HL Deb 14 June 1841 vol 58 cc1486-93

On the Motion of the Marquess of Normanby, the House resolved itself into Committee on the Punishment of Death Abolition Bill.

On the second clause,

Lord Wynford

moved, that the offence of destroying or attempting to destroy sacred edifices, should be excepted from the operation of the bill.

Amendment negatived.

On the third clause,

The Marquess of Westmeath

expressed his objection to that part which removed the crime of rape from the list of capital offences. If their Lordships should agree to that proposition, as respected England, which it appeared to him would be an act of madness, he conjured them to pause before they extended the bill to Ireland. He found from authentic returns, that the number of assaults upon females, with intent to commit a capital offence, which occurred in 1840, in England, with a population of fourteen millions, was 169; whilst in Ireland it was 173, with a population of only eight millions. [Lord Brougham: 173 cases of rape?] Of rape, and assaults with intent to commit a rape. [Lord Brougham: That made a considerable distinction.] He repeated, that there were in Ireland, in the year 1840, 173 cases, out of a population of eight millions. As he had before said, he trusted their Lordships would not sanction the extension of the clause under consideration to Ireland.

The Earl of Mountcashell

protested against such a clause as the present, as it went to break down all those barriers which had hitherto remained sacred as a protection to defenceless woman.

The Marquess of Normanby

observed, that if it had before been necessary that his noble Friend and he should have assured their Lordships, that they had not given their support to the alteration of the criminal law in this respect from their want of abhorrence of the crime it attempted to repress, it became now even more necessary to give them that assurance. Indeed, he would add, that it was the abhorrence with which his noble Friend and he regarded this atrocious crime which had induced them to support this clause, as the way to render the punishment both certain, and likely to prove effective in the repression of the crime. He hoped that the alteration would have the effect of inducing jurors not to seek hereafter for ingenious reasons to disbelieve the evidence of unhappy females who had been thus abused, as had too frequently been the case of late years upon trials of this nature. It would also prevent, by inducing convictions in cases clearly made out by the evidence of the female injured, that which had been but too frequent, the infliction of a stain upon the character and veracity of the poor sufferer — a stain which was almost inseparable from the rejection of her evidence by the jury, and the acquittal of the party arraigned. For these reasons he trusted their Lordships would reject the amendment.

Lord Abinger

admitted, that our criminal code had with great justice been stig- matised by the civilised world as too sanguine. Still he conceived the bill, or at least this clause of it, went rather too far, and he could have wished, for his part, from all he had been enabled to gather upon the subject, that the punishment of death for aggravated offences of this kind should be retained. It had certainly been found, upon reference to the returns of convictions for this offence during the last ten years, that the sympathies of the neighbourhood where the offence had been perpetrated were but too generally excited in favour of sparing the life of the party, and this very materially militated against the due administration of the law as it stood, for the consequences were, that the Home-office was besieged by applications in favorem vitœ, and thus it happened, that the law imposed upon a judge the invidious duty of pronouncing the sentence of death upon criminals of this kind, which was scarcely ever executed. He would with deference ask their Lordships, what was the use of a capital punishment for a particular offence remaining on their statute book which was rarely ever suffered to be inflicted on the culprit? He confessed his objection went no further than this, that the capital punishment should not be altogether abolished, but should be reserved for aggravated and atrocious cases. If they adopted this course, they would not hereafter find jurors so anxious to seize upon every trifling pretext or formal legal nicety, in order to destroy the evidence of the woman, and save the culprit from a sentence of death—a sentence which always enlisted the sympathy of the jurors to a great extent. He should have been glad if any noble Lord had introduced a clause making an act of this kind, committed by several men upon a female, a capital felony against all the offenders, but as this had not been attempted, he confessed he was not prepared to move such a clause, and he should therefore support the clause as it stood.

The Earl of Winchilsea

said, he could not support the clause. He believed, that the punishment of death for cases of violent assault and forcible rape was indispensable for the protection of virtuous females, for he was fully convinced, that nothing short of the positive dread of an ignominious death could restrain those fierce passions which the most charitable in society admitted sunk the offender lower than the brute. Entertaining the strongest objections to the principle embodied in the clause, he should, therefore, move the third clause be omitted.

Lord Brougham

admitted the subject under consideration was one of the utmost importance to the morals of society. Within the last four or five years there were about a hundred prosecutions for this offence, but only twelve convictions. The jurors could not be prevailed upon for any consideration to be made parties to what must turn out to be the destruction of human life, where there was the possibility or a doubt in their minds that guilt did not really exist. He must remind their Lordships of the great peculiarity of this offence. A very learned judge had said, with reference to this offence, that the accusation was very easily made, but most difficult to refute. It was not simply a question whether the prisoner should be convicted or not, but it was a question as to whether the prisoner should be convicted or the witness discredited. The consequence of this consideration was, that the juror always felt more or less a doubt hanging over the testimony given, and hence the difficulty under the existing law of procuring convictions where guilt did really exist. The juror would say, he would not send the prisoner to be executed upon evidence which he was not willing to believe. He recollected an extraordinary case which had occurred not very long ago, of apparently the most aggravated nature. The prosecutrix was called and examined at great length, the case appeared to be perfectly plain, and the feeling with which the judge and the jury were influenced was, that it was a case of extra-personal violence, and one of the most aggravated nature. The evidence that was adduced on the occasion went to show, that the prosecutrix had been knocked down upon the ground with the most brutal violence. The prisoner denied the charge altogether, but the charge against him appeared to be so clearly proved, that the jurors overcame their usual scruples and brought in a verdict of guilty. Notwithstanding this result, it soon afterwards appeared there was every reason to believe, that this verdict was an erroneous one. Notwithstanding all appearances were against the unfortunate prisoner, it speedily turned out that the prosecutrix should not have been believed. His noble Friend at the head of the Home Department immediately or- dered a commutation, or a postponement of the sentence (he did not recollect which), but at all events time was given for further inquiry into the matter, the result of which was, that the most satisfactory evidence was produced to show, that the commutation and postponement of the sentence was right, and the verdict of the jury was wrong. The evidence was no less than the complete confession of the prosecutrix herself. The bare existence of such a case, from his knowledge of the law in this country, will make it for years and years to come, impossible to procure, in that part of the country, a conviction for this offence. It was for the purpose of making the law effective, and to prevent the recurrence of such cases as that he had just stated, that he wished to see the law in this respect changed. He wished it were possible to frame the law so as to retain capital punishment for particular cases of an aggravated nature, and in which the offence had been prove beyond the possibility of a doubt, and to abolish capital punishment in those of a general description. This House was certainly not bound to pay that deference to the other House of Parliament, by passing this bill, because the other House had agreed to it, but, upon a question of this peculiar description, he thought they were bound to look at what was passing in the House of Commons, which had so many divisions of late, and which had latterly been muttering rather than pronouncing its decisions upon so many important questions of policy. But upon a question like this before their Lordships, when they saw the other House, notwithstanding their conduct on other subjects, coming forward with the majority of two or three to one in favour of this clause, he thought their Lordships should agree to it. He would venture to say that, practically speaking, if the law stands where it does, it is changed in its administration, and should now be altered in its letter. He would, therefore, earnestly hope that their Lordships would affirm the clause.

Lord Wynford

said, that he considered capital punishment should be retained in cases of an aggravated nature, and where the prosecutrix was corroborated in her evidence. He thought the sympathy of the public would always go with the punishment, particularly when the offence had been committed by two or more persons, and where the prose- cutrix had been clearly confirmed in her testimony by 'another witness. He could not help thinking that there was some inconsistency in proposing a bill of this importance the last week of the Session. He was of opinion that it was much better to leave the law as it stood than to legislate upon it in a hurry. By so doing he was satisfied that no improper execution would take place. He suggested that the law should be left as it was, until they could give the subject that deliberation which the importance of the case demanded. He was, however, of this opinion, that there should be always a confirmation of the evidence against the prisoner before capital punishment should be inflicted. If the House should divide upon the amendment, he should vote in favour of expunging the clause altogether.

The Lord Chancellor

said, that their Lordships should recollect that the question was not altogether as to whether the individual deserved the punishment which the law awarded for this offence, but whether that punishment was calculated to prevent the commission of the crime. Now, if they found that the severity of the punishment attending the commission of this offence, and the probability of the prisoner's innocence, notwithstanding the evidence of the prosecutrix, if they found that these ideas were operating upon the jurors' minds, to deter them from finding the prisoner guilty, and thereby perhaps, in many cases enabling the really guilty to escape, surely they must see that the law required some alteration. The law was formed not so much for punishment as prevention. With this view of the question, he thought they would have no difficulty in coming to the conclusion, that by retaining this clause as it stood, they were adopting that course which was better calculated to prevent the commission of this offence than when the law was more severe. It was the certainty of punishment and not the severity of the punishment that prevented crime. It was because there was such a great probability of escape, that the offence had been so often committed. The noble Marquess who moved this question before the House had referred to certain returns in 1840, but he had included in the one number the charges of rape, and the charges of assaulting with the intent to commit rape. If the noble Marquess had pursued his inquiry, and kept those returns separate, he would doubtless have found an argument strongly opposed to the part he had taken in this debate. It appeared by the returns of the number of charges for rape during the year 1840, there were fifty-six, of which number only eighteen had been convicted, being only about the one-third. But of the charges of assault with the intent to commit a rape there were 106, and seventy-four convictions, being about two-thirds. He would ask if those facts did not lead them to the conclusion, that by keeping up the severity of the punishment they were only encouraging rather than suppressing the crime.

The Earl of Haddington

said, he had come down to the House with an inclination to vote for the omission of the words objected to by the noble Marquess; but after hearing the reasons urged for their retention, founded on the state of public opinion, and the experience of the last ten years, as well as the arguments of the four learned Lords who had spoken in the course of the debate, he confessed he could not vote for their omission. But he was most desirous to frame a proviso, if possible, to retain the punishment of death for aggravated cases of rape effected by a combination of persons.

The Marquess of Westmeath

remarked that the law would adopt the principle of the New Poor-law, which threw the whole hardship on the mother in the case of a putative child, by throwing all the hardship on the woman in cases of violation. In order, therefore, to make room for the amendment which would have been proposed by his noble Friend, he would withdraw his amendment.

The Earl of Chichester

said, that leaving the law capital in respect to certain aggravated cases would defeat the object of the legislature, for the counsel for the prisoners would, in pleading for them, work on the feelings of the jury by impressing on them that by bringing in a verdict of guilty they would, perhaps, hang an innocent man; and thus the doubt and the contemplation of the awful contingency would induce juries to acquit the criminals of whose guilt they might not have the slightest moral doubt. Such a clause would therefore be of no real protection to women. His experience as a chairman of quarter sessions had impressed upon him the opinion he now gave.

On the question that the clause stand

part of the bill, their Lordships divided. Contents 42; Not Contents 38: Majority 4.

The Marquess of Westmeath

asked whether the noble Marquess opposite would on the third reading propose any proposition to meet aggravated cases of rape?

The Marquess of Normanby

said, he thought the difficulties in framing such a provision would be insuperable; he should therefore neither propose a clause himself, nor agree to one proposed by any other noble Lord.

Bill reported—to be read a third time.

Adjourned.