HL Deb 02 May 1845 vol 80 cc32-41
The Duke of Buckingham

rose to put a question of which he had given notice. Early on the morning of Tawell's execution at Aylesbury, it appeared that that prisoner made a statement in writing to the chaplain of the gaol at Aylesbury, in the presence of the governor, acknowledging that he was guilty of the crime laid to his charge, admitting that he put prussic acid into the porter, and that he had made a previous attempt, in September, on the life of the woman he murdered. This statement in writing was given to the chaplain, a gentleman of great respectability, whom he had known for many years. The magistrates, shortly after the execution, communicated to the chaplain that it was their intention to ask a question respecting this written statement, and expressed a hope that he would attend the meeting of the magistrates. The rev. Mr. Cox, the chaplain, did attend accordingly, and stated that he considered that the subject was one which ought not to be entered upon in open court; but, in reference to the letter he had received from the visiting justices, he said that he had no doubt, if he had a private interview with a certain number of those justices, that he should be able to satisfy them with reference to the line of conduct he had pursued. The magistrates declined to have this interview, and they sent to the Secretary of State for the Home Department a Resolution, embodying what occurred, and asked for his opinion. To this communication an answer was received to the effect, that the Home Secretary did not think it advisable to give instructions or offer an opinion on the subject, as it was very general and not one of immediate interest; but that if hereafter a case should arise in which the magistrates should desire his opinion, they had only to state the circumstances, and he would be ready to consider the case. This letter left in doubt the point whether the chaplain of a gaol receiving a confession was justified, after the execution of a criminal, in refusing to give it up, if the magistrates required the surrender of the document; and he should now ask a question on this subject, in order that their Lordships might have an opportunity of expressing their opinion on it. He thought it a matter of importance that no difference should exist between magistrates and chaplains of gaols; and it was for the satisfaction of the public, if a confession were known to have been made by a criminal, that it should be made public. Under those circumstances an expressed opinion on the part of their Lordships would be most important, as calculated to set at rest these doubts; and he therefore wished to know whether, in the opinion of the Government, chaplains of gaols were authorized in refusing to deliver to magistrates any confession made by a criminal in a gaol under their jurisdiction, if the magistrates should require the production of such confession?

The Duke of Wellington

said, he was not authorized by Her Majesty's Government to give an answer to the question. He understood that the chaplain alluded to was an ordained clergyman of the Church of England, and in that capacity had sacred duties to perform in receiving the confessions of persons who were placed in the unfortunate situation in which the criminal referred to had stood; and that by the canon law, which was recognised as part of the law of England, he was prohibited from revealing the purport of that confession, except it were for the safety of his own life, or unless by such confession he had become acquainted with an intended commission of high treason. He was now only expressing his own individual impression, as he had no authority to speak on the part of Government with reference to this point.

The Marquess of Clanricarde

said, that the subject brought forward was one of such importance, and the law referred to by the noble Duke of such a general nature, that he should not venture to offet an opinion respecting it; but he must observe that the law, as laid down by the noble Duke, had not been entirely observed by the chaplain in question, because, if the reports in the newspapers were correct, the chaplain had made a communication of the confession to two other parties; namely, to the Judge who tried the prisoner, and to the Home Secretary. If this were so, the question arose whether the visiting magistrates, who had jurisdiction over the gaoler, had not as much right to the confession as the Judge or the Home Secretary? While on his legs, he begged to ask whether any communication had taken place between the Government and the Sheriffs of London in reference to the scene which had recently passed in the gaol of Newgate, and to which he had called their Lordships' attention last Monday? He thought that that subject must be followed up by the House, because his attention had been directed to a statement in a paper, proceeding evidently from an authorized source, in which the Sheriffs justified their conduct.

The Duke of Wellington

explained, that he intended his observation to apply to an oral confession, and not to a written communication, made, too, in the presence of a third person.

The Bishop of Lincoln

said that, as tnclergyman who had been alluded to was uhe der his jurisdiction, he could join with the noble Duke (the Duke of Buckingham) in bearing testimony to the respectability of his character. He (the Bishop of Lincoln) had received no communication on the subject from Aylesbury, and all the information he possessed respecting it was derived from the public papers; from which, as he understood, it appeared that, after the conviction of the criminal alluded to, and on the morning of his execution, he put a written paper into the hands of the Rev. Mr. Cox, the chaplain of the gaol, in the presence of the governor of the prison, who was acquainted with its contents. The question, therefore, did not appear to involve any breach of confidence on the part of Mr. Cox. The noble Duke (the Duke of Wellington) had alluded to the law on this subject; and he concluded that the noble Duke meant to refer to the 113th Canon, which, however, had really no reference to the subject; because that Canon directed that clergymen, in case of the churchwardens not doing their duty, might, at the visitation of the bishop or archdeacon, present any parishioner who had been guilty of immoral or scandalous conduct; but, after enjoining the minister to make these presentments, the Canon went on to say, that if any parishioner, in order to unburden his conscience, should confess any secret crimes to the minister, then he was bound not to publish that confession except it were in respect of a matter for the concealment of which his own life might be brought into jeopardy. That Canon, then, had no connexion with the case now brought under their Lordships' notice. The question really was this—"Is the chaplain of the gaol so much the servant of the magistrates that he is compelled, on their requisition, to place in their hands the document?" It was a question, not of ecclesiastical discipline, but of civil regulation.

The Duke of Richmond

was obliged to his noble Friend for bringing the matter forward, which was one of importance. It appeared that the criminal had given a paper to the chaplain of Aylesbury gaol, in the presence of the governor. The chaplain read that paper to the criminal and to the governor; but on the magistrates asking for it, he refused to give it up. He (the Duke of Richmond) said, that the chaplain was not justified in this refusal. The paper was evidently not of such a confidential nature as that the magistrates ought not to have it. He thought that the magistrates were entitled to apply to the Home Secretary, under the circumstances; and he regretted that the only reply they had received from the Home Secretary was to the effect that he could not give an answer this time, but he would the next; so that there must be another dispute before the question could be settled.

Lord Campbell

said, that as reference had been made to the law, he would say, that by the law of England there was no protection for any confidential communication made to a priest. It had been ruled, that a priest receiving a confession, was bound to disclose it in a court of justice; and a man had been tried before Judge Buller for murder, and was convicted and executed, a confession he made to a Roman Catholic priest being evidence against him. As an humble individual, he must express his extreme regret at the anxiety evinced to obtain a confession after the conviction of a prisoner. When the prisoner had been convicted by a jury, their verdict approved by the judge, and the Secretary of State saw no reason to interpose, why, in the name of conscience, should the prisoner be tortured to make a confession? The consequences of forced confessions were immorality and hypocrisy. Many a culprit had gone out of the world with a lie in his mouth for the sake of his reputation. In some of the continental States of Europe, execution did not take place until confession was made; and to extort confession, the criminal was put to torture. [Cries of "No, no! It is done away with."] That was the law, and such was one of the results of the propensity to obtain confessions. When the verdict was once pronounced, the law should be left to take its course, without reference to the confession of the convict.

The Bishop of Exeter

said, he must venture to submit some little doubt of the correctness of the views of the noble and learned Lord; and he founded that doubt upon this great principle, that the Liturgy of the Church of England was part of the Statute law of the land. The Act of Uniformity stated, that it was set forth to the intent that every clergyman of the Church of England in these realms might certainly know the rule to which he was to conform in the administration of the Sacraments and other rites and ceremonies of the Church of England. Thus, the Book of Common Prayer was recognised as prescribing their duty to the clergy; and in that Book the clergyman was required to urge the sick man before him, if he saw that anything was on his mind, to confess. Would their Lordships say that the law of the land should compel a clergyman to urge a man to make a confession, and afterwards submit that confession to investigation in a court of law? The late Justice Park had put forth some such opinion as that expressed by the noble and learned Lord, in a case which came before him for trial, and cited the case now quoted by the noble and learned Lord. He (the Bishop of Exeter) asked the Judge what had really passed, and whether the doctrine so laid down could be maintained; he thought not, and he inquired into the circumstances of the case. He (the Bishop of Exeter) was alluding to a case before Justice Wilson, and not Justice Buller; the case, not of a Roman Catholic priest, but of a clergyman of the Church of England. Justice Wilson was of opinion that he was compellable, under the circumstances, to give the confession; and Justice Wilson consulted Lord Loughborough, who agreed with him. The case was cited again before Lord Kenyon, in a case which his Lordship said differed materially from that cited; and therefore, though he was ready to give every attention to the opinion of the learned Judge who determined the case, no account was taken of it. He (the Bishop of Exeter) repeated, that it was most important to bear in mind that the Liturgy of the Church of England imposed this duty upon the clergy.

Lord Stanley

remarked, that the question whether a clergyman, knowing that a person was guilty by his own confession, was morally or legally bound to bring that confession forward for the purpose of assisting an innocent man put on trial for the same offence, was a question of great nicety and difficulty; and the disclosure of a confession made by a prisoner before conviction might be considered so too; but the way to settle them would be to consider how far the ends of justice might be prejudiced or frustrated by withholding the confession. Those cases, however, differed from that of a man who made a confession, upon the brink of death, not for any worldly purpose, but for the unburdening of his mind and the relief of his conscience. That was a totally different question from the making known of a confession made before trial. But it appeared that in this case the confession had been disclosed. Perhaps such a confession might be disclosed for the satis- faction of the jury, that they had not convicted an innocent man; and, moreover, for the satisfaction of the public, that an innocent man had not been executed. But to disclose a confession made at the moment before death for the purpose of relieving the culprit's conscience was an interference with one of the most solemn duties of a religious minister. But in this case the clergyman had made public the purport of the confession, and had revealed the particulars of it to those persons to whom he thought it important to reveal them, not to the visiting magistrates. If the magistrates were dissatisfied with the mode in which the chaplain of the gaol had discharged his duty, it was in their power, and their exclusive power, to remove him from that situation, for the Government had no power in the matter. But he must venture to say, under such circumstances, no question of frustrating or forwarding justice being concerned, they had no right to call upon the Secretary of State to interfere with the chaplain. The disclosure of the confession he had received was a matter purely at his own discretion.

Lord Brougham

said, he hoped most earnestly that the magistrates would not think of exercising any such power of removal, because the clergyman had acted upon his own discretion and responsibility, and in his humble opinion he had exercised a very sound discretion. He heartily agreed with his noble Friend that it was no part of the duty of the Secretary of State to interpose with his advice upon such an occasion. He had yet to learn that the Secretary of State had either the authority to tell the magistrates what the law was, or had any duty cast upon him to answer law questions which the magistrates might put to him from time to time. His right hon. Friend might have been perfectly well advised in refusing to answer this question, and he would have been equally well advised in aiding the magistrates hereafter with his advice if he thought proper. But there was one matter so grave and important to the administration of criminal justice, that he should not exercise his duly in that House if he did not add something to what had been said by his noble and learned Friend. He dismissed altogether the delicate and important question whether a clergyman was bound to disclose previous to conviction that which had been communicated to him under the seal of secrecy in a confession. There had been cases in which the seal of secrecy had been broken, and clergymen compelled to disclose what they knew. But that question did not arise here at all. The authority of Justice Buller had been cited; but this was not that case. This was a case after conviction of a confession not made in any confidential manner, but upon paper, in the presence of a third person. But let it not be supposed for a moment that a confession was to be sought for to satisfy the public, or, above all, the jury. The public ought to be satisfied with the verdict of the jury, approved by the judge, and acted upon by the Government. There were three parties to the conviction and execution; the Jury, the Judge, and the Crown the fountain of mercy. The jury ought to have satisfied themselves upon legal evidence of the guilt of the party, and no confession should be wanted after that. If the jury were to be told that they must look forward to a confession to satisfy themselves afterwards, their consciences would be smitten if the confession were withheld; and if they were to be led to speculate, instead of weighing evidence, the consequence of a confession would be the solving of their doubts. If the jury had doubts, they ought not to convict. But if they had to convict upon moral, if not upon legal evidence, they should require no such confession to salve their consciences or satisfy their doubts; for this simple reason, that their consciences should be kept clear by an honest performance of their duty; so that when they gave their verdict, they should entertain no doubts. Confessions were sometimes made for the purpose of saving accomplices, and sometimes withheld by the most guilty criminals.

The Marquess of Normanby

said, that when he was Secretary of State for the Home Department, he had several interviews with the Sheriffs of London, and prevailed upon them to discontinue customs which had been practised, on the ground that they were a violation of decorum. But he wished to call the attention of their Lordships to another matter—the publication of the letters of a prisoner under sentence of death. Their Lordships were aware of the power that the authorities had of opening or superintending the letters of persons of that description. He was sure that power was never intended to be exercised in the way of furnishing to the public such disgraceful and disgusting instances of hypocrisy and blasphemy as two letters which were published in the newspapers on Tuesday last, addressed to two unfortunate women. Those letters had been made the subject of conversation and comment from one end of the country to the other by being so published. He wished to know whether the Secretary of State would interfere at once, in order to prevent the recurrence of such transactions?

Lord Denman

expressed his entire and cordial agreement with the sentiments of his two noble and learned Friends. In consequence of the extreme anxiety to obtain confessions, it would seem that juries had been taught to suppose they had done something wrong by returning a verdict of guilty unless it was followed by the confession of the culprit. If any very strong facts could be brought forward in favour of a prisoner after conviction, no doubt there would be a proper exercise of the prerogative of the Crown. But must the administration of the law be thought insufficient and unsatisfactory if conviction was not followed by that which might be withheld by the guiltiest person? He trusted that the public mind, which was apt to correct itself in matters of this kind, would throw away its extreme curiosity with respect to such proceedings and those disgusting documents which formed part of the attractions of the theatrical exhibitions made by criminals. After a lengthened inquiry, and a clear statement of the facts in the case of a person who, being a man of wealth, was defended by one of the most able of counsel, who was tried before a judge unrivalled for learning, legal knowledge, sound judgment, and undoubted impartiality, it was really idle to suppose that the making or withholding of a confession ought to have produced the slightest difference of opinion in the public mind that the verdict was satisfactory, and that the execution justly followed it. He did not know that the magistrates had any more power with regard to the confession than any other individuals.

The Duke of Buckingham

thought there had been some mistake. His question was not as to the contents of the document, but whether the magistrates had a right to possession, or whether the chaplain was justified in withholding it?

Lord Stanley

stated, with respect to what had passed the other night in that House with regard to Newgate, that immediately afterwards he communicated with his right hon. Friend the Secretary for the Home Department, and stated that, on the part of the Government, he had given an assurance that inquiry should be instituted. The noble Marquess (the Marquess of Normanby) was quite aware that the power of the Secretary of State was not imperative, and that he could merely offer a recommendation. He had not yet heard what reply his right hon. Friend had received from the authorities of Newgate.

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