by Lord Brougham, when all the Judges and all the governors of prisons were examined. The Report was a very valuable one, and the opinion of those who gave evidence was that capital punishment could not safely be done away with. In the meantime a great many efforts had been made, chiefly by a very active and respected Member of the House, the late Mr. Ewart, who, as early as 1840, had brought in a Bill for the abolition of capital punishment. In 1862 public attention was very much directed to the scandal arising from executions being carried out in public, and in that year the hon. Member for Oldham (Mr. Hibbert), to whom he desired to pay a tribute of respect for his exertions, brought in a Bill authorizing executions to be private. In 1864 the Capital Punishment Committee made a most valuable Report. Having had evidence from America and various foreign countries, they reported that they considered the law of homicide very unsatisfactory, and they recommended that murder should be divided into murder of the first and second degree, the first only being liable to capital punishment. In 1866 a Bill, introduced by Lord Cran-worth, passed the House of Lords, carrying out to a great extent the recommendations of the Capital Punishment Commission, and substituting private for public executions, which had also been a strong recommendation of the Commission. The Government went out of office before the Bill became law; but in 1867 a measure was introduced by his right hon. Friend the Member for the University of Oxford, now the Secretary for War, who was then Home Secretary. That Bill did not deal with the recommendations of the Capital Punishment Committee as Lord Cranworth's Bill had done, but confined itself to the question of public executions, which since then had been abolished. In 1871 the hon. Baronet the Member for North Wiltshire (Sir George Jenkinson), who he was sorry was prevented by indisposition from being present at the debate, brought in a Bill, in conjunction with the late Mr. Gilpin, to divide the law of murder into two classes—the 1669 first of which should only be capital; and he (Sir Eardley Wilmot) was glad to record the very able and valuable efforts of Mr. Gilpin, whose efforts, however, were mainly directed to the total abolition of the death penalty. He had constantly raised the question while in Parliament up to the time of his death. In 1873 Lord Aberdare introduced a Bill similar in character to the one brought in by Lord Cranworth; but, as before, the Government went out of office before the measure received the sanction of Parliament. In 1874 the Recorder of the City of London (Mr. Russell Gurney) introduced a measure for the simplification of the law of murder, and it was referred to a Select Committee on which sat able lawyers—the President being the right hon. Member for the University of London (Mr. Lowe), who had been himself Home Secretary. After considerable inquiry and discussion, and after examining Lord Blackburn and Lord Justice Bramwell, and receiving the very valuable opinion of Lord Chief Justice Cockburn, the Committee reported that they did not see their way to adopt the Bill, which they found to be too cumbrous in its machinery. The Bill introduced by the right hon. and learned Recorder had been framed by Mr. Fitzjames Stephen, who was examined at considerable length before the Committee. In 1875 and 1876 there had been Bills on the same subject, and the hon. and learned Member for Salford (Mr. Charley) in the case of infanticide proposed to restrict capital punishment to cases where the mother unlawfully caused the death of her newborn child within a certain period after its birth. The recommendations of the Commissions which had been appointed to consider this subject were in favour of the view adopted in the French law, that the punishment of death should only be inflicted in cases of premeditated murder. He (Sir Eardley Wilmot) had so long trespassed on the patience and kindness of the House, that he had no time left for going at any length into his third proposition—namely, as to what ought to be done. He had himself on two occasions introduced Bills to restrict the death punishment in cases of murder to where the death of the person murdered had been designed, or where the party 1670 offending must have known that death would probably ensue, or where death must follow as the probable consequence of the act. He thought that the law might safely be altered in this direction, and the intent, as proved by evidence, might guide the jury in delivering their verdict. But in cases of infanticide, he would strain a point, contrary to the principle he had laid down, and make infanticide no longer capital in the case of the mother, and the mother only; where, within a certain period after her delivery, she, either alone or in concert with others, had even wilfully caused the death of her infant. At the present time, juries could not be got to convict women of child murder, and extricated themselves from the difficulty by the present absurd law, which enabled them to find concealment of birth in trials for infanticide. He could not, however, pursue this branch of the subject—a very wide and comprehensive one—as he found he had been obliged to speak longer than he had wished or intended. He was fully sensible that he had not done justice in any way to this great and important subject, and he had, as a private Member, to apologize for having brought the matter before the House. He had, however, some justification for the course he had adopted in the fact that almost all the improvements in our criminal law had resulted from the efforts of private Members; while Governments rarely ventured to originate or to carry through measures for removing the evils that existed in that branch of the law. In his opinion questions of this sort ought not to be left to be dealt with by the Home Office, but should be handed over to a Minister of Justice, to whom should be entrusted the reform and the improvement of our criminal as well as civil jurisdiction. The hon. Gentleman concluded by moving his Resolution.
Motion made, and Question proposed,
That while it is not possible at the present time to remove the penalty of death altogether from the Statute Book, it is desirable to consider whether the Laws under which offenders are liable to capital punishment should not undergo revision."—(Sir Eardley Wilmot.)
§ MR. PEASE
The House will agree with the hon. and learned Member (Sir Eardley Wilmot), who has just sat down, that the law on the punishment of death 1671 is a disgrace to this country. But he and I take a very different mode of dealing with the law of murder. He proposes to divide wilful murder into two classes, and to those two classes he would award a different punishment—to one the punishment of the gallows, and to the other imprisonment. I think that we shall not solve the question of the law of murder until we abolish the use of the gallows. I brought in a Bill with the view of ascertaining whether the House or the country was prepared for this change. The crowded state of the Order Book has forced me to withdraw it. The question has frequently been before Parliament. But this Parliament has not had its attention called to the position of the law, or to the many altered circumstances which time reveals, and which point to the desirability of an alteration in the law. But I think that the country and the House are more than ever sensible of the difficulty which arises in carrying out the law, so far as it relates to executions and the punishment of death. I am not here as the spokesman for any society, but I have to acknowledge the great assistance I have received from Mr. Tallack, the Secretary of the Howard Association, who has collected statistics from the Continent of Europe and from America; and who, having visited the principal prisons on the Continent and in America, has amassed a large amount of information on this subject. Local cases occurred which brought my own attention more particularly to this subject, and I came to the conclusion that I should be only discharging a public duty if I again called the attention of the House to capital punishment. In the county of Durham we had, a little time ago, a large tide of mercantile prosperity, which increased the numbers of the population. This rose in the course of 10 years, from 1861 to 1871, at the rate of 40 per cent; and, whilst that prosperity brought into the country many of the industrious classes and the hardworkers, there were many of the residuum, whom we found great difficulty in keeping in order and who created a great deal of disorder. They embraced wanderers from other communities, and they had their influence in poisoning those who were already there. The high wages which to many were a great boon in adding very much 1672 to the comforts of their houses, and giving them better clothing, and a reduction in the hours of labour, were to these men nothing but a curse. The use of intoxicating liquor led to crimes of a most violent character, and party passions were set astir, and we had a series of outrages and murders which were followed by executions, which made every thoughtful man consider the working of the present law. Though the strong arm of the law came down with its iron hand upon those men, it was impossible to aver that the constant executions that we had in the county had the slightest effect whatever in putting a stop to the crime and outrages which were committed. In the three years and a-half, from January, 1873, to July, 1876, in this one county, no less than 15 persons were condemned to die; of these 3 were respited, 1 was sent to Broadmoor, and 11 were hung within the precincts of Durham Gaol. With this before me I began to look into the question of murder, and of the punishment inflicted for it. I examined the various records on this question, I looked through the general statistics furnished by the labours of this House, and I got before me the statistics of other countries on this subject, and I beg to lay the result of my investigations before the House; and I think that I shall have some reason for asking the House to prefer my Amendment to the Resolution so ably moved. I have endeavoured to reason out, so far as I was able, the whole of this subject, and, whilst it is a subject in which a great deal of sentiment may exist, I shall not try the sentimental argument. I shall endeavour to lay all that to one side, and if I fail to-night in convincing the House it will be because I fail in reaching the reason of the House. I will adopt the language of Earl Russell, who, in a speech on this subject, said—"I am not prepared to dispute the right of the community to inflict the punishment of death under certain circumstances of society;" but I hope that I shall prove that our community will do well no longer to exercise that right; that capital punishment is no deterrent to murder, and that it does not add to the safety of life; and, Sir, the facts seem to point that it absolutely adds to the danger of human life, as shown by experience where capital punishments 1673 are abolished in civilized States. We shall admit that public executions were done away with, because they were regarded with most just and righteous horror; and I believe that we shall be agreed that we only keep up private executions, under the belief that they add to the public safety. I believe also that we shall all agree that the present administration of the law is attended with many and constantly recurring difficulties. With regard to the criminal himself, it will be admitted that it will be a gain in many ways if society was as safe if he remained unhung. We would avoid the risk that we continually do incur of executing the innocent; and there is another thing that we do—we are constantly burying good evidence in his grave; for in many cases it has turned out that the criminal that is buried has carried with him to the grave evidence that might be essential in prosecuting and putting down the class of crime for which he had suffered. We doom to death those people who are totally unfit to die, and if we relieve fallible man from passing a sentence which cannot be recalled, we shall have done something. I shall argue this question as one of expediency and of progress, and not as one of fixed principle applicable in all times and to all circumstances. To begin with, the history of capital punishment in this country is in itself a strong argument in favour of its abolition. "The right of the community," as Lord Russell terms it, has been less and less exercised, because the community has been as safe, or even safer in consequence. Whatever may be the conclusion this night of this House, no doubt arises that the punishment must pass away from our land, and that at no distant date capital punishment will no longer exist. It belongs to a much earlier day than ours, and it is no longer needed for the civilization of the age in which we live. In the reign of Henry VIII. we are told that no less than 72,000 robbers were hung. Sir Matthew Hale says that 13 men were hung at one Assize for associating with gipsies. Between 1749 and 1771, 109 persons were hung for shoplifting alone, and during this century we hung people for stealing sums of 1s., 5s., 40s., and £5, and for cutting down a sapling; the late Sir Thomas Powell Buxton stated in the House that 1674 the Plantagenets had made the punishment of death applicable to four offences, the Tudors to 27, the Stuarts to 36, and the House of Brunswick to 156. In 1832 the death penalty was no longer the penalty for stealing horses or sheep, or for petty larceny under £5, or for coining and forgery. The executions in 1832 were 1,449, and in the following year were 931. A still further reduction was made in 1837, and it got down to 116 in 1838, and in 1839 it was reduced to 59; and from 1862 to the present time the average of the 16 years is not quite 24. In 1841, a still further reduction was made; and again in 1861 a consolidation law produced still further modifications. Would anyone go back to the old state of things when, with fewer executions, society was much safer than it was with many? It is but 50 years ago since we hung 2,000 people per annum. Those crimes for which capital punishment was once the penalty have not in the main materially increased since that punishment was relaxed, and it is curious to see how many classes of crime went down as soon as capital punishment was abolished. Take, for instance, cattle stealing. For this crime, during the last three years that the gallows was the penalty, there were 113 convictions; while in the three years after the abolition of the capital sentence there were 67; and for the last three years, with double the population, there have been but 65. Of horse-stealing there were 590 cases during the last three years of the capital sentence, and during the three years following the abolition of hanging for the offence there were 566, and for the last three year's 376; and so I might go through a long list of crimes. In some cases the Returns may show an increase in proportion to the population; but that may be accounted for by the less barbarous punishment securing a larger number of convictions. Although the Act of 1861 consolidated the statute, and brought down the law to its present state, the community was not at all satisfied, and the horrors of public executions and the scenes at the gallows, around which gathered the most depraved among mankind and the most unwomanly in woman created a further revulsion of public feeling. There were men, however, then—as there are men I dare say now—who, like the late Baron Martin, 1675 say—" But still I am for public executions." In 1864, a Royal Commission sat to inquire into theprovisions and operation of the laws now in force in the United Kingdom under and by virtue of which the punishment of death may be inflicted upon persons convicted of certain crimes, and also into the manner in which capital sentences are carried into execution; and to report whether any, and, if any, what alteration is desirable in such laws or any of them or in the manner in which such sentences are carried into execution.That Commission forebore to enter into the question of the expediency of abolishing capital punishment for the crime of murder. Although they did not all sign their names to the Report in favour of the abolition of capital punishment, five did so, and one-half were practically in favour of such a change. In some things they were agreed. It was proposed to divide the crime of murder into two degrees, and they also recommended that executions should take place inside the gaol, and that is the only suggestion which has been carried out. They solicited Her Majesty's attention to three other most important points as requiring further attention—namely, the propriety of appeal in criminal cases; the mode in which the Crown is advised to exercise the prerogative of mercy; the present law as to the nature and degree of insanity, which is held to relieve the accused from penal responsibility in criminal cases. It is 11 years since the Report of that Commission was issued. Administration has followed Administration, and Home Secretary has succeeded Home Secretary, and yet there is no change whatever except in that particular of private executions. The Home Secretary exercises his functions still with a power greater than the centurion of old; for he says to one man you shall be hanged, to another you shall go to Broadmoor, and to a third he awards penal servitude for life. Those functions remain still unaltered, the law of insanity is still in an uncertain state, and Bills have been brought in to divide the crime of murder into two classes, without success. The power of the Homo Secretary is more frequently exercised than ever it was, and the plea of insanity is the resource of every advocate, Judge, and jury, who dislike a sanguinary law. Yet this is not satisfactory to the community, nor can there 1676 be a settlement except by doing away with the use of the gallows. The Gordian knot can only be severed by adopting the Report of the minority and cutting the hangman's rope. But during these 11 years, while we have been standing still, other countries have been going steadily forward, and our criminal code is now the most sanguinary among Christian nations in Europe, or on the other side of the Atlantic. The great object of punishment, as I understand it, is not the revenge of society on the criminal; but that the criminally-disposed may be deterred by the fear of consequences. It then remains to see if capital punishment does check the crime for which it is a punishment? Several Judges, I admit, are against my view, but I do not believe that the best Judges are good judges in this. Their education has been in the law, and is founded on precedent, and they are opposed to changes which would unsettle all the knowledge of precedent. I know that Lord Eldon voted in favour of hanging a man for stealing 5s.; but among the voluminous evidence given before the Commission I have referred to there is that of Mr. Sherriff Nissen and Serjeant Parry, and Captain Cartwright, of Gloucester, and others, who declare their opinion that capital punishment does not act as a deterrent among the criminal classes; but above this I value the evidence of Mr. Frederick Hill, a convict prison Inspector, who said that so much do criminals believe in the chances of escape, from the unwillingness of witnesses to give evidence and of juries to convict, as well as in their luck, that he believed they would rather the law was kept in its present state. Again, the Rev. J. Jessop, chaplain of Horsemonger Lane Gaol for 10 years, said that criminals did not take the element of detection into account; and so this will appear if we go through the accounts of murders in recent times. Did the fear of the gallows deter Thurtell, or Rush, or Greenacre, or Wainwright, or Treadaway? During the last 16 years we have sentenced in England and Wales 388 criminals. Of these, 210 were hung and 178 reprieved, showing an average of 24.25 murders per year on the average of these 16 years. During the first 13 years of that time there were 22 murders per annum; but during the 1677 last three years we have had an average of 30 per annum. During the 22 murders per year period, we only hung 49 per cent of the convicted murderers! During the 30 murders per annum period we have been hanging 62 per cent of the convicted murderers. I call my right hon. Friend's (the Home Secretary's) attention to these figures. He may say they are taken over too short a period to be of much value; but they are there, take them for what they are worth. Now, let us look at our own experience and see whether the effect of executions is to deter men from the commission of homicidal crimes. In January, 1875, three men were hanged at Liverpool for crimes of violence. At the July Assizes of that year there were six cases of murder from Liverpool and 20 local committals for manslaughter. Wainwright's murder was immediately followed by the Blackburn one, of the same type. In 1876, the executions of the four pirates at Newgate were followed by a series of attacks on captains. In 1867, the hanging of the three Fenians at Manchester was followed by the Clerkenwell explosions; and so I might go forward with numberless examples; but let us take those in my own county, to which I have already alluded. On 13th January, 1873, Slane and Hayes were hung at Durham; on 24th March, 1873, M. A. Cotton was hung at the same place; on 21st April, 1873, one month after, Hagan was murdered, it was said, by Turnbull; 7th July, Gough murdered Partridge; 13th September, Dawson murdered his paramour; 4th October, Thompson murdered his wife-6th January, 1874, these three were hung; 7th November, 1874, Daly murdered Burdey-28th December, 1874, Daly was hung. Then what followed? 15th March, 1875, Pearson murdered Watson; 28th March, 1875, Gilligan murdered Kilcran; 11th April, 1875, Machugh murdered Money; 26th April, 1875, Plummer murdered his sweetheart. And now let us look at the experience of other countries, and to this I would specially call the attention of this House. In France capital punishment is almost abolished. In the 10 years from 1866 to 1875 there were 1,084 convictions — of these 121 were executed, or only 11 per cent. It is to be noticed that the year in which there 1678 were most executions was followed by the year 1873, in which the largest number of murders occurred. Homicidal crime is on the decrease. In Italy there have been no executions in Tuscany for 50 years. From the Inspector General of Italian Prisons I have the following information for the years 1873–4:— Naples had 21 homicides per 100,000 population; Sicily had 31; Sardinia had 18; Rome and Umbria had 9; Tuscany had 6. Tuscany with 1–12th of population has 1–20th of crime. In Holland capital punishment was abolished 17th September, 1870. Since 1860 no person has been executed. In 1871 there were 5 murders; in 1872 there were 5; in 1873 there was 1; in 1874 there were 2; 1875 and 1876 are not yet published. In Belgium, the 10 years before 1863, 921 murders, or 92 per year; in the 10 years to 1873, 703 murders, or 70 per year. In the last decade there was no capital punishment. Russia has had no capital punishment, except for high treason and military insubordination, for 100 years. Germany: By the new penal code—capital punishment exists only for high treason and murder of the first degree. Saxony abolished capital punishment in 1868. It was re-enacted under the German new code in 1871; but the Saxon law has been carried out. No executions have taken place. There were 29 convictions for murder in the three years before the abolition of capital punishment, and only 19 in the three years after. In Wurtemburg there have been no executions since 1870. In 1870, 1871, and 1872 there were seven convictions for murder. In 1873, 1874, and 1875 only six convictions. In Portugal there has been no execution since 1846, and no increase in homicidal crime. In Austria, in 1876, there were 124 sentences of death, only three carried out. M. Wahlberg (Imperial Councillor) adds—The application of capital punishment in Austria, and even the very trade of the executioner, are in their expiring throes.In America the following States have abolished capital punishment:—Michigan, Wisconsin, Rhode Island, Illinois, Maine, Iowa. Rhode Island abolished capital punishment in 1852. The Warden of the Rhode Island State prison states the committals— 1679
Rhode Island. Connecticut. No Hanging. Hanging. 1866 0 1 1867 0 1 1868 3 1 1869 0 9 1870 0 2 1871 0 2 1872 1 2 1873 2 3 1874 0 4 1875 1 3 7 2862 per cent (in proportion population) less murder than in the hanging State.In Rhode Island capital punishment only exists for the murder of a warder. In Rhode Island there were 23 murders from 1852 to 1876. I. M. Alderson, Secretary of State for Rhode Island, states two brothers planned a murder, and waited till their victim got into Massachusetts (where capital punishment exists), murdered him in Worcester, as they thought conviction would be less certain. In Illinois, capital punishment has only been abolished two years. An attempt was made to restore the gallows, but the Legislature refused. In 1876, Senator Jessup, of Iowa, in a speech to the State Legislature, states—Murder in the first degree has not increased since capital punishment was abolished, but it has decreased for four years. Previous to the repeal of the old law there was one murder for every 800,000 people. For the four years since capital punishment was abolished there has been one murder in every 1,200,000. As to lynch law, that is more often exhibited in States which retain the gallows than in those where capital punishment is abolished.In 1873 Governor Washburne, Wisconsin, in his Message said—Twenty years have elapsed since death penalty was abolished. No State can now show greater freedom from homicidal crime. With a population representing almost every nationality, statistics show that crime, instead of increasing with the growth of the State, has actually diminished. Since 1853, when capital punishment was abolished, 71 persons have gone to penitentiary for life. There can be no doubt that the change in the law has made punishment more certain, and I but express the opinion of those who have most carefully considered the question when I state, that but for that change in the law, at least one-half of those convicted would have escaped all punishment —so difficult is conviction when the punishment is death. The law was changed in 1853. The convictions for murder are as follows:—
1680 The ex-Governor of Detroit Prison, Michigan (Mr. L. R. Brockway), the newly-appointed Governor of the large State Reformatory of New York, at Elmira, N.Y., writes to Mr. Tallack, under date March 6th, 1877, as follows:—
1854—3 1859—0 1864—0 1869—2 1855—3 1860—2 1865—5 1870—4 1856—3 1861—0 1866—1 1871—3 1857—3 1862—0 1867—4 1872—1 1858—5 1863—8 1868—5" During my late residence in the State of Michigan, where the death penalty has not been inflicted for more than a quarter of a century, I had occasion to look up the matter to the following extent:—The number of committals to the State Prison annually, for crimes involving killing, is no more now and has not been more in any year since the death penalty was abolished than it was at the beginning, and the population has increased fourfold. I consider this a very strong fact, especially when taken in connection with the circumstances that in the absence of the death penalty convictions and committals to prison for killing are much more easily obtained.Governor Connor, in an address to the Maine Legislature, January 4, 1877, speaking of the abolition of capital punishment in that State, says—I am glad to remark the evident fact that the substitution of imprisonment for life for the death penalty has not been followed by any increase of the crime which it is the object of the law under consideration to punish, or any instance of crime encouraged by the mitigation of the penalty. I am persuaded that the prevailing sentiment among the friends of the new law is not one of tenderness towards the criminal, but of regard for the safety of society. It is certainly not demonstrable that the penalty of death exercises a more deterring influence upon those disposed to crime than the penalty of imprisonment for life. The advocates of the latter form of punishment do not claim that its adoption will cause murder to cease or even to be appreciably checked at once, or within a short period of time. It is their belief that murder will not at least be emboldened by it, and that the authoritative recognition by society of the inviolability of human life, in forbearing to take that of even the man who has disregarded its sanctity, will tend to magnify the offence, increase the detestation of it, and exert an educational and humanizing influence, which, aided by the many influences at work for the improvement of the condition of society, will, in process of time, cause a sensible reduction of crime of every sort.I think, Sir, I have proved from this abundant testimony that human life is as secure, and even still more secure, in civilized States where capital punishment is not in use. And now, Sir, I must draw the attention of the House to the actual position of our present system. It is obvious that capital punishment fails to be a deterrent, as the chances of escape from its fangs, arising out of its very nature, are so 1681 numerous. I admit that few criminals calculate their chances; but let us look at what these chances are that the criminal has in his favour. The general chances of escape, the feelings of the Judge and jury and counsel, the plea of insanity; and last, but not least, the Home Secretary. In vain we look around for any other crime that has the same chances of escaping the punishment awarded to it. What are the facts? From 1861 to 1872, 281 convicts were sentenced to death. Of these, 142, or just one-half, were hung; 136 were reprieved; 3 committed suicide. In 1875, out of 84 persons committed for murder, only 15 were hung; 34 were acquitted; 33 sentenced; 17 were found to be insane. Out of the 33 sentenced, 18 were hung, 15 were reprieved. No inference can be more plain or more just than that the gallows is no deterrent; but it is obvious, that if under such a system murder does not increase, with such vast chances of escaping the hangman, it follows that a more certain form of punishment would be much more deterrent. Abolish the gallows, and we should shut many doors for escaping; abolish the gallows, and you abolish the reluctance of Judge and jury; you place the plea of insanity on a proper footing; and the mercy of the Crown would be used as such a prerogative ought to be used. It cannot be denied that juries often hesitate to convict in cases where death would be the result of their verdict. Let us look at the authorities on this subject. Lord Cranworth—23.—I think that juries often wish to get out of the responsibility of finding a man guilty when he is to suffer death as the result of their verdict.98.—I have known one or two instances in which the prisoner was tried for murder—which, to my mind, was clearly made out—but nevertheless he was acquitted, and I believe the acquittal was because the jury did not like to convict in a case where capital punishment was to follow.Names a case at Lincoln of a woman indicted for poisoning. Acquitted on first; found guilty on second.101.—Recollects case of a man being tried for murder and acquitted. On the same evidence convicted of highway robbery.Baron Martin says juries will always do their duty. Mr. Beggs says that Baron Martin, at Leeds, addressed a jury as follows:—I regret extremely to hear that you have only been driven to a conscientious verdict of guilty 1682 of murder by the belief that the sentence would not be carried into execution. I am bound to say that that is a view not proper for a jury to take.Serjeant Parry—It is a common observation in our profession that there is nothing more difficult than to obtain a verdict of guilty from a jury where the charge is murder. It has frequently occurred that the jury have asked—Can we find a verdict of manslaughter? No, you cannot. And the prisoner is allowed to go free.Says he knows several cases; declines to give names.The plea of insanity, as now used, is a perfect disgrace in a system of punishment where death is held to be the deterrent for the crime of murder. The question of who is sane and who is insane appears to be decided without the faintest resemblance to a rule. Professor Benedict, of Vienna, has told us that he dissected the brains of 16 criminals, and that these were of a type distinctly lower than the brains of ordinary men. Look at the cases that have recently occurred, and let us see if we can trace the semblance to a uniform law. Take the case of Charles O'Donnell, from The Daily Telegraph, 24th November, 1876 —Served full time in Army. Discharged in 1872. Married in 1874. After marriage in an asylum. There was insanity in his family. Conduct not generally sane. He was hung. Then take the case of Marks, from The Daily Telegraph, 14th December, 1876—His father was peculiar in his ways. His brother of unsound mind. His schoolmaster said he was peculiar as a boy. His neighbour thought him mad. He read the paper upside down. His employer thought him mad. He had threatened to stab another man. He was known as "Mad Marks." He was hung. Then follows the case of F. Treadaway, who, I find from The Daily Telegraph, 9th February, 1877, was found guilty, though the Judge (Lush) called particular attention to his state of mind. The Judge told him that it was impossible, on the evidence brought forward, to believe him to be of unsound mind—the Judge ending by saying—"In that verdict I entirely concur." But what did the Home Secretary say when interrogated by my hon. Friend the Member for Lambeth (Sir James Lawrence)?—But I have no objection to state in the present case that the prisoner was tried before one of the most experienced and eminent Judges 1683 upon the Bench. He had a fit in the course of the trial, and evidence was given as to epilepsy in his family and in his own case. Doubts occurred to the learned Judge as to the effect this had had in weakening the prisoner's mind, and he recommended the inquiry which was made for his own satisfaction by two eminent medical gentlemen. He afterwards advised the commutation of the sentence, on the ground that the convict was an epileptic, and might be treated as a person who had been deprived by disease of the capacity he would otherwise have had to resist the criminal impulse. I do not think that any Secretary of State would have been justified in departing from the usual rule by refusing to advise Her Majesty to act in accordance with the recommendation of so experienced and able a Judge."—[3 Hansard, ccxxxii. 1361-2.]Then comes the case of Daniel East, of whom one medical witness, when asked the test question whether the prisoner was in a state of mind "in which he might do what was wrong without knowing that it was wrong," replied that he "thought so, but could not give a decisive answer." Another said that he believed the prisoner to be of "unsound mind;" but, on being asked the same question as the previous witness, replied that "he could not say." Further, as to what he meant, then, by the phrase " being of unsound mind," he discreetly answered that " it was a difficult question; " and upon the Judge inquiring whether, in his opinion, the prisoner " now knew that it was wrong to kill anybody," he said that " he believed he did "—an answer which amounts to an admission that at the present moment, at any rate, the prisoner is legally responsible for his acts. But what do our own medical men say on this doctrine of insanity?—
At the annual meeting of Medical Officers of Asylums, held at the Royal College of Physicians, London, on July 14, 1864, it was unanimously resolved by those present (upwards of 50 experienced doctors)—'That so much of the legal test of the mental condition of an alleged criminal lunatic as renders him a responsible agent, because he knows the difference between right and wrong, is inconsistent with the fact, well-known to every member of this meeting, that the power of distinguishing between right and wrong exists frequently among those who are undoubtedly insane, and is often associated with dangerous and uncontrollable delusions.'Dr. William Guy, of London (for many years medical officer of convict prisons), recorded in The Statistical Society's Journal, in June, 1869, his analysis of the Judicial Statistics (official) for 30 years (1836 to 1865). In that period, 1684 out of 1,811 persons tried for murder in England and Wales, 263, or 14½ per cent, were found insane. But in the same 30 years, out of 637,301 persons tried for all kinds of crimes, only 864, or about 1 per 1,000, were found insane. I think, Sir, we must all conclude that insanity is a plea to mitigate a penalty from which juries shrink, from which Judges recoil, and which Home Secretaries try to mitigate—and which renders the legal penalty uncertain against the murderer. And now I come to the third door of escape — the Home Secretary. In my Resolution I do not touch the prerogative of the Crown, and by this he acts, and he acts as he does because the penalty is admitted to be one that is no longer required, at any rate in a vast number of cases. In this country we have had Home Secretaries in whom we have placed great confidence, statesmen of whom any country could be proud—my friend, Sir George Grey, the right hon. Gentleman the Member for Cambridge University (Mr. Walpole), the right hon. Gentleman the Secretary of State for War (Mr. G. Hardy), Lord Aberdare, the right hon. Gentleman who now fills that position (Mr. Cross), are all men who have discharged this duty with conscientious care; but this fiat of life and death in a free country should be in no one man's hands. In no other country but our own would such a state of things be permitted. We have to consider the burdens—and they must be considered burdens by every Home Secretary—which we throw upon the Minister who has always endeavoured conscientiously to discharge this painful duty, and we treat them unfairly when we leave them to decide whether a man shall be hanged or imprisoned for life. The prerogative of the Crown, as I understand it, is a power wisely left in the hands of the Sovereign, in order that exceptional cases of hardship may be dealt with, and not for the purpose of mitigating a penalty from one-half of the criminals who come under its operation. I think, Sir, I have proved that in all countries where the death penalty is abolished, human life is as secure, or more secure, than it was before, and that in our country capital punishment is so uncertain in its application that it necessarily fails as a deterrent. I now come to another line of argument. It ought to be abandoned because, in case of mis- 1685 take, it is an irrevocable sentence. I grant that mistakes but seldom occur, but that they have occurred there is abundant evidence. I grant, too, that the extension of time of late years allowed between the sentence and execution has introduced a great element of safety; but that which is human, and therefore liable to error, ought not to do that which in case of error it cannot recall. Sir FitzRoy Kelly stated to the Capital Punishment Commission that between 1802 and 1840, 22 persons had been sentenced to death who were innocent; seven of these executed. In 1854 Charles Natters was sentenced to death, and was afterwards proved innocent. In 1850 Ross was executed at York, protesting his innocence; the Governor and Chaplain both believed him. In 1865 Polizzioni was sentenced to death for the Saffron Hill murder, and only saved by the great exertion of Mr. Negretti, Morgani having appeared; the Judge most emphatically declaring his belief in the verdict. In 1865 Giardinieri was just saved at Swansea by similar efforts. In 1867 Wiggins was hanged in London, protesting his innocence. The coroner's jury, after examining 26 witnesses, had declined to inculpate him. In 1866 Smith narrowly escaped hanging for the Cannon Street murder. He was seen coming out of the house where the murder was committed with blood upon his clothes. In 1873 Hayes and Slane were hanged at Durham, many people believing in Hayes' innocence. The solicitor who defended them, a man of established reputation, believed in his innocence. In 1873 Turnbull was sentenced to death at Durham. His innocence is believed in by many. I have seen all the evidence that has been taken since his trial. It is exceedingly strong. There has been a warrant out for the apprehension of the principal witness against him on a charge of perjury, as it is plain she was not near the spot where the murder was committed at the time, but she cannot be found. In 1874 a man dying in Pennsylvania confessed himself the perpetrator of a murder at Merthyr Tydvil, for which John Lewis was hanged some years ago. Barber was found guilty of forgery, and would under the old law have been hanged; but, after labouring for years as a convict, his innocence was proved. In 1869 Mr. Bruce, speaking 1686 of 11 cases of sentence of death, five of which were set aside by him, said—"It is beyond all question that Grant was an innocent man." It is equally certain that Bisgrove was insane. In 1876 Merritt was sentenced at Gloucester to seven years' penal servitude for a crime he did not commit. These cases speak for themselves. But I fear there is a long list of those who perished because they were poor and ignorant, to whose aid no Mr. Negretti came; and those who did escape, let us remember, did so in spite of your law, and through private exertions. I care not whether you say that the sentence I would substitute is more severe or less severe than that of death. If it is more severe, I say it is not too severe for such a crime. Our object is to deter. If it is less severe than that of death, I say, without fear of contradiction, that it would be much more deterrent, because much more certain. Do away with the death penalty, you would have juries more ready to convict. The insanity law would be reduced to some rule by which the insane went to the asylum and the criminal to the prison, and the Home Secretary of State would not have to contrive how a sanguinary law could be evaded. Now, we are told that there would be great difficulties with these life convicts. I do not admit this. I grant that special prisons would have to be provided for them, but their numbers are small—24 a-year. Our convict prisons, we are all thankful to say, are by no means full. We are told they would assault their warders, and endanger their lives, but let us see what other countries say. In Holland, we are told by M. Ploos van Amstel, that—By the law of 17th September, 1870, imprisonment for life was substituted in the Netherlands for capital punishment. The Secretary of the Commission for the Prison at Leeuwarden, where those convicted of murder are retained, informs me that they are in good health of body and mind, and he has not observed that there is on their part any tendency to assault the officers of the prison.In Belgium in particular the substitution of life-imprisonment for capital punishment is efficiently in operation; and at the present time there are in Ghent Prison men who have been confined without intermission for upwards of twenty-five, and even more than thirty years, in full possession of their bodily and mental faculties, and rendered useful by their industry and services, instead of having been hurried into eternity with their crimes fresh upon them.M. Berden, Belgian Minister of Prisons 1687 and of Public Security, writes to Mr. Tallack, March, 1877, that there are now in Belgian prisons 124 men and 9 women undergoing life-sentences. Of these—
Of these, about 105 are reported as in good health, 15 infirm, and 20 tolerable. The Ex-Governor of Detroit Prison writes—
1 prisoner has been in prison 33 years 3 prisoner has been in prison 31 years 1 prisoner has been in prison 30 years 2 prisoner has been in prison 20 years 1 prisoner has been in prison 28 years 7 prisoner has been in prison 25 to 27 years 11 prisoner has been in prison 20 to 24 years 28 prisoner has been in prison 15 to 19 yearsAs to the other point of your inquiry, I do not believe there is a greater liability to assaults upon keepers from life convicts than from others. That is to say, the convict who has a predisposition to assaults would indulge his penchant as readily when serving a time sentence as when sentenced for life. There is, of course, a tendency to melancholia among prisoners sentenced for long terms, and one of the manifestations of convict melancholia is irritability. But I doubt if there is any practical difference in the effect of a ten or twenty years' sentence, or a sentence for life, upon the same person in producing the unfavourable frame of mind. As to the question of safety of officers from assaults, I should give the preference to a congregate workshop of life convicts over one of sneak-thieves and loafers from the great cities.In Rhode Island the law gives power to execute for a second murder (of a warden); 23 years have passed, and no case has occurred. But we have ample evidence in our own gaols that the long-sentenced men are not the worst behaved. The murderer, as a rule, hardly belongs to what is termed the criminal class. Some of those who were hung at Durham were but 19 to 24 years of age. Cavoissier was a valet; Palmer, a doctor; Rush, a farmer; Wainwright, a tradesman. Now, Sir, I do not propose to go at much length into what is called the Bible argument. I am one of those who believe that the Mosaic law of an eye for an eye and a tooth for a tooth has been fulfilled by the bringing in of a better hope—a Gospel of glad tidings, which lays not down its precepts in detail, but hands us most broad and benign commands for the treatment of man by his fellow-man. I believe we do well to take Scripture as our guide in the broadness of its spirit rather than in any man's narrow interpretation of the letter. It 1688 is enough for me that the whole tenour of the doctrine taught by Him who came on earth from Heaven is inimical to the spirit in which man can be killed by his fellow-man under any circumstances. Sir, the great majority of those here are believers in the doctrine of a state of future rewards and punishments. By this law the murderer is often launched unprepared to meet a just God. He goes almost with the blood of his victim red on his hand, and the spirit in which that blood was shed in his heart. Let us not judge the Infinite, nor count His mercy short on which we shall all one day have to rely. I believe that mercy is ofttimes extended to the hastily repentant sinner; but is it not almost a mockery to say, as Mr. Justice Lush did the other day—You will have the assistance of a zealous and kind religious minister during the short period you will remain in this world. I entreat you to listen to his exhortations, and endeavour to prepare for the fate that awaits you?And then finite, fallible man, himself a sinner, sentences his fellow-man—a greater sinner it may be—into eternity: telling him, in fact, that he is no longer fit to dwell with his fellow-man on earth, but through a mercy above all earthly mercy, in three weeks he may be fitted to dwell with a just and righteous God for ever. Before I sit down I have only one duty more to perform. I must call the attention of the House to those horrid scenes which were enated at Durham in 1865, and again recently at Leeds, in the case of the rope breaking; and to the horrors of the late execution at Chester. These may be casualties, but a punishment that involves such horrid risks cannot surely be one long retained by one of the most civilized countries in the world. I thank the House, Sir, for having listened to me for a much longer period than I generally trespass upon its attention. If I have failed to-night in inducing it to vote that capital punishments ought no longer to exist in the England of the nineteenth century, I am persuaded still that the arguments which I have used will be taken into consideration, and, feeble as my attempt has been, I shall rest satisfied for the present in having added another to the efforts that have already been made to purge laws from our Statute Book which are doomed at no distant day to perish before the tide of an ever-advancing civilization, 1689 and because they are at variance with the sublime spirit of Christianity.
§ SIR HENRY JACKSON,
in seconding the Amendment, said, he was justified with assuming from the remarks of the hon. Baronet the Member for South Warwickshire that he was well content to have the whole question considered, and desired the law to be put into such a shape as would relieve it from the criticism to which it was at present exposed. He should shrink from putting on the Statute Book anything like a definition of murder. He understood what murder meant, and what manslaughter meant; but he did not understand what murder in the first degree or in the second degree could mean. Neither did he understand why a difference should be made between the murder of an adult and that of an infant. Whatever punishment the law awarded for this awful crime, they should not shrink from meeting the question on its merits. That there should be some proper statutory dealing with the question of implied malice was a different matter; and he hoped some Government would bring in a measure of that kind which would receive the sanction of Parliament. But, after all, the most important question for the consideration of the House was whether capital punishment could be safely abolished in this country. Viewed as a kind or class of punishment, it was so terrible and dangerous that nothing but an absolute necessity for maintaining it could justfy its retention for a day. Did that necessity really exist, and what would be the effect on society of the abolition of this punishment? He thought this subject might now be debated in a very different spirit to that which prevailed some years ago, and that many men who then advocated the punishment being retained would now shrink from taking that step. The matter had passed from the domain of sentiment into that of simple reason; and this was matter for congratulation. Almost all men were now agreed that, as an abstract question, society had a right to protect itself even by the extreme penalty if the necessity existed. What was the supposed effect of the death penalty? How did it operate? It operated by its terror, it was said. How far was this sufficient? Obviously not to prevent murder, for the catalogues showed that too many murders were per- 1690 petrated. But was there a class of persons who would commit murder if this penalty was removed? That murders were committed notwithstanding the death penalty was admitted; but was it established that if that penalty were removed more murders would be committed? Much as he shrunk from this death penalty, if it were satisfactorily shown that this class of criminals would be decreased by it he should vote differently to the way which he intended that night. By whom were murders committed? By persons who had a purpose of putting aside some other crime, or hiding the unfortunate position in which they were placed. The governing idea in the mind of every murderer was clearly this—not the quantum of punishment, but whether he should be detected. He did not think about being discovered, but, if discovered, whether he would be hanged. Before the punishment of death was practically confined to the crime of murder, it was allotted to an innumerable number of crimes, but still those crimes were committed, and the Legislature and the Judges were then convinced that society would break up unless the punishment were inflicted. Until it was impressed upon our minds that punishment ought to aim not at severity, but certainty, we should be legislating in a wrong direction. There was a class of persons who committed murder out of spite or revenge; but, notwithstanding the existence of such a class, he was prepared to vote for the Amendment of his hon. Friend. The longer one reflected on the irrevocability of the punishment of death, the more pressing did it become that such a terrible risk of making a mistake should, if possible, be avoided. That mistakes had been made, even in our own generation, was, he was afraid, only too true; and if we could safely 'avoid such a risk as that we ought to do so as soon as possible. To his mind we did not sufficiently appreciate the intense sanctity of human life, nor did we sufficiently value that lesson of mercy and humanity which would be conveyed to the miserable beings who committed these crimes, if the Legislature were to lay down as a fundamental principle that the life of man was so holy and solemn a thing that not even the majesty of the law, vindicating its power and the power of society, dared to take it away. There was something incon- 1691 ceivably great in the idea intended to be conveyed to the public mind by a public execution, and the solemn expiation in the face of the world for an awful crime. But public executions, instead of having a good effect, became an additional evil attendant on the punishment of death. In place of them we had now substituted private executions, which caused him a thrill of horror that he could hardly express. If they were carried out in the stillness of the prisons not so much harm would be done; but the public conscience was shocked by the reports in the newspapers of what took place, more than it was by the accounts of the executions at Tyburn and the Old Bailey. If capital punishment was good at all, it must be good that all men should see that fearful punishment as a solemn public act, rather than read about it in the harrowing reports dressed up in the newspapers for the public. He conscientiously believed that the recognition of human life as a thing too sacred to be sacrificed even by the law, would effect a gradual diminution in the number of murders committed, and a much healthier tone of public feeling.
To leave out from the word "That" to the end of the Question, in order to add the words "it is expedient to abolish the penalty of death and to substitute for that penalty, in the case of murder, penal servitude for life; in the case of high treason, at the discretion of the court, penal servitude for life, or for any term not less than seven years,"—(Mr. Pease,)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
THE ATTORNEY GENERAL
said, he did not rise thus early with the slightest intention of putting an end to that interesting discussion, but because ho wished to submit his own views to the consideration and criticism of the House. After waiting many a weary day he had at length a Colleague in the House. His hon. and learned Friend proposed also to say something upon the question, as also did the Under Secretary of State for the Home Department. They had travelled into a wide and extensive discussion; he thought they were met to consider whether capital punishment should be abolished to some extent ix abolished altogether. They had, how- 1692 ever, become involved in a discussion of murder generally, insanity, and the exercise of the prorogative of mercy, to discuss all of which fully would take a very considerable time. His hon. and learned Friend, who had introduced the question in a very able speech, dealt particularly with the question of murder, and whether our law of murder, as at present laid down, was a good and wholesome law or not. He went with his hon. and learned Friend in much that he had said; but he could not acquiesce in his statement as to what was the existing law of murder. If there was no intention on the part of the offender to do injury it would not be murder, unless the person committing the offence were engaged in a felonious act. He was not prepared to say that our present law of murder was altogether on a satisfactory footing. He considered the defect which had been pointed out by his hon. and learned Friend a very serious one—namely, that if a man engaged in the commission of a felony took away life without intending to do so he was guilty of murder. Whatever opinion others might entertain on that question his opinion was that that should not be murder. A man should be tried only for the offence he intended to commit. His view was that nothing should be considered as murder unless a man took away life, intending to do so, or unless he committed acts utterly regardless of whether he took away life or not. His hon. and learned Friend had referred to the subject of wilful neglect. He supposed no one would say that the case of a person who wilfully kept away nourishment from another with the intention of causing death should not be considered murder. Take, again, the case of the Clerken well outrage. He supposed no one would contend that the man who placed a barrel of gunpowder against a prison wall, and who fired it off, not caring whether he took away life or not, should not be guilty of murder. He thought it would be better that the offence of murder should be more strictly defined, and also that it should be confined to the cases he had mentioned. The subject had been brought under the attention of the House time after time by various Bills, which he did not think anyone would find fault with the Government for opposing, or with the House 1693 for not accepting. The subject was a most difficult one to deal with, and it would be best dealt with by a code of criminal law and criminal procedure, which he hoped would soon be introduced into the House. He confessed it would be a great boon if they could introduce a code of the whole law; but it would be well to commence with the criminal law, as it was most needed. In such a code they would deal with murder, and he hoped upon a satisfactory footing, and they would deal with the question which had been referred to by the hon. Member for South Durham (Mr. Pease)—insanity. That hon. Gentleman had dealt with the state of the law upon the subject with great severity; but he did not think the law was under any of the imputations which he had east upon it. The law upon that subject seemed to him to be perfectly reasonable. The question which juries were directed to decide was whether, at the time the person committed the offence with which he was charged, he was aware of the nature of that offence—that it was a crime against the laws of his country. He would now come to the main question—namely, the desirability of removing capital punishment to some extent, or abolishing it altogether. This, he admitted, was a very important and difficult question; and though, perhaps, the prevalence of opinion on the benches behind him might be in favour of the retention of the punishment, some hon. Members opposite also took a very different view from that of the hon. Member for South Durham. They were all aware, however, that the right hon. Member for Birmingham (Mr. John Bright) had frequently expressed, in the most eloquent terms, a very strong opinion in favour of the abolition of capital punishment, and no doubt would do so again. But he could not but recollect that a man who was as advanced a Liberal as the right hon. Gentleman himself—he meant the late Mr. Mill—had expressed a contrary opinion, and advocated it in one of his most effective works. The fact was it was a subject on which arguments more or less ingenious could be adduced on one side and the other; but there were, to his mind, two arguments which stood prominently out from among all the rest, and which ought to decide the matter in favour of the retention of capital punishment. 1694 He would endeavour shortly to lay those arguments before the House; but he wished first to direct attention to some of the arguments which had been used in favour of the abolition of capital punishment by the hon. Member for South Durham. His hon. Friend relied mainly on two arguments. He said, in the first place—"You must look at this matter from a religious and Scriptural point of view."
THE ATTORNEY GENERAL
understood his hon. Friend to say that society had no right to take away the life it could not bestow.
THE ATTORNEY GENERAL
said, he had endeavoured to follow his hon. Friend, but it appeared had not quite understood him. His hon. Friend seemed to say that it was very wrong to hurry a criminal with all his sins upon his head, unprepared, into a future state. It was, no doubt, an appalling thing to hurry a man into a future state without adequate opportunity of repentance. But it must be remembered that the murderer had, at least, some time for repentance, while he had given none to his victim. Was the effect of the death punishment deterrent? Because the whole question turned upon that. We were, unfortunately, obliged to hurry some into a future state with little preparation; but we thereby prevented innocent men being sent into that future state with less preparation. But it had been urged that some time back almost every crime was punished with death, and that now the only crimes so punished were those of treason and murder. It was also said that now, although minor crimes were not punished with death, they were not on the increase; and therefore it was argued that if the punishment of death for treason and murder were taken away, treason and murder would not increase. He admitted the plausibility of that argument. But it was necessary to consider why, in former days, when minor crimes were punished with death, the punishment was not effectual. The reason why that punishment was not sufficient to deter 1695 from crime was that the punishment was out of proportion to the magnitude of the crime, and the punishment was so monstrous that it almost led to the certainty of escape. When shop-lifting and sheep-stealing were punished with death, there was a sort of conspiracy between Judges and juries not to convict but to evade the law. And more than this—persons who had suffered great pecuniary loss would not become prosecutors, consenting rather to suffer the pecuniary loss than send to the gallows a man who was a mere thief. What was the result? It was that the reluctance on the part of juries to convict a criminal led to his escape from punishment. It was most uncertain whether there would be a prosecutor, and if there was one whether there would be a conviction, and that robbed the punishment of death of a great portion of its terrors. If it could be argued that the authorities would not prosecute a murderer because they were anxious that he should escape, and that the Judges and juries were reluctant to inflict the punishment of death, the argument of the hon. Gentleman opposite would be cogent. But that was not so. When Judges and juries embarked in trials for murder they conducted the case with the greatest deliberation, and under an adequate sense of responsibility, but that they refused to discharge their duties he utterly denied, and anyone who affirmed that proposition affirmed a proposition which was perfectly untenable. It had been said that murders were generally the result of an outcome of passion which animated human nature. To a certain extent that was true—such as murders arising from the passions of jealousy, love, revenge, and ambition, and these passions were so violent and overpowering that the punishment could not deter from the commission of crime. But that argument must not be applied universally, for many persons committed murder from venial motives and from motives of gain; and the question we had to deal with was, not who committed murders, or what murders were committed, which had little to do with the argument, but what murders would be committed supposing capital punishment were abolished. The question was—how many murders would be committed if capital punishment were abolished? 1696 It appeared to him to be important to consider what were the acts of the persons he would call the criminal community? There were a number of men who committed crimes of the most serious description—were they deterred by some fear, or feeling, or instinct from adding murder to their misdeeds? Take the case of a garotter, a burglar, or a man who committed rape, who were punished by the most severe punishments known to our law short of the penalty of death. The garotter seized his victim by the neck; but, in doing so, he saw that the latter got a sufficient sight of his face to enable him to identify him. Had not that man a strong temptation to dispose of the evidence of his victim by putting him to death? In the same way, had not the burglar, or the perpetrator of a rape, a strong temptation to get rid of the evidence which would lead to a conviction? As a rule, this extreme criminal class did not commit murder. And why? Was it because they were inspired by a sense of humanity, or justice, or compassion? Did the House believe anything of that sort? Were they deterred by the dread of penal servitude? That was the punishment inflicted on the crimes they now committed, and they were only deterred from adding murder to their misdeeds by a fear of the punishment of the death. These classes did not commit crimes because they were over-mastered by their passions. They went into them in a cool, business-like way—crime was the business of their lives—and they simply stopped short of murder because there was the gallows staring them in the face. He advocated the retention of the death punishment, because he thought it the most deterrent punishment of crime that could be devised short of inflicting deliberate torture and cruelty, which no society was justified in doing. The law applied that punishment only to two crimes—namely, murder and treason; both of which, especially when treason involved murder, were of such heinousness that society could not tolerate their commission. Therefore he contended it was absolutely essential that, in some way or other, an effectual effort should be made to check those crimes; and, for that purpose, society had a right to employ the most severe punishment. Then the question was, whether the punishment 1697 of death was the most deterrent. That was a matter of opinion. One man might think it was, and another might contend for the reverse; but arguments of that kind were of no practical value, because how was it possible to know how many murders were prevented by the fear of that punishment? He had endeavoured to show that the criminal classes were deterred from murder by the fear of death, because there was nothing else to deter them. Besides, did we not all feel that the punishment of death was the most dreadful that could be conceived? It might be said that that punishment was not the most severe—that the sufferings of criminals were not the greatest. Well, that might he so; but the important consideration was, not what the criminal suffered really and truly, but what people who were made acquainted with his doom thought he suffered. And when people heard that a man was condemned to death, they thought he suffered a good deal. Many people, no doubt, would like to sink at once into oblivion; but unfortunately—he did not mean unfortunately, but, as a matter of fact—death to them did not mean oblivion. There was something uncertain and incomprehensible beyond, which rose before their minds when they heard of a man standing upon the drop. Surely, as Shakespeare said—The weariest and most loathed worldly lifeThat age, ache, penury, and imprisonmentCan lay on nature, is a ParadiseTo what we fear of death.That death was the most deterrent punishment that could be conceived he had made out with a good deal of certainty; but there was another ground on which he opposed the abolition of capital punishment—namely, that it would involve a change in the whole scale of criminal punishments which would be most undesirable. Everyone would admit that the punishment for murder ought to be severer than those imposed for other crimes. Now, if the punishment of death was abolished, they must either retain the existing scale, or modify it. If it were retained, and there were no severer punishment for murder than for robbery with violence, what inducement was held out to the criminal not to add murder to robbery? If penal servitude for life were to be the highest penalty for murder, it could 1698 not be retained for offences which, however serious, were of a lesser character. If, on the other hand, the whole scale of punishment was to be altered from end to end, they would be asked to embark on a policy of universal mitigation of punishment for which no ground whatever had been shown, and for which hon. Gentlemen opposite were not prepared, and which the country would never sanction.
§ MR. JOHN BRIGHT
Sir, it is some years since this question was discussed in this House. I am very glad to find it true what I hoped to be true—that, notwithstanding that the House has not discussed it for some years, it has not lest its interest here, as I believe it has by no means lest its interest in the country. Every speaker to-night has treated the question as one of great importance and solemnity. I feel myself indebted to the hon. and learned Member for South Warwickshire (Sir Eardley Wilmot) for the share of the discussion which has fallen to his lot; and I think that if the House were to decide now, or the country were to decide, that capital punishment should still be retained, the House might and ought and would, unanimously agree with the Resolution of the hon. and learned Member; for scarcely anything can be more disgraceful, and there is nothing in the whole of our law more discreditable to us, than the state of the law with regard to the crime of murder. That was the unanimous judgment of the 12 Members of the Commission that sat 11 years ago, and that must have been the judgment since of every Member of this House who has held the office of Home Secretary, and I should be speaking contemptuously of any Home Secretary if I attributed any other opinion to him. But to-night the question before us is rather that which has been suggested to us by the hon. Member for South Durham (Mr. Pease), because I am quite satisfied that the more we see the difficulty of dealing with the crime of murder so long as it is a capital offence, the more we shall be driven seriously to consider the Motion he has submitted. I am very glad that the matter has come before us in a manner very different from that of past years. The hon. and learned Attorney General spoke of the Scriptural argument. We have heard that argument used in this House in past years as 1699 though it were conclusive of the question; but now it may be said to have gone altogether; and I believe most of those who support capital punishment would not attempt to support it on that ground; as I think that many or most of those who think capital punishment might be abolished, would not probably assert that under no possible circumstances can the country be justified in taking the life of any one of its citizens. But there are other arguments which have also fallen out of use. The argument of vengeance has to a very great extent, although I think it was not entirely abandoned on the opposite side of the House; but it is time for us to abandon it, and to discuss this question on the multitude of facts offered to us, not only in this country, but in every civilized country in the world. There is another argument which has been touched upon by the hon. and learned Member for Coventry (Sir Henry Jackson), and that is the difference between public and private executions. It is obvious that one strong argument in favour of capital punishment is removed by that change because it was always held that the object of these executions was to strike terror into the multitude, amongst whom were no doubt a large number of the class of those from whom our criminals come. But Parliament had thought right, and the public had decided before Parliament had decided, that public executions were an enormous evil—that they tended, by the ferocious disposition which they generated among the people, rather to increase the number than to diminish the frequency of murders. But if we have got rid of the Bible argument and of the terror argument, what then are we driven to? We are driven to a careful consideration of the facts and figures offered to us in this country and in the experience of other countries. I met, only a fortnight ago, a friend of mine, not so old as I am, who told me that he was at school in a county town 40 or 50 miles from London, and that while at school he was taken along with the other boys on every occasion to witness the executions at the county gaol. The boys saw this terrible scene enacted, and they went home, as he said he went home, in a state of terror and anxiety, which entirely for that day destroyed his health and his appetite. And the master of the school 1700 then assembled the boys and told them that that dreadful thing they had seen was what boys came to who were ever guilty of pilfering and telling lies, and he left them with the impression, that if they were very careful they might possibly escape the gallows, but that the gallows was not an unlikely conclusion for any of them to come to. In our own time such things have happened, and we now wonder at it, and I think we should be unanimously disposed to condemn it. I am afraid to ask the Attorney General, because he might give me an answer that I should regret; but I would ask hon. Gentlemen whether, if it could be shown that there would be no increase whatsoever in the number of murders in this country if capital punishment were abolished, that life and property would be just as safe as they are now, is it possible any Member of the House would object to the abolition of that punishment? I am afraid the Attorney-General would, because he has said that if ever it came to a state of' things when juries did not like to convict, and Judges did not like to sentence, and so forth, it might be a reasonable thing to get rid of capital punishment; but even then, it would be a matter which he would apparently deeply regret, and if he could keep public opinion up to that condition of severity—I would almost say of brutality—which he defended, he would keep capital punishment as long as possible. We have heard what was done in past years. A hundred years ago nearly 200 offences are said to have been punishable with death. I recollect reading a letter written in the year 1776 by Charles Wesley to Mr. Fletcher, of Madeley, in which he says—A fortnight ago I preached the condemned sermon to above 20 criminals. Every one of them, I have good grounds to believe, died penitent. Twenty more must suffer next week.Now, that is a picture of 100 years ago. At a latter period than that, in the year 1785, not less than 97 persons were hanged in London in one year, although the population of London at that time was scarely more than one-fourth of the population now. And I recollect also reading in the life of John Howard, the prison philanthropist, a statement in .which he showed that the hangings in London, in proportion to the population, were 10 times as great as the hangings in Amsterdam, and yet that life 1701 and property at that time were as safe in the city of Amsterdam as they were in the City of London. Well, these are facts which show what a state of things existed only just before our own time. We have heard to-night about the shoplifting, and the Attorney General said public opinion was against the punishment of death for that offence, and therefore the law was altered; but even at that time to which he referred, he would find his own Profession were all in favour of the law. Lord Ellen borough, speaking in the House of Lords on behalf of the Judges, said they were unanimously agreed that the expediency of justice and public security required that there should not be a remission of capital punishment in this part of the criminal law, and be added—My Lords, if we suffer this Bill to pass, we shall not know where we stand; we shall not know whether we are upon our heads, or our feet.That was the opinion of one of the great Judges of the land at that time, and he says it was the unanimous opinion of all the Judges. When that question was brought before the House of Lords, the Bill was rejected by a majority of 31 to 11, and strange to say that seven Bishops and Archbishops voted against the Bill. I think after these facts, one may say that Voltaire was not very wrong when he uttered that cutting sarcasm, and declared that the English were the only people that murdered by law. Now, what has been the result of the changes made since then? I will not go over the details that have been submitted to the House by my hon. Friend the Member for South Durham, but they have been of the most satisfactory character. There is no man now who can plead for a moment that property and life have been rendered less secure by any changes that have taken place. And bear in mind, those changes were not made because you had stamped out the crimes. The crimes went on. The public revolted at the barbarity of the law, and finally you were obliged by force of public opinion, which would no longer lend itself to the horrible policy of Parliament, to mitigate the law, and to abolish capital punishment for nearly 200 offences. Horse stealing, sheep stealing, forgery—none of these crimes, which formerly brought scores of men to the gallows every year, were dimi- 1702 nished by these punishments, and only since—I do not say because of—but only since the abolition of some portion of the barbarity of our law have we found a general diminution of nearly all those crimes to which the punishment of death formerly applied. It is a great mistake to suppose that the greater crime will be deterred by a punishment which was found to be wholly ineffectual for deterring from the smaller crime. The Attorney General has given us what he thought a very strong argument. For instance, ho says, what murders would be committed if hanging were abolished? The burglar or the garotter would be tempted to kill his victim; but the answer to that is, that in all countries where capital punishment has been abolished, there is' not one atom of proof that any such thing has occurred. That will be found to be true of Belgium, of Portugal, of Tuscany, of Russia, and of half-a-dozen or more of the States of the United States. If you ask all those most conversant with the criminal law of these countries and its administration, they will tell you that not one single case is borne upon their books, or their records, to show that there is any danger of that upon which the Attorney General founds the main portion of the argument he has submitted to the House. Then, he says, we do not know how terrible is the punishment of death; but we have an idea what the person about to be subjected to it feels when he goes to the drop. When passing those dread hours between his conviction and punishment, he may feel a great deal, and if then he were asked whether he would commit that crime, certainly he would not do it. But the crime was committed six months before, when he had not the drop before him and all the ceremonies of his trial. The punishment was so far off that he could not see it, and he had, as he thought, a score of means to escape. The fact is, I believe, we greatly over-measure the deterrent influence of all punishment and not less of capital punishment. I have not the smallest doubt myself—I think it is proved beyond all kind of contest from the statistical accounts we have from various countries—that there is no increase whatsoever of murder or of any crime for which the punishment of death has been inflicted when that punishment has been entirely 1703 abandoned. My hon. Friend the Member for South Durham has mentioned some of those countries; it is too late now to go into details, but I have before me a great many instances—I suppose altogether there must be from a dozen to 20 countries and States in which capital punishment has been abolished—and the evidence from these countries, with scarcely any exception, is concurrent and conclusive upon this—that life and property are as secure after the abolition of that punishment as they were at any time when the punishment was most severely inflicted. We think we are before some countries in many things. I have heard men saying even on the other side of the House—"Why don't foreigners, seeing how wise we have been on the question of Free Trade, find free trade as good for them as we find it to be for us?" Let us ask the question now on another subject. If we find a dozen respectable States in the Christian world have abolished capital punishment, not only without disadvantage, but with absolute advantage in the diminution of crime, why should not we learn from them? If you can insure the security of life equally well, surely it is some advantage that the State should offer an example to the people of its strong feeling that human life is sacred, and that under almost no conceivable condition can it be lawfully or innocently taken away by force. Therefore, if we find this concurrent opinion amongst various Christian nations of the world, we might take a lesson from them, and see if it would not be practicable in this country. I do not know that we are more savage or more barbarous than any other country; but our law in this respect has always been more barbarous and more cruel than that of any other Christian State of which I have been able to inform myself. ["No, no!"] I know that when William Penn founded the Coleny of Pennsylvania, he struck off almost every crime of the many scores that the English law punished with death, and left—and this only from the force of opinion, rather than from his own conviction—the punishment of death only for the crime of deliberate murder. I mention this to show how ferocious our punishments were at that day. William Penn abolished those punishments in his new Colony, but the English people have kept them on the Statute Book 1704 almost until our own time. I am not discussing the right or the wrong of the matter, but only pointing out how savage and cruel has been our law. No one can doubt that for a moment. If hon. Members doubt what I state, I shall be glad to hand them the papers in my hand and the statistics from other countries, which are to be just as much relied upon as the Returns published by our own Home Secretaries. It is settled beyond contest that human life is as safe in countries where the punishment of death has been abolished as in others where it is inflicted, and sometimes safer than it has been in countries when capital punishment has been inflicted. There is one point I should have been anxious to have dwelt upon if the Home Secretary were present, and that is the extreme irregularity, and I will say injustice—not intended, but real injustice—with which this punishment is inflicted. The injustice and cruelty of the law must be manifest to all who follow the cases as they occur in the newspapers. The crime which we call murder is a crime as different in itself as the worst manslaughter from petty larceny. The juries differ very much in the course they take. Judges are very different. Some have been called "hanging Judges," and some have not had that unenviable distinction. I am not speaking of any Judge now on the Bench; but that is a phrase which has been used ever since most of us can recollect. We know also that Home Secretaries change every three or four, years, and that they are men of very different tempers and qualities, and that some of them are much more accessible to considerations of mercy than others. A year ago, or a little more, I heard of a case in Glasgow which astonished and shocked. The case was that of a young man named Doherty, who was hung at Glasgow on the 5th of October, 1875. He was, up to the time of his offence, a young man of an excellent and irreproachable character, for which fact there was the authority of a large number of persons—such as ministers of religion, employers of labour, and others whose testimony would be received without doubt. A memorial on his behalf, signed by many thousand persons, was sent to the Home Office in vain. He had been out of the town at Ruther-glen Bridge on May Day with a num- 1705 ber of young friends. They had been spending a merry day, and, unhappily, some of them had been taking rather more drink than was judicious. These persons shouted and sang and amused themselves in the road, when two young men came out and chaffed and rebuked them, and said things that were unpleasant. Doherty, made angry by this, pursued one of the young men, whose name was Miller, and on his way, it seems by one account, that he met a woman with a hoe in her hand. In another account, it was stated that the hoe was leaning against a door. As he passed he seized the hoe, swung it round his head, and inflicted a serious wound upon Miller, from which he died. Now, that was a case where the parties did not know each other; and the moment before it happened it had not entered into Doherty's head, so that it, in one sense, was purely accidental. Doherty was tried before Lord Neaves, convicted, and sentenced to death. Now at the same Assizes another man was tried, a man of the name of Tierney, and I should like to read a few facts from a newspaper regarding his case. It states there that Tierney was a miner, and the evidence shows that not only was the most careful premeditation used, but that the deed was one of unusual atrocity. He had killed his victim with his pick while working in the pit, and had then covered his body with stones, in order to make it appear that he had been killed by a fall of stones from the roof. The jury found Tierney guilty of murder, but recommended him to mercy on the ground of excitement. His counsel had pleaded insanity in Ids behalf. The jury had also recommended to mercy the young man Doherty, whom I have mentioned; but it was a fact that nobody had made any effort to save Tierney, whose case seemed to the public to be beyond the ordinary cases of recommendation to mercy. But what happened? Why, the Home Office sent down a respite for Tierney; they then appointed two doctors to see if he was insane, and finally his sentence was commuted. The answer to the application on behalf of Doherty did not come at the time of the respite of Tierney; and as it did not come from day to day, the authorities began to think there was a mistake at the Home Office, and that the wrong man was re- 1706 spited, and there was great feeling in Glasgow. Not long after a minister of the Free Church told me that the population of Glasgow was absolutely aghast at the thought that this man should be hanged. He was only 19 years of age; he did not know the person who through him came to his death, and a moment before he had no notion of injuring anybody; there was testimony of his irreproachable character till that event took place; and yet one man was hanged in the face of the public opinion of Glasgow, and the other man, for whom no other man in Glasgow had interceded, was respited, and his sentence was afterwards commuted, and commuted, not by the determination of the jury, but by the determination of two persons sent clown by the Home Secretary, who were no doubt anxious that the man should be saved from the gallows, if he could be saved without absolute falsehood, and ho was so saved. I declare, without reservation, that in the sight of Heaven, and of every thoughtful man, the punishment inflicted on Doherty was a greater crime than the crime for which ho was hanged. The Attorney General said this was a great question. I feel it is a great question. That such a thing as this should happen in any Christian country, in a free country, with a free Parliament, with a law which we are all free to discuss, and a free Press, should be a matter of shame and sorrow to every man who hears of it. I say this is a very great question, and it is one that cannot be dealt with at all comprehensively in a speech, especially a speech made after midnight in this House. But I am of opinion there never was a case submitted to this House for a change of the law that could be more clearly and completely demonstrated than the case which—my hon. Friend the Member for South Durham has submitted to the House. I say it has been proved by what has been done in this country, that wherever you have abolished capital punishment there has been great advantage. It has been proved in every other Christian country in the world, and where they have gone further than we have, and have abolished capital punishment for the highest of crimes, a result quite satisfactory has followed. And. I say you commit a mis- 1707 take which 100 years to come men will point to as one of the most extraordinary mistakes a Legislature could commit, when you endeavour to promote the sacredness of human life and the reverence for human life by destroying it in cold blood, and by one of the most barbarous methods which the most barbarous nations ever employed. I read some time ago an account of an execution—I do sometimes inflict on myself the penalty of reading such a thing—and I agree that at present we have, in some cases, more details than we had when executions were public. ["Oh!"] I think so, because the reporters are so near. They are as near to the convict as I am to my hon. Friend. In former times they told you all about the crowd, and how the street was filled with spectators; but now, in a space perhaps not half the size of this room, they see every line of the convict's countenance, they see his troubled eyes, the pallor on his cheek, the terror in every limb, and all that is given, with all the embellishments which newspaper writers are so able to add, and these details are carried into every house; and I believe, at this moment, your executions are exerting an influence as evil, and I believe, sometimes, even more evil, upon the public mind than they did in times when they were enacted under the canopy of heaven and before the faces of thousands of the people. What force there is in the law and what superstition in man that he should come out early in the morning and witness the committal of an atrocity inseparable from an execution? The Attorney General referred to the opinion of Mr. Stuart Mill in a speech which he made in this House. I am not going to answer Mr. Mill; but I will quote what a lady of great intelligence wrote to me soon after that speech. She said that she had read his speech, and that it was a very good and powerful speech; but that he had left out of view entirely that any such thing as Christianity had ever existed in the world. Well, but the hangman is one of your officers, and what does he say to your convict? He says—I will quote the language of John Stuart Mill—You are not worthy to live among mankind; I blot you out from the fellowship of man, and from the catalogue of the living.1708 That is what John Stuart Mill said in this House. But what says the chaplain? The chaplain says—"I pass you on, penitent, into the presence of God, and to take your place amongst the fellowship of the just." These are your two officers who take this course in the silence and almost the solitude of the interior of your gaols. And then in the grey of the morning—and it is generally, I notice, on a Monday morning, after the pious and Christian services of the Christian Sabbath—these terrible scenes are enacted, and you have the Sheriff, and you have the Governor, and you have the policeman, and you have the priest, and you have the hangman, and they strangle in private a human being in order that human life may have a greater reverence among men. Why, is there any savage nation; is there any superstitious African tribe who were ever so mistaken as to commit anything so outrageous as to dream that you could spread amongst your people a reverence for human life by bringing out your Sheriff, your Governor, your parson, and your policeman, and hangman, and then, with a dozen newspaper reporters looking on, strangle a man, or even a woman, and say, by that, you are anxious to spread a reverence for human life? No; it is time this thing should come to an end, and it will come to an end. Your children will all of them regret, if they should ever see that your names have been written in the list of Members of this House who have for one single day countenanced the committal of such horrors in this professing Christian country. It is surely time that we should have a Home Secretary who should revolt against the tremendous and terrible duty which the law imposes upon him. I have spoken to a Home Secretary on questions of this nature, and I have told him, in respect of a particular case,—"You know if you hang this man there is no other Christian country in the world in which he would be hung." He did not deny it. It was a matter notorious, and I have seen him burst into tears; I have seen the tears rolling down his cheeks and himself greatly agitated with the burden upon his conscience which he knew not how to shift from it, the law having compelled him to decide this case, his sympathy carrying him one way and his fear of not doing what 1709 the law required compelling him the other. The time, I say, is surely coming when we shall have a Home Secretary who shall revolt against the terrible duty thus imposed upon him, and when we shall have a Parliament, too, which shall raise itself to the height of this great argument, and will believe that Christian law is of more worth than the barbarism that comes only heathen times. And I hope the time will come when we shall show to all other nations, that whatever England has been heretofore in the barbarous nature of her punishments, now at last she takes another course, and instead of being the last, she will be foremost in that path which leads from the blind cruelties of the past to the wise and just mercies of the future. With all my heart and soul I shall give my vote in favour of the Amendment of my hon. Friend the Member for South Durham.
THE SOLICITOR GENERAL
said, that he could not but dissent from every proposition enunciated by the right hon. Gentleman, and he was not ashamed to avow that difference of opinion, though almost every person who had thus dissented had been denounced in passionate invective, as if no one had a right to his own views. He thought that the matter might be debated without any such warmth. This was a question that could not be adequately discussed at that hour of the night, and it must be discussed in a manner different to that in which it had been treated that night. The question to be discussed simply was whether life and property would be safe if capital punishment were abolished; and the House could not assume that the position had been proved without substituting dogma for argument. The question resolved itself into this—What was to be the result of such a change in the policy of the law of England? That could not be positively ascertained, and they could arrive at a conclusion only by looking at the experience of other nations, without, however, repudiating the evidence of men's own hearts. He had followed with great difficulty a great many of the assertions which had been made in the course of the debate, and lie would mention at once that he did not propose to discuss individual cases of individual murder, such as those which had been brought forward by the hon. Member for South Durham (Mr. 1710 Pease) and the right hon. Gentleman, and for this reason—that discussion of any one of those cases might occupy a whole evening; they had been discussed in Courts of Law, evidence had been offered on both sides, and hon. Gentlemen now got up and, no doubt, without intending it, put their own gloss upon the cases. The hon. Member for South Durham gave one or two cases in which he (the Solicitor General) had been engaged as counsel, and that circumstance would prevent him from giving his view of the matter. But this he would say—that he did not concur in the view which the hon. Gentleman had put before the House. Then he came back to the substantial question whether capital punishment could be abolished. Ho hoped that before sitting clown he would justify himself in voting both against the Amendment and against the original Motion. The original question was as to the alteration of the law of murder. And here he would ssy in one word that although the law of murder might be susceptible of amendment in one or two particulars, yet this was a question which could not be decided in a moment. Hon. Members, while complaining of the existing state of things, did not put before the House, or before their own minds, the difficulties in the way of amendment. The principle of the law of murder was singularly clear; it was the application of that principle to the infinite variety of human circumstances that was difficult. The difficulty of a code was this—that you strove to fasten into an iron framework an elastic principle which the law of England had established with singular clearness. It was said that the abolition would be not to increase the crime, but that it would actually diminish it; and that that had been found to be the case where the experiment had been tried. The fact was that the result had been the reverse. The number of offences had in some countries been increased. He was surprised to hear the right hon. Gentleman speak of the universality of the result of the abolition of the punishment—that there had been no increase of the crime of murder, because the right lion. Gentleman was a Member of the Commission before which the evidence of the Minister of Grace and Justice of Tuscany stated that the crime had nearly doubled during the period when the 1711 capital punishment of death was abolished. The difficulty which he felt was in discussing the question at that late hour; but he would state from the evidence produced that the abolition of the punishment occurred three times in Tuscany and had to be re-imposed. He believed he had given the substance of that evidence when he pointed out that homicides in that country had nearly doubled since the abolition. That was shown to the Commission; but he (the Solicitor General) had no faith in statistics. They were utterly worthless in this case, as it was quite impossible to say how many cases of homicide took place which were not discovered. He found that a Minister in the Italian Chamber, speaking on this subject in 1872, described the state of Italy to be such that the punishment of death could not be inflicted with so much parsimony in future as it had been theretofore; and he added that Italy was the country in which they killed most and hanged least, while England was the country in which they killed least and hanged most. The whole argument turned upon the assumption, that if capital punishment were abolished, the fact would cause no greater interference than at present with life or property. Well, he found in the correspondence set forth by the Royal Commission, to which reference had been made, that the highest authority admitted, in reference to the Swiss Canton of Freburg, that after the punishment of death had been abolished, the crime of infanticide increased from 8 to 15, of manslaughter from 5 to 15, and of assassination from 1 to 5; but he sought to explain the fact away by the statement that one-third of the criminals were foreigners. What was the value of statistics framed in that way; and how could any reliance be placed upon them, unless they were derived from a country which kept proper record? Portugal had been cited as an argument in favour of the abolition of the death punishment; but the number of murders in Portugal was very much greater in proportion to the population than in England; and, in point of fact, the argument told in favour of England than otherwise. The question was, whether dealing with the whole population, the punishment of death could be safely remitted? In his opinion, no man could face the unknown without being moved. Dealing with 1712 the Bible argument as it was termed—and, in his opinion, it was no worse because it was a Bible argument—it most undoubtedly had a great effect upon many minds; and a man who might not fear the temporal punishment had a terrible dread of being sent into another world "unanointed and unnannealed, with all his imperfections on his head." This fear of death accompanied most men all through their lives; and if a criminal thought that a murder would be followed by the chance of his sudden death, without that hope of reconciling himself to Heaven, the desire of which haunted all men, the House had to consider whether the intending criminal would not be more likely to pause, if the State had a right to put him to death, and if the State, in his case, were armed with the terrors of a future life.
§ SIR WILLIAM HARCOURT
said, the speech of the hon. and learned Gentleman (the Solicitor General) reminded him of the days of Lord Eldon. The arguments which he had used were arguments which had been advanced by Attorneys General and Solicitors General, generation after generation, against all attempts to mitigate the severity of the criminal law. The Solicitor General had, however, exceeded his Predecessors, because he had invoked not only temporal punishment, but had endeavoured to sanctify this punishment by the terrors of a future life. No such argument had ever before been heard in favour of capital punishment as that the object of that punishment was to send a man into the presence of his God "unhouselled, unanointed, unannealed."
THE SOLICITOR GENERAL
was sure that his hon. and learned Friend did not mean to misrepresent him, but he had said nothing of the kind.
§ SIR WILLIAM HARCOURT
said, he certainly understood the Solicitor General not merely to refer to the capital punishment, but to its effect in sending a criminal suddenly into the presence of his Maker. He was happy to find the hon. and learned Gentleman did not intend to use such an argument. The real question was whether the punishment was deterrent? If it were, he would vote for it and support it to the last; for the life of the man murdered was better worth defending than that of the man who murdered. The deterrent argument had supported capital punishment 1713 for stealing to the value of 5s. from a dwelling-house. The Solicitor General was so perfectly in tune with the old arguments that he talked of security for life and property; but we had abandoned capital punishment for the defence of property. If it did not deter men from stealing horses and sheep, why would it deter them from committing murder? ["Oh, oh!"] But let hon. Members who said "Oh, oh!" answer that argument. The punishment did not put an end to horse stealing and sheep stealing, and at last people came to consider that perhaps the punishment had not the deterrent effect it was supposed to have. What was at the bottom of the hearts of the people was not a deterrent effect, but an unconscious sense of vengeance and of retribution for the crime. And this was why the punishment was justified in the case of murder, and not in the case of horse stealing. Lawyers were as much shocked when it was proposed to abolish the punishment for horse stealing as they were now at the proposal to abolish it for murder, but the people were wiser than the lawyers. The Memoirs of, Sir Samuel Romilly showed that such speeches as the Attorney General and the Solicitor General had made to-night were made time after time. It was asked, How can we tell what may be the consequences? There was force in the question then, because the experiment had not been tried then; but it has been now, and we were in a different position. We had remitted the punishment for many offences, and we were not in a worse position than before; and it was therefore fair to ask—If the punishment did not prevent men from stealing horses, why was it more likely to prevent them committing murder? Murder was generally committed under the influence of violent passion; and if it was found that the punishment of death did not deter in the case of crimes which were committed in cold blood, was it possible, was it reasonable, to suppose that it would act as a greater deterrent in the case of murder? As he believed, they might dispense with the penalty of death, even in the highest of all crimes, without any injury to the safety of society, he should vote for its abolition.
§ SIR EARDLEY WILMOT,
in reply, said, he would not at that late hour trespass on the indulgence of the House 1714 but for a few moments. He was quite satisfied with the result of the debate, proving, as it had done in the clearest and most convincing manner, that the principle and truth of his Resolution had been universally conceded—namely, that the law of homicide was discreditable in its present state, and ought to be amended. In fact, the Law Officers of the Crown had both of them acknowledged this to be the case, though ho must confess he could not gather from the enunciations of the Treasury Bench whether the Government intended to support his Resolution. It was too late then for him to reply to the arguments in favour of total abolition of the death penalty, so ably adduced by the hon. Member for South Durham (Mr. Pease), which he much regretted, as he had purposely deferred making reference to the Amendment till he should have an opportunity of replying on the whole question before the House. It was the first time, perhaps, in the annals of Parliament that an Attorney General had, in a capital punishment debate, himself committed suicide. The hon. and learned Attorney General had thrown discredit on the bundle of Bills brought in from time to time in both Houses of Parliament, from that introduced by Lord Cranworth when Lord Chancellor in 1867, to that of the Recorder of London in 1874, and said, in a tone of exultation, that his (Sir Eardley Wilmot's) bundle was good for nothing, and that the authors or promoters of these Bills could not possibly anticipate success for them; but what would the House think when he (Sir Eardley Wilmot) held out one of these Bills to the view of the House—namely, that of the hon. and learned Member for Salford (Mr. Charley), which was the Infanticide Bill of 1874, and on the back of this Bill, endorsing it with his authority, was the name of the hon. and learned Attorney Peneral himself? The Attorney General questioned his (Sir Eardley Wilmot's) definition of murder, but he spoke from the pages of Hale, Foster, and Hawkins; and he must attach greater weight to these law sages, and great authorities, than any dicta of his hon. and learned Friend. The hon. and learned Attorney General had held out some crumbs of consolation by a vague promise of criminal law codification; but he (Sir Eardley Wilmot) feared that these promises had very little 1715 substantial nourishment in them. In conclusion, he thanked the House, and especially those speakers who had so ably and eloquently contributed to the success of the debate—the interest of which had been well maintained after a long Morning and Evening Sitting.
§ MR. HIBBERT
protested against the statements which had been made in the course of the debate with reference to private executions, which he considered to be a great improvement on the system that previously existed. He believed that 99 persons out of 100 would endorse that opinion.
§ MR. KING-HARMAN
said, that in the county with which he was connected (Roscommon), a base and barbarous murder had been committed within the last few days. It was his firm belief that if the man who committed that murder were arrested and hanged, there would be no repetition of the crime. If, on the other hand, he were sentenced to a lighter punishment than death, life would not be safe in that county.
§ Question put.
§ The House divided:—Ayes 155; Noes 50: Majority 105.—(Div. List, No. 169.)
§ Main Question put.
§ The House divided:—Ayes 61; Noes 130: Majority 69.—(Div. List, No. 170.)
§ House adjourned at a quarter after Two o'clock.