The Parliamentary Debates

Dr Henry Grattan Douglass, a Member of the Legislative Council of New South Wales from 1851 to 1861, initiated the first Private Execu­tion Act in Australia. Douglass came to New South Wales from Ireland.

The abolition of public executions was something Douglass pursued after a discussion during the Financial Estimates over a faulty set of gallows at Darlinghurst Gaol in Sydney. Since it was last replaced in 1844, the wooden platform of the gallows at Darlinghurst Gaol had surrendered once more to the climate and rotted through.^[504] Such a small matter of prison maintenance ought to have been dealt with quickly if not for the need to first discuss the matter on the floor of Parliament. Due process stipulated that the £500 needed to remove the old gallows and erect a new one needed to be included in the Government’s Finan­cial Estimates for that year. When the issue of gallows maintenance at Darlinghurst Gaol arose, it soon caught the ire of Douglass who was quick to retort that he would, â€?vote any sum to take it down, but not a farthing to set it up’.^[505] He then moved to reduce the amount of govern­ment money allocated to the reconstruction of the gallows by £200.

The incidental defiance of Douglass triggered a discussion on the floor of Parliament that revealed the other Members’ disgust at the practice of public executions. The long serving Colonial Secretary of New South Wales, Edward Thomson, offered his view during the Financial Esti­mates that, �it was objectionable that the gallows should be constantly exposed; and on the subject of public executions... the American prac­tice of private execution was infinitely preferable on every ground’.^[506] Former solicitor George Nichols also advocated for private executions �under the eye of competent witnesses’ rather than the rubbernecking general public. The Attorney-General John Plunkett agreed with the other Members that public executions had a �demoralising tendency’ but suggested that the mood of the general public would be �greatly against the extreme penalty of the law being carried out privately’.^[507] On Plun­kett’s advice, and after some further discussion on the topic of capital punishment more generally, Douglass removed his amendment. He later said that after the Financial Estimates he continued to have conversa­tions about public executions with many Members of Parliament behind closed doors and found that the majority of lawmakers shared his desire for greater privacy.^[508] It was a gap of only a few months before Douglass took leave to introduce a bill with the intention of abolishing public executions in the colony.

Douglass formally introduced An Act to Regulate the Execution of Crim­inals in July 1853.^[509] It was an action that he thought would indicate to the outside world, and especially to Britain, that New South Wales was now a civilised nineteenth century actor and something more than just a former penal colony. According to the Empire’s account of proceedings, Douglass thought that the introduction of private executions �would be a step in advance for this colony to make, and it would set an example to the mother country, which they might worthily follow, although it emanated from a convict colony'.^[510] Douglass continued this theme later in his speech stating that �this would be a great advance in the civilisa­tion of the criminal laws of the country'.^[511] The Sydney Morning Herald, another newspaper to offer an account of parliamentary debates in New South Wales, also noted Douglass' motive.

No doubt the principle of private execution was new in England, but it was already in practice in Prussia, and also in America; and it was a grave consideration whether this colony, which had originally been a penal settlement, should not take an initiatory step in this matter and show the whole world the progress which had been made in civilisation.^[512]

The central concern with the legislation was to safeguard against any possible deception. The Attorney-General John Plunkett put forth his opinion that he �believed public executions were extremely demoralising; but at the same time he felt that the greatest caution must be exercised in making any change in the present practice, so as not to allow the slightest doubt as to the identity of the criminal'.^[513] In an earlier debate on the bill, Plunkett also stated his opinion that public executions were still adhered to in England primarily because of an �innate hatred of concealment in British law'.^[514] That said, he agreed with Douglass that introducing private executions �was a measure quite in accordance with the great progress daily making in civilisation and enlightenment'.^[515] The Solicitor­General, William Manning, agreed that care must be taken in drawing up the bill as, in the new era of private executions, �the great point was to prevent the possibility of foul play'.^[516] James Martin, although not opposed on principle to the reform, thought that with hangings taking place in private it �would be exceedingly difficult to satisfy the public mind'.^[517] It was these types of concerns that demanded witness state­ments, medical certificates and other legal documentation to be included in the final wording of the Act. Despite initial apprehensions, to hide away the violent spectacle inside the prison yard was a measure generally applauded by the legislators of New South Wales.

An Amendment proposed by George Nichols also tried to exclude women and children from being able to view a private execution. Nicholas stated in a motion that executions had a �demoralising and hardening influence' on all those who watched and that the Governor of the gaol ought to exclude by law women and children from being admitted to private executions.^[518] For Douglass their attendance had been a problem in the public era: �public execution of criminals was attended by a class of spectators whom they would least like to see present at such a spectacle—women and children—and they were always more impressed with pity for the criminal than with horror at the crime'.^[519] That said, the amendment was narrowly defeated 19 to 18 on the grounds that when a woman was executed it might be desirable to have female witnesses.^[520]

The parliamentary debates that took place in the colonies to introduce private executions were also instructive and it was clear that they were looking very closely at Sydney. For instance, during the passage of the private execution legislation in New South Wales, The Sydney Morning Herald’s Melbourne correspondent was quick to offer his congratula­tions: �Your legislature is right in deciding that executions should be private instead of public... It is very likely that some one of our new members will try his hand on a similar measure in our Council'.^[521] As it would turn out, the transition to private executions in Victoria was initiated by the Lieutenant-Governor himself. On 26 September 1854 Lieutenant-Governor Charles Hotham sent a brief communica­tion from the Government Offices directing the Legislative Council to consider a draft of �A Bill to Regulate the Execution of Criminals'.^[522] On the day following Hotham's communication William Stawell, the Attorney-General of Victoria, placed the bill under the consideration of the Legislative Council.

The ATTORNEY-GENERAL in moving the first reading of this bill, observed that much evil attended the present mode of executing crimi­nals. It was injurious and demoralising both to the unfortunate culprit and to the spectators. The former had his thoughts distracted from the awful subject that ought to occupy them, by knowing that he was to die in the presence of a multitude, and the latter were too often attracted to witness the dying struggles of a fellow creature by mere morbid curiosity.^[523]

Stawell then noted that executions should take place within the prison walls and listed the type of functionaries that should be compelled to attend the event. According to The Argus, the first reading was met �without either opposition or discussion' in the House.^[524]

In the committee stage the parliamentarian John Myles suggested that some people known personally to the condemned ought to be allowed into private executions to �sympathise with the criminal and pray for him'.^[525] It was a considerate gesture but one that was eventually defeated by the other Members who thought that it was still possible to convey consolation without the need to be physically present at the death. Victoria was a colony where the feeling against capital punishment ran high and many MPs spoke freely about the possibility of abolishing the penalty altogether. However, the Colonial Secretary, John Leslie, stated that this was �by no means a country in which the experiment of abol­ishing capital punishment could be tried' and the sole object of the measure before parliament was simply to �prevent the publicity of... a “necessary evil”'.^[526] The Attorney-General reiterated the Colonial Secre­tary's point, stating that the only question that the House needed to engage in was simply: �Shall we dispense with the public exhibition of criminals in their very last struggles?'^[527]

In July 1855, A Bill to Regulate the Execution of Criminals was intro­duced in the Parliament of Van Diemen's Land.^[528] Van Diemen's Land felt itself a step behind the other colonies in initiating this reform.

Arthur but soon erased them believing that �There was a vast difference between a “private” execution and a “secret” one'.^[530]

Three years passed before South Australia decided to adopt legislation mimicking the reforms of the colonies to the east.^[531] On 21 September 1858 the Chief Secretary, William Younghusband, rose to give the first reading of the bill in the Legislative Council to abolish public executions. For the Chief Secretary public executions had a tendency to �demoralise’ those who attended, and he questioned the power of the gallows to deter saying that it �had no beneficial result as an example’.^[532] To strengthen his support for the bill, he was quick to tell the Parliament in the first reading that (with ignorance in respect to Western Australia’s predica­ment) �A similar law was in force in all the other Australian colonies’.^[533] The Commissioner of Public Works, Arthur Blyth, raised a similar point saying that South Australia needed to become �assimilated’ with the other colonies who had already adopted private executions.^[534] Public executions were maligned in Adelaide for encouraging misbehaviour on the part of the criminal while corrupting the innocent. WilliamTownsend remarked that at public executions �the man who was to die went up to the scaf­fold with courage he was a hero, his likeness was taken, and his form was embodied in waxwork for the public gaze’.^[535] William Burford remarked how �the love of notoriety and the pride of dying game would be done away with’ which would finally lead criminals to receive punishment in the �proper spirit’.^[536] As for the crowd at public executions in South Australia, Arthur Blyth stated that, �They were attended by a greater proportion of the female portion of the community than of the male, and even children and infants were taken to view them’.^[537]

Interestingly, South Australia was the only Parliament to suggest that prisoners, like members of the general public, ought to be shielded from the spectacle of executions. If the prevailing logic was that the general public were �demoralised’ by the hanging of a criminal, it should follow that lawmakers would be keen to hide the spectacle from convicted crim­inals as well. Thus, the proposed solution of William Burford, a man well-known in Adelaide for his strong religious convictions and desire to abolish capital punishment, was to establish a separate gaol, �specially set apart for the execution of criminals, in order not to run the risk of contaminating other prisoners’.^[538] However, the Treasurer, Boyle Finniss, opposed the construction of a so-called �public slaughterhouse’ because it was not only costly but �indecorous and improper to have a building of this kind’.^[539] After some further cajoling over how news of private execu­tions might be distributed, the legislation eventually passed the second and third reading with little trouble.^[540] The only real opposition encoun­tered in the colony was due to their attachment to hanging Indigenous offenders at the scene of the crime but that is better discussed elsewhere (see Chapter 7).

It was not until January 1871 that the Parliament of Western Australia passed a bill to abolish public executions. This was almost two decades after the New South Wales legislature had mooted the possible introduc­tion of a new and more discreet mode of capital punishment in its parlia­mentary chambers. Unfortunately the primary documents surrounding the passage of the private execution legislation are reserved in providing an explanation for the delay. After being read a first time at the Western Australian Legislative Council on 7 December 1870, the second reading took place on 19 December 1870. But instead of a lengthy discussion on the bill that usually takes place upon the second reading (as was the case in the other Australian colonies), Hansard simply states: �The bill was read a second time, and passed through Committee, without discus­sion'.^[541] The Perth Gazette and Western Australian Times' version reads almost identically but adds that it was �passed without amendment'.^[542] As for the third reading of the bill, it took place on 28 December 1870 and was assented to five days later on 2 January 1871.^[543] The complete lack of newspaper comment surrounding the Act suggests support for the measure rather than division. As evidence for such a view, there were some calls in the newspapers before 1871 urging the authorities to abolish public executions and align themselves with the example found in the other colonies.^[544]