THE BISHOP OF OXFORD
presented a petition from inhabitants of Aylesbury and the neighbourhood, praying for some alteration in the mode of administering capital executions. This subject had been recently brought to the attention of the petitioners by the execution of Moses Hatto, which took place in that borough, and had forced upon their consideration what were the moral effects of a public execution; and they said, that from the experience of what took place on that occasion, they were convinced that the effect of the present publicity of executions, was not to deter men from crime, but, on the contrary, to shock the feelings of the better disposed, and to harden hopelessly the feelings of the more vicious. When he had given his consideration to the present practice, he gave notice of his intention of putting a question on the subject rather than bring forward a Motion, for no new legislation was required in order to carry into effect the alteration in the mode of execution suggested by the petitioners; for it had been expressly decided by the highest authority, that the time and place of executing the last sentence of the law rested with the Crown, and therefore, in fact, with the advisers of the Crown. This decision was given by the Judges, Lord Mansfield being then Lord Chief Justice, in 1769, when the right of the Crown to 306 order a criminal to be executed at Bethnal Green instead of the usual locality was questioned by the sheriffs of London. The Judges were consulted, and reported that the time and place of execution formed no part of the sentence, but were under the control of the Executive. It was, therefore, strictly in order that, instead of proposing any new legislation on this matter, he should simply ask Her Majesty's Government whether they would take into consideration the propriety of altering the practice in this respect? It had now for a hundred years been the conviction of most moralists who had thought or written on this subject, that the mode in which capital punishment was carried into execution in this country tended to every possible effect except that of adding to the awfulness of the sentence, and of thereby making it adapted to deter others from crime. More than 100 years ago the caustic pen of Mandeville described, in his usual plain and almost glaring colours, what was the effect of an execution upon those who witnessed it. And, indeed, all who reflected for a moment upon the subject must be brought to the same conclusion. The awfulness of the punishment consisted in sacrificing the forfeited life to the laws of the country; and the object both of the Legislature and of the Executive should be, in all the adjuncts of the execution, to present this one simple awful fact in all its singleness, and therefore awfulness, before the minds of those whom they desired to deter from crime. Now, a public execution was accompanied by every single adjunct which could tend to draw the attention of the spectator from that one great idea, and to fix it upon the accidental circumstances of the moment. With regard to the prisoner, he was straining his nerves, it might be, that he might be able "to die game," as it was called, before the miserable partners of his crimes. Perhaps there might be a confession and an account of the crime. The vice and confusion which reigned at the very moment beneath the gallows at which the man was about to expiate, as far as he could, the crime he had committed against his country's laws, all tended to draw away the attention of the spectators from the fact that a life was about to be sacrificed to the demands of justice, to the simple accidents around. And whatever way a man died the result was just the same. If he died with any marks of penitence, then the pity of the spectators was engaged on his side and against the 307 cause of right. If that penitence were carried on to the last, it sometimes lamentably occurred that it occasioned expressions of exultation and an expression of the certainty of his passing at once from this world to another where he was happily situated, and then the moral effect was still more deadly upon the witnesses. And if that was not the case, and if the man died in bravado, the effect upon the witnesses was to take away the horror which constituted the fear of such a death. He thought that nature itself taught them that that was not the way in which the horror of crime could be best impressed upon the minds of the spectators, and it must teach them also that the minds of men would be more deeply and justly affected if the execution were withdrawn behind the scene and within the prison walls. By the exhibition of a black flag, or by the tolling of a bell at the time of the execution, the fact could be made known that the forfeited life had been sacrificed, with nothing to draw the attention of the spectators from the reality of the great act of justice. A mere accident happening at the time of this tragical event might stop altogether the current of the spectator's thoughts, and, when he should look to it with seriousness, might turn his thoughts to the ridiculous in its stead; and such interruptions must abound in their public executions. But an intramural execution within the walls of the prison, in the presence of regularly appointed witnesses, who would convey the intelligence by external signs to those without, would, if anything could, sink deep into the hearts of those whom they desired to affect by this last sentence of the law. And so it was that in other countries the progress of men's minds, as well as the progress of legislation, had been in that direction. The New England States had adopted altogether the system of intramural executions, and they would find that it had been productive of the best possible effects. By removing in that way its accidents, its awfulness would be impressed far more deeply on the minds of men. They should not linger behind from what appeared to him a most unreal reason, for he was told that the people of England would not bear to have executions within the walls of the prison, and he believed that was about the best argument against it. But he had that faith in the good sense and right moral feeling of his countrymen, that he was perfectly convinced they would 308 be soon brought to approve of anything that tended to aggravate the just horror of that last sentence of the law. Instead of giving notice of a Motion, he had merely given notice that he would address a question to Her Majesty's Government, and that was, Whether they would take the matter into serious consideration, and that if they could not then announce it, they would state at a future time to the House the conclusion at which they should arrive?
§ THE EARL OF ABERDEEN
My Lords, the subject which has been brought before your Lordships by the right rev. Prelate is one upon which it is not easy to come to any decided conclusion. Much has been said and much has been written on this subject, and I am not at all surprised that numbers of persons should be disposed to adopt the view which has been taken by my right rev. Friend. This opinion is so natural, that the subject does not require his eloquence to commend it to the House and to the public; but, at the same time, the question is not so simple as my right rev. Friend appears to think. He says it only requires a direction on the part of the Executive Government to decide this matter. It may be so; but if I am not much mistaken, a Bill was introduced some years ago, either in this or the other House of Parliament, to effect this object, and it found no favour with the Legislature. Now, my Lords, I think that although the right rev. Prelate has treated as slight, and without weight, the objections which may be made to this proposal, I confess I think they are not altogether unworthy of consideration. He says the people of this country would not, after a short time, entertain a feeling opposed to executions taking place within the walls of prisons. I agree with him in this, that, generally speaking, there would be no feeling of opposition on the part of the public; but, at the same time, I can very easily imagine many cases in which it would be very dangerous to the public peace to resort to such a practice. Nay, I think I may say that I remember myself such a case. To be sure, it is about fifty years ago; but I recollect when an execution took place of a person who had been convicted of an offence committed twenty years previously, and when great interest was made to procure a commutation of the punishment, I recollect that the public excitement was so great, and continued up to the moment of the execution—which the people appeared to believe would not take 309 place—with so much intensity, that I am satisfied that serious consequences would have resulted if the crowds had been told that the prisoner had been executed in private. I can conceive many cases of a similar nature in which it would be most impolitic to have recourse to the practice which the right rev. Prelate recommends. Your Lordships cannot doubt the accounts of the conduct frequently observed by the spectators at the melancholy ceremony at which they are present; indeed, it is perfectly notorious that offences are committed at the very gallows itself. That is a disgusting practice, although it will be pursued wherever many persons are collected together. But you see all that—you know the extent of it, and are disgusted accordingly; but you do not know the good that arises from a public execution—you do not know the numbers who may be there wavering on the brink of crime, and who return home appalled and improved by the spectacle. You know nothing of all that. A man does not announce that he reforms; he meditates in silence; and you have no means of judging of the result which attends the spectacle except of that which is calculated to disgust and offend. It is not, therefore, to be concluded that, because a public execution may be attended with a great deal that is improper and disgusting, many of the spectators do not return better men. For myself, I am not satisfied that it is improper, and should be done away with. My Lords, notwithstanding the opinion my right rev. Friend says has been adopted by very many persons, I believe that those who are most conversant with criminal jurisprudence throughout this country, and have the greatest insight into the masses, are not in favour of secret executions. At all events, the system is one which I think ought not to be lightly adopted. It requires much consideration, much inquiry, before anything of this kind can be risked; and I must confess that, although open to fresh facts and further argument, I am not disposed, as at present advised, to give any countenance to the prayer of the petition which has been presented by my right rev. Friend.
said, the subject was one which had for many years attracted his attention. He happened to be a Member of the House of Commons when a very able and learned Friend of his introduced a Bill to abolish capital punishment in public, and substitute executions in private; and upon that occasion it was taken 310 for granted that the alteration could only take place by Act of Parliament. It was the common law of England that punishments awarded to evil-doers should take place before the people, and it was only by Act of Parliament that such a mode of inflicting punishments could be altered. He would rejoice to see capital punishments abolished or private executions substituted, provided the public could be convinced that justice was done upon the culprit, a point of great importance, as in a well-known case, that of Governor Wall, many people could never be brought to believe that he had undergone the sentence of death which had been pronounced upon him; and private executions might give rise to constant erroneous suppositions of that sort.
said, that if, as he believed, they could not entirely give up capital punishment, it ought to be confined to the smallest possible number of offences, and he made the exception to the general rule of criminal punishment. Being of opinion that we could safely give up capital punishment altogether, he confessed he did not read the disgusting account of the proceedings at an execution in Ireland, a short time since, without being led to hesitate whether it would not be better to forego the punishment altogether, than to undergo the periodical recurrence of such scenes.
THE BISHOP OF OXFORD,
in reply, said, it would ill become him to argue the point of law with the noble and learned Lord Chief Justice as to whether a Bill would be required to effect an alteration in the mode of carrying out the law. As the ground upon which he had at first relied, that a Bill was not necessary, had been disputed, he had referred to the authorities, and was prepared with the case of Doyle and Barry, who were condemned to death in 1759, and were ordered for execution at an unusual place—at Bethnal Green—and the legality of that arrangement being doubted by the Lord Mayor and Sheriffs, they applied to the Government, and a reprieve of fourteen days was granted, to enable the opinions of the Judges to be taken. The Judges, including Chief Justice Mansfield, after mature deliberation, were unanimously of opinion that it rested with the Crown to appoint the place of execution. When he spoke of private executions, he meant not private, but intramural executions—that they were to take place in the presence of sufficient 311 witnesses, to prevent the possibility of any suspicion of undue torture or of the sentence not being carried out. Such a provision would meet the case of Governor Wall, and the difficulties attendant upon private execution could be obviated in future by providing that the body be sufficiently exposed after execution. The noble Lord (Lord Brougham) had said the choice was between executions conducted as at present, and the abolition of capital punishments; but one of the many reasons for which he (the Bishop of Oxford) advocated an alteration in the law was because the present system threatened the continuance of capital punishments altogether. Such scenes as lately occurred at executions at Monaghan and other places had forced a conviction on the English mind that people were not deterred from crime by such spectacles, and that, therefore, the continuance of capital punishment, as at present conducted, would have the effect of encouraging the morbid sentimentality in favour of the criminal, and to lead men to doubt whether the highest duty committed to man—that of wielding the sword of justice —was committed by God to man for civil government, and to doubt whether that civil government had not the right to take away life, not only to deter men from crime, but as an execution of God's sentence against great offenders. Nothing could be more injurious or more enervating than to put down capital punishments in consequence of the morbid sentimentality to which he had referred. A few more such scenes as the noble and learned Lord had referred to would have the effect of making men's minds recoil from that which he (the Bishop of Oxford) believed to be essential to the highest principles of justice, as well as to the necessities of human expediency. When his noble Friend (the Earl of Aberdeen) said that we did not know the number of those wavering upon the edge of crime whom such a spectacle as a public execution deterred from crime, he must be allowed to take the opposite hypothesis, and to say that he had read of instances in which men had been absolutely led to the commission of crime from being spectators of such scenes, and had been led, by the idle vaunts in which criminals not unfrequently indulged upon the scaffold, to think that death by capital punishment was not, after all, so terrible a thing as they had before thought it to be. He feared that but too often, when those men were heard quitting life with exultation on 312 their lips, others were led in consequence to trifle with this last sentence of the law.
observed, that the Judge at a trial had the power to order an execution to take place in any part of the county he thought fit, and it had not beep unusual to order that the execution should take place on the spot where the murder was committed. Such power as the Judge had the Crown might afterwards exercise, but no more. Neither the Judge nor the Queen herself could order an intramural execution. This would be contrary to the law of England, and those who ordered it must take care that they themselves did not incur the penalties which would attend such a contravention of the law.
THE MARQUESS OF WESTMEATH,
alluding to the disgusting scene which had been referred to as having occurred at the Monaghan execution, said that, if it had not been for the publicity which had been given to these proceedings, the British public would not have been made aware of the manner in which the minds of these poor creatures were prepared for death.
§ Petition ordered to lie on the table.