Lords Sitting of 10 May 1864

MINUTES.
Took the Oath—The Lord Bishop of Cork.
PUBLIC BILLS — First Reading — Divorce and Matrimonial Causes (Amendment) * (No. 75); Chimney Sweepers and Chimney Regulation * (No. 76); Under Secretaries (Indemnity) *; (No. 77); Naval Prize Acts Repeal * (No. 78); Scottish Episcopal Clergy Disabilities Removal* (No. 79).
Second Reading—Common Law Procedure (Ireland) Act (1853) Amendment* (No. 51).
Committee — Promissory Notes and Bills of Exchange (Ireland) * (No. 68); Customs and Inland Revenue* (No. 69).
Report—Promissory Notes and Bills of Exchange (Ireland)* (No. 68); Customs and Inland Revenue* (No. 69).
Third Reading—Naval and Victualling Stores * (No. 64), and passed.
Withdrawn—Sentences of Death (No. 58), on Second Reading.

SENTENCES OF DEATH BILL (No. 58.)

  SECOND READING.
  THE EARL OF ELLENBOROUGH,in moving the second reading of this Bill, said: My Lords, since this Bill was read the first time, the House of Commons have, I understand, agreed to an Address to Her Majesty for the appointment of a Royal Commission to inquire into the provisions and operations of the law under which sentences of death are passed, and into the manner in which those sentences have been executed of late years; and likewise to report whether it is desirable to make any alterations therein. I think, perhaps, that the House of Commons might have expressed themselves somewhat more clearly; but I apprehend there is no doubt they deem, it desirable that an inquiry should be made by a Royal Commission into these three points:—1. Whether it is expedient to continue the punishment of death; 2. Whether, if continued, it is expedient that that punishment should be applied to the same crimes as those to which it is now applied; and 3. To what authority should be committed the power of deciding ultimately, after sentence of death has been passed, whether it should be carried into execution or should be commuted? Now, that proceeding, on the part of the House of Commons, necessarily raises this question—Is it expedient that Parliament should wait until the Commission has presented its Report and made its recommendations? If Parliament should do that, I think it might have to wait a very considerable
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  time. This is one of those matters which will, in all likelihood, be discussed and examined at the greatest length; and I cannot suppose that in less than a year or two any Parliamentary proceedings could take place in consequence of the recommendations of the Commission. Another question is, Shall we proceed with this Bill, or shall some other and better measure be presented to your Lordships for your consideration? There can be no doubt that the subject of the Bill is one of the very greatest importance, and one which will not bear any great delay. There is beyond question a growing want of confidence in the decisions arrived at by the Secretary of State with respect to the carrying into effect or commuting sentences of death. This arises, I apprehend, not from any disrespect for the Gentleman who performs the duty of Secretary of State, but because his decisions are taken on his sole responsibility. I must say it is too great a weight to throw upon any man to subject him to the necessity of deciding on his sole responsibility whether another man shall live or die. I think it most expedient to surround the Secretary of State with every security we can which is calculated to inspire confidence in his decisions, and to arm those decisions with such authority as shall make them generally acceptable to the public. That is the object I had in view in presenting this Bill to your Lordships. It is no new invention of mine. I have endeavoured to reproduce and extend an ancient practice which prevailed within my memory in respect to the sentences of death passed in the City of London by the Recorder. My Lords, the thing I dread the most is, that from untoward circumstances there should arise in this country such a want of confidence in the decisions taken and the proceedings adopted in regard to sentences of death as would impair the law as it now stands, inflicting this punishment for certain offences. I believe the maintenance of that law to be of the most essential importance to the best interests of the community; and the only danger I see is from a want of confidence, such as I have described, in its administration. I believe that at the present moment the strongest feeling excited in this country in regard to this matter arises, not on account of an execution of a criminal taking place when it is justly merited, but when through an accident or some miscarriage of justice a great

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  criminal escapes the punishment due to his offences. It is impossible to doubt that in the case of Townley a universal feeling existed that the ends of justice were defeated. My Lords, I think the result of this Commission will be that there will be a decided expression of opinion on its part that the punishment of death must be retained; and I believe it will also offer suggestions with the view of giving some support and assistance to the Secretary of State in these cases. The first thing suggested probably will be that the Secretary of State should have the constant advantage of the advice of the noble and learned Lord who may sit on the Woolsack. It may, however, happen that the Lord Chancellor may not be conversant with criminal law, but may have passed his professional career in the Courts of Equity. It would be desirable, therefore, that the Lord Chief Justice of the Court of Queen's Bench should be added to the advisers of the Secretary of State. But the act to be done being the act, not of an individual, but of the Government, I cannot see how it would be possible not to make the First Minister of the Crown, the First Lord of the Treasury, one of the persons who should be present at these consultations. The consultative body would become, in fact, a Committee of the Privy Council; and how, again, would it be possible to exclude from the discussion in such a Committee the person who is President of the Council? These four persons, in addition to the Secretary of State, should be summoned for the consideration of these cases. But, besides these five, the remainder of Her Majesty's Cabinet would also be present, according to the plan I am proposing to your Lordships. I think it is better, if we can, to go back to past times and adopt that which has been sanctioned by experience, and which once existed, not only without any objection on the part of the public, but with their concurrence and confidence. I must likewise observe that I think it a very great advantage of the practice suggested by the Bill now before your Lordships, that the Sovereign would, under occasional circumstances, sit and act in these cases. I believe that the presence of the Sovereign gives that gravity and solemnity which befits the consultation of those who have to decide on the life of a man. It was so formerly, and I am satisfied it would be so again, and that we should guard the law as it exists, and maintain it most success-
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  fully by affording the Sovereign an opportunity of being present when these decisions are taken. I hope your Lordships will consider the expediency of proceeding with immediate legislation on this matter, dealing with this Bill as you deem best, agreeing to commit it if you think fit, or—what I should undoubtedly prefer—proposing some other and better measure, such as may occur to any other noble Lord, for the purpose of meeting that which is a great danger, the want of confidence in the administration of justice.
  Moved, "That the Bill be now read 2a."
  EARL GEANVILLE: My Lords, the noble Earl has, I think, stated correctly what has been done by the House of Commons in reference to this matter. The point, however, as he says, which we have to consider is whether, when a Commission appointed at the request of the other House is sitting on this subject, the question ought not to be postponed; or whether we should adopt the present Bill or send it to a Committee; or lastly, whether some other measure more fully answering the same object should be introduced. I must say that my own impression is strongly in favour of the first alternative suggested by the noble Earl. While I admit that the question ought not to be very long delayed, on the other hand I think it is not at all desirable that we should proceed hastily in a matter of this kind. It appears to me, I confess, that there would be something anomalous as well as inconvenient in our attempting to legislate at the very outset of the labours of the Commission, and I hardly think that noble and learned Members of this House themselves would like to run the risk incident to such a course. I think your Lordships and the public are indebted to the noble Earl for the attention he has paid to this subject, and for the pains he has taken in drawing up the Bill; but, at the same time, it appears to me that his Bill is open to grave objections. The first clause is objectionable for a plain and simple reason. I have always understood that the infliction of the punishment of death is the act of the law, and it is placing the Secretary of State in a false and obnoxious position to say that the execution of the sentence of death is his act and not the act of the law. An equally strong objection may be urged against the next clause, as to receiving the report of the Judge, and summoning

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  certain. Members of the Privy Council, indicated by the noble Earl, to assist the Secretary of State in coming to a decision whether the sentence shall be carried out or not. It occurs to me (though I do not think it ought to be an objection in a matter of this importance) that there would be a great practical difficulty in assembling at all times of the year, particularly during the long vacation, five Members of the Privy Council, to consider whether a sentence of death should be carried out or not. But I would ask the noble Earl whether the decision of those five Members of the Privy Council, supposing it to confirm the sentence of death, is to be regarded as final? The pressure always comes at the last moment, and if the decision of the Privy Councillors is to be final, what answer must be given to those parties who, interested in a person under sentence of death, may come forward after the final decision has been taken with plausible allegations that new and important evidence had been discovered? It is quite impossible, if the present Bill should pass, that the Secretary of State should take upon himself the responsibility of reversing a decision come to just before by a Committee of the Privy Council; and yet circumstances may be laid before him warranting further inquiry. It would then be necessary for him to re-assemble the Committee; but that would be a matter of difficulty, and would occupy some time. Again, one of the strongest objections to the existing state of things is that the Secretary of State has no power of ordering a new trial or any judicial inquiry into the facts of a case; and I apprehend it is the absence of that power which makes his decision to a certain degree unpopular and unsatisfactory. Your Lordships will observe that the present Bill gives no power whatever to the Committee of Privy Council to institute such an inquiry, or to order a new trial, or to do anything more than can now be done by the Secretary of State with the view of arriving at a satisfactory result. As for the presence of Her Majesty, no doubt it would give a certain amount of solemnity to the proceedings of the Committee of Privy Council, and it may be said to be in conformity with precedent; but I rather think it would be contrary to constitutional practice that the Sovereign should preside at any Council where deliberation or discussion takes place. With respect to the Recorder of London, I believe he does not sit as judge
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  in any case of murder at all, and I can see no reason why he should be summoned. No doubt some of the objections I have just stated might be met in Committee on the Bill; but the first reason I gave—that a Commission, is about to be appointed at the request of the other House to consider the whole subject of capital punishments, and that such Commission will doubtless feel it to be its duty to examine the proposition of the noble Earl, will, I trust, satisfy your Lordships that this measure should not be proceeded with further. It is much desired by the Government that they should be allowed to recommend the noble Earl himself as one of the Commissioners; but whether or not the noble Earl may consent to act, I am persuaded that his proposal will receive all the attention it so well deserves. The fact that they entirely approve the suggestion of the House of Commons for the appointment of a Commission will prevent the Government undertaking the responsibility of introducing a Bill until they have the great advantage of being guided by the inquiries and recommendations of the Commissioners, and I trust the noble Earl, satisfied with an expression of his opinion, will not press the present measure further.
  EARL GREY: My Lords, I am very glad that the President of the Council, on behalf of the Government, has asked the noble Earl not to proceed further with this Bill, which appears to me, after mature consideration, to be open to objections far stronger than those which can be urged against the existing law which it is designed to alter. The noble Earl (the Earl of Ellenborough) has recommended this Bill on the ground that it is in accordance with the precedent afforded by the former practice of submitting to the King in Council the Recorder's Report of capital convictions in London. It is my lively recollection of the proceedings of the Privy Council in those cases which induces me most sincerely to deprecate the passing of this measure. Before Her Majesty came to the throne it was the practice that all capital convictions which took place at the Central Criminal Court were reported to the King in Council by the Recorder of London, and then it was decided in the Council whether the sentences should be carried into effect or not. It was my duty, during the last two years of that practice, as a Member of the Government of Lord Melbourne, to attend the Council when such cases were brought before it, and I have a

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  most lively recollection of the utterly unsatisfactory character of the proceedings on those occasions. What I then saw convinced me that it would be totally impossible for five Members of the Privy Council, with the Chief Justice and the Recorder of London, sitting in council together, hearing evidence read before them, and then letters and memorials bearing on a remission of punishment, with documents sent from the Home Office, to form a sound judgment as to whether a certain sentence should be carried out or not. If there is to be an appeal in criminal eases at all, it ought to be to a tribunal very differently constituted; but I own I think it extremely doubtful whether any such appeal is necessary. In my opinion the fault lies, not in the law as it stands, but in the manner in which it has been administered for a considerable number of years. A practice has grown up at the Home Office—not under the right hon. Gentleman who at present presides over that Department—he found it in existence—by which the Secretary of State is called upon to listen to those persons who question the propriety of verdicts given by juries in capital cases. I utterly deny the propriety of the Secretary of State so sitting in judgment upon the verdicts of juries. How can he, or any Council, upon hearing evidence read—without seeing the witnesses, without having an opportunity of observing their demeanour, without having the immense advantage which those who were personally present at the trial possess over those who merely hear the result of it—form a competent judgment as to the correctness of a verdict? I have, therefore, always held that the practice of the Secretary of State, considering the propriety of verdicts, was altogether a wrong one. If the Judge and jury art; satisfied, my opinion is that the Secretary of State is bound to accept the verdict; and consequently, if I had ever had the honour of holding the high office of Home Secretary, I should positively have declined going into the evidence with a view of forming an opinion whether the verdict was right or not. There is only one case in which that rule ought to be departed from—namely, when circumstances have come to light after the trial and in consequence of the trial, which were not before the Judge and jury, which may throw suspicion on some of the evidence on which the person had been convicted,
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  or which may explain away things that had led the jury to believe in his guilt. When such circumstances come to light afterwards it is fitting they should be investigated: but in applying that rule the utmost caution is necessary, for it never would do if persons accused of crime were at liberty to hold back material evidence at the time of trial, when their witnesses would be liable to be cross-examined and to have all their statements thoroughly sifted, in order to bring it forward later, when it could not be tested in the same manner. It therefore seems to me that only circumstances which have arisen since the trial, or which it was shown to have been impossible to bring forward while the trial was proceeding, should be allowed to be considered by the Secretary of State. Except in those special and exceptional cases, the duty of the Secretary of State is not to sit in judgment upon the verdict of the jury, but to consider whether, that verdict being right, there are circumstances to justify the extension of the mercy of the Crown to the criminal. That, and that only, is his duty. Of late years we have had cases, such as those of poisoning, where medical men came forward one after another to question the evidence taken at the trial, and to press their several views, in order to induce the Secretary of State to believe that the Judge and jury were entirely in the wrong. I protest against that practice as being in the highest degree improper. It is the duty of the Secretary of State only to consider whether or not there are circumstances which justify the mercy of the Crown being extended to the criminal, and it is not one from which he ought to shrink, especially while the law remains in what my noble Friend the President of the Council rightly called its proper state—namely, that unless the Crown interferes justice takes its course, without any direction from the Secretary of State or the Government. Formerly when there was a great variety of capital crimes, the Secretary of State had a very difficult and painful duty to perform in deciding when the penalty should be remitted. Now, however, murder is almost the only crime for which capital punishment is actually inflicted, although there are two or three other crimes to which the penalty of death attaches; and I believe that when Parliament thus restricted the application of that punishment, it was with the intention that in all cases of

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  deliberate murder the law should take its course, unless there were some very strong and special grounds why it should be arrested. If it is admitted that in cases of convictions for murder the Secretary of State should not re-consider the verdict of the jury, but should inquire only whether there are special and exceptional reasons for extending the clemency of the Crown, then I say there is nothing in that duty which one man cannot perfectly execute. Nay, I go further. I am fully persuaded that the responsibility will be more effectual and complete if, as now, it rests on the Secretary of State than if it were borne by the whole Committee of Council. I altogether object to the principle of frittering away responsibility by distributing it over too large a body. I think the law is quite right as it stands, and that the only alteration required is in the manner in which it is carried out.
  THE DUKE OF ARGYLLsaid, he differed from the noble Earl (Earl Grey) that the main difficulty of the present system did not arise from the state of the law, but from the manner in which it was exercised; and especially he differed from him in the error he had pointed out that the Secretary of State constituted himself a sort of court of appeal to try cases over again. His opinion was that the present amount of dissatisfaction which existed in the public mind was attributable, in a great degree, to the present state of the law, and that it would not be remedied until the state of the law was altered. He shared the conclusion of his noble and learned Friend on the Woolsack, that the present state of the law, which established no distinction between the different shades and degrees of murder—which recognized no distinction whatever, except the broad distinction between homicide and murder—was contrary to the common sense and conscience of the people, and that the dissatisfaction had mainly arisen from the Secretary of State being constituted a court of appeal. His opinion was, that of the cases which had occurred lately in which public feeling and the conscience of the people had been more or less violated in respect to the escape of criminals, there were only a few in which the decision of the Secretary of State had any relation to the question of evidence. The only case which he could recollect in which it could be supposed that that decision had reference to the evidence was in the celebrated case of Jessie Maclachlan.
  EARL GREY: And Smethurst.
  THE DUKE OF ARGYLL: Yes, Smethurst was a recent case. Now, the case of Jessie Maclachlan had not reference so much to her guilt, but as to whether another person who had not been tried was not more guilty than she was — whether he was not the primary agent in the crime and she the secondary one. His noble Friend had mentioned the Smethurst case. Now, in that instance, the decision of the Secretary of State was, no doubt, in part influenced by the idea that the evidence was deficient. But in nine cases out of ten the pressure that was brought upon the Secretary of State was not brought upon him to review the evidence with regard to the guilt or innocence of the criminal, but as to the degree of heinousness of the crime, and that was so in the last case—that of Hall. In that case there was clearly premeditation; but there were also circumstances of provocation which, to some extent, palliated the crime. Then there were other questions, as for instance insanity; and the noble Earl who had introduced the Bill had referred to Townley's case with undoubtedly a great deal of justice. There the criminal escaped justice owing to the defective nature of the clause in the Act, which was not noticed when the Act was passed, and which was not known to exist till it was discovered by the ingenuity of the attorney for the prisoner. So far that defect had been remedied by the passing of an Act which removed the difficulty which arose in that particular case. He had not risen to discuss the principle of the Bill then before the House, but to express an opinion which he strongly entertained, that the main fault had not been in the administration of the law, but in the state of the law, and that unless Parliament proceeded to an alteration of the law, somewhat in the manner that was suggested on a former occasion by the noble and learned Lord on the Woolsack, capital punishment would not survive many years in this country.
  LORD REDESDALEsaid, he could not allow what the noble Duke had said to pass without some observation. He believed it was very far from being the general opinion that it would be desirable to attempt to distinguish between different degrees of criminality, such as would lead to the adoption of the system which prevailed in France. It was hardly possible to read the verdicts found by French juries "with extenuating circumstances"

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  without seeing that the introduction of that system into England, leaving that: discretion to the juries, would lead to the greatest dissatisfaction.
  THE EARL OF ELLENBOROUGHsaid, that, in deference to the feeling which their Lordships had expressed, he should ask leave to withdraw the Bill.
  Bill (by leave of the House) withdrawn.

  DIVORCE AND MATRIMONIAL CAUSES (AMENDMENT) BILL [H.L.]
  A Bill to amend the Act relating to Divorce and Matrimonial Causes in England, 20 & 21 Vict. c. 85 — Was presented by The Lord ST. LEONARDS, and read 1a. (No. 75.)
  CHIMNEY SWEEPERS AND CHIMNEYS REGULATION BILL [H.L.]
  A Bill to amend and extend the Act for the; Regulation of Chimney Sweepers and Chimneys; —Was presented by The Earl of SHAFTESBURY, and read 1a. (No. 76.)

  SCOTTISH EPISCOPAL CLERGY DISABILITIES REMOVAL BILL [H.L.]
  A Bill to remove the Disabilities affecting the Bishops and Clergy of the Protestant Episcopal Church in Scotland—Was presented by The Earl of DONCASTER, and read 1a. (No. 79.)
  House adjourned at Six o'clock, to Thursday next, half past Ten o'clock.