HC Deb 10 May 1882 vol 269 cc382-400

Order for Second Reading read.


, in moving that the Bill be now read a second time, said, he had, on previous occasions, brought forward Bills or Motions providing for the total abolition of capital punishment summarily and at once; but anyone who had listened to the debates that had taken place must feel, as he had felt, that the subject had been fully and fairly discussed, and that right hon. and hon. Members on both sides of the House had debated it in a way that was satisfactory; he therefore felt it was no longer of much use, in the present state of feeling, both in and out of the House, to occupy the time of the House in trying to pass a Bill for the total and immediate repeal of capital punishment. If he had not, some months ago, made up his mind with respect to what he ought to do, he thought the circumstances which had been alluded to that day would be much against the object he then had in view. When a Colleague whose loss they so much deplored was removed from their midst, not by the ordinary laws of nature, but by a most cold-blooded and ferocious murder, they felt more or less staggered, and they felt that whatever was the greatest punishment the State could inflict upon the murderers ought to be inflicted. It was not for him to discuss at present whether the death penalty was the greatest the law could inflict, or whether the deterrent effect was greater of capital punishment or of imprisonment for life, for he believed that the House and the public out-of-doors would, in the present circumstances, be utterly disinclined at that moment to look calmly or quietly on any proposal for the total abolition of the punishment of death. He therefore threw on one side, at once, those arguments with which he was most familiar, applying to the total abolition of capital punishment; and he wished to confine himself to that view which was taken by those on whose opinion the public would place great confidence—namely, what was the best step for the country to take with respect to the present law. In the debate of 1881, it was agreed pretty clearly on both sides of the House that murder, as at present defined by the law, and decided upon by Judges, could be divided into murder of two degrees. Murder of the first degree was intended originally to be confined to actual premeditated murder—that was literally with deliberate malice prepense and aforethought. He thought that that definition, which had become—as was said by the hon. and learned Member for Bridport (Mr. Warton) during the debate last year—very much whittled away in recent times, should be clearly laid down. He had for this purpose endeavoured most strictly to confine the provisions of his Bill to the recommendations of the Report of the Commission which sat in 1866. If the crime of murder could be divided into those two degrees, in the one category would be placed all cases in which the Secretary of State for the Home Department would now be likely to decline to recommend the exercise of the Prerogative of Mercy, and the other category would consist of those crimes in connection with which the Prerogative of Mercy would, in the existing state of things, be undoubtedly exercised. This division of murder into murder of the first and murder of the second degree was strongly recommended in the Report of the Commissioners appointed some years ago to inquire into the subject of capital punishment; and it had been attended with satisfactory results in many of the older States of North America and in several of the Continental States. If the division which he advocated in connection with the crime of murder were agreed to, an important question would have to be decided—namely, to whom should be given the right of determining to which category of murder each individual crime belonged; to the Judge or to the jury. He had heard it debated with very great force that, as a discretionary power was given to a Judge to modify penalties, it might safely be left in his hands to modify the sentence to such penal servitude as he might think best in lieu of the penalty of death; but he believed if it were left in the hands of the Judges it would not be satisfactory to the public nor to the House. He was inclined to share the views of Sir George Grey, who argued, in the course of the proceedings of the Capital Punishment Commission, that if it were left to the jury to say whether a crime was of the first or of the second degree, the question of sentence would no more be placed in the hands of the jury than it was under the existing system, in accordance with which a jury could find a verdict of manslaughter instead of a verdict of murder. A Judge was not infallible, and the doctrine of infallibility would not apply to a Judge any more than it did to a jury; but if his Bill found favour with the House, it would very much simplify the action of the Judges, and would also very much simplify and aid the action of the Home Secretary. The Bill provided that every person convicted of murder in the first degree should be liable to the punishment of death; and that every person convicted of murder in the second degree should be liable to penal servitude, or imprisonment for any term permitted by law. He also proposed that on every trial for murder it should be left to the jury to find whether the person accused was guilty in the first or second degree. It was not a new experiment, having been tried in many countries abroad; and he thought there would be no doubt that if his Bill passed it would relieve the right hon. and learned Gentleman the Home Secretary from something like nine-tenths of the cases that now came before him, and, therefore, would not only be an act of justice to the criminals, but would be placing the law upon a much more satisfactory basis. For the last 20 years 54 per cent only of the persons convicted of capital offences had been hanged; and he thought it would be an act of justice to the Home Secretary to relieve him of the responsibility which in many of these cases he had to exercise. While saying that, he would admit that the Crown's Prerogative of Mercy had been most judiciously exercised, and he did not propose to interfere with it. His Bill did not deal with any alterations further than bringing the law back to the old lines of murder where there was malice prepense and aforethought. It left the question of accessories exactly where it was, and it also left in the hands of the Home Secretary the exercise of the Prerogative of Mercy belonging to the Crown. If the Bill were agreed to, as he hoped it would be, it would undoubtedly have the effect of materially improving the existing law, and placing the whole question in a much more satisfactory condition, for it would enable the Courts to deal with all cases of murder more fully and conformably to the feeling of the present time. It also had the support of the very able Commission which looked carefully into the question. The time for capital punishment was passing away, and some were more anxious that it should pass away rapidly than others. The hon. Gentleman concluded by moving the second reading of the Bill.


said, he had great pleasure in seconding the Motion, believing it to be just and politic that the crime of murder should be divided into first and second degrees. He cordially agreed with the opening observations of the hon. Gentleman opposite (Mr. J. W. Pease) respecting the inopportuneness at the present time of any proposal for the abolition of capital punishment. He (Sir Eardley Wilmot) had previously opposed the hon. Gentleman when he had introduced proposals to abolish capital punishment; but he (Sir Eardley Wilmot) supported him now, because in 1877 he introduced a Bill almost identical with that introduced by the hon. Gentleman, following, as the hon. Gentleman had done, the Report of the Capital Punishment Commission. He quite agreed with the hon. Gentleman that a more able Report was never issued by any Commission. That Commission gave full consideration to every branch of the subject submitted to them, and part of the year 1865 and part of the year 1866 were occupied by the Commission in taking evidence of a most important character. The system proposed in the Bill had been adopted with great success in the United States, and lawyers who had given much consideration to the subject could not help coming to the conclusion that this country should avail itself of valuable improvements and useful reforms adopted by our brethren across the Atlantic, especially when those improvements and reforms were supported by the unanimous opinions of eminent American Judges and statesmen. The general tendency of those opinions was in favour of dividing the crime of murder into first and second degrees, and of abolishing capital punishment as regarded the latter, and that opinion had been largely approved in this country. Perhaps a difficulty might be obviated by a section to be introduced into the Bill including all murders which were not in the first degree in the second degree. He would appeal to the hon. and learned Gentleman the Attorney General to allow the Bill to be read a second time, if only to show the people of the United States that Parliament was in earnest in improving our Criminal Code. If they could not pass a Criminal Code, it would be better to deal with the law piecemeal than not at all. On that principle he hoped the House would accept a sound proposition such as the present.

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


said, he also supported the Bill, on the ground that the principle it embodied met in various ways with the approval of the public feeling of the country. Under the existing law it was too frequently the case that a man was punished for the result, and not for the intent, of his crime. For instance, the man whose blow fell upon a delicate person, or one who was not soon relieved by medical aid, committed murder, and was liable to capital punishment; while the man whose blow, though equally intended to take life, fell upon a strong man, or one who had the advantage of prompt surgical assistance, only committed an aggravated assault, and escaped with a light punishment. In dealing with the subject, as proposed by the Bill, by dividing the crime into two distinct classes, the law would deal with the crime, and not merely with the results of the crime. If the Bill were to pass, it would have the effect of reducing the number of applications to the Home Secretary for reprieves, and it would also remove the present confused idea of justice prevalent through the manner in which the Prerogative of Mercy was exercised.


said, that, while adhering to the opinion that the punishment of death for deliberate murder was enjoined by God himself, at the time when the human race was reduced to eight persons by the Flood, he was nevertheless disposed to support this Bill. He felt to a certain extent with the hon. Gentleman the Mover of the measure (Mr. J. W. Pease) that the difficulty in this matter had arisen in consequence of the course followed by the Judges in a long series of decisions. It seemed to him a curious thing that they were always told by the Judges, when a homicide had been committed, that the presumption was that it was a murder. That conflicted with the general principle of our law, that a man was presumed to be innocent until he had been proved to be guilty. An important point to be considered now, however, was whether the question whether a murder belonged to the first or the second degree should be left to the Judges or to the jury. He (Mr. Warton) believed firmly in the average good sense of the jury, although the disposition of some of our eminent lawyers, and even of our Judges, was to deprive juries of their rights. He thought that discredit had fallen upon juries in some degree because they were often composed in towns of small tradesmen, who, in cases where sums of money were sought to be recovered for goods which had been ordered, were apt to give verdicts in favour of their trade interests; but no such prejudice was found to affect their verdicts in trials for murder and other crimes, and he had no hesitation in saying that he thought that juries would better determine the question whether a murder was in the first or in the second degree than the Judges. One of our ablest Judges once had a poor man tried before him on a charge of murder. The man pleaded "Guilty;" he was not advised to plead "Not guilty;" he was sentenced to death and hanged; and yet it was afterwards found that the case was one of manslaughter only. At present, even if the jury recommended a prisoner to mercy, and the Judge intended to support that recommendation, the Judge was obliged to go through the farce of pronouncing the terrible sentence of death, although it was not likely to be executed. In conclusion, he thought the proposed change would give more certainty, and therefore more efficiency, to punishments, and would cause the administration of criminal justice to be more respected, because it would be felt to be more fair.


, said, he was glad to find that there seemed to be such a general desire that this subject should be dealt with during the present Session. In the absence of a Criminal Code, or the power of the House to consider a Criminal Code, it was desirable that this matter, which pressed upon the whole country, should be speedily settled. The change proposed was one that had been long considered, and was, he thought, a most desirable one. The frequent reprieves by the Secretary of State, after the extreme sentence had been passed, under the present system, had a tendency to make the sentence of death far too slight a consideration in the minds of criminals, and to make such an amount of uncertainty that that awful sentence was prevented from bringing home to the criminal's mind the full terror of the law. He should be sorry to see the question whether a prisoner was to be convicted of murder in the first or in the second degree left to the Judge. If they were to have a jury at all, he thought that was a matter essentially within its province. In his opinion, the best method of dealing with the question was to improve the juries. Some time ago Lord Chief Justice Coleridge restored the practice with regard to juries to its original position. His Lordship said, and said rightly, that there ought to be no distinction in a Criminal Court between special and common juries; and at his suggestion the panels were mixed. This system had answered exceedingly well. It would be unfair to throw upon a Judge the responsibility of deciding whether sentence of death should be passed or not; but the chances of a correct verdict being returned by the jury would be much increased if the Judge were allowed to direct them as to the distinction between murder in the first and murder in the second degree. It seemed to him, therefore, that the Bill proposed a most salutary change. One effect of it would be to abolish the crime of "constructive murder," for which the punishment of death, in many cases, was obviously wrong. It seemed to him to be a scandal that constructive murder should be in the same category as murder committed after long consideration, or for gain, or malicious motives. Constructive murder was often committed on a sudden impulse, and was a matter which, it seemed to him, should be left to the ordinary sentence of the law. If they were to have trial by jury, he thought they must leave to the jury such a question as the degree of homicide. No doubt, juries might continue to give the Judges trouble; but that drawback was, to some extent, inseparable from the jury system. If the jury went wrong, it was through a misapprehension on their part; and what they must do was to improve, as far as possible, the composition of juries.


said, that he entirely agreed with the arguments by which the Bill was supported; but, speaking as an Indian official who had had, perhaps, more experience in regard to questions of life and death than any other Member of the House, he thought there was universal concurrence of opinion that nothing could be more objectionable than the present system, under which the Home Secretary could decide on cases of capital punishment out of Court after the verdict and sentence had been passed. At the same time, he thought it right to warn the House that he believed there was extreme difficulty in making such a definition of murder as would justify them in putting the case entirely in the hands of the jury to decide whether a criminal was to suffer the penalty of death or not. With regard to the construction of the Indian Penal Code, they had the advice of the most eminent lawyers; and he felt bound to say that the attempt which was made in that Code to draw a distinction between murder and homicide of a lesser degree with extremely scientific accuracy had not been successful. He had eat as a Judge, and he felt bound to say, after many years' experience of that Code, that the law was not settled yet. They had not been able to arrive at a complete understanding, free from doubt, as to that very refined distinction between what was here called murder of the first and second degree. In India, the practice had been to throw on the Judges the onus of deciding what should be done in particular cases. He was aware that in England such a system would not be very palatable to the Judges; and he was told that the Irish Judges had protested, in advance, against any system of trial in which the responsibility should be thrown on the Judges, and not on the jury. Whether the definition proposed in the Bill was a workable one or not he could not take upon himself to decide; but if legal experts accepted it he would do the same. He did not think a single Judge should have the responsibility; but perhaps some arrangement might be made by which, as in India, after the verdict of a jury of a Judge, a Bench of Judges should decide whether the punishment should be death or penal servitude. That responsibility ought not to be placed on the Home Secretary, who was appointed to discharge other than judicial functions.


Sir, I have great pleasure in supporting this Bill, because it affords a practical mode of protesting against the present state of things, and it draws with it many consequent advantages obvious to those who are in favour of any sort of amelioration of the present condition of the law. I hardly know whether, to-day, it is useful to discuss how far a measure of this kind may or may not relieve the Secretary of State in the discharge of his duties. No doubt, that is an advantage which may commend itself to many of us; and although it may not further a practical deliberation upon the terms of the Bill, it may induce many who may not otherwise interest themselves in it to support the Bill. I venture to support the Bill, because it amounts very nearly to what the law is now, if, as I conceive, it be rightly administered. I believe that the province of juries has been very much encroached upon. It is constantly encroached upon by Judges who take a strong view of their prerogative and their duty, and who act in a manner very much opposed to the action of others on the Judicial Bench, who take an entirely opposite view. The view taken by the former is that the Judge has a right to judge both the fact and the law together, and they tell the jury, with authoritative voice, that they are bound to convict of murder or nothing. Now, that, I submit, with all respect to their higher authority, is wrong, in point of law. They usurp the ancient prerogative of the jury; and that prerogative, which has existed from remote times down to our own day, is undoubted. They have the right to ask from the Judge a full exposition of the law as applied to the fact. The Judge may, no doubt, usefully give some indication of his own opinion, as a guidance to them; but he is not entitled to give it in a tone of authority, as a decision which is to combine both law and fact. His only duty is to expound to the jury what is the law as it exists. If he does that, he is acting within the scope of his authority; but if, in doing so, he assumes a right to deal with any of the facts, and then says, "I tell you that in point of law this is a murder," I submit that he is infringing upon the prerogative of the jury, and is exceeding his own. The result has been that what I claim to be the sole prerogative of the jury has been taken away from them, or, at any rate, disturbed. When a man is given in charge to a jury upon an accusation of murder, the jury have a right to say, "We find this man not guilty of murder, but of manslaughter;" and they can be called to account by nobody for the verdict they deem it right to give. They, and they only, have a right to apply their minds to a consideration of the facts; and, although they may differ from the views of the Judge or of anybody else, it is perfectly within their right to find the accused person guilty of manslaughter, however strongly the propriety of a verdict of murder may have been enforced upon them. I remember a case in which a Judge of great eminence, whose practice was strongly opposed to that of other Judges, whose exceptional behaviour has given rise to much of the present difficulty—Mr. Justice Wightman—was trying a case of "constructive murder," as it is called. The individual accused had imparted disease to a child, and it was alleged that the act thus committed had been the cause of the child's death. The learned Judge laid it down as a case of constructive murder, and he was clearly correct in law in so doing. But the jury were unwilling to convict. No doubt, they entertained considerable doubt as to the facts, although they pointed to no other conclusion, and, so far as the evidence went, proved that the act had been perpetrated, and that death was the direct result of that wicked act. But the jury, after repeated consultations, came back to the Judge, and inquired if they could find a verdict less than that of murder. The Judge again told them that in the eye of the law, assuming the facts alleged to be proved, it was a case of constructive murder, and that constructive murder was, in fact, murder itself. He added— But you are yourselves the masters of your own verdict. You have a right to give another verdict—namsly, manslaughter, and it is not for me to express approval or disapproval of that verdict in advance. The jury at once found a verdict of manslaughter, and I quote the case in which we have the authority of a very distinguished Judge for saying that it rests with the jury to do as they please, in regard to the verdict, in every case of murder. And now, let me mention another case, which may be taken to represent the opposite view. It is the case of a man who was arrested illegally abroad, and who, on being brought back to this country by his captor—a detective—on the way back shot the detective. The question for elucidation was whether or not the man was guilty of murder; and the jury were asked to find whether the man shot the detective "with a view to escape from an illegal capture," in which case it was admitted that the act was perfectly justifiable, according to the English law, or whether he did it "from motives of revenge," in which case it would amount to murder. These two questions were put to the jury, the object of the Judge being to reserve for another Court the question whether, if done from revenge, it was murder in point of law. The jury had a right, and I wished they had exercised the right, to say to the learned Judge, "Tell us what the law is, and our verdict will be 'guilty' or 'not guilty,' on our view of the law and the facts; but you have no right to ask us to find a special verdict indicating whether in our view he committed the act with the intention of escaping from an illegal capture, or from motives of revenge. In the one case only, you tell us, it would be murder, and you take the matter out of our hands by requiring us to find specially in the alternative." In the case of revenge, the sentence would be carried out not on the verdict of the jury, but upon that of the Judges, for the one who tried it was doubtful; while if the jury had been informed that that case would be murder, they might have taken a different view of the facts. It seems to me that the effect of this Bill would be to restore the proper practice under the law to what I believe it ought to be, and to place it in a position in which it can be no longer questioned. That being my view, it may be asked why I consider this Bill to be necessary? I say that it is necessary as a protest, on the part of the Legislature, against any alteration in the old system of trial by jury, which enables the 12 men, on whom the sole responsibility has been placed, to say whether the verdict should be one of murder or not. I also support the Bill because I believe that in many cases it will be more in consonance with the feelings of a jury to find a verdict of murder instead of manslaughter, knowing that their verdict will come within the second degree. It affords them the opportunity of saying whether the case brought before them is to come within the category of the acts set forth in the first degree of murder, or in the wider class, which remains outside. Whether such a decision shall in future rest with the jury is a question which, I hope, we are determining today; and we shall certainly intensify the general feeling in favour of that being secured by the approval we give to-day of the Bill of my hon. Friend. For that reason I have much pleasure in supporting, in the sense I have indicated, the Bill before the House.


said, he had thought that the hon. Gentleman who had introduced this Bill (Mr. J. W. Pease), for whom he had a sincere respect, should not have proceeded with it under existing circumstances. Knowing the difficulties experienced by independent Members in obtaining a day for the discussion of their measures, he (Mr. Newdegate), nevertheless, had thought that, under the peculiar circumstances, the hon. Member would have deemed it better not to press the consideration of the subject that day. These were not at all ordinary times they were living in; they were times which needed the greatest caution on the part of the House; times when they should do nothing to weaken the authority of the law or the Judges in this country. He hoped there was nothing bloodthirsty in his nature; but he had always considered, that as a subject of Her Majesty, and as a citizen of this country, he held his life on the same conditions as other Englishmen, and if he violated those conditions he should justly forfeit his life under the action of the law. It had been his fate twice to impugn the exercise of the Prerogative of Mercy, exercised under the advice of the Home Secretary, in two instances of murder committed in the constituency which he had the honour to represent. The first of these was a case in which a shopman deliberately shot his employer, and was duly convicted by a jury; and yet that man was treated as an object worthy of the exercise of the Prerogative of Mercy. The other case was that of a collier who shot his wife; and again the Prerogative of Mercy was exercised. But so strong was the public feeling on that occasion, that the present Lord Aberdare, who was Home Secretary on that occasion, was literally obliged to provide for the emigration of that man, because he dared not let him go back to the neighbourhood in North Warwickshire, where he had committed the crime of which he was convicted. What, then, he (Mr. Newdegate) thought was needed was more security of the Prerogative of Mercy not being abused. He felt as strongly as did the hon. and learned Member who spoke last (Mr. Hopwood), that they ought not unduly to interfere with the duties, and therefore the sense of responsibility, of juries. But hon. Members at the present time knew that the Common Law was not operative in one part of Her Majesty's Dominions. The whole House knew that they had not provided an adequate substitute to meet that exigency. He did not believe that it was by the mere classification of the degrees of criminality in murder that they would accomplish insuring respect for the law and the safety of Her Majesty's subjects. He said openly, and he said earnestly, that he thought the administration of the law had become too lenient in such matters. Dr. Willis, the first of those who had introduced the more humane treatment of madmen, who founded the really humane treatment of lunatics, was a Lincolnshire man, and a friend of his (Mr. Newdegate's) family. He was a clergyman of the Church of England, and in consequence of his eminence in the treatment of lunacy, in order not to offend, he graduated as a physician, and had charge of King George the Third during the lamentable illness of that Monarch. He (Mr. Newdegate) knew that the private opinion of Dr. Willis was that if they did not hang madmen for murder, madmen would commit murder. Such was the opinion of the author of the more humane treatment of lunatics, which, thank God! now prevailed throughout the United Kingdom. He (Mr. Newdegate) had risen, however, for one purpose—and it was to say that he deemed the consideration of this subject under existing circumstances, to which he would not further allude, manifestly and dangerously inopportune. He hoped the House would get rid of this subject as quickly as possible.


said, he thought that the hon. Member for South Durham (Mr. J. W. Pease) had done good service by bringing the question before the House, although he (the Attorney General) did not approve of the Bill. He could not agree with the hon. Member for North Warwickshire (Mr. Newdegate) that there were any circumstances of a political character which rendered the discussion inopportune at the present moment. However sorrowful the circumstances under which they were met, he did not believe the decision on the Bill would in any way be affected by such circumstances. He did not know whether his hon. Friend's intention was the partial abolition of capital punishment. If it was, he did not think it would attain the end in view. The number of capital sentences carried into effect had largely diminished of late years, and in 1880, out of 28 condemned persons only 13 were executed. The remaining 15 were dealt with by the Home Secretary. If the jury were to decide whether a crime was murder in the first or second degree, it was quite certain that in cases of murder in the first degree the Prerogative of Mercy would be but seldom exercised. But he would not deal with the question in that connection, but with reference to its primary intention. The Bill was really an attempt to carry out the recommendations of the Commission which sat on the subject in 1866—it being literally a verbatim copy of those recommendations. Now, that Commission, although it included many eminent men, had not in it a strong judicial element. That element was represented solely by the late Mr. Justice Coleridge and the present Lord O'Hagan. Those recommendations were entitled to great weight; but great difficulties would present themselves if it was attempted to give them practical effect. The fact was, that the moment one tried to draw the minute distinctions rendered necessary by the division of murder into two classes, and directly they accepted intention as regulating the crime, and not the mere act and its result, great difficulties arose. Moreover, it must be remembered that in dealing with the subject they had a most important requirement to consider—the safety of the public. As to the difficulties to which he had referred—in the first place, the Bill did not deal at all with constructive murder, but left the law as it was. If three men went poaching, and, being governed by a common object, one of them shot a keeper, all three were guilty of murder. Another case was, that under the Bill a man might still be judged not according to the intent, but the effect of his act. A man desiring to escape might unintentionally kill his keeper, having intended to use only enough force to get away from custody; or—to take an instance of recent actual occurrence—a man might set fire to his house, only intending to defraud an insurance company, and although actually anxious to save his children, yet if the children in the house were burnt to death, the man would still be guilty of murder. Another objection to the Bill was that it did not deal with the question of manslaughter, or its Common Law definition, at all. The consequence was that a Judge would in many cases have to discriminate between murder in the first and second degrees, as defined in the Bill, and the old Common Law crime of manslaughter; and although there was little difference between murder in the second degree and the old crime of manslaughter, the result would be to confuse the minds of jurors. If the measure passed, homicide would henceforth have either to be ranked as manslaughter, which was not murder, or to be adjudged as murder from premeditated malice, or murder without premeditation, while at the same time something different from manslaughter as defined by the Common Law. In fact, they were met by a host of legal difficulties. He none the less, however, admitted that the old, merciful, and just rule of having to find malice aforethought before the crime of murder could be made out had been lost sight of latterly, and that something ought to be done to make it again observed. There were two words, a definition of which he must ask for. The Bill said that for a person to be convicted of murder in the first degree, the act must be done "deliberately" and with "express malice." But what was the definition to be given to the word "deliberately?" Deliberation was relative to the circumstances of the case. While some crimes required a long period of deliberation, others required but a very short one. The effect of the Bill would certainly be to take away from the jury and give to the Judge the right the jury now had of applying the quality of deliberation to the act, or not doing so, according to the circumstances of the case. Against any legislation in that direction he ventured to protest, for the result would be diametrically opposite to the view taken by the constitution of the relative positions of the Judge and jury. But there was a more difficult word in the Bill. What was the meaning of "express" malice? If it referred to the intention in the man's mind, that must be dealt with by differently expressed legislation; whereas if by the word was meant malice aforethought of an act as distinguished from the consequences, the word was needless and meant nothing. Again, it was said that the Bill was not to extend to cases of escape from lawful custody, or in order to avoid arrest after a committal of a robbery. But he did not think that the Bill as it stood would effect the object intended. The really important consideration was—what was the practical result of the Bill? It would give juries the right to apportion sentences as distinguished from finding a crime. That was similar to the French law at the present time, and he thought it was a condition of things which was not at all desirable. The jury would say, in effect, that in a certain case a man ought to be hung, and that in another case he ought not to be hung. After such an expression of opinion by a jury the Home Secretary would have some difficulty in interfering with the Royal Prerogative; and he (the Attorney General) feared that the decision of the jury in determining whether a murder was of the first or second degree would be more frequently influenced by sentiment or sympathy than by sterner considerations. He thought his hon. Friend must gather from his remarks that the Bill could not be accepted in its present form, and that it could not be sufficiently altered in Committee to be of any real service. At the same time, if the House wished it, he had no objection to the Bill being read a second time on the understanding that, the principle having been affirmed, the measure should not be proceeded with further. But he hoped his hon. Friend would not infer from that that he acquiesced in its terms. In the absence of his right hon. and learned Friend the Home Secretary, he might say that the subject was one which had been called to the notice of his right hon. and learned Friend, who had had it under consideration, and had, along with others, been endeavouring to deal with it. Therefore, he could not give any express promise as to the course of the Government regarding the questions raised by the Bill; but he felt sure that the discussion then taking place must have the effect of assisting those Gentlemen in their deliberations.


said, he felt that if the Bill had been one for the abolition of capital punishment, many of the observations of the hon. Member for North Warwickshire (Mr. Newdegate) would apply; but it distinctly dealt with a definition of crime. He was glad to hear that the hon. Member who introduced the measure (Mr. J. W. Pease), and those who had so conscientiously acted with him in an endeavour to do away with capital punishment, had admitted that the state of public opinion was such that it would be impossible at the present moment to pass a measure for that purpose. He thanked the hon. Gentleman for that candid admission. He agreed with much that had fallen from the hon. and learned Gentleman opposite (the Attorney General), and he would not weaken the force of his observations by any word of his own. As to the technical and practical difficulties which surrounded any attempt at defining murder of the first and second degree, he thought that many of the arguments of the hon. and learned Gentleman were completely unanswerable. He would add that, in case this Bill became law, responsibilities would be incurred which might have a mischievous effect. It had been said that in a great number of cases in which people were found guilty the law was not carried into effect; and the hon. and learned Gentleman had stated that out of 28 cases of murder in one year, the number of capital sentences carried out was only 13. There could be no doubt that the law was much more merciful in this respect than it used to be; and although it might be an unsatisfactory state of things, yet in the present state of the law there were a great number of cases where persons must be found guilty, even under this Bill, but where it would be impossible that they should be executed. There could be no doubt that the vast number of persons found guilty of infanticide made up the majority of those who were found guilty of murder, and no one could have the smallest doubt that the Bill would not deal in the least with these cases. There was considerable doubt in regard to murder committed by persons under the influence of drink, and he thought they would get into very great difficulties with the words "deliberate and express malice;" and nothing could be more fatal to the interests of the public than that it should be known that men could not be executed for murder when committed under the influence of drink. He also thought it would be very unwise to leave the responsibility of the sentence upon the jury. That was not the function of the jury. The jury had to find a case, and all the rest was left to the discretion of the Judge. As regarded the Prerogative of Mercy, it was impossible that that could be done away with. If the law were altered, they must use the Prerogative of Mercy at last. At the same time, he should be glad to see a better definition of murder, because he thought it had a bad effect to find that so many persons were convicted of murder, when so many were immediately let off by the Secretary of State. The public did not understand by what rules the Secretary of State was guided; but he was guided in the vast number of such cases by rules which, by long precedent, had influenced him just in the same manner as a Judge was bound. He thanked the hon. Gentleman for having brought the Bill forward, and he should not oppose the second reading. He hoped that the hon. Gentleman would take the second reading as an admission by the House that the subject was one which ought to be dealt with. At the same time he was, however, bound to say that it could not be dealt with except by persons in a position of authority; and he did not think it ought to be dealt with by that House, unless it was understood that when they came to the final discussions the proposed legislation would be undertaken by the Ministers of the Crown. The matter was so serious that they would not be acting safely unless they were told by the responsible Officers of the Crown and by their Law Officers that the matter had been carefully considered by them, and that they were satisfied the Bill could be passed.


said, that he was perfectly satisfied with the discussion that had taken place; and if the Bill were allowed to be read a second time, he would put down the Committee for the 5th of July, so as to give ample time for consultation with the Government on the subject before proceeding further with it.

Question put, and agreed to.

Bill read a second time, and committed for Wednesday 5th July.