Mr. Peel,in rising to move the order of the day, for referring the Larceny Laws' Consolidation Bill to a committee, ventured to commit a small irregularity, in first moving for leave to bring in a bill, which it was of great importance to have before the House in the consideration of the amendments in the criminal laws of the country. The bill to which he alluded was designed for the improvement of the administration of Criminal Justice, and was not one to which he anticipated any opposition. It proceeded upon the assumption, that every form in the administration of justice which had become obsolete, and not necessary, might, and ought to be, removed. In all 935 the alterations, therefore, which this bill proposed to effect, the substance of the existing law was in no instance affected. The alterations in the contemplation of the bill were as follow. At present, before a prisoner was put upon his trial, and had pleaded "Not Guilty," he was asked, "How will you be tried?" Now, every one who knew any thing of the administration of the criminal laws, knew how unnecessary this form was. It seldom served but to puzzle and confuse; and, in many instances, the answer to the question was such as was altogether inconsistent with the gravity of the occasion. It was expected that the prisoner would answer, "By God and my country;" but sometimes the answer was dictated by levity, such as "I had rather not be tried at all;" and, frequently, the answer was either suggested by the gaoler, or, in the event of the prisoner refusing, was made by him altogether. Now, was it, he asked, necessary to retain this form at all? and was it not consistent with common sense, that when the plea of "Not Guilty" had been entered, the trial might be proceeded with? Acting upon this view, the bill enacted, that when the plea of "Not Guilty" had been recorded, the trial might go on. The next part of the law, of which he would propose a repeal, was that which inflicted punishment on prisoners who, through obstinacy, refused to plead. He would propose, in all cases of treason, as well as of felony, that it should be a general rule, that the prisoner should be considered "Not Guilty." It was consistent with justice, mercy, and reason, that he should be considered so, merely for being mute, rather than otherwise; that his trial should take place, and a verdict of acquittal, or of guilt follow, according to the facts proved in evidence. In former times, when prisoners persevered in being mute, the ancient punishment, known by the name of peine forte et dure, was resorted to. Although it was sometimes relaxed in practice, yet in cases of treason, the continuing obstinately mute was equivalent to a conviction, and two such convictions had taken place, and execution followed: one of these was on a charge of murder, and the other one of burglary; the former occurred in 1777, and the latter in 1793. Now, he thought the extreme sentence of the law was too great a punishment to inflict for this offence; and he submitted that, in all 936 cases, it would be more consistent with justice and reason, and more satisfactory to public opinion, if the punishment were to follow, and to be apportioned to, the evidence given at the trial. Although Mr. Justice Blackstone considered it to the honour of our laws that the peine forte et dure was abolished by the statute 12th George 3rd, c. 20; yet, in his opinion, it was necessary to go beyond that statute, which determined, that the standing mute in cases of felony, as well as of treason, amounted to a constructive confession, and to adopt a contrary rule of entertaining evidence and opportunity of defence on all occasions. The next alteration he would propose was that which incurred conviction from the party persisting to challenge beyond the number to which he was entitled. In cases of treason, to challenge beyond the number was enacted to amount to legal conviction, and was attended with all the consequences of the accused party being found guilty. In other cases, the challenges beyond the proper number were declared to be null and void. Now, he would propose as a general rule, that those challenges that were made after the proper number was exhausted, should, in all cases, be declared null and void. He would next propose the correction of a great practical abuse; namely, that of pleading a former attainder in plea of an indictment. Now he would propose, that a previous conviction should, in future, not be a bar to an indictment, unless it were a conviction for the same offence to which the indictment referred. The last change he would propose was, perhaps, the most important one. It was the total abolition of what was called "Benefit of Clergy." This was a most useless and unmeaning form. To every capital offence it was annexed. It was, in fact, a mere mockery, and ought no longer to encumber the Statute-book. There were some offences to which "without benefit of clergy" was annexed, in which case immunities were provided for peers; but, as these cases were only two; namely, sacrilege and horse-stealing, he thought, with respect to these two, it was not necessary to observe any particular exemption, and that the abolition of this form might be general, and extend to all cases. In all crimes of a capital nature, where it was intended that the punishment of death should remain, that punishment was to be declared, without mentioning 937 benefit of clergy. When, in addition to the present, the offences against the person and forgery were comprehended, nearly the whole of our Criminal Law would be consolidated. He meant to introduce a clause to prevent the endless repetition of singular and plural, masculine and feminine, &c. This clause had been drawn up by a gentleman from whom he had received the most invaluable assistance in the whole of his undertaking; he meant sir J. Richardson. He apologised for having trespassed so long on the attention of the House. The bills, last session, had stood for commitment. Under the circumstances which had since taken place, he regretted the delay which had occurred in their progress. He had, however, submitted them to some of the most learned men in the country—men whose talents and experience qualified them to give the best opinions on the subject, and had received from them a number of valuable suggestions.—The right hon. gentleman concluded by moving "for leave to bring in a Bill for improving the Administration of Justice in Criminal Cases."
§ Mr. Wynnexpressed his concurrence in the emendations of his right hon. friend's bill, and the sentiments by which he had introduced it to the notice of the House. It had occurred to him, however, with reference to the clause about prisoners standing mute, that it might happen, that they did really stand mute from the visitation of God; that they might really be incapable of making a defence, from being seized with phrenzy or idiocy prior to their arraignment. He thought it might be as well if a previous inquiry were instituted to ascertain if the party were insane. He was quite sure that the abolition of benefit of clergy would be an advantage; but he was not quite clear that the privileges of the peers were not more largely trenched upon than his right hon. friend had stated; and whether, in cases of bigamy and manslaughter, they had not privileges which would be touched. In the case of the duchess of Kingston, who was convicted of bigamy, the benefit of clergy was claimed; and when the penalty of burning on the hand was to be substituted as the milder punishment, she claimed the privilege of the peerage, and escaped.
Mr. Peelsaid, he had introduced a clause empowering the court, in a case of standing mute, to have a plea of not guilty entered or not entered, at their discretion.
Mr. Broughamthought the first suggestion of the President of the Board of Control a good one. If a jury found such a person mute from obstinacy, to enter a plea of guilty, as was the practice at present, was a most harsh proceeding; since the person was punished for obstinacy. It was the old law, that he should under-go the pressure of a heavy stone on his breast, and Mr. Justice Blackstone had very properly considered that alteration of the law, by which so savage a practice was abolished, a comparative improvement in our Criminal laws. Now, if the jury found the prisoner mute by malice, he was put on his trial; but he thought it would be better, in cases where the prisoner was found mute by the visitation of God, to let the law remain as it was, than to give so large a discretion to the court as that proposed by the right hon. gentleman.
§ Mr. Sturges Bournesaid, that the House and the country were under the greatest obligations to the right hon. gentleman for the attention he had bestowed upon this most important subject; a subject which he should be sorry to see in any but such hands. The abolition of the benefit of clergy would be as important an alteration in the law, and as entitled to be applauded by every one, as was the increase of the punishment for a second offence.
The Attorney-Generalconcurred in praising the meritorious exertions of the right hon. gentleman. He lamented it as a misfortune, that, owing to his having been on circuit, and to other circumstances, he had been unable to render himself master of the details of the bill. Although the principle of consolidating so many statutes in one act was admirable, yet it was obvious that, if the execution were not good, the whole design must fail. Unless the object in view were accomplished by the most clear, distinct, and intelligible, provisions, instead of saving labour to the judges and the professors of the law, it would very much increase their present toils. He by no means intended to say that such would be the consequence of the present bill. He only wished to guard himself against being considered a party to it, if in its result it should be found not to be so good as was expected.
Mr. Peelentirely concurred with the hon. and learned gentleman, that, if the execution of the bill were not good, the principle would be useless. He could 939 only say, that there had been some experience of a bill of a similar description, by which eighty or ninety statutes had been consolidated, and which had now been two years in operation; and yet not a single representation had been made to him of any objection to that measure. He had consulted a number of persons concerned in the administration of the law; and he must say, for the honour of the profession, that he had never met with a member of it who was not always ready to give him every possible assistance and advice. He could name, among many others, Mr. Starkie, Mr. Russell, and others, and all the judges.
§ Mr. Ferguson,while he admitted that the exertions of the right hon. gentleman were most meritorious, observed, that when a proceeding consolidating a hundred and twenty-seven acts of parliament, was proposed, they ought to know the legal authority on which such proceeding was founded. He thought it would have been very desirable if the Attorney-general had had an opportunity of considering the measure from beginning to end. The best plan would have been to have referred the subject to the consideration of a commission of eminent persons thoroughly conversant with the criminal law, and who would have immediately known what were the precise parts of the existing law which it was desirable to retain. When so many statutes were swept away, the probability was, that, in the new measure, provisions might be omitted which it would be most expedient to preserve.
Leave was given to bring in the bill.