Lords Sitting of 17 June 1841

MINUTES.
Bills. Read a first time:—Highway Rates.— Read a second time:—Militia Pay; Appropriation; Election Petitions; Madhouses (Scotland); Dog Carts, &c.— Read a third time:—Dublin Wide Streets; Sewers; Western Australia; New South Wales; Houses of Industry (Ireland); Insolvent Debtors (Ireland); Banks of Issue; Municipal Corporations; School Sites.
Petitions presented. By the Earl of Devon, the Earl of Clare, and Earl Fitzwilliam, from Devonshire, Yorkshire, and other places, for a Repeal of the Corn-laws.—By the Duke of Rutland, from Croydon, against the New Poor-law Bill.

PUNISHMENT OF DEATH.
The Marquess of Normanbymoved the second reading of the Punishment of Death Bill.
The Earl of Haddingtonsaid, he should move as an amendment to the clause relating to rape, that after the word "death," near the end of the clause, should be inserted "excepting in cases of rape, where more than one person is concerned."
The Marquess of Normanbyfelt it his duty to resist the amendment; her Majesty's Government thought the proposition of an hon. and learned Gentleman in the other House was well worthy of their attention, and one it would be consistent with their duty to support. He (the Marquess of Normanby) thought, that as far as number was concerned, the offence was he same. He would call the attention of their Lordships to a circumstance which

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had happened about two years ago. Their attention had been called to cases where conviction had taken place, but he would bring before them a case where conviction had not taken place. So strong was the case to which he was about to allude, that the neighbouring magistrates forwarded a memorial to her Majesty's Government respecting it. Of that memorial the following is a copy:—
"Copy of Memorial from several Magistrates, addressed to the Right Hon. Lord John Russell, as Secretary of State for the Home Department, in 1837.
"We the undersigned, being resident in and near Gloucester, feel deeply interested in a trial that has just taken place at the assizes in this city, and considering its result has a most important bearing on the proposed alterations in the criminal laws, now under the care of Government, feel it our duty to lay before your Lordship some important particulars of the trial, for the veracity of which we beg to refer to the judge, Mr. Baron Bolland; to Sergeant Ludlow, or to any other official person connected with the court.
"It appears that three men. named Parry, Wright and Rea, were indicted for a violent assault and rape, committed on the person of Mary Lee. The evidence not only proved most clearly the guilt of the prisoners, but also that the crime had been committed under the most revolting circumstances of violence and cruelty.
"The jury, after a long deliberation, inquired of the judge whether they could bring in any mitigating form of verdict which would save the lives of the prisoners, of whose guilt such an inquiry proves they were convinced. On finding, however, there was no alternative between acquittal and death, their fears of being accessory to the infliction of this dreadful punishment appears to have overcome every other consideration, as they soon returned a verdict of ' not guilty,' to the astonishment of all who had heard the evidence given in the court. The case has produced an unusual sensation in this city and neighbourhood, and every one feels that there must be something decidedly wrong for men so clearly guilty of so black a crime to be thrown back upon society altogether unpunished, by the verdict of twelve disinterested men. And if the evil, wherever it may be, is not speedily corrected, society will be left in a fearfully unprotected condition, and a great encouragement will be given to the commission of the deepest crimes.
"It is this circumstance that has excited and alarmed the public mind in this neighbourhood with regard to this case, and has induced us to bring it especially under the notice of your Lordship at this important juncture, as a clear and practical illustration of the evils arising out of our present system of criminal jurisprudence—evils which, we believe, can only be remedied by such an alteration in the law as
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shall substitute some severe secondary punishment for that of death.
"We may throw the blame upon the jury, it is true, but that will not correct the evil of which we complain, since, from what we have seen of the difficulty of obtaining convictions in capital cases, and from what we know of the growing repugnance in the public mind to the sacrifice of life, we consider it quite certain that juries will be found more and more unwilling to become accessory to a punishment at which their feelings will increasingly revolt as it becomes more rare, and the uselessness of which, for the protection of society, is daily becoming more apparent.
"In the hope that this private communication of the facts above stated may tend to determine your Lordship in carrying the proposed ameliorations of the criminal law sufficiently far to meet the decidedly altered views of society, and to secure the community against the improper acquittal of guilty and dangerous men, we beg to subscribe ourselves, your Lordship's most obedient humble servants,
[Signed by the mayor (Shute) of Gloucester and four county and city magistrates.]"
Now, the circumstances of this case were most revolting, and there was no doubt as to the facts. Nevertheless, the jury put this question to the judge— whether, if they found them guilty, the men's lives would be spared? The result was an acquittal. The jury were to blame, certainly, but this was the general feeling amongst jurors, and the great object of their Lordships was to obtain convictions. In another case, where the party was indicted for an assault and rape, an acquittal took place, the judge having informed him (the Marquess of Normanby) that the extreme penalty of the law being attached to the crime prevented a conviction taking place. He would put it to their Lordships whether, when the convictions had diminished in proportion to the acquittals to so large an amount as the returns exhibited, it would not be most judicious in them to amend the law, so as to ensure conviction in every case where the facts warranted it. He believed, that the interests of justice would be best promoted by not attempting to make the distinction proposed by his noble Friend. The practice and experience of courts of law had shown that juries, upon whom they must rely for carrying the law into effect, would not convict where the capital punishment was attached.
The Earl of Winchilseaintimated, that it was his intention to propose an amendment, by striking out the two last lines of

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clause 3, and if the amendment was rejected, he should propose, that the third clause be struck out altogether.
Lord Denmansaid, he was extremely unwilling to take any part on a question relating to the amendment of the criminal law, unless he distinctly saw that the House of Lords was determined to pass the amendments suggested, because he felt the utmost inconvenience if, as a legislator, he should oppose a law which, afterwards, as a judge, he might be bound to carry into effect. He had therefore abstained from taking part in the discussion which took place on the measure the other night, and had also abstained from coming down to the House, because he found the House of Commons had sent up a bill to abolish the punishment of death in cases of that sort, and he waited for the decision of their Lordships, and to bow to the law as it should be pronounced by the Legislature. But he must say he thought, when the House of Commons had sanctioned a principle as to the offence in general, and when their Lordships also had sanctioned a principle as to the offence in general, it was a monstrous anomaly that capital punishments should be kept alive with regard to the particular mode of the offence. It was clear, that the offence as committed by many persons might partake of a character of cruelty and profligacy which might not be the case with regard to offences committed by individuals. But rapes committed by individuals might be of a far worse character than those committed by several persons. He (Lord Denman) had had experience on this subject, and he knew by experience these rapes were seldom deliberately committed. They were usually the result of some accidental communication at a fair or junketing, where persons of different sexes came together, and when at a late hour of the night some unfortunate female, whose imprudence had led her into the company, became the victim of brutal and disgusting outrage. But he was sure, that there were cases of this sort where their Lordships' feelings, and the feelings of the public would revolt at the infliction of the punishment of death. Then why should one class of cases be selected in order to raise inquiries respecting it, and to raise the most painful duties that could possibly be cast upon a jury? Was it fit still to ask juries as an alternative, whether they would commit perjury or that
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which they considered to be murder? He believed the principles were much too strongly urged. His own opinion was, that the juries manfully did their duty, and that it was as often the fault of the judge who contemplated with horror the depriving a fellow creature of life as of juries, that persons accused of this crime were frequently acquitted. He confessed, that it appeared to him, that it would be injurious to make this single exception. It was one to which the ministers of the law would feel the greatest objection. He had no wish to press their opinions against the decision of their Lordships, but as he had found that the opinions and representations of the judges had had great weight with their Lordships, he would take the liberty of suggesting, that before this clause was passed, himself and his noble Friend (Lord Abinger) should have an opportunity of conferring with the judges and ascertaining their opinion. He would have refrained from making those observations, had he not felt, that the general principle being once carried, no small and accidental circumstance should be suffered to interfere with it.
The Earl of Wicklowopposed the amendment, on the ground that there were grades of criminality in the offence; that in some forms it was aggravated, and in others of less importance. If they drew a distinction at all, they must draw it in such a number of cases, that it would be an absurdity to abolish this punishment at all.
Lord Lyndhurstsuggested, that the word "concerned" in the amendment of his noble Friend, might have a larger legal sense than he intended, as one who was privy to the commission of the offence, though absent, was said to be concerned in it.
Lord Abingerobserved, the question which had been started, showed with what a serious question they were dealing. It would really appear, from the way in which it was forced on them, that they were a cipher in legislation.
Lord Denmansaid, the question was, whether public opinion had decided the principle of this measure, not whether one day or ten days were allowed for the discussion of it.
The Earl of Haddingtonthought the best course would be to postpone the bill until to-morrow.
The Marquess of Normanbysaid, that

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if there was any strong feeling in the House, that the question required further reference, he should not oppose it, though at the same time he was prepared to give a negative to the postponement of the question; and also to urge upon their Lordships to do so. His own inclination was to go on, but still, if it was the opinion of the House, that a postponement should take place, he should not object to it. As to his having the opinion of the judges, when he spoke on that point he merely meant to say, that he consulted the judge who tried each case, which was submitted to him, and the opinions of the judges he found to be such as he had stated.
The Earl of Westmeathknew not what the noble and learned Lord opposite meant by the sanction of public opinion. He had seen some clever publications, urging the abolition of the punishment of death, but who would say, that these conveyed correctly the public opinion?
The Earl of Wicklowsaid, it was true, this bill had been carried this Session by the House of Commons; but it had been rejected Session after Session in former years. And how was it now carried? In the very last days of the Session, when the House was hurrying to terminate its business, and when it could not give due consideration to any subject of importance, much less to one of such vast magnitude as this. If they passed this law, they would lower themselves in public opinion; for as the organ of the public voice, they would sanction what the people of this country would never confirm —that sodomy and rape were not crimes of so heinous a character as to deserve death.
Lord Broughamsaid, that among the reasons given for postponing the measure was the great difficulty in framing a provision of this description. He had on a former occasion, when the subject was before the House, stated those difficulties. He thought, that the subject, from the difficulties which surrounded it, required further consideration, and that their Lordships should pause before they proceeded to introduce a change in the present law. He was not aware, that it would be impossible to revert to the capital punishment in aggravated cases, if it should be found free from the objections to which he had alluded, and if the difficulties could be overcome. He could not agree with
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the doetrine, that if they remitted a severe punishment in any case they had not a right, after having had greater experience and after having further considered the subject, to retrace their steps, and resort to the severe punishment again, if it should be found necessary; and he should think, that in making alterations in the criminal law, he should incur a great risk, if those alterations were to be considered as final, conclusive, and binding, and could not be altered after further experience. He thought enough had been said to show, that it would be better to post-pone the further consideration of this enactment.
The Marquess of Normanbyhad no objection to adjourn the debate until tomorrow. It would be extremely inconvenient to postpone it beyond to-morrow, because, if there were any amendments made, the bill must be returned to the Commons.
The Earl of Wicklowcould see no reason for postponing the whole subject. They could divide upon the clause at once, and if it should not be rejected, then the consideration of the proposition before their Lordships could be postponed until to-morrow. He hoped his noble Friend would persevere in his motion for expunging the clause.
The Earl of Devonhad ever been favourable to the system which had prevailed of late years, and supported proposition after proposition for the mitigation of the penal law. The object they had to determine was not in his opinion, whether they should refer for information to the judges for their opinion, as a basis whereupon to legislate. He was convinced already, that the alteration in the law proposed in the third clause of this bill would not effect the object sought—namely, the certainty of conviction by the juries impannelled. He should, therefore, support the proposition, that the clause be altogether omitted.
The Earl of Harewooddid not think it was becoming in their Lordships to require the opinion of the judges to authorise them to legislate on this subject. He could not at all subscribe to the opinion, that the House ought to legislate on the opinion of the judges. He objected to the manner in which it was proposed to obtain that opinion. The noble and learned Lord was to collect it in his conversation with those learned persons, and

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then to report it to the House. He thought, that the House ought neither to legislate on the opinion of the judges, nor on the opinions of juries. Whether or not juries would do their duty in convicting prisoners guilty of this offence, he never would consent to see it visited with any punishment short of death.
The Earl of Radnor: The question was not, what crimes were worthy of death, but what were the punishments which would be effectual in repressing crime. When jurors forswore themselves rather than bring in a verdict of guilty, from the apprehension that loss of life would follow their decision, they must alter the punishment, for it was no longer effectual for its purpose.
The Earl of Haddingtonthought it was only common sense to be desirous of obtaining the opinions of the learned judges, who were the most competent persons in the land to give an opinion on such a subject. He hoped, that the debate would be adjourned.
The Earl of Winchilseasaid, that there was no question of law to be submitted to the judges. The question simply was, whether such and such crimes were to remain capital felonies punishable with death. He could not, therefore, consent to the postponement of the bill.
Lord Denman, in explanation, said, he did not wish that the opinion of the judges should be obtained as a basis for legislation. He only desired to obtain their general impression on the subject.
Lord Broughamsaid, that the rational and regular course to pursue would be to consider the proposed amendments before they proceeded to expunge the clause altogether.
The Earl of Devondiffered from the noble and learned Lord. It would be a waste of time to discuss amendments, if the House should be of opinion that the whole clause ought to be expunged.
The Duke of Wellingtonsaid, that the question before the House was a question which would be likely to be brought to a more satisfactory decision by an adjournment. It appeared, that all the other questions remained, with ample time and opportunity for their Lordships to decide upon them. He was, therefore, afraid, that if they did not adjourn this debate, they would not have time or opportunity to arrive at any satisfactory result upon it. He hoped they would adjourn this ques-
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tion until to-morrow, in order that they might have time to make up their minds upon it, after inquiring further into it.
The Earl of Winchilseasaid, he saw most willing to give way to the opinions which had been expressed by the noble Duke as well as other noble Lords, and he would have no objection to have this debate adjourned until to-morrow. At the same time, he begged to give notice, that he would move to strike out the first part of the clause altogether, or however amended it should be by their Lordships, he was determined to move that it be entirely expunged.
Debate adjourned.

PRIVATE BILLS—DISSOLUTION
Lord Wharncliffebegged to ask the noble Viscount whether he had considered the hardship to which individuals who had private bills before the House would be exposed by the dissolution, and what the noble Viscount proposed to do?
Viscount Duncannonsaid, that he was quite aware of the great hardship that those parties would be subject to, who were interested in the progress of private bills through Parliament this Session, by having their bills set aside by the dissolution of Parliament, and the heavy expense they had been already put to, thrown away. He had made inquiries into the subject, with a view of, if possible, providing some remedy for these grievances, and he had found, that on former occasions, of a similar description to the present, the Government had introduced a resolution into the new Parliament to place those parties in the same situation as that in which they would have stood had there been no dissolution. He begged to assure the noble Lord, that the same course would be pursued by her Majesty's Government, in the ensuing Parliament which had been adopted by other Governments to which he had alluded.

BRIBERY AT ELECTIONS.
The Marquess of Normanbymoved, that their Lordships should resolve themselves into a Committee on the Bribery at Elections Bill.
Lord Broughamfully agreed in the strong desire which had been generally expressed, that some measure should be immediately passed through the Houses of Parliament which would have the effect of putting an end to

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that abominable and wholesale system of bribery which had been carried on in so many cases throughout the kingdom. But however anxious he was to see such a bill passed, he must say that, in his opinion, the bill which was now before the House, and which purported to be a bill that would at once get rid of this abuse, was, on the contrary, a measure which would give every indemnity for the most wholesale bribery, and its more disastrous consequences. The bill first said, that all persons whatsoever shall be compellable (without any exception) to come forward and give evidence as to any act of bribery which may have come to their knowledge, including not only agents, including not only the parties, including not only the accessories to the bribery, but also including the evidence of the wife against the husband, without allowing any indemnity; also including the evidence of the counsel against the client, and the evidence of the solicitor and attorney against the client; yes, even the attorney was bound by the first section of this act, to give evidence against his client. If, after the client had perpetrated the offence, he came to consult his counsel or his attorney, that counsel or attorney who was to defend him, after the offence had been committed,—this confidential communication, which had been made for the purpose of aiding the defence of the client, might, by this bill, be extorted from his counsel or solicitor; and this he thought was contrary to every rule that had ever been laid down for the administration of justice. If it were said, that it had been intended to make an exception in the case of a wife as against her husband, or a solicitor or counsel against his client, that the judge would have power to make an exception in favour of these cases, he would say, that the judge had no right whatever, by the bill as it stood, to exclude any such cases at all. In fact, the question would not come on before the judges, but before the chairman of committees in the other House of Parliament. The second section enacted, "As well the candidates at any such election, or Members of the House of Commons." Now, he thought it might be as well if the word "and" was here introduced, instead of the word "or." And then it went on to say—" The chairman, by the direction of the committee, shall have a right to report to the House, if the party refuses to give
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evidence, for the interposition of their authority or censure." The interposition of their authority or censure ! Now, he would ask, did mortal man ever hear of an Act of Parliament drawn up in this way? Why was it not written "their authority and censure?" Surely, if the House possessed authority, they also would possess the power of marking their approval or censure. Very little care, he thought, had been taken in the drawing up of the bill. The first section compelled the disclosure of bribery. Now, if they admitted the stringency of the first clause, they would see that there was no power given of an indemnity in favour of any persons. He therefore thought, that the only indemnity which it gave was, to secure the commission of a wholesale system of bribery. It would secure those who had given and taken bribes; for all that a party had to do, who had employed a score or two of corrupt and profligate persons to distribute money for the purpose of bribery at elections,—all that a party who was engaged in the defence of the persons who had been guilty of bribery —all that such a party had to do to secure an absolute and perpetual indemnity, both from a civil suit and criminal proceedings, and the censure of Parliament, was simply to go through the ceremony of calling up every one of those corrupt persons, and putting a single question to each. The present bill, in the 7th clause, would give an indemnity to candidates, as well as agents, guilty of bribery; for while such candidates, being proved guilty of bribery, were not re-eligible under the present law, they would be re-eligible under the bill proposed. The candidate being unseated on one allegation might, after a dexterous confession of his agent, go down again to his constituents, and be re-elected. It would also, in a great degree, indemnify agents. Would their Lordships pass such a bill? But being most anxious to prevent, as much as possible, the recurrence of acts which were most dangerous to the franchise, and the freedom of election itself, as well as subversive of the rights, liberties, and morals of the people, he would be happy to support any measure calculated to put a stop to those evils. The fourth clause, he allowed, was an exception to his general censure of the bill, and therefore he would retain it.
Lord Abingerconcurred in all the animadversions of his noble and learned

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Friend. Indeed, they were unanswerable So hastily and crudely had this bill evidently been framed, that the inference from its contents naturally was, that its authors really did not intend that it should pass. A bill on such a difficult and important question of legislation should have been drawn up only after solemn and laborious consideration. But here we had a measure brought forward on the very eve of the close of the Session, most hastily put together, and yet proposing the enactment of clauses, which would be contrary to all the law and usages of this country; for such was the character of the section which would compel parties to criminate themselves. Even if it were right and just to make so great a change, surely it ought not to be done in the hasty legislation of one night. And, after all, the bill, if passed, would, as his noble and learned Friend had shown, protect bribery instead of prevent it. Still, he admitted that the fourth clause was a good one, and acquiescing in the wish of his noble and learned Friend, he would consent to its going into committee.
The Marquess of Normanbyhoped the noble and learned Lord would withdraw the insinuation he had thrown out to the effect that the author of the bill did not intend that it should pass. The bill might be objectionable in many respects; but, for all that, he could assure the noble and learned Lord, the framers of it had been actuated by none but sincere intentions for its enactment.
Lord Abingermeant nothing personally offensive to the framers of the bill, he only spoke of the impression which its contents would make on the mind of any man.
Their Lordships in committee on the bill.
All the clauses in the bill, except the preamble, and the fourth clause, were rejected; and the preamble and the clause adverted to having been agreed to, the House resumed.
Report to be received.
Adjourned.