HC Deb 10 June 1819 vol 40 cc1067-77
Mr. Western

rose, pursuant to his notice, to bring forward a motion, the object of which, he said was, to obtain a more frequent Delivery of the Gaols of those unfortunate persons who now often lay six, seven, and even eight months in prison, before they are brought to trial. It was possible some gentleman might think that a proposition of that sort, which tended to a material alteration in our present system of administering the laws, would have been better in the hands of some honourable gentleman who was a member of the learned profession; but the House would see that his proposal did not involve any intricate question of law;—it did not involve any consideration of doubtful justice, or even, he thought, of doubtful policy. It was founded upon a plain and obvious principle, which, at all events, in the abstract, would meet universal acquiescence and approbation; namely, that no man should be punished before he is brought to trial. And he then contended, that the interval between the summer and the Lent assizes occasioned a duration of imprisonment before trial, which was in effect a most severe punishment, and which could not be justified upon any plea whatever. He said, he was aware that any alteration of the criminal law of the country, or even of the established mode of administering the criminal law, should be received in the first instance with jealousy, and adopted with great caution; but his proposition went in effect to no alteration, other than as affecting those who have the labour of carrying the law into execution. There was no alteration even of any part of the process of the law,—the sole object was, a more frequent delivery of the gaols, and by that means to effect an alleviation of the suffering of long imprisonment, and the removal of that disgrace to the jurisprudence of the country, which, he contended, was brought upon it by inflicting such a punishment upon men before they were tried, as now was frequently the case.—Mr. Western here went into a variety of observations, th show that a more frequent delivery of the gaols would be more congenial to the spirit of the constitution; and he thought he should be able likewise to show, that it would be more conformable to the law of the land, to the ancient law certainly, and even to the unrepealed existing statute law—the institutions of former times,— those enactments, upon which the basis of the administration of justice was founded in this country, strongly marked an anxious desire to protect the subject, not only from unjust imprisonment by incompetent authority, but from long imprisonment before trial also; which, in truth, was always considered as unjust imprisonment. The provisons of Magna Charta evidently had this object in view. Those words, which the statute was made to speak, as it were, from the mouth of the sovereign,—"Nulli vendemus, nulli negabimus aut differemus rectum vel justitiam,"—comprehended an assurance that justice should not be delayed any more than sold or denied. "Nulli differemus," though directed to other cases than that of mere delay, yet was pointed to that also. Lord Coke, when commenting upon this statute, said, "And hereby it appears that Justitia debet esse libera, plena, celeris, celeris, quia dilatio justitiæ est quædatm negatio. Could it be said that six or eight months imprisonment was not dilatio justitiœ?" Lord Coke again observes, upon the writ de Odio et Otia, which was granted for certain offences not bailable. "Yet the law did so highly hate the long imprisonment of any man before trial, though accused of an heinous offence, that it gave him this writ." and Mr. Justice Hawkins says,— "The greater the offence charged, the more horrible the sufferings of the person accused, in the interval between his commitment, and that of his being brought before a jury of his country." And again, in commenting upon the statute of Gloucester, lord Coke says,—"Lex Angliæ est Lex Misericordiæ for three causes; first, because innocent men shall not be worn and wasted by long imprisonment; but as hereby, and by the provisions of Magna Charta, speedily come to trial."-As to the existing law, it was certain that there was an unrepealed statute, which provided, "that the gaols of the kingdom should be delivered three times a year, and more often, if need be;" and that lord Coke considered that statute to be the law of the land at the time he wrote. The present justices or judges of assize and Nisi Prius came into use in the room of the ancient justices in Eyre, justiciarii in itinere, and are more immediately derived from the stat. of the 13th of Edward 1st c. 30, which says, "From henceforth two justices sworn shall be assigned, before whom assizes shall be taken, and they shall associate one or two discreetest knights, who shall take the assizes three times in the year." And then points out those stated particular time. By the stat. 27th of Edward 1st c. 3, these justices of assize were made also justices of gaol delivery, in these words:-"We for the utility of our realm, &c. have ordained, that justices assigned to take assizes in every county, immediately after the assizes taken, shall remain, and by our writ shall deliver the gaols of all manner of prisoners, after the form of the gaol deliveries before-time used." Here then we see the justices of assizes and Nisi Prius, who were appointed to take assizes at three stated times in the year, are directed, after they shall have taken their assize to deliver the gaols; and, it must be presumed, that after each and every such taking of assizes they did so deliver the gaols. An act was afterwards passed in the fourth year of the reign of Edward 3rd, c. 2; the title of which describes it to be an act by which the authority of Justices of Assize and Gaol Delivery, and Justices of the Peace, was pointed out; and by which it was ordained, that "good and discreet persons, other than of the places, should "be assigned in all the shires of England "to take Assizes, Juries, and Certifications, and deliver the gaols at least three "times in the year, and more often if need be." Lard Coke, commenting upon the commission of Gaol Delivery, and referring to this statute, says,—"By "the LAW OF THE LAND, ne homines diù "detineantur in prisonâ; but that they "might receive plenam et celerem justiciam, "this commission was instituted, and by "this commission gaols ought to be delivered thrice in the year, and oftener if "need be;"—thus using the very words of this statute, and showing that he considered, at the time he wrote, that the law of the land required that the gaols should be delivered at least three times in the year. Here then, in regard to the law upon the subject, we have a statute special and direct in its enactments, drawn from the best times of our history,—quoted and commented upon by the first authority,—considered by lord Coke himself not only to be the law, but the glory of the law, that men should not be long detained in prison, but should have full and speedy justice. Could it be said that a man imprisoned in July, not brought to trial till late the following March,—(and that many such had been, he would show by the papers he had called for),—had received full and speedy justice?—So far from it, had he not in effect been worn and wasted by long imprisonment,—had he not seen the summer in great part pass over his head,—if a labourer in agriculture, his harvest lost,—the autumn past,—then a long dreary winter in gaol, and even the spring far advanced, before he is brought before a Jury for his trial, and then perhaps acquitted, as it should be remarked more than one-third of the prisoners tried constantly were—If then, said Mr. Western, it was considered to be the law, and to be necessary, at the time lord Coke wrote, to deliver the gaols three times a year at least, how much more necessary was it at the time he was speaking, when so vast an augmentation of the number of delinquents had unfortunately taken place, and when at that moment the gaols of the kingdom were crowded beyond what they could contain. He was desirous to point distinctly to the House from the papers upon the table, the effects of the present practice of delivering the gaols only twice in the year. He would show it rather in detail in the first instance, by referring to some of the returns separately, and then the whole collectively; the first he had in his hand was that of the county of Kent. It appeared that at Maidstone last Assizes, there were one hundred and seventy-seven prisoners for trial; of these, twenty-nine were in prison before the 1st of October last, eighty three before the 1st of January, which, together with those that were subsequently imprisoned, made up a total of one hundred and seventy-seven. By-the-bye, it was evident that one more gaol delivery some time in January, would have reduced the numbers before trial, to be provided for and maintained, and for whom buildings must be erected, from one hundred and seventy-seven to ninety-four, and of course the same in other counties. But the point to which he then wished to call the attention of the House, and which was still more important, was, the injustice which these prisoners had suffered, particularly those in prison before the 1st of October, the shortest period of confinement of whom before trial had been six months; nothing could show more strikingly the cruelty of such confinement in prison, than the known fact that a sentence of six months imprisonment was considered sufficient punishment for half the felonies that were committed. But the case became yet stronger when we considered the sufferings of those who were afterwards acquitted; seventeen of the twenty-nine above-mentioned were acquitted; nine of the seventeen were discharged by proclamation, having no bill found against them, or not prosecuted. On the other side of the return, it appears that twenty-five convicted felons were sentenced to imprisonment, the longest period of confinement of whom was six months. It might be said, that some of these were imprisoned some months before trial; but was not this another illustration of the unquestionable injustice of long detention before trial? It was common for the Court to address the prisoner, and tell him, that, in consideration of the time he had lain in prison, his sentence was, to further imprisonment for one month only; two men thus brought to the bar, who had each been in prison five months,—the one convicted, is told that his sentence is one month imprisonment only, in consequence of five already suffered,—the other is put up afterwards, and a jury of his country return a verdict of not guilty, yet has he endured five-sixths of the punishment of the one who was convicted: there were three at Maidstone, who, after being about seven months in prison, were discharged by proclamation, whilst various convicted felons suffered six-sevenths only of the punishment (including their imprisonment before and after trial), which was inflicted upon these three persons against whom no bill of indictment was found. By the returns of the last Lent Assizes at Chelmsford, the cases were not less striking than those of Maidstone; the total number tried was one hundred and sixty-six. Of these, twenty-five were in prison before the 1st of October; of whom, eleven were acquitted, and of these eleven, six were discharged by proclamation; two were in prison eight months, three seven months and fifteen days, three six months and fifteen days: whilst, on the other hand, sixteen convicted of felony were considered to be sufficiently punished by imprisonment under six months. Upon the whole, it appeared by the papers on the table, that four hundred and five of those persons who were tried at the last assizes had been in gaol before the 1st of October, whilst from the annual return it would be seen that eight hundred persons, convicted of felony, suffered under their sentence a lighter punishment than the four hundred and five had experienced before trial. Mr. Western begged the House further to remark that, if there was another gaol delivery some time in January, it would diminish very nearly one-half the total number of prisoners before trial, which it was now neccessary to provide room for in the gaols, and to maintain so many months longer. This was an important consideration under all circumstances, and in the present moment peculiarly so, when our gaols were crowded beyond what they could contain. The House had appointed a committee to inquire into the state of the gaols, the management pursued in them, and the discipline of the prisoners. That committee, he doubted not, would have a wretched tale to unfold. The report upon the table which had been called for by order of the House of Lords, had been communicated to the House, would show a singular state of non-conformity to law, in the condition of most of our gaols, and prove distinctly how much some essential improvements required to be generally enforced. In the first place, it would be seen that eighty-five gaols, which were stated in the return to be capable of containing only 7,263 prisoners, had in them at one time 10,628. By the same return, it would be seen how excessively defective are the means of classification. By the 24th of the king, the number of classes or departments pointed out to be essentially necessary, amount to eleven in number; and even these are not sufficient to keep offenders of different descriptions properly separated from each other, and prevent the fatal mischief of associating the young offender with the hardy and inveterate practitioner. Now, out of three hundred and thirty-eight prisons, of all descrip- tions, it appeared that seventeen only were classed or divided according to law; ninety had only two divisions, merely to separate males from females; fifty-eight bad only three; fifty-one, four; nineteen, five, and so on; seventeen only being classed or divided according to the regulations of that statute. In the return it was also stated, that one hundred and ninety-four could not increase the number of their divisions without new buildings, or incurring great expense; others might, with comparatively small expense; and many others were either altering and improving their gaols, or were under directions and orders for that purpose. That same statute gives directions for materials to be found and prisoners set to work; but, in two hundred and seventy-four of the prisons no work at all was done; in sixty-four some work was done. And in some few of those sixty-four a considerable deal had been accomplished. He did not wish to see palaces for prisoners; but the prisons should be airy and healthy, with hard fare and hard labour, and ample means of separating the different characters and shades of guilt. He entreated the House to consider, that if the great work was to be accomplished, to which in fact they were pledged, of improving the gaols of the kingdom, of reforming the present management, and establishing a better discipline, that the measure he proposed would materially aid the accomplishment of their object, by immediately reducing the number of prisoners, for whom accommodation was to be found; and would be essentially useful in various other ways. By diminishing, as much as possible, the duration of imprisonment before trial, the danger of corrupting the innocent, or the young offenders, would be more than proportionally diminished. It was only by the means which time afforded, that the work of corruption and debasement could be accomplished. The first effect of imprisonment might be as salutary as it was painful; but time soon were away the first impression, and then the effects of example and vicious association began to operate in full force. The, mind became paralysed; habits of idleness were easily formed; the character changed altogether; and the unfortunate beings, thus corrupted and debased, were turned loose again upon society, to contaminate and corrupt others. Besides which, the efficacy of the law was lost, by its tardy operation. The hand of justice must strike promptly, to strike effectively—Mr. Western then said, that he would not anticipate objections that might be possibly urged against a more frequent delivery of the gaols; nor would he attempt to point out the means by which it was to be effected, and which he thought was the business of the executive to devise. It might very probably be remarked, that such additional duty would require an augmentation of the number of the judges; that such would be the case, he thought extremely probable. But, if it was necessary, was that an objection? He was of opinion, that the vast increase of business did require an augmentation of the number of the judges. He had no hesitation in saying, that he was also decidedly of opinion that their salaries should be augmented likewise, though the salary had been increased so late as the 49th of the present king, yet it was quite inadequate to the character and duties of the high and important situations which they held. As to the idea of throwing more weight of the business upon the quarter sessions, it was what he certainly did not approve. The sessions had, last year, tried upwards of seven thousand prisoners, out of thirteen thousand. He did not wish to see the magistrates in their sessions take higher classes of offence than they did at present; indeed, at present, he thought they went quite far enough in that respect—four hundred and forty-eight persons were transported by the sessions last year. The burthen of their duties were already, in some places, beyond what the magistrates could well get through; and, if these were to be increased, we should be obliged soon to have pensioned chairmen upon every bench in the country, and which, above all things, he should most deprecate.—He concluded by moving,

"That an humble Address be presented to his royal highness the Prince Regent, humbly to represent to his Royal Highness, that this House has taken into its serious consideration the returns of prisoners tried in the last Lent assizes, in England and Wales, which, in consequence of an address of this House, his Royal Highness was graciously pleased to order to be laid before it; and further to represent to his Royal Highness, that it appears by the said returns, that, of the prisoners tried at the last assizes in England and Wales, exclusive of Middlesex, 405 were in prison before the 1st of October last, which number was increased to 1,270 before the 1st of January, and which was further increased to 2,700 at the commencement of the Lent assizes; that those of the first period had consequently lain in prison from six to eight months before they were brought to trial; those of the second period from three to six months; and together accumulating the total number beyond what the gaols are capable of containing; that this House cannot but feel, that, though the practice has now prevailed for a considerable number of years of delivering the gaols only twice a year, that yet so long an interval as that which occurs between the Summer and Spring assizes, and so long a delay of justice as necessarily follows therefrom, is productive of the most injurious and fatal consequences; that, without detailing the various evils attendant upon long imprisonment, and the obvious injustice of inflicting so severe a punishment before trial, this House thinks it necessary to observe, that it appears by the said returns, that a very large proportion of those prisoners, who have been actually convicted of felony, have been considered to be sufficiently punished by sentence of imprisonment for a shorter period of time than one-seventh of the total number have actually endured before they are brought before a jury of their country; that this House, adverting to the practice of former times, has seen, that in all those enactments on which the basis of the administration of justice is founded, that it has ever been a primary object of the laws to obviate the possibility of long imprisonment before trial; that, without reciting the different provisions that at different periods of our history have been enacted for this purpose, this House will only beg leave to point out and humbly to represent to his Royal Highness, that the statute of 4th Edward 3rd, c. 2, ordains, that 'good and discreet persons, 'other than of the places, shall be assigned 'in all the shires of England, to take 'assizes, juries, and certifications, and 'deliver the gaols at least three times in 'the year, and more often, if need be;' that if it was necessary to deliver the gaols three times a year at that period, that necessity is increased beyond comparison by the vast augmentation of the number of delinquents which has taken place in late years, and which this House has seen with infinite anxiety and regret: and, therefore, under all these circumstances and considerations, to entreat that his Royal Highness will be graciously pleased to give directions that, according to the provisions of the said statute of Edward 3rd commissions of gaol delivery may be issued three times a year, and more often if need be; and that this House will make good any expenses attending the same."

The Attorney General

contended, that the statute of Edward 3rd referred not to justices of assize, but only to justices of peace, and referred only to a gaol delivery with respect to those minor offences cognizable by the quarter sessions. If the hon. member wished that there should be a more frequent gaol delivery by the twelve judges who constituted the present judicial administration of the country, he could assure him that it would be impossible. There was no class of eminent public men whose duties were so constant, whose time was so completely appropriated to the discharge of their various important functions, as the judges of the land. Even in those occasional cases when what was called a Special Commission was issued, the regular and ordinary administration of justice was necessarily suspended. The hon. and. learned gentleman paid a high compliment to the talents and devotion of the great body of gentlemen who as magistrates at the quarter sessions administered the criminal justice of the country, with reference to minor delinquencies, and suggested that a great alleviation of the evils complained of by the hon. gentleman might be effected were those gentlemen to extend their public services, by making such an arrangement in their various adjournments, &c. as would enable them to hold a sessions, eight, instead of four times in the year. Convicted, however, that a general gaol delivery could not more frequently take place, without an increase in the number of judges, a measure which he must long pause to consider before he could consent to its adoption, he felt it his duly to move the previous question on the hon. gentleman's motion.

Mr. Bennet

observed, that all parties acknowledged the existence of the evil; the only difference was with respect to the remedy. He was not himself aware of the evils that would arise from increasing the number of judges, but he knew the evils that existed in the present administration of justice. He could not help thinking that government were to blame for not having themselves proposed some specific plan on a subject so pregnant with evils, especially in the Northern counties. He had known a case in one of these counties, in which a man had been imprisoned for eleven months, and eventually the grand jury ignored the bill against him. It appeared that some mistake had arisen in the circumstances which caused the commitment of that person; but although that mistake was soon after discovered, it was impossible to discharge him but in due course of law. This was certainly an extreme case, but other cases of great hardship were constantly occurring. He hoped his hon. friend would persist in his endeavour to give to the people of England what a good police required—that those who committed offences might be speedily brought to justice, and those who were innocent speedily discharged.

Mr. Bathurst

said, the hon. gentleman who spoke last had mixed up with the subject of the present motion another which had nothing to do with it, namely, that of the Northern assizes. As the courts of law were at present constituted, it was impossible for the judges to afford to all England a greater number of gaol deliveries than was provided for by two assizes. This could only be effected by some alteration in the number or constitution of our courts of law.

Sir E. Knatchbull

said, as this was a subject that required very great consideration, he hoped it would be taken up at some future period. He hoped the hon. member would withdraw his motion; that the attorney-general would also withdraw his amendment; and that government would, in a future session, take into consideration the various acts of parliament on the subject.

Mr. F. Buxton

felt that some measure similar to that which was now proposed, was essentially necessary. If the hon. member for Essex should succeed in his object, he would do more to improve the morals of the country than bad ever been done by a single individual.

The motion was then negatived.