Royal Commission on Capital Punishment 1864–66

The Royal Commission on Capital Punishment was chaired by the Duke of Richmond. It worked from 1864 to 1866 and was in disagreement on abolition.

Appointment

The Government agreed to a Royal Commission on 3 May 1864 ^[1]

The Commission was appointed by Queen Victoria on the 8 July 1864.

The task

". . . to inquire into the Provisions and Operation of the Laws now in force in the United Kingdom, under and by virtue of which the Punishment of Death may be inflicted upon persons convicted of certain crimes, and also into the manner in which Capital Sentences are carried into execution, and to report whether any, and if any what alteration is desirable in such Laws, or any of them, or in the manner in which such sentences are carried into execution."

Commissioners

• Duke of Richmond (Chairman)
• Edward Henry Smith Stanley, then known as Lord Stanley and late as the 15th Earl of Derby
• Stephen Lushington, judge
• John Taylor Coleridge, judge
• Thomas O'Hagan, Lord Chancellor of Ireland
• James Moncrieff, Lord Advocate for Scotland
• Horatio Waddington, Under Secretary of State for the Home Department ^[2][3]
• John Bright, MP
• William Ewart, MP
• Gathorne Hardy, MP
• George Ward Hunt, MP
• Charles Neate, MP ^[4]

Secretary to the Commission: James Henry Patteson

Report

The Report of the Commission was published in December 1865.^[5]

Bibliographical reference

Great Britain. Royal Commission on Capital Punishment (1864–66)

Royal Commission on Capital Punishment together with the minutes of evidence and appendix. London, 1866. (Parliamentary Papers. Session 1866. vol. 21) ^[6]

Witnesses

The Hon. George Denman Q.C., M.P.[7] Lieut-Colonel E. W. Y. Henderson[8] Mr. Thomas Kittle [9] Mr. Richard Tanner [10] Sir Fitzroy Kelly, M.P. The Rev. John Davis, M.A.[11] Mr. William Tallack [12] Lord Hobart The Right Hon. Sir George Grey, Bart. (Home Secretary) Hilary Nicholas Nissen, Esq.[13] Henry Avory, Esq.[14] Leone Levi, Esq. James Fitzjames Stephen, Esq. The Hon. Sir James S. Willes, one of the Justices of Her Majesty's Court of Common Pleas The Rev. John Jessop, M.A.[15] Mr. Thomas Beggs [16]

Thomas Harrington Tuke, Esq.[17] John Humffreys Parry, Serjeant at-Law, with a Patent of Precedence [18] Henry Cartwright, Esq.[19] The Right Hon. Sir Lawrence Peel William Charles Hood, Esq., M.D.[20] The Right Hon. James A. Lawson[21] Mr. William Morrish [22] Monsieur Emile Chedieu [23] The Rev. Lord Sydney Godolphin Osborne S.G.[24] George Young, Esq, (Solicitor General for Scotland) Colonel Henry Stace [25] The Rev. William Cook Osborne [26] Sir Walter F. Crofton, C. B.[27] Monsieur Visschers [28] Sir Mordaunt Wells [29]

Evidence

The Commission took evidence on 15 days, between 29 November 1864 and 25 March 1865, dealing with three or four witnesses a day.

In their Report, they included a section summarising the response to the following questions:

• Deterrent Effect Of The Punishment Of Death
• The Nature Of Capital Punishment; its difference from all other punishments in its Irrevocability, &c.
• Evidence as to Whether Juries Show a Reluctance To Convict In Capital Cases
• Evidence as to the Home Office
• Evidence upon Infanticide
• Evidence as to the Propriety of giving Power to Jurors to bring in Verdicts of "Guilty of Murder" with "Extenuating Circumstances" in certain cases
• Evidence on Restoring to the Judges the Power of Recording Sentence of Death
• Evidence as to Allowing Appeals in Capital Cases
• Evidence as to whether Executions should be Public or Private
• Evidence as to what Secondary Punishment should be inflicted in the event of the Abolition of the Punishment Of Death

The verbatim evidence occupies 471 pages of the Report; there then follows an Appendix of 195 pages and an index to the Appendix. The Appendix contains answers to questions sent by the Commission to foreign countries and to Her Majesty's judges &c.

Appendix

The Questions:

• 1. What crimes, if any, are now punishable with death by the law of . . . . . ?
• 2. When a person is found guilty of a capital offence, is there any power in the jury, or the court, to reduce the punishment below that of death by finding attenuating circumstances ? If so, is this power frequently exercised?
• 3. What is the most severe punishment next to that of death by the law of . . . . ? and in cases where the sentence of death is reduced by the finding of attenuating circumstances, or commuted by the government to such lesser punishment, is the latter invariably carried out in full ? If not, to what extent is it mitigated ?
• 4. Have there been any changes of late years in the law of . . . . . by which certain crimes formerly capital have ceased to be so ? If so, have these crimes increased, and is their increase, if any, attributed to the diminution of the punishment ?
• 5. In what manner is the sentence of death executed, and does the execution take place in public or private ?
• 6. In what proportion of capital convictions is the punishment of death usually reduced by the clemency of the Head of the State to some minor infliction?

Sent by the Foreign office to France, Belgium, Holland, Prussia, Bavaria, Austria, Saxony, Hanover, Italy, Tuscany, Spain, Portugal, Russia, Switzerland, Denmark, Sweden, Nassau, Anhalt, Oldenberg, Brunswick, New York, Pennsylvania, Massachusetts, Ohio, Maine and Rhode Island, Columbia, Indiana, Venezuela, Wisconsin, Ecuador, the Australian colonies, Scotland, Ireland together with responses from various judges and legal persons and statistical tables, together with, lastly, draft legislation on infanticide, prepared by Mr. Justice Willes.

Recommendations

The Commission did not come to agreement on abolition. On most matters, it offered a range of options for legislation. The exception was unanimity of the need for a law to stop public executions and to regulate executions within prisons.

A declaration, drafted by Stephen Lushington, was included in the Report: "[We] . . . are not prepared to agree to the Resolution respecting private executions." Signed by Stephen Lushington, Wm Ewart, Charles Neate, J Moncreiff, John Bright. This is presumably because they strongly favoured abolition.

William Ewart, Stephen Lushington, John Bright and Charles Neate signed a declaration drafted by Ewart: "[we]. . . are of opinion that Capital Punishment might, safely, and with advantage to the community, be at once abolished."

O'Hagan made a longer declaration: "I am of opinion,—with much deference for the great authority of those who think otherwise,—that the weight of evidence and reason is in favour of the abolition of Capital Punishment.

"I should, therefore, sign the declaration prepared by Mr. Ewart, but that I doubt whether public opinion in this country is yet ripe for the acceptance of such a change; and if it should be accomplished, without the sufficient sanction of that opinion, I fear the reaction which might follow on the perpetration of some great crime. I think, also, that the substitution of a minor penalty would render essential serious modifications in the discipline and machinery of our prisons; and such modifications, whilst I believe them to be possible, may be difficult, and remain to be devised. On these grounds, having regard to the practical scope of Your Majesty's Commission, I cannot join in simply advising immediate abolition; but, so far qualifying my adhesion to the terms of the declaration, I am prepared to adopt the principle which it embodies."

See also

• Capital punishment in the United Kingdom

References

1. William Ewart's Commons resolution requesting a Select Committee be appointed to consider Punishment of Death, Resolution withdrawn and Charles Neate's resolution requesting a Royal Commission accepted: Hansard HC Deb 3 May 1864 vol 174 cc2055-115
2. Notice of retirement of Horatio Waddington, in The Times, Friday, Aug 16, 1867; pg. 7; Issue 25891; col C
3. Notice of funeral of Horatio Waddington, in The Times, Wednesday, Oct 09, 1867; pg. 9; Issue 25937; col B: (News Shorts)
4. ODNB article by A. C. Howe, ‘Neate, Charles (1806–1879)’, Oxford Dictionary of National Biography, Oxford University Press, Sept 2004; online edn, Jan 2008 accessed 29 Dec 2009
5. Pall Mall Gazette, Tuesday, December 26, 1865; Issue 275, page 6: "Capital Punishment".
6. The initiating editor of this article is extremely grateful to Harvard University and GoogleBooks for making this report available online.
7. George Denman: see ODNB article by William Carr, ‘Denman, George (1819–1896)’, rev. Hugh Mooney, Oxford Dictionary of National Biography, Oxford University Press, 2004 accessed 30 Dec 2009
8. Col. Henderson: Convict service, western Australia
9. Thomas Kittle: Policeman
10. Richard Tanner: Policeman
11. John Davis: Ordinary of Newgate
12. William Tallack: Hon. Secretary of the Society for the Abolition of the Punishment of Death see ODNB article by Bill Forsythe, ‘Tallack, William (1831–1908)’, Oxford Dictionary of National Biography, Oxford University Press, Sept 2004; online edn, Jan 2008 accessed 30 Dec 2009. His correspondence is at the University of Syracuse Library and further notebooks and papers at the University of Warwick, Modern Records Centre, Coventry.
13. Hilary Nicholas Nissen: Former Sheriff of the City of London
14. Henry Avory: Clerk of Arraigns at the Central Criminal Court
15. John Jessop: Chaplain of Horsemonger Lane Gaol
16. Thomas Beggs: Hon. Secretary of the Society for the Abolition of the Punishment of Death
17. Thomas Harrington Tuke: Member of the Association of Medical Officers of asylums
18. J.H.Parry: see ODNB article by J. A. Hamilton, ‘Parry, John Humffreys (1816–1880)’, rev. H. C. G. Matthew, Oxford Dictionary of National Biography, Oxford University Press, 2004 accessed 30 Dec 2009
19. Henry Cartwright: Governor of Gloucester Prison
20. Dr. Hood: Visitor in Lunacy
21. James A. Lawson: Attorney General for Ireland see ODNBarticle by G. C. Boase, ‘Lawson, James Anthony (1817–1887)’, rev. Sinéad Agnew, Oxford Dictionary of National Biography, Oxford University Press, 2004 accessed 30 Dec 2009
22. William Morrish: Governor of Portland Prison
23. Emile Chedieu: French barrister
24. Osborne: see ODNB article by Thomas Seccombe, ‘Osborne, Lord Sydney Godolphin (1808–1889)’, rev. Mark Clement, Oxford Dictionary of National Biography, Oxford University Press, 2004 accessed 30 Dec 2009
25. Former Governor of Oxford Gaol
26. Rev. W.C. Cook: Chaplain at Bath Gaol
27. ODNB article by Lawrence Goldman, ‘Crofton, Sir Walter Frederick (1815–1897)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 accessed 30 Dec 2009. He was a prison administrator and penal reformer.
28. Auguste Visschers: Belgian lawyer. He chaired the International Peace Congress in Brussels in 1848.
29. Sir Mordaunt Wells: Former judge in Bengal