PUNISHMENT OF DEATH. (Hansard, 17 June 1841)

The Marquess of Normanby
moved the second reading of the Punishment of Death Bill.

The Earl of Haddington
said, 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 Normanby
felt 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 1553 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 1554 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 Winchilsea
intimated, that it was his intention to propose an amendment, by striking out the two last lines of 1555 clause 3, and if the amendment was rejected, he should propose, that the third clause be struck out altogether.

§ Lord Denman
said, 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 1556 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 Wicklow
opposed 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 Lyndhurst
suggested, 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 Abinger
observed, 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 Denman
said, 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 Haddington
thought the best course would be to postpone the bill until to-morrow.

The Marquess of Normanby
said, that 1557 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 Westmeath
knew 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 Wicklow
said, 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 Brougham
said, 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 1558 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 Normanby
had 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 Wicklow
could 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 Devon
had 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 Harewood
did 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 1559 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 Haddington
thought 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 Winchilsea
said, 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 Brougham
said, 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 Devon
differed 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 Wellington
said, 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- 1560 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 Winchilsea
said, 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.