HC Deb 05 May 1828 vol 19 cc350-60
Mr. Secretary Peel

said, that in moving that the House should resolve itself into a committee on the Offences against the Person Bill, he would shortly explain the general objects of that measure, as well as of another which was before the House. One of the bills was intended to make an alteration in the existing mode of receiving evidence, and the object of the other was to consolidate the existing statute-law with respect to offences against the person. These bills had been prepared in furtherance of the system which had been for some time acted on of consolidating the statute-law. They had been prepared under the immediate and direct superintendance of the noble marquis (Lansdowne) who lately held the situation of Secretary of State for the Home Department. The object of this enactment was to introduce into our existing law some alterations which had been considered for years desirable, by persons whose knowledge of the subject and experience entitled their opinions to credit and respect. There were four clauses only in the bill. The first referred to the admissibility of the evidence of Quakers and Moravians in criminal cases. At present, their asseveration was admissible in civil cases and civil cases only. This clause proposed, in order to assimilate the administration of justice in criminal to that in civil cases, that these persons, whose evidence was objected to on their asseveration, should be placed with respect to criminal cases on the same footing as they had long since been with reference to civil cases. As far as cases went, he could cite enough of them to show, that numbers of these per- sons, from religious scruples, had suffered their wrongs or injuries to be unredressed; and the parties guilty of criminal offences against this class of Dissenters had too often, from this cause, been suffered to escape, through the unwillingness of such prosecutors, or such witnesses, to give evidence on oath.—And here he would observe that this was not at all intended as a boon to that class of persons—they disclaimed any such privilege—but as a means of rendering them competent witnesses for the purpose of benefitting thereby the community. The object of the second clause was to allow persons interested in cases of forgery to be received as competent witnesses; as the law now stood, a party injured by, and therefore interested in, a case of forgery, was precluded from giving his evidence, which he looked upon as a serious perversion of the ends of justice.—The third point intended to be accomplished, was the restoration of all persons who had laboured under civil disabilities in consequence of previous convictions for felony, and otherwise, and had expiated those offences, to be again competent witnesses in criminal causes or actions at law. There was, however, to be a special reservation in this respect, of all persons who had been convicted of perjury; as, for a very obvious reason, it would not be wise to admit the evidence of persons who were notoriously regardless of an oath.—The second bill which he meant to introduce, included the whole statute-law of the country relating to offences against the person. The effect of this measure would be the repeal of fifty-seven acts of parliament on that subject. These laws, as they now stood, were obscure and intricate; and the object of the proposed measure was not so much to consolidate them as to simplify them and to make them clear. The House was aware of the distinction there existed in our present law, as to petty treason and murder. There was no just ground for a distinction between other murderers and persons who were guilty, as wives, of the murder of their husbands; as servants, of the murder of their master; or as clergymen, of the murder of their ecclesiastical superior. In fact the law afforded such heinous criminals superior advantages; first, in permitting them to challenge peremptorily thirty-five persons empanelled on the jury to try them; and secondly, in rendering it necessary, similarly to the proceeding in cases of actual treason, that the commission of the offence of petty treason should be proved on the oaths of two witnesses. Now, he could not, in cases of this description, see any good ground for departing from the general rule adopted in our courts in cases of murder; on the contrary, he conceived that in all such cases the practice ought to be uniform.—There was also another alteration. According to the existing law, a person knowingly concealing a murderer, was, under the law of William, liable to imprisonment for one year, or for a greater period of time. But he thought it would be right to make this a capital offence, and in support of his argument he mentioned several recent murders which had taken place, as instances of the manner in which the ends of justice were frustrated by the concealment of the guilty persons. There was another criminal case in which he wished to make an alteration. As the law now stood, in all cases where parties were accused of murders committed abroad, an examination must first take place before the privy council; as in the case of governor Wall. This was productive of great inconvenience; and he meant to propose, that an examination before a justice of peace in such cases should be sufficient.— The next point to which he wished to call the attention of the House was an act, commonly called Lord Ellenborough's Act, by which all cutting or maiming with a sharp instrument, or firing with a gun or pistol, with intent to kill or do some grievous bodily harm, was held to be a capital offence; while all attacks with the same intent, if made with a blunt instrument, was visited in a different manner. He could not see why the one species of attack should be differently punished from the other, and therefore he proposed that upon conviction, the punishment should be the same in both cases. He would instance a case of recent occurrence, in which a man, named Howard, attempted, with a blunt instrument, to murder a Mr. Mullay, whom he had enticed to his residence under false pretences. Where, he would ask, was the difference, in moral turpitude, between a mortal blow given, or attempted to be given, with a stick, or with dumb bells, and a like attempt made with a sword or pistol?—The bill also made a material alteration in the law relative to the wilful concealment of the birth of a child by its mother. At pre- sent, the law applied only to cases of unmarried women; but according to the proposed change, any woman, whether married or not, who concealed the birth of a child, be it still-born or otherwise, would be deemed equally guilty. It was also proposed, that in case of a woman being tried for the wilful murder of her child, and the evidence not being sufficient fully to substantiate the charge, the jury should be left to decide as to the wilful concealment, and the individual should be punished accordingly. He thought there was no valid difference between the cases of married and unmarried women; instances might occur in which married women might conceal the births of children, as where their husbands had been absent from the country for so long a time as to render the illegitimacy of the children a necessary consequence. A woman might thus be tempted to conceal the birth. The question was one of great difficulty. It appeared to be somewhat severe, that in cases where children were still-born, a woman should not be permitted to hide her shame; but the very operation of this feeling, and the great case with which a new-born infant could be put to death, might lead to the worst consequences. It was extremely inconvenient to leave the wilful concealment of birth without any penalty. In all cases it was very difficult to say whether a child were or were not still-born. If, then, the punishment were founded on just principles with regard to unmarried women, he considered that it would be equally just to extend it to cases of women who were married. The bill also made a difference in the law relative to forced abduction, whether for the purpose of violation or marriage. At present, the crime of abduction of a woman without the consent of her parents, extended only to the heiresses of land; no provision being made for the protection of those who were to inherit wealth, however enormous, in the public funds. It was clear that the law ought to be the same in all cases; whether the abducting party had the prospect of inheriting land or money. There were some other points in the bill to which he should hereafter take occasion to refer; there were, however, one or two more, which he would now notice. The bill as it at present stood, exempted from the penalties for murder, persons who should kill other persons, in endeavouring to prevent acts of felony. This point required alteration, and he should propose a clause indemnifying only under certain circumstances. There was, however, one point which he meant to propose materially to alter; it was a point very difficult to discuss; but so strongly was he impressed with its necessity, that he felt it his duty to state what alteration he intended to propose. There were three offences specifically referred to in the bill; the first was, the crime of rape; the second, the offence of carnal knowledge of a child under the age of ten years; and the third was the crime "inter Christianos non no-minandum." In these cases, a certain description of proof was required by law, which to him appeared wholly unnecessary, and with respect to which he considered that some alteration ought to be made. From his experience during six years, as Secretary of State, he was aware of the manner in which public justice was often thwarted by this unnecessary difficulty which the law had placed in its way. It was well known, that in the cases of rape, of carnal knowledge of infants, and of that other offence, two kinds of proof were necessary to conviction. It was his strong impression, that one of those descriptions of proofs was unnecessary; and that it was not necessary to a capital conviction, to prove more than that which constituted the moral offence, as far as the offending party was concerned, and as far as regarded the suffering of the unfortunate female who was the victim of the offence. It had been well observed by lord Hale, that although rape was a most detestable crime, and ought to be severely punished, it was one upon which a charge could easily be made, hard to be proved, and harder still to be contradicted, even by a person ever so innocent; and if he thought that any alteration of the law, such as he was about to propose, would lead to false accusations, he would be the last to offer such proposition to the House. But he was of opinion, that one of the proofs required in such cases was unnecessary; because, if a party conspired to bring forward such an accusation, that party would be ready to prove all, would probably be a party in perfect knowledge of all, the circumstances, or, if not, would be easily supplied with the additional evidence necessary to convict. It was, however, a question of great delicacy and importance, and he now threw it out, in order that gentlemen might turn their attention to it. He could conceive but one objection to a change; namely, that by diminishing the proof, we should be increasing the number of false prosecutions. He did not, however, consider that such would be the fact. If cases of rape were difficult of proof, how much more difficult was the requisite proof in the two other cases to which he had referred. In these cases, how was it possible to prove the completion of either offence, to the extent which the law required? The difficulty was so great as almost to preclude the possibility of conviction. The demand for specific evidence of the offence was a great obstruction to the ends of public justice, and a great accumulation of the misery which the unhappy victim had to undergo. The alteration in the law, such as was proposed, would be only the re-establishment of the ancient law of England, as it existed. He had consulted a number of authorities, and had found that, up to a recent period, one of the proofs only was deemed necessary to conviction. In 1721, the case of a man named Duckworth was argued before the twelve judges, when six were found to hold one opinion, and six another; in consequence of which the man was tried and found guilty of a misdemeanour only. In 1777, a man was executed, who had been found guilty on one species of evidence only. His case had been argued by the twelve judges, who had decided, that one species of proof only was necessary, and the man was executed. In 1781, a man of the name of Hill was tried before Mr. Justice Buller, and found guilty, upon one of the proofs only. His case was reserved for the twelve judges. It was argued when lord Mansfield was present; four of the judges were of opinion that one proof only was necessary; the other judges differed from that opinion: lord Mansfield gave no opinion, and the man was not executed. Since that decision the uniform practice had been to require evidence as to the two proofs in all such cases; but until the year 1781, the interpretation of the law was different.—As the bill had passed the Lords, he should not press it through the House, without giving ample opportunities for considering it in all its bearings.

The House having resolved itself into a Committee on the Law of Evidence Bill,

Mr. Wynn

objected to the clause which permitted the affirmation of Quakers and Moravians to betaken in courts of justice, instead of an oath, in criminal cases.

Mr. G. Lamb

was at a loss to know in what way it was to be ascertained, whether a man, who offered an affirmation instead of an oath, was or was not a Quaker, or a Moravian. Was it to be considered sufficient for an individual, when examined before a court of justice, to say simply, "I object to an oath, and wish to give my affirmation?" The case, as applicable to Quakers, would equally apply to all separatists.

The Solicitor-general

observed, that the Quakers and Moravians were not sects of yesterday, and therefore could not be easily mistaken.

Mr. W. Smith

observed, that the exemption now proposed was no boon to the Quaker; on the contrary, it imposed upon him an inconvenience, which, however, he was ready to bear for the sake of public justice. He thought there was little fear of any person claiming to give evidence under the proposed affirmation, who had not a right to do so. He had no hesitation in saying that, with an admonition given to the witness, as in Scotland, a man would feel himself as much bound as by the most solemn oath; and a greater effect would be produced on the minds of the spectators.

Mr. Wynn

thought, if the suggestion of the hon. member were acceded to, it would create great injustice to the public; for there were many who would not now give their evidence against a man upon oath, who would give it when that restriction no longer existed. In the same manner, an infinity of evidence would be tendered to effect a man's escape by an alibi, when it was understood that that evidence did not require the confirmation of an oath. He referred for proof of the looseness of such testimony, to that which was given at their bar; where instances of prevarication were much more numerous than elsewhere.

Mr. Secretary Peel

was also of opinion, that a considerable laxity of evidence would be introduced by acceding to the suggestion of the hon. gentleman. It would lessen the amount of the public confidence in evidence given in the courts. He was surprised at the hon. member's reference to Scotland; for there an oath was administered, and that by the judge, in the most solemn manner; the words being, "I swear in the presence of Almighty God, as I hope to be saved on the great day of Judgment." Without strong practical proof of the injustice of the present system, he should be unwilling to extend the exceptions. He thought the inconveniences of requiring an oath in our Criminal Courts were very small, while, he believed, the permission to dispense with it would encourage the creation of a number of new Sects. If they went thus far, they ought to go a step further, and allow every man to choose the form of oath, or affirmation, which he might consider to be binding on his conscience.

Mr. W. Smith

said, he had recommended, not that oaths should be exchanged for affirmations in all cases, but that, where a party objected to take an oath, an affirmation should be administered to him in the solemn manner of the Scotch courts, which he considered as impressive as our oath. With respect to the laxity of the testimony given at the bar of that House, he begged the House to remember, that the witness was in no fear of prosecution.

Lord J. Russell

thought the subject well worthy of the right hon. gentleman's attention. Every one was agreed as to the propriety of taking the affirmation of Quakers; and there was a small sect in Ireland, called Separatists, who entertained the same opinion with respect to the immorality of taking an oath. The smallness of their number ought not to be made an argument for denying them the same privilege. It was also to be considered, that they bad the same tie upon persons who made an affirmation, which they had upon those who took an oath. They were liable to the same punishment for falsehood. He would require those who asked to be exempted from the oath to say that they belonged to some religious society which entertained conscientious scruples against the practice. In several courts in America, the affirmation of persons having religious scruples were taken in the room of oaths, and it was worth the right hon. gentleman's while to inquire how the practice was found to answer in that country.

Mr. Warburton

thought it was a greater evil to lose altogether the evidence of a man who would not give it upon oath, whether he religiously objected to the oath or said it was not binding on his conscience, than it was to incur the danger which the right hon. gentleman seemed to fear, but which would be found not to exist.

Sir E. Carrington

said, that the first object of the legislature, and of the tribunals of justice in this Country, was, that a sufficient sanction should be imposed on the conscience of those who were called upon to give evidence: it superinduced the terror of temporal penalties upon the obligation of a religious appeal; but the latter was its great, and, he trusted, its most operative, sanction. In considering this clause, which extended an indulgent consideration to the Quakers and Moravians, it appeared to him to amount to a legislative declaration, that the affirmation of the Quaker, or of the Moravian, was, in fact, and in its results, to all moral intents, equal to an oath. Although the members of these sects said, that they had a strong religious objection to an oath, and were forbidden to swear; yet, looking both to their scruples and their arguments, he could not but consider their objections to amount to a distinction without a difference, and hold their affirmation to be substantially an oath. With respect to Quakers, it had been found, by long experience, in civil cases, that the ends of justice were answered by their admissibility, and they had accordingly been admitted; but he thought it would be a dangerous innovation, without experience of its absolute necessity, to admit the affirmation of those various sects which sprang up day by day, to a transient notice, and then sank into oblivion.

The House having resolved itself into a Committee on the Offences against the Person Bill,

Mr. Portman

wished to know whether the right hon. gentleman intended to introduce any provision for giving magistrates a summary jurisdiction in cases of petty assaults. He instanced the case of a soldier's wife, who having been assaulted and robbed on passing through a town, applied to a magistrate for redress. The magistrate wanted to bind her over to prosecute, but the poor woman stated, that she must follow her husband, and the ends of justice were thus defeated in her case.

Mr. Peel

admitted that hardships might, and no doubt did, arise under the law as it stood; but if they were to introduce any clause on the subject, it would be liable to the objection of increasing the summary jurisdiction of the magistrate; and great caution should be observed to guard that power against abuse. It might also have the effect of encouraging frivolous prosecutions, and of giving rise to great animosity in cases of slight affrays, which had better be settled between the parties.

Sir T. Baring

alluded to the shortness of the interval between the conviction and execution of a murderer, according to the present law, and observed that the period was too short to admit of that reconsideration which, in some instances, might lead to the respite of the convict.

Mr. Peel

defended the present practice on the ground of the advantage arising from the example, when the punishment immediately followed the conviction. He did not recollect an instance where a man had suffered from want of time to communicate to the government any strong circumstances in his favour.

Mr. Van Homrigh

said, he knew an instance where a danger of that kind had nearly occurred. He was present at a trial where the judge recommended the jury to find a verdict of wilful murder. They did so under his direction, and the man was ordered for execution; but he (Mr. Van Homrigh) agreed with the jury, that it was a case of manslaughter only. In consequence of that he went to the judge for a respite, that he might apply to the government; but the judge refused. He went to Dublin the next day, and on passing through Drogheda met with chief justice Downes, to whom he told the circumstances, and who recommended him to go to the Castle. The lord lieutenant was not at the Castle, the Secretary of State was in England, and Mr. Gregory, the under Secretary, said he could do nothing. He told that gentleman that, in that case, the man would be murdered. The Attorney-general was then called in at 5 o'clock in the evening, and when they had heard the circumstances they agreed with him; but Mr. Gregory said, what was the use of it, since no express could arrive in time to save the man's life? He answered, "Do you give me the authority, and I will take care that it shall arrive in time." The respite did arrive in time, and the man's life was saved.

Mr. Peel

said, that under such circumstances there should be no hesitation in suspending the execution. The fact did not prove that it was impracticable to do justice in such a case under the existing law; and, as far as his own experience went, it was not attended with inconvenience.

Sir T. Baring

thought that the case alluded to was a case in point.

A long and desultory conversation then took place on the respective clauses. Several amendments were agreed to, and the bill, with the amendments, was ordered to be reprinted.