Lords Sitting of 31 May 1866

MINUTES.
PUBLIC BILLS—First Reading— Nuisances Removal* (132); Belfast Consta-bulary* (133).
Second Reading—Companies' Act (1862) Amendment* (124).
Committee—Law of Capital Punishment Amendment (61); Ecclesiastical Leases (Isle of Man)* (68 & 134); Hop Trade* (123 & 125).

LAW OF CAPITAL PUNISHMENT AMENDMENT BILL—(No. 61.)
(The Lord Chancellor.)

COMMITTEE.
House in Committee (according to Order.)
Clauses 1, 2, and 3 agreed to.
Clause 4 (Murder to be of two degrees).
EARL GREYobjected to the proposed division of murder into first and second degrees. He thought that it would be better to place the latter in the category of manslaughter and to have two degrees of the latter crime; but he thought it would be better to retain the punishment of death for murder according to the existing state of the law. He moved the omission of the clause.
Moved to omit Clause 4.—(The Marl Grey.)
THE LORD CHANCELLORadmitted that in his evidence before the Royal Commission he declared such a distinction unnecessary; not, however, that he thought any harm would accrue from it. The intention of the clause was that aggravated murder should be punishable with death, and that murders not so aggravated, and the punishment of which under the present system was commuted on appeal to the Home Secretary, should not involve the capital penalty. This would be effected by calling the latter murder of second degree. He thought it essential to draw a distinction between murder of an aggravated distinction and murder committed on the spur of the moment without premeditation—such for instance as the case of a man who killed a keeper in a poaching encounter, or a shepherd who took the life of a thief breaking into his master's sheep-fold. Such a distinction had been success-fully adopted in New York, Massacusetts, and other States of North America. The Bill was framed on the recommendations
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of the Commissioners, and after introducing it he thought it right to submit it to the Judges. The result was that only two objected to the proposed distinction, while many of the others expressed themselves strongly in its favour as likely to act very beneficially. There was an objection to giving the name of manslaughter to murder of the second degree, manslaughter being a crime of which the degrees were very wide apart, and the penalty varying from a day's imprisonment to penal servitude for life. It would not be right to class a man who had carelessly caused the death of another by running over him with a person who had nearly incurred the capital penalty. He thought it was very desirable that the term murder should attach to some cases where capital punishment was not inflicted, for the name of murder would be regarded as a stigma even among the most depraved classes. He could not therefore accede to the Amendment, and hoped their Lordships would adopt a clause which had received the sanction of a large proportion of the Judges.
THE EARL OF LONGFORDsupported the Amendment, regarding the proposed distinction as uncalled for.
EARL RUSSELLthought the clause was in accordance with the present state of public opinion, which was in favour of capital punishment for aggravated cases of murder. He did not, however, think that the distinction between the two degrees of murder was drawn with sufficient distinction; and that as the clause now stood it might happen that crimes of one degree might he punished under the head of the other degree. At the same time, he believed the Bill to be a step towards the abolition of capital punishment. While he agreed to the distinction he would ask his noble and learned Friend (the Lord Chancellor) a question with respect to the precise effect of the clause as it stood; for he remembered a case of a man being pushed by another into a river and drowned, which he thought under the wording of the clause would be murder of the second degree, though it appeared to him that if capital punishment was desirable it should apply to a case of that kind.
THE DUKE OF RICHMONDsaid, he was somewhat surprised at the remarks made by the noble Earl at the head of the Government. Until he heard the noble Earl's observations he had been under the impression that this was a Government Bill, that its details had been discussed in

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the Cabinet, and that it had now been brought forward on the united authority of the Government. Not, however, having ever had the honour of a seat in the Cabinet he might be wrong in his conjectures as to what took place in that august assembly. He hoped to convince his noble Friend behind him (Earl Grey) that the fourth clause ought to be retained. This was a part of the subject which had several times been discussed by the Commissioners, who were clearly of opinion that there should be two classes of murder. Eight of the Commissioners were in favour of the retention of capital punishment, while four thought it might be done away with at once; but the whole of the Commissioners were of opinion that if capital punishment was retained, murders should be divided into two classes. A case occurred not long ago which showed the necessity of having two classes of murder. A number of sailors, having got drunk in a public-house, one of them produced a knife, and, being interfered with by the landlord, the sailor, in giving a drunken lurch, struck him; the man died; the sailor was tried for murder; the Judge who tried the case Mr. Baron Channell, told the jury that, according to the present state of the law, they must find him guilty of murder. He was found guilty, and the last sentence of the law was pronounced with all solemnity; but the same night the learned Judge wrote to the Home Secretary his opinion that the sentence ought to be commuted, and it was commuted to transportation for life. If the distinction now sought to be established between murders of the first and second degree had existed, the prisoner would have been found guilty of murder in the second degree, and the Judge would at once have pronounced the appropriate sentence, which would have been carried into effect. It was very inconvenient when a prisoner was found guilty of a particular crime, and the sentence due to it was pronounced, yet was not carried into effect. If this clause of the Bill were adopted, in murders of the second degree the proper sentence would be pronounced, and almost always carried into effect. He was quite of opinion that capital punishment should be retained. He believed that burglars were often prevented from committing murder knowing that they would be hung for it. He hoped their Lordships would support the clause.
EARL RUSSELLsaid, he quite agreed with his noble and learned Friend the
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Lord Chancellor with respect to this Bill, and had been in communication with him in regard to it. He also agreed with the Commissioners that there should be a distinction between murders—as of the first and second degree.
LORD ROMILLYsaid, he could not agree with his noble and learned Friend. He feared that if there were two classes of murder there would not be in the public mind the same degree of culpability attached to the crime as it was desirable should exist. He thought that if there was to be any change that instead of making two classes of murder, it would be much better to have two classes of manslaughter—simple manslaughter and criminal manslaughter. His noble and learned Friend instanced the case of a man who might kill a keeper in a poaching affray: but that was murder. Murder should be held up always as a horrible thing, and the public should be led to view it with the utmost detestation, which would not be the case if a distinction were drawn between murders of the first and second class.
THE LORD CHANCELLORthought the distinction raised by the clause a good one. He was of opinion that there were crimes to which it was quite proper that the name of murder should continue to attach, whilst the capital punishment should be taken away. For instance, where a burglary was committed and resistance was made, and the burglars offered violence and killed a man, though without having had any intention to kill. This was murder now, and would remain so still, though the clause would, in such a case, not inflict capital punishment. Where there was the intention to take life, or where the violence was of such a bloody nature as to clearly endanger life, the offence would remain capital. If they substituted aggravated manslaughter instead of murder of the second degree, it would only amount to a change of words, but the effect would not in his opinion be advantageous as if the Bill remained as it was.
EARL GREYexplained that he did not propose to do away with the three classifications of crime; but his object was that murder in the first degree as defined in the Bill should remain murder, and that that alone should be murder. The next class of crime would be that of aggravated homicide, to be punishable as proposed in the Bill; and beyond that there would be a third class, comprising cases of ordinary manslaughter. He thought that this would

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be a far better mode of classification than that contained in the Bill; and if he had had any doubt on the subject, that doubt was removed by the reasons given by the First Lord of the Treasury, who supported the Bill as it stood, on the ground that it would be a stepping-stone to doing away with capital punishment altogether Now, in his judgment, on the contrary, the abolition of capital punishment altogether would be a very imprudent and dangerous thing.
On Question, Whether the said Clause shall stand Part of the Bill? their Lordships divided;—Contents 38; Not-Contents 38. The Numbers being equal, it was (according to ancient Rule) Resolved in the Negative.

CONTENTS.

Cranworth, L. (L. Chancellor.)

Chelmsford, L.

Dartrey, L. (L. Cremorne.)

Cleveland, D.

De Tabley, L.

Richmond, D.

Dunsany, L.

Somerset, D.

Foley, L. [Teller.]

Hunsdon, L. (F. Falkland.)

Normanby, M.

Kilmaine, L.

Airlie, E.

Lyttelton, L.

Caithness, E.

Lyveden, L.

Camperdown, E.

Mostyn, L.

Chichester, E.

Northbrook, L.

Clarendon, E.

Overstone, L.

Derby, E.

Oxenfoord, L. (E. Stair)

Granville, E.

Panmure, L. (E. Dalhousie.)

Malmesbury, E.

Russell, E.

Portman, L.

Rossie, L. (L. Kinnaird)

Eversley, V.

Sondes, L.

Lifford, V.

Stanley of Alderley, L.

Sundridge, L. (D. Argyll.)

Abercromby, L.

Camoys, L. [Teller.]

Wrottesley, L.

NOT-CONTENTS.

Bath, M.

Belper, L.

Brodrick, L. (V. Midleton.)

Albemarle, E.

Belmore, E.

Castlemaine, L.

Effingham, E.

Churchill, L.

Ellenborough, E.

Colchester, L.

Fortescue, E.

Egerton, L.

Grey, E. [Teller.]

Harris, L.

Harrowby, E.

Heytesbury, L.

Nelson, E.

Moore, L. (M. Drogheda.)

Romney, E.

Shrewsbury, E.

Northwick, L.

Sommers, E.

Redesdale, L.

Stradbroke, E.

Romilly, L. [Teller.]

Hardinge, V.

Silchester, L. (E. Longford.)

Hawarden, V.

Leinster, V. (D. Leinster.)

Somerhill, L. (M. Clanricarde.)

Carlisle, Bp.

Southampton, L.

Gloucester and Bristol, Bp.

Taunton, L.

Walsingham, L.

Lichfield, Bp.

Wynford, L.

Peterborough, Bp.

THE LORD CHANCELLORsaid, that in consequence of the decision just come to it would be necessary to give a very careful and attentive consideration to the definitions to be applied to murder and manslaughter and he would therefore move that the Chairman report Progress.
Motion agreed to.
House resumed, and to be again in Committee on Thursday next.
House adjourned at a quarter past Six o'clock, till to-morrow, half past Ten o'clock,