Lords Sitting of 29 February 1864

MINUTES.
SELECT COMMITTEE—On Railway Schemes (Metropolis) — Report presented. [No. 10]
PUBLIC BILLS—Second Reading—Insane Prisoners' Act Amendment Bill [No. 14].

AUGMENTATION OF BENEFICES ACT.

  QUESTION.
  THE EARL OF DERBYsaid, he wished to ask the noble and learned Lord on the Woolsack a question with reference to his explanation, given a few days ago, of the results of the Act for the Augmentation of the Livings in the gift of the Lord Chancellor, and with reference to which there appeared to be some misapprehension out of doors. Several of the newspapers stated, that the Act would place a very large sum of money at the disposal of the Ecclesiastical Commissioners. Now he (the Earl of Derby) was well aware, as was the noble and learned Lord, that this was not the

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  case; but if it were supposed to be so it would occasion misapprehension and considerable dissatisfaction if it were believed that the sums of money in the hands of the Commissioners were not to be appropriated to the augmentation of small livings. He thought he was not mistaken in saying, that the Commissioners had nothing further to do than to receive the money and apply the interest to the augmentation of the livings of the sale of which it was the produce. There was another portion of the Act providing for the sale of other benefices the income derived from which would not be applied to the augmentation of those livings, but to the augmentation of the other livings retained in the gift of the Lord Chancellor. In point of fact, the Commissioners exercised no jurisdiction or authority over any portion of the funds derived from these benefices.
  THE LORD CHANCELLORsaid, that the noble Earl had correctly apprehended the Act and stated its effect. The monies receivable under it were divisible into two classes, one of which was applicable to the augmentation of the livings, from the sale of which it was derived, and the other portion, derivable from the sale of a hundred livings not specified, which might be sold to landowners upon defined terms, and the produce of which was to be applied to the augmentation of livings retained in the patronage of the Lord Chancellor. Of the money arising from the sale of livings which was applicable to their augmentation, the first moiety was certainly paid over to the Ecclesiastical Commissioners, but upon these terms, that they should grant to the incumbent a life annuity at the rate of £3 10 s. per cent for every £100 so paid over. The other moiety was suspended, and directed to be accumulated until the avoidance of the living; and the Ecclesiastical Commissioners, who had offered every facility for the working of the Act, had kindly consented to take charge of the accumulation and of the investing of the interest of this second moiety. With regard to the first moiety, they paid an annuity in return for it; and with regard to the second, they were merely trustees for the accumulation of the capital and interest. The money derived from the sale of the hundred livings would not go into the hands of the Ecclesiastical Commissioners at all, unless he (the Lord Chancellor) requested them to take charge of it, and in that case they would take charge of it merely as trustees.

THE CONSPIRACY AGAINST THE EMPEROR OF THE FRENCH.

  QUESTION.
  THE MARQUESS OF WESTMEATHsaid, he wished to ask the noble Earl at the head of the Foreign Office a Question, of which he had not given him notice. The public were perfectly well acquainted with the evidence which had been given in the recent trial of the conspirators against the life of the Emperor of the French in Paris, and there could be but one feeling, that if Signor Mazzini or any else in this country had, either by the receipt or despatch of letters, or in any other way aided or encouraged the conspiracy, they had been guilty of a most detestable action. There was, probably, no legal evidence of any such participation; but if there was moral evidence of it, and if a moral conviction was produced upon the mind of the Government, that either Mazzini or any one else in this country had been so engaged, he hoped that they would take up the matter by anticipation, and without waiting for any representations upon the subject, either by means of the powers which were given to them under the Alien Act, or by any others which they might possess, show to the world that such things would not be allowed to continue or to be repeated in this country. The Question he wished to ask was, Whether the Government, in the event of the powers of the Alien Act not being sufficient to enable them to deal effectually with the matter, would take it into their mature consideration, with the view of warding off from this country the suspicion of being mixed up in acts which must be repudiated by all honourable and honest men?
  EARL RUSSELL: I quite agree with the noble Marquess that any persons conspiring for the purposes of assassination are guilty of a detestable crime; but I have no right to say that Signor Mazzini, or any other person living in this country, is guilty of that crime. I have no such evidence, and no such powers are invested in the Executive under the Alien Act as the noble Marquess supposes. I can only answer that I am not going to take any steps in the matter.
  THE MARQUESS OF WESTMEATHwas aware that there was no legal evidence which could be acted upon, but had hoped that the Government, acting on the moral evidence to which he had alluded, might have been able to take up the matter by anticipation.

RAILWAY SCHEMES (METROPOLIS).

  REPORT OF SELECT COMMITTEE.
  EARL GRANVILLE presented a Report from the Select Committee on Railway Schemes (Metropolis). The noble Bail said he would take the opportunity of testifying to their Lordships, that the Committee had paid great attention to the subject, and had worked most harmoniously. There had been differences of opinion on one point of the recommendation only, and in the division on that point there were two Peers and two Commoners on each side; one Peer and one Commoner on each side were Conservatives, and one Peer and one Commoner on each side were Liberals.
  Report to be printed; Minutes of Evidence, together with an Appendix, laid upon the Table, and to be delivered out. (No. 10.)

  INSANE PRISONERS ACT AMENDMENT BILL.— [No. 14.]
  Order of the Day for the Second Reading read.
  EARL GRANVILLE,in moving the second reading of this Bill, said, the measure had been introduced in order to correct an evil which, he believed, was very generally admitted. By the existing law, which was based on an act of her present Majesty, it was provided, that where two justices of the peace and two medical men signed a certificate as to the insanity of a prisoner, it should be obligatory on the Secretary of State for the time being, to remove that prisoner to a lunatic asylum. There was no desire to take the responsibility with regard to the certificate from the local authorities; on the contrary, it was of advantage that the persons on whom the duty devolved, should be persons who were likely to make themselves well informed upon every case brought under their notice. It was, therefore, proposed by the Bill still to require the certificate to be signed by two medical men, but such medical men were to be appointed by the visiting justices, and their certificate was not to be binding upon the Secretary of State. This was the essence of the Bill, but if any further information were required, he should be happy to afford it.
  Moved, "That the Bill be now read 2a."
  LORD ST. LEONARDSsaid, he wished to call their Lordships' attention to the causes which had led to the introduction of
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  the Bill. In doing so, he had no desire to find fault with the Government for the steps they had taken in the matter, but he always, he must say, regarded it as undesirable to endeavour by legislation to provide a remedy for a mischief immediately after the occurrence of any event which led to the prevalence of excitement with respect to it. The occasion of the present measure was the well-known case of the convict Townley, a man who, for twenty-five years, had lived in a free country, under the protection of the laws, who admitted that he believed in God, that he thought the woman whom he murdered was in heaven, and who, when the body of his victim was taken to the house of her grandfather, seemed to have the consciousness of a man who had committed the deepest crime. It was very important to bear in mind the character of the man, in order to see how all this difficulty had arisen, which by this Bill they would prevent ever again taking place. All through his life he had never shown the slightest token of insanity. He was rather amiable in manners, was liked in society, had won the regards of the lady whom he murdered, unknown to her grandfather, and was never supposed to be a person of evil passions. He was accomplished, possessed a knowledge of French, and was an excellent musician. He wrote a very sensible letter to the young lady. His family had never suspected him of mental unsoundness; and it was by their advice that he sought the fatal interview with his victim. It was, therefore, quite evident that they regarded him as utterly incapable of committing the crime of which he was found guilty. Upon the trial there was not, and could not be, any doubt that he was responsible according to the well settled law of England, which had never been more accurately and soundly laid down, than by the learned Judge who presided at the trial, and the jury brought in the only verdict they could have brought in, that of guilty. The only evidence of insanity was that of the surgeon of the gaol and that of Dr. Forbes Winslow. The evidence of the gaol surgeon was hardly worth mentioning, for it appeared by the entries in the prison books that he regarded the prisoner as sound both in mind and body. As to Dr. Forbes Winslow, he had no disrespect for him, but he had disrespect for the opinions which Dr. Forbes Winslow entertained, and he believed that such opinions were not only not well founded in law, but opposed to

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  all law and justice. If anything could unsettle men's minds, and predispose them to commit crimes, it was such a defence as had been set up in this case. The criminal in his examination stated, that he could not resist the impulse he was under to take this young lady's life. The doctrine of impulse was a perfect absurdity, and if allowed to prevail must give escape to the deepest dyed criminals. Equally absurd was the deduction that the performance of an abominable act of itself indicated insanity. As to delusions, there were no delusions at all. Townley said there was a conspiracy, and so there was in the sense in which he meant it—a combination among the lady's friends to take every means in their power to prevent the marriage. He said himself there never was any conspiracy or combination except to take her away from him. Again, it was argued that the offence was not premeditated, but all the evidence tended to show that there was no foundation for such a statement, and all the facts appeared to prove that the deed was a most cold-blooded murder. Then it was said he entertained opinions which no sane human being ever did entertain—namely, that he had the sole command over himself and his own actions; that he could commit any action without being called to account; and that, as he had not assisted to bring himself into the world, he was not bound by the laws of the country. It was a singular thing that he had never communicated any of those opinions to a human being before the murder. His father said they came upon him by surprize, and he said himself he had never communicated them to His father. But why? Because he never entertained them, and it was an afterthought to profess them in order to save his life. It had been said that there had been no premeditation, but all the facts of the case showed that it was a premeditated and cold-blooded murder. If Townley had not lived in a respectable circle the case would never have assumed such a magnitude. Within the last two or three years several similar cases had occurred without exciting any particular amount of public attention. For instance, they not unfrequently read of a man in humble circumstances of life, after "keeping company" with a girl as it was called, when the girl no longer desired to continue the courtship, going to her father's house, asking to see her, and Urging her to accept his attentions, and when she refused, shooting her dead without any ceremony. Or sometimes even
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  when a man had never been accepted as a suitor and his addresses had been refused, he would make up his mind that if he could not have the woman nobody else should, and would put her to death. Or sometimes the parties had been cohabiting together and the woman left the man. Finding that he was less comfortable without her, he had gone to persuade her to resume cohabitation; and, on her refusal to return to him, has murdered her. These cases had been disposed of by the courts of justice, without attracting the least attention. These examples would certainly spread, if some means were not taken to check the evil. Brutal men would get to suppose that a woman was their property, as Townley did, and would think themselves at liberty to sacrifice her if she wished to break off all connection. If Townley had been left in the asylum he would have experienced much greater punishment than in penal servitude. It was hardly fair to the other criminals to place such a man among them, and probably few of the common run of criminals would like to approach a man who had committed such a crime, and who considered himself entitled to avenge his fancied injuries as he pleased. The statute to which the noble Earl had referred enacted, that when two magistrates and two medical men certified that a prisoner was insane, the Secretary of State should issue his warrant for his removal to a lunatic asylum. Nothing could be further from his thoughts than to say a word against the Secretary of State, who was as competent as any man to form a judgment on these matters, and he was sure that the right hon. Gentleman had been actuated throughout by the most conscientious desire to discharge the difficult and painful duties of his office. He (Lord St. Leonards) did not take upon himself to say that the right hon. Gentleman was wrong in the course he had taken with regard to Townley. It was said indeed, that the Act under which he had respited Townley was imperative, but he (Lord St. Leonards) very much doubted it. It seemed to him that the object of the statute was to prevent the discharge of a prisoner who had become insane until he had recovered; but in this case Townley had never been insane at all. What had occurred was simply a trial of skill on the part of the prisoner's solicitor to throw over his client the protection of the certificate of insanity, and the warrant of the Secretary of State for his removal to an

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  asylum—an object in which he had proved perfectly successful. He (Lord St. Leonards) could hardly conceive any case like that of Townley occurring again. It was a case of representation of insanity throughout, but there was no real foundation for supposing him insane. In ordinary cases in which a commutation took place, the prisoner had been properly convicted, but had afterwards been certified as insane and transferred to an asylum. In these cases, if the person recovered from his insanity while in the asylum, it had not been thought proper to send him to execution. But this was not Townley's case. Townley had never been insane at all; he had never been a fit subject for transfer from the gaol to a lunatic asylum, and therefore the same reason for not carrying out the capital sentence did not exist in regard to him. Was the case of Townley to be considered a precedent? If so, there could be very little doubt that the Secretary of State would have many such cases to deal with. When the magistrates spoke of money in connection with the commutation of the sentence on Townley, they did not mean to say that there had been bribery. What they meant was that, in respect to such proceedings as were taken by Townley's friends, a convict with money had a, very great advantage over a poor one who had neither money nor friends. As the law stood, if the medical men and the justices sent a certificate of insanity to the Home Secretary, the right hon. Gentleman considered himself bound to act upon it. By the Bill before their Lordships, it was proposed to remedy that state of things and give the Secretary of State a discretion. If the Bill passed he might, on receipt of the certificate, either send his warrant for removal or withhold it. So far the Bill was good. But what he conceived to be a defect in the Bill was, that it did not state what was to be done with the prisoner if the Secretary of State decided on withholding his warrant. Was he to be executed, or was he to be kept in gaol? He would suggest that an Amendment should be made in Committee to meet this defect.
  LORD WODEHOUSEsaid, he did not intend to enter into the particular case of Townley, but he wished to say a few words as to the machinery of the Bill, The noble and learned Lord had pointed out that there might be inconvenience from the wording of the Bill, if the Secretary of State did not think proper to act on
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  the certificate of the justices. Now he (Lord Wodehouse) thought it exceedingly doubtful whether the machinery of the visiting justices ought to be employed in the case of a prisoner sentenced to death. In other cases that might be a very useful machinery. If a prisoner were thought insane, it was natural that the visiting justices should consult the surgeon or physician, and then upon their report the prisoner be sent to a lunatic asylum; because, supposing it to be afterwards discovered that a mistake had been committed, it was easy to send the man back to prison. But if, where a man was under sentence of death, the visiting justices put in motion the machinery of the Bill, two gentlemen among them might possibly be found who did not possess all the discretion and all the knowledge which were necessary in so grave a case. Again, though surgeons of gaols were, as a rule, very competent men, some might have a particular theory on the subject of lunacy, and might thus be disqualified from pronouncing a reliable opinion. It was true that the Secretary of State, if he thought fit, might throw overboard the recommendation of the visiting justices; but if the responsibility in these cases rested, as it should rest, directly with the Secretary of State, it was far better that he should order the inquiry to be made by the best qualified persons whom he could select, and upon the report of these persons should decide whether the prisoner ought to be executed or not. On this point he would suggest that the machinery of the Bill might be made simpler and more satisfactory, so that the Secretary of State might be relieved from the invidious duty of saying that the visiting justices and the surgeon were not persons he could trust.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday, the 8th of March.
  House adjourned at a quarter past Six o'clock, till To-morrow, half past Ten o'clock.