HC Deb 11 May 1886 vol 305 cc767-90
SIR JOSEPH PEASE (Durham, Barnard Castle)

, in rising to call attention to the law and practice relating to capital punishment, and to move— That, in the opinion of this House, the time has arrived for the abolition of the death penalty for the crime of murder, said, that there had been during the last few years several Motions on this important question. He had hesitated whether to make his Motion in the form in which it appeared, or to adopt a more qualified one in favour of the view which had been expressed by the Royal Commission that the crime of murder should be divided into two classes, for one of which death, and for the other penal servitude, should be inflicted. After consideration, he had come to the conclusion, as he believed the time had arrived when the death penalty should be altogether abolished, that it was better to advocate that course. Two right hon. Gentlemen below him in times past (Mr. Childers and Sir William Harcourt) had expressed their views in the sense of his Motion, though he did not know whether the responsibilities of Office would allow them to do so on the present occasion. It was now 20 years ago since the Royal Commission had examined the whole question. Five of its Members were in favour of total abolition. Of these, Lord O'Hagan made a separate Report, in which, while expressing his view that capital punishment should be abolished, he said that the abolition ought only to take place after the lapse of a certain time. No doubt, it was necessary to have the death penalty in savage societies; but as civilization and Christianity advanced that necessity diminished, and the time had now come when, with safety to the State, milder measures might be resorted to. The question for the House to consider was, could they repress crime by sparing the lives of those whom we now hanged, and would our lives be quite as safe if their lives were spared and other punishments were awarded them? Our Criminal Code, as he had stated before in that House, used to be one of the most severe and barbarous that ever existed in a civilized country. Sir Thomas Fowell Buxton had stated that in the Reign of Henry VIII., 72,000 robbers were hung; and that between 1749 and 1771, 109,000 suffered the same penalty. The Tudors, the Stuarts, and the House of Brunswick successively increased the number of offences for which death was inflicted. Up to the beginning of this century shoplifting and other minor offences was punished by hanging. But those offences were not found to increase—they diminished in number—when the punishment was mitigated. In the same way it might reasonably be expected that, with the abolition of capital punishment, murders would not increase. A very useful Paper in regard to this matter had been drawn up for the information of the House as to the figures and effects of the abolition of capital punishment in foreign countries somewhat similar to our own. In Belgium there had been no execution since 1873, and there had been no increase, but a positive decrease, in the capital offences. There were other countries—he would not go through the long list of them—but in the Netherlands and in Holland the same thing had occurred, and the capital crime had gone on decreasing instead of increasing. He was asked, "What with regard to Switzerland?" The Swiss found that they had to go back to their old law and re-instate capital punishment as a matter of law; and each federated Canton could resume the death penalty, but only some had done so; but he believed no execution had taken place. Yes; but Switzerland was a very peculiar country. It was one of the most drunken countries in the world, and a large amount of the crime that was committed there arose from drink. In Rhode Island, and one or two other of the United States, the abolition of capital punishment had not hitherto tended to an increase of crime; and it was a fact that, wherever it had been tried in America, no State had gone back upon the course it had adopted. With regard to the fact as to its being a deterrent upon our own criminal population, he had his doubts upon the matter. He believed it would be found that long terms of imprisonment were a much greater deterrent. There was a case some time ago in the county of Durham in which a man of the name of Fury gave himself up out of penal servitude, and confessed to the murder of a woman in Sunderland, in order that he might be hanged, and so get rid of a lifelong servitude in gaol. Another point to which he wished to call the attention of the House was that the number of our executions had been gradually diminishing during recent years. In the six years from 1872 to 1878 there was an average of 24 executions per annum; while from 1878 to 1884, the next six years, the number was only an annual average of 14. It seemed to him that, considering the increase in the population, the House could draw a strong inference from this, to the effect that human life had been just as safe during the last six years, when there were fewer executions, as it was during the first six years, when the executions were 24 a-year. He believed that hanging murderers would never teach a community the sacredness of human life; and he would like to ask whether they could safely trust to a fallible tribunal to inflict a penalty which could not be recalled? The Judge might err, the jury might err, or the evidence might err. There could be no doubt that there were a great many innocent persons who had been sentenced to death; and it was a remarkable circumstance during the last few years how many persons had been rescued from gaol for crimes of a very grave character of which they were innocent. He could give a very long list of them, but he would not trouble the House with it. He might add, however, that Sir Fitzroy Kelly had stated that he had made out to his own satisfaction cases where 22 were sentenced to death who were innocent, and seven of these were executed. There was one case which he (Sir Joseph Pease) should specially like to mention. It was the case in which three men were tried at Durham not very long since for the murder of a policeman under very aggravating circumstances. One of those three men owed his life to the present Chancellor of Exchequer, who sent down specially from the Home Office, and made inquiries which resulted in the man's life being saved. In that case it was notorious that the more guilty man was acquitted, and a man who was innocent of the actual murder, though accessory, was hung. Since executions had been carried out inside prisons reporters were sometimes admitted and sometimes not. We heard sometimes of a short drop and sometimes of a long one. Occasionally we heard of an amateur executioner, or a Baronet assisting at an execution. These things ought to be put a stop to if executions were continued; but the best way of stopping them was to stop the executions. There were many horrible incidents attendant upon executions. There was a case to which he would briefly refer. It was that of a poor woman named Cotton, a notorious murderess, who was confined in Durham gaol. That poor woman was kept in gaol from August, 1872, till the spring of 1873, because she was not fit to be tried owing to the fact that she was near her confinement. She was tried in March, 1873, and executed March 19. She was kept through all the pains of maternity in order that she should be hung six months after the crime which she committed in 1872. That was one of those things which he thought led the people rather to sympathize with the criminal than to vindicate the law by the present barbarous mode of punishment by hanging. If that woman, instead of being hanged, had been imprisoned for life, it would have produced a more salutary effect, and afforded greater warning to criminals of that class. There had been cases in which ropes had broken, and half-strangled men had fallen to the ground, and had been kept in agony and suspense until other ropes were adjusted. At Liverpool once the executioner was so obviously under the influence of drink as to provoke a solemn reproof from the chaplain. Recently the weight of the convict and the length of the drop resulted in decapitation. He thought he had shown that in those countries in which capital punishment had been abolished there had been no increase in crimes of murder. In Belgium, Spain, Holland, and other States, the death penalty had been abolished with safety to the community. Why, then, should we not adopt a more humane plan than the one now in force? There was another point, however, which he should like to bring to the attention of the House, and that was the extreme youth of those who suffered the death penalty. In 1880 there were 13 persons executed. Of those four were under 21, 23, 22, and 24 years of age. In 1881 11 persons were hanged. Of these five were under 24, 22, 20, and 21 years of age, In 1882 12 persons were hanged. Of these one was only 17 years old; another only 19; and a third only 22. In 1883 13 were hanged, and of these persons one was under 24; one under 23; one under 22; and one under 21 years of age. In 1884 there were 15 executions. Out of these four persons were respectively 18, 25, 21, and 23 years of age. One-third of all those criminals were mere boys, and they were hanged for crimes committed in passion. It was a fact that jealousy came in very much as the cause of the execution of these young people. It was well known to the prison authorities that the "street sneak," as he was described, was the worst criminal of any class, and gave the most trouble. In 1885, out of 21 persons who were hanged, not more than eight were more than 25 years of age. Then, again, there was the very interesting inquiry as to how far insanity had to do with murder. It was established by medical reports that 10 per cent of our convicted murderers were found to be insane, and therefore unfit to be hanged; whilst only one in 1,000 of other convicts were found insane. A letter he had received from a lady connected with the New York Penitentiary stated that one of her best helpers was a woman who had been convicted of a murder committed in jealousy. As regarded the treatment of criminals, he thought the evidence which had been collected in America, Belgium, Holland, &c. was very strong, and proved very clearly the efficacy of humane methods and the abandonment of barbarous customs. He had himself received communications from those in charge of these criminal establishments, showing that in many cases the criminals, when brought under higher influences than those to which they had previously been subjected, I grew tractable and good. That showed what might be done if we adopted a more humane mode of treatment of our prisoners. The better classification, order, and regularity that were being brought about in our prisons under the Act of the right hon. Gentleman opposite (Sir R. Assheton Cross) were far more conducive to preparation for the life hereafter than the death sentence and confinement in the condemned cell. If a convict were a calculator of chances—and he (Sir Joseph Pease) had the authority of Parliamentary Returns for what he was about to state—he might speculate upon the possibility of escaping execution from 20 years' averages. The chances were, if he was convicted, four to one that he was not hung; but if he was a burglar, the chances of being sentenced were three to one against him. With regard to the Amendment of his hon. Friend opposite (Mr. Howard Vincent), he (Sir Joseph Pease) thought there was a good deal to be said in favour of it, if the House did not feel disposed to accept the Motion which he submitted. He believed that some such recommendation as that suggested in the Amendment ought to have been carried out long ago. Certainly the time had come when they ought to endeavour to treat condemned persons as human beings, for he was convinced that the worst thing which could be done to them was to hang them. In all these cases the Home Secretary had a duty which he was sure no one would envy. It was his duty to weigh all the circumstances of the case, with a view of finding whether he could recommend the exercise of the prerogative of mercy. He was not at all afraid of the action of the Home Secretary; but he was sure it was not the wish of the Gentlemen filling that Office to have this duty placed on their shoulders. It ought to be the duty of the jury to say whether the execution should take place or not. Instead of a prerogative of mercy there ought to be a prerogative of law; and the former, if used at all, should only be brought in in extraordinary cases, when the Home Secretary might feel that he ought to exercise the power which Her Majesty had placed in his hands. He might be asked if he had looked at those cases which had occurred in the Sister Island? He had. He would first refer to the murder of Sergeant Brett at Manchester. Three men were hanged for the murder of Sergeant Brett. He believed that not one of those men had intended to murder that officer. They intended to blow the lock off the prison van which contained the prisoner whom they desired to rescue. No doubt they were doing an unlawful act, and were in the eye of the law guilty of murder, as death ensued, and accordingly they were hanged. He believed if those men had been placed in penal servitude no spirit of vengeance would have been aroused in the mind of the Irish people; and he believed that those men would, when in course of time sufficiently punished for their crime, have been restored to liberty. Then they had the Maamtrasna case, with respect to which a large number of the Irish people did not believe in the guilt of the men hanged. He believed if those men had been sentenced to penal servitude for life the effect would have been far more satisfactory. By this means, too, if it were found that a prisoner was not guilty of the crime with which he was charged, he could be restored to life and liberty. Again, there were the PhŒnix Park murders, one of the most atrocious crimes of modern days. He believed that the murderers in this case had thrown back the cause which he advocated many years. He thought that the effect of those criminals being detained in lifelong imprisonment as a punishment for their crime would have had a much more deterrent effect on others, and would have been just as effective in its eventual operation. He was of opinion that the time had come when they could safely alter their Criminal Code in this respect. It was not necessary to stop at the half-way house suggested by the hon. Member opposite, because they might with safety to the State and to human life abolish a law which began in barbarity, and which in its operations bore too evident traces of its origin. In successive generations our Criminal Law had been improved and ameliorated step by step. It was a better law than it was when, with half our population, we hanged 2,000 of our fellow-citizens every year. He asked the House to take another step in advance, and, by adopting his Resolution, pave the way for such an alteration in the Criminal Code as would abolish the ghastly punishment of the gallows. The hon. Baronet concluded by moving the Motion which stood in his name.

Motion made, and Question proposed, That, in the opinion of this House, the time has arrived for the abolition of the death penalty for the crime of murder."—(Sir Joseph Pease.)

MR. HOWARD VINCENT (Sheffield, Central)

, in rising to move the following Amendment:— To leave out from the word 'House' to the end of the Question, in order to add the words 'it is desirable that offences for which the penalty of death now follows a verdict of guilty, unless remitted by Her Majesty, should be divided into three categories, as recommended by a Royal Commission in 1866, and in order that executions, when necessary, may be carried out with every regard to humanity and decency, an experienced person should be selected by the Government for the purpose, and adequately remunerated from public funds,' said: Mr. Speaker, I have the deepest respect for the motives of my hon. Friend in submitting this important matter to the notice of the House of Commons, and I greatly regret that I am compelled to take an opposite view upon this question. It is, I feel, a serious responsibility to advocate in Parliament the continuance of a system which may deprive a fellow-creature of life; but the well-being of society requires that the fear of death shall restrain the violence of human hatred. It has been so ordained in Scripture. It has been found necessary in well-nigh every State, in every generation. It is, I have no doubt, in a large measure owing to the calm temperament of the British people that murder and assassination are so much less frequent in this country than in many others. But it is also owing to the certain knowledge that if life is maliciously taken the penalty will be death, that culpable homicide in this great Metropolis, embracing thousands of every race in the world, is only from one-eighth to one-twelfth what it is in many great Continental cities with considerably less than half the population. Capital punishment was abolished in Switzerland in 1874; but there was such an immediate increase in the crime of murder in many places that it was quite clear that some urgent steps must be taken for the safety of the people. On the 18th of May, 1879, a Commission appointed to consider the re-establishing of capital punishment, in accordance with the prayer of 30,000 Swiss subjects, declared that the number of crimes formerly punishable by death had greatly increased during the preceding five years, and that this increase had been still greater in Germany. In fact, the augmentations since 1862 had been 100 per cent. and in Wurtemburg, where the death penalty had been abolished, not less than 200 per cent. The Federal Chambers thereupon re-instituted capital punishment, and their decision was approved and confirmed by the people on an appeal to the wide electorate of that happy country. Eight Cantons forthwith re-introduced capital punishment; and although it is true that no execution has taken place, it is retained as the great deterrent against the crime of murder. It is for these reasons that I venture to dissent from the Motion of the hon. Baronet, aiming as it does at the total abolition of capital punishment. The first part of my Amendment is to leave out the words after "House," and insert— It is desirable that offences for which the penalty of death now follows a verdict of guilty, unless remitted by Her Majesty, shall be divided into three categories, as recommended by a Royal Commission in 1866. The recommendations of the Royal Commission to which I refer in my Amendment are these—(1.) That the punishment of death be retained for all murders deliberately committed with express malice aforethought, such malice to be found as a fact by the jury. (2.) That the punishment of death be also retained for all murders committed in or with a view to the perpetration, or escape after the perpetration, of murder, arson, rape, burglary, robbery, or piracy. (3.) That in all other cases of murder the punishment be penal servitude for life, or for any period not less than seven years at the discretion of the Court. The result of the present state of affairs is far from satisfactory. There is no question, Mr. Speaker, I was more frequently asked during the six and a-half years I held the Office of Director of Criminal Investigations than whether a householder was justified in shooting a burglar; and I always said that, in my humble opinion, it would be the most honourable avenue to the gallows. Our law, if I may take it from the Report of the Royal Commission of 1866, and which was composed of the most eminent legal authorities of that day, is as follows:— No provocation by words, looks, or gestures, however contemptuous and insulting, nor by any trespass against lands or goods, is sufficient to free the party killing from the guilt of murder, if he kills with a deadly weapon, or in any manner showing an intention to kill, or do grievous bodily harm. Therefore, if a man in a sudden fit of passion, aroused by insult to himself or his wife, kills the person who offers the insult, he is by law liable to the same punishment as the assassin who has long premeditated and brooded over his crime. From this unsatisfactory state of affairs we have, Mr. Speaker, not only the risk of unjustly sentencing to death, but not unfrequently a miscarriage of justice. Juries directed as to the state of the law, and having, as a rule, only circumstantial evidence before them, naturally hesitate to find a verdict the result of which would be, in all probability, to condemn a fellow-creature to an ignoble death, against which, under all the circumstances, both reason and common sense alike revolt. I therefore submit the first part of my Motion to the earnest attention of the House, and respectfully urge its adoption, even after this unaccountable delay of 20 years of the Home Department. The second part of my Amendment is— That executions, when necessary, may be carried out with every regard to humanity and decency. An experienced person should be selected by the Government for the purpose, and adequately remunerated from public funds. The terrible scenes which, even allowing for some exaggeration, have in late years taken place at more than one execution will be within the recollection of the House. They are well described in a Petition presented by the hon. Baronet himself on behalf of the inhabitants of the City of Norwich. It states— That the community has been outraged by the recent scenes which have been enacted in carrying out the capital sentence of the law, decapitation resulting in some instances; in others the death struggles have been unduly prolonged. I consider, Mr. Speaker, that infinite good has been effected by the abolition of public executions. But I hold it to be a gross scandal that the selection of the person to discharge the painful duty of carrying out the extreme penalty of the law—an office requiring, believe me, Sir, no little courage and experience—should be left to the accidental choice of the Sheriff. It is disgraceful that the remuneration of any person—nay, more, his humble livelihood—should be dependent upon the number of murders committed, the non-remission of the sentence of death, the number of human beings he can launch into eternity, and, still worse, that it should be a matter of bargaining whether he will take a double or a treble job on reduced terms. It is imperative that so long as the penalty of death remains for the crime of murder the law of the land, the Home Secretary should take Parliamentary powers to appoint a proper person as executioner, place him under proper discipline, and remunerate him adequately out of the public funds for his odious though necessary task. I therefore, Sir, beg to move the Amendment which stands in my name to the Motion of the hon. Baronet opposite the Member for Barnard Castle.


, in rising to second the Amendment of the hon. Member for Sheffield (Mr. H. Vincent), said, he had listened with great attention to the arguments in support of the Motion which had been brought before the House by the hon. Baronet (Sir Joseph Pease); and he must say that he could not help wishing that the Motion had been the same as that which had been brought before the House by the hon. Baronet on a previous occasion, because his recollection was that the Motion which he had heard on a previous occasion differed very little indeed from the Amendment which had just been moved by his hon. Friend opposite. The hon. Baronet had, however, on the present occasion dealt with the question in a wide and more sweeping manner, and had asked the House to pass an abstract Resolution of very grave import; and he had, undoubtedly, a great advantage in his favour in so far as the principles which he advocated were very difficult to resist. The hon. Baronet said the punishment of death was a barbaric mode of treating criminals; but he (Mr. Lockwood) respectfully submitted that the question was not whether the punishment was barbaric, but whether or not it was deterrent, and he contended that it was deterrent. Other punishments were also barbaric—for instance, the punishment of flogging; but, unfortunately, it had been found to be a necessary mode of treating them, and the records of the Criminal Courts showed that it had been attended with extremely beneficial results in reducing the frequency and the brutality of the crimes for which it was inflicted. He could speak upon this point from experience in his professional capacity. The hon. Baronet had adduced certain instances which he contended justified him in asking the House to come to the conclusion that the dread sentence of death had on many occasions been carried out upon innocent persons. That was a terrible thing to contemplate; but it appeared to him (Mr. Lockwood) that the House would not be justified in coming to such a conclusion upon the evidence adduced, and upon which the hon. Baronet relied. With regard to the convict Charles Peace, he (Mr. Lockwood) remembered very well the attempts made by the convict to postpone the carrying out of the sentence, one of which was the confession that he was connected with a murder at Manchester. He (Mr. Lock-wood) was consulted in the matter, and the result of his inquiries was that he did not believe that Peace had anything whatever to do with the murder. The hon. Baronet had also mentioned a case in which three men were charged with murder. The hon. Baronet said one was found guilty who was not guilty, and the one who was found not guilty was really guilty. He (Mr. Lockwood) was astonished to hear the hon. Baronet make such a statement respecting a man who had been acquitted by a jury. The other prisoners were convicted, the one, he (Mr. Lockwood) ventured to think, properly, and the other improperly. The case was brought to the notice of the Home Secretary, who instituted an inquiry; but, so far from that being a proof which should convince the House that the death penalty should be done away with, it was, to his mind, an instance which showed that the law was administered with great care and with sufficient caution. In one case, so careful was the Home Secretary in the administration of the law, that the person was respited from time to time whilst a Commission was sent out to America to make inquiries, and the prisoner was ultimately executed. Then, as to the doctrine of chances, the hon. Baronet said that, taking the number of persons accused of murder, the chances against the conviction of a prisoner were four to one, which he considered to be a proof of the public feeling against the death penalty. But it was really owing to the system under which persons were over and over again indicted for murder, where no man in his senses would allow them to go to the gallows. Why, if a man went out to shoot a duck, and in the act of shooting the duck he killed a man, he was indicted for murder. It was certainly four to one that such a prisoner would be acquitted of the crime of wilful murder; and he (Mr. Lockwood) thought the chances ought to be a good deal more than four to one. But while the chances against conviction pointed out by the hon. Baronet did not prove that the penalty of death should be done away with, they certainly formed a strong argument in favour of the Amendment of his hon. Friend the Member for Sheffield, that there should be degrees in the crime of murder; and, that being so, he hoped that the hon. Baronet would accept the Amendment cordially. The Report of the Commission, to which the hon. Member for Sheffield had referred, recommended that before life should be forfeited for the crime of murder it should be proved that the crime had been committed with malice aforethought; and he (Mr. Lockwood) submitted that the law should be altered in accordance with that recommendation, so that before a man could be convicted of murder in the first degree, the onus should rest upon the prosecution to prove that the crime was committed with malice aforethought. In favour of this view they had the opinion of men of great eminence and experience, such as Lord Bramwell, Lord Martin, Mr. Justice Wills, and Mr. Justice Stephen. On the other hand, they had the opinion of men of great authority and experience to the effect that the death punishment acted as a very effective deterrent to crime; and it was with that view and in that spirit that he (Mr. Lockwood) seconded the Amendment of the hon. Member for Sheffield, in the sincere hope that the debate might, at least, have the effect of drawing the attention of the Legislature to the crying evils which existed.

Amendment proposed, To leave out from the word "House" to the end of the Question, in order to add the words "it is desirable that offences, for which the penalty of death now follows a verdict of guilty, unless remitted by Her Majesty, should be divided into three categories, as recommended by Royal Commission in 1866; and in order that executions, when necessary, may be carried out with every regard to humanity and decency, an experienced person should be selected by the Government for the purpose, and adequately remunerated from public funds,"—(Mr. Howard Vincent,) —instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


said, that his right hon. Friend the Home Secretary had asked him to say a few words upon this subject, because it had been his painful duty for more than five years to have to consider this subject with very great care. He might say that he had not approached the consideration of this matter in any spirit of hostility to the view taken of it by the hon. Baronet behind him—in fact, in former days he had recorded his vote in that House in favour of the abolition of the punishment of death. He had, however, stated before—and it was his duty to repeat the statement—that he did not adhere to his former opinion. In changing his view of the matter he had not arrived at the conclusion that the punishment of death ought to be largely and extensively applied. He believed that in former days that punishment had been applied in a brutal, a cruel, and in an unnecessary manner. No doubt in succeeding years the tendency of opinion—he was not speaking of uninstructed popular opinion, but of the opinion of thinking men—was in favour of diminishing the number of cases in which the gravest penalty of the law was inflicted; and that diminution had been effected, he believed, with absolute safety to society, and with great advantage to the community, and he did not shrink from expressing his opinion now that the number of cases in which the penalty of death was inflicted might with advantage be still further reduced. The character of the cases in which the prerogative of mercy might with advantage be exercised more frequently he would divide under two heads, one of them being provocation and the other insanity. In regard to provocation as a ground for remission of penalty, that principle was much more widely accepted now than it had ever been before, and, he believed, rightly so. Then, he thought that the fact of a man not being completely master of his actions, through his mind being disturbed, it might be, by some hereditary taint of insanity, was a matter that ought to be taken into account. Neither he nor his immediate Predecessors in Office had thought that they were bound by the strict legal interpretation of insanity as laid down by the Judges in the House of Lords, which he had always thought was much too narrow; and he believed that a much more liberal interpretation had been adopted in all cases where the prerogative of mercy was to be exercised. He desired to take that opportunity of saying that he very strongly held that the severity of all punishments might be relaxed with safety and with advantage. When he was at the Home Office he had remarked upon the very marked and very satisfactory diminution of crime in this country during recent years; and his view of the matter had met with the approval of Lord Sel-borne, and of Sir Edmund Du Cane, the experienced head of our convict prisons, who both agreed with him that penalties of far less severity, and of greatly diminished length, would have an equally deterrent effect, and might be resorted to with perfect safety. Referring to the question put in issue by his hon. Friend, he thought there were cases in which it was impossible, in the present state of opinion in this country, that they could dispense safely with the punishment of death. He would not refer to matters which involved other considerations, like Irish murders, but would notice only two cases which took place during his official tenure. One was a murder in a railway carriage by a man named Lefroy; the other was a case where a man was deliberately murdered by his own brother in the most cruel and systematic way. He did not believe that in either of those two cases the opinion of the country would have been satisfied unless there had been a capital execution. In the case of those deliberate murders it was, in his opinion, impossible to dispense with capital punishment. Coming to the Amendment of his hon. Friend opposite, he claimed to approach it with the greatest possible desire to find a solution of the problem by means suggested by the Amendment. No man who had held the Office of Home Secretary but must desire that the decision in these cases should be removed, if it could be safely done, from his shoulders to those of the Judge and jury. In 1882 he examined this question as carefully as he could, with a view and with the desire to give effect to the Report of the Royal Commission of 1866, and he drew up a Memorandum with the object of giving effect to those recommendations. He desired, at any rate, to give effect to the spirit of the recommendations of the Commission, and he found that those views had been accepted by the right hon. Gentleman opposite, his Predecessor in Office in 1881. It seemed to him that this was a question which could be approached safely without any chance of any considerable difference of opinion in Parliament on the subject. Accordingly, he drew up a Bill for the purpose of giving effect to those conclusions. The Bill proposed, in its 1st clause, that murder should be of two degrees; and, in the 2nd clause, it was provided that whosoever should unlawfully with intent to kill any other person cause the death of such person should be guilty of murder in the first degree. It also provided that the intent to kill should be presumed from doing an act or omitting to do any act, the natural and probable consequences of which would be to cause death. Then the intent to kill might be negatived by circumstances which might be proved to exist, and there must be that control over his will which governed an ordinary man in his action. In order to constitute the crime of murder in the first degree, the jury must expressly find an intent to kill. Then the 3rd clause, which embraced all other murders, made them murders in the second degree, and provided that they should be punishable with penal servitude for life, or for any less term as the Judge might see fit. Then the Bill provided that in the case of murder in the first degree, if the Judge was of opinion that the sentence of death should not be executed, he might pass a sentence of penal servitude for life, or any less term as he might think fit. Those were the main provisions of the Bill which he drew up. He then took the opportunity of consulting with persons who were best competent to advise him in this matter. Among others he consulted Sir George Grey, Mr. Justice Fitzjames Stephen, Mr. Justice Hawkins, and most of the Judges. He was bound to say that the conclusion he arrived at was not satisfactory to his mind. No man should take the responsibility of voting on this subject unless he had tried himself to frame a definition on the subject which would hold water. He tried to frame a definition; but he found that it was not satisfactory, because it included cases which ought not to be included, and excluded others which ought to have been included. He devoted many weeks of conscientious labour to this question, and he abandoned the attempt, because he satisfied himself that the thing could not be done, as he desired it to be, in accordance with the Report of the Commission. To give an example, deliberate premeditation was considered to be of the essence of murder, and rightly punishable with death. Among the most premeditated, the most deliberately premeditated, murders of modern times, which the merciful spirit seldom visited with death, was the crime of infanticide. The definition of murder laid down by him would include infanticide, and that illustrated the difficulty of drawing these definitions. When he set to work he thought there would be little difficulty in drawing definitions; but after consultation with Sir George Grey and some of the most eminent of the Judges he gave up the attempt. As things were now, very great care was taken by Judges and juries in these cases. And, moreover, there was now an interval of about three weeks between sentence and execution, instead of 24 hours, as in former days, so that there was ample time for the clemency of the Crown to be exercised. Moreover, every care was taken that whenever reasonable doubt surrounded a case the presumption should be in favour of mercy. For these reasons, although he had every disposition to accept the principle embodied in the Amendment of the hon. Member opposite, he could not support it; and, for the reason he had previously stated, he could not support the Motion. If other persons were more successful than he was in finding definitions which were thoroughly satisfactory, he should then be prepared to support the principle of the Amendment; but he could not support any general Resolution of this character, unless he could see clearly that the matter could be properly carried out. With regard to the execution of the capital sentence, no doubt cases had occurred which had greatly shocked the public sentiment on that subject. But he failed to see how the remedy which was proposed would cure the evils alluded to. There was no person holding the office of public executioner; but anyone might be employed for the purpose of carrying out the sentence of the law by the Sheriff. As a matter of fact, the Sheriffs of London and Middlesex, being responsible for the executions at Newgate, had been in the habit of selecting a person to carry out executions, and their choice had practically been adopted by the Sheriffs throughout the country. When a vacancy took place in this office, the Sheriffs of London received as many as 600 or 700 applications; and they took the greatest pains, no doubt, to choose the best person they could find for the office. He did not see how the Government could do better than this. The more respectable classes of the community, unless they were very eccentric, would not take the position of an executioner; and as men were not born executioners, the best men that offered must be taken. He did not see how it was possible for the Government to make a better choice than the Sheriffs of London now did. He might remind the House, further, that it was an old Constitutional principle that the execution of the sentences of the law should not be in the Crown. It was part of our ancient system of local government in this country, and the execution of the sentences of the law were still vested in the Sheriffs. No doubt, if there were reasons for departing from the ancient principle and adopting a new system it would be done, and the old doctrine would not be allowed to stand in the way; but, in the present case, he did not see how the Government would be likely to appoint a better man. For the reasons he had previously offered, he was unable to support either the Motion or the Amendment.


said, he thought most Members of the House must have listened to the speech of the Chancellor of the Exchequer with a very great feeling of disappointment. Of course, nobody expected that the right hon. Gentleman would be able to support the original Motion. Formerly the abolition of capital punishment was the burning question; but those days had passed away, and many who some years ago were in favour of the total abolition of capital punishment had changed their views, and were now in favour of limiting that punishment to a small and well-defined class of cases. The vast majority of the Members of that House were most anxious to see the punishment of death limited, as far as possible, to those cases of murder in which the general public conscience and the general public opinion admitted the application of the penalty of death to be appropriate. But it was believed by everybody that, according to the present state of our law, there was a very great number of cases in which people were tried for murder and sentenced to death, and in which no person would think of carrying the sentence into execution. It was not desirable that persons should be sentenced to death in cases where they could not possibly be executed. Convictions in such cases, and the necessity there was for the Home Secretary to interfere with the due course of law, were extremely detrimental to the interests of public justice. Therefore there was a general desire on the part of all persons concerned in this question that the definition of murder should, if possible, be so limited as to apply only to those cases in which death would be the proper and appropriate punishment. The Royal Commission of 1866, which was composed of lawyers and statesmen of the highest eminence, recommended that such an alteration should be made in the law; but now, 20 years afterwards, they were told by the Chancellor of the Exchequer that such an amendment of the law was practically impossible. The right hon. Gentleman would find a solution of the difficulty if he turned to the clauses of the Bill for establishing a Criminal Code that was introduced in that House many years ago by the late Sir John Holker. The right hon. Gentleman could not even hold out a hope that better provision would be made in future for the carrying out of executions. It was a disgrace to our civilization that in this 19th century, when all were agreed that the sentence of death ought to be carried out in the most decorous and humane way that the resources of knowledge and science could devise, we were almost the only nation in the world which left the carrying out of that solemn sentence to mere haphazard, and the bungling incapacity of any person who undertook the task. [The CHANCELLOR of the EXCHEQUER dissented.] The Chancellor of the Exchequer shook his head; but there had been cases where the High Sheriffs of counties had been glad to lay hold of almost anybody who would undertake to carry out the sentence of the law. Moreover, there had been cases in recent times where the sentence had been carried out by wholly incompetent persons. He hoped the Chancellor of the Exchequer would find it possible to prevent the recurrence of scandals which had horrified the public, and which, if repeated, would put a stop to capital punishment altogether. In conclusion, he expressed a hope that hon. Gentlemen would vote for the Amendment of the hon. Member for Sheffield, by way of showing the desire they cherished in regard to this important subject.

MR. E. RIDER COOK (West Ham, N.)

said, the mode of inflicting the death penalty which prevailed in this country was very barbarous. It was a happy augury that public opinion revolted against the mode of inflicting death; and he hoped that was a presage that the time would come when public opinion would revolt against the sentence of death itself. There were other modes of taking life besides the barbarous way of hanging a man by the neck until he was dead. The present method of putting criminals to death in these days of anæsthetics was barbarous in the extreme; and if the punishment was to be inflicted some less painful and revolting form of death might be devised. He hoped that even in the most aggravated cases of murder it would ultimately become unnecessary to take the life of the offender, but to commit him to a life-long period of penal servitude. He hoped, however, that his hon. Friend would carry his Motion to a division, and to a successful division.

SIR R. ASSHETON CROSS (Lancashire, S.W., Newton)

said, he agreed with the Chancellor of the Exchequer that, so long as the punishment remained, it was absolutely necessary that as little pain as possible should be inflicted. When he was last at the Home Office he appointed a Departmental Committee to consider how that could best be done, and had called the most eminent men in the country to his assistance. He understood that the Committee had not yet reported; but he was assured that they saw their way to carry out what he had long at heart. He had come to the conclusion that, if properly carried out, hanging involved as little pain as any form of death. Every Secretary of State from the days of Sir George Grey had pronounced against the advisability of making the executioner an officer of State, and in favour of holding the Sheriff responsible. As to the main question, he believed the death punishment was absolutely necessary in order to deter men from the crime of murder. After a long experience at the Home Office, and after careful consideration of the question, he was convinced that in the present state of society it would not be safe to abolish capital punishment, which was the greatest possible deterrent to the crime of murder. Still, he thought it should only be resorted to in cases of murder with malice aforethought, which was the most aggravated case of murder. The Royal Commission of 1866 recommended that a distinction should be drawn between one murder and another. Sir George Grey was Seeretary of State at the time, and he prepared a Bill to carry out the recommendation. The Government went out, and Mr. Walpole, who succeeded Sir George Grey at the Home Office, found that his Predecessor's Bill would not hold water. He did not despair in the matter, and thought that the Committee of Judges who prepared the Criminal Code could satisfactorily deal with the question. He should certainly render all the assistance he could in endeavouring to find a definition of the crime of murder by which, at all events, the operation of the law might be confined to fewer cases. Though he could not, therefore, vote for the abolition of the death punishment, he should vote with the Mover of the Amendment, which he believed was the course suggested should be adopted by the Royal Commission and the Judges who had drawn up the Criminal Code.


said, that, as he had only held his present Office for three months, he had thought it better that his right hon. Friend (Sir William Harcourt), who had been Home Secretary for five years, should speak first. His right hon. Friend and himself had on a former occasion expressed an opinion in favour of the abolition of capital punishment; but on a reconsideration of the question he had come to the conclusion that public opinion was not yet ripe for such a course, and that it would not now be wise or safe to vote for the Motion. His right hon. Friend the Chancellor of the Exchequer (Sir William Harcourt), when at the Home Office, devoted a considerable portion of his time to the collecting of information from Judges and others who were specially competent to give advice upon this question with regard to the dividing of murder and manslaughter cases into three categories, and he did not see his way to adopt the recommendation of the Royal Commission upon the subject. The right hon. Gentleman (Sir R. Assheton Cross) who spoke last was in Office as Home Secretary for seven years after the Report of the Royal Commission was presented, but did not take any steps with the view of adopting the recommendation of the Commission in this respect. The right hon. Gentleman had also been in Office since his right hon. Friend had collected the information to which he had referred, which information formed a very considerable fraction of the Records of the Department, and yet he had arrived at no decision in the matter. In these circumstances, was it not hazardous that the right hon. Gentleman should now advise the House in a single sentence to adopt in principle what in practice he was unable to carry out? The Government could not advise the House to arrive at the conclusion at which the right hon. Gentleman wished them to arrive, and they felt it to be their duty to oppose both the original Motion and also the Amendment.


wished to explain, in reference to the remark of the Home Secretary, that during the seven years the late Conservative Government were in Office they took no steps to deal with the recommendations of the Royal Commission, that at the desire of Sir John Holker, then Attorney General, the question of categories was dealt with in the Criminal Code Bill.


said, there was no reference in the Criminal Code Bill to three categories; it had no connection with that.


said, that the definition of murder in the Criminal Code Bill corresponded with two of the categories recommended by the Royal Commission of 1866.


said, that a definition of murder could not correspond to two categories.


said that, as the Amendment was said to be impracticable, he would suggest that the House should adopt the only alternative, which was to vote for his Motion, and thus get rid of the whole question of capital punishment.

Question put, and agreed to.

Main Question put.

The House divided:—Ayes 63; Noes 117: Majority 54.

Abraham, W. (Glam.) Lane, W. J.
Abraham, W. (Limerick, W.) Leahy, J.
Leicester, J.
Allison, R. A. Mather, W.
Arch, J. Morgan, O. V.
Armitage, B. Nolan, J.
Atherley-Jones, L. O'Brien, W.
Biggar, J. G. O'Doherty, Dr. K. I.
Blake, T. O'Hanlon, T.
Blane, A. Paget, T. T.
Bradlaugh, C. Pease, H. F.
Bright, W. L. Pilkington, G. A.
Brunner, J. T. Power, P. J.
Burt, T. Redmond, J. E.
Byrne, G. M. Richard, H.
Campbell, H. Richardson, T.
Chance, P. A. Robson, W. S.
Connolly, L. Roe, T.
Conway, M. Russell, E. R.
Conybeare, C. A. V. Sheehan, J. D.
Cossham, H. Shirley, W. S.
Craven, J. Stack, J.
Crawford, W. Storey, S.
Fenwick, C. Swinburne, Sir J.
Gill, T. P. Tanner, C. K.
Gourley, E. T. Watson, T.
Hayden, L. P. Williams, J. C.
Holden, A. Wilson, H. J.
Holden, I. Wilson, I.
Howell, G. Wilson, J. (Durham)
Hoyle, I.
Illingworth, A. TELLERS.
Jordan, J. Cook, E. R.
Kelly, B. Pease, Sir J. W.
Acland, A. H. D. Baumann, A. A.
Acland, C. T. D. Bennett, J.
Agg-Gardner, J. T. Beresford, Lord C. W. De la Poer
Allen, H. G.
Allen, W. S. Bethell, Commander
Asher, A. Bickersteth, R.
Balfour, rt. hon. J. B. Bigwood, J.
Balfour, G. W. Blades, J. H.
Barnes, A. Blaine, R. S.
Borlase, W. C. Johnston, W.
Borthwick, Sir A. Jones, P.
Boyd-Kinnear, J. Kilcoursie, right hon. Viscount
Brodrick, hon. W. St. J. F.
Kimber, H.
Caine, W. S. Latham, G. W.
Childers, right hon. H. C. E. Lawson, H. L. W.
Leake, R.
Coleridge, hon. B. Lethbridge, Sir R.
Corbett, A. C. Llewellyn, E. H.
Cox, J. R. Lockwood, F.
Crilly, D. Lyell, L.
Crompton, C. M'Arthur, A.
Cross, rt. hn. Sir R. A. Norton, R.
Crossley, Sir S. B. O'Shea, W. H.
Dalrymple, C. Picton, J. A.
Davies, D. Playfair, rt. hon. Sir L.
Davies, W.
De Cobain, E. S. W. Powell, F. S.
Dickson, Major A. G. Powell, W. R. H.
Dimsdale, Baron R. Priestley, B.
Donkin, R. S. Quilter, W. C.
Douglas, A. Akers- Roberts, J.
Duckham, T. Roberts, J. B.
Duncan, Colonel F. Robertson, E.
Durant, J. C. Robinson, T.
Dyke, rt. hon. Sir W. H. Sheridan, H. B.
Sidebottom, W.
Ellis, J. Spencer, hon. C. R.
Ferguson, R. Spicer, H.
Flower, C. Stansfeld, right hon. J.
Fraser, General C. C.
Gladstone, H. J. Stevenson, F. S.
Goldsmid, Sir J. Stevenson, J. C.
Goldsworthy, Major-General W. T. Stewart, M. J.
Strong, R.
Gorst, Sir J. E. Sturrock, P.
Gower, G. G. L. Temple, Sir R.
Greenall, Sir G. Tuite, J.
Gregory, G. B. Valentine, C. J.
Grove, Sir T. F. Vanderbyl, P.
Haldane, R. B. Vincent, C. E. H.
Harcourt, rt. hn. Sir W. G. V. V. Wason, E.
Watson, J.
Harker, W. Watt, H.
Harrington, E. Wayman, T.
Havelock - Allan, Sir H. M. Will, J. S.
Woodall, W.
Healy, T. M. Woodhead, J.
Heaton, J. H. Wortley, C. B. Stuart-
Herbert, hon. S. Wright, C.
Hill, Lord A. W. Young, C. E. B.
Hingley, B.
Holmes, rt. hon. H. TELLERS.
Howard, E. S. Marjoribanks, rt. hon. E.
Hunt, F. S.
Johnson-Ferguson, J. E. Morley, A.

Notice taken, that 40 Members were not present; House counted, and 40 Members being found present,

Back to