another well-known labourer in the cause, who wished to express his regret at being unable to be present-Mr. William Ewart. The principal argument which is brought forward by those who favour the retention of capital punishment is the argument of deterrence, and I must admit that there is a great deal in that argument. It deserves serious consideration, and it is put in a powerful form. It is put in this way, that it deters people from committing many more murders-that we have not to look so much at the lives that are sacrificed by capital punishment as at the lives that are saved. Now it appears to me that we must admit the deterrence of capital punishment, but we must admit it under certain abstract conditions, and not under present and practicable conditions. If it were absolutely certain that every murderer would be hanged, then I should admit the deterrence of capital punishment. But all experience shows that we never shall have certainty upon that point. Mr. Beggs has alluded to the fact that the deterrence of the death punishment was evidently felt, and was manifested by criminals after the commission of the crimes, for they earnestly clung to life, and would have any substitute for hanging. But to be effective it ought to have operated before the commission of the crime. Not only so; but while the death punishment may be an effective deterrence to well-informed reflective minds, it could not be so to a blind passion-driven mind. We should also remember that a large number of murders are committed in circumstances of rage and passion which from their very nature make men blind to all considerations of deterrence, even if it were absolutely certain that the punishment would follow. [Lord BROUGHAM: That argument refers to all punishments in their capacity of deterrents. If a man is thinking of committing a murder from revenge or any violent passion he does not think of the punishment-he is only under the influence of the passion of the moment.] We take the line of argument used by Lord Hobart in his pamphlet on capital punishment. While admitting the deterrent influence of capital punishment, he says it is more than negatived by the uncertainty found to be inseparable from the punishment. Lord Hobart shows that only one out of six who are committed for murder is eventually hanged. For all ordinary offences taken together the judicial statistics inform us that out of every 100 committals there are 75 convictions, whereas out of 100 capital committals there are only 25 convictions, and of these only fifteen or sixteen are executed. This is a proof of the element of practical uncertainty, that explains why capital punishments are not deterring; the deterrent feeling is negatived by the hopes of escape held out. [Lord BROUGHAM: Do you bring out, not the percentage of committals executed, but the proportion of those convicted that are executed?] Only about two-thirds of those convicted are executed. [Lord BROUGHAM: And in other offences?] In all offences the conviction implies the usual punishment except in capital offences. Independently of the question of deterrents, there are a number of peculiar evils attendant on the capital penalty which are not attendant upon any other punishment. One of these has been alluded to by Dr. Smith, namely, that the capital penalty is irreparable once carried into execution. [Lord BROUGHAM: And so is a judgment of imprisonment for six months. So is flogging: if you flog a man you cannot unflog him.] No; but he could have compensation for the injury done him if it was proved to have been a mistake-as for instance, in the case of Mr. Barber. And in the supposed case of imprisonment there would be six months to find out the mistake. Another objection to capital punishments is, that a large number of persons committed for murder escape because the capital penalty requires an extent and a kind of evidence greatly in excess of any other penalty whatever. Then another peculiar accompaniment of capital punishment is the morbid notoriety of, and the morbid sympathy felt for the criminals. This notoriety, which criminals attain, is seen by many who may wish themselves to enjoy it. Then there are the conflicts of evidence which occur in cases of capital offences, and the constant interference with the executive, which is most undesirable, for law ought to be law, and accurately represent and be sustained by the public sentiment. I conclude by earnestly insisting upon the duty of considering the antecedents of the criminal population, which are such as, that we can expect nothing but crime from men who have been brought up in the most degrading circumstances. Christian mercy requires us to look at the antecedents of the vilest criminals as well as to the general question of the security of the public against the crime of murder. Mr. NORTH: No one has yet referred to the fact that murder is a crime o extreme variability. It may pass through all shades, from one of intense an great atrocity to one which is almost pardonable, if not excusable. I think that much of the uncertainty which has been ascribed to the administration of the law arises from the fact that juries take upon themselves to be judges, not only of the technicalities of the law, but of the justice of the law itself; juries frequently do that which they believe to be justice in violation of the strict letter of the law. [Lord BROUGHAM: Do not forget the remarkable fact that for these ten years the number of executions, as compared with the number of convictions, has been only 105 in 185.] The sole purpose for which I rose was to indicate my opinion that while there is great uncertainty in regard to convictions in certain cases of murder, there is not that amount of uncertainty in the punishment of the true and atrocious murderer as some people are inclined to say. [Lord BROUGHAM: I think your argument as to the various descriptions of murder applies also to the question of execution after conviction as well as to the difficulty of getting a conviction.] Mr. RAWLINSON, C.E., said he could remember when executions were much more rife than they now were. In Lancashire he had known about eight or nine executions close upon each other. At each assize the gallows was strung up with as many as it could carry. Subsequently he had had an opportunity of investigating the condition of the working classes, and of knowing something of the condition of the criminal classes of this country; and with regard to the deterrent power of the gallows, his firm conviction was, that with the class on which the example ought to be the most profound, it was absolutely powerless The terror of the gallows was to them nil. He had gone into the greatest dens of iniquity-be had traversed our great cities and even our rural villages-be had seen the criminal population in their haunts of vice, and he had come to the conclusion that no example they could place before them would have any deterrent effect. He had seen a band of men occupying a room without any convenient furniture, drinking, playing at cards, and the only work of art in that room, over the chimneypiece, was Jack Shepherd on his horse, contemplating the bodies on the gibbet; every one of those men having been convicted criminals. He had gone over our great convict establishments and he had asked the warders, “How did you get these men into these places?" and the answer was, "Well, I must confess to you that, in my opinion, in nine cases out of ten, it has been bad company and an accident." He had come to the conclusion that at present the meshes of the law were a great deal too narrow; and, in his opinion, if we could have an arrangement by which men for the first offence would be subjected to some punishment that should not be deemed a degradation, that would be an enormous advantage. As to capital punishment, he was of opinion that it was degrading to the persons who witnessed it, that it was painful to some, and that it was not deterrent to any. Dr. WILLIAMS, York, said he thought that Mr. Beggs had proved in the most incontrovertible manner that executions did not deter from crime. He was of opinion that the publication of the addresses of chaplains of gaols to condemned prisoners had an injurious effect upon the criminal class. Dr. KITCHINER, York, said that the arguments used in that discussion by the advocates of capital punishment seemed to dwindle into the smallest possible compass. One gentleman gave, as the chief reason for its perpetration, one of the grossest, most savage, instincts of our nature-the instinct of revenge. He believed it was unnecessary to show the utter inapplicability of such a reason to this question; but that gentleman went on further to state that experience showed that every crime the punishment of which had been mitigated had gone on increasing in number and extent in this country. He believed he might, without fear of contradiction, make the counter-statement that all experience and all statistics hitherto collected had shown that mitigation of the penalty of a crime had led in all instances to a diminution in the proportionate frequency of the crime. It had been assumed that if murderers were not executed the crime of murder would be more frequent. Now all previous experience in every other crime went to the verification of the exact contrary; and therefore he had a right to believe that as other crimes had diminished in frequency with the mitigation of the punishment and the increase of its certainty, so the crime of murder would also diminish if executions were abolished and a more certain and more deterrent punishment than execution were adopted in its place. Alderman LEEMAN said it did not appear to him that they had sufficiently kept in view in this discussion the important question of the security of the general public. Those who had been in the habit of attending courts of justice, as it had been his lot to do for five and thirty years, would have come pretty much to this conclusion, that in the great mass of cases there had been no thought at all on the part of the person committing a murder, and that it was only in a very few cases that there was actual deliberation. He agreed with Dr. Smith that where there was deliberation the persons calculated upon their entire escape, and the punishment of death had no influence whatever upon them. But in this matter the great question was, “ What is right for the security of the public?" and he had come to the conclusion that the public security could not be as well preserved by capital punishment as it would be by its abolition. That was his deliberate conviction, and it was a conviction arrived at from an observation of what passed in courts of justice; where there was always displayed an anxiety on the part of every person engaged in the administration of justice-on the part of the judge, on the part even of the counsel who are engaged against the prisoner, aye, and most strongly on the part of the jury-to discover something on which they could hang the desire they had to save human life. Why was it that in the course of the last few years out of above 600 commitments for murder the convictions amounted to less than one-fourth of that number? His experience led him to the conclusion that this was owing to the desire on the part of juries to find some means of preventing the sacrifice of human life. Juries would not even take the dictum of the judge who told them that, given a certain state of circumstances, the law was that was murder. In the courts at York, in scores of cases where the circumstances had fairly brought the criminal within the rule of law as laid down by the judge to be murder, the jury had chosen to erect a code for themselves-"If this is murder, and these circumstances are to send that man to the scaffold, we will ourselves interpose, and rescue that man from the scaffold, because we do not think that the circumstances ought to send the man to the scaffold." That was not a right state of matters in respect of the security of the general public; and security could never be properly given to the public until juries were relieved from the feeling which animated them, and until some certainty existed as to the punishment which would follow upon murder. They should always bear in mind that if a mistake should be made in a case of capital punishment they could not repair it here. Lord Brougham had remarked that the same thing was true of a man who was flogged or who had been imprisoned six months; but there was a vast difference between sending a man to his account and imprisoning a man, or inflicting personal punishment upon him. He narrated the circumstances of the case of a woman who was left for execution in York, and whom Sir George Grey declined to reprieve until, at the latest hour, the chaplain of York prison telegraphed to the Home Secretary that, from something that had come to his knowledge, he had very strong doubts as to the guilt of the woman. Sir George Grey then yielded, and by means of a special train and special messenger the reprieve arrived in York in time to save the woman's life. There were multitudes of instances of that kind on record; and the very fact that we could not, in human tribunals, arrive at perfect accuracy, was an additional argument why they should not run these risks. If it were true that the uncertainty of the punishment of the crime of murder was at present endangering the general security of the public, which he held it was, then he held that upon that, the lowest possible ground on which this question should be put, they ought to come to the conclusion that capital punishments were no longer expedient. Lord BROUGHAM: Reference has been made to the case of forgery in this discussion, and it throws great light upon the question. When capital punishment was abolished for forgery it was done after many attempts and many failures. It was said at that time that there would be an increase of the crime of forgery. I said I hoped there would be an increase of trials and of convic tions, because many a person who had been forged upon refused at that time to come forward and prosecute; and when there was a prosecution it was excessively difficult to obtain a conviction, for the same reason that Alderman Leeman had referred to in the case of murder. All persons concerned, witnesses, prosecuting counsel, judge, and jury-particularly the jury-were determined. if possible, to avoid a conviction. After the capital punishment for forgery had been abolished, there was a little increase in the number of convictions, but after a little while it was found that there had been no increase whatever in the crime of forgery. Mr. BEGGS, in reply, expressed his great satisfaction at the way in which the subject had been treated during the discussion. His object in presenting this paper was, if possible, to direct the attention of the Association, and especially of that Department, to the one point to which he thought the public mind ought now to be directed-and that was simply the one referred to by Mr. Leemanthe security to society. Sir George Grey, in a debate some years ago, narrowed it down to that single point. He believed that the words of Sir George Grey were simply these, that if it could be shown that society was as safe without the punishment of death as it was with it, society had no right to inflict the punishment. That was the ground he had taken in the paper he had read, and he had endeavoured to exclude all other topics generally mixed up with the question. He would now conclude by asking the Association to consider this subject with the view of sustaining the Commission in the arduous inquiry upon which they were about to enter. LOCAL COURTS OF RECORD. Mr. GAINSFORD BRUCE, barrister, read a paper "On the Ancieut Local Courts of Record existing in England," the value of which he described, especially as to actions for sums from £20 to £100. Mr. Bruce pointed out that the provisions of the Common Law Procedure Acts had been already applied to several of these courts, and might be extended to all by Order in Council. He also showed the popularity of these courts in London, Liverpool, and Bristol, and that it would be easy to restore the efficiency of those which have fallen partially into disuse.* A NEW COURT OF CIVIL LAW JURISDICTION. Mr. HASTINGS proposed the establishment of a new Court of Probate, Divorce, Maritime, and Ecclesiastical Jurisdiction. He pointed out that there were three great divisions of our law :— common law, equity, and civil. The various branches of the last were at present separated, and some of them had never been brought completely within the pale of our jurisprudence. The Ecclesiastical Courts especially were in a most anomalous position. and whereas in former times their business had been administered by most able judges and a learned bar, they were now, owing to the transfer of the probate and divorce business to a new tribunal, * Mr. Bruce's paper will be found at length in the Law Magazine for February, 1865. See also Transactions, 1858, pp. 153, 160. deprived of the means of efficiency. The ecclesiastical causes proper were not sufficient to maintain a bar, and on the first vacancy the judgeship of the Admiralty Court was, by Act of Parliament, to be united with that of the Probate Court, which would leave the judge of the Appeal Court of the Province of Canterbury practically without a salary. The Consistorial Courts were even in a worse position, and ought to be abolished at once. Mr. Hastings thought the various branches of law formerly administered in Doctors' Commons ought to be kept together, as having a common origin, but that this should be done by establishing a Court which would unite them all under a common jurisdiction, and with a uniform procedure, rather than by merely vesting separate judgeships in one man. He proposed that a new superior court, embracing the business of the Court of Probate and Divorce, the Court of Admiralty, and the Ecclesiastical Courts, should be established, consisting of three judges, a chief and two puisnes, who should sit separately or collectively as occasion required. Such a tribunal would strengthen the administration of our maritime law, in which questions of great difficulty would arise in case of a naval war; it would give decisions of weight and authority in ecclesiastical suits; and at the same time it might be made the means of relieving the fifteen common-law judges of some of their work at Nisi Prius and on circuit. Such a court would complete the circle of our tribunals by collecting together the civil law branches of our jurisprudence, and administering them on same level as its great divisions of equity and common-law. "It may well be," said Mr. Hastings in conclusion, "that at some future period the three may come to be united and administered by a high court of justice with a common procedure; but I deal here with the present and the practical, and do not venture to look into the possibilities of a yet distant time." PROBATE AND SUCCESSION DUTY. The Rev. NASH STEPHENSON read a paper "On the Probate and Succession Duty levied on Property left under general Power of Appointment." The heaviness of the tax on property bequeathed under these circumstances was illustrated by assuming that the sum of £1,200 had been left, the parties being strangers in blood. There would then have to be paid Under First Will: Probate Duty on £1,200........ Succession Duty on £1,200 at ten per cent. Under Second Will: Probate Duty on £1,050...... 30 Succession Duty at ten per cent. on £1,050...... 105 Total to be paid by appointee......... .....£285 |