§ Order for Second Reading read.
§ MR. PEASE,
in rising to move that the Bill be now read a second time, said: Sir, during the last Session of Parliament I obtained leave to bring in a Bill to Abolish Capital Punishments; that Bill I was obliged to withdraw; I had to submit to the fate which so frequently attends the best efforts of private Members. The Bill, the second reading of which I now have the honour to move, is a transcript of that of last Session. But, Sir, a debate on the subject of capital punishment took place on the Motion of the hon. and learned Baronet the Member for South Warwickshire (Sir Eardley Wilmot), who moved thatit is desirable to consider whether the laws, under which offenders are liable to capital punishment, should not undergo revision.To that Motion I ventured to move an Amendment, in which I endeavoured to embody the principle of this Bill. Sir, I cannot for a moment complain of the manner in which my hon. Friend's Motion or my Amendment was discussed, in a debate which only commenced at 9 o'clock. After that discussion, I had at one time almost concluded to allow this question to remain dormant so far as this Parliament was concerned; but, on reading the speeches delivered on that occasion by the Legal Advisers of the Crown, I felt 1238 that the arguments which they used were of such a character, that it was my bounden duty to take the first available opportunity of showing on how slender a foundation their arguments were really based. In addition to this, fresh information came into my hands during the Recess, bearing directly on this subject. During the month of November, 1877, we had what might be called a "Bloody Assize"—executions took place as follows:—Monday 19th, Old Bailey; Tuesday 20th, Norwich; Wednesday 21st, Exeter; Thursday, 22nd, a holiday; Friday 23rd, Dollgelly; Saturday 24th, a holiday; Sunday 25th, a holiday; and Monday 26th, 3 at Leicester; making a total of 8 days, in which occurred 7 hangings; so that I trust the House will bear with me for a short period, whilst I venture again to urge upon it the reasons which I deem ought to lead it to an amelioration of the character of our penal laws. On the last occasion, I endeavoured to show that whilst I did not deny the right of the State under certain circumstances to take away human life, there had been a most marked change in the treatment of criminals in our own and in all civilized lands; and that it was for the benefit of the State, that that right of taking human life should be no longer 'exercised. I showed that whilst only 50 years ago we hung 2,000 people per annum; that whilst, in 1832, we hung as many as 1,000 a-year, that in 1839 it was reduced to 39; and that, during the last 16 years, the average had been 24 a-year; that this mitigation of law and of sentence had been accomplished with property quite as secure, and human life quite as sacred. I tried to show, and I think I completely succeeded in showing, that capital punishment had been abolished in various countries and States, without any increase, but almost always with a marked decrease, in homicidal crime. I think I also proved to demonstration that there was no difficulty in dealing with those life-prisoners. I would observe, with regard to the misapprehension of attacks on warders by life-sentenced prisoners—first, that nearly half of the murderers now sentenced to death are imprisoned instead of hung—they do not attack warders—and secondly. Captain Knight, formerly Governor of Portland and Portsmouth Convict Prisons, declared— 1239I am firmly convinced from my own personal experience that almost all serious and successful assaults on prison officers arise from negligence or carelessness on their own part, or from want of what has been termed individualization,' or study of the individual character of the prisoners; so that many of them are placed in situations and at work from which they should have been carefully excluded. The danger of successful assaults on officers will be absolutely nothing under a judicious management.I showed that the Royal Commissioners who sat in 1864 were unanimous for a change in the law—such a change as is now advocated by the hon. and learned Baronet the Member for South Warwickshire—that that change has never been effected; and I also showed that one-half of that Commission, 14 years ago, were in favour of the total abolition of the gallows. I also endeavoured to show how the Royal prerogative was exercised—not in the way of stepping in between the gallows and a manifestly unjust execution; but in mitigation of a sanguinary law, according to the discretion of the Home Secretary. I think I also showed that, in the opinion of all competent judges, the deterrent effect of a punishment was just in proportion to its certainty, and the death penalty loses its effect from the very uncertainty in which it is involved—an uncertainty which arises entirely at our natural dislike to it. It which Judges and Juries have shrunk, cannot be denied that it is one from and will shrink, and that it is left to the Home Secretary to determine whether the gallows or the gaol shall be the fate of the condemned. Well, Sir, admitting that the State has a right to take away life, the question naturally arises—under what circumstances should that right be exercised? Certainly, only when its exercise has the effect of making other lives, or that which is of equal value to life, more secure. The experience of other countries who have tried it has proved—and I have no doubt in the world that the experience of this country would prove—th at capital punishment does not make life any more secure. The sentence is no longer deterrent; in fact, by making human life a less sacred thing, its effect is rather to reproduce that which it would destroy—regardlessness of human life. Since this subject was before the House, we have had some very remarkable instances of the fact that it is not deterrent. At the Liverpool Assizes, November 3rd, 1240 1877, Thomas Mullen and Mary McCrave were sentenced to penal servitude for the manslaughter of John Talbot, in September last, by kicking. It is a very remarkable circumstance that each of the two prisoners had had a brother hanged at Liverpool for the crime of murder by violent kicking. Thomas Mullen's brother and Mary McCrave's brother were hanged, together with a third criminal, in 1874, at Liverpool, for killing a man in Tithebarn Street, by kicking! Further, on June 21st, 10 men were hanged, in Pennsylvania, for murderous conspiracies. That morning's issue of The New York Herald predicted "a wholesome effect" of this "terrible lesson," and added the positive assertion—We may be certain that the pitiless severity of the law will deter the most wicked from anything like imitation of their crimes.Vain prediction! The night following the execution two of the witnesses in the case were murdered. And before July 5th, five of the prosecutors had been murdered. A leading United States journal complained, in July, that "the recent executions appear to have been of no avail," and the local "depredations seem to be more strongly marked than ever. "It is added that since the 10 men were hanged others are missing; numerous armed bodyguards surround the mines, and" there is an atmosphere of terror throughout that section of the State. "Sir, the hon. and learned Gentlemen (the Attorney General and the Solicitor General), in spite of the many instances I showed to the contrary, denied that the horror of this sentence stood in the way of Judges and juries doing their duty; but, Sir, here is a very recent example. A case occurred at the Maidstone Spring Assizes last year, which afresh illustrates the tendency of the capital penalty to promote the escape of the guilty. A soldier named John Parker was sentenced to 15 years' penal servitude for killing his wife. But the Judge, in passing sentence, told the prisoner that—He could not doubt that it was 'only the natural hesitation which men felt to condemn others to death' which had saved him from a verdict of wilful murder.But, Sir, the reluctance is not confined to Judges and juries. It naturally runs through all orders of the people. I 1241 saw the following statement in all the newspapers a few months ago:—The Under Sheriff for Merioneth has experienced considerable difficulty in carrying out the preliminaries for the execution of Cadwalla-der Jones, for the murder of Sarah Hughes, at Dolgelly. The Home Secretary has replied to the Petition, refusing to interfere with the course of the law. When the Sheriff applied to several local carpenters to erect a scaffold within Dolgelly Gaol, they refused one and all. Application was then made to other local builders; but these refused, in turn, to have anything to do with the preparations for carrying out the last dread sentence of the law. Recourse was then had to a Chester carpenter, who had fulfilled a similar service for the Governor of Chester Castle. Having made the scaffold, he forwarded it to Dolgelly, and there all the carters positively refused to cart it to the gaol. It was then taken on to Penmaenpool Station, further away, to the residence of the Under Sheriff, who, after considerable difficulty, induced one of his labourers to convey it to Dolgelly. Marwood arrived at Chester from Nottingham on Wednesday- afternoon, stopping there for the night. Yesterday morning he left Dolgelly by the 9.10 express.A London journal states—We strangle a man, after due preparation to render him fit to die, and therefore he might be permitted to live; or we strangle a man when he is not fit to die, and should therefore be permitted to live out his allotted term of life. Meanwhile, the people of Dolgelly have taught us a lesson likely to be useful, for no respectable man should have anything to do with so hideous a business as an execution by strangulation.It is added that our Colonies share our difficulties, as shown by the following extract from a private letter:—I have had the disagreeable task of witnessing the execution of Woodgate. It created a little excitement in the place, and the Picto-nians distinguished themselves as usual on the occasion. The tradesmen all refused to build the scaffold, or make the coffin, or even to sell the materials required for these purposes. Of course, no one in the district would hang Wood-gate. Mr. Goulter, as Sheriff, did not manage matters well. He engaged a hangman in Blenheim; but he allowed the man to come through to Picton the day before the execution was to take place. Everyone knew what he had come for, and no one would admit him into their house. He could get neither food or lodging, so he went back to Blenheim by the afternoon train, and refused to perform the duty—that is, the execution. Woodgate's execution was fixed for Wednesday morning at 8 o'clock. When the time came, there was no one to do the work. The execution was put off until another man could be found. The sentence had to be carried out within seven days from date of the receipt of warrant by Sheriff. Mr. Goulter had about one day and a-half to find another man, or, failing this, he would have had to hang Woodgate himself. The 1242 Sheriff telegraphed to Wellington, asking them to send a man. They replied that they could not find one in time; he, therefore, was in a fix. He at last found a wandering fellow who tramps about all over the Colony. He was brought to Picton in the middle of the night on Wednesday, and I was routed out at 4 A.M. on Thursday morning with the message that the Sheriff and the executioner were at the gaol, and that Woodgate was to be hung at 6 A.M. that morning. I went; the doctor, clergyman, and gaol officials on duty knew of it. The Government steamer arrived from Wellington soon after the execution was over, with another hangman sent specially, with a detective to take charge of the hangman. The steamer loft again directly, taking away the pair of hangmen to Wellington. My firm conviction is that Wood-gate was guilty of the crime charged against him, and he deserved his fate. He made no confession.When a feeling like this is manifested towards a punishment, it is high time it was abolished. It cannot last long. It is having the very reverse effect of that which was intended—it is bringing public sympathy towards the convict convicted of the most horrible of crimes; and it takes it away from the detestation which would ever be evinced towards the murderer. It is not only in our own country that this is the case. The following case is sent me from Sweden:—Baron Olivecrona writes that the tomb of one of the men executed in Norway in 1876 was, for some weeks after the execution, strewed with flowers every morning by the people, and the police were at last obliged to interfere to forbid this, as well as the erection of a monument to one of the murderers, who had made a deep impression on the assembled multitude by his brave and manly demeanour.Thus does capital punishment tend to render crime heroic, and to produce sympathy for the murderer rather than for his victim. I endeavoured last year to urge that fallible tribunals should not inflict, if it could be avoided, a sentence which could never be recalled; and I think I proved that sentences had been often passed on innocent persons. Let us now look at some of the sentences of last year. The Pall Mall Gazette of February 11, 1878, reports the following remarkable and instructive case:—A man in the northern part of the province of Rio Janeiro has confessed upon his 'deathbed' that he was the real author of the murder of a family of eight persons in 1852, for which a wealthy planter by name Motta Coqueiro, and three of his slaves were executed in 1856. The murder was one of peculiar atrocity, and the house in which the victims lived was set on fire after the crime had been committed. Suspicion having fixed itself on Motta Coquiero, he and 1243 three of his slaves supposed to be implicated were arrested and brought to trial. The evidence was very weak; but so strong was the feeling against the planter that the jury found him guilty, and the Court of Cassation at Rio confirmed the sentence of death. He and his friends strenuously asserted his innocence; and when it was found hopeless to obtain his acquittal, every possible effort was made to induce the Emperor to grant him a pardon. It is even said that sums amounting to 250,000 dollars were promised to per-sons around the Empress, to induce them to enlist her sympathies on behalf of the condemned man; and thus, by means of her intercession with the Emperor, to attain the object in view. All, however, was in vain. The Emperor was firm; the Empress declined to interfere; the Government sent a vessel of war to Macahe to prevent any attempt at rescue; and Motta Coqueiro and his three slaves were executed for a crime which it now turns out they never committed. The man who lately died acknowledged that he, assisted by some of his dependents, deliberately murdered all the inmates of the house, which they afterwards burned. The doubts which arose as to the justice of Motta Coqueiro's fate and of those who suffered with him, after their execution are supposed to have raised an uneasy feeling in the Emperor's mind; and he has since, it is stated, shown 'a great disinclination to allow sentences of death to be carried into effect.' The tardy confession of the real murderer is not likely to diminish his reluctance.Mr. Alfred J. Taylor, Librarian of the Tasmanian Public Library, Hobart Town, writes, under date April 28, 1877—The Rev. Julian T." Woods told me last year that within the previous 10 years—in the course of his ministration as a missionary in Australia—two persons on their deathbeds confessed themselves guilty of crimes for which others who were innocent had been executed.I also recently saw in The Times the following history:—REMISSION or SENTENCE.—The Home Secretary has remitted the sentence passed upon James Runnette, furnaceman, who was sentenced by the Whitehaven magistrates to three months' imprisonment for assaulting a policeman. Constable Black was taking another man into custody, when he was kicked. Runnette was among the crowd, and the constable and a sergeant said he was the man who kicked. After Runnette was imprisoned, his case was taken up by several persons; and Mr. Atler, solicitor, drew up affidavits of witnesses, and sent them to the Whitehaven magistrates. An informal inquiry was held, and the magistrates thought that if the evidence then heard had been tendered when the case came on, they would have given the prisoner the benefit of the doubt which it raised, and they advised the Home Secretary that the remainder of the sentence should be remitted. No blame is attached to the police."—[The Times, February 22, 1878.]At the Liverpool Summer Assizes, August, 1877, three men named Green- 1244 wood, Jackson, and Wild, were charged with rape on a fish-hawker's wife at Burnley, on July 1. They were found guilty, and sentenced by Mr. Justice Hawkins to 10 years' penal servitude each. In sentencing them, the Judge—reports The Daily News—expressed both a 'thorough approval' of the verdict, and a doubt whether he ought not to make the sentence 20 years.But, subsequently, circumstances came to light which so satisfactorily proved the innocence of all three men that, in November, after a quarter of a year's imprisonment, the Home Secretary granted them a "free pardon;" and they were released, with the "perfect concurrence" of Justice Hawkins, as he declared at the Northampton Assizes in November. But, Sir, perhaps no part of this subject has had so much general attention during the Recess as the manner in which the prerogative of mercy is exercised on behalf of the Crown by the Home Secretary. Sir, it is no longer the exercise of a prerogative, in the ordinary meaning of that term; but it is a fact that all death sentences are thus reviewed; and in the case of about one-half of all the death sentences, the law as regards capital punishment is virtually repealed. I have not yet got the statistics of 1877; but I think we may presume there is no change in this matter. Our Australasian Colonies are in even a worse condition than ourselves. In the 11 years from 1864 to 1874, out of 453 sentenced to death, 330 were reprieved and 123 hung. The detailed figures are as follows:—
So that nearly three-fourths of the criminals sentenced to death in the Australasian Colonies escaped the enforcement of the penalty prouounced! These figures apply to 11 years—1864 to 1874 inclusive. But, returning again to our Home Secretary and his duties, let us look for a moment at what is known as the Penge case. In this case, we had two men and two women tried and convicted of the wilful murder of the wife of one 1245 of the male convicts. The Jury found a verdict of guilty of wilful murder, but recommended the two female prisoners to mercy. Mr. Justice Hawkins used the following language in passing sentence:—
Sentenced to death. Hanged Reprieved. Tasmania 32 6 26 Victoria 96 38 58 Queensland 21 18 3 New South Wales 141 35 106 South Australia 13 4 9 New Zealand 150 22 128 Total 453 123 330Louis Adolphus Edmund Staunton, Patrick Llewellyn Staunton, Alice Rhodes—After a long, patient, painful, and anxious inquiry, you have been found guilty, by a jury of your country, of a crime so black and hideous, that I believe, in all the records of crime, it would be difficult to find its parallel. With a barbarity almost incredible, you plotted together to take, by cruel torture, the life of a poor, outraged, innocent woman; and, although you do not to-day stand convicted of the crime of having murdered her helpless child, I cannot help feeling satisfied within my own mind that you are guilty of the crime of contemplating and plotting and having brought about his Death…I do trust you will make the most of the short time that remains to you here on earth to attend to the ministrations of the reverend gentleman who, during your confinement, will render you all the assistance in his power to enable you to meet your God.It is no part of my case to discuss that trial or the sentence. It is part of my case, however, to show that Judges are fallible; that they are men, and may act with much unwisdom; and that a fallible Judge ought not to administer an irrevocable sentence. Well, Sir, a few days after this awful sentence, a Court of Inquiry was held at the Home Office. The sentence of death was not carried out. One prisoner was set at liberty, three were sent to penal servitude. These people were either guilty, or not guilty, of doing wilfully that which led to the death of that unfortunate woman. If they were not guilty, why are they in gaol? If you are going to have penal servitude for life for those who neglect their relations, your gaols will soon be full enough. If they were guilty, as declared by a Jury of their countrymen, why were they not hung? Because the Home Secretary dare not face public opinion on capital punishment, or his own feelings of right and wrong on the question. There never was a case which more completely showed the nature of the death penalty. The law was not taken into consideration. The prerogative of mercy was made to cover the retreat from a conviction which public opinion would not back, because of the character of the penalty; and, worse than this, the penalty changed public opinion from horror of the crime into 1246 sympathy with those who were manifestly guilty. It is impossible, Sir, that such a state of things is to be continued in a Constitutional country. Instead of being governed by wise and righteous laws, we shall be governed by the backward and forward flow of public opinion; and Her Majesty's prerogative of mercy will be the means by which the man in the street, or the writers in the Press, regulate the operation of the law! And now, Sir, I desire, with the permission of the House, to look at some of the arguments used by the hon. and learned Gentlemen (the Attorney and Solicitor General) in defending the continued use of the gallows. Both hon. and learned Gentlemen admitted it was difficult to de-bate this subject in the short space of time necessarily allotted to the debate. But my hon. and learned Friend (the Attorney General) admitted that the present law was not on a satisfactory footing. That, Sir, is admitting that it ought to be altered. We have, therefore, travelled to the half-way house together. Admit that it must be altered, and either my hon. and learned Friend must take his stand with the hon. and learned Baronet the Member for South Warwickshire, or he must proceed the whole journey with me. I believe that he will find the difficulties of the hon. and learned Baronet's Motion so great, that he would soon be led on to total abolition. The hon. and learned Gentleman remarked that the murderer had more time to prepare for death than his victim. The bearing of this upon the question I fail to see—it was hardly used as an argument. This is not a question of revenge; we all object to the slaughter of the victim; and what we want to do is to deter others from doing what the murderer has done, and to prevent the murderer again committing that offence. Then the hon. and learned Gentleman insisted—and quoted Shakspeare—that the highest penalty we could put before a man was forfeiture of his life. Sir, I can only point to the experience of facts—that the gallows is not a deterrent. To-day I have adduced new facts. The hon. and learned Gentleman denied that Judges and Juries were influenced in their action by a knowledge of the law. If he is not convinced by the facts I cited, I would ask him how he accounts 1247 for the fact that 14½ per cent of murderers are found insane, whilst insanity only affects 1 per cent of the rest of the criminal population? Or how can he account for the fact that out of 84 committals for murder in 1875, only 15 people reached the gallows; whereas, in any other criminal proceeding, about 65 would have paid the penalty awarded by law? The hon. and learned Gentle man then asked how many more murders would be committed if capital punishment were abolished?—and he alluded to the temptation to the robber and the ravisher to put away the witness and victim of his crime, knowing that the sentence for rape and murder would be alike. The reply to this is, that the sentence would not be the same. Penal servitude for life for rape is seldom heard of, and it would be subject to those regulations which now prevent it being actually a life sentence; whilst a life sentence for murder would be so in all senses in which the term can be used. Another argument is, that the abolition of the penalty has in other countries had the tendency to make life more sacred; and if those whose passions lead them into these crimes calculate consequences at all, they are more deterred by the certainty of penal servitude for life than they are by the death penalty, encompassed as it is with uncertainties. Then the hon. and learned Gentleman argued that, if capital punishment were abolished, it involved a revision of the whole scale of penalties enacted by the present law. But, Sir, this argument, also, perishes before the facts. About one-half of those now convicted of murder have this penalty attached to their crime, and no inconvenience has arisen from the fact. The number of those who are sentenced for life is very small, being as follows:—In 1871,4; 1872, 14; 1873, 8; 1874, 16; 1875, 16; 1876, 13. But, as I have already said, there is no difficulty in distinguishing between penal servitude for life and for a whole life. Now, Sir, I come to to the hon. and learned Solicitor General. The hon. and learned Gentleman had read—I think somewhat hastily—the speech of my excellent Friend, Mr. John D. Lewis, delivered when he was Member for Devonport. The hon. And learned Gentleman argued that in Tuscany the law had been altered and 1248 re-altered; that capital punishment had to be re-imposed; but, Sir, we have still the fact that since 1846 there has been no execution, and I am told no increase of homicidal crime. I have endeavoured to get the statistics, but have not fully succeeded. But, Sir, I established the fact that in Tuscany, without capital punishment, there is less murder than in the rest of Italy, in proportion to population. Then, Sir, the hon. and learned Gentleman touched on Portugal, and adopted a very curious line of argument—that we were not to compare Portugal with capital punishment to Portugal without capital punishment; but Portugal without capital punishment to England with. Did the hon. and learned Gentleman read the Roport of the Portuguese Committee of Legislation on this subject? It is as follows:—Before all things, and above all things, punishment ought to be reparable, seeing that absolute infallibility cannot be predicated as a quality inherent to human nature. The Judge may err, and does err; the jury may err, and do err; evidence may err, and does err; and it would be quite enough that there should only be liability to err, for it to be never right to condemn anyone to the punishment of death—that is, to a punishment that is completely irreparable. The legal murder of the innocent has been many times repeated. Sovereign equity and infinite impeccability are not essential inborn qualities in any human tribunal.The same Report gives the following statistics:—Portugal Report of Legislative Committee. In 1851, 278 homicides occurred; in 1852, 288; in 1853, 255; in 1854, 224; in 1855, 173; making a total, for the first five years, of 1,218. In 1856, 162 occurred; in 1857, 152; in 1858, 139; in 1859, 146; in 1860, 142; making a total, for the second five years, of 741. That is to say, the crime has decreased from 12 per cent to 5 per cent, as compared with the total amount of crime committed against persons. The fallacy of such an argument is so plain that I do not propose to occupy the attention of the House by its refutation. Then the hon. and learned Gentleman quoted the Canton of Freibourg, where capital punishment was abolished from 1848 to 1874, and re-imposed; but, Sir, it was only re-imposed for five months; and the hon. and learned Gentleman must have forgotten that, in 1874, it was again abolished in Preibourg and in the whole Swiss Federation. The facts are these— 1249No execution in Canton Freibourg since 1848–30 years. The penalty of death was abolished in 1848 in Freibourg. It was restored in 1874; but continued in re-imposition only for five months, owing to the abolition of capital punishment in all the Cantons of Switzerland by the new Federal Penal Code. During the five months of nominal re-imposition in 1874, no execution took place. The latest Returns official from Freibourg are for 1876–;7, when the total number of trials for homicidal crimes, and attempts to murder, and for infanticide, were seven; but 12 years previously, in 1864, they were six.The hon. and learned Gentleman sat down with these remarkable observations—This fear of death accompanied most men through all their lives; and if a criminal thought that a murder would be followed by the chance of his sudden death, without that hope of recon-ciling 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."—[3 Mansard, ccxxxiv. 1712.]Sir, it is a doctrine which I feel sure my right hon. Friend the Home Secretary will repudiate. I am one who fully believes in an overruling Providence; in a Being, by whose permission the Home Secretary discharges his onerous duties; by whose will the hon. and learned Gentleman sits in his place of honour and of trust; by whose act I, a humble Member of this House, have my right to be heard here—but the terrors of a future life are not entrusted to man; they are His and His alone. Sir, I have alluded to the able speech of my hon. Friend Mr. John D. Lewis on this subject; Mr. Lewis, like the hon. and learned Attorney General, wanted an alteration of the law. He, too, like the hon. and learned Attorney General, denied the hesitation of Judges and Juries. I think I have already proved my position in this matter; but the natural argument is enough—will not the feeling of dislike to a penalty always temper the feeling of duty? Mr. Lewis declared that in the United States of America there was no inclination to continue or increase the districts where there is no death penalty. Why, Sir, in the very year in which he spoke—1874—Illinois abolished capital punishment; and in 1876, Maine followed in the same line. The other arguments in Mr. Lewis's speech I have already replied to; they referred to lynching and the 1250 murder of gaolors. I have shown that the lynching belongs to the capital-punishment States—that prisoners did not murder their jailors. One other speech I must refer to, and that is that of the late Mr. J. S. Mill. I confess that his stand-point and mine, on all those things which regulate a man's dealings with his fellow-man, are so entirely different, that I cannot follow his argument. If I thought that a vicious man could be shot and buried as a vicious horse, or hung up by the neck and destroyed like an unsafe dog—and that that was the end of him—then I might, perchance, agree with Mr. Mill, who said of the murderer, "Blot him out of the fellowship of man and of the catalogue of the living." I should like, Sir, for a moment to show what is the position of other countries to this punishment. As regards the United States, the hon. Marvin H. Bovee, ex-Senator for Wisconsin, writes, November 23rd, 1877—We stand in this wise in the United States. There is total abolition of capital punishment in Michigan since 1846; Rhode Island, 1852; Wisconsin, 1853; Iowa, 1872; Maine, 1876.In the following States there is no capital punishment unless the jury unanimously recommend it—namely, in NewYork, Indiana, Illinois, Minnesota, Louisiana.In the following States, upon the conviction of a murderer, he is sent to the Penitentiary for one year prior to execution, after which he may be executed, upon the warrant of the Governor, it being optional with the Governor whether he will or will not issue the same. This is a practical abolition; for, so long as the criminal is well-disposed in the prison, the warrant is never issued. The following are the States maintaining said law:—Vermont, New Hampshire, Kansas.Mr. Bovee adds—Thus you will perceive that there are 'thirteen' States of the Union which have either unconditionally, or practically, abolished the gallows.The following is a general list of the other countries and States where capital punishment has been abolished or discontinued:—Tuscany (Italy), no execution since 1830.Russia. [For about 125 years, since the reign of the Empress Elizabeth, A.D. 1750, capital punishment has been abolished for all but political crimes, with the exception of a very few of the worst cases of murder. But these executions have been so rare that, practically, and generally speaking, it may be said that capital punishment has been abolished—and with good success too—in this vast Empire, for a century and a quarter.]1251Holland, totally abolished by law in 1870; but no executions since 1860.Switzerland, totally abolished 1874. [After the previous successful experiment of abolition in several cantons—namely, for twenty years in Neuchatel, seven years in Tessin, and live years in Zurich.]Portugal, no executions since 1846.Roumania, abolished in 1864.Belgium, no execution since 1863.Saxony, no execution since 1868.Oldonburgh, Nassau, Weimar, Wurtem-burgh, Baden, practical discontinuance of capital punishment since 1870.Prussia, practical, or at least general, discontinuance since 1870.Germany, high treason and murder of the first degree.In Austria, capital punishment has been, in the great majority of cases, discontinued; and, says M. Wahlburg (Imperial Councillor), 'the trade of the executioner is, here, in its last throes.'Official statistics in Sweden show that—The King of Sweden, following the humane example of his illustrious father, Oscar I., had for several years abandoned executions, the law remaining unaltered. The occurrence of several murders of peculiar atrocity, in 1875, caused an outcry for renewed executions, to which the King reluctantly yielded. But it appears that the actual statistics of murder in his Kingdom do not warrant any panic; for a Judge of the Supreme Court of Sweden, Baron Olive-crona, and the United States Ambassador at Stockholm, His Excellency C. C. Andrews, have forwarded to the Howard Association the following official Return of sentences of murder for the past ten years respectively (1867 to 1876) in Sweden—8, 9, 8, 15, 7, 7, 8, 11, 7, 13; and for Norway, for nine years (1867 to 1875, the latest issued)—2, 4, 0, 3, 1, 1, 4, 0, 4. The only executions in the above years were, in Sweden, 1 in 1872, and 2 in 1876; and for Norway 1 in 1868, and 3 in 1876.Now, Sir, I want to ask, in conclusion, is there any man bold enough to? say that, for the security of human life, the gallows are any longer a necessity? It is proved beyond all question that they are not any longer required for this, their main object. I repeat again, that our law, as it at present stands, is the most sanguinary in the great countries of the civilized world. You appointed a Committee of wise and able men 14 years ago to inquire into this subject—the only portion worth naming of all that they recommended you to do that you have carried out, is to strangle your convicts in a private enclosure before a few gaol officials and sensational reporters; and you made this change because this punishment, which is to convince the wicked of the sacredness of human life, was proved, when carried out in public, to be a miserable, an immoral, 1252 and a contaminating spectacle. Has there not been a very marked change, not only in the character of your penal laws, but in the character of the punishments they inflict? With an increasing population, and a better police, the convictions of crime have steadily diminished. Look at the pictures of your gaols as drawn by the able pen of the late Dr. Doran in his London under the Jacobites—read it in the annals of the Lives of Sir Fowell Buxton, Mrs. Fry, and Joseph John Gurney—picture what it will be under the able attentions of my right hon. Friend and his very able and assiduous Colleague—and I think that changes in law, changes in times, changes in public opinion alter these penalties. Ere long we shall have a much better classification of prisoners—a matter which will, in my humble opinion, soon bear its fruits in a diminution of crime. With classification, we shall have much more attention paid to the reformation of prisoners; and even the worst classes will come under the enlightened and blessed influence of those who will point them to the errors of their way. Sir, I have amongst the papers sent to me a letter from an English lady now visiting the United States, who is well acquainted with the state of our prisoners. She says she visited a convict prison at Indianapolis. An English matron is at the head of this. The building cost £20,000; it contains 200 prisoners and 52 convicts. This lady, after describing the manner in which individual influence is brought to bear upon the minds of the inmates, says she spoke to the convicts; after she left the room, she was told that four of these women were murderesses, who were there for life, but whose changed characters had a marked influence on the other inmates. Then, Sir, I think I may ask whether the day has not arrived when these more barbaric penalties should give way to more civilized ones; especially when, I think, it must be conceded that with the more civilized penalty, human life would be quite as secure; conviction would be more certain; and the penalty being more certain, it would be much more deterrent. The sometimes fatal error could not occur. Again, Sir, I would thank the House for having heard me. I resume my seat with the firm conviction that, however little my humble efforts may have contributed to that result, 1253 that if this Bill is not read a second time this day, the day is not far distant when a Bill for the abolition of capital punishment will be assented to within these walls. The hon. Gentleman concluded by moving the second reading of the Bill.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Pease.)
§ MR. GRANTHAM,
in rising to move that the Bill be read a second time that day six months, said, let it not be assumed that he was there to say anything in defence of the maintenance of the law in its present form without any alteration whatever. He held that some alteration in the law ought to be made; and he was surprised that, after the inquiries that were made, and the Report issued in 1864, and the subsequent Report issued—he thought, in 1874—the question had not been taken up in some definite form, and an attempt made to give effect to those Reports. But the House was now called upon to decide on a very different question from that involved in the Reports. It was now proposed that the punishment of death should be at once and for ever abolished. He could well understand that some minds, on abstract principles, would be in favour of abolishing capital punishment, because to them the aversion to take away the life that God had given, was so strongly impressed upon them as to override all other considerations; but the law of the land—and a law which had existed ever since this country had been subject to the law—ought not to be tampered with, except after the greatest consideration. He was sure the House would agree with him that before such an alteration was made, it behoved the advocates of it to bring forward conclusive arguments in its favour; but, so far, they had utterly failed to comply with this condition. He agreed that it was a question for public opinion; but if the hon. Member appealed to the country, he would find that public opinion was not ripe for the change he proposed, even if it ever would be. Of course, if they treated this as an abstract question, many men would be found naturally inclined to the side of mercy, desiring to save life in every way in their power; but he believed, if the matter were put to the vote of the people 1254 of this country, a large majority would decide against the abolition of the penalty of death. The reasons given and arguments used by the hon. Gentleman for the alteration proposed, seemed to be the best justification for the law as it stood. His hon. Friend-—if he understood him correctly—had admitted that, in certain cases, the State had a right to take away life; and, having admitted that, he ventured to say that in cases where a person had intentionally taken away the life of another, some argument ought to be brought forward to show that the State had not the right to take away his life. Indeed, the hon. Gentleman's argument had convinced him that in the extreme cases which sometimes unfortunately arose, the State was justified—nay, it was bound—to carry out the extreme sentence of the law. The hon. Gentleman's argument in favour of the abolition, because there was no chance of an appeal or a revocation of a sentence after death, where a mistake had been made, was answered by another argument that he used—namely, that only a small proportion of those sentenced to death were executed. [Mr. PEASE: One-half.] Well, this showed that there was no necessity for altering the law, because the care taken by the Home Secretary and the Judges was such that no one was executed who was not clearly shown to have been guilty of the crime calling for that penalty, and not a single instance could be found in this country in recent years of anyone having been executed wrongfully; although, in loss serious cases—as in the ease at Manchester—mistakes did sometimes occur. Objection was taken to the execution of the law on the ground that it seemed to be done on the principle of revenge. It was no more revenge than any other punishment was, and if punishment was to follow crime, then it was only a question of degree. Another argument was the alleged uncertainty of the law. He denied the alleged uncertainty as to the action of Juries; who, though he admitted they had often shown themselves slow to convict for infanticide, yet did not hesitate to do their duty in cases of murder from fear of the sentence being carried out. The verdict of the Jury in the Penge case told against the hon. Member's contention in regard to that; because there was a case of a Jury convicting under the practical ruling, and. 1255 certainly, approval of the Judge, when it was afterwards considered that there was no evidence against one of the condemned prisoners. [The hon. and learned Gentleman then referred to the opinions and experience of the Judges, as gathered from their evidence given before the Select Committee, and which was set out in the Reports on the subject.] As to the alternative of imprisonment for life, it should either be shown that the accused ought not to die, or that his incarceration for life was for the good of society. But, cui bono? What good could he do himself or society, immured in a prison? The argument for doing away with the punishment would be more difficult to meet if it were proposed to limit the period of confinement, that the offender might have some opportunity of making reparation to society or the friends of the murdered person. Admitting freely, however, that the subject required to be dealt with, he hoped it would be taken up by the Government before long in a general Act, in order that the liability to hanging for constructive murder might be taken off the Statute Books. With regard to the Welsh case, quoted by his hon. Friend, it only showed that a few carpenters in a certain town were opposed to capital punishment; and he had entirely failed to show that public opinion generally was in favour of its total abolition. With regard to the references which had been made to the law as it existed in former times, when sheep stealing and other offences of a less heinous nature than that of murder were punished with the penalty of death, he thought it would be found that none of the good and great men who advocated the mitigation of the law, as it then existed, were in favour of the proposal that the punishment of death should be altogether done away with. Bomilly, and' men of his time, advocated confining the punishment of death to the more serious offences; and, although the punishment of death did not stop these lighter offences, yet it was not the abolition of it which lessened their number, but the greater precaution taken by an improved system of police to preventcrimeand to apprehend criminals. As to the way in which the law might be altered so as to, as far as possible, meet the objections of his hon. Friend, he thought it was to be regretted that at 1256 present there was practically no appeal, in the ordinary sense, in the case of murder; for the Court of Criminal Appeal was only for decisions on questions of law raised by the Judge. He could not see why there should not be an appeal by right on all questions of law to a strong Court, as the Court of Appeal was at present constituted. He thought, also, there should be a right of appeal on questions of fact as well as on questions of law; and not, as at present, an appeal merely upon a matter of law in cases where the Judge had some doubt. In cases of such importance as of life and death, there should be an appeal to a Court, consisting of two or three Judges, and not so numerous as the Court for Crown Cases Reserved. On questions of law, let it be as of right; on questions of fact, let the prisoner apply for a rule Nisi in the first instance. There was one alteration he would like to see effected in the law at once, and that was, the definition of legal malice; and if that law was altered, but very little other alteration would be needed. Murder was defined by Sir James Stephen as being homicide with malice aforethought. The constructive interpretation of malice, however, was the intent to commit any felony whatsoever; so that if a man intended to commit a minor felony, and in doing so took away life, having no such intention, he would be guilty, in the eye of the law, of the crime of murder. That was too wide an interpretation; but, if it were altered, and in future were to be considered as "unjustifiable homicide from malice aforethought," there would, in his opinion, be no case for the abolition of capital punishment; and he should be glad to assist in making such an alteration as he had indicated; but to the entire abolition of capital punishment he could not assent. He begged to move the rejection of the Bill.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Grantham.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. O'SHAUGHNESSY
thought no argument had been shown by the hon. and learned Gentleman opposite (Mr. Grantham) why the proposal of the hon. 1257 Member for South Durham (Mr. Pease) should not be adopted, and capital punishment altogether abolished. He (Mr. O'Shaughnessy), however, agreed with the hon. and learned Gentleman in his opinion that there ought to be an appeal not only on points of law, but on points of fact. There was one point which deserved much consideration, and that was the standard to be set up for the measurement of punishment in cases of murder. The object and end of every punishment was, in the first instance, to deter others from following the example of the malefactor; and, in the second place, to endeavour to reform the malefactor himself. It was undeniable that capital punishment defeated the latter object, and it could be shown, he thought, that it did not effect the former. It was not likely that they would reform themselves; and believing, as he did, that it was the injustice and abuses of society that produced the malefactors, unless there was a paramount necessity shown for getting rid of an offender for the purpose of deterring others, he (Mr. O'Shaughnessy), for one, believed that they, as the governors of society, were bound, in the interests of civilization, not to alter the standard of our law, but to endeavour to reform criminals. There was another object which, whether consciously or unconsciously, undoubtedly weighed upon the human mind, and that was the spirit of retaliation. This was not admitted at all by law, but it very often weighed in considering the punishment of a malefactor. No one, however, pretended to defend that spirit, and it was only by a wish to repress crime that we should be guided. Now, was the punishment of death necessary for the reformation of criminals? If not, the infliction of such a punishment could only be justified by the spirit of retaliation. What was our experience as to the effect of the punishment of death in deterring persons from the commission of the crime of murder? The experience of this and other countries pointed out the result. Formerly we inflicted the punishment of death for many minor crimes. We had ceased to inflict that punishment, and such crimes had not increased in number. On the contrary, they had rather diminished. Now, what would be the effect of the removal of the punishment of death in cases of murder? The punish- 1258 ment of death had had no great effect in the case of minor offences, and what assurance had we that it would have any greater effect in deterring persons from the commission of the crime of murder? Other countries had abolished the punishment of death for murder, some by legislation and some by practice, and the result had not caused an increase in the number of murders in those countries; and the experience of our country and that of other countries did not negative the proposition of the hon. Member for South Durham. Now, with respect to the nature of the punishment, it had been spoken of as uncertain; and, in connection with that argument, he would say that the motives which led a man to steal or to commit burglary were generally deliberated on, while the temptation to murder was generally suddenly presented and given way to. If, however, the murderer was an intending criminal, he knew that there were many persons in the country who objected to capital punishment, and that he might count on having one person on the Jury who held that opinion—that even the Judge who tried him might, without knowing it, be influenced by that opinion—and that even if he were convicted, he would have as his final chance the inevitable Memorial to the Home Office. A good deal was talked about the expense of the Broadmoor Lunatic Asylum; but it was the very horror of this punishment of death which made Home Secretaries, Judges, and jurors so ready to admit the theory of insanity which had sent to that Asylum many criminals who were not at all insane. Something had been said in reference to the Penge ease. He regarded that case as the most melancholy example of our jurisprudence that could possibly be produced. Public opinion had been strong—perhaps unreasonably strong—against the accused parties; but, after sentence, that opinion took an opposite direction, and, if the accused had been put to death, they would have been executed as the result of a gust of indignation which afterwards changed, and declared that they did not deserve to suffer such a doom. Now there would not be that uncertainty if a minor punishment awaited the criminal. He did not consider the punishment of death such a strong deterrent as an imprisonment of 20 years would be. It was said 1259 that the punishment of death was necessary for the sanctity of human life. But he did not think that it had such an effect; and, so far from promoting the safety of human life, it influenced a man under strong temptations to commit offences. There was in the history of capital punishment one fact which bore on the face of it its own condemnation. What had been the result of public executions? A man was sometimes glorified if he defied the law. But, apart from that, in former days men were executed on the site of their crime, and proclamations were issued calling upon the populace to attend the ceremony in order that the scene might have a beneficial effect. But, so far from that being the case, these sights attracted a crowd of such a disgraceful character that an alteration was made in the law, and executions now took place in private instead of in public; and the fact was that such a deterrent had no real effect when accompanied by the scenes to which he had referred. There was also this anomaly in the law—that a man who said he objected to the punishment of death was allowed to stand aside and not serve as a juror; but thereby the law, in effect, said to him that his objection was a reasonable one. The Scriptures were sometimes relied on as an argument in favour of capital punishment; but all that they proved was that in certain cases and in certain stages of society there was the right to take away the lives of some of its members. The question in this case was whether it was wise and necessary to inflict the death penalty, which had been most largely practised in those days when society was most disorganized, when the laws were set at naught, and when anarchy prevailed. Now, he submitted that the experience of this country and of foreign countries proved that it was not necessary to do so. Was it not fair to say, when they found capital punishment receiving its fullest development in those terrible times, that society ought to look with great caution on the exercise of a penalty which took its origin from something very base and dangerous in our nature? No doubt the Old Testament encouraged capital punishment, and there could be no doubt that the New Testament did not forbid such punishment. But we had means of deterring from the commission of crime which did 1260 not exist in former days. He did not assert that capital punishment was forbidden by the Scriptures; but he submitted that they ought to hesitate, in the altered circumstances of the times, in carrying out such punishments. They ought to abandon entirely that spirit of retaliation which was taught to the community, because it was wrong from the philosophical and from the Christian point of view. They ought to test carefully the circumstances of the age under which they lived, and see whether, under those altered circumstances, the punishment of death was necessary for murder. The spirit of retaliation, which ought to be removed from their minds, had been at the root of much of their criminal experience; and, if they did this, they would come to the conclusion that no damage to the community would arise by putting aside capital punishment.
§ SIR GEORGE BOWYER
said, he was sure that everybody, inside the House or outside it, would be very happy if they could see their way to the abolition of capital punishment; but the question was, whether it was possible to abolish it with due regard to the safety of society and the preservation of human life. While he disliked the punishment as much as anyone, he admitted that that punishment could only be justified by necessity, and he believed that far too much sympathy had been wasted on murderers by members of the humanitarian school. During the past few months they had read with comparative indifference from day to day of the slaughter on the battle-field of thousands and thousands of brave and honourable soldiers; and yet people were greatly moved at the idea of hanging a man who had taken away the life of a fellow-creature. More money had been spent on the means of destroying human life than, he believed, on any other object or thing. Only the other day they heard of £7,000,000 sterling having been expended to obtain the best means of constructing ordnance. What did that mean but increasing the means of destroying human life? What a boon it would have been to thousands of families if the Chancellor of the Exchequer had that sum to apply to the reduction of taxation. In considering the question, they ought to disembarrass it of the humanitarian view, and look upon it as a question of practical politics and 1261 civil government. Those who advocated the abolition of capital punishment dealt largely in statistics; but what he complained of was, that they had not quoted any to prove that in those countries where punishment of death had been abolished there had been any diminution in the number of the cases of murder. He believed they could not produce them, as it was contrary to common sense to think that such could possibly be the result of such a measure. If they meant to argue that because murders did not cease altogether, that therefore capital punishment was ineffective and ought to be abolished, they might as well say that all punishments should be done away with, because, notwithstanding they were inflicted, crime still continued to exist. There was no doubt that capital punishment had a deterrent effect; and he well remembered going the evening before to the place of an execution—that of the Mannings—two notorious criminals—at Horsemonger Lane some years ago, and overhearing a man, evidently belonging to the dangerous classes, say to several others—"If it wasn't for this"—meaning hanging—"I knows many a chap as would think no more of taking a man's life than of eating his breakfast; "and everybody standing round him expressed their assent." He had no doubt himself that what the man said was perfectly correct, and to his mind it showed, at any rate, that the penalty of death had decidedly a deterrent effect. His hon. Friend opposite (Mr. Pease) had spoken of the times' when the punishment of death was inflicted for offences short of murder. In the days of George III. many men were hanged for forging £5 notes. Afterwards the punishment was reduced, and he confessed that, at the present time, forgery was much less frequent than when its commission was punished with death. But why was it reduced? Simply because Juries would not convict, and the Bank of England accordingly represented to the Government that they were not protected; it was necessary, therefore, to find some punishment for which convictions could be obtained. But Juries had not refused to convict for the crime of murder—indeed, in the Penge case, the Jury decided rather too hastily. There was no reason, therefore, why capital punishment should be 1262 abolished on these grounds. The whole law of the country with reference to homicide was in a most unsatisfactory state. It had departed from the old lines of the common law; and the doctrine of constructive malice, which was contrary to the spirit of jurisprudence in all other countries, had been introduced into it. He agreed with the hon. and learned Member for East Surrey (Mr. Grantham) that much was to be said in favour of the establishment of a Court of Appeal in cases where sentence of death had been passed; for, as Black-stone had pointed out, the present law granted an appeal in a miserable question of a small amount of money, but refused it when the life of a human being was at stake. He thought that if cases could be brought before such a Court, it would be much better than bringing them before the Home Secretary; and he considered it most unconstitutional that the Home Secretary should undertake to overrule and set aside the decisions of Courts of Law. This had been done in many cases. For instance, in the case of Regina v. Watson, the issue before the Jury was whether the prisoner was insane or not. The Jury found that he was sane, and that he was guilty of wilful murder. But the Home Secretary reversed the finding-of the Jury in substance, and decided that he was not guilty on the ground of insanity. But the Commissioners of Lunacy found him sane. The creation of a Court of Appeal would do away with the Home Secretary undertaking a duty which was no part of his office, and which he ought never to have been called upon to perform. At present that appeared to be a necessity; but the sooner other and Constitutional means were found to review the decisions pronounced in Courts of Criminal Law, and especially sentences of death, the better. He had himself introduced a Bill dealing with the subject, which would, he hoped, receive the careful consideration of the House. That Bill, by providing a Court of Appeal, would confine the Home Secretary to his Constitutional function of advising the Crown in the administration of the prerogative of mercy. With regard to the experience of other countries in which the death penalty had been abolished, they had at present no satisfactory data. It was 1263 true that capital punishment had been abolished in Tuscany by the Grand Duke Leopold; but there was no better country in which such an experiment could be made, as the inhabitants were a gentle and industrious people. He would, however, remind the House that a case occurred last year in which a man went to Florence for the purpose of murdering his wife. He was tried and convicted, and after his conviction he said that, knowing there was no punishment of death in Tuscany, he had taken his wife there in order that he might murder her. So that if the system of capital punishment had not been done away with there, the poor woman might have been living now. He believed that private executions had a more deterrent effect on criminals than public executions, because they were wanting in excitement—the murderer being hanged in the presence of a very few persons, instead of in the sight of a large crowd. He would only conclude by submitting that they did not possess sufficient statistical information to enable them to deal with the matter; and was of opinion that until that information was obtained, things ought to be allowed to remain as they were at present.
§ MR. LEEMAN
said, the question might be stated to narrow itself into one point—namely, had the punishment of death a deterrent effect? He (Mr. Leeman) had had some experience of criminal law for nearly half-a-century, and had long ago arrived at the conclusion that the punishment of death in cases of murder had not had that deterrent effect. He remembered 14 men being hurried to the scaffold behind the Castle of York in one day for rioting, and men were executed in large numbers at each assizes in his younger days for horse stealing, rape, forgery, and other crimes which were then punishable by death. Even those wholesale executions, however, had no deterrent effect; and he believed the same was the case with reference to the crime of murder. There had been many cases in which men ought to have been punished in some way, but who had escaped altogether. In the county of Durham, in the course of three recent years, 15 men had been executed, and where, he would ask, was the deterrent effect there? While it remained Juries 1264 would feel reluctant to convict men indicted for murder, and even weak-minded Judges would do all they could to favour the escape of the accused even when perhaps there could be little doubt of his guilt. If, then, they wanted to secure certainty of punishment, let them first of all abolish a system which created so much uncertainty as was attached to the punishment of death. The Motion certainly was intended to preserve the sanctity of human life; but it did not propose that murder should go unpunished, or that the criminals should be let loose again on society; but that those who took man's life should until the end of their own life pass all its remnant within the walls of a convict prison. The author of Penal Servitude, by One who has endured It, recommended that the punishment for murder should be penal servitude for life carried out to the bitter end. He (Mr. Leeman) held that there was much more certainty of deterring from murder by making imprisonment for life the punishment, with absolute certainty of the penalty being exacted, than by sentencing men and women to be hanged. By abolishing the punishment, the country would simply be going forward in the progressive march of civilization which began with the century. As had been stated already, the abolition of the death punishment had been going on in other countries for a good many years; and was it to be supposed that if that abolition had not been found successful, the death penalty would not have been revived? The Secretary of State had been glad to interfere when he possibly could on the ground of the prisoner being insane; but as he (Mr. Leeman) thought capital punishment should be done away with altogether, he should support the Bill.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
said, he had listened with much interest and pleasure to the speechin which the hon.Member for South Durham (Mr. Pease) moved the second reading of the Bill, mainly because he had dealt with the subject with calmness and argument. The matter was one of so much difficulty and nicety that it must be approached, if there was hope of profitable discussion, with dispassionate reason and inexorable logic rather than with elaborate rhetorical phrases. In- 1265 stead of that, however, in the course of the discussion, several hon. Members had drifted away from the real question—that of continuing the punishment of death—into a consideration of the present condition of the law relating to homicide in this country, as to whether it was capable of amendment or not. For himself, he had studied the question with great care, and he was constrained to admit that, in many respects, that law did not stand upon an altogether sound basis. There were many circumstances under which a man might be pronounced guilty of murder when he should not; and a great deal of difficulty and mischief had arisen from the over-free use in our law of the word "malice," and from the different constructions which had been put upon it. According to the strict law of England, as it now stood, if a man in the commission of a felony killed another he was guilty of murder, although the death might have been entirely accidental and unintentional. So, again, if a man resisted arrest, and, in endeavouring to escape, should trip up a constable in the lawful execution of his duty, and cause his death, that was technically murder. He himself thought that these were not cases of murder, and should not be held to be such by law. In his opinion, no man ought by the law of a civilized country to be punished capitally, unless he deliberately took away life, or did an act calculated to take away life, or intended to do grievous bodily harm, or was utterly indifferent to the consequences of his act, and death resulted in each case. Or, perhaps, he ought to add, cases in which the offender had taken away life by some act calculated to destroy life without absolutely intending to do so, but with absolute indifference whether it did or not. As for instance, if a man fired a barrel of gunpowder under a room full of people, he would be guilty of murder, although he might not intend to kill any particular individual. He (the Attorney General), however, did not think that any act of less atrocity should subject a man to a conviction for murder. The law, too, as regarded women charged with infanticide was in an unsatisfactory state; and convictions for murder could rarely be obtained against a woman who, suffering under great bodily and mental anguish, caused the death of her new-born child. It ought, therefore, to 1266 be largely modified, and it would be better if the law left it open to a Jury to find a verdict not of murder, but of some lesser character. He also agreed that the law was defective, and in an unsatisfactory state, in that it did not permit an appeal in criminal cases. It was certainly astounding that whereas a man who in a civil action had a verdict given against him for some £20 or £30 had a right to apply for a new trial, he should not have a similar right in a criminal case involving his life or his liberty, on the ground of a mistaken verdict. He thought it would be well if, subject to certain limitations imposed for the purpose of preventing the Courts being overwhelmed with such applications, a person convicted of a crime were permitted to apply, not merely for a reversal of his sentence on the ground of some error in law, but for a new trial on the ground that the verdict was not warranted by the evidence. These matters had all been alluded to by previous speakers; but they were beside the real question before the House, and he only alluded to them in order to say that they were all points with which the Government proposed to deal in the Bill of which he had given Notice. That measure would deal with many other points in our criminal law than those which he had indicated, and which related exclusively to the law of homicide. He now came to the question whether the punishment of death should be abolished or not. No doubt everyone would be delighted if it were possible for that punishment to be altogether put an end to; and a man must indeed be of a barbarous nature who would not rejoice at its abolition. The question, however, was, could that punishment, in the present state of society, be abolished, having a due regard to the interests of the community? He thought that it lay upon those who asserted it to establish the affirmative of that proposition. Doubtless hon. Members opposite who supported the Motion thought that they had established the correctness of that proposition; but it was not only what they thought, but what others, and what the country thought, that must be taken into consideration before the House could consent to legislate upon this difficult question. It was a question of the greatest possible difficulty, and one in which they could not derive any assistance from the 1267 reports and opinions of individual persons or bodies. Every man might have an opinion of his own; because, although the Commissions and Committees that had sat on the subject had examined Judges, gaolers, and theorists, any-thoughtful person could form as good an opinion as Judges, warders of prisons, or philanthropists. All must be driven to a conclusion on this subject by reason and by common sense, and not by theoretical opinions, based, perhaps, not upon reasonable data. And here he must protest against the argument which had been adduced by many hon. Members, based upon what occurred in times long gone by. He was aware that in past times our law was in a most disgraceful position, and seemed to have been written in letters of blood. Our present law, however, was not open to a similar charge; and while he did not for a moment justify the barbarity of that law—for he had as great an horror as anybody of the horrible scenes and executions of those times gone by—yet it was not because the penalty of death was inflicted formerly in cases where it should not have been applied, that it should be abolished in all cases in the present day. [Mr. JOHN BRIGHT: That penalty was ineffectual in former days.] And why had that penalty been ineffectual in former days? Because, as the right hon. Gentleman had contended last year, it was ineffectual when it was imposed for minor offences—such as sheep stealing, horse stealing, or simple larceny; because it was altogether uncertain; and, indeed the punishment as applied to those cases was so monstrous and was so appalling, that the Judges invented all kinds of technicalities in order to temper the barbarity of the law, and Juries could not be trusted to convict, and preferred to violate their oaths rather than to take part in what they conceived to be a judicial murder. Indeed, half the ambiguities that now existed in our criminal law arose from these very cases, and were introduced as a means of escape from this extreme punishment. That punishment, therefore, had no deterrent effect. It was, however, obvious to every thoughtful man that, for a punishment to be deterrent, it must be not only reasonable, but certain. If a man believed that he would probably escape punishment, however severe that punishment might be, he would not be 1268 deterred from committing crime. But not only was there uncertainty as to the results of trials, but there was great uncertainty as to the crime itself; and the hon. Member for South Durham said that, under the existing law of murder, there was a great improbability that persons charged with that offence would be convicted, and he alleged that was a great evil. He admitted that it was so in certain cases. For instance, cases of infanticide had their own difficulties; but there was what he might call, without being misunderstood, "constructive murder," or, rather, "constructive malice;" and, in such cases, there was great uncertainty in securing a conviction. But in cases of real murder there was no such uncertainty. He did not think that there was any great sympathy with murderers in this country. There was not the same sympathy felt now for an actual murderer as there formerly was for the man who was put upon his trial for his life for sheep stealing; and no one would think of quarrelling with a Judge or a jury who convicted a man of the crime of murder upon evidence which brought the offence home to him, inasmuch as in so doing they would only be discharging a duty which they were bound to perform. And would those who advocated the abolition of this punishment be satisfied if, in the event of a lighter punishment being substituted for it, Judges and Juries were content to accept less conclusive evidence of guilt before they convicted the persons charged? Let hon. Members consider this question from a philosophical point of view. He had been much struck by the able speech of the hon. Member for Limerick (Mr. O'Shaughnessy), who, however, took a different view of the question to that he (the Attorney General) took; but he would deal with it on the same philosophical principles. The hon. Member had certainly dealt with the subject upon sound philosophical principles when he said that the object of punishment was not retaliation nor vengeance. The object of punishment was two-fold—in the first place, it was to deter from the commission of crime; and next, and as a mere secondary consideration, it was to reform the criminal. In this country, as the law now stood, the punishment of death was inflicted simply for murder, and only 1269 for murder of a deliberate character, and high treason involving murder. He did not say that others could not be convicted of murder under any circumstances; but if so, and sentence of death was pronounced, the Home Secretary would take care it was not carried out. He did not say that was a satisfactory state of things. As matters now stood, punishment of death was inflicted only for deliberate, premeditated murder, or high treason with an intention to commit murder. Hon. Members would admit that murder was so terrible a crime that it should be checked by every possible means; and they had, therefore, to consider what punishment was the most deterrent in order to apply it to that offence. The question whether the punishment of death was the most deterrent known to the law was one of the greatest difficulty, he admitted, but it was one which those who advocated this Bill must be prepared to face; and they would have to establish that death was not the most deterrent punishment before they could ask the House to pass this measure. In his opinion, they had not established that proposition. The statistics of other countries would not help them at all in this matter, because it was impossible to ascertain with accuracy the exact facts upon which they were based, and for that reason they were not to be depended on. He was driven to the conclusion that the punishment of death was the most deterrent for two reasons. In the first place, he had a kind of intuition that it was the most deterrent because it was the most terrible. Putting aside the punishment of death by torture, which was out of the question in this, and ought not to be resorted to in any civilized country, the punishment of death was the most terrible and awful that could be conceived. It might possibly be, if we looked upon the subject from a mere physical point of view, that death was the lightest punishment of all, and that by it we might slip into oblivion without pain. As it was, however, everyone dreaded the pain, or the fancied pain, attendant upon death; but more terrible than anything else was its utter irrevocability, and the anticipations of what might come after it. He would not discuss the question upon those grounds; but still it was those matters which made this punishment in the eyes of most men the most dreadful, and con- 1270 sequently the most deterrent. It was, of course, impossible to tell how many people had been prevented from committing crime by the fear of the punishment of death; but intuition told him that that punishment was the most deterrent that could be inflicted. The hon. Member for South Durham had said that in the case of murders committed under overmastering feelings, such as jealousy or revenge, the punishment in question did not operate as a deterrent. But in such cases no punishment whatever would operate as a deterrent. There were, however, persons who were tempted to commit murder for the sake of gain, or in order to escape from being detected in crime; and, in both of those cases, the punishment would most certainly have a deterrent effect. For instance, how seldom were murders committed by habitual criminals—burglars, garotters, or robbers—and even by those who committed rape, murders were very rare indeed, although by doing so they might, perhaps, escape from all punishment? But what was it which deterred such criminals from committing a murder which would increase their chances of escape ten-fold, and remove the most damaging evidence against them? What but the fear of the punishment of death? Why was a man restrained from committing a murder? Was it on account of high moral considerations? It was idle to think so. As a rule, the criminal classes who had resort to crimes of violence would hesitate before proceeding to the higher crime of murder. The man who committed a robbery with violence was willing to run the risk of penal servitude, but he would not like to run the risk of punishment by death. There was only one other reason why he opposed this Bill, and that was because if it were passed there might be a necessity for revising and altering the whole scale of punishments. How was murder to be punished more heavily, if the penalty of death were to be abolished? Was the House prepared to say that all the penalties for crime were to be mitigated? Was murder to be put in the same category merely as robbery with violence? If it adopted the latter course, it would take away one of the securities for life; whilst if it said that the whole of the penalties in the scale should be mitigated, they would advocate a step to which the country was not prepared to 1271 assent. On the whole, therefore, he must oppose the measure.
MR. O'CONNOR POWER
said, he thought that the balance of evidence was in favour of the Bill of the hon. Member for South Durham (Mr. Pease). In illustration of that, he would simply refer to the case of the persons who were convicted at Manchester of the murder of police-sergeant Brett. In that case, three men were hung for murder; but there was not the slightest evidence to show that those persons knew they were committing that crime. All the evidence proved was, that those three men wished to release the prisoners who were then in custody from merely political sympathy. It was not shown that Messrs. Kelly and Deasy were criminals of any kind, and therefore the only bond of sympathy there could have been was a bond of a political character. In that case, there was no premeditation whatever of the act of murder, and the death of police-sergeant Brett was wholly the result of accident. But for all that three persons were sentenced to death, and seven others were sentenced to terms of penal servitude, and two others were sentenced to imprisonment for two years for the attack upon the prison van. It was said by the hon. and learned Gentleman (Mr. Grantham), who moved that the Bill be read a second time on that day six months, that Judges were particularly careful to reject tainted evidence, and to find out the exact truth. But in reference to this very case to which he (Mr. O'Connor Power) had alluded, which occurred in Manchester, what did they find? They found that not only were those three men sentenced to death, but that another person named Maguire was also found guilty, and sentenced to undergo capital punishment. There were eight witnesses who gave evidence against Maguire, and what did they find? They found that those eight witnesses committed perjury, because after the trial an alibi was proved. The case was so conclusive that the right hon. Gentleman the Secretary of State for War (Mr. Gathorne Hardy), who was at that time Secretary of State for the Home Department, pardoned Maguire. To show that the argument of the hon. and learned Member, who moved the rejection of this measure, was not sound, he might say that at the time of that trial 1272 the Attorney General of the day, in the case of Maguire, said there could be no doubt that the witnesses who had sworn to him had spoken honestly. Only a few weeks elapsed from the time of that statement being made, when it was shown to demonstration that those eight witnesses had spoken dishonestly. Not only was the Attorney General of the day imposed upon by the testimony of those witnesses, but he found from the words used by Mr. Justice Mellor that he was imposed upon also. Now, if the view of the then Attorney General and Mr. Justice Mellor had been carried out on that occasion, an innocent man would have been compelled to suffer the extreme penalty of the law on the scaffold, and would have been punished for a crime which it was afterwards proved he was entirely innocent of. He wished to make one further observation, and that was that he fully intended to vote for the second reading of the Bill; but, at the same time, he felt bound to say that if he were not convinced that we were shortly to have a very great reform in our Penal Acts, he should not vote for this measure. If he were not convinced of that, he should not give his vote in favour of the Bill; because he looked upon the system of penal servitude, as now carried out, as being a much more severe punishment than capital punishment. In illustration of that, the House would perhaps allow him to refer to the case of M'Carthy. M'Oarthy was sentenced to penal servitude, and ever since he had been in prison he had been dying a daily death. Indeed, he believed if M'Carthy had to choose between capital punishment and a life-long imprisonment he would choose the former. He knew the hon. Member for South Durham, who had introduced the measure to the House in so able a speech, was in favour of reform in our present penal-servitude laws, and therefore he had not the slightest hesitation in giving the hon. Gentleman his support on the Bill. He believed that capital punishment, which was strongly advocated on the ground that it acted as a very strong deterrent, had no such effect. At all events, it did not act sufficiently as a deterrent to prevent murder from being committed by those who had made up their minds to do so; and therefore he should support the Bill of the hon. Member for 1273 South Durham. As he stated before, he considered the balance of evidence was in favour of the Bill now before the House. Therefore he should give it his support. He believed that the time would very shortly arrive when great reforms would be made in our penal-servitude system, and he considered that the reform would not come before it was required. That question would shortly have to come before Parliament; and when it did, he hoped that it would be dealt with in a satisfactory manner. He had not the slightest hesitation in voting for the Bill of the hon. Member for South Durham; because he believed that capital punishment did not act as a deterrent sufficient to prevent the crime of murder, and therefore as capital punishment was only advocated as a deterrent, he thought it ought to be abolished.
§ MR. PEASE,
in reply, said, the fact that no hon. Member had expressed himself satisfied with the present state of the law justified the bringing forward of the Bill. With regard to the objection of the hon. and learned Attorney General, he would urge that if the Bill were adopted, there would not be the necessity for altering the scale of existing punishment which the hon. and learned Gentleman anticipated. His (Mr. Pease's) proposal would make the penalty for murder penal servitude for life absolutely. At present, penal servitude for life was often mitigated to less than a sentence of 20 years. He was glad to see the advance the question had made, for now no Member had ventured to defend the presentsystem. He thanked the Attorney General for his proposed measure—such an alteration would meet his views more than half-way. As soon as the crime of murder was divided into two degreees, it would be found that Judges and Juries would lean to convict for the crime of the second degree, and the office of the hangman would gradually become almost unknown.
§ GENERAL SHUTE
thought there could be no doubt that capital punishment deterred, though it could not reform. He had long been of opinion that capital punishment, as carried out in England particularly, was barbarous and brutal in the extreme. He was not sure that when carried out privately, it was not even more horrible than when carried out in public. The old theory of blood for blood was too savage for a civilized 1274 nation. It was perfectly true that capital punishment had been the cause of very great uncertainty of punishment. The object, however, should be the certainty rather than the severity of the punishment, and the fact that a conviction would ensure capital punishment had been the cause, in many instances, why the Jury gave a verdict of "Not guilty." In a conversation he had with the hon. Member for South Durham (Mr. Pease) not long ago with reference to the certainty of punishment, the hon. Member told him that he thought a sentence of penal servitude for life ought really to mean penal servitude for life; that penal servitude for 14 years ought to mean penal servitude for 14 years; and so on; and yet, to his surprise, he saw in the paper the other day that the hon. Member was one of those Gentlemen who advocated the reduction of the penal servitude awarded to one of the greatest offenders. As the hon. Member did not carry out his own theory as to the certainty of punishment, it might be that if capital punishment were abolished, certainty of punishment would not be secured by that abolition. He (General Shute) thought with regard to the Army and Navy, for the sake of discipline, we could not dispense with capital punishment. Treason, also, he thought ought to entail capital punishment. Some change in the law was necessary; but he could not vote for the total abolition of capital punishment, which he thought must still be resorted to in extreme cases.
§ Question put.
§ The House divided:—Ayes 64; Noes 263: Majority 199.—(Div. List, No. 47.)
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Second Reading put off for six months.