Lords Sitting of 12 April 1864

MINUTES.
Took the Oath—The Lord Bishop of Ossory.
PUBLIC BILLS—Second Reading—Punishment of Rape (No. 52).
Committee—Charitable Assurances Enrolments * (No. 38).

PUNISHMENT OF RAPE BILL—(No. 22)

  SECOND READING.
  Order of the Day for the Second Reading read.
  THE MARQUESS OF WESTMEATH, in moving the second reading of the Bill, said, the frequency of the crime to which the Bill referred, particularly in the manufacturing districts, and a case which had been tried at the late spring assizes in the county of Sligo, in Ireland, had induced him to bring forward the present measure. In the case to which he had referred, a young woman had been taken off by some men, who had confederated for the purpose, and extreme violence had been offered to her with a view to get possession not only of her person, but of her money, and in order to prevent any respectable man from having anything to do with her. The punishment inflicted by the Court for that offence was only two years' imprisonment; and he now proposed by the present Bill to
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  give power to the Judge, where more persons than one were concerned in the crime, to order the infliction of corporal punishment, and if that punishment were inflicted publicly, so that it might be known to those who were not in the habit of reading the newspapers, so much the better.
  Moved, That the Bill be now read 2a.
  LORD RAVENSWORTHopposed the Motion on the ground that the additional punishment contemplated by the Bill would have no additional deterrent effect. The offence in question was commonly committed by persons who were in company together, upon a casual encounter with their victim, and without premeditated design.
  EARL GRANVILLEsaid, that though he was very much opposed to the increase of the system of flogging, and had much doubts of its efficacy, at the same time he was not prepared, on the part of the Government, to oppose the second reading of the Bill.
  EARL GREYsaid, that there could be no doubt that some of the sentences recently inflicted for this offence were scandalously insufficient; but the fault did not lay with the law, but with the administration of the law, and an expression of the opinion of the Legislature might lead to better results. Different Judges awarded different measures of punishment, and the consequence was a great scandal on the inequality of the sentences awarded. He was afraid that it would be an insuperable difficulty to define by law the exact measure of punishment to be given to different degrees of crime; but still he thought that something might be done, under the authority of the Lord Chancellor, if the Judges were to meet together to lay down some common rule of action in order to establish greater uniformity in the administration of the law.
  LORD WENSLEYDALEsaid, that last year he had ventured to propose that the Lord Chancellor should write to the Judges and ask them to meet together in order that they might come to some common understanding in regard to the sentences which should be passed in cases of a similar kind. Objections were taken to that course; but he agreed to the want of uniformity, and the lenient sentences which were now frequently passed were a scandal and a disgrace and ought to be put an end to. He thought it highly desirable that the Judges should agree to some common principle in passing sentences.
  THE LORD CHANCELLORsaid, that the subject was one of very great difficulty. He felt unwilling to take the course suggested by his noble and learned Friend. If he called upon the Judges to define the law with a view of limiting their discretion, he should be calling upon them to do that which would be better performed by an enactment of the Legislature.
  LORD CRANWORTHsaid, that the Bill was open to many objections. The Judges were necessarily intrusted with almost unlimited discretion; but the noble Marquess proposed to add a new element of uncertainty and a new element of difference in the sentences of the Judges. Since the abolition of capital punishments in so many eases, there had been a gradual system of inflicting too lenient punishments in ordinary convictions. He remembered thirty years ago his noble and learned Friend on the cross benches (Lord Wensleydale), remarking that the effect of taking away capital punishment would lead to the diminution of punishment all down the scale. Unfortunately that prediction had turned out to he too true, and it was a great misfortune, in his opinion, that punishments were not more severe in many cases than they now were. He could not, however, concur in the proposal that the Judges should meet and lay down any general rules; because crime admitted of such an infinite variety of shades of guilt that it was impossible to say beforehand what the punishment on any given offence ought to be. The only way in which punishments would eventually be more uniformly inflicted would he through the agency of public opinion. He saw no other means of arriving at that; result.
  THE MARQUESS OF WESTMEATHtrusted that their Lordships would pass the Bill through its present stage.
  Motion agreed to: Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.

CONVICT GEORGE HALL—THE PREROGATIVE OF MERCY.

  ADDRESS FOR CORRESPONDENCE.
  THE EARL OF CARNARVON, in moving that an humble Address be presented to! Her Majesty for Copy of Correspondence relative to George Hall, convicted of Murder at the Warwick Assizes, and respited on the 13th of March, said, he wished it to be distinctly understood that he did not attach any blame to the Home Secretary
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  for the decision at which he had thought fit to arrive; what he did find fault with was the mode and steps by which that decision had been arrived at. The object in making this Motion was to elicit from Her Majesty's Government some statement as, to the principle on which the prerogative of mercy was exercised; for in previous instances similar divergence between decisions first arrived at and those ultimately acted upon were observable. When Townley was removed to a lunatic asylum on the ground that insanity had supervened, a formal and distinct assurance was given by the Secretary of State to the magistrates of Derbyshire that his sentence was only respited, and not commuted. Yet, within a fortnight from that time, without any fresh circumstances having supervened to throw doubt either upon the guilt or sanity of the prisoner, the sentence of capital punishment was commuted. In Wright's case, which followed a very few; days afterwards, strong efforts to obtain a respite were made; but Sir George Grey decided, and he thought very rightly, that the law must take its course. By contrast with the course taken in the previous ease, however, a strong and painful impression was made upon the public mind. [He then alluded to the case of Jessie McLachlan, at Glasgow, and quoted an extract from Sir George Grey's speech, to the effect that the exercise of this power must be conformed to the popular feeling of the time.] This was a dangerous innovation on the Constitution, and proved the necessity that some principle of action should be laid down for future guidance. In the case of George Hall, that to which the papers he was now asking for referred, it was shown that the man had received grievous provocation, and that it was one in which the extension of the prerogative of, mercy would be perfectly defensible; but the Home Office remained immovable, and on the 11th of March the Home Secretary wrote a letter to the Mayor of Birmingham announcing his decision, and the grounds on which it was founded. Sir George Grey stated, that after most careful and anxious consideration, he felt that this could only be viewed as a deliberate and premeditated murder, and that the most dangerous consequences to society must ensue if provocation such as the prisoner had received were held sufficient to excuse the act which he had committed. That letter was received in Birmingham on the 12th ultimo, and the intimation which it

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  conveyed was final; but those who had to deal with Sir George Grey knew him better than he appeared to know his own mind. A very strong pressure was exerted, and in thirty-six hours after the receipt of that letter, a reprieve came down from the Home Office, and the sentence was commuted to penal servitude for life. With the reprieve itself he had no fault to find; but he asked whether the Secretary of State having, after "full and anxious" consideration, as he himself stated, arrived at a particular decision, he was not doing something which appeared to require explanation when after the lapse of a few hours he took a course diametrically opposite. In the discussions arising out of Jessie McLachlan's case, Sir George Grey had argued that, if capital punishment is to exist, public feeling in each case must be taken into account, and the prerogative of mercy exercised in accordance with that feeling. Public feeling was in many subjects a safe and most reasonable element of consideration; but he entirely denied that it was a reliable guide, or should be allotted to influence the mind of a Secretary of State in reviewing punishment, inasmuch as public opinion in ninety-nine out of every hundred such cases meant the public opinion of the particular district, or county, or town, where the murder was committed, where the history and antecedents of the prisoner were known, and where consequently a prepossession in his favour or a prejudice against him existed almost invariably. Those who took the office ought not to shrink from the performance of its duties; the only consideration which ought to weigh with them was that of the due administration of justice. If any fresh fact transpired it was the duty of the Secretary of State to consider it; but it was entirely a matter between him and his conscience, and he was not justified in shifting the burden of responsibility to the shoulders of any one else, still less to so inconvenient, so vague, and so irresponsible a body as was expressed in the words "public opinion." Before he sat down he should like to ask the noble and learned Lord on the Woolsack, referring to the fact that as a general rule in cases in which persons had been sentenced to penal servitude for life they received a ticket-of-leave at the expiration of twelve years, not only whether Townley would be entitled to a ticket-of-leave at the end of that period, but whether, according to the existing rule,
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  there would be any objection to the Secretary of State granting such a remission of his sentence. The noble Earl concluded by moving—
  "That an humble Address be presented to Her Majesty for Copy of Correspondence relative to George Hall, convicted of Murder at the Warwick Assizes, and respited on the 13th of March."
  THE LORD CHANCELLORsaid, he was sure that the noble Earl would be one of the last persons to act unfairly towards the Secretary of State for the Home Department; but, without intending it, few things could be more unfair than the course which he had pursued. The case of Townley had been twice before their Lordships. On an occasion it was made the subject of a Motion by the noble Earl; and as that Motion was withdrawn, he presumed that the noble Earl was satisfied with the explanations which were given.
  THE EARL OF CARNARVONsaid, that the reason he withdrew that Motion was that on the same evening on which he gave notice of it, the Home Secretary introduced a Bill to remedy the defects of the law, and he thought that it would be unfair to the right hon. Gentleman to enter into the discussion of the circumstances in that House when he was about to explain them in another place.
  THE LORD CHANCELLORthought that for the same reason the noble Earl should have abstained from passing that censure upon the Secretary of State which was contained in the words that he had made a promise to the magistrates of Derbyshire with respect to the convict Townley, and had afterwards departed from its terms. No such assurance was given beyond the simple statement that the transfer of the convict to the lunatic asylum did not involve the commutation of the sentence. The noble Earl complained that it was afterwards commuted. Did the noble Earl know that after the convict was once lodged in the lunatic asylum, whither he was compelled by force of law to be sent, he could not be taken out of it except upon a certificate that he had recovered his reason and was restored to sanity? The result was that it was necessary to go through a process, which, in the eye of the law, admitted that the man had once been insane before he could be removed from the asylum. His right hon. Friend came to him and asked his opinion whether, under these circumstances, it was possible to send him back to Derby to be executed. They found that no case of the kind had occurred

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  in which the convict was afterwards executed, and therefore he (the Lord Chancellor) gave the advice—for which he was responsible in the sense of having given it —and his right hon. Friend acted upon it, that under the circumstances it would be impossible to permit Townley to undergo the last sentence of the law. He was compelled to come to that conclusion most unwillingly by the circumstances which had occurred, and he believed that the course which was adopted was taken with the concurrence of all reasonable and well informed men. The noble Earl had contrasted Townley's case with that of Wright, In Wright's case the prisoner pleaded I guilty, and although he (the Lord Chancellor) would have been glad if the sentence had not taken effect so rapidly, that was the result of the present state of the law. He would now pass to the immediate subject of the Motion—namely, the case of the convict Hall. He was glad that the noble Earl had brought this matter before! the House, not on account of the case itself, but on account of the important subject connected with it, to which he had properly referred, and concerning which he only regretted that his observations were so concise. In Hall's case his right hon. Friend referred the papers to him, and after examining them he arrived at the conclusion that there was no reason whatever for the exercise of mercy. He persevered in that opinion, being perhaps firmer than his right hon. Friend, who adopted his language in the letter which he wrote to the Mayor of Birmingham. What afterwards occurred? Hundreds of persons whose representations were entitled to the greatest consideration, besieged the Home Office, and implored his right hon. Friend to remit the sentence. There appeared to be a combination of opinions that the execution of the sentence would be unjust and unbecoming, and that it would shock the moral sense of the community. Those opinions came to this—that there was in truth so much moral provocation that the offence ought to be regarded as having been committed under such provocation as would reduce murder to manslaughter. He begged the noble Earl to place himself in the situation of the Secretary of State for the Home Department. The Secretary of State had his own judgment and the verdict of the jury; but against that there was an array of opinions which were entitled to respect, all assuring him that if this man
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  were hanged the object of capital punishment would be defeated, and he would be regarded as a martyr. He lamented that that should be the state of things, but he confessed that he was most happy to hear that in his absence his right hon. Friend had arrived at the conclusion that Hall ought to be respited, and he was sure that if the noble Earl had been Secretary of State he would have acted in the same manner, and would have felt as he did, that a great weight was taken off his mind by the opinion which he entertained being overborne and overpowered by the amount of argument and the amount of conviction expressed by persons who were entitled to the highest consideration. So much with regard to the particular cases. He would now make a few remarks on that part of the subject which had long engaged his attention, and to which he desired to take the opportunity of directing that of their Lordships—namely, the state of the law on this subject; for it was of that, and not of the mode of its administration, that complaint ought to be made. To administer it otherwise was impossible. The present practice had grown up in a long series of years. The right hon. Gentleman who now with so much credit to himself filled the office of Home Secretary, and who had succeeded to it with all its traditions and practices, said that we, at no very remote period, possessed a code in all respects sanguinary. That character had in some degree been taken from it by the exercise of the prerogative of the Crown; and then succeeded a period of too much remission and gentleness in the administration of the criminal law. At present the prerogative of mercy was vested in the Crown, and administered under the advice of the Secretary of State. In the exercise of that prerogative the Secretary of State was called upon to pay regard to the moral aspect of the case, as contrasted with the legal. He had to deal with the representations made to him with respect to undue influence having been allowed to particular facts—that some particular facts had been withheld—that fresh evidence had been discovered, and that, in short, there had been a failure of justice. He had also to deal with appeals of the most unscrupulous character made by persons who seemed to be of opinion that they were, under all circumstances, bound to advocate the remission of capital punishment. Indeed, one of the most difficult points with which

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  any man could have to deal was to know how to administer the particular functions of a Secretary of State in that particular and he should like to see connected with the Home Office some kind of quasi tribunal which should be auxiliary to the Secretary of State in the exercise of the great powers with which he was intrusted. The prerogative of mercy must, of necessity, be left to the Crown; but when the Secretary of State was called upon to advise the Crown it was quite clear that he had not the means of making a satisfactory investigation. There ought, therefore, in his opinion to be some constituted authority for relieving the Secretary of State of the duty which thus devolved upon him, and discharging it in a satisfactory manner. As matters at present stood the Secretary of State was in the position of a court of criminal appeal, but of one at the same time constructed in the worst of all possible ways. There were no certain rules laid down for his guidance, and the decision depended in a great measure on the character of the individual. A man of sterner nature would be guided by certain views, while a man of a gentler disposition might meet with a number of modern arguments by which his mind might be influenced. There was, therefore, in our present institution with respect to the dispensation of the prerogative of mercy, nothing but a vast discretion invested in the individual, and then that individual discharging in the best possible manner the power invested in him, which, however it might he discharged, was always exposed to criticism. It was, he might add, impossible to lay before the public all the reasons which influenced the Home Secretary; but he should, at the same time, submit to the House that nothing could be more unsatisfactory than to have the decisions of courts of justice set aside on grounds of the nature of which they were ignorant, and the sufficiency of which there were no means of ascertaining. He was, therefore, obliged to the noble Earl for having drawn to the question the attention of the House, and he wished he could at once proceed to state that the remedy for the evils of which he complained was clear and easy. He had not, however, been able to solve the problem himself, nor had he been able to obtain any satisfactory solution of the question as to how the limits of the prerogative of the Crown in those cases were to be fixed on a satisfac-
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  tory basis. As our trials were public, so the discussions on the cases which came before our tribunals ought to be equally public, in order that there might be no mistrust entertained with respect to the due administration of the law. It was said that the definition and classification of our law with respect to the several degrees of murder were most imperfect; and if the noble Earl were to take the trouble of contrasting the definition on the subject in the English law with that in the French, or the more accurate definition of the several States of America, he would find the various degrees of murder laid down and defined in the case of the latter countries, with the punishments affixed, and that was the only mode in which at present he was able to say anything like an approximation to limiting the amount of uncertain discretion vested in the Home Secretary could be arrived at. If we could satisfactorily define beforehand what constituted murder in the first instance, and what, in the second place, was the appropriate punishment of the offence as classified, half the evil of the present state of things would be removed, and then we might have something like a public inquiry in cases in which by accident material circumstances happened not to be submitted to the jury, making it auxiliary to the functions of the Secretary of State. Had he, he might add, been aware that the noble Earl would have drawn attention to the case of Townley that evening, he would have taken care to bring down to the House more detailed information on the subject; while, with regard to the papers which more particularly related to his Motion, he could only say that, being of a private nature, their production would be attended with inconvenience.
  THE DUKE OF MARLBOROUGHsaid, le thought the noble and learned Lord had not given a satisfactory answer to the question with regard to the remission of punishment. As matters at present stood, he Home Office exercised an autocratic jurisdiction almost unprecedented in the remission of sentences. It would be of little use for the Judges to meet together o agree as to some mode by which regularity of sentences could be ensured, if the Home Secretary was able to interfere by arbitrary regulations, made or unmade at his own arbitrary pleasure. He hoped when the Bill which was now before the louse of Commons, to carry out the re-

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  commendations of the Commission over which the noble Earl (Earl Grey) presided, came up to their Lordships' House, that care would be taken to regulate the manner in which the remissions of sentences were to be carried out.
  EARL GREYsaid, that an express distinction had been drawn between sentences for life and sentences for terms of years. Those sentenced for a term of years were considered to have a claim to remission after a given time if their conduct had been good; but with regard to convicts sentenced for life no claim was recognized, though each case had to be considered on its own merits. The noble Duke was somewhat mistaken as to the amount of discretion now exercised by the Home Secretary, as compared to what was the former practice. Instead of being greater, that was now actually much less than in former years. In the old days of transportation it was the invariable practice for the Home Secretary to remit a portion of the sentences of those sentenced to short terms who were not actually sent out of the country, and it was also the practice to remit a portion of the sentences in the colony, and this was done according to no clear and certain rule, but on vague reports from the officers in charge of criminals. Now, on the contrary, there was a regular scale laid down on certain definite rules, by which remissions of punishment were granted according to what each criminal had earned by his conduct, which was recorded from day to day; and when the Act of Parliament was passed, under which this system was adopted, a circular had been addressed by the Secretary of State to the Judges, explaining to them what proportion of the sentences they passed might be remitted for good conduct, so that they allow for this in determining what punishment to award for different crimes.
  THE EARL OF CARNARVONsaid, he expressed himself satisfied with the explanation of the noble and learned Lord on the Woolsack, and would withdraw his Motion.
  Motion (by leave of the House) withdrawn,
  House adjourned at half past Six o'clock, to Thursday next, half past Ten o'clock.