HC Deb 20 March 1850 vol 109 cc1199-205

Order for Committee read.


said, the object of the Motion he was about to make was to discuss this Bill on its merits by dividing it into two Bills. It was highly probable, from the experience of the past, that the House might be disposed to sanction the application of the Juvenile Offenders Act (which was limited to persons of fourteen years of age) to persons of the age of sixteen; but the question was totally different when they were to consider the law as applicable to adults. By applying the rule to them, they would be taking the first step to deprive the subject of trial by jury. It involved that question to a large extent, and that magistrate who asked to possess this power was seeking to have a fatal power placed in his hands. By granting to the magistrate that power, they would deprive him of the respect and love of all those around him; they would make him the enemy of the poorer classes of society, and his decisions, instead of being respected, would be suspected. It was merely the duty of a magistrate, acting in his proper capacity, to put a case in course of further inquiry without performing an act which properly was within the province of a jury; and if he went beyond that, he would expose himself to suspicion on every occasion. And as the poor alone would be the persons with whom he would have to deal, every decision adverse to the poor would then be referred to anything but the real merits of the case he was called upon to decide. They would load with odium magistrates who were now respected by the poor, and would strike a great blow against the best franchise that every Englishman enjoyed, namely, not only the right but the opportunity of being tried by a jury of his countrymen. He was surprised that his hon. Friend the Member for Droitwitch, who had obtained the character of a very able magistrate at quarter-sessions, should not feel the objection that must be made to a magistrate assuming such a power, and dealing in such a manner with cases of petty larceny, when he reflected that his best services to the public in his judicial capacity were mainly owing to the publicity of the proceedings, and the knowledge that every step he took was taken under the observation of persons learned in the law, and that he was required to state in vindication of his own opinion the facts of the case to the jury in such a manner as ought to recommend the case to their attention; and that every judicial person did not himself make up his mind as to the full bearing of a case until he had recapitulated the evidence and publicly stated the case, and his reasons for recommending any particular course to a jury. He (Mr. Law) declared he would not hold such an office on any terms that were offered to him if the jury were withdrawn, and he was called upon to perform the duty of jury as well as of judge, on the responsibility of possibly forming an erroneous judgment of the facts. All the pleasure that could attend well-directed efforts to discharge a public duty would be removed from him, and he would feel nothing but anxiety, misery, doubt, and vexation with regard to every question he should so decide. To decide on the facts was the proper province of a jury—on that province no judge should presume to intrude. But then it was said that the Act would only apply to trifling cases, where the amount of the larceny imputed was only one shilling. He was surprised that any Gentleman of the experience of his hon. Friend should attach any importance to the smallness of the amount. Did not his hon. Friend recollect that one of the most important alterations established by the right hon. Baronet the Member for Tamworth in the law was, to abolish the distinction between grand and petty larceny, and declare that a person charged with the commission of larceny to the extent only of a shilling was to be treated in the same manner as if the amount were larger? Did he forget how lately Parliament had protected the accused, by declaring that every person on trial should be entitled to make a defence by counsel, that he should have the inspection of depositions, and be at liberty to use them on his trial? Were they then, he asked, to have such trials as those referred to in this Bill, before a single magistrate, unchecked on matters of law by the presence of a professional gentleman? He knew it was not intended at present to close the door of the court on the public, but it could never be the interest of the public to attend proceedings conducted in a corner by two magistrates in their own rooms. Unless he should receive from his hon. Friend his concurrence in the proposal to divide the Bill into two, in order to raise the separate question whether it should extend to adults, or be limited to juvenile offenders, he should certainly feel it his duty not to relax an iota in his opposition. He should, therefore move, as an Amendment, that the Bill be divided into two Bills.

Motion made, and Question put— That it be an Instruction to the Committee, that they have power to divide the Bill into two Bills.


could not help thinking that he had some little reason to complain of the course which had been taken by the hon. and learned Member for Cambridge University on the present occasion. Some considerable time since this Bill came on for a second reading, with due notice and with ample preparation, in the usual manner. Upon that occasion the hon. and learned Member for Dundalk had a notice on the paper that he would move that the Bill be read a second time that day six months. The hon. and learned Gentleman attended in his place, but did not move his Amendment at that time, when the principle of the measure was fairly at issue. Now, he (Sir J. Pakington) found upon the notices for to-day, that upon the Motion that Mr. Speaker do leave the chair, the hon. and learned Gentleman intended to make the Motion of which he gave notice on the second reading, and which ought to have been made then, if at all. He found also, that without any notice at all, the hon. and learned Gentleman the Member for Cambridge University had brought forward a Motion which, in effect, was tantamount to that of the hon. and learned Member for Dundalk, and the avowed object of which was to get rid of that portion of the Bill to which he (Sir J. Pakington) attached the greatest weight and importance, namely, that which enacted that the Juvenile Offenders' Act of 1847 should be made applicable to all cases of petty larceny up to the value of 1s. The hon. and learned Recorder spoke of this as a blow at the system of trial by jury. He bogged to assure his hon. and learned Friend that there was no one in the House more anxious than he was to support trial by jury in all cases to which it was fairly applicable; but he had no hesitation in saying, as a friend to trial by jury, that experience had convinced him of the necessity of removing from that cumbrous and expensive process a number of petty cases to which it was not at all applicable. He thought the hon. and learned Recorder had rather founded his objections on his experience in the city of London, than considered what would be the operation of the Bill in the country at large. Take the cases of two young men, one charged with stealing potatoes from the ground, the other with stealing from the barn—would his hon. and learned Friend have any objection to deal with each in the same manner? It was on his own experience as chairman of the quarter-sessions that he founded the necessity of this Bill; the want of such a measure often defeated justice, many petty cases being at present abandoned in consequence of the parties being unwilling to incur the expense and delay of sending them to a jury. He assured the House that there was a very strong, he might say an almost unanimous, opinion in favour of the change among the magistracy and others out of doors. He begged hon. Members to observe that the Bill was not compulsory; that the magistrates would in every case have the option of cither sending it to a jury, or dealing with it summarily, according to the merits of the case. He hoped, therefore, the House would not consent to the Motion of his hon. and learned Friend.


denied that ample time had been allowed the House or the public to become familiar with the merits of the Bill between its first and second reading. With respect to the Motion of which he gave notice for that occasion, he was inexperienced enough to postpone it till the present stage of the measure out of courtesy to the hon. Baronet; a mistake which he should be careful to avoid in future. As to this being an improper time to bring forward his Motion, he begged to say that the forms of the House enabled him to exercise a discretion upon that point, and he availed himself of that discretion. The hon. Baronet had spoken of the opinion out of doors as almost unanimous in favour of the Bill. He (Mr. M'Cullagh) pledged himself, on moving his Amendment, to show an amount of opinion against the principle of the Bill which might fairly stagger any man whose mind was unprejudiced on the subject, and which he hoped would entitle him to ask the House to reject the Bill as at once mischievous, unnecessary, and at variance with the old established principles of the constitution.


did not see how the Amendment raised the question which the hon. and learned Recorder wished, by expressing disapprobation of the second part of the Bill. He should have thought the best course to take in order to carry out the views of the hon. and learned Gentleman would be to go into Committee, and then to move the omission of that part of the Bill which related to adults.


could not withdraw the Amendment he had moved, as he was satisfied that it would be very inconvenient to move it in Committee. He wished to take the sense of the House on the proposition that the principle of the two measures embodied in one was not safe.


observed that the first part of the Bill did not raise any new principle, but the latter part raised a question for the first time, the House not having yet decided whether adults should be tried by summary jurisdiction. He was therefore fully of opinion that it would be better to divide the Bill into two. With respect to the general object of the measure, he would take the liberty of putting-magistrates on their guard against it. This was a Bill asking the House to confer on them larger powers than they had ever yet possessed. It involved very serious questions—so serious that the measure ought to have been brought forward by the Government if they were of opinion that its principle could be safely adopted.


also entertained strong objections to the Bill. In particular, he objected to the magistrates having the power of deciding whether a child was six- teen years of age or not, and whether the value of the article stolen amounted to a shilling or not. He considered the whole subject of so much importance that it ought either to be preceded by an investigation before a Select Committee, or brought in by Her Majesty's Government.


was inclined to agree with his hon. and learned Friend the Recorder. He begged to call the attention of the House to the fact, that the Bill extended to the united kingdom of Great Britain and Ireland. Without saying anything offensive or disrespectful to his fellow-countrymen in Ireland, he might be permitted to remind the House that party prejudice ran very high in that country, and to ask hon. Members if they thought it would add to the peace of the sister kingdom, or to the happiness of hon. Gentlemen who resided there, if the trial of supposed criminals on charges of stealing to the amount of 1s. were left, as this Bill proposed, entirely to the summary jurisdiction of the local magistrates?


was friendly to the first part of the Bill, but very hostile to the second. They had nothing whatever to do with each other.


was in the position of not being friendly to either of the two portions of this Bill, and would have much preferred voting for the Amendment of the hon. and learned Member for Dundalk, that the Bill be committed that day six months; but coming to a division on the preliminary question, whether the Bill should be divided, he must vote with the Recorder of London. There, were, certainly, two distinct portions of this Bill: the first, whether the age at which the adults were distinguished from juvenile offenders should be altered. He objected to any alteration of that age. From the time of Edward III. till now, the law, as laid down by Sir Matthew Hale, made the age of fourteen the limit between the period during which a man was responsible for his actions, and that during which he was irresponsible. He was not prepared to alter a rule of law which was reasonable and had worked well. The second portion of the Bill he regarded as open to the gravest objection, and thought it should at once be rejected.


contended that the Bill did not take away a single privilege now possessed by the jury; it left the person accused the right of having a jury if he chose.


was anxious to take the sense of the House on the principle of the Bill, because he thought it a matter of great importance whether they were to divest themselves of the privilege hitherto enjoyed by Englishmen, and to which so much importance had always been attached—namely, trial by jury.


said, he agreed with hon. Gentlemen opposite that trial by jury was the palladium of English liberty; but, at the same time, it should be recollected, that that right was not taken away by the present Bill, inasmuch as it left the accused party the privilege of objecting to the summary jurisdiction of the magistrate, should be think proper, and of requiring that his case be sent before a jury. The Bill also gave a discretion to the magistrate to send the case to a jury should be so think fit.


said, that the real character of the Bill had been just explained, for the first time, by the hon. Member for East Somersetshire. He (Mr. Aglionby) thought the Bill gave sufficient safeguard to the prisoner, and be was ready to support the principle of it, both in regard to the first and second parts.


said, the two last speakers rested their support of the Bill on the fact that the prisoner was given a right to demand being tried before a jury; but he would ask, what chance of a fair trial would such a man have, if the jury were told that he had refused a summary trial? He saw great objections to the working of the Bill in detail; and he must also own, that he did not much like the principle of the Bill either.


had only to say, that he had the least possible confidence in what he had heard termed the concurrence of the prisoner. He thought the power to be conferred by this Bill was one which no prudent man in the position of a magistrate would wish to embarrass himself with.

The House divided:—Ayes 124; Noes 54: Majority 70.

Committee deferred till Thursday, 18th April.