Sitting of 28 July 1869

MINUTES.
— PUBLIC BILLS—Ordered— First Reading— Sanitary Act (1866) Amendment [244].
Second Reading—Capital Punishment Abolition [71], put off; Game Laws (Scotland) [36], debate adjourned; Seamen's Clothing * [242].
Committee—East India Loan * [251]—R.P.; Metropolitan Commons Act (1866) Amendment (re-comm.)* [221]—R.P.
Committee—Report — Seeds Adulteration (re-comm.)* [222]; Inclosure Awards (County Palatine of Durham) (re-comm.)* [210].
Third Reading—Fisheries (Ireland) * [190], and passed.
Withdrawn—Game Laws (Scotland) (No. 2)* [17]; Sunday Trading* [5]; Parochial Schoolmasters (Scotland)* [72]; Hospitals, &c. Rating Exemption * [81]; Admiralty District Registries * [229].

IRELAND—AGRARIAN CRIME.

  QUESTION.
  SIR FREDERICK W. HEYGATEsaid, he wished to ask the Chief Secretary for Ireland, Whether he will state to the House what steps the Irish Government are taking to suppress the recent outbreak of agrarian crime in certain districts of Ireland; and, whether they have any course in contemplation to increase the efficiency of the law and to give that protection to life and property which it is the object of all Governments to afford?
  MR. CHICHESTER FORTESCUE: Sir, the Question of my hon. Friend relates to a subject which I need not say demands and engages the constant watch-fulness and anxiety of the Irish Government. My hon. Friend's Question in part refers to new and exceptional legislation upon this subject. Now, Sir, the Government do not shrink, and will not shrink, from legislation upon this subject, however exceptional, if they shall be convinced of the absolute and unhappy necessity for such legislation; and further, provided that such legislation shall, in their judgment, not merely be strong or violent in appearance, but shall be reasonably calculated and likely to attain the end in view—that is to say, the protection of life and property against this peculiar class of offence. But, Sir, we have not proposed to the House such legislation at present, because we have not been able to satisfy ourselves that legislation such as we should be justified in recommending to Parliament would seriously and effectually remove the grand difficulty of the whole matter—the detection of crime and the procuring of evidence sufficient to convict. I venture to say that much has been done in the execution of the law as it stands, and I trust that even more will be done. The vigilance and zeal of the police have been beyond all praise, and the Government have exercised constant watchfulness and care in the use of the powers which they now possess. In every case where life and property are in danger or threatened, they have endeavoured to protect it, and to send a protecting force to every such locality, the expense of such force being generally charged upon the district itself, and I am convinced that much mischief has been prevented. I am sorry to say that we have not yet obtained a
  840
  conviction in any one of the cases of agrarian murder which have occurred during the last few months, although we have obtained convictions in some important cases of the same kind of lesser atrocity. But many arrests have been made, and, in several cases, suspected persons are likely to be put upon their trial. In one case especially— the recent attempt to murder Captain Lambert, in Galway—there is no doubt that an important prisoner will be placed upon his trial, and I am much mistaken if it is not then found that in that case the police acted with remarkable activity and discretion. The hon. Baronet will recognize that it is not possible to answer a Question of this kind very completely, because in such matters as the detection of crime or the putting upon their trial of men not yet called upon for their defence, any one in my position must speak with considerable reserve. I may conclude, however, by saying that the state of crime in Ireland upon the whole, as shown particularly by the recent charges of the Judges, is satisfactory; and, in spite of the most unsatisfactory condition of certain districts and of two recent attempts at murder, which have been happily unsuccessful, I still have great hope, provided always that no excessive and unjustifiable use of the rights of property be exercised—I mean such as that which produced the outrage in Tipperary last autumn — that the vigilance of the Government, and their constant efforts, which shall not be spared, to use to the utmost all the powers they possess, may keep under this lamentable class of offences.

  CAPITAL PUNISHMENT ABOLITION BILL— [BILL 71.]
  (Mr. Gilpin, Mr. Hadfield, Mr. M'Laren, Sir John Gray.)

  SECOND READING.
  Order for Second Reading read.
  MR. GILPIN MR. GILPIN, in moving the second reading of this Bill, said, the task had fallen to his lot by reason of the death of his lamented friend the late Member for Dumfries (Mr. W. Ewart), who was one of the leaders of the great reform he now advocated, and whose labours during many years were almost in this cause incessant. Since he had last the opportunity of addressing the House on

  841
  this subject, circumstances had very much changed. At that time we had public executions; frequent scenes such as that described by Coventry Patmore—
  "Thousands of hearts beat horrid hope,
  Thousands of eyeballs lit with Hell,
  Burnt one way all to see the rope
  Unslacken as the platform fell."
  When he last spoke it was in opposition to the Government Bill providing that in future the execution of criminals should be carried out in private, which measure was said by some hon. Members to be a step in the direction he was pursuing— the direction of humanity, good morals, and sound criminal jurisprudence. This system of private execution was one of the recommendations of the Royal Commissioners; and let him pause to inquire for a moment what it was. They were informed that the first private execution made a policeman sick; and he had the authority of a gentleman, as able, probably, as any gentleman who had filled the office of under-sheriff in London, for saying that under no conceivable circumstances would he serve the office again, so long as there were private executions inside Nowgate Prison. Public opinion was, he ventured to say, making rapid strides in the direction indicated by this Bill. It was twenty years since he held public meetings, fairly called, over the length and breadth of the land, and obtained almost unanimous votes in favour of the abolition of the death punishment; and now he found the Globe, a newspaper which could scarcely be suspected of sentimental philanthropy, was mainly with him, and saying that to execute the wretched woman Fanny Oliver, recently convicted of the murder of her husband, would be shocking to the moral sense and the judicial sentiment of a great number of the people of this country. The question they had first to consider in the matter was, no doubt, the best mode of preventing murder. In the course he was taking he disclaimed all sympathy with crime or with criminals further than that sympathy which every man ought to feel with fallen sinners, however degraded and however fallen. During the last discussions of this subject it was thought by many hon. Members of that i House, and by a great number of people outside of it, that—
  " Those grisly teachers, the beam and rope,"
  842
  were really teachers of morals, and that men, women, and children learned at the foot of the scaffold lessons of morality and goodness; but this feeling had happily passed almost completely away. The strongest safeguard of life was its sanctity, and that sanctity every execution diminished. On the last occasion, Mr. John Stuart Mill—a gentleman whom he was sorry to miss from that House—opposed his Motion in a speech the least logical he ever heard for so logical a man; but, unfortunately, the rules of the House did not permit him (Mr. Gilpin) to attempt a reply. Mr. Mill acknowledged the good work that had been done by the abolitionists, but said they had now gone far enough and must stop; but in answer to that he said that unless civilization, the progress of humanity, and the influences of religion ceased to have power, the gallows must fall, or these influences must be exerted against it. Mr. Mill's strong point was that the gallows had a deterrent influence on the minds of the criminal classes. The hon. Member did not approve of public executions; but he thought that the knowledge by persons disposed to criminal practices that a murderer was being quietly hanged inside a gaol would have a deterrent influence, and he also expressed an opinion that imprisonment for life, without hope of release—the punishment proposed by abolitionists to be substituted for hanging in cases of murder—was a punishment such as no human being could bear; although he admitted the wisdom of retaining such a class of punishment for secondary offences. Mr. Mill denied that the responsibility of those who execute a criminal extends in any sense to that awful eternity into which nevertheless the action of the Judge and executioner thrust a criminal; and on this he joined issue, and contended that they had no right to say, after they had convicted a man of murder, that there should remain so many days only in which he should have an opportunity of making his peace with Heaven; and that if he had made his peace they should make him, as far as the act of execution could do it, an inheritor of Heaven; for the very reason that he had committed a murder. And the alternative was not less awful, for it was that the law should shut out from repentance, by shortening the time which. God would have given him to repent,

  843
  a criminal, who, by the very act he had committed, was the man having the greatest need of repentance and of mercy. Passing on to speak of the history of this question, the hon. Member referred to the great work done in the early part of this century by Sir Samuel Romilly, in breaking down the system under which the death penalty was inflicted for petty theft, and then proceeded to regret that his hon. Friends (Mr. Lewis and Mr. Tipping) should have thought proper to place on the Paper a proposal that the Bill be rejected. Neither of those hon. Gentlemen wished the execution of innocent people, or that women should be hanged for infanticide, and they would therefore have done better if, instead of endeavouring to procure the rejection of the Bill, they had supported a strong recommendation to the Home Secretary for the carrying out of the recommendations in which the Royal Commissioners were unanimous. He had no doubt that he should be met by the opponents of this measure with the opinions of sundry learned Judges; but he would call the attention of the House to the fact that since the time when the stealing of 5s. was a capital offence, all amelioration of the law had been doggedly opposed by the Judges, the Bishops, and the Archbishops of this country. He had also the opinion of Baron Deasy—a learned gentleman, who would be recollected as a Member of the House—that in many respects Judges were less able to form opinions upon questions of this kind than were by-standers who looked on at the administration of justice. When it was first proposed to repeal the Act of William, which made private theft in a shop to the value of 5s. a capital offence, the Bill passed the House of Commons, and was defeated in the House of Lords by 31 to 11, and he hoped he should not hurt the feelings of his hon. Friend the Member for Sheffield (Mr. Hadfield) when he said that in the majority were an Archbishop and six Bishops, whom Romilly mentions in his diary, but adds that "he preferred to believe that they were slavishly obeying the commands of the Minister rather than that they voted spontaneously from delight in the shedding of blood." In 1811, 1813, and 1816, the Bill was passed by the House of Commons, but rejected by the Lords. In 1818, it was again passed
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  in the Commons, but in that year the hand of death arrested the work of the great philanthropist, and Romilly died. Who would not say, in the language of Mr. Phillips—
  "May that resplendent example never be forgotten! May Romilly's untiring perseverance — nvincible but by death—animate his successors in this Christian cause till the cursed tree is totally uprooted."
  In 1840 Mr. Ewart brought forward a Motion for entire abolition, and got ninety-four Members to vote with him; and, in 1866, fifty-six voted for a similar Motion; nor had the question ever been regarded in that House as a party question. In 1846 a Committee, for promoting the question, was formed in Exeter Hall, of which Daniel O'Connell, John Bright, Charles Dickens, Douglas Jerrold, and Dr. Lushington were members, and Mr. Cobden was one of the most earnest advocates of the question. In 1864 a Royal Commission was appointed, which recommended that capital punishment should, for the future, be restricted to such murders as were committed with express malice aforethought, when the existence of this malice was found by the jury; that it should be abolished in the ordinary cases of infanticide; and that executions should in future take place within the walls of the prison. Of these recommendations, the last only had been carried out by the Government; but the law by which girls were sentenced to death—though the Judge knew perfectly well that they would no more be hanged than he would himself—was still allowed to disgrace the administration of justice. The bill of indictment he had to prefer against capital punishments was a long one; but he would substantiate every charge he brought against it. The first charge he had to make was its uncertainty of application. This was, in some sense, true of every punishment; but the punishment of death was different from that of every other. They could remit the sentence and award compensation in every other case, if a mistake was proved; but in the case of the execution of an innocent person, where was the reparation to be made to him? How could they roll back the portals of eternity, and bring back the man into the world out of which they had ignominiously thrust him? The consequence was that the evidence, which

  845
  was held sufficient to prove any other crime, was not held sufficient here, and the punishment was most uncertain. In the year 1867–8 there were 255 verdicts of wilful murder by coroners' juries — ninety-four were tried at the assizes, twenty-seven were found guilty; in seventeen of these cases the punishment was commuted, and only ten were executed. He held that the deterrent influence of a punishment was in proportion to its certainty, and not to its severity. When only ten criminals were executed out of 255 cases, in which coroners' juries returned verdicts of wilful murder, it confirmed the statement he had formerly made in that House, that a murderer had a much greater chance of escaping the penalty due to his crime than the perpetrator of an offence much less serious. In 1867, twenty men and seven women were sentenced to death; ten men were executed, and all the women were spared. Some years ago a woman was convicted of having smothered two children, the children of her paramour. She and the man she lived with quarrelled, and she rushed upstairs in a fit of uncontrollable jealousy, and smothered the two children. She had no sooner done this than she became conscious of her crime; she gave herself up, acknowledging her crime, and wrote some most touching letters to the man during her incarceration. On the morning of her execution she went to the gallows singing hymns, and she was executed with an assurance on the part of the Ordinary of Newgate—which he had a right to give in accordance with his sacred functions—that, being truly repentant, she would be forgiven, and that the drop of the scaffold would be the opening to her of the gates of Heaven. He commended this case especially to the attention of his hon. Friend (Mr. J. D. Lewis). He asked him what he thought of this—
  "Blossoms of the gallows tree;"
  and he challenged him to produce one right, moral, or Christian principle, or precept, which such an example illustrated or enforced. As a contrast to this, he might specify another case, in which a married lady murdered her two children also from jealousy; but, as she possessed ample means, an array of witnesses appeared at the trial to depose to her insanity, and she was consequently found insane, and imprisoned during the
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  Queen's pleasure. She was now free. That showed how unequally the law pressed against the poor; for how could the friends of the poor woman at Bethnal Green find the means of proving her insanity? The objections to the present system could perhaps not be better summed up than they were in the following passage from Mr. Dymond's work, entitled The Law on its Trial:—
  "It is conceded by most persons that inflicting the penalty is open to many grave difficulties; that occasionally great criminals escape, because juries dread the consequence of a capital verdict; that, moreover, life has been, and may again be sacrificed through mistaken or false evidence; that a capital conviction almost inevitably awakens a feeling of pity for the culprit, rather than a healthy detestation of his crime; that, in short, public opinion continually revolts against the law, whilst it is extremely difficult to bring the administration of the law into strict harmony with public opinion."
  A remarkable case was that of Samuel Wright, a working carpenter at Southwark, who lived with a woman who was not his wife, and addicted to habits of drunkenness. He was one night awakened by her dragging him out of bed by the hair, and, finding a razor lying open, he, maddened by her conduct, cut her throat with it. He believed that no jury in England would have convicted that man of wilful murder; but Wright pleaded guilty, and would not withdraw the plea, though he was pressed to do so by the Judge. He was sentenced to death, and 2,000 of his fellow-workmen signed a petition for a reprieve, and took it up in a body to the Home Office. Unfortunately this was taken by the then Home Secretary as something like a menace, and the application was refused, the man being executed with every sign of the sympathy of his neighbours, who kept their blinds down. About the same time a man named Hall committed a most d liberate murder in Birmingham. But a different pressure was brought to bear upon the Home Secretary; almost all Birmingham was moved to petition on his behalf, and the man's life was spared.
  MR. BRUCEsaid, the hon. Gentleman ought not to conclude his statement without saying that it was the case of a husband murdering a faithless wife. In Wright's case his victim was his mistress.
  MR. GILPIN: Yes; but he was not hanged for keeping a mistress, but for killing a woman; but whilst the less

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  guilty murderers were often hanged, the more guilty were often either saved or had their punishments commuted. Charlotte Winsor, the worst murderess of modern times—the cold-blooded creature who, systematically and as a matter of business, murdered helpless infants at the rate of £5 each—was last year spared from the gallows and committed to penal servitude for life. On the other hand, women far less ferocious have been hanged; as, for instance, Mary Ashford, at Exeter, in March, 1866, and Ann Lawrence, at Maidstone, in January, 1867. In June, 1863, Alice Holt was committed for murder at Chester; but being found pregnant was imprisoned for half a year and then hanged, after all the sufferings of prolonged suspense and of childbirth. Constance Kent, in consideration of her youth, was reprieved; but, last August, a youth named Bradley, aged eighteen, was hanged at Jersey. Victor Hugo and many others interceded for him, but in vain. Yet the local notice of his life stated—
  "It appears that the said Francis Bradley has from his childhood been brought up in the midst of misery and crime, and has never received the slightest moral or religious education, but has always been without a home or a friend."
  Celestina Somner took her daughter into a cellar at Islington, and there cut her throat; yet she was reprieved, and was living still. Annette Myers, who in broad daylight went and shot a soldier in Birdcage Walk, and who was proved afterwards to be the daughter of a baronet, was reprieved. Martha Brough, who murdered six children, in 1864, was reprieved on the ground of insanity, as the jury could not imagine that any person in her senses would murder six children. Townley was reprieved, and proved the propriety of the decision by afterwards committing suicide in a state of insanity.
  He came next to an argument which was regarded by many as the most important of all, and that was the number of persons condemned and executed, or sentenced to execution, who were afterwards proved to be innocent. On this subject he would call his right hon. Friend the Home Secretary himself into court. He stated, only a few weeks ago, that at the last Spring Assizes two persons were sentenced to death who were entirely innocent.
  MR. BRUCEsaid, the one was innocent and the other insane.
  MR. GILPINsaid, one was set abso lutely at liberty, and the other was found not guilty on the ground of insanity. William Cummings was hanged at Edinburgh in 1853, and died protesting his innocence. Hutchings was hanged at Maidstone in 1847, and died protesting his innocence. Mary Rogers, a coldblooded, deliberate murderess, who was convicted at Shrewsbury Assizes in 1851, had her sentence commuted. She had taken her child to a pool, drowned it, and coolly bent a stick to keep it down, so that there was no special grounds for mercy. In 1854, William Rollinson, who was convicted at Bury St. Edmunds of deliberate poisoning, had his sentence commuted by Lord Palmerston, in consideration of his extreme old age, he being eighty-three years old, while Allen-main was executed at Stirling, aged eighty-four. There was the well-known case of Polizzioni, who was found guilty of murdering a man in a public-house on Saffron Hill, and was saved from death through the exertions of Mr. Negretti, who saw him in his cell and was convinced of his innocence, another man being afterwards tried for the same crime, and found guilty of unlawful wounding, for which he received a sentence of penal servitude. In the case of Polizzioni, it was worthy of remark that the able and humane Judge who tried him was so convinced of his guilt that he held out no hope of mercy. Yet, within a few days of the morning fixed for the execution, the Judge and the Home Office were convinced of the prisoner's innocence, and he was set free. Lunatics were imprisoned for life, and he saw no reason why murderers might not be confined for life with as much security for society as if the executioner had done his work. On this subject a pamphlet, published by Mr. Charles Phillips, entitled Vacation Thoughts on Capital Punishments, contained some information of the highest interest, which he should beg to read to the House. Referring to the examination of Mr. Sheriff Wilde before the Commission of 1836, he quoted that gentleman's evidence, that—
  "'Many innocent persons have suffered; I think that if the documents of the Home Office are examined many instances will be found in which, by the exertions of former sheriffs, the lives of many persons ordered for execution have been saved.' He was well authorized to say so.

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  This most inestimable gentleman is still alive, so we may not speak of him as we sincerely feel; but we shall chronicle his acts— they are his best eulogy. During the seven months of Mr. Wilde's shrievalty, he saved the lives of six innocent persons who had been actually ordered for execution! The records and the documents are at the Home Office. The first case was that of Anderson and Morris, accused and convicted of robbery with violence. To avoid prolixity we omit the particulars, which will be found in the former editions. It was not until the day for their execution was near its dawn the respite was granted. At dark midnight, when on their knees expecting the fatal approach of the official to warn them that their hour was at hand, mercy's own messenger appeared with the assurance of their safety. It was as the angel's visit, and their chains fell off—they were wholly ' pardoned.' The next is a case so monstrous that it is difficult of credence; still it is true. At a time when juries, aghast at the frequent executions for forgery, insisted upon such strictness of proof as to make conviction almost impossible, and acquitted very often where the proof was perfect, a man named Smith pleaded guilty to the charge. All remonstrance was lost on him; his friends in vain advised him; in vain the Judge urged him to take his trial; he persisted in his plea, and sentence of death was passed on him. In due time he was ordered for execution; the condemned sermon was actually pleached. In such a crisis, the indefatigable sheriff was appealed to by a respectable tradesman of Cornhill, the prisoner's relative. He proceeded to the dreadful cell of the condemned, with a heavy heart, because apparently on a hopeless mission. There, however, he heard the explanation of his plea —the frightful explanation! His case was instituted by the Bankers' Committee. Some short time before the sessions, their solicitor authorized Mr. Cope, then City Marshal, to assure Smith that if he pleaded guilty his life should be saved. He did so—relying on that promise— and now behold him on his truckle bed, within four days of his execution. The sheriff, scarcely crediting his senses, hurried to the Home Office, and there, as usual, was met by the prompt humanity of Sir Robert Peel. The Minister, as much astounded as the sheriff, at once solicited the aid of Lord Lyndburst, then Lord Chancellor — a rare combination. A most vigilant investigation instantly ensued; prosecutor, solicitor, City Marshal, and others were summoned to the Lord Chancellor's private room at the House of Lords, and underwent a strict examination. The sheriff's narrative was true. The life of Smith was saved, This awful detail is on record at the Homo Office; and, reader, this occurred in the metropolis of England and in the nineteenth century! The third case was one of two poor men—humble, destitute Irishmen—convicted on circumstantial evidence of a revolting crime. On a patient scrutiny at the Home Office, the prosecution was shown to have been the result of a conspiracy. This appeared, partly by the improbability of the prosecutor's story, and partly by direct evidence submitted to the Secretary of State. The men's lives were saved; and, says the sheriff, ' I have no doubt of their innocence.' The last case was that of a man named Brown, capitally convicted of robbery and left for execution. He was saved; but not, says the generous sheriff—ever seeking to despoil himself of the meed of his humanity—
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  'until his master, Mr. Lingham, a wine merchant, had been exerting himself for many days to procure a remission of the sentence.' Here, then, were the lives of six of his fellow-creatures saved, through the instrumentality of one noble-minded man, in little more than the moiety of a shrievalty."
  Mr. John Stuart Mill declared, when the question was formerly under discussion, that if it could be proved that juries were unwilling to convict in cases of murder, and that guilty men escaped in consequence, he would give up the whole question. On this subject he had evidence which he could not doubt would be satisfactory to the House. The hon. and learned Gentleman (Mr. Denman) was asked by the Duke of Richmond— on the late Royal Commission—''What is the opinion which you have formed, generally, upon the question of capital punishments? "He replied—
  "The conclusion which I have come to is, that the chief way in which it operates is as a most powerful weapon in the hands of any counsel defending a prisoner, and that it leads to the acquittal of a great many men who, if there were any punishment but death as the result of a trial for murder, would most certainly be convicted."
  He adduced cases in his own experience, and amongst others the trial of John White, for the murder of his wife, at the Lewes Assizes, in 1859—
  "The jury found him guilty of manslaughter only, to the evident surprise of every one in court, the prisoner himself, who had evidently made up his mind for the worst, included."
  Mr. Serjeant Parry stated, in reply to a question by Mr. Waddington—
  "I could mention six or eight instances within my own knowledge in which men have been acquitted purely upon the ground that the punishment was capital."
  In reply to the right hon. Gentleman (Mr. Bright), the learned gentleman said—
  "I know that juries have acquitted men, clearly, and, beyond all doubt, guilty of murder, and some of the very worst murders that have ever been committed in this country, and have done so simply because the punishment has been the punishment of death; they would have convicted if the punishment had been imprisonment for life, or any punishment short of taking the life of the man, and they have seized hold of any excuses rather than he agents in putting capital punishment into operation."
  That is not unreasonable. For a man, if wrongly transported—as in the case of Mr. Barber, the solicitor—can afterwards have compensation made, but not so if wrongly hanged. Thus it occurs that not unfrequently murderers escape con-

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  viction sorely against the feeling both of the public and of the jurors themselves. At the Maidstone Assizes, July, 1865, two acquittals greatly astonished the public. One of these was the case of Thomas Jones, tried for the murder of his child at Woolwich. It was proved that the child had been given to the prisoner alive and well, and that it was found in the Thames dead, and with a weight tied to it to prevent its floating. Other evidence was given which all tended to show that the prisoner was guilty of murder. Everybody in Court was confident that Jones must be found guilty, and the black cap had been placed within reach of the Judge to be put on. But the jury greatly surprised the court by a verdict of "Not guilty." The prisoner immediately fell down insensible in the dock. In many cases jurors have openly acknowledged that they had refused to convict because the penalty was capital. One of the jurors empanelled to try the six persons charged (March 1856) with the peculiarly brutal murder at Matfen, near Newcastle, was remonstrated with by a gentleman, who expressed the astonishment of himself, and of the local public generally, at the verdict of acquittal then returned. The juror admitted that he and his associates believed the charge to have been substantiated, but added, that there was not absolute certainty; and, said he, "We could not consent to hang six persons except on perfectly certain evidence." Lord Cranworth, in reply to a question by Mr. Justice O'Hagan, admitted—
  "I have known one or two instances in which the prisoner was tried for murder, which, to my mind, was clearly made out; but nevertheless he was acquitted, and I believe the acquittal was because the jury did not like to convict in a case where capital punishment would follow. I have observed that."
  Sir George Grey, in his evidence, quoted the following:—
  "There is one remarkable case which occurred at Winchester not long ago, in which a man was tried for the murder of a woman. There was every presumptive evidence of his being the guilty person, and I believe nobody entertained any doubt as to his guilt; but the jury asked the Judge in that case whether they could find a verdict of manslaughter. The Judge said, ' No; it is either murder or nothing,' and they found a verdict of not guilty. I think that they would have found a verdict of manslaughter if they could."
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  There was the case of the boy Challoner, in Canada, who, to avenge an outrage offered to his sister, followed an officer into the field where his troop was at exercise, and shot him dead with a pistol. Though there was no doubt whatever about the facts, and it was known that he had repeatedly threatened to serve the officer out, he was found not guilty, and at once set at liberty. This and other cases fully bore out the opinions of the learned counsel which he had read, and who were men as well capable of forming an opinion as the Judges themselves, and who had declared their belief that in very many cases it was impossible to procure a conviction from juries. He maintained that capital punishment did not deter crime on account of the uncertainty of the punishment. It failed to produce any check in the case of the Fenians, for the pistol of Manchester by which a policeman was shot, was echoed by the powder barrel at Clerkenwell, and from the moment of Barratt's conviction of this offence to the day of his execution, the enormity of the crime was lost in pity for the criminal; and it was to the fact that Fenianism was made treason-felony in Ireland, and not high treason, that they could attribute the convictions that had taken place in that country. Did any hon. Member believe that had treason-felony been capital any convictions would have been obtained? In conversation with a learned Judge who took a different view of the question of capital punishment to himself, his Lordship said, "If you only saw the class of men brought before us you would be convinced that nothing but capital punishment would deter them;" but, strange to say, the present law did not deter them from committing murder. What we wanted was a punishment. He wanted the punishment to be so certain that it would prevent the committal of those offences, and not so uncertain that there were 250 chances to one that a man who committed murder would not be executed. Four of the Royal Commissioners were in favour of the abolition of capital punishment. Mr. Justice O'Hagan was in favour of its abolition, but he doubted if public opinion was ripe for it; but he (Mr. Gilpin) begged to tell that learned Judge that public opinion was in advance of him, the Home Office, and the Government, on this sub-

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  ject. Of late years there had been some remarkable instances of distinguished persons who had avowed a change in their opinions on the subject. Mr. Waddington, the late Under Secretary of the Home Office, came to the conclusion that capital punishment must be abolished. Earl Russell, who had through a long life opposed this measure, expressed himself, in the introduction to the new edition of his work on The English Constitution, as being favourable to the abolition of capital punishment—
  "For my own part, I do not doubt for a moment either the right of a community to inflict the punishment of death, or the expediency of exercising that right in certain states of society. But when I turn from that abstract right and that abstract expediency to our own state of society— when I consider how difficult it is for any Judge to separate the case which requires inflexible justice from that which admits the force of mitigating circumstances—how invidious the task of the Secretary of State in dispensing the mercy of the Crown—how critical the comments made by the public—how soon the object of general horror becomes the theme of sympathy and pity —how narrow and how limited the examples given by this condign and awful punishment — how brutal the scene at the execution—I come to the conclusion that nothing would he lost to justice, nothing lost in the preservation of innocent life, if the punishment of death were altogether abolished. In that case a sentence of a long term of separate confinement, followed by another term of hard labour and hard fare, would cease to be considered as an extension of mercy. It the sentence of the Judge were to that effect, there would scarcely ever be a petition for remission of punishment, in cases of murder, sent to the Home Office. The guilty, unpitied, would have time and opportunity to turn repentant to the Throne of Mercy."
  With regard to the probable effect of the abolition of capital punishment in diminishing crime, he would quote from a speech of his right hon. Friend the President of the Board of Trade the testimony of local governors of States in the American Union—
  "In the State of Rhode Island, one of the small States of America, with a population of not more than 200,000, capital punishment has been abolished. The Governor, the Hon. J. Pye Smith, writing from the Executive Department, March 21, 1864, says—
  "1. The death penalty was abolished in this State in the year 1852. 2. I do not think its abolition has had any effect upon the security of life. 3. Is the law against the death penalty sustained by the public opinion of the State?—Very decidedly. 4. Are convictions and punishments more certain than before the change was made? —I think they are. 5. What is the punishment
  854
  now inflicted on such criminals as were formerly punished with death?—Imprisonment for life at hard labour. I have conversed with one supreme Judge, State attorney, and warden of the State prison, and they support my own established views upon the subject."
  "In a second letter, dated April 4, he says:— ' Our present able Chief Justice says:—"Although disposed to the present law when passed, I am equally opposed to a change in it until the experiment has been tried long enough to satisfy us that it has failed. I am clearly of opinion that the present state of the law is sustained by public opinion, and I believe it will continue to be until it is satisfactorily shown that crimes against life have been considerably increased in consequence of it. My observation fully justifies me in saying that conviction for murder is far more certain now in proper cases than when death was the punishment of it."'
  "Here is the answer received from the Hon. Austin Blair, the Governor of the State of Michigan:—' I. The death penalty for murder was abolished March 1, 1847, when the revised statutes of 1846 went into effect. 2. Life is not considered less secure than before; murders are probably less frequent in proportion to population. Twenty years ago the population of the State was 300,000, and we have now a population of about 900,000. Then it was chiefly agricultural, and now we have mines of copper, iron, coal, &c, bringing into proximity dissimilar classes, and increasing the probabilities of frequent crime. Before the abolition of the death penalty murders were not unfrequent, but convictions were rarely or never obtained. It became the common belief that no jury could be found (the prisoner availing himself of the common law right of challenge) which would convict. Since the abolition there have been in seventeen years thirty-seven convictions. 3. There can be no doubt that public opinion sustains the present law and is against the restoration of the death penalty. 4. Conviction and punishment are now much more certain than before the change was made. Murder requires a greater amount of proof than any other crime, and it is found practically that a trial for murder excites no very unusual interest.'
  "It therefore does not make a hero of the criminal. The letter proceeds:—'5. The punishment now is solitary confinement at hard labour for life. Since 1861 this class of prisoners have been employed as other prisoners, as it was found difficult to keep them at work in cells without giving them tools, and there was danger of their becoming insane. The reform has been successfully tried, and is no longer an experiment.'
  "The last letter is from the Hon. J. S. Lewis, the Governor of Wisconsin, and is dated March 29, 1864:—' The evil tendency of public executions, the great aversion of many to the taking of life rendering it almost impossible to obtain jurors from the more intelligent portion of the community, the liability of the innocent to suffer so extreme a penalty and be placed beyond the reach of the pardoning power, and the disposition of courts and juries not to convict, fearing the innocent might suffer, convinced me that, this relic of barbarism should be abolished. The death penalty was repealed in 1853. No legislation has since re-established it, and the people find themselves equally secure, and the public more certain

  855
  than before. The population in 1850 was 305,000; in 1860 it was 775,000. With this large increase of population, we might expect a large increase of criminal cases; but this does not appear to be the case."—[3 Hansard, clxxiv. 2098–9.]
  He would only trouble the House with one quotation further; but it was an important one, from Professor Upham, of Maine—
  "Kennebunkport, Maine, May 4, 1869.
  "My dear Sir,—The law of Maine in relation to capital punishment, which has been on the statute book for thirty-five years, remains unaltered; I think you have a copy of it. During that time there have been four executions within the limits of the State; two by the authority of the national courts for crimes punishable with death, committed on the high seas; in cases of which kind, if I understand it rightly, the United States courts and laws have exclusive jurisdiction, just as they would have exclusive jurisdiction in cases of treason against the United States. In case of crimes punishable with death under the authority of the State, if the person is convicted, he cannot be executed until the expiration of a year, and then the law leaves the matter in the hands of the governor, who may either leave the criminal in prison, or if in his judgment the public good requires it, order him to be executed. During the long period of about thirty-five years, two only have been put to death under the Slate laws: one for attempting the life of the warden of the State prison, and the other for special atrocities in the crime for which he was convicted, the peculiar circumstances in each case furnishing a justification to the people of a course on the part of the executive authority which is practically obsolete. The people of Maine feel as safe under their system as any people in the world. But we have two powerful auxiliaries. Firstly, we keep the school-houses open; secondly, we keep the dram-shops shut. I know of no State that has returned to capital punishment after having once abolished it. Education, temperance, just laws, and light taxation, and, above all, a true and living religious sentiment, do more for the protection of the people than the death penalty.
  " Respectfully yours,
  " THOMAS C. UPHAM."
  He had only now to thank the House for the attention they had paid to a long and, he feared, tiresome speech, on a subject of great importance. He wanted, if he could, to purge the English statute book of its blood law, to improve and increase the security of society, and wipe away from the House and the country the danger and the fearful responsibility of shedding innocent blood. He wanted to make convictions more certain, and to make punishment follow more surely on crime; to save his right hon. Friend and the Home Office from the perpetual misery of having to decide on the guilt or innocence of a criminal, respecting whom the utmost exertions are used to save him from death; and
  856
  to bring our laws into greater conformity with the spirit and precept of Him, "who yet willeth not the death of a sinner, but rather that he should turn from his wickedness and live." The time would speedily come, when the scaffold would be gathered to its kindred —the rack, the thumb-screw, and the Scavenger's Daughter—
  "Luke's iron crown, and Damien's bed of fire,"
  and other relics of a regretted past abhorred of man and reprobate of Heaven.
  MR. E. N. FOWLERsaid, after the eloquent and exhaustive speech of his hon. Friend the Member for Northampton, he must ask the indulgence of the House in rising to support a cause which in former years had been advocated from these Benches by no less eminent a Member of the Conservative party than his right hon. and learned Friend the present Lord Chief Baron. He believed that the uncertainty of the punishment was a great reason for the increase of the crime. The relaxation of the law of capital punishments in this country had been found to work well. He had been deeply impressed, several years ago, by the account of a speech, given in the life of his illustrious father, Sir T. F. Buxton, by his hon. Friend the Member for East Surrey. Some fifty years ago Sir. T. F. Buxton brought the then state of the law, as regards capital punishment, before the House, and. mentioned that the linen bleachers had petitioned for an alteration in the capital punishment in regard to offences against them. Parliament acceded to the Petition in the spirit described by the poet—
  "Evertere domos totas optantibus ipsis,
  Dii faciles;"
  and the result was that the robbery of linen bleaching grounds had become extinct. He had been very much impressed with the circumstances mentioned in the book, and he had made inquiries as to what had been the result of capital punishment in other cases. At that time our law was written in letters of blood. He had a great veneration for the memory of Lord Eldon and Lord Ellenborough; but we must bear in mind that they lived at a period when public opinion was rendered reckless of life by a long European war. He had obtained statistics from the blue book, on capital punishment, which showed the percentage of convictions for certain crimes in

  857
  the ten years, from 1826 to 1835, when capital punishment was in full operation for all sorts of crimes, and the percentage of convictions in the ten years, from 1854 to 1863, when capital punishment was abolished in all cases except murder. In the first period, out of every 100 committals for forgery there were sixty-two convictions; for arson, twenty-five convictions out of every 100 committals: for rape, sixteen convictions; for assaults with intent, sixty-one convictions; and for sodomy, twenty-one convictions. In the latter period, from 1854 to 1863, the convictions for forgery were 80 per cent of the committals; for arson, 56 per cent; for rape, 39 per cent; for assaults with intent, 67 per cent; and for sodomy, 32 per cent. The percentage of convictions had also increased in the case of horse-stealing, sheep-stealing, and cattle-stealing. Those figures bore out the argument that where capital punishment was inflicted juries were very unwilling to convict, and that the certainty of punishment was much greater where death did not result. Another set of statistics showed the number of convictions and executions for wilful murder only in England and Wales since 1861, when attempted murder ceased to be a capital offence. In 1862, there were twenty-nine convictions and fifteen executions; in 1863, twenty-nine convictions and twenty-two executions; in 1864, thirty-two convictions and nineteen executions; in 1865, twenty convictions and eight executions; in 1866, twenty-six convictions and twelve executions; and in 1867, twenty-seven convictions and ten executions. The House would, therefore, not be surprised to find that, as only a small proportion of those sentenced to death were executed, the feeling among the criminal population was that for murder there was a very good chance of escaping punishment. Deterrence depended entirely on certainty of conviction and punishment, and the uncertainty which attached to the present state of the law as regarded both was, in fact, a great inducement to crime. Under the old law a great portion of the executions were for forgery. Now, as a banker, he belonged to a class deeply i interested in the suppression of forgery; but he fearlessly stated—and he would appeal to the hon. Member for Shaftesbury (Mr. Glyn) for confirmation—that
  858
  nothing would induce the banking community to return to the old law. He did not see the Governor of the Bank of England (Mr. Crawford) in his place, or he should confidently make a similar appeal to him. Some people connected with the Bank of England used at one time to boast that they had procured the execution of thirty persons per year for the forgery of £ 1 notes. They must all rejoice, however, that capital punishment in these cases had been abolished, and he was sure that no member of the mercantile community would wish to return to the old state of things. It was true that the old degrading exhibition of public executions had ceased to exist; but it was a mistake to suppose that executions had a deterrent effect, for he could quote the evidence of a chaplain of great experience in gaols, that out of some hundred cases in every instance, except four, in which a person was executed, that person had witnessed a public execution before committing his own crime. The statement that juries hesitated to convict was fully borne out by the number of cases in which they returned verdicts of acquittal; and that made the argument irresistible, that the present system had the very opposite effect to that which was intended. The operation of the Home Office in these cases demanded consideration; and here he wished to speak with the utmost respect of the right hon. Gentleman who had charge of the Department. He had not the honour of any private acquaintance with the right hon. Gentleman, nor had he the good fortune to be a member of the party of which the right hon. Gentleman was so distinguished an ornament. At the same time, he had been greatly impressed with the dignity, the courtesy, and the ability with which the right hon. Gentleman transacted the business of his Department in the House. He therefore hoped it would be understood that in blaming the system he meant no disrespect to the present Home Secretary, in whom he had as full confidence as he could have in any man in such matters. He might say the same of the right hon. Gentleman's three predecessors (Sir George Grey, Mr. Walpole, and Mr. G. Hardy). All four of these Gentlemen, apart from the question of party, had possessed the entire confidence of Parliament, and had carried

  859
  out their duties with singular ability. He wished it to be understood that, in finding fault with the system of the Home Office, he was still of opinion that there was no public man to whom its administration might be more safely delegated than the right hon. Gentleman who now filled the Office of Home Secretary. When the present law was passed, it was intended that when a man was publicly tried and convicted the sentence of the Judge should be carried out. But in consequence of the great change in public feeling, immediately a man was sentenced to death constant appeals were made to the Home Office, and his ultimate fate did not depend on a public tribunal, but on a secret and irresponsible one in the Home Office. He might instance the ease of Palmer, of Rugeley, the notorious poisoner, than whom a greater villain was not to be found in the history of crime. He was tried by three most learned and most eminent Judges; the trial was conducted by the most able men at the Bar—including the present Lord Chief Justice—it lasted for a fortnight; the prisoner was found guilty; public opinion endorsed that verdict; but from the day sentence was passed to the day of execution, the Home Secretary was persecuted by memorials on the ground that there was some uncertainty as to whether the scientific evidence could be relied on. It seemed to him most undesirable that the life of a human being should hang on the judgment of one man, however able he might be. The Home Secretary had to decide on evidence which was communicated to him, but which was frequently not known to the public; and the public were often left to wonder why it was that the Home Secretary reprieved one man and executed another; and in that way a most invidious duty was placed on the Home Secretary, which it was impossible that he could discharge with satisfaction to the public or to himself. It had been often argued that there was no sufficient punishment to substitute for capital punishment; and this argument had been put forward by the noble Lord the Member for King's Lynn (Lord Stanley); but he might cite the opinion of no less eminent an authority than Sir Walter Crofton, that imprisonment for life might take the place of the death penalty. The Capital Punishment Commission made several recommendations
  860
  in their Report on this subject; but only one of these recommendations— that for the carrying out of executions privately — had yet been acted upon. That was, no doubt, a most desirable and useful reform; but if capital punishment was to continue to be enforced, the other recommendations of the Royal Commissioners should also be carried out. On these grounds, because he believed that capital punishment led to uncertainty of conviction; because he objected to place the life of a human being in the hands of a secret and irresponsible tribunal; he gave his cordial and earnest support to this Bill, the second reading of which he had the honour to second.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Gilpin.)
  MR. J. D. LEWIS MR. J. D. LEWIS, in moving that the Bill be read a second time this day three months, said, the question was one which had occupied his anxious attention for some years, and he was glad to hear his hon. Friend the Member for Northampton (Mr. Grilpin) base his Motion on the only practical and intelligible ground on which it could be based—that the abolition of capital punishment would diminish the number of murders and prevent crime. There were two main points for consideration. First, was there an unwillingness on the part of juries to convict? If so, that was tantamount to saying that death punishment was inconsistent with the public feeling on the subject, and then unquestionably they ought to accede to the second reading of this Bill. The other question was, what had been the result of the change in the law now advocated where it had occurred in countries resembling, in some degree, our own? He agreed with his hon. Friend in stating that he would not take the opinion of a Judge as to the advisability of doing away with capital punishment, for the Judge's opinion on such a point would be no better than that of any other man; but the opinion of a Judge was entitled to some weight on the question as to whether there was any difficulty in getting a jury to convict in murder cases. Five Judges were examined before the Commissioners, and they all bore testimony to the fact that there was no difficulty in getting convictions in murder cases. Those Judges were Lord Wensleydale, Lord

  861
  Cranworth, Baron Martin, Baron Bramwell, and Justice Willes, and Lord Cranworth was the only one who remembered a single case in his experience in which a jury had acquitted a prisoner on account of their objection to capital punishment. The legal authorities who supported an opposite view on this point before the Commissioners were mainly two — the hon. and learned Member for Tiverton (Mr. Denman) and Sir FitzEoy Kelly,' and Sir FitzRoy Kelly had only been engaged in one murder case in the whole course of his life. The balance of evidence was therefore very strongly in favour of juries being willing to convict. As to the second point, he had received a circular from the Society for Promoting the Abolition of Capital Punishment, giving the results of the abolition of capital punishment in other countries; but it was remarkable that Tuscany was not mentioned in the document. In Tuscany capital punishment had been abolished for some years, and it had been followed by a large increase in the crime of murder, and especially in eases of murder committed for the mere sake of plunder. He could cite the case of a Swiss canton — Neuchâtel — in which capital punishment was abolished, where nineteen murders occurred in the fifteen years preceding the change, the average population of the canton being 90,000; and forty-five murders took place in the fifteen years succeeding the change, the average population being 100,000. That certainly was not an encouragement to proceed in the direction of doing away with the punishment of death. Crossing the Atlantic, he quite admitted that this punishment had been successfully abolished in one or two States; but the condition of society in those States ought to be borne in mind in connection with the fact of the abolition of death, for it was of material importance. What was that condition? Why, it was the custom to appoint what were called "vigilance committees," who strung up, without trial, murderers, garotters, and rowdies, in order to deter others from following criminal pursuits. If such a state of society existed in this country, and the citizens of London had the power of executing summary punishment upon the pests of humanity, the passing of such a Bill as that under discussion
  862
  would not be a matter of such importance. But if the present law were repealed, he believed one of the greatest deterrents to crime would be removed. When he was travelling in Rhode Island, a schoolmaster committed some misbehaviour in regard to a young girl who was one of his pupils, whereupon her father and brother went out armed with firearms, with the avowed intention of shooting him if they could find him. He was assured that if they killed him they would not be brought to trial for the murder. It was therefore not a good argument to point to it and to the United States, where such customs prevailed, as favourable examples of the good resulting from the abolition of capital punishment. He believed that the abolition of that punishment would not only remove a great deterrent of crime, but it would also operate most unfavourably in another direction. Men who had committed murder might possibly reform during their imprisonment, and a strong cry and agitation would be got up against the cruelty of keeping a man incarcerated for a lifetime. The consequence would be that persons like Hush, Manning, Greenacre, and others, would be met walking about the streets of London as reformed characters. He, for one, should strongly object to be a resident in any place where such characters went about at large. He was not adverse to the carrying out of the recommendations of the Commission of 1865–6; but he altogether objected to the Bill as it stood. If it were carried, a corresponding change would have to be made in the scale of all punishments. It would never be tolerated that a ticket-of-leave man who broke into a house and stole the plate, but without doing any personal violence to any one, should be sentenced to penal servitude for life, while another man who committed a burglary, in which he had cut the throats of a man and his wife, and perhaps, in addition, thrown the maid-servant over the balusters, was sentenced to the same punishment. No young Member of that House would willingly choose such a subject for his first speech; and he could assure the House that it was only from a sense of duty he now moved that this Bill be read a second time that day three months.
  MR. TIPPING,MR. TIPPING, in seconding the Amendment, said, to his mind the real

  863
  practical question which they had to consider was, whether in highly populous countries there was or was not a certain incorrigible class whom nothing but the punishment of death would deter from the commission of murder. If there were such a class—and it seemed to him that there was—he thought capital punishment ought not to be abolished. He did not believe that criminals had a greater horror of penal servitude for life than of death. Numberless cases that had actually occurred could be quoted to the contrary. At the same time, the more we could narrow and confine that punishment to the class of premeditated and cold-blooded murders the better. The crime of murder required further and more precise definition; but capital punishment was the specific and natural preventive of cold-blooded and premeditated murders. He feared that the reluctance of juries to find a prisoner guilty of murder under the present state of the law was a proof of the enervating and emasculating tendency of the day. The jury took an oath to give a verdict according to the evidence, and the result of their verdict was nothing to them, seeing that they were not responsible for the laws. With respect to the argument that forgery had decreased since the abolition of capital punishment for that offence, he thought the decrease was due rather to the improved means of detection since the days of Fauntleroy than to the alteration in the punishment. He, for one, was not prepared to destroy the musical scale of finality in punishment, by depriving it of its great and final note. As he did not believe that capital punishment either led or induced to crime, he should oppose the Bill.
  Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. J. D. Lewis.)
  MR. SERJEANT SIMONdenied that the question of abolishing capital punishment was only mooted by the Society of Friends. It had extended far beyond that respectable body, and now found advocates amongst the members of every religious denomination and of every shade of political opinion. The feeling against capital punishment was a growing feeling, and the question was one of juridical science, with which the Legislature would have to deal on high
  864
  moral as well as practical considerations. The great object of punishment was stated by all philosophical jurists to be —first, the correction of the offender; and, secondly, to deter others from committing the offence. It could not be denied that capital punishment failed in the first object, because you could not correct a man by putting him to death. In the second place, capital punishment was not a deterrent against murder. Human life seemed to him so sacred that the State was not justified in taking it away unless an overwhelming case were made out for its necessity; and he did not believe that such a necessity existed. One of his great objections to capital punishment was, that if they made a mistake they could not undo it, they could not make atonement to the sufferer. He could enjoy even the solace of knowing that the stain had been wiped away from his name, and that the infamy of the sentence had been removed. Another objection was the uncertainty of the punishment, for the deterrent effect of any punishment depended much more upon its certainty than upon its severity. Some persons disbelieved in. the unwillingness of juries to convict; but his own experience caused him to differ from that opinion. Those who attended the criminal trials must recollect how in cases of murder, owing to the nature of the punishment, the most solemn appeals were made by the counsel for the prisoners to the juries, and how those appeals shook the feelings and judgment of the strongest men. When certain death was the consequence of their verdict juries were cautious—indeed, more than cautious— in pronouncing it. How could his hon. Friend distinguish bad cases of murder from other cases. He supposed he referred to murders of unusual atrocity; but was it not equally atrocious, for example, for a woman during a series of months to administer slow poison to her husband? Juries were often influenced by the consideration that the criminal was a woman, and yet no case could be more hideous than such a case of slow poisoning. When reference was made to the effects resulting from the abolition of capital punishment in foreign countries it should be remembered that there, as in this country, in cases where capital punishment was abolished, there was apparently an

  865
  increase of crime, because the convictions were more numerous. He should not object to see a reformed criminal walking the streets, and such an expectation should, in his opinion, be an additional reason for supporting the Bill. Another objection he had, it might be said, was of a religious character. People believed in a future state, and were taught that their lives should be spent in preparing to meet death as a joyful passage to eternity. The punishment of death set that principle at nought; it stamped death as a terrible punishment, as a degrading and infamous thing, and surrounded with every circumstance of shame and contempt. His hon. Friend who had moved the Amendment (Mr. J. D. Lewis) stated that the Legislature could not persist in outraging public feeling by keeping any man in prison for life; but he differed from his hon. Friend upon that point. He believed that society would be anything but hostile to the perpetual imprisonment of a man who had committed an atrocious murder. His own belief was that the time had gone by for the preservation of capital punishment, which seemed to partake more of the character of retribution than of what should be the true motive of the State in inflicting punishment. Believing, as the result of personal experience, that capital punishment did not act any more as a deterrent than a secondary punishment would do; that it led to great uncertainty, and induced hope of escape in the criminal; and that it placed the Home Secretary very often in positions of great difficulty and uncertainty, making him the arbiter between life and death, he thought it would be a change for the better if it were abolished altogether.
  MR. SCOURFIELDdissented from the proposition that the first object of punishment was the reformation of the offender.
  MR. SERJEANT SIMONsaid, he had explained that there were two primary objects of punishment as laid down by the highest legal authorities—first, the correction of the offender; and next, the deterring example.
  MR. SCOURFIELDsaid, that anyone who had ever had occasion to sentence a prisoner to imprisonment must have felt, in doing so, that there was very little chance of the criminal being
  866
  reformed, though he knew that during the period of incarceration society would be safe. Two questions had been mixed up in this discussion which ought to be kept perfectly distinct — one was the question of capital punishment, and the other was the action of the Home Office. As regarded the functions of the Home Secretary, that subject had been treated some years ago in so exhaustive a manner by the late Sir George Lewis, that he felt it unnecessary to do more than refer hon. Members to that speech, which he always regretted had not been published in a separate form. As to the sentence of death, it was said by hon. Members that it admitted of no reversal. But what sentence was it possible to pass without producing consequences which it was impossible to reverse? Some of the punishments which had been suggested as substitutes for the penalty of death could never practically be carried out. With all the horror that he entertained of taking human life, he would far rather sentence a person to death than to perpetual solitary imprisonment; for while you had no right, according to some, to divorce the soul from the human body, you had still less right to debase the soul and reduce a human being to the level of a brute. Whatever system might be adopted, it would always be necessary, he thought, to keep on foot the punishment of death to meet cases of the highest atrocity. It must be remembered that we lived in a sensational age, when our sympathies were liable to be strongly excited by passing events, and when great virtues and great vices equally caught hold of the public mind. A man in a comparatively humble position, struggling hard to pay his debts and to overcome difficulties, attracted little attention, and passed away very often with few to assist him. But a man who was guilty of fraud on a gigantic scale, or who committed a murder under picturesque circumstances, was apt to become an object of sympathy on the part of the public, who frequently laid more stress on the sanctity of human life where the murderer was concerned than in the case of the person whom he had murdered. He had been much struck some years ago by an article in the Edinburgh Review, which contained a quotation from the pages of a French author to this effect:—"By all means let capital punishment be abo-

  867
  lished; let reverence for human life be observed, but"—to use the French expression—"Que messieurs les assassins commencent."
  MR. HIBBERTsupported the Amendment, though not because he was satisfied with the present state of the law. While cases of brutality and atrocity were so frequent, and when so much carelessness of human life was exhibited, he was not prepared to vote for the abolition of capital punishment. Some alteration of the law was necessary; but they ought to proceed gradually to limit the operation of capital punishment. Had there been opportunity on the previous evening it was his intention, therefore, to have given notice of the following Amendment:—
  "That it is not desirable to proceed with the second reading of this Bill till the recommendations of the Capital Punishment Commission in reference to the punishment of murder have been further considered by Parliament."
  The Commissioners had paid very great attention to this subject, and when the position and character of those Commissioners—including the noble Lord the Member for King's Lynn (Lord Stanley), and the right hon. Gentleman at the head of the Board of Trade—were considered, the greatest weight must be attached to their conclusions. The Commissioners held that a change was necessary in the definition of murder, and one of the alternatives suggested by them was that there should be two classes of murder, and that the punishment of death should be applicable only to those of the first degree, where murder was committed with malice aforethought, while in other cases there should be punishment by penal servitude for life. If such a proposition were carried into law it would get rid of many of the cases of uncertainty referred to in the debate; it would relieve juries of much trouble, and the Home Secretary of some of the most difficult business he had to perform. He wished to narrow into a small compass the cases in which capital punishment should be inflicted. As to the punishment of penal servitude for life, there was now no penal servitude for life which was carried out for life. There was almost a certainty of a man so convicted being remitted out on leave at the end of twenty years. Were hon. Members prepared to establish a state of things in which every man who had committed a murder should be
  868
  loosed upon society at the expiration of such a period? It was quite possible, however, to establish in some secluded part of the country a prison where criminals could be kept for life; in Belgium, and one or two other foreign countries, prisons existed where men had been detained for twenty-five or even thirty years without detriment to their health. He believed, with the late Sir Samuel Romilly, that public security did require the retention of the punishment of death. He sympathized in the desire of his hon. Friend to humanize the law, and should be ready to assist him, and he thought much progress had been made in public feeling on this subject. He trusted that his right hon. Friend at the Home Office would give some promise that he would undertake to legislate on the recommendations of the Capital Punishment Commissioners, or otherwise carry out some plan for altering the definition of the law of murder.
  MR. BRUCEsaid, he felt sure the House would agree with him that his hon. Friend the Member for Northampton (Mr. Grilpin) had no need to make any apology. All who heard the speech would admit that it was powerful and eloquent, and that it had in it the best of all the ingredients of eloquence —that of earnestness. In opposing the Motion upon the second reading, he was not about to do so on the ground that the present law was perfect or in a satisfactory state; the arguments which had been adduced by various speakers, whether they supported or opposed the Bill, were conclusive upon that point. What were the facts with regard to the sentence of death for murder? During the last six years, apart from the present year, 155 sentences of death were pronounced, of which only eighty-two were executed. Of there mining seventy-three, but twenty were cases of infanticide; there were, accordingly, fifty-three cases in which the punishment of death was remitted, or exchanged for some other punishment. Forty-four of these were sentenced to penal servitude for life, one for fifteen years, one for ten years, one for one year, four were pardoned, one became a lunatic after his sentence and before the time came for execution, and one committed suicide who would otherwise have suffered. It was impossible to assert that this was a proper or satisfactory state of things,

  869
  and he would undertake to say that the law could not exist at all were it not for the large discretionary power intrusted to the Home Secretary, which devolved upon him duties, not only of the most difficult, but of the most painful character. It was hard, for instance, to justify the continued existence of a law under which it was not merely in the power, but became absolutely the duty of the Secretary of State to remit sentences of death solemnly passed by a Judge after verdict found by the jury. In accordance with long tradition in his Office, it was the duty of the Home Secretary to remit the extreme sentence in all cases of infanticide. Another custom which had grown to be invariable—at least he had not been able to find a single exception— was that no sentence of death was ever inflicted in a case where, in the opinion of the Judge, it ought not to be inflicted. Everybody acquainted with the subject must be aware that after every Assize there were Judges who hastened to inform the Home Secretary that although, according to the definition of law, the jury had been light in finding the prisoner guilty of murder, and although the Judge was himself bound to pass sentence of death, yet, in his opinion, that sentence ought not to be carried into execution. Then no inconsiderable number of cases arose where the Judge passed sentence of death, himself disagreeing with the jury. In the two latter classes of cases, the Home Secretary, whether he agreed with the opinion of the Judge or not, was bound, according to the practice, to abandon his own opinion and act upon that of the Judge—morally bound, he meant, of course, for there was no legal obligation resting upon him beyond the precedents invariably recognized by his predecessors. A third class of cases, extremely difficult to deal with, and exposing the holder of the Office to comments, harsh and very frequently unjust, was when fresh evidence arose after the conviction of the offender; and he must say that, in his opinion, this was the weakest part of our present system, and one deserving the most serious consideration of the Legislature. The case was that of a very poor class of persons, who either were unable to obtain legal assistance, or, from their position or perhaps from their previous character, excited but little sympathy in the neighbour-
  870
  hood, and facts which might have told in their favour were not brought out till the consciences of those acquainted with those facts were aroused by the impending death of the convicts. Cases such as these were by no means infrequent. In his short experience he had already had two or three signal instances in which evidence of the most undoubted importance had been kept back, either from want of means on the part of the prisoner to have his case properly investigated, or from want of interest on the part of those by whom the evidence could be given. One of the first cases he had to adjudicate upon was that of the convict Bisgrove, the circumstances of the murder being such as in themselves to excite suspicion of insanity. Without any quarrel, or object to gain, he dashed out the brains of a sleeping man, and then went to sleep beside him. On being awakened and told of the murder he went off into a fit, and during the trial he again went into a fit. No evidence was adduced before the Court as to the previous life of this unhappy man; but after sentence had been passed the conscience of the neighbourhood was aroused, and information was given which led to a discovery of what the facts really were—namely, that for three years he had been subject to fits of epilepsy, and, while quite peaceable at other times, under the influence of these he was dangerous, so much so that he had been dismissed from one employment. With a knowledge of these facts, it was impossible to allow the sentence of death to be carried out, and the result of two medical examinations since instituted at different places, and conducted by most competent persons, established that the prisoner was actually insane. These facts showed that there were defects in our law requiring serious consideration, and the application of legislative remedies. His hon. Friend the Member for Oldham (Mr. Hibbert) suggested the proper answer to this Bill when he invited him to give, on the part of the Government, an undertaking that an attempt would be made to improve the existing state of the law in the manner indicated by the Report of the Royal Commission. He would, however, remind his hon. Friend that the Government of Earl Russell, through their Lord Chancellor (Lord Cranworth), introduced and carried a Bill through the

  871
  House of Lords upon this subject; and that, after the change of Government, their successors, not unmindful of their obligations, took up the measure. In consequence, however, of the many imperfections which were pointed out, his right hon. Friend the Member for Cambridge (Mr. Walpole) withdrew the Bill. And it was within his own knowledge that in the succeeding year another Bill was drawn by the counsel to the Home Office, in which he endeavoured to meet the difficulties raised upon the discussion of the former Bill; but the Bill was not presented, as its provisions did not appear to the Home Secretary fully to meet the objections. His hon. Friend had referred to the recommendations of the Royal Commission; but many of those recommendations had been attacked by some of the ablest writers on Criminal Law, and his own opinion was that, if legislation were possible, as he believed it to be, they must not follow too closely the recommendations of the Royal Commission. As to the measure advocated by his hon. Friend the Member for Northampton (Mr. Gilpin), he must say that neither in his executive nor in his individual capacity was he prepared to adopt the suggestion that in all cases the punishment of death ought to be done away with. He believed the punishment of death to be a very powerful deterrent;; and, to say that it did not deter all criminals was no answer whatever, for the same remark might be made of punishments of any and of every kind. Those best acquainted with the criminal classes were of opinion that there were very many of them upon whom the punishment of death exercised a very powerful influence, and who were prevented by the fear of death alone from committing the most atrocious crimes. Of this they had a very strong instance, indeed, in the sister country. He had been repeatedly told, during the late discussions on agrarian outrages in Ireland, that if it were possible to detect one man and punish him with death, these outrages would cease, such having been the experience on former occasions. The facts mentioned in the present discussion with regard to the application of Lynch Law afforded another proof of the deterring effect of capital punishment, though inflicted in a lawless way. It was easy to believe that, if a whole population were well educated and living
  872
  under the influence of a healthy public opinion, capital punishment might be abrogated without danger. But he was sorry to say we had in all our large cities a certain number of degraded and lawless individuals. It was a fact to be mentioned with shame; but the fact itself was beyond all question, that the tendencies of this class were only kept in check by fear of the most severe punishments. He admitted that public opinion was divided on the subject of capital punishment, and, perhaps, on the whole, the opinion against it was growing. But if there were many cases of persons who had committed atrocious crimes escaping with what would appear to be a light or insufficient penalty, public opinion, he believed, would very soon undergo a change. The hon. Member for Pembrokeshire (Mr. Scourfield) was correct in saying that the punishment of solitary confinement could not be carried beyond a certain extent without endangering the reason of the prisoner; and he understood that the period beyond which that punishment could not safely be continued was about two years. It had been found impossible to retain an effective hold over the conduct of the prisoner when the element of hope was excluded. Under these circumstances, he could not support the second reading of this Bill. His own opinion was, that the action of the Home Office was very much in accordance with the legislation that the majority of Members would wish to see in action. The only sufferer under the present system was the Home Secretary, upon whom it imposed an immense amount of labour and. anxiety. He could not agree with those hon. Members who thought they saw a startling discrepancy between the decisions of different Home Secretaries, or even of the same Home Secretary; and he thought that their belief was founded upon a want of minute knowledge of the details of each individual case upon which their theory was founded. He gladly availed himself of that opportunity to vindicate the right hon. Gentleman the Member for Morpeth (Sir George Grey) from charges that had been made with reference to the decision at which he arrived in the cases of Wright and Hall. Wright had formed an illicit connection with a woman with whom he was living, and he seized a weapon and applied it to

  873
  such a part of her body as showed that he intended to kill her, and the law not recognizing the provocation, the crime was held to be deliberate murder. His right hon. Friend was, in this case, of opinion that, under the circumstances, the law should take effect. As to Hall, he murdered a young woman who, a few days after his marriage, deserted him. He met her in company with the man she had gone to live with, and they both jeered and laughed at him. At her father's house he appealed to her to return to him, promising to pardon all that had occurred, but she refused to return. He then provided himself with a pistol, invited her to take a walk, and deliberately shot her. It was trues that in this case there had been a certain amount of premeditation; but, at the same time, there had been intense provocation, and the feeling in Birmingham in favour of the prisoner was so great that the right hon. Gentleman found it to be quite impossible to allow the sentence of the law to be carried into effect. In Winsor's case, again, although the enormity of the offence was undoubted, still the sentence having been postponed for six months in order that important questions of law might be determined, the right hon. Gentleman had thought that it would not be right, after that lapse of time, to permit the prisoner to be executed. It had been suggested that the right hon. Gentleman had left Wright for execution in consequence of having been waited upon by a deputation of 2,000 working men, and because he was afraid that it would be supposed that he had yielded to a menace; but having been Under Secretary for the Home Department at that time, he could state that the right hon. Gentleman had not been influenced by any such unworthy motives. He had indicated, to the best of his ability, what he regarded as being the defects of the present system. He quite agreed that the letter of the law should be brought, as far as possible, into harmony with its practice, and that it was a grave fact that there should be such a discrepancy between the number of persons sentenced to death and those who were executed, as introducing the element of uncertainty; and he also was of opinion that measures should be taken to insure the fullest means of defence to the prisoner. But having said that, he was not prepared to go further; he was
  874
  not prepared to say that in no case where the fact of desperate and intentional murder had been clearly proved, the punishment of death should not be inflicted. Where the present law had failed was in consequence of a laxity in the rules, by which the crime of murder was denned. Juries, for instance, having refused, against the opinion of the Judge, to convict in cases where the prisoners were drunk at the time of committing the murder. The hon. Member had pointed to those cases as indicating a disposition on the part of juries to shrink from convicting in cases where the offence was punishable capitally; but, in his opinion, it merely showed that the juries were inclined to exercise their own judgment as to what constituted wilful murder. Believing the law to be just in itself, and in accordance with the opinion of the great majority of people in the country; and believing, also, that it would not be safe to abolish capital punishment, he could not support the second reading of the Bill.
  MR. HADFIELDasked the House to consider whether the crime of murder had increased or decreased; or, in other words, whether the punishment of death had a deterrent effect. The few executions proportionately to the number of sentences showed that there was something wrong in the present state of things. Practically, now, only murder was punished with death, in consequence merely of the discretion exercised at the Home Office, and without any sanction by Parliament. There was now scarcely any case of hanging for infanticide, and as to treason, there would have been no conviction for that crime after the late Fenian disturbances in Ireland if the punishment of disembowelling and quartering was to be inflicted. The softening of the law had been fruitful in diminishing crime; and even if public opinion were at present not advanced to the point of abolishing capital punishment, he had no doubt that it soon would be.
  MR. GILPIN,MR. GILPIN, in reply, disavowed any intention to speak disrespectfully of the late Home Secretary (Sir George Grey); no man had greater reason to speak with the highest respect of the ready and careful consideration which that right hon. Gentleman gave to every case that was brought before him; but his object had been only to show that

  875
  in the case of a rich man there was more power of bringing evidence forward than there was in the case of a poor man. The Home Secretary said that Wright had received only slight provocation; but that provocation was that an infuriate woman dragged him out of bed by the hair of his head. The right hon. Gentleman had also said much as to the deterrent effects of this punishment. In answer to this he would only quote the Rev. John Jessop, who had been ten years chaplain of Horse-monger Lane Gaol. In reply to a question by the Duke of Richmond, he stated—
  "The number of prisoners who come under my observation is very much larger than the number in Newgate."
  In 1863 there were committed to Newgate 1,770 prisoners, and to Horse-monger Lane 3,798 prisoners, being 2,028 more than to the former. During the past ten years twenty-eight persons have been committed to Horsemonger Lane Gaol for murder. Mr. Neate, M.P., then asked Mr. Jessop—
  "From your intercourse with the criminal classes, are you not disposed to think that they are not much deterred by capital punishment?"
  He replied—
  "I do not think that they are deterred to any appreciable extent. I think that an injury is inflicted upon society by capital punishment, inasmuch as it deteriorates the moral sense of the masses. I think that it brutalizes them."
  In answer to questions put by Mr. Waddington, Under Secretary of the Home Office, Mr. Jessop expressed his opinion that penal servitude for life would be, at least, as deterrent as capital punishment to those persons who give any thought to the consequences of their crime; that the majority of the offenders take no thought of the consequences, but reckon upon entire impunity, and that '' the great uncertainty renders them entirely reckless." He disputed the statement of his hon. Friend (Mr. Lewis) as to the experience of Tuscany, and reminded him that the Minister of State had been interrogated by a Member who had challenged his statistics, and had admitted errors in them. The Home Secretary, in admitting that Charlotte Winsor could not be executed because six months had elapsed since her trial, had passed as great a censure upon the law as he could do himself. He should certainly divide the House upon the question.
  MR. HENLEYsaid, he did not think
  876
  that there was any man who in the early part of his life had stronger opinions upon this subject than he had. That opinion was very much created by the expressions of Judges and others, who at that time expressed strong opinions on the subject; but he had watched for a very lengthened period the administration of the law, and he could not resist the logical conclusions from the facts. The Secretary of State for the Home Department had said that, in his opinion, the law was deterrent; and because it was not deterrent in all cases that was no reason why it was not in some. No doubt this was sound reasoning; but when he looked at the whole class of crimes from which the punishment of death had been removed, and was unable to find any increase in this class of crimes over murder, for which the punishment had been retained, he could not bring himself to believe that capital punishment had that deterrent effect that some persons believed it had. The opinions of the Judges and the police were entitled to the greatest weight; but they did not weigh with him against facts. They had now before them the facts of more than thirty years, and he did not think that any one who looked carefully into those facts could maintain that the crimes from which the penalty of death had been removed had thereby increased. As to the crime of rape, perhaps some persons might come to a contrary opinion; but it must be recollected that at the time of the remission of the penalty the evidence that was necessary to prove the crime was materially changed, and that what was previously very difficult to prove had now become comparatively easy. Another matter was this, that as to murder, out of every three persons accused only one was convicted, whilst of all the other classes of crime where three were accused two were convicted. This weighed heavily on his mind, for he believed that if criminals ever calculated at all in reference to punishment the escape from conviction must be a great element of consideration. As to any future dallying with the definition of the law of murder, he was not sanguine that anything could be done in that matter. He must confess that what had been thrown out on that point rather strengthened the conviction of his mind that the simple way of dealing with the difficulty was to get rid of capital punish-

  877
  ment altogether. He looked upon this Bill more as an expression of opinion by certain Members in that House, than as a measure at all likely to be enacted, because, at that late period of the Session, it was utterly impossible to believe that it could be passed into a law. After the most mature reflection he had come to the opinion that capital punishment might be safely abolished, and he would therefore vote for the second reading, if the hon. Gentleman opposite (Mr. Gilpin) called for a division upon his Motion.
  MR. W. M. TORRENSsaid, he thought that the supporters of the principle of this Bill ought to feel thankful to the right hon. Gentleman for the speech he had just made. Surely they had a right to triumph in the adhesion of the right hon. Gentleman, whose long standing in that House and superior judgment upon all matters that came before it rendered the opinions he had just expressed extremely valuable to the advocates of the present Bill—opinions which he did not shrink from avowing, after his long experience of political life, upon the inexorable logic of facts.
  Question put, ''That the word 'now' stand part of the Question."
  The House divided:—Ayes 58; Noes 118: Majority 60.

  AYES.

  Anderson, G.

  Lusk, A.

  Armitstead, G.

  Mackintosh, E. W.

  Blake, J. A.

  M'Laren, D.

  Bowring, E. A.

  Maguire, J. F.

  Brady, J.

  Melly, G.

  Brewer, Dr.

  Miall, E.

  Bright, J.(Manchester)

  Morley, S.

  Brown, A. H.

  Mundella, A. J.

  Candlish, J.

  Palmer, J. H.

  Carter, Mr. Ald.

  Parker, C. S.

  Cowen, J.

  Philips, R. N.

  Craufurd, E. H. J.

  Potter, E.

  Dalrymple, D.

  Reed, C.

  Delahunty, J.

  Robertson, D.

  Dixon, G.

  Rylands, P.

  Downing, M'C.

  Salomons, Mr. Ald.

  Fawcett, H.

  Salt, T.

  Fitzmaurice, Lord E.

  Shaw, R.

  Fletcher, I.

  Simon, Mr. Serjeant

  Fordyce, W. D.

  Smith, E.

  Graham, W.

  Stacpoole, W.

  Gray, Sir J.

  Stapleton, J.

  Hadfield, G.

  Tite, Sir W.

  Henley, rt. hon. J. W.

  Torrens, W. T. M'C.

  Holms, J.

  Villiers, rt. hon. C. P.

  Illingworth, A.

  Wright, Colonel

  Johnston, A.

  Young, A. W.

  Laslett, W.

  Lawson, Sir W.

  TELLERS.

  Leatham, E, A.

  Gilpin, C.

  Lush, Dr.

  Fowler, R, N.

  878

  NOES.

  Adam, W. P.

  Hibbert, J. T.

  Adderley, rt. hn. Sir C. B.

  Hill, A. S.

  Akroyd, E.

  Hodgson, W. N.

  Allen, W. S.

  Holford, R. S.

  Amphlett, R. P.

  Hope, A. J. B. B.

  Arkwright, A. P.

  Hoskyns, C. Wren-

  Assheton, R.

  Kinnaird, hon. A. F.

  Ayrton, A. S.

  Laird. J.

  Aytoun, R. S.

  Lambert, N. G.

  Ball, J. T.

  Langton, W. H. P. G.

  Harrington, Viscount

  Lawrence, W.

  Baxter, W. E.

  Loch, G.

  Bolckow, H. W. F.

  Lowther, W.

  Briscoe, J. I.

  M'Lagan, P.

  Brodrick, hon. W.

  Maitland, Mr A. C. R. G.

  Bruce, rt. hon. H. A.

  Matheson, A.

  Campbell, H.

  Mellor, T. W.

  Card well, rt. hon. E.

  Meyrick, T.

  Carnegie, hon. C.

  Milles, hon. G. W.

  Cartwright, F.

  Moncreiff, rt. hon. J.

  Cawley, C. E.

  Monk, C. J.

  Cecil, Lord E. H. B. G.

  Montgomery, Sir G. G.

  Chambers, M.

  Mowbray, rt. hon. J. R.

  Cholmeley, Sir M.

  Neville-Grenville, R.

  Colebrooke, Sir T. E.

  Nicol, J. D.

  Collins, T.

  Noel, Hon. G. J.

  Corrance, F. S.

  Ogilvy, Sir J.

  Craw lord, R. W.

  Otway, A. J.

  Cubitt, G.

  Patten, rt. hon. Col. W.

  Dalrymple, C.

  Peel, A. W.

  Davie, Sir H. R. F.

  Phipps, C. P.

  Denison, E.

  Powell, W.

  Dickinson, S. S.

  Raikes, H. C.

  Dimsdale, R.

  Read, C. S.

  Dodds, J.

  Russell, A.

  Dodson, J. G.

  Scott, Sir W.

  Duff, M. E.G.

  Selwin - Ibbetson, Sir

  Edwardes, hon. Col. W.

  H. J.

  Elphinstone, Sir J. D. H.

  Sidebottom, J.

  Enfield, Viscount

  Smith, W. H.

  Erskine, Vice-Ad. J. E.

  Starkie, J. P. C.

  Ewing, A. O.

  Stepney, Colonel

  Eykyn, R.

  Sturt, Lt. Col. N.

  Feilden, H. M.

  Sykes, Col. W. H.

  Fellowes, E.

  Talbot, J. G.

  Figgins, J.

  Taylor, rt. hon. Col.

  Finnie, W.

  Tollemache, J.

  French, rt. hon. Col.

  Walker, Major G. G.

  Garlies, Lord

  Wedderburn, Sir D.

  Glyn, G. G.

  Welby, W. E.

  Gore, J. R. O.

  Wheelhouse, W. S. J.

  Goschen, rt. hon. G. J.

  Williams, W.

  Gourley, E. T.

  Wilmot, H.

  Grant, Colonel hon. J.

  Winterbotham, H. S. P.

  Gray, Lieut.-Colonel

  Wise, H. C.

  Greaves, E.

  Wynn, C. W. W.

  Grieve, J. J.

  Young, G.

  Gurney, rt. hon. R.

  Hamilton, J. G. C.

  TELLERS.

  Hay, Sir J. C. D.

  Lewis, J. D.

  Henley, Lord

  Tipping, W.

  Words added.
  Main Question, as amended, put, and agreed to.
  Bill put off for three months.

GAME LAWS (SCOTLAND) BILL.

  LORD ELCHO.
  (Lord Elcho, Sir Graham Montgomery.)
  [BILL 36.] SECOND READING.
  Order for Second Reading read.
  LORD ELCHO,LORD ELCHO, in rising to move that the Bill be now read a second time, said, that as, at this late period of the Session, it was hopeless to expect that it should pass into law during the present Session, he should conclude by withdrawing it. He wished, however, in the first place, to make a few observations upon the subject. Three Bills had been introduced into the House during the Session; the first, introduced by himself in the Session of 1867, had formed the basis of the legislation recommended by the Select Committee, to whom a similar Bill had been referred; the second, by the hon. Member for Linlithgow, whose Bill had also been referred during the same Session to a Select Committee, who had not adopted it as the basis of the legislation they proposed; and the third, by the hon. Member for the Wick Burghs, which rendered valid all agreements respecting game which tenants and their landlords might think fit to enter into. There was no hope of any one of these Bills becoming law; and seeing that to be the case, the hon. and learned Member for Wick (Mr. Loch) gave notice for the appointment of a Committee to inquire into the subject. The principle of inquiry appeared to have been admitted on all hands. The only question seemed to have been as to the form the inquiry should take. His hon. and gallant Friend the Member for Portsmouth (Sir James Elphinstone) proposed, as an Amendment to the Motion of the hon. and learned Member for Wick, that the inquiry should be by a Commission, and not by a Committee. He therefore hoped that the Government would not attempt legislation on the subject until there had been an inquiry. His hon. and gallant Friend the Member for Portsmouth, who was in the habit of speaking his mind in plain terms, had said, on a former occasion, that this Scotch Game question was one of the greatest impostures of the day. The question had been made a stalking-horse at Scotch elections. He did not pretend to say that there were not cases in Scotland of excessive game preservation; but he be-
  880
  lieved they were few. They could not legislate generally for occasional abuse in the agricultural districts. Such abuse was no reason why they should abolish the whole of the Game Laws where game was a most valuable description of property, and where it did no injury to tenants. He maintained that even in the rural districts the cases of over-preservation of game were few in number, and they certainly ought not to legislate without having all the facts before them. As regarded hares, he knew that in his own county there was only one hare now for ten that existed when he was a boy. Unquestionably there were one or two cases of great abuse of excessive preservation—of excessive sale of game —which had given a bad name to game preserving, and he admitted that a stop ought to be put to such an evil either by legislation or by public opinion; but what he asked for was an inquiry which should extend to England as well as to Scotland. He confessed, however, that he had not much confidence in the action of the Government in this matter, seeing what they had done in the cases of the Annuity Tax and the Law of Hypothec. It appeared—with respect to Scotch measures, at all events—that the Government were ready to vote for the second reading of Bills which they did not approve. He believed the reason of this to be a disinclination, on the part of the Government, to do anything which might be displeasing to any portion of their good Scotch majority. Only yesterday Scotch Members, in their appeal to the Government on the Parochial Schools Bill, said, in effect—"We supported you thick and thin during the debates on the Irish Church Bill; won't you, then, in return, do as much for us?" This question of the Game Laws had been made a hustings question in Scotland. It had been made a shibboleth at the elections; and when he observed the tone taken by hon. Members on this subject, he could not help thinking that their feelings must be that they had only to open their mouth wide enough, and the Government was sure to grant what they asked for without inquiry. He regretted that there should be any thought of agitation on this question without inquiry. He believed public opinion to be against the excessive preservation of game; and he believed that if the landlords would let

  881
  their tenants shoot hares and rabbits they would still have as much game as they would care to shoot. This was a very wide question. He was prepared for a change in the law; but he was not prepared to go the length of the hon. Member for the Wick Burghs, and say that when one man had got something to sell, and another man wanted to buy it, the Legislature should step in and prevent that. He said, with regard to this question of game legislation, that in every country where there were no Game Laws there was a strict law of trespass, and nowhere was the trespass law more strict than it was in America. If the tenant was oppressed by his landlord with regard to game, he should be able readily to obtain redress. That was his broad view of this question. He hoped his learned Friend the Lord Advocate would not introduce a Bill on the subject, on behalf of the Government, until a Commission of Inquiry, both for England and Scotland, had ascertained the facts of the case, and had enabled them to legislate wisely and for the benefit of all concerned.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Lord Elcho.)
  SIR DAVID WEDDERBURNwished to explain that his opposition to the Bill did not arise from any objection to the principle or to the Preamble, but solely from the inadequacy of the means proposed to effect the result aimed at. Were such a Bill to become law, professing to amend the Game Laws of Scotland, but leaving altogether untouched numerous and important points which could not be lost sight of in any satisfactory measure, he believed the farmers and the people of Scotland would feel that their wants and their wishes had been ignored by the Legislature, and that the time for considering and redressing their grievances had been indefinitely postponed.
  MR. LOCHsaid, he regretted the manner in which this question had been dealt with by the noble Lord (Lord Elcho) and the hon. Member for Portsmouth (Sir James Elphinstone); but there was a method in the bluntness of the hon. Member for Portsmouth, for it enabled him to prevent the inquiry which the Government had in view, and which would probably have elicited
  882
  many facts useful for the purpose of legislation. That was the effect of his interposing a proposal for a Commission in lieu of a Committee. "When the hon. Member had gained his point, he said not one word about either the one or the other, and at once threw up his Motion for a Commission. He (Mr. Loch) was glad to be able to believe that this was not a party question. He had reason to believe that there were Gentlemen on the other side of the House who were anxious to see a remedy applied to the present state of things; while, on the other hand, he was sorry to say there were Gentlemen on this side who, though they had been inexorable with regard to Irish curates, on the question of foxes and rabbits were strong Conservatives. It was with reluctance he had moved in this matter; but circumstances had given him an opportunity of observing the evils arising from the present state of the Game Laws in Scotland, and also of seeing how great were the advantages arising from a good feeling between landlord and tenant. When the meeting of Members was held on this question, the details of the noble Lord's Bill were not considered. Only that the noble Lord, on a former occasion, had referred to certain agricultural meetings, he should not have alluded to the fact that at those meetings the noble Lord's Bill was described as a "pretence" and a "sham," and as a Bill which was not intended to accomplish any good. He did not agree with the hon. Member for Linlithgowshire in his views on this subject; but no one could doubt that hon. Member's honesty of purpose, and his efforts were entitled to be spoken of with respect, as they had been at the meeting. He thought some of the clauses of the Bill of the hon. Member for Linlithgowshire so wide that they would encourage poaching. In his own Bill he proceeded on the principle that neither by common law nor by statute was there any property in game. The statutes having reference to game were, in fact, only a code of regulations with reference to the killing of wild animals. They were, therefore, as much within the ken of Parliament as were the laws which regulated public-houses. The grievance consisted in excessive preservation. His object had been to provide a remedy for that evil by giving landlords and tenants equal

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  power to kill hares and rabbits, notwithstanding any agreement to the contrary; but there was due provision in the Bill for the compensation of landlords on account of interference with existing contracts. This question, however, should be dealt with as one affecting the community at large, and hence he proposed to prevent such contracts from being entered into in future. The law of Scotland was opposed to a landowner's creating a nuisance on his estate, and no one could deny that an excessive congregation of hares and rabbits constituted a nuisance. The analogy of the law with regard to the truck system was also in point. The hon. Member then cited some old Scotch laws in support of his view.
  THE LORD ADVOCATEsaid, he thought that the noble Lord (Lord Elcho), who had referred to several acts in his political life, had, in his conduct with reference to the subject of Reform, scarcely been so consistent himself as to be entitled to bring a charge of that nature against any other hon. Member. He (the Lord Advocate) begged to say that the Scotch Members who sat behind him were a more numerous phalanx than they ever were before, and they were as honest, as independent, and as perfectly ready to redeem their pledges as any other Members of that House. It was because they thought there was a grievance, and because they thought it was not an imposture, that so much time and trouble had been spent in the consideration of the subject. That was his view, and he believed it was the view entertained generally by the people of Scotland. Whether that grievance might be exaggerated or not was another matter; but he thought it was not fair, on the part of the noble Lord the Member for Haddingtonshire and other Scotch Members, to say that this question had been used for party purposes, and as a means of stirring up agitation on the hustings. The hon. Gentleman the Member for Portsmouth (Sir James Elphinstone) might be excused in the matter, as he and his constituents of Scotland were not of the one way of thinking. So much for consistency in general. The Government had carefully considered the proposal of issuing a Commission, as suggested by his noble Friend; but they did not think that that would be the best mode of adjusting the
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  matter, because, in their opinion, there was already sufficient information to enable them to legislate, if legislation were found necessary. The whole subject would receive careful consideration during the Recess, with a view to legislation, if it was thought advisable to make any alteration in the law.
  SIR JAMES ELPHINSTONEdenied that he had made any imputation upon his hon. Friend the Member for Wick. He had certainly stated that the way in which the Game question had been handled at the elections in Scotland was an injustice; but he had not the slightest intention of connecting with that statement his hon. Friend, whose father as well as he himself he had known for many years. His charge of profligacy had been made against the clause which proposed to sanction the departure from agreements which had been voluntarily entered into by those who proposed to break them. But the charge of profligacy was no new charge in the House of Commons, for it was no very great length of time since Lord Palmerston had said that none but a profligate Government could ever propose the disestablishment of the Irish Church. With regard to the general question, he wished to say that the Government came to a distinct understanding with them that the Committee was to be withdrawn, and that, before legislation took place, there should be an inquiry by a Royal Commission. ["No!"]
  THE LORD ADVOCATE: Quite the reverse. The Government never said a single word pledging themselves to a Royal Commission.
  SIR JAMES ELPHINSTONEadmitted the Government did not pledge themselves; but they had a majority in the House, and they were going to a division, when overtures were made to them that they should allow the matter to drop, on the understanding that the Government would legislate upon the question; but that, previous to legislation, a Royal Commission should issue to inquire into the subject. ["No, no!"] He appealed to the hon. Member for Berwickshire, to the noble Lord, and to hon. Members who were present on that occasion, to say whether what he had stated was not the fact?
  MR. ROBERTSON: The Government agreed to legislate; but they did not agree to the appointment of a Royal Commission.
  SIR JAMES ELPHINSTONEsaid, he would not detain the House any longer. He would only say, in conclusion, that he could not see the necessity for legislation on this subject.
  Debate adjourned till To-morrow.
  And it being Six of the clock, Mr. Speaker adjourned the House till Tomorrow, without putting the Question.

  SANITARY ACT (1866) AMENDMENT BILL.
  On Motion of Mr. Secretary BRUCE, Bill to facilitate the borrowing Money in pertain cases for the purpose of "The Sanitary Act, 1866, "and the Acts amending the same, ordered to be brought in by Mr. Secretary BRUCE. and Mr. KNATCHBULL-HUGESSEN.
  Bill presented, and read the first time. [Bill 214.]