§ (Mr. J. W. Pease, Mr. Joseph Cowen, Mr. O'Shaughnessy, Dr. Cameron.)
§ SECOND READING.
§ Order for Second Reading read.
§ MR. J. W. PEASE
, in moving that the Bill be now read a second time, said, that he must, at the outset, express his most grateful thanks to the noble Earl the Secretary of State for Foreign Affairs, and to his hon. Friend the Under Secretary of State (Sir Charles W. Dilke), for the pains which they had taken in obtaining the facts as to the state of the law and the recent statistics from foreign countries. He hoped for a substantial majority in favour of the measure; but, in any event, those who had paid attention to the subject would see it had made a large and considerable advance during the last few years'. One point had been conceded from all quarters, and by both Parties in the House—namely, that the present position of our laws with respect to homicidal crime was most unsatisfactory; in no other country in the civilized world were the laws relating to capital punishment so backward and so unsatisfactory as our own. In 1038 1864 a Royal Commission was appointed I to inquire into the question, and that Commission consisted of Noblemen and Gentlemen in whose judgment on the subject the House had every reason to confide. Although the Members of the Commission were not united upon the question of capital punishment, he was informed that one-half of them were in favour of the abolition of capital punishment. But they were agreed that the crime of murder should be divided into two degrees, and they also desired the attention of the Government to other very important points, such as appeals in criminal cases, the exercise of the Royal Prerogative, and the nature and degree of insanity which was held to relieve an accused person from all responsibility. And yet those points had been left exactly where they were 16 years' ago. They also reported that the evidence showed a strong desire on the part of many persons to abolish capital punishment; but the only point of the Report which had received attention was that of the execution of the culprit within the walls of the prison. If it was admitted that the present state of the law was unsatisfactory, the next obvious conclusion was that it was high time that it was altered. His (Mr. Pease's) duty was to show that the division of murder into two degrees would hardly be worth attention, and human life would be as safe if capital punishment were abolished as it would if capital punishment were reserved only for murders of the first degree. Moralists defined the great objects of all punishment to be restitution, deterrence, and punishment. The question of restitution was too complicated a one to be practical at the present moment; but that of deterrence had a very important bearing on the subject before the House. Therefore, in reference to that question, it would be well to lay down the lines on which their judgments should be based, especially on the questions of deterrents and of punishments. In the words of Earl Russell, which he had quoted before in years' past, he would admit that under certain circumstances and certain conditions of society they might find it necessary to take human life. He would venture to quote Filangieri's Science of Legislation—Laws can have no other object in the punishment of crime, than to prevent the vicious 1039 from committing new attacks on society, and to remove from others a disposition to follow their example by the influence of their punishment. If by light penalties the laws could reach this result, they would never enact severe punishments. It would he preferable to enact those laws which less afflict the guilty, which create the greatest horror of crime, and most deter those who are disposed to commit it. In a word, the legislation ought not to go beyond the severity in punishment which is necessary to repress the vicious intentions which result in crime.But he maintained that capital punishment did not deter those criminally disposed from committing the crime of murder. For his part, he preferred those penalties which, while less affecting the guilty, excited the greatest horror of crime and tended most to deter those who were criminally disposed. In approaching the question of capital punishment they were met at the outset by a very important consideration. Ought a fallible tribunal to inflict a sentence it could not recall? He would here again quote from the Report of the Portuguese Committee of Legislation on the subject. It was 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 doath—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.Therefore, it could never be right to condemn a man to a punishment that was irrevocable. He would also quote the words of Oscar II., King of Sweden, who, when asked to release a life-prisoner for murder, said—I know the case. I will not release him—but neither will I lay my hand on Gods gift of life to him.If they looked at the question of the law, it was really appalling to see the number of people who were innocent of the crimes for which they were tried, but who had suffered the extreme penalty. In the evidence given before the Royal Commission the late Chief Baron Kelly stated that between the years' 1802 and 1840 there were as many as 22 persons sentenced to death who were afterwards proved to have been innocent 1040 of the crimes for which they were sentenced. There were numbers of such cases, and only the other day there was the case of Habron, at Manchester, who was sentenced to death but not hanged, the sentence being commuted to penal servitude for life for a murder of which he was afterwards found not to have been guilty. It was subsequently shown that the murder for which Habron was sentenced was committed by the murderer Peace; and he believed his right hon. and learned Friend the Secretary of State for the Home Department (Sir William Harcourt) was the means of giving compensation to the man for the term of imprisonment he suffered. During the present year the Secretary of State for the Home Department had to order the liberation of two men who had been proved to be innocent of crimes of which they had been convicted. These were not capital cases. There was a still more remarkable case at Liverpool in 1877, tried by Mr. Justice Hawkins, in which two men, named Jackson and Greenwood, were sentenced to 10 years' penal servitude, and on that occasion the learned Judge expressed his approval of the verdict. The men, however, received a free pardon when it was afterwards proved that they had not been guilty of the crime. In addition to those cases there must of necessity have been others where the men who suffered were probably innocent; and if it had not been for the exercise of the discretion invested in the Home Office the list would have been very largely swelled. Another argument in favour of the abolition of capital punishment was one on which some stress had been laid—namely, that in hanging a man it destroyed every chance of getting a clue to evidence by which large masses of crime might be detected, for in his grave there was often buried evidence useful to society as regarded the prevention of further crime. He had been struck in going through criminal statistics with the extreme youth of many of the men who had been tried and found guilty of murder. Between 1878 and 1881 he had made notes of no fewer than eight cases in which the average age of the persons was only 22 years'. They were as follows:—
AGE. Harry Rowles, Oxford, 1 April, 1878 26 John Briggs, Leicester, 18 July, 1879 18 Patrick Kearns, Liverpool, 13 Feb., 1880 21
He also thought that the manner of carrying out capital punishment was a question at which they must look. First of all, there was the question of the exclusion of reporters from executions within the walls of the prisons, as to which he sympathized with the right hon. Gentleman the late Secretary of State for the Home Department (Sir R. Assheton Cross), who had evidently had great difficulty on this subject. In the case of Cassidy, at Manchester, the right hon. Grentleman, on the one hand, declined to step out of his way in order to compel the Governor of the gaol to allow the newspaper reporters to witness the scene, and thereby circulate those sensational reports in the newspapers, which, in his opinion, did a great deal of harm; but, at the same time, on the other hand, he felt the difficulty of sentences being carried out, as it were, in a closed place or room, to which the public had no access whatever. Then, again, they were frequently attended with horrible and revolting circumstances, of which he would give the following instances, which he had abstracted from the public papers:—
W. Wright, Chelmsford, 4 Nov., 1880 23 W. Brownless, Durham, 15 Nov., 1880 22 Joseph Waller, Maidstone, Nov., 1880 24 Alhert Robinson, Derby, 28 Feb., 1881 20 Arthur "Watson.Manchester, May, 1881 27Mathew Atkinson, pitman, hung at Durham, 15th March, 1865. In a drunken fit murdered his wife. Tried before Mellor. The Chaplain states that from the hour of his sentence to his death he diligently applied himself to a preparation for the life to come. Took leave of the Under Sheriff, Chaplain, and Governor; confessed his crime; declared his hope of eternal life through the mercy of his Redeemer. The executioner proceeded with his work. "When the drop fell there was a rattle, a crash, a horrible thud, the criminal had disappeared, and from the gallows was seen the broken end of a rope dangling in the wind. The half-strangled man, conscious of all that had taken place, was below the drop bound hand-and-foot, his jaw horribly wrenched. Twenty-four minutes elapsed before the re-adjustments were made. The hangman was greeted with curses and execrations from the crowd. The only unmoved man was the poor criminal. He asked that the pinioning of his arms might be removed higher that he might clasp his hands in the attitude of devotion; this was complied with. The second hanging was successful.Brownless, executed at Durham, November 15, 1880. Here a delay, very slight, but awful to witness, took place. The lever which has to be drawn in order to let fall the drop proved stiff, and Marwood could not draw it; at length, 1042 with the assistance of a warder, it was moved. The drop was 8 feet 6 inches, being as much as the depth of the pit would allow. On looking down into the pit where the body hung we observed that the feet were within half-an-inch of the ground, the rope, which was about an inch and a-half thick, was imbedded over head in the neck, and blood was slowly trickling down the breast.September, 1873.—Conor, at Liverpool. The rope broke or slipped. The man ex-claimed—'What did they call this? Did they call this murder? '1877.—Johnson, at Leeds, by Askern. Rope broke.Even when matters proceeded smoothly it was difficult to conceive that anything could be more horrible for the prison authorities themselves and the Sheriff who had to attend than to be in the small enclosed space of the court or room with the man who was to be executed, and see the sentence of the law carried out. At Bristol, on one occasion, the condemned man had to be supported by two warders, and had to be given something to drink on the scaffold, otherwise he would have collapsed. These were things that would have affected and appalled the civilized world if they happened at St. Petersburg. This had happened several times in England, and these barbarisms were inherent to the system of a barbarous punishment, and could not be swept away so long as they chose to inflict the punishment. Then there was the revolting circumstance of pregnant women being carefully nursed in prison until the time had come when, after having given birth to a child, which was handed over to some benevolent lady, or, perhaps, to the parish authorities, they could be handed over to the hangman. [Sir WILLIAM HARCOURT: No, no!] He (Mr. Pease) could say that he remembered such a case occurring in the county of Durham—of a woman who had been nursed through her illness, and eventually executed. [Sir WILLIAM HARCOURT: In what year?] He had not the date with him; but he thought it was in 1866. However, as he had said, he perfectly well remembered the case, and the fact of a benevolent Peeress offering to take over the custody of the child. [Sir WILLIAM HARCOURT dissented.] Well, if he had made any mistake he would freely apologize; but he did not think so; and even if it had not been as he had stated, the law provided that it was possible, and surely it 1043 was high time that the law was altered. A large number of those who were hanged had, no doubt, committed the crimes for which they were punished while insane; and he would remind the House that a large number of them did not belong to the depraved or criminal classes of the community. The whole subject of capital punishment was affected by the question of insanity. Between madness and badness the distinction was difficult, and it was not easy to say where the line should be drawn. Notwithstanding the large number of murder cases in which insanity was recognized, it was scarcely probable that lunatics should not occasionally be executed. He would read the following notes of various cases:—HUNG.Charles O'Donnell, November 24, 1876; after marriage in an asylum. Insanity in his family.HUNG.1876.—Marks.—Schoolmaster said he was peculiar; his neighbours thought him mad; his employer thought him mad; known as 'mad' Marks.REPRIEVED.1877.—Treadaway.—Justice Lush called attention to his state of mind: Judge told him that he agreed with jury—'In that verdict I entirely concur.' Lush afterwards agreed with Cross.HUNG.1878.—Rowles, Oxford.—Gave himself up to police. As a child, wayward and wilful; as a man, conduct strange; attempted suicide after apprenticeship; Dr. Tuke called him insane; fit at police station; Judge read a letter which showed a wandering mind if not written for a purpose; jury advised mercy on account of provocation; said Devil tempted him. Kissed the rope.BROADMOOR.1879.—John Briggs, Leicester; 18 years' old. Jury recommended him to mercy on account of his youth (not insanity). The defence set up was insanity.MR. J. B. Thompson, Surgeon-General of the Prison for Scotland at Perth, writing in 1870, speaking of convicts generally, said that out of 5,432 prisoners no less than 673 were placed on his register as requiring treatment for mental condition, or 1 in 8. As to private executions, although he fully admitted they were much better than public executions, they were anything but a corroboration of the doctrine that men were hung in order to deter others from the crime of murder. If hanging was a great moral lesson to be taught to the people, was it to be so taught by having a small 1044 audience present? It was difficult to believe that a great moral lesson could be inculcated when the public saw nothing and, when reporters were excluded, were told nothing of what went on inside the prison walls. Public executions, on the other hand, had ends of their own, and so had sentimental descriptions of executions in the newspapers. The only logical course open to them, therefore, was to abolish executions altogether. The hon. and learned Gentleman the ex-Attorney General (Sir John Holker) pointed out, in a former discussion, that it was necessary to have gradations of punishment. No doubt that was so; but the argument against capital punishment remained unaffected; and he would at once admit that he should have entirely failed in his case if he could not prove that there was, or that there might be, a punishment equally deterrent of crime as that of hanging. In fact, the Government had provided a graduated scale of punishment for other crimes, and there would be no difficulty in doing so for persons convicted of homicidal crimes. He contended that all the statistics before them clearly proved that capital punishment was not a deterrent of murder. There were only 10 persons at present undergoing penal servitude for life, and it would be perfectly possible—once hanging was abolished—to establish a satisfactory scale of punishment. The States of the American Union, which had abolished capital punishment, had successfully met the difficulty, and recognized two degrees of murder. As to the non-deterrent character of hanging, he could quote important evidence in his favour from the Royal Commission; but had they not experience of their own that capital punishment, as administered in this country, was no deterrent? In the 20 years' between 1861 and 1880 there were 504 people convicted and sentenced to death in this country; but of these 228, or 46 per cent, were reprieved. The average number convicted was 25 a-year; the highest number was 34 in 1876, and the lowest 13 in 1871. In 1862 there were 28 convicted of murder, and in 1880, singularly enough, the number of convictions was the same, so that practically, with a large increase in the population, it might be said that, at the end of the 20 years', criminal homicide stood in very much the same 1045 position as it was at the beginning. The average of executions was 13.8 per annum for that period, the highest number being 22 in 1877, and the lowest only 4 in 1871; in 1862, 16 were hanged, and in 1880, 13. That showed, in his opinion, that with practically no increase in the number of executions there was no corresponding increase in the number of murders. For other crimes except murder the number of committals in which there were convictions was 76 per cent, but for murder only 49 per cent, of which 46 per cent were reprieved. Looking at the figures which had been placed before them in the many Returns to the House, no reasonable man could deny that the present law, as now carried out, never was a deterrent of capital crime. To make the law really deterrent they should make conviction secure, and determine that the punishment awarded should follow; but the practice in this country failed in those important elements—convictions were not secured, and the punishment was not carried out. Juries would do all they could to relieve themselves from giving a verdict of murder. In the debate of 1877, his right hon. and learned Friend (Sir William Harcourt) had well summed up this argument—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."—[3 Hansard, ccxxxiv. 1713.]But by far the strongest evidence which he could bring before the House against the maintenance of the death penalty was furnished by the Returns produced by the Foreign Office, giving the experience of those countries where it was little resorted to. There were those countries which still upheld capital punishment, those who had practically abolished it, and those who, having abolished it, had returned to it. In the North American Union, in nearly all the States, murder had been divided into two degrees, and in two of the States they had gone so far as to decide that no execution should take place until the sentence had been in the hands of the Governor for 12 month's, and then not without a distinct order from the Gover- 1046 nor. In Russia there had not been any capital punishment, except for political offences, since the day of the Empress Catherine; but he did not quote Russia, as a country in which 5,000 men and 9,337 women and children were banished in one year could afford to England no possible standard. France, Austria, Spain, and Hungary had abolished capital punishment to a greater extent than we had tried it. In France, in 10 years' up to 1878, only 93 were executed out of 1,241 condemned, or only 9 annually, whereas the English proportion would have been 68 annually, or 680 in the 10 years'. In Spain, in 10 years', 291 were sentenced, and 126 were executed, which was still under the English proportion. In Austria, out of 816 cases in the 10 years', 16 were executed, or 1.6 per annum; whilst the English proportion would have been 448 in 10 years', or 48 a-year instead of 1.6; so that capital punishment was almost abandoned. It was found, in Austria, that the largest number of executions in one year—namely, 4 in 1875, was followed in the following year by the largest number of homicidal crimes recorded—namely, 124. In Denmark, capital punishment had not been inflicted more than once or twice since 1863. Between 1866 and 1877, 120 persons were sentenced to death, but only one was executed; and this remission of capital sentences had not been followed by any increase of homicidal crime. With regard to the other countries—in Bavaria only 7 executions took place in 10 years', and in Sweden and Norway executions were practically abolished by Royal mandate. The most striking was the Kingdom of Prussia, which had practically abolished capital punishment, and the only person executed in that country in recent years' was HÖdel, who was convicted of an attempt on the life of the Emperor. With regard to Belgium the average of convicted persons was 32.9 for murder, and His Majesty declined to give his signature to any death warrant. In Portugal, Roumania, and the Kingdom of the Netherlands they had abolished capital punishment. As regarded the latter Kingdom, the statistics were remarkable. In the nine years' preceding the abolition, 78 persons were condemned to death, an average of 8.6 per annum. In the nine years' following the year during which the abolition became law. 1047 the condemned for the same crime amounted to only 47, or an average of 5.2 a-year. It had been also done away with in the States of Wisconsin, Michigan, Maine, and Rhode Island. There had been no increase of homicidal crime in these States, and the people considered themselves as secure as ever they were. A great deal had been said in the newspapers about the fact that Switzerland, after having abolished capital punishments, had returned to them again. In point of fact, however, in 1848 the Constitution abolished capital punishment for political crimes, and retained it for homicidal crimes. The new Constitution in 1874 abolished capital punishment in all the cantons; but in 1875 five of the cantons desired to reinstate the punishment, and some time after that a vote was taken, when it was decided to go back to the original state of the law by a majority of 19,000 out of 382,000 who voted on the question; but no execution had taken place since the law was altered. The new law came into force in 1879, and four out of the 29 cantons only had altered the law in favour of capital punishment, and no execution had taken place under that altered condition. There were five more cantons which seemed likely to alter the law; but still there were 16 which showed no sign of change. The average number of executions in England was only 13 per annum. Parliament and public opinion were both in favour of giving power to Judges and juries to distinguish between murders of the first and of the second class. If this power was given there would probably only be six or seven executions a-year, so that his proposed alteration of the law only had reference to six or seven criminals every year. That number was so small that he thought the House would see that it was not worth while to keep the rope and the hangman in order that he might hang six or seven persons a-year. Since the beginning of the present century our system of treating criminals had been greatly improved. He would ask permission to read one more extract. It was from the journal of Mr. Stephen Grellet, a distinguished prison philanthropist, who visited the prisons of Europe in the early part of the present century. Speaking of the women's prison in Newgate, he says— 1048The gaoler endeavoured to prevent my going there, representing them as so unruly and desperate that they would surely do me some mischief; he had endeavoured in vain to reduce them to order, and said he could not tie responsible for what they might do to me, concluding that the very least I might expect was to have my clothes torn off. "When I came to the small yard, the only accommodation for about 400 to 500 women, I found there some who immediately recognized me as having seen me in the Compters, and who appeared much pleased at my now coming here. They told me that no preparation had been made to receive me, but that they would immediately do what they could towards it. Owing to the darkness of the morning the prisoners had been unusually late in getting up, and many of them had not yet risen. They occupied two long rooms, where they slept in three tiers, some on the floor, and two tiers, and hammocks over one another. When I first entered the foulness of the air was almost insupportable, and everything that is base and depraved so strongly depicted on the faces of the women who stood crowded before me with looks of effrontery, boldness, and wantonnesss of expression, that, for awhile, my soul was greatly dismayed. I inquired of them if there were any other female prisoners in the place, and was told that several sick ones were upstairs. On going up, I was astonished beyond description at the mass of woe and misery I beheld. I found many very sick lying on the bare -floor, or on some old straw, having very scanty covering over them though it was quite cold; and there were several children, born in prison, among them, almost naked.Contrast the Newgate of 1812 with the order, decency, and classification of the Newgate of 1881. He would ask the House to take one more step in Criminal Law Reform, one without danger to the community, one which might even add to its safety; a step based on the satisfactory experience of other countries; a step which would do away with the horrors and dangers which must ever attend the carrying out of a death law, and a punishment which had ceased to be in accordance with the spirit of the age in which we lived, and which was contrary to the spirit of that Christianity in which he trusted most hon. Members of the House believed. It was for those reasons that he would conclude by moving the second reading of the Bill.
§ MR. R. N. FOWLER
said, that having supported the Bill years' ago, when it was brought in by his lamented Friend the late Member for Northampton (Mr. Gilpin), he desired to say a few words in favour of it on the present occasion. He had heard with some surprise the statement of his hon. Friend opposite (Mr. Pease) that the Press was excluded from executions, and that the admission of 1049 reporters rested with the Home Office. He (Mr. R. N. Fowler) happened to hold the office of Sheriff of London and Middlesex, and in that capacity it was his duty to be present at the execution of two men in New gate in December last. He was told that the admission of reporters rested with the Sheriff, and he gave directions that orders for admission should be sent to all daily papers published in London, though only three availed themselves of them. In his opinion, the Press should always be admitted to executions. If executions were to go on at all, they should not be conducted in a hole-and-corner fashion, and the public ought always to be represented by the reporters. The present state of the law was extremely unsatisfactory, and the Secretary of State for the Home Department had a very difficult task to perform in regard to persons convicted of murder and left for execution. He (Mr. R. N. Fowler) was sitting at the Old Bailey in 1879, when an American sailor was tried for murder. This man had come ashore, after being paid off, with a considerable sum of money in his pocket. He met a prostitute, who made him very drunk, and got all his money away from him. The man, under the influence of anger, stabbed the woman. There was no doubt about the offence; but the question was whether it was murder or manslaughter. The jury, without any recommendation to mercy, found the prisoner guilty of murder, and lie was executed. That seemed to him to be a case in which the Prerogative of the Crown might have been with advantage exercised, although, having formerly said in that House that he thought such questions should be left to the unfettered judgment of the Home Secretary, he did not like to say anything on the occasion. Representations were, however, made by the American Consul to his right hon. Friend the then Secretary of State for the Home Department (Sir R. Assheton Cross); but the right hon. Gentleman did not think proper to interfere. He (Mr. R. N. Fowler) mentioned that as a case which showed how difficult it was to discriminate in cases that were left for execution by the Judges. He did not believe that the infliction of the death punishment in that particular case did the smallest good. They imposed a very difficult task on the Judges and the Secretary of State for the 1050 Home Department by leaving it to them to decide whether the extreme penalty of the law should be carried out. He thought the time had come when in this country, at least, some other penalty might be substituted for the death punishment. There were countries, such as Sicily, where society was so organized that the extreme penalty might with advantage be retained. These were the countries in which the capital punishment was rarest, and yet where murder was most common; but in England the punishment of imprisonment might with advantage be substituted. In conclusion, the hon. Member said he had great pleasure in seconding the Motion for the second reading of the Bill.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. J. W. Pease.)
§ MR CROPPER
thought his hon. Friend the Member for South Durham. (Mr. J. W. Pease) had, by his facts and arguments, exhaustively proved his case. There was, however, one argument which his hon. Friend had left out. It seemed to him (Mr. Cropper) that when the sentence of death was carried into execution they often punished rather for the results of the crime than for the crime itself. The crime was often greatest in cases where there was no fatal result; and they often waited, for instance, to see whether a crime was murder or a savage assault. If the person who had been attacked chanced to recover, if he were in the hands of a successful doctor, or had special strength of constitution, the offence did not amount to murder, and yet the crime must have been the same on the part of the criminal. In such a case a man ought to be punished for his crime and not for its results. He would admit that the sentence of 20 years' penal servitude was as sad a one as that of death; but contended that in a civilized and Christian community like their own it was well gradually to do away with extraordinary occasions for exercising the extreme punishment of death by inflicting in its place the penalty of a long sentence of imprisonment.
§ MR. WARTON
said, the hon. Member who moved the second reading of the Bill (Mr. J. W. Pease) had mixed up with the dry question of capital punishment a number of other considerations not at all applicable to it. He 1051 (Mr. Warton) did not think this was a question as to the first or second degree of murder. He did not say how far such a classification would be right or wrong; but he thought the necessity for such a classification arose, to a great extent, from the circumstance that the Judges had explained away the old words "malice aforethought." They had also laid down the principle that all cases of homicide were primâ facie murder. Of course, it was impossible to dispute that Judge-made law, because it had been laid down so long; but he might observe that it was in conflict with the grander maxim of our law as to the presumption of innocence. Neither did he care for the trifling arguments that had been urged about statistics and expediency, or as to whether the punishment was deterrent. The question they had to deal with on the present occasion was whether it was right or wrong for the State to take human life under any circumstances. Dismissing all the petty considerations to which he had referred, at the present moment there were only three crimes punishable by death—namely, high treason, murder, and burning of the Queen's ships. Practically, therefore, this question was narrowed to the infliction of death for murder. The hon. Gentleman opposite ought to be met in the same serious spirit in which he had argued the matter. An appeal had been made to Christianity, and he (Mr. Warton) trusted they were all Christians; but it should be remembered that there had been three religious dispensations in this world, and that the contrast was not always between Christianity and the Judaic law. There was a time of great importance in the history of the human race when all the inhabitants of this world had been destroyed by the Flood except the chosen few in the Ark. A principle was then laid down which was far wider than any Judaic law. When the human race was starting again, so to speak, from Noah, God laid down the great principle—"Whoso sheddeth man's blood, by man shall his blood be shed." Men affected to be wiser than God, their Maker, who laid down that principle. For his own part, he was content with the Divine notion of human justice, as it was shown in these words at that most important crisis in j the history of our race. He did not care to argue this question from statis- 1052 tics, as he rested his case on the Divine command, which was older than Christianity. God was acquainted with the human heart, and He knew by what means men were deterred from crime. He witnessed a public execution some years' ago, and he believed the thousands who were present were really horrified by what they saw. If the punishment of death were abolished, a burglar who was surprised in the act of committing a burglary might, in order to effect his escape, be tempted to commit the additional crime of murder, thereby putting, it might be, the only evidence of his guilt out of the way; whereas, at present, he was deterred from doing so by the fear of being hanged. They were told that penal servitude for life was equally deterrent. If so, how did it happen that men convicted of murder were very anxious to receive that punishment instead of death, and that their friends besieged the Home Office, and did all they could to get the capital punishment commuted? The one punishment was intolerable, because it ended hope; the other was endurable, because it admitted hope. Moreover, the promoters of the Bill had forgotten to consider the case of warders and others in charge of prisons. If capital punishment were abolished, what additional punishment could be inflicted on a murderer who killed his warder? A murderer might kill 100 warders with impunity, for he would know he could not be subjected to any further punishment, because the penalty of death had been abolished from sentimental considerations. In their interests, then, the death penalty should not be abolished, for they would be exposed to constant danger in the event of such a step being taken.
§ MR. ANDERSON
said, that he had heard without any surprise the speech just made by the hon. and learned Member for Bridport (Mr. Warton). It was not surprising that he should go back to the time of Noah and the Ark, because he was really such an antediluvian Conservative in all things. He was, however, surprised that the hon. and learned Member should bring forward the Divine command which he had quoted as an ordinance binding in all future time, and one binding in particular on Christians, for that was not a very strong argument. Christians, for 1053 the most part, he (Mr. Anderson) thought, believed that their milder creed was intended to supersede that more ancient one. At all events, they had no proof that that command was intended to last in perpetuity. It might be a very suitable thing for the earlier state of their civilization to have a cruel ordinance of the kind, but yet be very unsuitable to the state of civilization they had now arrived at. The only other argument the hon. and learned Member had adduced was as regards the warders. He had asked for a solution of the question of what was to be done with a man who, having been imprisoned for life for murder, and having no fear of capital punishment, killed his warder. On that subject he (Mr. Anderson) might mention the case of Rhode Island, which had abolished the capital punishment in 1852, but had re-established it 20 years' after to the very limited extent of inflicting it on murderers who, while undergoing life imprisonment, murdered their keepers. The law in Rhode Island, therefore, was to carry out the death punishment not for one murder, but for two. That was some answer to the question of the hon. and learned Member. If it were absolutely necessary to meet the case referred to, the example of Rhode Island exactly did so. When the Returns mentioned by his hon. Friend (Mr. J. W. Pease) were produced to the House, he (Mr. Anderson) must say he rose from the perusal of them with the very painful conviction that among all civilized nations—that was, nations who enjoyed European civilization—this country was the least merciful to its prisoners. The strange fact was that those countries that had been most merciful had not shown any desire to go back in their legislation, and had not found that murders increased under such legislation. In Denmark, in 10 years' there had been 107 prosecutions for murder, 92 convictions, 21 death sentences, but only one execution. As regarded Germany, Lord Odo Russell had written to say that there had been only one execution there in 10 years'. In Sweden there had been only three executed in 10 years', because the King disliked capital punishment; and as for Belgium, the King absolutely would not sign a death warrant at all, and, therefore, there had not been a single execution in that country since he came to the Throne. It was 1054 quite true that the United States did retain capital punishment to a large extent; but they had a distinction, which we had not, of the different degrees of murder; and it appeared to him that that was a reform in their Criminal Law which they were at least ripe for, if they were not prepared to go to the full length which his hon. Friend proposed. He thought it would be worth while for the Government to pass a short Act to establish that distinction, without waiting for the codification of their Criminal Law, which was a great work, and could not be done quickly. It might be said that although they passed death sentences they did not carry them out; it was left to the Secretary of State for the Home Department to decide whether they would be carried out or not. That was, to his mind, an intensely unsatisfactory mode of dealing with the question, and he was very sure it must be as unsatisfactory to any right hon. Gentleman who had to do it. He remembered that a few years' ago there were two persons lying in Glasgow prison both under sentence of death at the same time. One of them the general public believed to be absolutely guilty of murder; the other was a boy whom the general public believed to be guilty of nothing more than manslaughter. Yet, strange to say, the man got a reprieve, whom everyone believed, to be guilty; while the poor boy, whom everyone believed to be comparatively innocent, was hanged. That was what happened under this unsatisfactory system of leaving it to the unfortunate Secretary of State to decide in these matters. Everybody believed that a great mistake had been made in the matter, and it might happen to occur again. As to the question of hanging being a deterrent from crime, he found that the accounts from some of the States where they had imprisonment for life really gave a most dreadful description of the effects of the latter punishment. There was no doubt that if it was given to a criminal to decide whether he would have the death sentence or imprisonment for life, he would choose the imprisonment, because life was sweet; but he believed that, in not a few cases, the prisoner would afterwards say that he had made a mistake. In the State of Wisconsin, in which the system of life imprisonment had prevailed since 1853, they spoke of the in- 1055 describable horrors and agony incident to the punishment, and that past experience told them that of all the young men in prison, one-half would be insane in 10 years', and the whole of them would be insane in less than 20 years'. If that was really a necessary result of imprisonment for life, it was a far more terrible punishment than the capital penalty. So great & punishment was it found to be that in some of the States they had changed it for long, but definite, terms of imprisonment; and in some States, such as Iowa and Illinois, they had gone further, and said that it was necessary to provide some relief, even to long definite terms, by giving to the prisoner whose conduct for one year was thoroughly good, one month's mitigation, for two years' good conduct, two month's mitigation, and so on, so that for six years' good conduct he got 21 months' mitigation, and for every subsequent good year he got no less than six month's struck off his term. That showed that in these States the people felt the necessity of giving some small glimmering of hope even to the worst of their criminals. He entirely gave his support to the Bill. He thought they had arrived at a time when they ought, if not to take the lead of civilized nations, not to be so thoroughly behind them as they now were in the treatment of their criminal classes. He believed that to modify their punishment in that way would have a wholesome effect on their juries. There would be a certainty of conviction in cases of murder that did not exist at present, from the unwillingness of juries to convict, and that certainty would be the best deterrent against crime.
§ SIR HENRY HOLLAND
said, he had not had the advantage of hearing the whole speech of the hon. Member who moved the second reading of the Bill (Mr. J. W. Pease), though he had heard sufficient to enable him to testify to the great ability of that speech; but the speech of the hon. Member for the City of London (Mr. R. N. Fowler), who seconded the Motion, pointed much more strongly to an alteration of the Criminal Law than to the abolition of this capital punishment. Now, upon that point he (Sir Henry Holland) entertained a very strong opinion. He thought that an alteration of the law of murder should be made at the earliest opportunity, and 1056 before any alteration of punishment. The degrees of murder should be carefully defined and a clear line drawn between murder and manslaughter. The capital punishment should only be attached to the first or highest degree of murder; and if this were done there would be no difficulty, even if there were now—which, however, he was not prepared to admit—in obtaining proper convictions. The hon. Member for Glasgow (Mr. Anderson) spoke of this as an increasing difficulty; but he (Sir Henry Holland), from his own observation, could not agree in that opinion. He believed juries, as a general rule, did their duties in these cases honestly and conscientiously. But if death was only inflicted in cases of first degree of murder public opinion would not be offended, and the punishment would be approved. But there was another point to be considered before capital punishment was abolished which he (Sir Henry Holland) ventured to think had not been sufficiently brought before the House. If death sentences were abolished the whole existing scale of punishments must be revised and modified. Murder, as the gravest offence, must receive the heaviest punishment. If the punishment of death was abolished, the only punishment that remained for murder was penal servitude for life. Now, if a man forged a will he was liable to that punishment. Would it be just and reasonable that he should suffer the same penalty as a murderer? There were also many other offences, far short of murder, to which the punishment or penal servitude for life was attached; and therefore, unless the whole scale of punishments was re-modelled, public opinion would not be satisfied. The question had been, and always would be, raised, whether the punishment of death was deterrent. He (Sir Henry Holland) could not bring himself to believe that it was not deterrent. It might not be so in cases where acts of violence were committed in the heat of sudden passion or violent jealousy; but he believed that it might prevent a burglar, for example, from committing a murder to prevent detection. Again, what protection would there be for prison officers if this extreme penalty were abolished? A man was condemned to penal servitude for life; what should hinder him from murdering a warder if no greater 1057 punishment could be inflicted on him for that offence? The hon. Member for Glasgow referred, on this point, to the legislation of Rhode Island, by which death was inflicted for the murder by a prisoner of a prison officer, although, in all other cases, the capital sentence had been abolished. But did not that fact show that death was deterrent? Why should such a law have been passed, except on the assumption—a very reasonable one—that the fear of death would prevent, and would alone prevent, the commission of these prison offences? The hon. Member for Glasgow argued that imprisonment for life was more deterrent than death, and he cited the case of some Wisconsin prisons, in which prisoners became insane in 10 years'. He did not state whether the horrors of this case arose from the condition of the prisons, or the treatment of the prisoners, or from the effects of solitary confinement. But he (Sir Henry Holland) could not accept that case, or the case of any foreign prisons, as proving the hon. Members opinion to hold good in this country. Here solitary confinement only lasted for nine month's, and for the rest of the term of imprisonment the convict worked in the company of other prisoners. Here, again, the cells, the food, the treatment generally of prisoners had been greatly improved; and, lastly, no convict really suffered penal servitude for life. As the House was well aware, where a man had been sentenced to penal servitude for life, his case was brought up before the Secretary of State for the Home Department after 20 years', and, in the great majority of cases, the prisoner was then released. There was, he believed, no instance of a life sentence being really worked out. In all these points, then, their prison system differed from the system adopted in some of the American States; and even admitting—which he was not prepared to do—that in the United States men would be found to prefer death to imprisonment, he did not believe that there were any such in this country. He would not now dwell upon what he considered a collateral question, though one of very great importance, whether the appeal to the Secretary of State against sentences of death should be continued. Successive Secretaries of State had expressed their dislike of the very grave and responsible—as well as painful— 1058 duties thus forced upon them; and he hoped, that either by the establishment of a Court of Appeal, or of some other tribunal, they might be relieved of that work. Moreover, however well they performed it, the result was not satisfactory to the public, who could not be made aware of the additional evidence and facts which were brought before the Secretary of State and influenced his decision. Upon the whole, he thought that an alteration of the Criminal Code should precede any alteration in punishments of the great importance proposed by this Bill; and he would not, therefore, give support to the second reading.
§ MR. MELLOR
said, he heartily agreed with those who thought that the law with regard to murder was most unsatisfactory. It included not only murder proper, or murder committed with malice aforethought, but all sorts of constructive murder; and, if it were not that Judges and juries had very much alleviated the severity of the law, they would have had a great deal of injustice perpetrated. He would have found it far more easy to bring his mind to bear on the question before the House if they had got before them the Revised Criminal Code, because then the various classes of constructive murder would have been done away with. At the same time, he must say he should experience much difficulty in supporting the Bill, for he felt that it was not easy to come to a full determination upon the whole question. If, in the future, persons were to be convicted of constructive murder, there would be a great deal to be said for the Bill; but, applying the best judgment he could to the matter, he thought there were classes of crime for which they must keep the punishment of death. For murder by poison, which was a peculiarly cruel and wicked crime, and for murder by explosions, in which the lives of unoffending persons were sacrificed, it was too early to say that the punishment of death ought to be abolished. Then, again, there was great difference between the legal and medical definition of insanity, and much difficulty arose from that fact in criminal cases; and he would be glad to see in the revision of our Criminal Code whether some better definition of insanity could not be given. The duty which devolved upon the Secretary of State for the Home Department also was even more em- 1059 barrassing than that which devolved upon either the Judge or the jury, as he had, under circumstances of great difficulty, to inquire and then judge for himself, without the opportunity or power of cross-examining witnesses, and so ascertaining the truth; at the same time, they must not forget that if there was an appeal on questions of fact to a Criminal Court of Appeal, even then it would be necessary to preserve this jurisdiction of the Home Secretary. In all cases he must be the last resort; fresh evidence might be discovered, or other circumstances brought to his knowledge after the determination of the appeal by the Court. In former days burglary was invariably punished by death, and the result was that the burglar tried to kill all who might give evidence of his crime. He had heard from high authorities that since the law with regard to burglary was altered, it had been found that this crime was committed with less sacrifice of human life. If that were so, it would be very difficult to say that the punishment of death ought to be swept away where people were killed in the night time and when taken at a disadvantage. These were some of the considerations which influenced his mind on this question. He was bound to say that he had great hesitation in deciding what course he should take on the subject, which was a most difficult one; but having had some experience of the working of the law he had come to the conclusion that he could not, at present at least, support the second reading of the Bill.
§ MR. FIRTH
said, he was glad the House was not to be led away with the suggestion of the hon. and learned Member for Bridport (Mr. Warton) in regard to the Scriptural bearing of the question. He (Mr. Firth) supposed that when the revised edition of the Old Testament was before them it would be found that in the text—"Whoso shed-deth mans blood by man shall his blood be shed," the words "by man" would be eliminated; and, therefore, the argument founded on this passage, and which had done very great service in the past, would entirely be lost. The two objects for which capital punishment was retained were the security of human life, and its deterrent effect on criminals. As to the first point, they could not judge of the question from the experience of 1060 their own country; but they were justified in testing the question by the analogy of other nations, and their experience had shown that the abolition of capital punishment had not resulted in adding anything to the security of human life. They could also test the question by historical analogy in this country. There were many classes of cases for which capital punishment had been abolished, and in regard to which it was prophesied that great danger would result from the abolition; but it had not been found, in fact, that greater insecurity to life had resulted. With respect to the deterrents to the criminal, it seemed to him, on the other hand, that the most terrible punishments that had been inflicted for offences had not proved a deterrent to the commission of those offences, and that the present law was an absolute encouragement to the criminal, and this would be found in the uncertainty of the punishment to be inflicted. The hon. Member for South Durham (Mr. J. W. Pease) had correctly stated that 76 per cent of ordinary committals ended in convictions; but that in cases of committals for murder the percentage was only 49. It was estimated that out of every 49, 14 were insane; therefore, out of every 1,000 persons committed, only 490 were convicted, and of this number 140 were held to be insane; this left 350, 154 of whom had their sentences commuted. The figure was thus reduced to 196, so that only 20 per cent of the people committed for murder were executed. That was the strongest possible evidence that capital punishment was a direct encouragement to the criminal, so far as the present state of the law was concerned. The Petition of the Bankers, presented in 1830, stated that the infliction of capital punishment for forgery encouraged the commission of the crime, because juries would not convict while the death penalty was attached to it. It seemed to him that the continuance of the present law was so serious a matter that it ought not to be maintained longer. It often led to what might be called "pious perjuries" of juries, who refused to convict lest the death punishment should follow. He quite agreed with his hon. and learned Friend who had just sat down (Mr. Mellor) that the state of the present law of murder was very unsatisfactory; and he 1061 believed there was a great deal of force in the suggestion which had been made, and with which he entirely agreed, that the murders should be classified. That would be a step in the right direction. In most cases of murder the evidence was circumstantial, and though there might be an apparent truthfulness in the proof, the prisoner might be entirely innocent. In such a state of things there was great danger in retaining an irrevocable punishment whereby it might be possible to hang a man who was entirely innocent of the offence with which he was charged. Further than that, he would be very glad to see a life penalty substituted for capital punishment. These were some of the grounds on which he hoped that capital punishment might be abolished, and, on the present occasion, he would be glad if the House would come to that decision, and that the rubrics of blood might be ended so far as England was concerned. From the experience of that and other countries, the result of the adoption of such a course would be to add to the security of human life in this country, and to maintain a stronger deterrent to the commission of offences in the future, and bring their law into a more complete harmony with the age in which they lived.
§ SIR EARDLEY WILMOT
said, he had heard the able and interesting speech of his hon. Friend the Member for South Durham (Mr. J. W. Pease) with much pleasure, and he thanked him for the references he had made to the various attempts which had been made to reform the Criminal Law in which he (Sir Eardley Wilmot) himself had taken part. Anyone who witnessed the prolonged sufferings in foreign prisons of convicts sentenced for life could not say much as to the humanity of criminal jurisprudence abroad, as compared with the severity of our own law. Severe, however, as was punishment in our own country, its severity had been greatly modified during the last half-century. The question which the House now had to look at was not the question of severity, but the deterrent effect of the punishment. There had been no more eminent law reformer than the late Sir Robert Peel: the valuable reforms he had introduced into the Criminal Law ought never to be forgotten. He (Sir Eardley Wilmot) had 1062 himself introduced measures in 1875 with the object of removing some of the anomalies and defects in our Penal Law; and also, subsequently, he had brought in a Bill embodying the unanimous recommendations of the Committee presided over by the Duke of Richmond, especially as to the necessity of classification of the crime of murder; but he did not meet from law reformers that amount of support he had expected. The Bill came on for second reading, but was "talked out" at a Wednesday Sitting. Next year he altered the character of the Bill, providing that there should be no conviction for murder, unless it was proved that there was a distinct design and purpose aforethought to take away the life of the man killed; but again it met a similar fate. Then came his Resolution, in 1877, that the state of the law as regarded homicide was unsatisfactory and required amendment; to which his hon. Friend the Member for South Durham moved an Amendment that capital punishment ought to be abolished. Both the Resolution and Amendment shared the same fate. He (Sir Eardley Wilmot) wished to see the law altered as regarded constructive murder, where a man, while in the commission of an illegal act, killed another man whom he had no intention to kill He also wished to see the law in regard to infanticide very much altered, for he could not see what use there was in pronouncing the death penalty upon an unhappy woman, when everyone in Court knew that it would not be carried out. At present juries frequently found concealment of birth, where the case was clearly one of murder, according to the evidence. In regard to the penalty itself, however, after listening to the arguments of his hon. Friend, he could not conscientiously agree with him that the time had arrived when they could safely abolish capital punishment. He well remembered a case where, 30 years' ago, a poor lad was executed at Winchester for a crime of which he was innocent, because the Secretary of State for the Home Department was at Balmoral when the chaplain of the gaol had hurried to London to relate the confession, made to him two nights before the execution, by one of the men who was to be executed with him, and who had compelled the boy, on. threat of death, to take part in the murder on board the ship where it occurred 1063 Ever since that time he (Sir Eardley Wilmot) had come to the conclusion that there ought to be some responsible tribunal to which all such cases might be referred as to a Court of Criminal Appeal. With regard to the Secretary of State, no one could perform his delicate and onerous duties in the revision of sentences in a better spirit than his right hon. and learned Friend; but, after all, he was a political and not a judicial functionary, and, therefore, not qualified to revise sentences; and, therefore, he (Sir Eardley Wilmot) had uniformly advocated the establishment of a Court of the kind he had referred to, in which the Secretary of State for the Home Department might be assisted by others of ability and experience. Nobody, he believed, would be more grateful for the establishment of such a Court than his right hon. and learned Friend himself. As regarded the main question, he hoped to live to see capital punishment abolished; but he was unable conscientiously to say that the time had arrived when that desirable alteration of the law could be made with due regard to the sanctity of human life and the safety of society.
§ MR. HOPWOOD
said, he was entirely in favour of considerable amendments in the law regarding murder. A Court of Appeal would also be an excellent thing, and he hoped to hear it discussed upon some future occasion; but the main question now was whether the punishment of death was so deterrent as to outweigh its other disadvantages. He would admit that the question was a difficult one; but the conclusion he had come to was that the punishment of death should be abolished. The punishment was inflicted for one of two reasons, either to requite those who had been guilty of causing death, or as a vengeance for the offence. There were some persons who argued that although, as a rule, capital punishment should be abolished, yet some forms of murder were so atrocious that it should be reserved for thorn. In that case the punishment was a system of vengeance. As the punishment was inflicted at the present time, they had the humiliating spectacle—certainly it was not an improving spectacle—of a poor wretch led out pinioned within a courtyard of a prison, in the presence of a few men brought together to watch the execu- 1064 tion of the law. That was intended to be an example to all people who might be inclined to disregard the sacredness of life; but it was said that the punishment deterred and frightened. If it frightened, it had better have been kept before the world. But it was now confessed that it did not frighten; and it was for that, among the other reasons, that it was executed in private. From the statistics read to-day it was perfectly plain to his mind that capital punishment did not deter. That was the conviction brought home to his mind, and he hoped, also, to that of many other hon. Members as well. Having said that much, he called upon the other side to get rid of the onus of showing that that punishment, so evidently barbarous in itself, must be maintained in the interests of human society, because, if they did not go that length, their case would fall. Although they had antiquity on their side, the barbarous nature of the punishment remained, and they must feel that it was one that ought to be got rid of, if it possibly could be, for the safety of society. They had antiquity on their side, no doubt; but there was the example of other countries which, though they did not abolish it absolutely, they abolished it practically. He hoped that by the debate which had taken place that day they would further strengthen what he knew were the wishes of each of the Secretaries of State with whom he had had any intercourse. They had no Court of Appeal to go to; but there was the Secretary of State for the Home Department, and he was always trammelled by the judgment of a Judge and the decision of a jury. With regard to the judgment of a jury, he (Mr. Hopwood) might say this—that, there had been a growing tendency by Judges to induce juries to come to verdicts in cases of murder by a process which was an invasion of the prerogative of a jury, they having been forced up to this point—"I tell you in point of law so and so." "I tell you the legal effect is so and so;"and—" Now, I tell you, you will be false to your oaths if you do not do so and so." Now he (Mr. Hopwood) always told juries—"It is your prerogative to say murder or manslaughter." It concerned us all that the punishment of death should not depend on whether a Secretary of State happened to be 1065 merciful or what was called firm, but on the view which the Legislature took of the continuance of the law. An objection that ought to be fatal to capital punishment was its irrevocability. It was common knowledge that the innocence of persons executed for murder had been frequently established; but the punishment had been inflicted and it was irrevocable. They all knew, too, that as soon as a sentence of murder was pronounced hundreds of persons, urged by various motives, would take up the cause of the prisoner, some by a nervous feeling of doubt as to the evidence, and do their utmost to save his life. He had himself been called upon more than once to appeal to the Secretary of State with that view. The matter spread, and numbers were kept in a state of suspense when the Secretary of States opinion was sought, and that was kept frequently till within a day or two of the time appointed for carrying out the sentence and the erection of the scaffold. Surely that had a depraving and injurious effect. When, however, as sometimes happened, the sentence was carried out on an innocent person, the due and proper administration of the law suffered from the effect produced by the deep sense of the injustice of the infliction. That was a thing that was very much to be deplored, and could not be obviated in the case of this punishment. He cordially supported the Motion for the second reading of the Bill.
§ MR. T. P. O'CONNOR
, in supporting the second reading of the Bill, said, that he had been present at several trials for murder, and his experience, and he thought the experience of everyone—Judge and jury, counsel for the prosecution and counsel for the defence, as well as nearly all the witnesses, including those persons whose relative had been murdered—was that a sort of sacred conspiracy was entered into for the purpose of finding out some means of escape for the accused. It had been demonstrated by several writers of authority that the most natural conclusion was that the deterrent effect of punishment on the human heart would be in exact proportion to its extremeness or severity. Nothing had been very conclusively proved that the horrible nature of the punishment had led to any diminution, but rather to the increase of a horrible 1066 crime. The punishment of death might be described as swift, horrible, and dramatic, and that of penal servitude for life as squalid, prolonged, and monotonous. The latter punishment, therefore, in his mind, was far more deterrent than the one which was swift in operation, and had something dramatic about it when being carried out, which often acted as an incentive to crime in morbid and sensitive minds. It this country people with great self-complacency contrasted the criminal procedure in England most favourably with that which prevailed in other countries, and he thought they did so with much injustice. The French system was far better than the English, because they could not judge of the criminality of the offence unless they knew something of the antecedents of the person by whom the crime had been committed. But, harsh as the law was there, it was nothing in point of severity to the law in Ireland. There was actually in existence in Ireland a White boy Act under which the penalty of death could be inflicted upon any 12 persons who met contrary to a proclamation of the Lord Lieutenant, and he was not sure that the present Government were not taking advantage of the provisions of such Acts in their dealings with the Irish people. His objection to capital punishment was that, in the true sense of the word, it was an outrage upon the sanctity of human life.
§ MR. ARTHUR ELLIOT
, in opposing the Bill, said, that whenever a man was sentenced to death, however great the crime might be, he thought it happened that some sort of agitation was got up to get the man off from the penalty which he had incurred. He knew how common it was for those who had been sitting in Court, and who had only half attended to the evidence, to say—"Here is a very hard case;" and a petition was got up and hawked about for signatures, asking the sentence to be commuted, in cases which were rightly and properly decided. There were considerable stir and trouble made, and the Home Office was asked to interfere, when really nothing of the kind was necessary. The system of appeal to the Secretary of State for the Home Department was chiefly unsatisfactory in consequence of the secrecy with which it was carried out. He hoped in time to see, whatever 1067 investigation was instituted, that that investigation was made public. The prerogative of the Secretary of State could only be on the side of mercy; and, therefore, he did not think that the argument that the Secretary of State was an unsatisfactory Judge was a real one. With regard to political criminals, it was shown that the death sentence was carried out in a large proportion of the worst class of murder—namely, 196 out of 1,000—and though juries were naturally unwilling to convict, yet, when a case was fully made out, they generally acted up to their responsibility. There was, no doubt, something about the punishment of death which had this characteristic—that it was impossible to discover a mistake after the sentence had been carried out. What they ought to do was to take all possible measures to secure themselves against mistakes; but do not let them abolish capital punishment, because where a great mistake had been committed in one case it was impossible to put it right again. The hon. Member opposite (Mr. T. P. O'Connor) had referred to the sanctity of human life. He (Mr. Elliot) thought that by inflicting a very severe punishment upon a man who showed no regard for life they thereby increased the respect for life. He did not believe that where the evidence left no doubt as to the guilt of the accused juries were deterred from convicting by any consideration as to the punishment that would follow, and in all cases they acted under a full sense of their great responsibility. Altogether, ho considered the arguments of the opponents of capital punishment were not well founded, and he hoped before long a strong effort would be made to pass the Criminal Code, of which so much was expected.
§ MR. NEWDEGATE
said, that the subject before the House was one, in the discussion of which hon. Members ought to restrain their sympathies and act in a judicial temper. If any feeling existed in the country in favour of the proposal before the House, it was to be attributed to the agitation of a class of persons whom he might describe as humanitarians." He himself had been subjected to threats by those "humanitarians," because, when in former years', and when this subject was last before the House, in 1872, he had represented to the House that, practically, this ex- 1068 periment had been tried in North Warwickshire in the direction of the proposal of the Bill, and the experiment had signally failed. The sentence of death for murder passed on a man, who in Birmingham deliberately shot his employer, had been commuted in 1867; again, in 1869, a man at Baxterley, near Atherstone, shot his wife, and the sentence of death was commuted; in 1872, a man was convicted of deliberate murder in Coventry; the sentence of death was commuted, and within a few days another murder was committed at no great distance. The "humanitarians" could not bear that statement of plain facts, and so they threatened him with the utmost penalty they could inflict—that was to turn him out of the representation of North Warwickshire. But he told them that threatened men lived long, and he had still the honour of representing North Warwickshire. The last instance he had cited was remarkable—that of the murder in Coventry. Through the interference of the humanitarians," the worthy Lord Lieutenant of the County of Warwick was induced to procure a remission of the sentence of death. What happened? Why, that within a little more than a week another murder was committed within eight miles of Coventry. This was in 1872. Hon. Members were, he knew, besieged by these "humanitarians." He had given his own experience, and he (Mr. Newdegate) asked whether, in the present state of the United Kingdom, and with recent experience in other parts of the world before the House, the present was a time peculiarly favourable for considering the question of abolishing capital punishment? Capital punishment was supposed not to have existed in Russia until the late Emperor was murdered; but that event seemed to have brought about a change in the administration of the law—perhaps in the law itself—in Russia. Was that an instance in favour of the proposal before the House? A great Empire had striven to maintain exemption from capital punishment; but it had been cured of the idea by the murder of the Emperor, and had been practically compelled to adopt the state of the law which exists in this country. The hon. and learned Member for Stockport (Mr. Hopwood) said that the great objection to the penalty of death was that it was 1069 irrevocable; but that, in his (Mr. Newdegates) opinion, constituted its merit. The injury to the person murdered was irrevocable: was it not then just that the penalty should be irrevocable also? Again, the hon. and learned Member adverted to various instances in which he, as a politician, had been called upon to interfere, and had interfered to procure the commutation of sentences. Did the House wish to establish the principle that the infliction of penalties on crime in this country was to depend on the exercise of political influence? Could there be anything worse or more vicious in principle than that the mitigation of punishment should depend upon the interference of political partizans? It was to guard against this danger that he (Mr. Newdegate), like many others, felt justified in resisting those natural feelings of benevolence and charity, which, he hoped, were as strong in him as in the hon. and learned Member for Stock-port. But he (Mr. Newdegate) held that such charity, such excessive sympathy for the criminal, was cruelty to the public in cases of murder. The people of this country were, he thanked God, known throughout the world, not only for their prompt resistance to injury and oppression, but also for their feelings of benevolence, especially towards each other; and if all these reasonings and subtleties which were produced in favour of the abolition of capital punishment were valid, and they were widely circulated, how came it that the English nation, which was so charitable, had retained this irrevocable penalty? It was notorious that those who argued against the continuance of the punishment of death were not only in a minority, but had always been so ever since the Constitutional form of government had existed in this country. Had their countrymen changed? Had the preachers of humanitarianism altered the temper of the people, or clouded their reasoning so far that they no longer believed in the efficacy and justice of capital punishment? It was well known that such was not the fact. Another consideration was—what punishment was to be substituted for death, in the event of this Bill passing? Perpetual imprisonment was suggested; but who believed in the possibility of maintaining that alternative under existing circumstances? There was a time when imprisonment for life 1070 was possible; but it was no longer so: It was possible so long as the system of transportation to penal settlements in the Colonies existed; but that existed no longer. The hon. Member for Gal-way (Mr. T. P. O'Connor) seemed to be in favour of some secondary punishment which, he seemed to think, might be made, as a deterrent from crime, as the punishment of death. The hon. Member was so Irish that nothing English was right, in his opinion. He was a Roman Catholic. There was once & famous tribunal connected with the Roman Catholic Church, which acted upon the principle or the pretence that it would not and did not inflict the penalty of death. The Inquisition substituted secondary punishments for that of death; Were these the secondary punishments which the hon. Member advocated? Let hon. Members read the records of the infamous institution to which he alluded; let them ask themselves whether they were prepared to assimilate the secondary penalties of this country to those to which the Inquisition owed its infamy? And to do that in the cause of humanity and charity He (Mr. Newdegate) had no love for capital punishment perse; but he deemed its infliction to be just—the just requital of an irrevocable crime. He deemed it politic that a few murderers should suffer for the benefit of the vast majority of the people; he believed that the experience of this country, where the administration of the law was by the whole civilized world acknowledged to be eminently charitable and humane, justified the retention of the punishment of death, because without it we could not have mitigated our secondary penalties—could not have maintained the charity and humanity which characterized the Criminal Code of the United Kingdom.
§ MR. SERJEANT SIMON
said, he wished to remind the hon. Member for North Warwickshire (Mr. Newdegate) that there was a time when almost every crime in the Criminal Code was punishable by death; but that, through the exertions of the "humanitarians," that state of things had been altered, and that with the best results. The humanitarians, too, abolished the Slave Trade; and had done many other things which added to the glory of the country, and what they now wished was to afford a man wrongfully convicted an oppor- 1071 tunity of proving his innocence. He hoped they would succeed in bringing about the reform for which they were now contending. Allusion had been made to the Scriptural warrant for this punishment. He would rather not enter into that question; but he would remind the hon. and learned Member who brought forward that argument (Mr. Warton) that the same Scriptural authority to which he referred might also be quoted as an authority against capital punishment, because the first murderer was not put to death. In the case of all crimes other than murder where innocence was established after conviction, although the person convicted could not be placed in exactly the same position he had formerly occupied, yet compensation might be given to him, and he had, at least, the consolation of knowing that his character was cleared; but the establishment of innocence in the case of a person executed for murder came too late—the punishment was irrevocable. In order to show the defective state of their Criminal Law he would ask the attention of hon. Members to the case of Edmund Galley, because in that case the stigma of murder had attached to him the greater part of a long life, and it was only removed when Galley was far advanced in years'. The question was a practical one. The object of punishment was not retribution, not simply to inflict pain; it was to reform the offender, and to deter others from offending. But they could not reform the criminal whom they had put to death; and he would ask whether the death punishment really acted as a deterrent? Not long ago a man was executed for one of the most cold-blooded murders ever committed in this country, and the very week after they heard of another cold-blooded murder not very far from the place where the other had been committed and the murderer had been executed. He (Mr. Serjeant Simon) had often been struck by the fact—and the experience of their Criminal Courts showed it—that some horrible crime expiated by death was followed soon after by others still more horrible and revolting. Punishment by death, therefore, was not deterrent. There was a great and growing distrust in the rightfulness of the punishment—at all events in its efficacy, and there was an inherent feeling in the 1072 human breast which revolted from the taking of the life even of a murderer. He ventured to say that no punishment should be inflicted which was irreversible, if it were discovered that a person had been wrongfully convicted, and the consequences of which could not be removed even in a mitigated form. The efficacy of punishment consisted in its certainty, not in its severity; and from his own experience he knew that juries were unwilling to convict, because they felt they were not infallible, and might be dooming an innocent man to death. He had been engaged professionally in trials in which convictions for murder ought to have been given, and would have been given, had it not been for the consequences which would follow; and there were scores of cases in which, through the intervention of the Home Office, the sentence of death had not been carried out. For these reasons he gave his hearty support to the Bill, believing that the sentence of death did not act as a deterrent. He thought, therefore, that it would be in the interests of society if the punishment of death were removed from the Statute Book. They would have justice administered, sentences carried out with greater certainty, and they would have convictions where they did not now obtain them. He looked to the greater certainty of convictions and of the punishment which would follow the abolition of capital punishment, as a surer deterrent than the punishment of hanging.
§ SIR WILLIAM HARCOURT
said, he was sure that every man in that House would believe that if there was any person who, from his situation, ought to desire that he could come to the conclusion that the principles of the Bill should be affirmed, it was the person who filled the Office he so unworthily held. There was no responsibility more oppressive than that which connected the Secretary of State in any way with the execution of the highest and most terrible penalty of the law. Of course, he stood in a somewhat different position from many hon. Members who had taken part in this debate. Each of them was entitled to take their share in forming public opinion on this matter, and, individually, he sympathized with those who were desirous of persuading the public in its favour; but, on the other hand, he, being in an official position, 1073 was not entitled to express a mere individual opinion, but was bound to have regard, in advising those Members of the House who might care at all to pay attention to his advice, as to the course it was expedient to take with reference to the Bill. Of course, those who represented the Executive Government, more especially in the Home Department, were obliged to have regard, not so much to the future of the question as to the present condition in which it stood, and the effect upon the public mind, and the tendency of public opinion with respect to the passing at this moment of a measure of that character. He only said that in order to explain the course he was now taking with reference to his opinions and votes on former occasions, and he was quite sure he would receive the fair and generous consideration of the House in the views he was about to express with respect to the Bill. He hoped he should not say anything at all inconsistent that day with the opinions which individually he had expressed on former occasions. He wanted, first of all, to point out to the House that in reference to the position of the Secretary of State for the Home Department in relation to this question, there had been some error on the part of some hon. Members who had spoken on the subject. They spoke as if the Secretary of State stood in the position of reviewing and reversing the sentence of the Judge and the finding of the jury. Now, that would be a very dangerous error to allow to pass. In this matter the Secretary of State was not a Court of Appeal, either as to the sentence of the Judge or as to the verdict settled by the jury. His province was of a different character. He had to advise the Crown in the exercise of the Prerogative of Mercy; and, therefore, he could never be regarded as a Court of Criminal Appeal. In reference to the observation of the hon. Member for North Warwickshire (Mr. Newdegate)—whom he had to thank for the very kind way in which he had spoken of himself—that he desired to relieve the Secretary of State from the responsibility of advising the Crown to exercise its Prerogative of Mercy, he could not conceive how, by means of any possible alteration of the law or by the establishment of any Court of Criminal Appeal, the Secretary of State could be relieved from 1074 that responsibility, a responsibility that must always rest upon him as a last resort. He entirely agreed with those who thought that the present state of their Criminal Law was indefensible, and ought not to be allowed to continue. The mere fact of statistics on the subject was conclusive, he thought, upon the point that it was not, and could not be, desirable that sentences of death should be pronounced in cases in the majority of which it was never intended they should be carried out. That such was the case was in itself a sufficient condemnation of the present law. Matters had certainly greatly improved in this respect during the last half century. Fifty years' ago, 1,384 sentences of death were passed in a single year, while only in 74 cases were those sentences carried into effect. That was a state of things which was disgraceful to any system of judicature. By the reforms introduced into their law since that time, however, with which everybody was familiar, that state of things had been happily altered. In the last year there were 28 capital convictions, and there were 13 executions. This fact, considering the population of this country, which had probably doubled since that time, was a condition of things at which he thought everybody must rejoice. There were, however, defects in the present state of the law, which he thought everybody must recognize. First of all, there was one which was technical—he doubted whether it was practical, at all events he did not recollect an instance in which it was brought into operation—whereby it was, no doubt, technically true that if a person committed a murder, not intending to kill, while engaged in a felonious act, he was liable to sentence of death. He, however, could not recollect a case of that kind which had taken place; but still he thought it desirable that such a defect should be removed from our law. Then there was a proposal of the Commission of 1866, by which it was proposed that two categories of murder should be established. It was also proposed that it should be left to the Judge and the jury to determine whether a particular homicide came within the one category or the other; or, what really amounted to the same thing, to have definitions in law that would have placed in what was called the first category murder, in the 1075 Second manslaughter, and to remove, in point of fact, from the name of murder a great many offences which the law of England now declared to be murder. They had, at present, 20 or 30 persons convicted every year, and not more than half of that number were executed. What was the reason for that? It was because a considerable number of these commuted cases were due to the fact that sentences were passed under circumstances which every Secretary of State and the public at large believed were such that capital punishment ought not to be executed, and it was not executed. Take one category in which, he thought, there had not been an execution now for 30 years'. He meant the cases of infanticide by women. These sentences were passed, probably every year, and yet for 30 years' no woman had been executed for that offence. It was most undesirable, he thought, to have capital sentences passed in cases where they did not intend to carry out the sentence of death. He observed that in a Criminal Code which was proposed two years' ago neither of these two important reforms was suggested. First of all, he did not find that homicide in the commission of a felony had been removed from the category of murder; and secondly, he did not find any provision for establishing what was proposed by the Commission—that was to say, that there should be two categories, one of aggravated murder, and the other which could be defined as murder technically by the present law of England. One remark had been made by the hon and learned Member for Bridport (Mr. Warton), in which he was very much disposed to concur, and that was that if, in old days, the English Judges had emphasized the words "malice aforethought" more than they did, we would not have required a statute to distinguish between the two categories of murder and manslaughter. But there was, no doubt, a long accumulation of legal decisions where the force of "malice aforethought" had been cut away, so that by the law of England there was technical murder where there was no forethought and no malice, and the malice aforethought was assumed for the act itself. Practically speaking, therefore, if they put the matter as it stood, the function of the Home Office now was very much to create these two cate- 1076 gories which the Commission sought to bring about. It really did distinguish between the murders which were those which ought to be treated as murders with "malice aforethought" from those which, according to the recommendation of the Commission, should be put in the second category. He entirely agreed that it was not desirable that this function of deciding the category should be devolved upon the Secretary of State by the law as it was now; and he should be extremely glad if power were given to the Judges and juries to distinguish between these acts of homicide, and determine upon them as to whether they should be the subject of capital punishment or not. That was, to a certain extent, done by the jury at present. The jury had the power to recommend mercy in cases where there was provocation, and which did not, in the law of England, amount to converting the crime of murder into manslaughter. In the practice of the Home Office, where the jury recommended mercy, the capital sentence was never executed; and, in point of fact, they had there the second category of the Commission given effect to. There was the case of difficulty, however, where the jury recommended mercy, and the Judge did not second the recommendation, and in that case it remained for the Secretary of State to form his own judgment on the subject. He must form it on his own responsibility, and with all the assistance he might receive from the sources he could have access to. Another circumstance which induced them to take persons convicted of murder out of the first and put them into the second category was the difficult question of insanity. That, of course, was one of the most painful and difficult matters connected with the question. There were cases, in his experience, where the evidence of insanity was not brought before the Judge and the jury, and that was frequently due to the poverty and want of resources among the class within which the murder was committed. If they had belonged to the wealthy class, they would have had the history of themselves and predecessors examined, and medical testimony adduced; but he need not say that in the Home Office inquiries in this connection were anxiously and carefully, and, on the whole, satisfactorily made. The Secretary of State had the power to send. 1077 medical men of experience to examine into the condition of the prisoner; and when these medical men reported, as they had done occasionally, that they did not regard the prisoner as responsible for his actions, either at the time of the commission of the offence, or subsequently, the capital sentence was not carried out. One of the circumstances referred to as an argument in favour of the Bill he could not attach the same weight to. The argument had been advanced by his hon. Friend (Mr. Pease) that it was probable that many innocent persons had been executed. His hon. Friend referred to statistics that belonged to an olden time—the time when there were 1,300 capital convictions in the course of a year, and these not all cases of a capital character. Why, of course, the investigations in those cases were much less careful and much less accurate than investigations to-day. Everybody knew that now there were far greater pains taken to investigate and not to pass unjust sentences, unless the evidence was of an overwhelming character. All he could say was that in his official experience, and speaking of the last 20 or 30 years', he doubted very much if any innocent person had been executed. He should not be doing his duty if he did not express his opinion very confidently on that subject. His hon. Friend had also referred to the youth of persons sentenced, and especially to the case of a lad of 20 years' of age being sentenced to capital punishment. That was the case. But it was well to remember the circumstances of the case. This youth (Robinson) of 20 beguiled a little girl of 9 years' of age into his house, and there was a suspicion that he violated her, and after wards cut her throat, because the penny with which he had enticed the girl was found in her hand when dead. That was not a case in which they could take into account the youth of the offender. They had to look at the sentiment of the community with reference to the nature of the offence, and he could not conceive an offence which carried with it so completely a voice of the community for a punishment like this than that case referred to. He ought to state to the House what were the statistics with reference to convictions and executions. There was before him a Return for the last 20 years'—from 1860. His hon. Friend the Member for South 1078 Durham had referred to the figures of averages; but he (Sir William Harcourt) thought that in cases of this kind, averages were apt rather to lead them astray. Now, the two first years' he had were 1860 and 1861. In 1860 there were 48 convictions and 12 executions, only a quarter of the convictions. In 1861 there were 50 convictions and 15 executions. Now, he reminded the House that, at that time, there was a still further alleviation of the severity of the law, a number of offences before regarded as capital being removed from that category. At once in the succeeding years' the convictions fell from 50 to 30; and they might say that since 1862, taking it generally, the convictions, speaking in round numbers, had been somewhere between 20 and 30, and the executions had been between 10 and 15, and they might say the same of what was likely to be the history in the present year. Those were the actual figures. Now, the question proposed by the Bill was, shall this punishment now be continued? On that question there was great difference of opinion. The great argument in favour of it was that it had a deterring influence. There were persons who held a strong opinion in the other direction, and, personally, his views were very much with those of his hon. Friend the Member for South Durham; but what they had to consider in dealing with a matter of this kind was, what was the general sentiment of the community with reference to the operation of this punishment? There might be a sentiment among themselves that they desired to have carried out, and on that subject he thought himself entitled to hold his own individual opinion. There was one argument used by his hon. Friend in favour of the Bill, which he (Sir William Harcourt) conceived was rather an argument against it. He said it was perfectly true that at the present time murders were not generally committed by the criminal class. If that was perfectly true, he thought it was reasonable to conclude from it that the criminal classes were deterred from committing murder by the fear of death, especially when they found that murder was committed by persons not habitually criminal, from motives of passion or insanity, or some motive separated from the habitual practice of crime. It was said that the 1079 prevention of crime was the only legitimate object of punishment. That might be true in theory, and he supposed few people would desire to controvert it, or make the opposite contention. But they must look at human nature as it was, and nobody could conceal from themselves the fact that, in the judgment of the community, the feeling of retribution did largely enter into the consideration of this punishment in this country. They might say, as philosophers, they inflicted it for the purposes of prevention; but the great mass of society looked at it also from the point of view of retribution. One hon. Gentleman said, in the course of the debate, that that must have been the opinion of the Commission, when they divided murder into two categories—those of the first and second degrees. It followed from that, that everybody would agree that a capital execution which shocked public opinion was one of the greatest evils to which society could possibly be exposed. The great object of the Commission was, by giving judge and jury the power of discriminating between the two classes of murder, to prevent such an evil as that occurring; and it was equally the object of the Secretary of State, in the execution of his functions, to prevent such an evil, and to prevent the technicalities of the law, or the particular circumstances of the case, from allowing a capital execution to take place under circumstances which would shock the public sentiment of the community. He should be extremely sorry to say that any Secretary of State, least of all the one who at present filled that Office, was able to discharge that duty to his own satisfaction or the satisfaction of the public. He should heartily welcome any alteration of the law which would alleviate this responsibility, either by the constitution of a Criminal Court of Appeal, or by giving the Judge and jury the power of making that discrimination between various classes of murder, which they did not now possess, and of which the responsibility was cast upon the Secretary of State. But when they came to the question of what they were to do in respect of the Bill, just as in past times it had been found possible to diminish, the number of cases in which capital penalties attached to offences, and that without injury to society, so, in the future, it might be possible to 1080 dispense with capital punishment altogether, without injury to society, any more than in the former cases. But he could not agree with the hon. and learned Member for Bridport (Mr. Warton), in thinking that this question was to be argued upon Biblical grounds at all. He thought it was to be argued entirely with reference to the question of convenience and expediency as regarded the safety of society. Every man would feel, of course, most anxious to dispense with this terrible penalty, so far as consistent with the security of society; but what they had to-day to consider was whether they would by their vote abolish the penalty of death, and whether that would be a judgment which would be approved of by the great and overwhelming majority of the people of this country. That was really the practical question they had to consider, and he did not think that was a course that could be taken with advantage until opinion in this country was so ripe that they could say that the House of Commons, in pronouncing that judgment, was really affirming the settled conviction of the people of this country. He did not believe public opinion was ripe for the abolition of the punishment at the present time; and, therefore, speaking on behalf of the Executive Government, he must record his vote against the second reading of the Bill.
§ SIR R. ASSHETON CROSS
said, that no one who had listened to the speech of the right hon. and learned Gentleman opposite could charge him with having acted inconsistently in this matter. He, therefore, believed he was expressing the entire feeling of the House when he said that the right hon. and learned Gentleman had shown how he might, with perfect consistency, wish public opinion to be formed in a certain direction in regard to this subject in favour of the views of the hon. Member for South Durham (Mr. Pease), and at the same time vote against the Bill, believing, as he did, that in the present unripe state of public opinion such a measure would practically have an evil effect on the country. The right hon. and learned Gentleman had, in his (Sir E. Assheton Cross's) opinion, most correctly stated what were the true functions of a Secretary of State in this matter. That they were very delicate functions no one could deny, and that they were most painful 1081 functions for any officer of State to perform they were all agreed; and he was equally certain that the House of Commons and the country would always look to the action of the present Secretary of State with the same favourable disposition in reviewing his acts which was extended to himself (Sir R. Assheton Cross) when he was Secretary of State, and also to his Predecessors. For his own part, he was most thankful for the generous way in which the people had regarded the manner in which he had exercised that function. He quite agreed that it would be extremely wise that the law with respect to murder should be considered, and that those three or four categories which had been alluded to in the course of the discussion, and to two of which the right hon. and learned Gentleman had alluded, should be clearly defined by statute. He (Sir R. Assheton Cross) was very favourably disposed to the formation of a Court of Appeal with regard to capital cases—he did not say in all cases—provided the cases could be speedily disposed of, because he was sure that the country would not allow a man to remain in prison under sentence of death unless the appeal was heard very quickly; but whatever Court of Appeal they established, in his opinion the Secretary of State should have nothing to do with that Court. It had been suggested that he could help the Court; but they must get rid of the Courts of Law before they approached the Secretary of State in any way. When they had got their Court of Appeal there must, from the necessity of the case, remain the Secretary of State as the ultimate Court, because it was that official who alone could advise the Crown in regard to the exercise of the Prerogative of Mercy; but if they first defined what real murder was, and then added a Court of Appeal, he believed that the great gain, in the first place, would be that by an alteration of the law they would get rid of nine-tenths of the cases that came before the Secretary of State; and, in the next place, if they had a Court of Appeal he thought they would also get rid of the other tenth; and, therefore, the Secretary of State, although they could not absolutely relieve him of his functions altogether, would be practically relieved of them. With regard to a case that had been referred to in the course of the debate, he could 1082 not understand how it could possibly have arisen in any case that because the Secretary of State for the Home Department happened to be in Scotland the matter could not have been laid before a Secretary of State in London.
§ SIR EARDLEY WILMOT
said, the circumstance referred to was stated in all the newspapers at the time, and it occurred many years' ago.
§ SIR R. ASSHETON CROSS
said, he was not now questioning the fact; he only said it was remarkable that the persons interested in the case did not apply to the Secretary of State who was in London. Any one of the Principal Secretaries of State who happened to be in London, if an application had been made to him, would, no doubt, have attended to it. He agreed with the right hon. and learned Gentleman when he said he did not believe that, at least within recent experience, any person, had been unjustly executed. It was a source of sincere satisfaction to him (Sir R. Assheton Cross) that, in regard to the man Habron, who afterwards received a pardon, he had thought when it came before him that there was so much doubt about the case that the man ought not to be executed. Although he should like very much to see capital punishment done away with altogether, he did not see that it was right to do away with it at the present moment. He believed that it had a very strong deterrent effect, and he wished to quote a sentence from a speech made in that House by his Predecessor in. Office, in which he entirely agreed. Lord Aberdare said—I believe the punishment of death to be a very powerful deterrent, and to say that it does not deter all criminals is no answer whatever. Those who are best acquainted with the criminal classes are of opinion that there are many of them on whom the punishment of death exercises a very powerful influence, and that they are prevented by the fear of death alone from committing the most atrocious crimes.He agreed in his Lordships opinion that the reason why the criminal classes did not commit murders was through fear of the punishment which would follow. He thought it was only fair and just to the present Secretary of State, having filled the Office himself, to say what he had done; and he thought that the right hon. and learned Gentleman had truly stated what were the facts with regard to the matter.
§ MR. SPEAKER
, intervening, said, that as no Amendment had been moved the hon. Member was not entitled to make a second speech.
§ Question put.
§ The House divided:—Ayes 79; Noes 175: Majority 96.1085
|Ainsworth, D.||M'Carthy, J.|
|Anderson, G.||M'Laren, C. B. B.|
|Armitstead, G.||Maxwell-Heron, J.|
|Arnold, A.||O'Connor, T. P.|
|Balfour, Sir G.||O'Conor, D. M.|
|Barclay, J. W.||O'Shaughnessy, R.|
|Barran, J.||O'Sullivan, W. H.|
|Biggar, J. G.||Paget, T. T.|
|Blennerhassett, R.P.||Palmer, C. M.|
|Borlase, W. C.||Palmer, J. H.|
|Briggs, W. E.||Parnell, C. S.|
|Bright, rt. hon. J.||Pease, A.|
|Burt, T.||Pender, J.|
|Butt, C. P.||Potter, T. B.|
|Caine, W. S.||Reid, R. T.|
|Cameron, C.||Rendel, S.|
|Cart wright, W. C.||Richard, H.|
|Collings, J.||Richardson, J. N.|
|Corbet, W. J.||Shield, H.|
|Cowen, J.||Simon, Serjeant J.|
|Cropper, J.||Storey, S.|
|Daly, J.||Sullivan, A. M.|
|Dodds, J.||Sullivan, T. D.|
|Edwards, P.||Summers, W.|
|Ferguson, R.||Taylor, P. A.|
|Finigan, J. L.||Thomasson, J. P.|
|Firth, J. F. B.||Thompson, T. C.|
|Forster, Sir C.||Villiers, rt. hon. C. P.|
|Fowler, W.||Waterlow, Sir S.|
|Fry, T.||Waugh, E.|
|Gourley, E. T.||Williams, B. T.|
|Hopwood, C. H.||Williams, S. C. E|
|Inderwick, F. A.||Willis, W.|
|James, C.||Willyams, E. W. B.|
|James, W. H.||Wilson, I.|
|Lawson, Sir W.||Woodall, W.|
|Leake, R.||Fowler, R. N.|
|Leamy, E.||Pease, J.|
|Leatham, E. A.|
|Acland, Sir T. D.||Blaekburne, Col. J. I.|
|Archdale, W. H.||Bolton, J. C.|
|Ashmead-Bartlett, E.||Boord, T. W.|
|Balfour, A. J.||Brodrick, hon. W. St. J. F.|
|Balfour, J. B.|
|Barne, Col. F. St. J. N.||Brooks, W. C.|
|Barnes, A.||Brown, A. H.|
|Barttelot, Sir W. B.||Burrell, Sir W. W|
|Bass, A.||Buszard, M. C.|
|Beach, W. W. B.||Campbell, R. F. F.|
|Bective, Earl of||Campbell- Bannerman, H.|
|Bellingham, A. H.|
|Beresford, G. de la P.||Cavendish, Lord F, C.|
|Chitty,.J. W.||Kennaway, Sir J. H.|
|Churchill, Lord R.||Kingscote. Col. R. N. F.|
|Clifford, C. C.||Kinnear, J.|
|Clive, Col. hon. G. W.||Knightley, Sir R.|
|Close, M. C.||Laing, S.|
|Coddington, W.||Lawrence, W.|
|Colebrooke, Sir T. E.||Leatham, W. H.|
|Collins. E.||Lee, Major V.|
|Collins, T.||Levett, T. J.|
|Cotes, C. C.||Litton, E. F.|
|Courtney, L. H.||Lloyd, M.|
|Cowan, J.||Long, W. H.|
|Creyke, R.||Lowther, hon. W.|
|Crichton, Viscount||Lubbock, Sir J.|
|Cross, rt. hon. Sir R. A.||Lusk, Sir A.|
|Crum, A.||Lyons, R. D.|
|Cubitt, rt. hon. G.||Mackie, R. B.|
|Dalrvmple, C.||Mackintosh, C. F.|
|Davenport, H. T.||M'Arthur, A.|
|Davenport, W. B.||M'Garel-Hogg, Sir J.|
|Davey, H.||M Lagan, P.|
|Dilke, A. W.||Mappin, F. T.|
|Dodson, rt. hon. J. G.||Marjoribanks, Sir D. C|
|Duff; rt. hon. M. E. G.||Marjoribanks, E.|
|Duff, R. W.||Massey, rt. hon. W. N.|
|Dundas, hon. J. C.||Matheson, A.|
|Ecroyd, W. F.||Maxwell, Sir H. E.|
|Elliot, G. W.||Milbank, F. A.|
|Elliot, hon. A. R. D.||Monk, C. J.|
|Emlvn, Viscount||Moreton, Lord|
|Errington, G.||Morgan, rt. hn. G. O.|
|Evans, T.W.||Moss, R.|
|Ewing, A. O.||Murray, C. J.|
|Farquharson, Dr. R.||Newdegate, C. N.|
|Fawcett, rt. hon. H.||Newport, Viscount|
|Feilden, Major- General R. J.||Nicholson, W. N.|
|Noel, rt. hon. G. J.|
|Fenwick-Bisset, M.||O'Donoghue, The|
|Ffolkes, Sir W. H. B.||Onslow, D.|
|Fitzmaurice, Lord E.||O'Shea, W. H.|
|Flover, J,||Peek, Sir H. W.|
|Foljambe, C. G. S.||Pell, A.|
|Forester, C. T. W.||Percy, Earl|
|Foster, W. H.||Playfair, rt. hon. L.|
|Fremantle, hon. T. F.||Portman, hn. W. H. B.|
|Gibson, rt. hon. E.||Powell, W.|
|Givan, J.||Price, Captain G. E.|
|Gladstone, H. J.||Puleston, J. H.|
|Gladstone. W. H.||Ralli, P.|
|Goldnev, Sir G.||Ramsay, J.|
|Gorst, J. E.||Ridley, Sir M. W.|
|Grant, A.||Ross, C. C.|
|Grant, Sir G. M.||Rylands, P.|
|Greene, E.||St. Aubyn, W. M.|
|Guest, M. J.||Samuelson, H.|
|Halsey, T. F.||Scott, M. D.|
|Hamilton, Lord C. J.||Seely, C. (Lincoln)|
|Harcourt, rt. hon. Sir W. G. V. V.||Severne, J. E.|
|Sheridan, H. B.|
|Havter, Sir A. D.||Smith, rt. hon. W. H.|
|Healy, T. M.||Stafford, Marquess of|
|Heneagc, E.||Stanhope, hon. E.|
|Herschell, Sir F.||Stanton, W. J.|
|Holland, Sir H. T.||Story-Maskelyne, M. H.|
|Holms, W.||Talbot, C. R. M.|
|Hope, rt hn. A. J. B. B.||Thynne, Lord H. F.|
|Howard, E. S.||Tollemache, hn. W. F.|
|Howard, G. J.||Vivian, H. H.|
|Hubbard, rt. hon. J.||Walrond, Col. W. H.|
|James, Sir H.||Walter, J.|
|Jardine, R.||Warburton, P. E.|
|Jenkins, D. J.||Warton, C. N.|
|Johnson, W. M.||Wedderburn, Sir D.|
|Welby-Gregory, Sir W.||Wortley, C. B. Stuart-|
|Whitley, E.||Wroughton, P.|
|Wilmot, Sir J. E.||Grosvenor, Lord R.|
|Winn, R.||Kensington, Lord|