Lords Sitting of 10 March 1885

MINUTES.
PUBLIC BILL—Report—Marriages Legalization now Marriages Validity* (30).
AFRICA (WEST COAST)—THE CAMEROONS—GERMAN OCCUPATION.

  QUESTION.
  THE MARQUESS OF SALISBURY: My Lords, seeing the noble Earl the Foreign Secretary in the House, I wish to ask him, Whether he can give the House any information with, respect to the intelligence which has reached this country as to what has occurred on the West Coast of Africa at the Cameroons? I will not comment upon it further than to say that, looking to the great gravity of the case, I am sure the noble Earl will
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  desire to give the House all the information he can.
  EARL GRANVILLE: My Lords, lam not the least surprised at the noble Marquess putting this Question, of which he was good enough to give me private Notice this morning. I may take this opportunity of saying that it does not happen to be the case that I communicated any telegram on the subject, as has been stated, either to the noble Marquess or to His Royal Highness the Prince of Wales yesterday. I have read the Reuter telegram. No confirmation of it has reached Her Majesty's Government, and none has been received at the German Embassy. In any case I may add that, whatever the facts may be as to the action of the civil authorities, not only upon principles of international comity, but from the spontaneous declaration of Prince Bismarck when a report arrived that a Protectorate of Samoa had been proclaimed, and from the fact that our negotiations with Germany on Colonial matters are at present on a very friendly footing. I feel convinced that this incident will lead to no disagreeable complications.

  INDIA—THE BENGAL TENANCY BILL—QUESTION.
  THE EARL OF WEMYSSsaid, he desired to ask the noble Earl the Secretary of State for India a Question, of which, he had given him private Notice, with reference to the Bengal Tenancy Bill now under discussion before the Council of the Viceroy. The measure was one which would practically extend to Bengal what was known as Irish legislation. [Cries of "Order!"] He did not say that it was so. What he wanted was to know the real character of the measure and its present position before the Council? [Renewed cries of "Order!"]
  THE EARL OF KIMBERLEY,rising to Order, said, he was quite ready to answer any Question on the subject, but the noble Earl was proceeding, without Notice, to discuss a most complicated and most difficult measure, and he must say he thought the noble Earl was out of Order.
  THE MARQUESS OF SALISBURYsaid, he thought that the course taken by the noble Earl (the Earl of Wemyss) in asking for information, without Notice, was a very usual one, whether the subject was complicated or not; but the

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  question of whether any answer was given depended very much on the knowledge possessed at the time by Members of the Government in the House.
  EARL GRANVILLEcontended that as this was a Question asked after giving private Notice, it would be out of Order to discuss it. If a Question was likely to lead to discussion, Notice should be placed on the Minutes, not for the benefit of the Government, but with the object of enabling noble Lords who took an interest in the subject to be present.
  THE EARL OF WEMYSSgave Notice that he would ask the Question on Thursday next.

  PARLIAMENT—BUSINESS OF THE HOUSE—THE WAR IN THE SOUDAN—MILITARY CO-OPERATION OF THE COLONIES—QUESTION.
  THE EARL OF CAMPERDOWNasked the noble Earl the Secretary for Foreign Affairs, Whether it was the fact, as had been stated in some of the morning newspapers, that the Government had in some way, more or less direct, requested the postponement of the Motion of the noble Earl (the Earl of Wemyss) for an Address thanking Her Majesty for having accepted the offers of military service from the Colonies?
  EARL GRANVILLE,in reply, said, that the Government had no objection to the Motion, and had not the slightest wish that any delay should take place in bringing it forward; but, unfortunately, the noble Earl who had given Notice of his intention to bring the subject before the House had lost his voice through a cold, and the Motion had accordingly been postponed at his own wish. He was glad to see that the noble Earl had recovered.
  THE EARL OF WEMYSSsaid, that the noble Earl had accurately stated the facts, and that the Motion had been postponed, at his own instance, from yesterday until Thursday.

LAW AND JUSTICE—FREDERICK MARSHALL, A CRIMINAL LUNATIC.

  MOTION FOR AN ADDRESS.
  THE EARL OF MILLTOWN,in rising to call attention to the case of Frederick Marshall, who was committed for trial at the Central Criminal Court on a charge of wilful murder, and against
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  whom a true bill was found by the Grand Jury for that offence, but who was removed from the jurisdiction of that Court before his trial and committed to Broadmoor Asylum as a criminal lunatic by a warrant purporting to be signed by the Secretary of State; and to ask whether there was any precedent for the adoption of such a course? and moved for a copy of the warrant means of which such removal was by effected, said, that it would be within their Lordships' recollection that a few weeks ago a very barbarous murder of a poor young girl had been committed at Woolwich, and that a man named Frederick Marshall, who had formerly been her sweetheart, had been charged with having committed the crime. After a preliminary investigation before the magistrate, the prisoner was committed for trial at the Central Criminal Court, charged with wilful murder, and in due course a true bill for that crime was found against him by the Grand Jury. So far, there was nothing to call for special remark in the case. But on the first day of the Central Court Sessions in February last, Mr. Montagu Williams, as representing the Treasury, made a most extraordinary, and, as far as he knew, an unprecedented, application to the learned Recorder, it being that the recognizances of those who had been bound over to appear at the trial should be enlarged sine die, on the ground that in consequence of the result of a private investigation into the state of the prisoner's mind conducted under the provisions of the Act which had been passed last year, the Home Secretary either had issued, or was about to issue, his warrant to remove the prisoner from the jurisdiction of the Court, with the view of his being removed to the Criminal Lunatic Asylum at Broadmoor. This application took both the learned Recorder and counsel for the prisoner by surprise, and the latter earnestly protested against the course pursued, on the ground that he had been instructed to defend the prisoner, and that if his instructions were correct he had a good defence upon the merits. The learned gentleman contended that the question of the sanity or the insanity of the prisoner ought to be determined in open Court, rather than an innocent man, as the prisoner was then in the sight of

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  the law, should be sent to herd with criminal lunatics for the rest of his life. The counsel for the prosecution said that however that might be the protest came too late, inasmuch as the warrant for his removal had been made out, and thereupon the learned Recorder felt himself bound to yield to the application. The next day Mr. Baron Huddleston went to the Central Criminal Court in order to try the more serious class of offences, and was extremely surprised when he found that the prisoner had been removed from his jurisdiction, and he made some very strong observations on the course that had been pursued. For his own part, he did not deny that the Home Secretary had acted strictly within his legal powers, and no doubt the Act which had been passed last year had conferred upon him the power which he had exercised. But the time the Act was being passed he, and he thought most of their Lordships, had been under the impression that this power of the Home Secretary was to be exercised after and not before judicial sentence had been passed upon the prisoner. There were two points of view from which this question might fairly be examined—namely, from that of the prisoner and from that of the public. In the first place, it was extremely hard upon a prisoner that he should be liable, upon a mere hole-and-corner inquiry, to be sent to a criminal lunatic asylum without having had an opportunity of establishing his innocence before a jury of his countrymen; and from the public point of view it was extremely dangerous that such a power should be conferred upon a Home Secretary. Take the case of a wealthy and influential person charged with the crime of wilful murder; such pressure might be brought to bear upon—he would not say a corrupt—but a weak Home Secretary which might induce him to exercise this power in favour of the prisoner, and seeing that the same Minister had also power under the same Act to grant an unconditional release of a criminal lunatic, the result would be that such a person might escape altogether having to pass through the ordeal of a trial. He could not imagine anything more dangerous than that such a power as this should be placed in the
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  hands of any one man. It might be said that the Home Secretary could only act upon the certificate of properly qualified medical men; but a diversity of opinion existed in the Medical Profession upon the question of insanity. Although he had the highest respect for members of the Medical Profession, he felt bound to say, after having frequently heard them give their evidence in lunacy cases, that they appeared to be sometimes, to say the least of it, considerably biased in the evidence they gave: and, indeed, the late Sir Alexander Cockburn, in the celebrated ease of Palmer, went so far as to speak of medical men being retained on the one side or on the other. He begged to move for a copy of the warrant under which the prisoner in this case had been removed.
  Moved, "That an humble Address be presented to Her Majesty for copy of the warrant, purporting to be signed by the Secretary of State, by means of which Frederick Marshall was removed from the jurisdiction of the Central Criminal Court, before his trial on a charge of wilful murder, and committed to Broadmoor Asylum as a criminal lunatic."—(The Earl of Milltotwn.)
  THE EARL OF DALHOUSIEsaid, that he did not understand the noble Earl to make any attack upon the conduct of the Home Secretary in this matter. The noble Earl complained of the state of the law under which the removal had been made; but the noble Earl forgot that the very object of the legislation of last year was to enable action to be taken with regard to a lunatic prisoner before] as well as after trial. The 2nd section gave power to a Secretary of State, when a prisoner was certified to be insane in the manner prescribed, to order him to be removed to an asylum for criminal lunatics. The noble Earl's speech might very well have been made on the second reading of the Bill when it was before their Lordship's House, because it was a criticism of the provisions of the Act itself rather than of the manner in which the Secretary of State had used the powers conferred on him by the Act. No doubt, the power given was very grave and very serious; but that matter should have been, and indeed was, very fully discussed last year. There were ample precedents for the action of the Home Secretary. In reply

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  to the Question on the Paper, he had to say that the warrant was in legal form, and although originally there was a slight irregularity in the signature, this had since been corrected by the Home Secretary. The Government, under these circumstances, did not see any necessity to produce the warrant, and he was not prepared to promise any amendment of the law upon the subject. If the noble Earl thought the Act was unsatisfactory and ought to he amended, he had ample opportunities of introducing a Bill for the purpose.
  LORD BRAMWELLsaid, the noble Earl opposite (the Earl of Milltown) had brought forward a matter of great moment. He did not like to say the Home Secretary misinterpreted the Act of Parliament, because he was a lawyer, and he had good advice, and he was sure he would give great attention to any step he had taken. But either he had misinterpreted this law and assumed a power he had not got, or the law was one which ought not to be allowed to continue. It was not every kind of insanity which entitled a man to acquittal—or rather, which caused a man to be held to be not guilty. There was the case of a man, undoubtedly insane, who had murdered his wife by repeated doses of strychnine; but he was found guilty of murder and hanged, to the entire satisfaction of everybody. This man had been guilty of the utmost cruelty, and no one wished to save his life. It was, therefore, not every form of insanity which entitled a man to acquittal. A man must be insane in one of two senses—he must either not know the nature of the act he was doing, or be under some delusion—such as that, if the supposed facts were real, would justify the act otherwise criminal. What were the proceedings which took place in the case of persons supposed to be insane? The proper course was for the Judge to impannel a jury and try whether a person was so insane that he was not competent to plead. Even if the jury found him insane, then the Judge had the power to confine him during Her Majesty's pleasure. But if he was competent to plead, then he was tried for the alleged crime, and if he turned out to be insane, as before mentioned, then he was entitled to be acquitted on the ground of insanity. In the case of a
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  man who could not plead, he would be sent to the asylum, not as a criminal lunatic, for he had not been adjudged a criminal lunatic—he was simply a man who could not plead. What were the facts here? This man Marshall was charged with an offence; the magistrates committed him for trial, but according to the interpretation put on the Act he had not been tried. He was sent away to some asylum for criminal lunatics, although he was not a criminal lunatic, and there he was to remain. He was not quite sure whether the Act said he was to be discharged ultimately or sent for trial. It seemed to him that this was a most unreasonable thing. No doubt, the medical men were quite right in saying that he was insane; but he had not been tried. As the noble Lord said, if he had been tried he might have been acquitted; but the medical men certified he was insane, and then the Home Secretary decided he should not be tried. Was it not much better that he should be tried and acquitted on the ground of insanity, or found guilty if not sufficiently insane? He thought the law ought to be altered if it was as the Home Secretary found it, and was compulsory. But he doubted if it was as the Home Secretary found it. The Act might be quoted as "an Act relating to Criminal Lunatics;" but Marshall was not a criminal lunatic. He thought their Lordships would see that the course adopted in this case was attended with a lot of mischief. The Act was either a bad Act or it had been misinterpreted, or if it only gave a power to the Home Secretary of which he might not avail himself, then it seemed a bad use had been made of it.
  LORD FITZGERALDsaid, the words of the Act were "when a prisoner is certified," &c, and the word "prisoner" applied equally to the man charged with crime as to the person convicted of crime. "Criminal lunatics" would mean "persons charged with crime." For the purposes of the law this man was a criminal lunatic. The meaning of the order made in this case was that if the man remained insane he stayed in the prison, but if he recovered he was put upon his trial on the charge for which he was committed. He could not see any issue in this matter of the great importance represented. As he understood the

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  noble Earl, this prisoner had been confined at Broadmoor on the warrant of the Secretary of State made on being properly certified of his insanity. It appeared to him that the course taken by the Home Secretary had been in accordance with the true interpretation of the Statute.
  THE LORD CHANCELLORsaid, he thought that it would be very inconvenient for arguments to take place in their Lordships' House as in a Court of Law upon the niceties of the construction of this or any other similar Act of Parliament. All he would say was that the Home Secretary and the Law Officers of the Crown had placed upon the Statute the construction which the noble and learned Lord who had last spoken thought was the right one, but with regard to which doubts had been expressed by another noble and learned Lord for whose opinion he had great respect. For his own part he did not see any reasonable ground for doubting that the action that had been taken, whether the law was a wise one or not, was in strict accordance with the law. The clause to which the noble and learned Lord (Lord Bramwell) had referred related to "a prisoner," and this person was beyond all doubt a prisoner in the natural sense of the word, because he was detained under the authority of the law in prison. He did not share the view of the noble and learned Lord as to the use of the words "Criminal lunatic" in the Act. The words were strictly defined in the Act itself to mean, among others, any person detained in safe custody during Her Majesty's pleasure, after having been tried and acquitted, but as to whom a special verdict had been returned that he was insane; and also any person whom the Secretary of State had in pursuance of any Act of Parliament directed to be moved to an asylum or other place for the reception of insane persons, which was the very case in question. Bearing in mind that a prisoner was anyone detained in prison by lawful authority, the term "criminal lunatic" seemed to him applicable to any person dealt with by the Secretary of State under the Act. Nor was there anything so exceedingly unreasonable in detaining an untried prisoner as a criminal lunatic, when they considered that until a recent alteration of the law it was the constant practice
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  to detain in criminal lunatic asylums persons who had been not convicted, but acquitted, on the ground of insanity. Nevertheless, considerations of reason, public policy, and good sense led to the conclusion that such a man was a lunatic of a class whom it was desirable to treat in a different manner from ordinary lunatics. The insanity contemplated by this Act was not insanity at the time of the alleged offence, but during the time that the lunatic was in prison. The question whether the law required amending he would not enter into, but would content himself with saying that it did not appear to him so unreasonable as the noble Earl seemed to think.
  THE EARL OF MILLTOWNremarked, that the noble Earl representing the Home Office (the Earl of Dalhousie) had stated that there were plenty of precedents for the course taken in this case. That was a very fine way of getting out of the matter, but he should be glad if the noble Earl would give him one. He still maintained that there was no precedent for a prisoner charged with murder, and against whom a true bill had been found for that offence, being withdrawn from the jurisdiction of the Court before trial by such a process as had been adopted in this case. Up to the end of last Session persons under these circumstances would not necessarily be treated as criminal lunatics, but would simply be sent to hospitals for the insane. An untried prisoner was now liable to be treated as a criminal lunatic, and to be sent to a criminal lunatic asylum before trial. He could not help thinking that it was a very great slur on any man's character to be sent to Broadmoor without trial, and the stain would probably remain on him for the rest of his life. He did not deny that the Home Secretary had acted within his strict legal power; what he complained of was, that he had not exercised the discretion which was conferred on him by the Act, and that his interference was ill-advised and hardly Constitutional.
  On question, resolved in the negative.
  House adjourned at a quarter past Five o'clock, to Thursday next, a quarter past Ten o'clock.