HC Deb 01 March 1838 vol 41 cc332-44
Lord John Russell

said, he rose to bring under the consideration of the House an important measure, relating to the administration of justice in the courts of quarter session and in the other county courts in this country. There were several reasons why it was necessary that the attention of Parliament should be called to this subject, and that there should be some legislation with reference to it. One very obvious reason was, that very great changes had taken place in the law with regard to capital punishment. For some years past those changes had been gradually occurring; but he more particularly referred to those more important alterations which were made in 1832 and during the last year. They had abolished capital punishment for offences that used to be deemed capital, and which used to come under the cognizance only of the judges. In order to show to the House the change of feeling that had taken place on this subject, he would contrast a speech made by a person of great eminence not many years ago with the actual facts of the last year with regard to capital punishment. The opinions of the eminent person to whom he alluded were those of Lord Chief Justice Ellenborough—a man of undoubtedly high legal attainments, and of most unsuspected integrity in administering justice in the court over which he presided for many years. It was known that Sir Samuel Romilly had proposed several measures for the mitigation of the severity of the criminal law. One of those measures related to the punishment for stealing 5s. in a shop. That offence was at that time capital, and Lord Ellenborough, when that bill came into the House of Lords, spoke with reference to it in these terms: My Lords, I think it necessary to state, that I never did cast any imputation, directly or indirectly, upon the motives of those who are the supporters of this Bill, when I intimated something like objection to what appeared to me to be a systematic plan for altering the criminal law of the land. What I meant, my Lords, was this—after having last year a Bill on our table which has made a most dangerous innovation on the criminal law of the country—having that followed up by another which is making equally as mischievous a progress—the same arguments applying to every law, and to every crime which has been applied to this—I want to know, my Lords, when we are to stop in this course of legislation? My Lords, if we suffer this Bill to pass we shall not know where to stand—we shall not know whether we are upon our heads or our feet. If you repeal the Act which inflicts the penalty of death for stealing to the value of five shillings in a shop, and suffer this Bill to pass into a law, you will be called upon next year, I have little doubt, to repeal the law which prescribes the penalty of death for stealing five shillings in a dwelling house, there being no person therein. A law, your Lordships must know, upon the severity of which, and the application of it, stands the security of every poor cottager who goes out to his daily labours. He, my Lords, can leave no one behind to watch his little dwelling, and dreserve it from the attack of lawless plunder- ers—confident in the protection of the laws of the land, he cheerfully pursues his daily labours, trusting that on his return home he shall find all his property safe and unmolested. Repeal this law and see the contrast—no man can trust himself for an hour out of doors without the most alarming apprehensions, that, on his return, every vestige of his property will be swept off by the hardened robber."* Those were the terms in which a person of the undoubted talent and authority of Lord Ellenborough—those were the terms which he used but a few years ago in favour of allowing the law to take its course, for stealing to the amount of 5s. in a shop. He sought not by this reference in any way to diminish the weight which attached to the name of that noble and learned Lord; indeed the opinions he quoted were stated to be those not of that noble and learned Lord alone, but of all the judges at that time; and his object was to show the great alteration which in the course of a few years, had taken place as regarded the feeling entertained on this subject, and the changes that it was consequently necessary to make in the administration of justice. During last year not only was the punishment taken away which Lord Ellenborough thought so essential to the security, in the open day, of the property of every poor cottager, but it was enacted, without any difference of opinion, that even in the cases of burglary at night, where no violence was done or threatened, the penalty of death should not be inflicted. In point of fact, the number of persons capitally convicted had so much diminished during the last few years, that in 1831 there were fifty persons executed; in 1835 there were thirty-four; in 1836 there were seventeen; and in the last year there were only eight. That number of eight was probably a lower number than there would be in this year or in future years, but it showed a very extraordinary change in the manner in which the law had operated. He had taken the proportion which the number of persons executed bore to the population during the last few years, making his estimate according to the supposed annual increase of the population from 1821 to 1831, and he found the following result:—

Years. Executed. Population.
1831 1 267,000
1835 1 437,000
1836 1 832,000
1837 1 1,903,000
*Hansard (Old Series),—Appendix, vol. Without entering into an examination of the grounds on which, both in its theory and practice, the criminal law had been so much mitigated in its severity, he would observe that it was evident it could not have been left to a trial at a quarter sessions to decide with regard to the case of a person stealing 5s. in a shop, when it was the opinion of the Lord Chief Justice and of the other judges that any conviction of that offence might be followed by the execution of the capital punishment. The gravity and importance of many of the offences brought before the quarter sessions were greatly changed by the act of last year, as well as by some other recent acts; and he did not know that at present there was any certain rule by which the cases to be tried at the quarter sessions could be distinguished from those which were to be tried at the assizes. The bill of last year provided that all offences which were capital previous to that enactment the quarter sessions should not try, but that they should be reserved for the assizes; those clauses, however, were struck out during the progress of the bill through the other House of Parliament; but it was at the same time stated that the whole subject required investigation, and that the attention of Parliament ought, as soon as possible, to be directed to it. He agreed that it ought, and feeling that there should be an enactment which should distinguish the cases to be tried by the judges from those which should be reserved to the quarter sessions, in the measure he proposed to introduce there would be a distinction drawn between those offences to be so tried by the quarter sessions from those to be reserved for the assizes. He did not think the distinction of the offences that now remained capital being left to the assizes would be satisfactory to the public, because, as they all knew, there were many of the offences that were capital no longer, that were of a very important and grave nature, and if the judges did not deal with them, it would probably be considered that they hardly gave that assistance in the administration of the criminal law which the judges of the land going the circuits and attending the assizes ought to be able to give. He would not now state the particular kind of offences that he proposed should be tried by the quarter sessions and by the judges. There was another important consideration which he thought established the necessity of the measure he was now introducing to their notice; it was the great number of persons who were now tried at the quarter sessions. He had before him a return of the numbers who were committed for trial at the different courts in the years 1835 and 1837; it was as follows:—
1835 3,408 1837 3,466
1835 3,373 1837 4,027
1835 2,849 1837 3,075
But the numbers were at the
1835 10,737 1837 13,044
It was obvious that the constitution of a court which had such a very great number of criminals, which tried not less than three times as many as were tried at the assizes, was of the utmost importance. Amongst the other changes lately made in the law was that which allowed prisoners the benefit of counsel in cases of felony. He considered that a very proper alteration, but it was one which it must be admitted placed the chairman of quarter sessions in what many had felt to be a painful and difficult position. Their situation was now undoubtedly closely connected with the administration of justice in our courts. It was impossible for the chairmen of quarter sessions to allow arguments to be raised by prisoners' counsel which might mislead the minds of the jury from the true merits of the case, or to take a false view of the nature of the offence, without calmly and plainly setting right those arguments of counsel in their summing-up to the jury. He mentioned these facts because while he showed the difficulty of the situation, he established this, that it imposed on the chairmen of quarter sessions the necessity of great readiness and considerable knowledge of the law, to obviate the inconveniences that the arguments of counsel might otherwise occasion. Another consideration to which he wished to call the attention of the House was the very long period of imprisonment suffered in the prisons of this country before trial. It appeared from a statement he had made out, the particulars of which he would not go into, that the average imprisonment of the prisoners under sentence, comprising only those sentenced to be imprisoned, not those sentenced to be transported, was 130 days; and the average term of the imprisonment before trial was forty-six days. Taking a considerable period of time, the number was 134,000 imprisoned for forty-six-days, and about 60,000 imprisoned for 130 days; so that in the prison there were four days passed by persons before trial, and but five days by persons who were undergoing their sentence. The average time was forty-six days, being about the period of six weeks. It appeared to him that these several instances established the necessity of their now taking into their consideration some improvement in the courts of quarter sessions. It was not fit, he thought, that there should be so many important cases (in former times reserved solely for the judges) brought under the consideration of those courts, or that so great a number as 12,000 or 13,000 cases a year should be left to them, or that there should be so long a period of imprisonment before trial, without some attempt on the part of Parliament to remedy the evil. His opinion was, that they ought to enact that the courts of quarter sessions should be, in all cases, held twice as often as they now were—that they should be held every six weeks instead of every three months; thus, that in every county in England there should be eight of those general sessions, as well as two assizes, making ten courts held for the trial of offenders in the course of the year. But he certainly did not think that the country could expect that the burdens thus imposed on those courts of quarter sessions, considering the importance of the trials and the number to be tried, could generally and for a much longer period of time be exercised by gentlemen who had not originally had any professional practice in the law. He did not mean, and he hoped he should not be understood, to say, that in the discharge of their functions, which certainly had come to be of far more importance than any that were formerly discharged in quarter sessions, they had shown incompetence; he did not put the measure on any such grounds; he had made no statement to prove any such case; but he thought it for the public convenience that there should be the means, if it were considered fit, of having a person of legal education to preside. He did not propose that this measure should take effect at first without the application of the magistrates attending the court of quarter sessions. He proposed that on an application from them notified to the Secretary of State, the crown should be empowered to appoint a barrister of seven years standing as chairman of such courts. He proposed to connect with this a further proposition, with respect to which he had had a great deal of communication with the Lord Chancellor, and his hon. and learned Friends, the Attorney and Solicitor General. When Lord Spencer was a Member of that House, and before he was in office, he brought forward, in three consecutive years, a measure for the improvement of the county courts. His object was, that suits for the amount of 10l. and under, should be tried before those courts, and that the courts should be rendered less expensive, less dilatory, and, altogether, more efficient for that purpose. The noble Lord's bill never passed into a law, and in 1827, a measure having a similar purpose was introduced by the right hon. Baronet opposite (Sir Robert Peel), who had then lately quitted office. His measure was founded on the same general principle with respect to the improvement of the courts, and the manner in which the cases were to be tried; the expense was to be little, the process was to be summary, and there was a power to summon not more than five persons to act as jurors. There was a difference, however, with regard to the judges who were to try these cases. In his noble Friend's measure, there were to be certain Commissioners as judges, named for certain counties. The proposition of the right hon. Baronet (Sir Robert Peel) was, that the sheriff should appoint a deputy or assessor who should act as the judge of the court. Now it did appear to her Majesty's Government that by adopting in part the principles of these two measures, and by combining the duties of presiding over the civil courts with the functions of the judges who were to act as the judges of the quarter sessions, the county courts might be rendered much more efficient than they had ever yet been. A sheriff, who was an annual officer, holding his office but for the year, would not be considered entitled to give, nor would it be proper that he should give, to any person of his nomination, a title to the situation of judge during his life or good behaviour. The inconveniences of such an arrangement were so obvious that he need not detail them. He thought it far better that the judges should be named by the Crown to hold the office for life or during good behaviour. So far his measure was in conformity with the proposals of the Commissioners appointed in 1834; they proposed judges of this kind; also that the large counties should be divided into different districts, and that the judges should sit in the various towns of the same county. He proposed a similar arrangement, namely, that when the magistrates thought it necessary that the county should be divided into districts, an application to that effect having been made and granted by the Crown, the judges should sit once in six weeks in each town of the county, every such town being the capital of the district. He thought, that under such an arrangement, there would be a very cheap and efficient administration of justice. Persons would not be obliged to be for three or four days at a considerable distance from their homes, and the expense of witnesses and others would be considerably lessened. His noble Friend, the Lord Chancellor, had a measure which he proposed to introduce into the other House of Parliament. His bill related to an act, which he thought was the 3rd and 4th of William 4th c. 32, and which provided for sending issues to be tried before the sheriff that did not go beyond 20l.; what the Lord Chancellor proposed, he believed, was, that the Courts of Westminster should have the power of sending issues to be tried in this manner to the extent of 50l. Where small counties were joined together, it might be possible for one person to perform these functions for more than one county. Perhaps that principle might be carried to a still greater extent; but experience, alone, would enable them to determine the matter. He expected that the fees of these courts for the recovery of debts would pay a great portion of the expenses of the judges and other officials, but he would say, that the county ought to pay out of the county rates, a certain sum for the remuneration of the chairman of the quarter sessions. Independently of this, however, he did not propose that any additional burthen should be imposed on the county. The calculations of the present expenses, taking into account the present expense both of keeping persons for a long time before trial, and of taking witnesses a great distance, had shown, that from 20,000l. to 30,000l. might be saved, that sum being now lost, and not for any advantage gained in the administration of justice, but merely for the delay of the administration of justice. He hoped, then, that this measure would improve the administration of justice very considerably, and without entailing on the country any great expense. There were other subjects connected with this, which would readily occur to hon. Gentlemen's minds, and on which, therefore, he would not enter at this moment, but he would avail himself of the opportunity to inform the House that he intended shortly to introduce a bill relating to the present state of the prisons. It was his wish to carry further some changes in our prison discipline, that were effected three years ago in consequence of the inquiries of a Committee of the other House; but in his endeavours to accomplish that object, he should like to have the benefit of the labour of a Select Committee of this House; he should, therefore, move the appointment of such a Committee, and hoped that some Gentlemen, who were well qualified, would assist him in amending the provisions of the measure to which he had adverted. He did not think it necessary to trouble the House any further at this time; he hoped there would be other occasions on which he should be able to communicate to the House some further improvements in the criminal law. He felt that the rapid alteration which had taken place, partly attributable to a change of manners, and partly to legislative enactments, required that we should do something to keep pace with that alteration, rather than endeavour to maintain our institutions exactly what they were in former times. He, in conclusion, begged to move for leave to bring in a bill for the improvement of the county courts of civil and criminal jurisdiction.

Mr. Plumptre

did not rise for the purpose of offering any opposition to the introduction of the bill, which he was ready to say related to a subject of great importance, and might, perhaps, involve a great improvement in the law. He thought, however, that the question of the appointment of a paid barrister as presiding judge over these Courts, required much consideration. As far as his own experience of Quarter Sessions went, he must say that the law was well administered by the country gentlemen in the county, a part of which he had the honour to represent.

Mr. Hawes

said, that the noble Lord was entitled to great praise for the many measures for the amendment of the law which he had brought forward. He thought that this was another measure for which the noble Lord was entitled to the gratitude of his country. He was glad to find, without meaning the slightest degree of disrespect to the magistracy of this country, that duties of such great importance as those connected with the administration of justice should in future be performed by persons professionally competent to the discharge of those duties. He thought that the improvements proposed by the noble Lord would tend to lighten the expense to the country, and at the same time to remove crime. He cordially supported the measure, with one single exception, and that, in his opinion, was one which was likely to obstruct the progress of the measure; he alluded to the provision which enacted that this measure should not be carried into effect except in cases where the magistrates applied for its introduction. He thought that if the measure was of real importance, if it effected great public good, and he would be surprised to hear this denied, in that case, he thought it desirable that it should be at once introduced and carried into operation generally. He would not oppose the bill, but he could not help expressing his regret that this provision formed a part of it.

Captain Pechell

most cordially concurred with all that had fallen from the noble Lord. He begged to ask the noble Lord whether it was intended that the same judge should preside in the sheriffs' courts as at the Quarter Sessions? [Lord J. Russell—Yes, the same.] He hoped then that the bill would be made compulsory, and that its introduction would not be left to the discretion of the magistracy.

Mr. Aglionby

rejoiced to find, that no opposition had been offered on any hand to this measure, and he rejoiced still more to find that the noble Lord in bringing forward this measure had offered to the House one of the greatest improvements ever contemplated in the administration of the laws of this country. But he was exceedingly anxious to know from the noble Lord whether he intended to limit the jurisdiction of this valuable court to cases of debts. He also wished to know whether the court would entertain questions of damages not being debts. The third class of cases respecting which he wished to ask was that of trials of ejectment in cases of property of small amount—whether these would come under the jurisdiction of the new courts? The hon. and learned Member concluded by expressing his objection to making the operation of the bill dependent on the discretion of the magistrates.

The Attorney-General

merely rose for the purpose of answering the inquiries of his hon. and learned Friend the Member for Cockermouth. It was proposed to extend the operation of the court not merely to all cases of recovery of debts, but to all those cases which now might be decided in the county court. It was perfectly well known that the county courts, as now constituted, extended to almost all personal actions, and he hoped that all these actions would be brought before this court, where the damages did not exceed 10l. If this succeeded, then the jurisdiction might be extended. With respect to cases of ejectment, he saw no reason why they should not be included in the operation of the bill. In reply to what had been said on the propriety of making the bill compulsory, he thought that no one who was a sincere friend to the measure would press that point. It was perfectly certain that the bill was likely to be introduced generally and become popular, and he had no doubt that before two years had expired the measure would have become the universal system of England.

Colonel Sibthorp

said, that those who professed a regard for the magistrates of England took a very odd way of affording a very practical manifestation of their regard for those gentlemen when they suggested that, instead of being left to their discretion to adopt the measure, they should have no discretion at all in the matter, but that the bill should be made compulsory. He thought this was by no means behaving well towards that useful body of gentlemen, who gave their valuable services gratuitously, and discharged them with no less advantage than satisfaction to the country. There was another point to which he objected—namely, the payment of the salaries of the officers under this Bill out of the county rates. This, he thought, would be found burthensome and unsatisfactory, He wished to call the attention of the hon. Gentleman to the fact that offences of a certain description against property had very much increased in the county with which he was connected. He particularly alluded to the crime of sheepstealing, which prevailed to a most alarming extent. Sheep were stolen in large numbers as many as 140 had been stolen at once, and found their way into the hands of butchers. This was a very serious offence, and one the recurrence and extension of which it was important to devise means to check.

Mr. Handley

expressed his complete satisfaction with the measure. He flattered himself he was not saying too much, on the part of the payers of county-rates, when he said that they would not grudge paying the salaries under the bill in return for the great benefits in the administration of justice which would be conferred by it upon the country.

Mr. Barneby

said, the House would perhaps be surprised to learn, that no fewer than 13,000 persons had been tried in the course of last year at the Quarter Sessions, there being an increase of 3,000 persons above the preceding year. This might, however, be in a great degree accounted for by the fact that additional sessions had been held in many places in pursuance of a recommendation of the judges of assize. The questions he rose to ask were, whether the paid chairman who was to be appointed to preside was to have a concurrent jurisdiction with the magistrates, or was to be considered as the recorder now was in cities and boroughs, and whether appeals against orders of removal, &c., were to be tried in this court?

Lord J. Russell

said, the chairman was intended to act as chairman of the court, not as sole judge or recorder, and that appeals were to be tried before the Court.

Mr. W. S. O'Brien

said, it was worthy of observation, that the Irish Members in the House were unanimous in support of this bill, some of the enactments of which were upon the model of what was already established in Ireland. He hoped that hon. Members would agree to copy still more the institutions of Ireland. Why not follow the example of Ireland, and give the court power to try cases of ejectment to the value of 50l.? It was also well worthy of consideration, that the salaries of the assistant-barristers in Ireland were paid, not by the county, but out of the consolidated fund, and he hoped that, in justice to England, the Chairman of these courts would be placed upon the same footing, and paid out of the consolidated fund. He hoped, also, that the noble Lord would extend to England the principle that courts be held every six weeks, instead of every three months, as at present.

Mr. Wodehouse

was perfectly certain that no person would grudge to pay the salaries under this bill out of the county-rates who was capable of judging of the improvement in the administration of the criminal justice of the country which would be effected by this bill.

Mr. Gaily Knight

could not, upon this occasion, deprive himself of the pleasure of expressing the great satisfaction which he felt at the measure brought in by the noble Lord. He sincerely hoped the noble Lord would not be deterred from the "permissive system," which was well calculated to recommend the bill to the country. There were one or two points, however in which he thought the bill defective, but these he would have an opportunity of considering more fully at a further stage of the bill. At present he might say, that when there were to be eight sessions held in the course of the year instead of only four, as at present, there was no necessity for setting a court entirely apart for the trial of debts. The business, it appeared to him, might be taken together in the same court.

The Attorney-General

said, it was intended that the business should be done in the same court.

Mr. Gally Knight.

—Then my objection ceases.

Lord J. Russell

had now only to express his acknowledgments to the House for the manner in which it had been pleased to receive the bill. He trusted he should be able to have the bill printed and distributed some time before the next Quarter Sessions came on. It was not his intention to bring it on for further consideration before Easter, in order that in the mean time hon. Members might have an opportunity of maturely weighing its provisions, and making suggestions with a view to rendering the bill as effective as possible.

Leave given. Bill brought in and read a first time.