The Express.
London, England, 1865-12-26 00:00:00

CAPITAL PUNISHMENT.

REPORT OF THE COMMISSIONERS.
The following is the report of the Capital
Punishment Commission as finally, and it is
believed unanimously, agreed to. Several of the
commissioners have, however, signed a supple-
mentary pungent* stating their belief that capital
punishments might now be safely abolished :
To Till QUITS 'S YOST ISCITLIAST 111.7ZSTY.
We, your Majesty's commissioners appoioted "ta
inquire into the provisions and operation of the lain
now in force in the Milted Kingdom, med., and
by vinoe of which the punishment of death may be io.
(tined upon primes convicted of oriole crimes, and also
into the manner in which capital sentenne are carried into
execution, and to certify to your Majesty under our hands
end male, or under the heads sad seals of any five or more
of es, our several proosedinp In the premises, and at the
same time to report to your Majesty our opinion whether
any and what alteration is desirable in such laws or any of
them, or in the Meaner in which such muteness are carried
into execution," humbly report es follows :
I. We have beep occupied a considerable time in taking
evidence' upon the questions referred to us.
Many witnesses have bees examined, and a careful
summary of their evidence precedes this report.
In addition to this oral testimony, certain questions have
been addressed to, and answers received from, nearly all
the nation of Europe, and some of the States of the United
Slates of America, with regard to the laws relating to the
punishment of death existing In thaw eciantries rupee-
tivsly.
The opinion of all her Majesty's judges in England, Ire.
had, sad Scotland, es well m of other eminent criminel
lawyers, have been moaned neon the expedience of mak-
ing say alteration in the laws under which the punishment
of death may now be inflicted upon persoss convicted of
pertain crimes.
In answer to this request some of the judges have sent
in statements of their views, while others have attended
before the commission and verbally stated their opinions.
The whole of the evidence, both oral and doonmeatary,
will be found in the appendix.
2. The oommisaioners forbear to enter into the abetted
gaieties of the expediency of abolishing or maintaining
capital Famishment, on which subject differences of opinion
exist among them, bat they are all of opinion that certain
alterations ought to be made in the existing law.
3. The only crimes now practically punishable with
death is the United IC iegdom are treason and murder ; we
ry perictiral4, because in Scotland there remain many
other offences which are stall is point of law liable to be so
punished, though in fact such a ems never occurs. We
strongly recommend that this anomaly be no longer allowed
to exist, and that all such obsolete laws be repealed
A list of these offences will be found in the Appen.
4. We have then, fink to consider whether, assuming
capitalpunishment to be retained, we should recommend
any change in its present application to the crime of
treason, and upon this point we have come to the oonclu-
sion that no alteration is neared. The statute of the 11
and 12 Vie., c. 12, commonly called the "Treason Felony
Lot," without in any way atcogatingithe ancient law upon
that subject, has introduced a sew and more merciful
law, which, in all but Oasis of extreme gravity, will pro-
bably supersede the former. The maximum punishment
under this act is penal servitude for life, which seems suffi-
ciently severe in cases of constructive treason onsecom-
pealed by overt ads of rebellion, assassination, or other
violence. With respect to trams of the latter character,
we are of opinion that the extreme penalty must remain.
5. We now arrive at the cousicieration of the crime of
murder and its punishment, and in treating this difficult
question we think it convenient bristly to refer in the
first instance to the existing state of the lac
6. By the law murder is the unlawfully killing soother
with malice aforethought, and this definition appears to us
to be correct in principle.
Unfortunately these words have not been confined to ex-
prees malice aforethought, or as it is sometimes called
malice in fart, bat have received a lees natural construe-
Mon which hu long been adopted as the settled law of the
lead. It hes been held that malice in its legal sense far
peen nothing more than a wicked intention to do
Wary to the person of another without any JOSS
abase or excuse, and that where a man is killed in cones.
quince of any such wicked intention the law will infer
malice aforethought, though no express enmity or prm
conceived design can be shown ; not indeed a particular,
but • general maim aforethought, arising from the ex.
tame depravity of disposition shown by the sit. This
doctrine of implied malice aforethought goes even beyond
this, and is carried to such an extent that the law always
Infers it when a persist in the art of committing a felony,
even of a trifling nature, kills another, though there mai
be in fact no premeditation, and no intention to kill, or do
serious injury.
tration
When homicide is committed in the perpe
crimes of great enormity, such as those enumerated
clause 12, this inference may be not improperly drawn.
7. The extreme severity of this construction has bass
somewhat mitigated by the law of manslaughter, which is
defined to be the unlawful killing of another without malice
express or implied. IA order to reduce the crime from
murder to manslaughter, the law allows evidence of pron.
cation to be given to rebut the inference of malice, which
would otherwise be drawn from the act of killing. Herr
however, *pia certain arbitrary rules have been
traduced Into the law, which most materially
skid its beneficial operation. It has beau established by
the decisions of our courts that no provocation
by words, or looks, or gestures, however contemptuous
and insulting, nor by any trespaes merely against lands
er goods, is sufficient to free the party killing from the
guilt of murder, if he kills with a deadly weapon, or
in any manner showing an intention to kill, Or do
grievous bodily harm. In these mem, though the sudden-
nem of the provocation may rebut in point of fact the
express malice aforcikougtr, it is not allowed, on account
of its supposed insignificance, to overcome the genera&
metier aforethought, which is implied by the law from
the wickedness and cruelty of the deed. Without enter.
lag into the many nice aud subtle distinctions which
prevail upon this subject, it is enough to say
that the practical result of this state of things
is most unsatisfactory. A man who. in a sod-
den fit of panne, mowed by insult to himself or
his wife, kills the person who offers the limit, is, by
law, guilty of the same crime and liable to the same
punishment as the assassin who has long meditated and
brooded over his mime. A great majority of the witnesses
whom we have examined have expressed a strong opinion
that this branch of our criminal law requires revision and
amendment, at least so far as the punishment is con.
earned, and we have unanimously arrived at the same con-
clusion.
8. We proesed, therefore, to offer such recommendations
as we think eapedient for altering the present law of
murder. It appears to us that there are two modes
which the change may be effected.
9. The first plan is to abrogate altogether the existing
law of murder, and to substitute a new definition of that
crime ; confining it to felonious homicides of great enor-
mity, and leaving all those which are of a lees heinous
description in the category of manslaughter.
10. The other plan is one which has been extensively
acted upon in the United States of America, where the
common law of England is in force ; this leaves the &W-
-ein of murder and the distinction between that crime and
manslaughter untouched, but divides the crime of murder
into two classes or decrees. solely with the view of confim
tng the punishment of death to the first or higher degree.
11. We have given both these plans our serious consider-
anon, and we see of opinion that the required change mlie Ds
best effected by the latter, which involves no disturbance of
the present distinction between murder and manslaughter,
which does not mike it nemenry to remodel the statutes
relating to attempt to murder, and does not interfere with
the operation of those treaties with foreign Powers which
provide for the extradition of fugitives accused of that
crime. The object proposed can be attained by a short and
simple enactment. providing that no murder shall be
mourned with death except such as are particularly therein
meationed.
These should be called murders of the first degree.; all
other
oth murders should be called murders of she second de-
gree, and punished es hereinafter recommended.
12. We recommend therefore:
(I.) That the punishment of death be retained for all
murders delibentely committed with exposes malice afore-
thought, each malice to be found ass fact by the jun.
(2.) That the panishmeat of death be also retained for all
murders committed in, or with a view to, the perpetratioe,
or escape after the perpetration, or attempt at perpetree
non of any of the following felonies :—Murder, WMw
raps, burglary, robbery, or piracy.
(3.) That is ell other awes of murder the pnaishmenhe
be penal servitude far life, or for any period not lees than
sense yews, at the diesettoo of the court.
13. Our attention lies been called to the frequene
failure' of *lees fin ores of infanticide.
The aims at infaatieide. as distinguished from murder
is general, is sot known to the English law. The moment