Mr. Secretary Peelrose, and addressed the House to the following effect:—
I rise, Sir, to introduce certain bills for consolidating and amending the laws in England, relative to Larceny and other offences. The bill I have now brought up—one of those bills at least—is for the consolidation of some of the branches of the statute and criminal law concerning theft. Probably the House will allow me to make a few observations, at this opportunity, in answer to some questions which were put to me, by a noble lord on a former night, on matters connected with these bills; which questions I was not then prepared entirely to answer. I beg to state, therefore, that the bills which I have to bring in this evening, are four in number. First of all, here is a bill consolidating the whole of the statute law of England, relating to the crime of larceny and other offences connected therewith; the second is a bill for the consolidation of all the laws relating to malicious injuries committed on property; the third is a bill relating to the very important question of damages arising from accident, and the cases in which the law will enable parties, who sustain such damages, to recover from the hundred; the fourth is a bill, Sir, which I have purposely kept distinct from the other three, and which will recite and repeal all the now existing statutes, that, should these bills pass into a law, will become unnecessary. The effect of these enactments, supposing they should meet the sanction of the legislature, will be to remove, altogether, from the Statute-book no less than one hundred and thirty statutes. And I have the satisfaction of stating, that, notwithstanding the repeal of so many acts of parliament, now forming part of the criminal law of England, the whole of the statute laws in this consolidated form—those, I mean, respecting the crime of theft—will be comprised within twenty-nine pages [hear]. In effecting this reduction in the bulk and number of the statutes, I have made no rash experiments as to the language of the enactments I propose to substitute in their stead. I have adhered, very closely, to the phraseology of those acts of par- 1156 liament; I have retained all those terms and legal designations which are allowed to be of importance; but, in rejecting some redundancies and repetitions, I have endeavoured to steer a middle course between the general verbosity of our English statutes, and the extreme brevity of the French criminal code. This House has always shown itself extremely jealous of laws so very summary in their enactments, as those of the French code; because they necessarily devolve upon the judge who administers them, a much greater discretionary power than our own system professes to do. In point of fact, Sir, nothing is gained by the adoption of extreme brevity in the framing of acts of parliament. I will venture to say, that the French have experienced this truth, from the extreme brevity of their laws, and the circumstance of their enactments being couched in terms much too summary. The consequence has been, that the gloss or commentary of the learned lawyers of that country, defining the meaning and scope of these summary terms, has already attained an extent, which, in point of ver-boseness and complexity, bids fair to rival our own Statute-book. In the bills I have the honour of submitting to the House, a middle course has been steered between the redundancy of our own legal enactments, and the conciseness of the French code. I do confidently hope, that when a little further advance has been made in the work of repealing many of our old statutes, which should no longer be retained, and in the substitution of new ones in their place, the House will determine to take into its consideration the general state of the whole Statute-book; when, I am convinced, it will find a vast number of old or defective statutes, which it might determine to expunge, while it could retain those only which it may be absolutely necessary to preserve. The effect of such a proceeding would be evinced in many valuable and beneficial results. I think there ought to be a commission to ascertain what statutes at present remain in force, and what from their obsoleteness, or the fact of their being no longer applicable to the circumstances of the age, might be entirely dispensed with, or preserved only for the future inspection of the curious. Some statutes, like those of Magna Charta, for example, will always be retained, and treated, of course, with the respect and gratitude that 1157 are due to them. But others, though of great antiquity, are of such a character, that it would be exceedingly expedient to get rid of them altogether. I am confident, that the fact, of my being able to repeal by these bills, one hundred and thirty statutes, and to compress all that it is necessary to retain of them, or to substitute for them, into twenty-nine pages, will ultimately tend to an immense reduction in the bulk of our Statute-book.—I omitted to state, on a former occasion, some alterations, or, if the House will permit me to designate them by such a name, some improvements, which I have introduced into one of these bills—that which regards the offence of Larceny. The amendments I propose will have the effect, as the House will see, of reducing the number of capital punishments by law. Under the law of burglary, as it stands at present, if the burglary be committed in any out-house, which forms part of the frontage, that is part of that which, in law, is entitled an outer-fence, the burglary is a capital offence. If it be committed in the stable or the dairy, or within that which, in the old language of the law is called "curtilage," the burglar is placed in the same situation. I venture to believe, however, that no person who maturely considers this subject would advise that a burglary, consisting of the breaking into a cow-house, or stable, or dairy, should be visited with a severity equal to that which this species of offence, under more aggravated circumstances—as in the case of breaking into a dwelling-house—is subject to. I propose, therefore, that burglary, by breaking into a stable, or even into an out-house, shall not be included in the class of burglaries, for which capital punishment shall be assigned by the law; unless in cases where there shall be some communication between the actual dwelling and that part of the premises which shall have been broken into, by a covered passage, or a window, common to both of them.—Another important alteration I have suggested, for the purpose of remedying a great defect which exists in the law of England, as it at present stands, in respect to offences against property, committed under false pretences. Nothing can be imagined more ineffectual than the law of England at present is, with respect to crimes of this nature; and nothing more hopeless, I may add, than the attempt to obtain a conviction, where pro- 1158 perty has been so obtained under false pretences, which shall visit the offender with an adequate punishment. For example, you shall charge a person who has procured some valuable goods under false pretences with a misdemeanour; and his offence will immediately be, that he has committed a felony: so that he will plead the greater offence, because, in this case, the punishment is less, or the conviction more difficult. Such was the state of our statute law, at present, that this anomaly absolutely existed in it. If a purchaser, under a false and fraudulent pretence of purchase, get possession of property, he is indicted for a misdemeanour; if he be indicted for getting possession of such property, under pretence of hiring, that is larceny. If he be indicted for this offence, upon a case, where it appears that he got possession of the property before the negotiation for the purchase was completed, his offence is larceny. But if the purchaser under false pretences be not tried until after he has got absolute possession of the property, then the English law charges his offence as a misdemeanour; so that if he gets possession absolutely, his offence is misdemeanour; or if he hath obtained either a temporary or partial possession only, it is felony; and, as you cannot indict him both for the felony and misdemeanour at once, you are subject to be defeated, even in the clearest case, in your attempt to obtain a conviction against him, on an indictment cither for the one offence or the other. This is especially true, if you charge him with the misdemeanor. If you cannot prove against him the "animus furandi," at certain periods of the transaction, you cannot convict him at all; he pleads to the felony, and your aim is defeated. Now, the object of the man in either case being the same—namely, to cheat; common sense prescribes the object of the law, which should be, in either case, to restrain and punish him. It can hardly be contended, that that is a sound state of law in which, if you hold a man guilty of a misdemeanour, he shall be liable to punishment; if guilty of felony, you shall be unable, in effect, to punish him. The noble lord, the member for Northamptonshire, asked me a question the other night, in relation to the Malicious Trespass act. That, of course, like many other laws relating to offences against property, I have made such an 1159 alteration in, as I take to be improvements; for, while I have thought it incumbent upon me, and of great, consequence, to retain all that was valuable in that law, I have ventured, at the same time, to make some amendments in it. The Malicious Trespass act was brought in, as the House is aware, four or five years ago, and enables the magistrates to convict the offender summarily, in the penalty of 5l., if the injury done amount to that sum; and upon non-payment of the penalty, the magistrate is empowered to commit to prison, for a period not exceeding three months. I propose to retain the sum which gives the jurisdiction, namely, to limit the operation of the penalty to cases where the injury done amounts to no more than 5l. This law, as I said before, in its present state, enacts, that, in default of payment of the penalty imposed, the offender shall be held liable to a term of imprisonment not exceeding three months. Now this, I think, is a very inexpedient enactment. I propose to carry the same principle into my amendment of this law, as I have carried into the other improvements I have mentioned; providing that the amount of the term of imprisonment shall bear some proportion to the amount of the fine. With reference to the objects of this act, I consider, for example, imprisonment for the space of ten days, equal to a fine of 1l. Suppose the damage, therefore, proved in any case, under this act, to amount to 1l., I propose, instead of an imprisonment for three months, to imprison for ten days; if the damage done amount to 2l. then imprisonment for twenty days. The re-result of this alteration will be, that instead of the magistrates having a power to sentence for three months, the maximum of the term of imprisonment, that maximum will be fifty days. I beg particularly to observe, that I propose to exclude from the scope and operation of this act, all offences of every kind which may be considered as offences under the game laws. At present, in the case of damage done in the pursuit of game, the magistrate has the power to commit summarily under the game laws. I propose to leave out of the Malicious Trespass act every such case. At present, the party injured has the power of apprehending summarily, without a warrant, the offender who has maliciously injured his property; that is, I should rather say, in, the case of wanton 1160 or malicious injury committed this day—two days hence the existing act gives the power to arrest without warrant. Now, I propose to take away the power of this arrest without warrant, under this act generally, and to limit it to those instances wherein the offender is caught in the fact. These, Sir, are the alterations I have made in the Malicious Trespass act. Then there are the laws relating to summary jurisdiction. Some of these impose a maximum, and others a minimum of penalty, at the discretion of the magistrate; under others, the magistrate has no discretion as to imposing any minimum of fine, according to the extenuating circumstances of the case, but must assign precisely that which is mentioned in the act. Now, I propose, in all cases, under these laws, to fix the maximum, but never to do so as to the minimum, of penalty; so that, if it shall satisfactorily appear in any case, that the party had no malicious intention in the damage which he may have committed, the magistrate may be at liberty to dismiss him instantly. At present, the power of imprisonment, in the event of inability to pay the enacted fine, was too extensive. I have attempted to regulate the proportion of imprisonment, according to the nature and amount of the damage done. And as cases of malicious injury to property, and other injuries of the same kind, admit of compensation, the party damnified, as the law stands, is to receive an amount equivalent to the loss sustained by reason of the actual injury committed upon his property, as satisfaction to him; and the magistrate has the power to inflict an additional penalty on the offender, as a satisfaction to public justice.—Having already, on a former evening, stated to the House the general principles on which the other measure I now introduce, are founded, I do not feel it necessary on the present occasion, to enter upon any further statement of them. As I believe that there exists no intention to oppose the second reading of these bills at present, I shall be much obliged if the House will permit them to pass, pro formâ, to that stage, and to the committee, merely to allow me in the mean while, time to fill up the blanks that occur. My sole object, I can assure the House is, that they may come before it, when in committee, in such a shape, as to give hon. members the best means of forming a cor- 1161 rect view of their enactments: and, most assuredly, if it be desired to offer any objections to them, I shall be most happy to afford every opportunity for their discussion, and to offer every explanation in my power.
§ Sir J. Newportexpressed his surprise that the bills introduced by the right hon. Secretary, which were found so beneficial for England, had not been extended to Ireland. He thought the whole United Kingdom ought to have the benefit of the improvements made in the law; but unfortunately, whenever any good measure was devised for England, it was not for years after extended to Ireland.
Mr. Secretary Peelsaid, that there were circumstances of difference in the law of the two countries, which rendered it impracticable for him at present to include Ireland in the bills introduced by him. He understood, however, that bills, embracing the principle of his bills, were in preparation by his right hon. friend, the Secretary for Ireland. He was here desirous of supplying an omission. It was to make a public acknowledgment of the great services he had received from Mr. Hobhouse the under-secretary, who had afforded him most important and valuable assistance. He had a similar acknowledgment to make for the valuable assistance afforded him by Mr. Gregson, a gentleman universally esteemed by the profession of which he was an ornament. Indeed, he had found a disposition to assist him, in clearing the law of its obscurities and perplexities, from the judges down to the humblest practitioner, which reflected great credit on all classes of the legal profession.
§ Mr. A. Dawsonapproved highly of the bills of the right hon. Secretary. They reflected great honour on him. His services might be compared with those which were rendered under the reign of Justitian, in the formation of a criminal code by the eminent lawyers, and statesmen of his time. The gentlemen who assisted the right hon. Secretary were also entitled to great praise; but he could not forbear thinking, that the right hon. gentleman might easily find three or four Irish gentlemen equally competent and equally ready to afford their gratuitous services in introducing these bills into Ireland, or in preparing similar bills for that country. He was at a loss to know what reason there was to prevent the extension of them 1162 to Ireland. The machinery of the law was the same in both countries. There were judges and juries, and courts of assize in one country as well as in the other; and he was anxious to learn from the right hon. Secretary what were the reasons that rendered these bills applicable and useful in England and inapplicable in Ireland.
Mr. Secretary Peelassured the hon. member that there was no disposition on his part to withhold these bills from Ireland; but he thought it would be well to try the effect of them in England, and if they worked well, then to extend them to Ireland. As far as the jury bill had been tried, it had produced the most satisfactory effects. The bills were drawn up with particular reference to the law in this country; and, if he was required now to include Ireland, he must forego the intention of passing these bills this session. He understood that a bill for consolidating the law relating to Larceny in Ireland was in a forward state of preparation.
§ Mr. Spring Ricesaid, he was glad to see the reform of the criminal law in the hands of the right hon. Secretary, who had the disposition as well as the power to carry his intentions into effect. The reform in which he was engaged, was one approved of and recommended by himself and by gentlemen on his side of the House, but they had not the means, as the right hon. Secretary had, to act upon their recommendation. He wished to see English principles and English law introduced into Ireland, and did not think there should be one set of rules for the Irish and another for the English magistracy. He would recommend his right hon. friend (sir J. Newport), who first called the attention of government to this subject, to move for the appointment of a committee, to inquire into the state of criminal law in Ireland, to ascertain what statutes were unrepealed, which contained enactments not to be found in any of the three or four bills introduced by the right hon. Secretary; and to simplify the criminal law in Ireland, by making it as conformable to the provisions of these bills as was possible.
§ Mr. Shadwellsaid, that the course taken by the right hon. gentleman was pursuant to the practice which had been heretofore adopted; and was the only proper course. A law might be perfect for England, but, at the same time, owing 1163 to various circumstances, wholly inoperative for Ireland. So far from a remedy for the defects of the law in Ireland having been neglected, it was a subject to which the most diligent attention had been paid.
§ The four bills were then read a first and second time, and committed.