Lords Sitting of 15 June 1866

MINUTES.
Sat First in Parliament—The Lord Willoughby de Broke, after the Death of his Father.
Took the Oath—The Lord Blayney.
SELECT COMMITTEE—On Crown Lands discharged.
PUBLIC BILLS—First Reading—Validity of Marriages* (164); Foreign Jurisdiction Act Amendment*(165).
Committee—Law of Capital Punishment Amendment (re-comm.) (145 & 166).
Report—Lunacy Acts (Scotland) Amendment (138).
Third Reading—Prosecution Expenses* (88); Charitable Trusts Deeds Enrolment* (146), and passed.

LAW OF CAPITAL PUNISHMENT AMENDMENT BILL—(Nos. 145 & 166.)
(The Lord Chancellor.)
COMMITTEE (ON RE-COMMITMENT.)
House in Committee (according to Order) on Re-commitment.
Clause 13 (Execution to be within Prison).
LORD ST. LEONARDSobjected to the whole of Part IV., authorizing the execution to be within the walls of the prison. He objected altogether to private executions. A soldier was marched out before his comrades for execution as an example to others in the regiment, and a civilian ought to be hanged in public as an example to others. To be "hanged like a dog" had a deterrent effect, for the boldest man shuddered at it; and if they resorted to private executions, in his opinion they would deprive capital punishments of their deterrent quality. The fundamental prin-
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ciple which governed the administration of the criminal law in this country was that all proceedings involving life and liberty should be conducted in public, and it was only in accordance with it that the punishment should also be carried out in public. By that means the public was certain that everything was done fair and right, and that justice had been done. The final execution of such a sentence ought above all things to be public, or else what security had the people, should a man of influence be unfortunately condemned, that he suffered the extreme penalty of the law. It was only by public executions that the great mass of the people could be induced to believe that the law had taken effect in such cases. During the last ten years the reports of executions given by The Times had, with one exception, always testified to the becoming conduct of the assembled crowds, and that single exception received a flat contradiction a few days afterwards from a person of great experience. No wrong was done by public executions, and though it was impossible to search people's hearts, there could be little doubt that to witness so solemn a spectacle must make a deep impression on the minds of those who beheld it.
Moved to omit Clause 13.—(The Lord St. Leonards.)
THE DUKE OF RICHMONDsupported the Bill, reminding their Lordships that all the publicity attending the proceedings in the case of a man accused of murder was not in the least interfered with by the present Bill. The only alteration proposed was that the execution should take place in private; but all the details would be just as public as they were now. There would be the same security that the law had been carried into effect that there was now. The noble and learned Lord (Lord St. Leonards) had argued that because a military execution was of a very imposing character, because performed in public, the public execution of other criminals must be similarly impressive. It must be recollected, however, that a soldier was executed in the presence of his comrades, of those with whom he had for years been in close association; whereas the execution of a criminal for murder brought together only the very dregs of the population, and it was impossible to induce respectable persons to be present. The evidence that had been given by police inspectors and others was

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to the effect that executions had no deterrent effect on the lower classes, who looked upon them in the same way as prize fights or any other amusing sights, and that the behaviour of many of the crowd was exceedingly riotous and indecorous. Very little moral impression could therefore be made by public executions, and he thought the change proposed was a very desirable one.
THE LORD CHANCELLORsaid, that capital punishment was the only punishment that was carried out in public, and desired to know why, if publicity was so essential as his noble and learned Friend argued, it was not applied to other cases. Imprisonment, indeed, necessarily involved privacy; but why should not people be flogged as well as hanged in public? Why, because flogging in public would be so revolting to popular feeling that it would not be tolerated. He could not help thinking, therefore, that analogy was in favour of private executions. This was already the law in some of the American States and in several of the States of Europe. It might have been liable to abuse in former times, but nobody nowadays could have any apprehension of criminals being tortured or put to death in any other way than the sentence prescribed. No doubt it was possible that a few individuals in a crowd might be impressed by an execution; but the large mass of the people present were always of the lowest class, unmixed with persons of superior education, whose presence gave a tone to large assemblies; and the evils of the present system were so great that, in his opinion, it was very desirable to put an end to it. On the second reading of the Bill, the preponderance of opinion in the House was decidedly in favour of the change, which was recommended by the recent Royal Commission, and was in harmony with the more humane feelings of the present age. He thought the value of the Bill would be materially impaired if the clause were struck out. His right rev. Friend (the Bishop of Oxford) had suggested that a bell should be tolled within the walls of the prison when the criminal left his cell, and that a black flag should be hoisted on the walls at the falling of the drop. He thought, however, that such a regulation could not consistently be introduced into the Bill, and that the due solemnity of the spectacle was sufficiently provided for. He hoped their Lordships would be of opinion that the clause ought to be retained, and that it would be a great improvement on the present system.
LORD DUNSANYsaid, that one of the great objections to our mode of executing criminals was the uncertainty of its duration. A man was sometimes hanging fifteen or twenty minutes before life was entirely extinct. The mode of death should be more certainly instantaneous. It was to be assumed that the punishment should be inflicted with the greatest equality possible to all persons so unfortunately placed, and it was the duty of the Government to take every possible care that no unnecessary torture should be inflicted in the performance of the last solemn act of the law. Nothing, however, was more uncertain or more bungling than our present system of hanging. We had but one skilful executioner in England, and his services were not extended to Ireland. It required some skill to hang a man effectually. They found that criminals executed died from different causes—some died from suffocation, others from dislocation of the neck, and others again from apoplexy caused by an unnatural flow of blood to the brain. It all depended upon the skill of the hangman whether the unfortunate criminal died at once or was allowed to suffer for several minutes. He believed that if the executions were carried out in private they would be far more solemn and decorous than they were at present.
THE EARL OF ROMNEYsaid, he could not help thinking that the publicity of executions had a solemnizing effect on the minds of those who witnessed them. However apt such persons might be, in going to or coining from such exhibitions, to indulge in a species of jocularity, trying, if possible, to carry off their nervous feeling, it was quite obvious that they were deeply impressed with the awfulness of the scene they had witnessed. They would not be impressed with the tolling of the prison bell as they were by the appearance of the living condemned criminal on the scaffold, and seeing in a few moments his lifeless body blown to and fro by every breath of wind. He had himself once witnessed an execution, and he could not describe the feelings of horror which it excited in him. If the penalty of death were inflicted privately in prison, the sentence would be deprived of much of the horror which now attached to it.
THE EARL OF MALMESBURYsaid, when this Bill was being read a second time he ventured to express his dissent from the new mode of executing criminals proposed. He was now glad to find his

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opinion fortified by such a distinguished legal authority as his noble and learned Friend (Lord St. Leonards). He hoped their Lordships would not be offended when he said he believed they were, perhaps, the worst Court in the world for passing judgment as to the effect of public executions upon the lower classes. Their Lordships were highly educated men, possessing refined feelings and minds, and they were naturally shocked at the sight of a public execution. They would carefully avoid witnessing one except for the purpose of observing what its effect was upon the minds of the masses who assembled around the scaffold. Their Lordships' minds would naturally revolt at such scenes. How, then, could they answer for the effect produced by public executions upon the minds of uneducated persons, many of whom belonged to the criminal class? He thought they could not answer for the effect of those spectacles; and, therefore, unless they were certain that such executions were worthless in respect to morality and useless as warnings, he thought it was better to leave the law as it stood than to attempt any alteration of it. The right rev. Prelate (the Bishop of Oxford) in replying to the observations he (the Earl of Malmesbury) made on this subject on a former occasion said, that criminals often displayed a good deal of bravado on the scaffold, and assumed a certain feeling of courage for the time which was productive of a false and morbid impression on the minds of the spectators. But was he sure that that was the case in the present day? He (the Earl of Malmesbury) thought not. He thought that owing to the exertions of the excellent men who now held the offices of prison chaplains the unfortunate criminals generally appeared on the scaffold in a far different state of mind than was the case some sixty or seventy years ago, in the days of Dick Turpin and gentlemen of that kind. He did not concur with the statement of the right rev. Prelate, that there was often a morbid infatuation of the public mind which led people to sympathize with criminals who were about to be executed. Baron Bramwell, in his charge to the jury in the Cannon Street murder case, said, only last week, that "rogues will always assist rogues, but there is no sympathy in this country for murderers." When a supposed murderer was arrested it was well known that the chief difficulty of the police was not to keep him in safe custody, but to protect him against the
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violence of the mob. It could not, then, be said that the people had anything of a morbid sympathy for a criminal. He thoroughly agreed with his noble and learned Friend (Lord St. Leonards) that the infamy of a public execution had a deep effect upon the mind—of this effect a remarkable instance was to be found in the criminal himself, for the first precaution taken after a man had been sentenced to death was to keep him from committing suicide. Criminals in general were not so insensible as some supposed to a feeling of degradation. If inquiry were made at the convict establishments here or abroad, it would be found that criminals felt the greatest horror at having their hair cut and the convict dress put on them. Robespierre, to avoid a public execution, attempted to blow his brains out, and Wolfe Tone, he believed, killed himself in prison rather than be publicly executed. Then there was the instance, not many years ago, of a French nobleman, who, to prevent the disgrace which would fall on his family by his public execution for a murder of which he had been guilty, committed suicide. Another argument which had been eloquently urged the other day by the right rev. Prelate was that the disgraceful scenes witnessed at public executions were a proof that those executions had no beneficial effect on the minds of the spectators. In the absence of any statistics showing the proportion of the public upon whom public executions had no salutary effect he thought that the argument of the right rev. Prelate was not worth much. He considered that if nine-tenths of the spectators were solemnly impressed with the awful scenes they witnessed—and he believed that the proportion was considerably more—it would form a strong argument for the present mode of carrying into effect the extreme sentence of the law. A servant of his had attended an execution, and the effect on him was so great that he was unfitted for his work for three or four days. One objection raised was that the people indulged in obscene language at these executions; but the same thing occurred on great public spectacles, such as the funeral of the late Lord Palmerston, and at Her Majesty's coronation; but it would be absurd to argue from that that public funerals and coronations did more harm than good. Those people were obscene, not because of what was taking place, but because it was their habit to be obscene. He considered that the substitution of private for public

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executions was the first step to the abolition of capital punishment. He did not think that the proposal to make the execucutions private, although aided by the theatrical accessories of the tolling of bells and the display of a black flag, would have any effect upon the unimpressionable minds of those who constituted the criminal class in England, however they might act upon the imaginative people of the South. The noble Duke (the Duke of Richmond) had alluded to executions in the army, and said that they took place in the presence of the friends and comrades of the criminals; and he (the Earl of Malmesbury) thought it was a defect in our present system that the executions always took place at certain and the same places. He would suggest that executions should take place as far as possible in the particular localities where the crime was committed. When executions took place in the county towns the same people always saw them, and they produced less effect than would accompany them if the sentence of the law were carried out in the places where the crime was perpetrated, and where the executions might be witnessed by those who were formerly the friends and associates of the criminals.
THE BISHOP OF OXFORDsaid, he could not concur in the statement of the noble Earl that their Lordships were likely to be bad judges of the effect of public executions on the lower classes, because, as men of education and refinement, their feelings on the matter were likely to be different from those of less educated people. His own opinion was that the result of their superior education was just the reverse. He thought that the careful study which people of education bestowed on questions like the present eminently qualified them to judge what effect was produced on the minds of the lower classes by events which passed before their eyes. If this were not the case, it would be almost impossible for educated people to legislate for the uneducated. But the question did not rest there. It should be borne in mind that an inquiry had been made on the subject by a Commission, and evidence had been obtained from those who witnessed public executions, and whose business it was to be present at them, as to the effect produced on the minds of the assembled masses, and even on the criminals themselves; and after hearing both sides the Commission came to a conclusion against public executions. The noble and learned Lord who moved the Amendment (Lord St. Leonards) said
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that public hanging had a deterrent effect, because, when a man was executed, a common observation made by the people was that he was "hanged like a dog." Now, he did not think that dogs were hanged in public, but, whenever they went through that uncomfortable operation, he believed that the operation was performed in private; so that if the idea of being "hanged like a dog" had a deterrent effect, the conclusion was in favour of private and not of public executions. The preponderance of evidence given by persons who lived at country towns where executions took place, by chaplains of gaols, and by leading members of the police, was clearly against the notion that any good effect was produced on the criminal masses by public executions. He was told by a noble Friend of his a Colonial Governor, of a curious instance of the effect of public execution; for a fortnight after a public executions where he was stationed he noticed that all the boys and young lads in the town were performing mock executions, showing that the public spectacle of the death of a man by hanging, instead of filling their minds with horror, was regarded as a sort of pleasure-able dramatic excitement. Public executions were done away with by him, and the result, he stated, was that a marked change for the better was produced. The witnesses from America and from Prussia, who were examined before the Commission, was to the same effect. Indeed, the evidence generally went to show that the dread of the punishment became increased when the sight itself was withdrawn from the public gaze. Another remarkable fact was that it appeared that those very men who had themselves been great criminals had been constant attendants at public executions; so that it was clear those spectacles had exercised no sort of deterrent effect upon their minds. And from what their Lordships knew of the operations of the human mind they would at once understand that noise and disturbance and whatever tended to dispel that fixedness of thought which to produce any good result must be centred not upon the accidents of the scene, but on the great fact that a human life was being cut short by a shameful death, took away in the case of the great mass of the people from that great moral impression which such a scene was meant to create. It was also shown that the fact of executions being public produced a bad effect upon criminals and upon the criminal population—of this they had distinct and conclusive

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evidence before them. It would be found from the evidence of a very thoughtful man (Mr. Kennedy) that the morbid feeling excited by such spectacles in America had led to the greater frequency instead of to the diminution of murders. As to the objection that the holding of executions in private would tend to the total abolition of capital punishment, he would only say that if those who supported the clause were right in the view which they took the tendency would be in the opposite direction. If, while public executions gave an unnecessary shock to many persons, they were able to show that their effect was to accustom people to the penalty of death and thus to diminish its deterring influence, the argument against the entire abolition of capital punishment would be surely stronger than if the last punishment for a great offence were inflicted in the manner proposed without subjecting to a needless shock the moral and civilized feelings of the country.
On Question, That the clause stand Part of the Bill? their Lordships divided:—Contents 75; Not-Contents 25: Majority 50.

CONTENTS.

Cranworth, L. (L.Chancellor.)

Halifax, V.

Hawarden, V.

Lifford, V.

Devonshire, D.

Powerscourt, V.

Grafton, D.

Sidmouth, V.

Richmond, D.

Sydney, V.

Bath, M.

Bangor, Bp.

Bristol, M.

Gloucester and Bristol, Bp.

Lansdowne, M.

Normanby, M.

Oxford, Bp.

Peterborough, Bp.

Belmore, E.

Carnarvon, E.

Abinger, L.

Clarendon, E.

Belper, L.

De Grey, E.

Bolton, L.

Derby, E.

Boyle, L. (E. Cork and Orrery.)

Devon, E.

Fortescue, E.

Brodrick, L. (V. Midleton.)

Granville, E.

Grey, E.

Brougham and Vaux, L.

Harrowby, E.

Charlemont, L. (E. Charlemont.)

Huntingdon, E.

Leven and Melville, E.

Chelmsford, L.

Morley, E.

Churchill, L.

Nelson, E.

Clermont, L.

Russell, E.

Colville of Culross, L.

Shaftesbury, E.

Denman, L.

Sommers, E.

De Tabley, L.

Stanhope, E.

Dunsany, L.

Wilton, E.

Foley, L. [Teller.]

Granard, L. (E. Granard.)

Clancarty, V. (E. Clancarty.)

Hamilton, L. (L. Belhaven and Stanton.)

Da Vesci, V.

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Heytesbury, L.

Southampton, L.

Houghton, L.

Stewart of Garlies, L. (E. Galloway.)

Lyveden, L.

Methuen, L.

Sundridge, L. (D. Argyll.)

Minster, L. (M. Conyngham.) [Teller.]

Taunton, L.

Overstone, L.

Teynham, L.

Polwarth, L.

Tredegar, L.

Portman, L.

Wensleydale, L.

Saye and Sele, L.

Wharncliffe, L.

Scarsdale, L.

Wrottesley, L.

NOT-CONTENTS.

Marlborough, D.

Blantyre, L.

Crofton, L.

Westmeath, M.

Grinstead, L. (E. Enniskillen.)

Amherst, E.

Kilmaine, L.

Cardigan, E.

Lovel and Holland, L. (E. Egmont.)

Doncaster, E. (D. Buccleuch and Queensberry.) [Teller.]

Mostyn, L.

Saltoun, L.

Ellenborough, E.

Silchester, L. (E. Longford.)

Lonsdale, E.

Lucan, E.

Somerhill, L. (M. Clanricarde.)

Malmesbury, E.

Romney, E. [Teller.]

Saint Leonards, L.

Strafford, E.

Templemore, L.

Walsingham, L.

Hardinge, V.

Wynford, L.

Clause agreed to.
Clause 14 (Sheriff, &c., to be present).
THE DUKE OF MARLBOROUGHtook occasion to say that, while the presence of large crowds would, under the operation of the Bill, be done away with, it was desirable that executions should still be allowed to preserve to some extent a public character. He should, therefore, propose to introduce into the clause words to the effect that the visiting justices of the prison should admit as many persons within its precincts as could be conveniently accommodated. As the clause at present stood there would be present (besides the official) only such persons as the sheriff or visiting justices might think to admit.
LORD TEYNHAMsuggested the insertion of words in the clause providing for the admission within the prison of a reasonable number of the accredited representatives of the public press. In some cases the question whether reporters should be admitted had been raised before justices, and had been decided in the negative by them. The press itself had demurred to such an exclusion, and the opinion of the public, he believed, had coincided with that of the press, and had been adverse to the decision of the justices concerned. As that clause stood it was quite possible, and even probable, that occasions might arise in which, when the sheriffs or

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the visiting justices found that the power of excluding the press was in their hands, they would be disposed to exercise that power, and would actually exclude it. According to the 18th clause, the Secretary of State would have the power to make regulations touching executions; but as the clause then under discussion specified the parties who should be officially present, and who should have authority to limit the number of persons admitted to witness the execution, the letter at least of the Bill would lead one to suppose that the power of admitting or excluding the press was not to be left in the hands of the Secretary of State, but was to reside in the sheriffs and the visiting justices. Seeing that executions hereafter were not to take place altogether in public, it was most important that the representatives of the press should be enabled to inform the public of what transpired on those occasions.
An Amendment moved after ("belongs") to insert ("and that which shall appear to the Sheriff or to the Visiting Justices a reasonable number of the accredited representatives of the public Press.)—(Lord Teynham.)
THE LORD CHANCELLORthought it would be better to leave the matter in the hands of the sheriffs and the visiting justices, who were responsible to the public, than to allow any person, however respectable, to claim an absolute right to admission within the precincts of the prison. The Amendment of the noble Lord might be attended with inconvenience.
Amendment negatived.
THE DUKE OF MARLBOROUGHsaid, the clause imposed on the visiting justices or the sheriffs the duty of selecting the persons who should be present to witness the execution. He was glad that he himself was not likely to be placed in the position of having such a duty imposed on him. The provision was one that must utterly fail, and the result would be that executions would be witnessed simply by the officials of the gaol. When executions thus became truly private he feared that they would be ultimately abolished altogether.
THE LORD CHANCELLORhoped their Lordships would not assent to the suggestion of the noble Duke, which would probably lead to inconvenience.
Clause agreed to.
Clause 15 (Surgeon to certify Death, and Declaration to be signed by Sheriff, &c.) agreed to.
Clause 16 (Coroner's inquest on Body).
EARL NELSONsuggested that as the chief obiect of the inquest was to identify the dead man as the person who had been sentenced to execution, it would secure greater publicity and otherwise produce a more salutary effect if the jury were summoned from the district in which the crime had been committed. These persons would be not only the most fit to testify to the identity of the body, but would carry back to their neighbourhood the certainty that the crime had been punished by the execution of the criminal.
An Amendment moved, after ("jury") to insert ("for the inquest shall be, where practicable, summoned from the parish or district where the murder was committed.)
THE LORD CHANCELLORthought it would only introduce needless difficulty into the working of the clause to require that the jury should be summoned in all cases from the district in which the crime had been committed.
Amendment withdrawn.
Clause agreed to.
Clauses 17 to 23, inclusive, agreed to, with verbal Amendments.
Clause 24 (Substitute for Punishment of Death in certain cases.) (Partial Repeal of 2 Geo. II. c. 25, a. 2).
EARL GREYobserved, that it proposed to abolish the punishment of death for those who committed treason by setting fire to Her Majesty's ships and dockyards in time of war. In his opinion it was a most grievous offence, meriting the severest punishment.
THE LORD CHANCELLORsaid, the policy had hitherto been to confine the infliction of capital punishment to murderers. Any number of crimes might be included in the category of those to be punished by death if heinousness alone was to be the guide. Mutilation, for instance, was a most terrible crime; but that could not be included. Still, if any person in collusion with the enemy set fire to Her Majesty's dockyards he could be indicted of high treason, and was liable to conviction and capital punishment. But it must not be forgotten that the fact of collusion with the enemy would have to be proved.
THE EARL OF ELLENBOROUGHthought it immaterial whether collusion with the enemy were proved or not. A man by committing such an offence as setting fire to Her Majesty's ships constituted himself an enemy of the public. Parliament would act most unwisely if it abolished the punishment of death for the greatest injury which could be inflicted upon the country.
LORD TAUNTONalso thought the Act should be retained in force.
THE LORD CHANCELLOR,in deference to what appeared to be the general wish of their Lordships, said he would not insist upon the clause.
Clause struck out.
Clauses 25 to 27 agreed to.
Clause 28 negatived.
Clause 29 (Incorporation of Parts of 24 & 25 Vict. c. 100).
THE EARL OF CARNARVONexpressed his opinion that some assurance ought to be given on the part of the Government that in cases where a person was tried for a capital crime, and a conviction ensued, and where the Royal prerogative had once interposed, it should not be exercised a second time for the mitigation of the sentence. He had in his mind the case of Charlotte Winsor, whose sentence bad been commuted to one of penal servitude for life. He thought it was due to the public that this unhappy murderess should be instructed that her commuted sentence would be fully carried out. At present life sentences were merely nominal, but he trusted that in this particular case the usual custom would be departed from.
THE LORD CHANCELLORfelt that it was very difficult to lay down one rule to regulate a diversity of cases, and this moreover in a matter which touched the prerogative of the Crown. He could, however, only say that if he were Secretary of State at the end of twelve years' of Charlotte Winsor's punishment he should not regard it as a case deserving of a merciful consideration. He thought that in ordinary cases of murder the sentences of penal servitude ought to be what they professed to be, although it was impossible, of course, but that cases of an exceptional character might arise.
THE DUKE OF MARLBOROUGHalso expressed an opinion that sentences of murder commuted to penal servitude for life should be taken out of the category of
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those punishments which, after a certain time, were subject to remission.
Clause agreed to.
Schedules agreed to.
The Report of the Amendments to be received on Tuesday next; and Bill to be printed as amended (No. 166.)
THE MARQUESS OF CLANRICARDEgave notice that at a subsequent stage he should move that the crime of feloniously assaulting with intent to kill should be taken out of the Bill, and he should at the same time call attention to the case of Charles O'Connor, in Dublin, who had pleaded guilty to that offence.

LUNACY ACTS (SCOTLAND) AMENDMENT BILL—(No. 138.)
(The Lord Privy Seal.)
REPORT OF AMENDMENTS.
Amendment reported (according to Order.)
THE EARL OF SHAFTESBURY moved to insert a clause empowering the directors of any chartered lunatic asylum in Scotland to grant retiring allowances out of the funds at their disposal to any of their officers who had served for fifteen years, and who were more than fifty years of age. It was well known that the medical officers and attendants in lunatic asylums were specially subject to injurious influences. The perpetual presence of insanity was depressing in the extreme. In the interest of the lunatics as well as of their attendants, it was of importance that the faithful and laborious services of the latter should be compensated by the reduction of the term of service requisite to entitle them to a retiring allowance from twenty to fifteen years, as had already been done in England.
Motion agreed to.
Amendment made; and Bill to be read 3a on Monday next.

CROWN LANDS BILL.
The order made on the 7th Instant referring the Bill to a Select Committee, and the Order made on Monday last naming the said Committee, discharged; and Bill committed to a Committee of the Whole House on Tuesday next.—(The Lord President.)
VALIDITY OF MARRIAGES BILL [H.L.]
A Bill to declare the Validity of Marriages in certain Cases—Was presented by The LORD KINGSDOWN; read 1a, (No. 164.)

FOREIGN JURISDICTION ACT AMENDMENT BILL [H.L.]
A Bill to amend the Foreign Jurisdiction Act—Was presented by The Earl of CLARENDON; read 1a. (No 165.)
House adjourned at half past Seven o'clock, to Monday next, Eleven o'clock.