Lords Sitting of 1 May 1866

MINUTES.
Took the Oath—The Lord Wens-leydale.
PUBLIC BILLS—First Reading —Contagious Diseases* (95).
Second Reading —Law of Capital Punishment Amendment (61); Customs Duties (Isle of Man)* (82); Local Government Supplemental* (84).
Committee — Qualification for Offices Abolition (41).
Report— Qualification for Offices Abolition (41); Salmon Fisheries (Scotland) * (86).
Third Reading—Sale of Land by Auction * (93), and passed.

LAW OF CAPITAL PUNISHMENT AMENDMENT BILL.
(The Lord Chancellor.)

(NO. 61.) SECOND READING.
Order of the Day for the Second Reading read.
THE LORD CHANCELLOR, in moving that the Bill be now read the second time, said: My Lords, this measure relates to a subject of the deepest importance, and on which considerable discussion has taken place of late years in the other House of Parliament. In the year 1864 a Motion was made by a private Member of the other House (Mr. W. Ewart) for the appointment of a Select Committee to inquire into the subject of Capital Punishment. Considerable discussion took place upon that Motion, and my right hon. Friend the Home Secretary recommended that it should be withdrawn, undertaking that if it were not pressed he would recommend that a Royal Commission should be issued to inquire into the whole subject. A Royal Commission was accordingly issued to inquire into the laws now in force under which the punishment of death is inflicted and also into the manner in which capital sentences are carried into execution. The Commission met and took great pains to investigate the subject, not only by the examination of persons in this country who from their experience were likely to be able to throw light upon it, but likewise by procuring information from various parts of the world on a matter which, to a certain extent, is common to all nations. The Commissioners were twelve in number; and although they all concurred in the part of their Report recommending what in effect is embodied in this Bill, except as to executions not being carried into effect in public, yet four of them so far dissented from the opinions of their colleagues as to think that there ought to be no capital punishment at all, and that the time had come when it should be altogether abolished. I ought, also, to mention that another of the Commissioners, one of the Irish Judges, agreed with these four Commissioners to this extent, that he thought the time would come when the punishment of death should be done away with, but that society was not yet ripe for such a change. The other Commissioners, without expressing any opinion on the subject in direct terms, offer recommendations which are entirely inconsistent with the opinion that an end ought to be put to that

233
mode of punishment. My Lords, it appears to me that in the consideration of the question of punishment of any kind, and particularly of capital punishment, we must hold that the onus of proof rests upon those who say it ought to he inflicted. But; I believe there can be no doubt that we are justified in maintaining capital punishment for the crime of murder if we come to the conclusion that it is the most deterrent punishment, and one for which no substitute of equal efficacy can be found, In considering that point we must endeavour to see in what way the apprehension of capital punishment operates upon the minds of the criminal class. Most of your Lordships must have been present at the trial of prisoners for a crime which the law visits with death, and you cannot have failed to observe how very solemn the proceedings in such cases are, how very much interest and excitement they occasion among those present, and how they operate on the minds of the accused, Again, at the time when many other crimes beside murder were punished capitally, it was a common practice to charge the prisoner under two counts of an indictment, one of which made the offence capital, and the other made it a less grave offence, and then to intimate to the prisoner that if he pleaded guilty to the minor charge, he would not be proceeded against capitally. The prisoner very frequently, under those circumstances, pleaded guilty, and was observed to be greatly relieved in his mind, knowing that he would not be sentenced to death. That showed how the one species of punishment operated more powerfully than the other. Moreover, when men have been convicted and sentenced to death, the great interest employed if possible to obtain a remission of the capita! penalty proves that death is a punishment so much more dreaded than all other punishments that it cannot do otherwise than exercise a more deterrent influence. But it may be asked why it is necessary that this punishment should be retained for murder and for no other crime? Now, I think it is of the utmost importance that the criminal class should always feel that they have a motive for stopping short of the destruction of human life; and they will have such a motive if they know that the severest punishment of death will follow the commission of a crime resulting in the taking away of human life, whereas a lighter punishment will follow the commission of an offence in which they do not go that
234
length. That seems to me to be almost a conclusive reason for the retention of the punishment of death for murder. We are dealing, it must be remembered, with a class of persons whom unfortunately there is little else to restrain from the commission of crime but the fear of punishment; and if that be so, they must feel instinctively that it is their interest to take away human life while engaged in committing lesser crimes, for the purpose of removing dangerous testimony, if they are not deterred by the fear of some special punishment for the graver offence. But for the fear of a severer punishment the criminal class would act on the terrible maxim that "dead men tell no tales," and thereby endeavour to get rid of those persons who might otherwise give evidence against them or lead to their detection and punishment. This is not mere matter of speculation. Among the documents collected by the Commissioners was an interesting Return from Florence, which shows that the abrogation of the punishment of death for robbery in Italy by open force, when unaccompanied by homicide, has much diminished the number of homicides which were committed before that abrogation. The reason for that is stated to be this—that he who committed the crime of robbery, knowing that the punishment of death awaited him, had every motive for putting to death the person whom he had attacked for the purpose of robbing him, in order to destroy the evidence of his guilt. The next question is whether it is possible to inflict any punishment short of death which would probably have the same deterrent effect? The only other punishment that could be substituted would be imprisonment or penal servitude, in some form or other, to endure for life. The question is whether the substitution of penal servitude for life would afford anything like the same security against the commission of murder as the consciousness that the punishment of death would follow. It is often urged in favour of the substitution of secondary for capital punishment that the former, being much more certain, would be more deterrent than the latter. It may be that a lighter punishment might be more efficacious than a heavier one if the prisoner found that he could escape the infliction of the heavier punishment, but could not escape the infliction of the lighter one. But the misfortune is that in all these great crimes the criminals, whatever punishment the law may award, have great hopes that

235
they will escape, although they have to run a great risk; and I do not believe that any great criminal will reason that a jury would be more likely to convict in a case in which the punishment is penal servitude for life or for a less period, or that he would be in the least degree deterred from crime by the greater chance he stood of being convicted. We have, however, no means of knowing what is passing in the mind of the criminal—but it amounts to this, that the criminal knows that he will be punished more severely for murder than for the crime without the murder. Now, you may say that for a murder you may impose a penalty of penal servitude for life, while for any other crime you may sentence to penal servitude for twenty years. But does any one think that a criminal would calculate in his mind the difference between the punishment of penal servitude for life and penal servitude for twenty years? This is a matter which he never thinks about during the commission of the crime. I am therefore of opinion that the Commissioners are quite right in retaining and recommending the retention of capital punishment for the greater crime of deliberate murder, and I have no hesitation in recommending to your Lordships the Bill in which this principle is involved. My Lords, there is one great ground for adopting this course. It may be easy, on the suggestion of humane and thinking men, to abrogate the punishment of death. But if you find the consequence of that step is an increase in the crime of murder it is one of those cases in which revocare gradum would be almost impossible. Therefore, you ought not to abrogate capital punishment unless upon the safest and surest ground; and let me remind you that you ought to feel you are treading upon safe ground before you take action on a question on which you have no precedent to guide you. It is sometimes said that there are certain countries in which the punishment of death does not exist, and that is to a certain extent true; but when I look at all the countries around us, I find that it is not altogether true. It is said that capital punishment has been abolished in Tuscany. That is to a certain extent true; but I will now explain from the information gathered by the Commissioners to what extent it is true. In 1786 the then Grand Duke of Tuscany, afterwards the Emperor Leopold, did abolish capital punishment in Tuscany, and it remained abolished until the horrors of the first French Revolution began to spread over
236
Europe. The punishment of death was then restored, not for simple murder, but for great political crimes. That law remained until the year 1795, and then the punishment was restored in cases of murder. After the year 1808, when the French took possession of all Italy, the French code—not the bloody code of the French Revolution, but the penal code, coupled with the Code Napoleon — was the law of Tuscany until 1847–8. At that time capital punishment was again abolished, but whether from political apprehension or from whatever other cause I cannot pretend to say. In the year 1852 capital punishment was again restored, and so remained until 1859, when it was again abolished in Tuscany. Your Lordships are aware that although Tuscany then became part of Italy, Florence and Tuscany still remained autonomous, each having their own laws. I do not think it would be honest or fair to attempt to support my argument by citing the result of the abolition of capital punishment during the very short time that has elapsed since 1859. Indeed, in my opinion you cannot rely upon these statistics unless you bring a large amount of knowledge to bear upon them of the state of society, the aspirations of different pretenders to power, and a variety of other circumstances. Unless you can thus correct the inferences, undoubtedly statistics are very likely to mislead. Among the other papers reported from Italy is a very interesting report from the Minister of Justice to the King of Italy. I will venture to trouble your Lordships with a few of the remarks he makes—
"It is not, moreover, out of place to remark, although a serious thing to say, that in the second period the authors of the homicides committed for the sake of robbery do not appear to have been discovered in the greater part of the eases, and that hence the authorities of public security have not succeeded in discharging efficaciously their duty. On the contrary, it is quite certain— and not only the public journals, but also communications from my Colleague, the Minister of the Interior, assure me of the truth of my assertion—that during some years, and more especially for the last few months, Tuscany has suffered from frequent and serious murders committed, for the most part, for the sake of plunder. It is customary, in the cases of premeditated homicide, to note the cause which may have induced the crime, since it is generally to be attributed to passions easily discerned—such as revenge, jealousy, &c.; but, on the contrary, no personal motive except that of cupidity incites to murder for the sake of robbery, and with this sole object in view the murderer directs his attack against inoffensive persons, with whom he may have no acquaintance; and it is thus easy to understand that

237
it is less difficult to trace perpetrators of premeditated murder than those who have committed their crime for the mere lust of gain; and so much the more, that the first are people living in the country, and well known there (except in the case of hired assassins), and the second may belong to another country, and have no personal relation with their victim."
I will not attempt to deduce from this report anything favourable to my own view of the case, but at least I may say that it does not show that the punishment of death may be safely abolished. The result has been a considerable increase of murders; but that may have arisen—and I think in all probability has arisen—from other causes than the abolition of the punishment of death. Be-sides Tuscany there are some of the Cantons of Switzerland in which capital punishment does not exist, and of late some of the very small German States, such as Oldenburg, Nassau, and two or three others have abolished it. But, if we look to all the great States, which are not wanting in humanity, and are endeavouring to harmonize their laws with the existing requirements of society, we shall find that capital punishment is still retained in them in full vigour. I need not say that in France it is still retained. The Return for the last year before the Commissioners shows that there had not been less than twenty-five executions, besides several convictions in which the sentence of death was not carried out. In Austria, in Prussia, in Italy (except Tuscany), in Sweden, Denmark, and Russia — in fact, wherever you go — the punishment of death is awarded to murder, and in many countries for other crimes also. I do not say that we should follow a multitude to do evil; but it is something to know that the course we are adopting is that which all our neighbours also adopt. Many persons have said—and I think this argument has been used in the House of Commons—that we ought not to look to the countries that surround us, but to those which have sprung from us, and which occupy the great continent of North America. The Commissioners have Returns from some seven of the States of North America—Pennsylvania, New York, Ohio, Wisconsin, and three of the New England States — Massachusetts, Maine, and Rhode Island. It is quite a fallacy, however, to suppose that capital punishment is abolished in those seven States. It exists there for the most part in as great force as this Bill purposes it should exist in this country, except only in Rhode
238
Island and Wisconsin. Now, Rhode Island comes within the same category as Nassau and the very small States of Germany. We do not know enough of the state of society in such very limited populations to take an example from them. So far is it from being abolished in Pennsylvania, New York, and Massachusetts, that it exists there in full vigour, and the law is administered in very much the same spirit as it is proposed by this Bill that it shall be administered in this country. That being so, I think I have justified myself in expressing my confidence that your Lordships will go with the Commissioners, that capital punishment must be retained. It has always occurred to me that if it is to be abolished in to to, of course the punishment next in severity— penal servitude for life—ought to be substituted for it. What, then, could be done with a convict under the extreme penalty of imprisonment who murdered his keeper or warder? Every precaution would no doubt be taken to prevent such an occurrence, but it is certainly possible that it might be committed. The convict would then commit the murder with impunity, because he would be undergoing the severest punishment which the law allowed, and you would have no power of imposing the penalty of death for the offence. These being the grounds on which I venture to think that capital punishment ought not to be abolished, I have now to call your Lordships' attention to the provisions of the Bill. Substantially the Commissioners make four recommendations; but the great object is to define the class of murder for which parties, if convicted, shall suffer the extreme penalty of the law. They proceed, therefore, to divide murder into two classes—murder of the first and murder of the second degree. Under the head of murder of the first degree they propose to include such crimes as, unless under very exceptional circumstances, deserve the extreme penalty of the law. Under the head of murder of the second degree they include those cases in which it is not necessary to carry the extreme penalty of the law into effect. This is the course pursued in several of the North American States; and a very enlightened gentleman who has lately visited the country states that there is no difficulty in carrying the law into effect. The Commissioners then divide murders into several heads, the object of which is in the first place to include those which are ordinarily

239
called deliberate—that is to say, those in which no doubt can be entertained of the wilful intent of the parties who have committed them; and secondly, those which have been perpetrated for the purpose of escaping from the consequences of guilt. I ventured, when this Bill came before me, to suggest an addition to those enumerated under this last head, which is where murder is committed on a peace officer in the discharge of his duty. When this Bill was first put into my hands, which was early in March, I confess there were some things in it which I did not altogether approve. And here, perhaps, I ought to state to your Lordships that I was one of the persons examined by the Commission long before I had the honour of receiving the Great Seal. I gave on that occasion the best evidence in my power; but, knowing that your Lordships will see in this Bill some few matters—for they are only a few—against which my evidence was directed, I think it only due to your Lordships to mention that fact. I felt that there were considerable difficulties in carrying into effect some of the provisions which the Commissioners recommended. It appeared to me, however, that I should not be performing my duty if before asking your Lordships to read the Bill a second time I did not submit it to the Judges, to see how far they thought its provisions could be certainly and easily carried into effect—because, if there be one thing more than another which it is desirable to avoid, it is every possible approach to technicality —every facility for persons getting off for any other cause than that which is distinctly stated. Most of the Judges were on circuit at the time, and it was not until the circuits were over that I got the answers from most of the Judges. Several of them had been examined before the Commission. They most cordially pointed out what would practically be improvements in some of the clauses, and before your Lordships go into Committee on the Bill I will frame Amendments to meet the views of the Judges whenever they appear to me to be right. The next recommendation of the Commission to which I will call your Lordships' attention is this—they think it fit that there should be a power in the Judge, upon considering the case, if he did not think it one in which the person should be executed, to cause judgment to be recorded without following it up by pronouncing sentence. Now, that is a thing to which great objection, and I think
240
justly, is felt by the Judges. While the law stands as it is now, when sentence is pronounced everybody knows and feels that the sentence of death is the sentence of the law. But when once it comes to be in the power of the Judge to say that sentence shall be recorded but not passed, it becomes the sentence of the Judge and not of the law; and I certainly feel that if you assent to such a provision, you will place the Judges in a position of very considerable embarrassment, and perhaps impair the respect in which they are now held. The third recommendation which the Commissioners make is with regard to a subject which has always been felt to be one of very great difficulty—namely, infanticide. Now it is a singular thing that in some of the codes in Europe, and among them the French, the murder of a new-born infant, instead of being considered as a lighter form of murder, is looked upon as one of the gravest forms that crime can assume, and is one for which the remission of punishment very seldom follows. ["Hear, hear!"] My noble and learned Friend seems to approve that view of the case. Now, I cannot say that I go so far as that. I think that when infanticide occurs in ordinary cases, it is the act of some poor forlorn woman in great distress, and that it is her wish rather to prevent a human being from coming into the world, if she could only do it, than to murder it. But there are other cases of infanticide in which the crime is as great as any murder can be. I was examined before the Commission on this subject, and I said the great difficulty which I felt was in defining the line. Suppose a person murders a child for the purpose of succeeding to an estate —and there are fifty other cases in which infanticide would be greatly aggravated— in that case, no doubt, it would deserve to be punished capitally. But I quite agree with the Commissioners that it is desirable to put this crime on a different footing from other cases of murder. They say that after a certain time—after seven days—anybody doing injury to the child shall be liable to severe punishment. There shall be no necessity to prove whether the child was born alive or not, but if it be found that wounds were inflicted on the child, then severe punishment shall be inflicted, provided always that the circumstances are such that the crime of murder can be sustained. They further recommend the abolition of the principle whereby, when a woman charged with the murder of her child is acquitted

241
on that count, she is sentenced to punishment for concealment of birth. The fourth recommendation of the Commissioners— and in that I confess they have my entire concurrence, although, when first asked to consider it, I thought it open to grave doubt—is with respect to the publicity or non-publicity of executions. On this subject, as on all others, we have to deal with a balance of testimony, and a balance of advantages and disadvantages, I do not doubt that there are cases in which a criminal, having witnessed an execution, may have been so struck with horror as to have been in some degree reclaimed. But I think the disadvantage arising from the enormous accumulation of persons to witness these disgusting scenes is so great that we are bound to try whether we cannot substitute some other mode of carrying capital sentences into effect for those public executions. I find that in almost all the States in America, and many in Europe, that is the conclusion at which they have either arrived or are on the point of arriving. I think most of the theoretical objections to private executions are absurd. The notion that a person may be tortured, or if he be a rich man, may bribe the authorities and so get off, might have prevailed 300 or 400 years ago, but would not be likely to prevail now. A suggestion has occurred to me from what has taken place in Denmark, which I think very good. It is that all the great criminals in confinement should always be witnesses of the executions, which may then possibly have some deterring effect. But that the execution should be carried out where public decency and morals shall not be shocked in the way they have been of late years, I have no hesitation in saying, meets with my entire concurrence. I have heard it said that there are great concourses of people in a variety of other cases, and that you cannot prevent it. No doubt. But there is this demoralizing effect on the enormous multitudes assembled to witness an execution, that they are crowded together, committing every sort of crime, and that their proceedings are unmitigated by the presence of persons of the upper or educated classes. It is the sort of occasion on which the lowest and most abandoned of the community hold a Saturnalia all to themselves. It is highly expedient on these grounds that a change should be made in our law, and that change is proposed by the Bill of which I now move the second reading.
Moved, "That the Bill be now read 2ª."—(The Lord Chancelor.)
THE EARL OF MALMESBURY: My Lords, the position taken by the noble and learned Lord (the Lord Chancellor), and the great authority of the Members of whom the Commission was composed, certainly make it difficult for any one to object with any weight to the recommendations that have been made. If the subject were entirely practical, the question could be reduced to one of practical proof, and we should none of us differ from the noble and learned Lord; but the question is philosophical as well as practical, and therefore there is no disrespect to the Members of the Commission, whose labours have been most efficiently discharged, in saying that I do not entirely agree with their recommendations. I agree with them upon every point except that involved in the fourth recommendation—that is the one in which they recommend that executions should be privately conducted within the walls of the gaol. We know all that can be said on the subject; and I feel as strongly as the noble and learned Lord does the objections to the horrors attending public executions. But upon a subject like this we must not give way to the natural sentiments which civilization prompts. We must look to the practical workings of the human mind —to the effect of the operation of the law upon the human mind in its worse state. The noble and learned Lord said properly that, in this country and in civilized society the primary object of punishment is that it should be deterrent. I suppose it was at first inflicted, in a lower state of society, with a feeling of vengeance; but when civilization advanced punishment was inflicted from higher motives, and with the view to deter from the commission of crime. Now, what are the feelings of mankind with respect to punishment? It is not only the fear of punishment that works upon the human mind, it is also the fear of disgrace; and the greatest criminal in the world, you may depend upon it, balances in his own mind the different shades of disgrace sufficiently to feel that there is a very great difference between a public execution and a private one. What is the proof of that? What is the first thing that is done after a man is condemned to death? Even when it is expected that he will be condemned, the first thing thought of is to keep out of his reach every instrument by which he

243
can commit suicide; and the commonest feeling with criminals condemned to death is the desire to anticipate their execution by suicide in order to avoid the disgrace it brings with it. Gaolers of experience will tell that what they have to fear most is that men under sentence of death will commit suicide. There is something disgraceful in the idea of the halter, in an execution before an immense throng, in the execrations that greet a man when he appears on the scaffold. That all these things have terrors for the convicts I know, for I have heard it from their own lips. It is unfair to judge from aualogy of rewards and punishment? They are inseparably connected, and one cannot well be considered without the other. Do not rewards lose half their value if they are given privately, instead of publicly? Are they not doubled in value if they ore given openly, before an approving throng of persons, with whom the recipients are well acquainted? It is precisely the same feeling which acts upon the human mind in the case of a man condemned to death —he would prefer to commit suicide if he could and he would prefer death within the walls of a prison to being exposed to the view of the multitude. I cannot but think that the English mind would to a certain degree revolt at the idea of a secret execution within the walls of a prison—at the thought that a man was to be strangled in his cell, as if the law hesitated in asserting its justice before the eyes of all men. I feel convinced that if the recommendation of private executions is followed, not many years will elapse before capital punishment is given up altogether. My own feelings and convictions with regard to executions are rather contrary in direction to those of the Commissioners. Executions are always carried out at the same places, in the county town; they are always witnessed by the same people, who learn the lesson, if there be one, over and over again. I think that as far as possible, although it could not always be done, executions ought to take place in the localities where the crimes are committed —they would then have very great effect upon the persons living in those localities. But now, if executions are warnings, the people living near the scenes of the crimes really get no warning at all, for they do not see the executions. For a crime committed at a remote country village, a man is executed at the county gaol. It would add very much to the terror of the
244
criminals to know that they would he executed, as it were, at their own doors, before the faces of very many with whom they had been associated and brought up from childhood. I remember that sixty years ago, in the part of the country where I lived, two men were hung for the murder of their father. That execution made the greatest impression upon the people of the neighbourhood, and the tradition of it has passed down to this day. If public executions are continued, I think it would be of great importance that, as far as possible, they should take place in the localities in which the crimes are committed.
THE BISHOP OF OXFORD: My Lords, I venture to trouble your Lordships with a few observations in reply to the noble Earl who has just spoken (the Earl of Malmesbury). Ten years ago your Lordships were kind enough to grant a Select Committee upon my Motion. I was Chairman of it, and we took a large amount of evidence, examining gaolers and persons who had had the custody of condemned felons, and those who had been called upon to attend public executions. The evidence given by all these persons, without exception, was in direct contradiction of what has just been suggested by the noble Earl. They said that, in their judgment, public executions had a direct tendency—not to deter from crime, but to create a morbid interest in the man who was executed, and to make a hero of him with the class of society in which he moved, and that the knowledge of this reacted upon the man himself, and, instead of making the prospect of his death more terrible to him, it tended to diminish its terrors. I was fully convinced of the truth of that view. I think nothing more tends to do away with the great horror that ought to accompany the taking away the life of a criminal than the accidents which belong to the public part of an execution. Those who go to witness an execution go in the worst possible state of mind to profit by it. The man himself, encouraged by the presence of those who may have been his associates in crime, may be led to brazen it out; if he do, he becomes then the reverse of the example that was intended, and men go away from the sight, having found their expectations of being shocked very imperfectly realized. I remember particularly the evidence of the late Mr. Clay, the chaplain of the Preston Gaol. He said that the first time he was called to attend a public execution, he ex-

245
pected that he should not be able to witness it without fainting; but such was the effect upon his mind of the various circumstances of the event, and the interest in the accidents of it, rather than the realization of what were the essence of it, that he found the sense of horror almost gone before the execution. He added—
"If I had been on the other side of a wall, and had known what was being done, the effect upon my mind would have been tremendous; but the accidental circumstances which I was engaged in watching took away from my own mind that sense of terror which I had anticipated."
The evidence which we collected from other countries all pointed to the same result. We examined witnesses and we received communications from various parts of the world, and, without a single exception, the attestation was, that there had grown up a far greater dread of executions in the minds of the classes of the people it was desired to affect since the executions had taken place in private than had ever existed while they took place in public. There was one recommendation of the Committee which I should like to bring under the notice of the noble and learned Lord. It was that at the moment of the execution the fact of its taking place should be intimated to the people by the tolling of a bell within the prison, or something of that sort. It one country the practice was to hoist a black flag. Now, this addresses itself to the imaginative faculty of the persons whom you wish to deter, because it tells them what one of their fellow-creatures has been brought to by crime, and fixes their attention on the subject for the moment. That is recommended by the Committee which sat in 1S56, and the evidence taken showed the good effect of such a practice. As I sat upon that Committee, I hope your Lordships will pardon me for addressing you on the subject.
LORD ROMILLYsaid, he thought the balance of evidence and the balance of reason were in favour of the entire and the total abolition of the punishment of death, and he would state a few reasons, as concisely as he could, to show that such abolition was desirable. It was simply a question of the balance of evidence. There was one consideration which arose in the case, and which ought to be taken into consideration. The object of punishment was twofold — namely, the deterring others from committing crime, and the reformation of the criminal. Now, when the punishment of death was inflicted the re-
246
formation of the criminal was of course out of the question. It might, indeed, be said that the reformation of a murderer was a thing very unlikely to take place, and that society had nothing to do with it if he were not again to be let loose upon society. But it was the duty of the Government to consider the interests of all persons—even of the criminals themselves; and if society had no interest in the matter, still the interest of the criminal ought not to be altogether disregarded. The important question to be considered, however, was the deterrent effect, because upon that was founded the great argument in favour of inflicting the punishment of death. He believed that the deterrent effect of the punishment of death had been greatly overrated. Almost all the evidence showed that it did not operate at all in cases of violent passions. In the case of murder committed by a person who was either intoxicated or under the influence of some violent passion, such as jealousy, hatred, and the like, the deterrent effect of the punishment of death was nothing. Then, if the deterrent effect was complete in cases of murder, it would have been so in the case of the minor offences which were formerly punishable by death. But experience had shown that this had not been the case. The deterrent effect of a punishment depended principally upon the certainty of its being inflicted, and a less punishment, if certain, would have a much more deterrent effect than a greater one which was less certain. Now, the evidence was distinct on the subject, and their Lordships were no doubt aware that juries constantly required a greater amount of evidence to convict for murder than they did for any other offence. In this they did not act logically, because the only question was whether the fact was proved, and the amount of evidence which was sufficient to convict in a smaller case ought to he sufficient in a greater case. The undoubted fact, however, was that where a criminal was liable to be punished by death juries required a larger amount of evidence than they did in other cases. This introduced another element of doubt, which led to improper acquittals. That this was the effect produced was clear from the species of pleas that were raised to prevent persons from being convicted of murder—such, for example, as the plea of insanity, which was never relied upon except in cases of murder. The tendency of all this was to make

247
the criminal think, and justly so, that he had a greater chance of escape. Two reasons which had been urged by his noble and learned Friend required much consideration. First, there was the case of a second murder—where a prisoner had killed his warder, for instance. Now, it was notorious that many persons afflicted with mental disease had the strongest desire to take away the life of another, and yet one rarely if ever heard of the keeper of a lunatic of that description being killed by him. The reason was that in such cases proper precautions were taken. The other argument of his noble and learned Friend was more difficult to answer, and was in his opinion the strongest argument which could be urged in favour of the retention of the punishment of death. His noble and learned Friend had said that if a man committed a crime with great violence he ought to be punished very severely indeed, and that if capital punishment were abolished it would be impossible to inflict a higher degree of punishment upon murderers than was inflicted upon persons convicted of other crimes attended with great violence. In his opinion, however, the perpetual imprisonment accompanied by the infliction of corporal punishment at intervals would more effectually deter from crime than the fear of the punishment of death. He was not in favour of the infliction of corporal punishment in any cases, but in the case of murderers he did not think any person could blame society for having corporal punishment inflicted. But though he admitted there was considerable weight in the argument of the noble and learned Lord, he thought it was more than met by the other evils attending the punishment of death. In the first place, it should be borne in mind that though murder was sometimes committed for the sake of plunder, yet in the great majority of cases plunder formed no part whatever of the motive for committing the crime. Now, that was a very important consideration, because it showed that the class which committed murders was different from the class which merely attacked property. The Commissioners were struck by the observation made by many witnesses that persons who live by robbery never commit murder, at least not intentionally. The witnesses who gave evidence attributed this fact to the deterrent effect of the punishment of death. He, however, believed they were utterly mistaken, and that the people who lived by robbery were deterred from com-
248
mitting murder by the natural horror of taking away human life. It was painful to consider what class of persons became professional thieves. The son of a thief was almost certain to follow his father's calling—and, indeed, except in very rare cases, he was unable to do anything else. He was brought up in the notion that he and society were at war, and that thieving was merely an offence against society, and not a crime in itself. But that man would never think of committing murder, this was admitted by all the witnesses who were examined on the point. Now, in his opinion, that feeling ought to be increased and perpetuated by abolishing the punishment of death. With regard to public and private executions, he agreed with the view taken by the right rev. Prelate (the Bishop of Oxford), but he might remark that many of the objections to public executions would apply to private executions also. A man on whom the punishment of death was inflicted by society was sure, in whatever manner the punishment might be inflicted, to be invested with a certain degree of interest in the estimation of the public. It was impossible to prevent this. There was no quality possessed that was more esteemed by mankind than courage, and that in all phases of life. The possession of that quality was most strongly shown in the composure and coolness with which a man met death; and, therefore, there was the strongest possible motive for the convict to screw up his nerves into that state which would induce his friends and the public to believe he died with composure. The executions of criminals in this country were injurious in respect of the morbid feeling excited by their demeanour at the moment of execution. The most atrocious criminals were invested with a species of heroism if they met death on the scaffold with calmness and composure. This feeling had been manifested to the extent of ladies adorning criminals as they were on their way to the scaffold. That sentiment could not exist to the same extent under the system proposed by this Bill; but it would still exist to a great extent. He might remind their Lordships that in Belgium capital punishment had been abolished. It appeared from the evidence taken by the Commissioners that it had been abolished, restored, and abolished again, and that its abolition had been attended with satisfactory results. According to the recommendations of the Commissioners the punishment of murder was to

249
be apportioned according to the circumstances of atrocity with which it was attended; and by the Bill of the noble and learned Lord the crime was to be divided into murder of the first and murder of the second degree; the punishment for murder of the second degree was to be nothing-less than penal servitude for seven years. Now their Lordships would permit him to put a case such as that in which a thief, while endeavouring to steal a henroost, accidentally shot a man. This, under the Bill of his noble and learned Friend, would be a murder of the second degree; but if they inflicted seven years' penal servitude for such an accident, they would be inflicting a punishment much more severe than could properly be awarded for such an offence. Suppose a gentleman employed one of his tenants as his bailiff to receive his rents and lay out money on his property, and suppose that afterwards he thought fit to distrain on this bailiff as his tenant for rent due from him, and that the tenant denied owing any rent and said that if the accounts were taken it would appear that a balance was due to him. If, in resisting that distress, the tenant killed a man, the question whether his act was a justifiable homicide or a murder would depend upon which side of the account the balance lay in what might be a very complicated account. He would ask his noble and learned Friend to consider what would be the working of the Bill in cases such as that. In connection with the question of capital punishment there was another important consideration. No one could have studied the history of any people without seeing the influence which the laws of the country exercised over the manners and habits of the people; and he thought observation must convince us that this was the case to a greater extent in England than perhaps in any other country: There was also in this country a great respect for the sanctity of human life and the horror of seeing a human creature perish by the hand of society; and he believed that if the State declared that for no crime under the sun would it invade the sac redness of human life, but that even in the worst cases would confine itself to punishments of other descriptions, it would do more—not suddenly, but by degrees, and with the progress of education — to deter persons in every class of the population from the commission of murder than would be done by the infliction of the most severe torture
250
that could be devised. Though, of course, he did not offer the slightest opposition to the progress of the measure, he had felt desirous at the earliest possible moment to express his feelings on this important question.
LORD REDESDALEsaid, he was not satisfied with this Bill, and he objected to it on more than one ground. In the first place, he thought that making some murders offences of a second degree of enormity would tend to create a feeling that some murders were more or less excusable; and this would be highly mischievous. He was of opinion that it should be held to be a very grave crime to shoot a Custom House officer, a gamekeeper, or any other person while acting in the discharge of a duty. A murder of that kind might be one of the grossest character, and, therefore, one which ought to be punished with the severest punishment. In this country infanticide had greatly increased of late, and he had no doubt that to a large degree this might be attributed to the fact that for a great number of years hardly any one had been executed for that crime— even in cases where malice was most clearly proved the women had been let off. He believed this failure of justice in cases of infanticide arose from an objection to execute women; but the result had been a feeling among a large portion of the population that infanticide was not a crime of deep dye. He confessed that to his mind the murder by a mother of her own offspring was the most revolting of all crimes, for it was an act against which the instinct of the lower animals revolted. It was the distinction that had been made between this and other murders as regards the manner in which the punishment had been carried out that had led women to believe that the removal of infants which were a burden to them was an excusable act. The noble and learned Lord (Lord Romilly) thought that in cases of wilful murder corporal punishment might be periodically inflicted in addition to imprisonment. Now, he ventured to think that public opinion would be so opposed to the infliction of torture on persons who were to be confined for life, that it would be impossible to maintain such a description of punishment. It came to this, therefore, that there would only be imprisonment for life or for a term of years as punishment for murderers. But imprisonment for life would be certain to lead to insanity in a great many cases, and what was to be

251
done when insanity commenced to manifest itself? Was the person to he kept in prison until he became insane, or was the sentence to be put an end to? Again, as to the certainty of punishment which was urged in favour of the Bill—what was the meaning of certainty of punishment? Was death always to be inflicted in cases of murder of the first degree? Was there to be no hope of remission of any term of imprisonment? Their Lordships might depend on it that in this respect matters would just remain as they were at present —whether founded or not the hope of remission would always exist. He apprehended that much difficulty would he felt in deciding as to which class a particular murder belonged—a much greater difficulty than was now experienced when legally the crime was either murder or manslaughter, and it was left to the judgment of those who could properly weigh and determine the instances in which the extreme penalty of the law should be awarded. He avowed he was one of those who felt strongly that by Divine decree death was the punishment awarded to the murderer. It was the law laid down by God at a time when there was no special code, "Whoso shed-deth man's blood by man shall his blood be shed." He should not feel at liberty, therefore, to vote for any Bill which would abolish death for murder. He would not argue as to the deterrent effect of any other punishment. To sit in judgment or to question whether they should award a less judgment where God has awarded a greater wa3 a matter which we ought not to entertain. He feared that the effect of this Bill would be to unsettle the minds of people as to the enormity of the offence of depriving a fellow-creature of life. He must, therefore, say "Not-Content" to the Motion to read it a second time; hut as he knew his views were not shared in by a majority of their Lordships he should not put the House to the trouble of dividing on the question.
LORD DE ROSsaid, that some advantage might be gained in the present discussion by remembering what was the practice in European armies. It was, he believed, the invariable rule that soldiers should be present at military executions, and although, as a class, they were not easily affected, the results were always very extraordinary. He had always heard it said that during the Peninsular War the contrast between public and private executions was very marked. During that
252
war the Duke of Wellington had thirteen men executed; the French, in the same period, executed 250. The English made a great parade on such occasions, mustering the troops and marching them past the culprit before he was shot and again past his body after death. The French conducted their executions without any such parade. But it was universally observed that fewer executions were necessary in the British army, and this was attributed to the manner in which they were carried out. Upon one occasion, when on foreign service, duty made him a spectator of a public execution. There was all that bravado which a noble and learned Lord had described, for one of the men came upon the scaffold dancing, and was with difficulty restrained from playing antics, but he must say he never saw anything like the consternation and horror excited on that occasion among the crowd by the spectacle of death.
THE DUKE OF ARGYLL: My Lords, this appears to me to be a subject on which we ought all to speak with much reserve and difficulty, for when we recollect that only a few years ago, within the recollection of many noble Lords now present, eminent lawyers and divines maintained that it was absolutely necessary to uphold capital punishment in respect of crimes for which we should now think it monstrous to cause it to be inflicted, it is impossible for us not to feel some doubt as to the impressions under which we may now be acting. My noble Friend the Chairman of Committees thinks we are bound to act under a rule of Divine law, which would leave us no discretion whatever, but would bind us to inflict the punishment of death in all cases in which human life was taken. That, I am sure, is an opinion which my noble Friend does not entertain. But my noble Friend forgets that practically, though not in point of law, a discretion is exercised, a distinction is drawn, and a classification is made, and there are many kinds of murder which are not visited with death: and, therefore, I think we may fairly consider, without reference to such a supposed rule of Divine law, what is best for the good of society and of the general principles of Government. I certainly have never been able to make up my mind that in the present state of society the punishment of death could be safely dispensed with. Neither can I accept the doctrine of the noble and learned Lord behind me (Lord Romilly), whose views I can see coin-

253
cide with those of men who hold that punishment has only two objects—to deter and to reform the criminal. It appears to mo that there is a third and very legitimate element of punishment upon which society has a right to insist, and that is the retributive element. You deal with men like mere animals if you shut up a murderer, like a tiger, to prevent his killing other persons, and with a hope in the man's case —which, of course, cannot exist in that of the tiger—that he may ultimately become penitent and reformed. It certainly does appear to me that society is, to a certain extent, a minister of Divine justice in inflicting punishment for the crime. [The BISHOP of OXFORD: Hear, hear!] I am glad to find that in that view I have the support of some distinguished Prelates. There are other cases besides those mentioned in this Bill—cases of persons resisting lawful authority, and it appears to me that persons who commit murder in resisting such lawful authority and in furtherance of objects that are unlawful, should be liable to the punishment of death. These, however, I apprehend, are questions of detail with which my noble and learned Friend upon the Woolsack will be willing to deal in Committee. With regard to the holding of executions not in private, but in presence only of the lawfully authorized ministers of the law, I can have no doubt that the course which it is proposed by this Bill to adopt is the right one. Whatever the original idea that was associated with public executions, in practice there can be no doubt that they tend to brutalize the population. At the same time that spectacles such as these are withdrawn from the public gaze, there is, I think, great force in the suggestion that some external sign or symbol should be employed to indicate when the execution is actually taking place. Coupled with the knowledge of what is going on, the tolling of a bell or the hoisting of a black flag would, I believe, make a powerful impression on the imagination of the people.
LORD HOUGHTONsaid, that having brought this subject under the consideration of another Assembly twenty years ago, he might perhaps be allowed to address a few observations to their Lordships. In the first place, he naturally felt deep satisfaction that the principles involved in this measure had received even a partial acceptance. From various executions which he had witnessed he had returned with the conviction that there was about the scene
254
nothing of dignity, impressiveness, or solemnity; but that ribaldry, violence, and depravity were its prominent features. Who would dream of taking anybody to a | public execution as a grand moral example, or with the expectation of seeing anything that was not essentially repulsive? There was, he believed, no reason why, without any change of the law, the time and place of holding executions might not be changed, and that under the existing jurisdiction. A remarkable case on this point occurred in 1769. Two men, Doyle and Pulline, were sentenced to be executed at the usual place of execution, which at that time was at Tyburn; but the sheriffs received a warrant directing thorn to execute the prisoners at the most convenient place near Bethnal Green Church—probably the place where the crime had been committed. The sheriffs conceived that they must follow the sentence and not the warrant, which according to their view would be an aggravation of the punishment, and said—
"If this were permitted, the Recorder might change the place of execution to Newgate Street, or even to Newgate itself, and so do away with the boasted usage of public executions, not less satisfactory for the security of the public, than advantageous as a public example."
An eminent lawyer of that day gave it as his opinion, that if the change was not material it should be complied with; and the Judges to whom the question was referred, were of opinion that the time and place were in law no part of the judgment, and that the Recorder's warrant was a lawful authority to the sheriffs as to the time and place of execution. The men were accordingly executed. Tyburn, so long a scandal to the metropolis, with its disgraceful and melancholy story of parading through the streets and stopping at public-houses, had ceased to be; but it was a curious thing that at that time the sheriffs fancied the publicity of the procession to Tyburn was necessary to the security of the subject; that soon afterwards the scene of execution was transferred from Tyburn to the front of Newgate, and would now, he trusted, he transferred from the outside to the inside its walls. The Motion which he brought forward twenty years ago was defeated by Gentlemen entertaining views that in the present day appeared almost as untenable. If the prognostications of the noble and learned Lord should be realized, and if the changes in the law should have the effect of modifying public opinion on the subject of capital punish-

255
ment, he for one should not regret such a result. He had for a long time held the same opinions on the subject to which the noble and learned Lord had given expression, and he had no doubt that those opinions Were gradually mating way among the reasonable and religious people of this country, and that the obstacles—and there were obstacles — which presented themselves to the abolition of punishment by death would be removed. How long ago was it, he would ask, since that punishment was deemed to be necessary in the case of political offences for the stability of society? Their Lordships must recollect the course which was taken on the subject by an eminent French statesman in the midst of the confusion consequent on the establishment of the French Republic in 1848. The first important measure which was at that time introduced by the Provisional Government was one declaring the punishment of death for political offences to be abolished. The great contest, he might add, which had recently taken place on the other side of the Atlantic had closed unstained by a single political execution. Such a thing would have seemed impossible to statesmen a hundred years ago, and he hoped that before long a state of things which now seemed impossible to their Lordships would be realized. The truth was that when they came to consider this question of death they got beyond the category of punishment. Death was the punishment of all of us: and no doubt if people would but think of it in time it would deter them from many crimes. When the time arrived when a change should come over the mind of this country with respect to the necessity of inflicting capital punishment their Lordships would, he had no doubt, find that society could subsist without that which was now deemed to be required for its security. He might also state that it was remarked by those who were best acquainted with the habits of the mass of the people, that no class of men spoke so lightly with regard to the future as those who had entered on a criminal life. It was said by Mr. Edward Gibbon Wakefield, who was a good authority on the point, that he had known men, who during the honest period of their lives were men of considerable reflection, become, the moment they had entered on a criminal career, so entirely occupied with the present as altogether to lose sight of ulterior and higher objects, and to cast away all thoughts of a death on the scaffold.
256
The Bill before the House would, he believed, effect a great improvement in the law, and he hoped the noble and learned Lord on the Woolsack would accede to the suggestion which had been made by the right rev. Prelate (the Bishop of Oxford), and provide that there should be some public sign whenever an execution was taking place within the walls of a prison.
THE EARL OF CARDIGANsaid, that considering the disgust which had been shown at flogging in the army—a punishment which under proper restrictions he considered absolutely necessary for the maintenance of discipline—the suggestion that criminals guilty of murder should be sentenced to perpetual imprisonment, but should be periodically brought out and publicly whipped, was one of the most extraordinary, the most shocking, and the most revolting he had ever heard.
LORD BELPERgave his cordial assent to the Bill, though he could not concur with his noble Friends who wished to abolish capital punishment altogether. He agreed that the definition of murder required revision. That a man who fired off a gun with the intention of killing a fowl, and who accidentally killed a man, should, under certain circumstances, be held to be guilty of murder, was discreditable to our law. But so far from the Bill improving the legal definition of the offence, it seemed to him calculated to make the law still more uncertain.
LORD ROMILLYsaid, he had never suggested that murderers should periodically receive corporal punishment; on the contrary, he was in favour of the abolition of corporal punishment. All that he had said was intended as an answer to those who suggested that it was impossible to devise any special penalty for murder short of death.
THE EARL OF SHAFTESBURYsaid, he had some hope3 that the Bill would do a good deal towards the protection of infant life. The protection which it would afford would, however, be imperfect unless it were supplemented by a collateral measure, taking cognizance of the number of stillborn children. That number was at present very large — amounting to several thousand—every year, and as they were buried without registration or inquiry there were strong grounds for believing that a considerable portion of those who were placed under that category were actually murdered. Children said to be still-born were put in the hands of the sexton, were

257
buried, and no record of them was kept. The subject was one which had been very much under his own consideration and that of others, and it was, he thought, possible that a measure might be framed by which accurate information with respect to the number of such children might be secured. As to executions taking place within the walls of a prison, he was of opinion that it would be, on the whole, an excellent arrangement. It was, however, he believed, the fact, that although the scene round the scaffold when a person was about to be I executed was usually one of noise and disturbance and obscenity, the result of the assembling together of the lowest class of "roughs," yet a large number of persons came away deeply impressed on such occasions. Yet he was satisfied that, on the whole, the execution of the prisoners within the walls of the prison would have a much more salutary and deterrent effect, He trusted that the noble and learned Lord on the Woolsack, when he came to enact that clause, would take care to provide that there should be ample testimony to the fact of the execution; because he was quite sure that the great mass of the people would be anxious that some of their own class, even, should be admitted to see that the execution had been duly carried out. He thought such a system would have the best effect on the criminals themselves. He did not believe that the sense of shame had much influence on that class; indeed, he was convinced that in the great class from which murderers were taken the sense of shame was wholly extinct; and such men often looked forward to the time when they would appear on the scaffold and publicly exhibit their hardened state of mind to a crowd of their companions. But if these men knew that they would be executed within the walls of the gaol, and that they would have no opportunity of making such an exhibition on the scaffold, the impression produced on their minds would, he believed, he very serious; and he was sure that if the execution were attended by the tolling of the bell, the his play of the black flag, and similar accompaniments, the imagination of the people outside would be deeply impressed. With regard to the feeling of the criminal class itself as to the justice of the punishment of death, he could state—and many persons still more conversant with that class than he was would bear him out—that the feeling among it was, that murder should he expiated by the death of the murderer.
258
Only that morning a remarkable testimony was given to him on that point by a man who held in his house three times a week meetings of all the thieves and disorderly persons that he could get together, in the hope of doing them some good in a religious or moral sense. That man told him —and as the case was still the subject of inquiry, it would be better not to mention the particular criminal's name—that from every one of those persons, and they were very numerous, he had heard but one opinion—namely, that so fearful a criminal ought to be executed.
THE LORD CHANCELLORexplained, that when he said that no crime should be capitally punished except murder, he did not, of course, mean to exclude high treason.
After a few words from Lord DENMAN,
Motion agreed to: Bill read 2ª accordingly.

QUALIFICATION FOR OFFICES ABOLITION BILL—(No. 41.)—(The Lord Houghton.)

  COMMITTEE, REPORT.
  House in Committee (according to Order).
  LORD HOUGHTON, in moving that the House go into Committee on this Bill, said, he thought it would be better, after the favourable reception given to the measure by their Lordships at a previous stage, if it were allowed to proceed in its present form. The question of a re-construction of the oaths and declarations taken and made by municipal functionaries might perhaps be one very well worth considering; but it was not necessary, and it might not be convenient, to consider it in connection with that particular Bill.
  THE EARL OF DERBYregretted that the noble Lord had not acted on the suggestion which he had thrown out to him the other day, because at present they were legislating in a very slovenly mode in regard to the oaths taken by municipal officers. The oaths taken by Members of the Legislature having now been reduced to one plain, simple, and uniform shape, he thought a similar course ought to be followed in respect to the oaths taken by municipal officers and other persons. There was one part of the Bill which extended its provisions to any declarations taken under any other Act than those specified. This he thought very objectionable.
  LORD HOUGHTONsaid, this was intended to apply to any Act not formally repealed. He hoped Her Majesty's Government would yet bring in a Bill which would regulate the oath to be taken by all persons. The present Bill applied to England only, and any improvement ought to extend to Scotland and Ireland.
  Bill reported, without Amendment; and to be read 3ª on Thursday next.
  House adjourned at half past Seven o'clock, to Thursday next, half past Ten o'clock.