§ Order for Second Reading read.
§ MR. J. G. PHILLIMORE
wished to ask the noble Lord at the head of the Government whether, as the Attorney General, who had given notice of a Motion to refer this subject to a Select Committee, was unable to attend that night, he would not, out of compassion, give him a Government night for the discussion of the measure?
§ VISCOUNT PALMERSTON
said, that as his hon. and learned Friend was unable 698 to attend, he would himself make that Motion in his absence, and he hoped the hon. and learned Member would not disagree to it.
§ MR. J. G. PHILLIMORE
would ask the House in that case to listen to the reasons he had for introducing the Bill; it was because abuses in the administration of criminal justice were of paramount importance, and because many of them must be attributed directly and immediately to the want of public prosecutors. He asked the House to declare its opinion that the most exalted functions of the Crown, and the most sacred rights of the subject, should not be left to the discretion of attorneys and policemen, but that the means of enforcing public justice should belong to an influence more august and commanding. Whatever varying boundaries might in other matters be allotted, according to the varying opinions of individuals, to the function of the Government, there could be but one opinion that it was the duty of Government to provide for the pure and exact administration of justice, where the lives and liberties of the subject were at stake. When the law, by its indirect operation, gave an advantage to the rich over the poor, extending more aid to the man who could put it in Motion than to him who could not, precisely to that extent it established a sense of injustice, and produced a mischievous effect upon the moral sentiments of the people. In the present administration of the law frequent instances must necessarily occur where such was the case; because the law threw upon the injured party the whole responsibility of bringing the criminal to justice, in spite of its own theory and language, according to which every offence was crime against the state. Such a state of things was unwise, preposterous, indecent, and without any parallel in any legislation, ancient or modern. It gave cause to scandals and evils to which it was astonishing that we submitted. When, from the reluctance of the party injured to encounter the labour and expense of a prosecution, a ruffian, who had injured a defenceless woman or a helpless child, was allowed to escape with impunity, all the objects for which society ought to be supported were overthrown. The certainty of punishment was the great barrier against offences; but when, in addition to the uncertainty of all earthly things, there was added the uncertainty arising from the criminal apathy of the law, which did not impose upon 699 any one party the duty of bringing malefactors to justice, the chance of escape to atrocious criminals must be multiplied to a frightful degree. The security to life and liberty, which was only to be secured at a great expense and outlay, must be the monopoly of the few; and he felt assured that many of those even whom he was addressing had consented to pay an unjust demand rather than submit to an expensive litigation. It was not his intention in any part of his Bill in the least degree to encroach upon the authority of the Attorney General. The desirableness of the establishment of a public prosecutor was testified to by Lord Denman, by the Recorder of Leeds, Mr. Rutherford, Mr. Roscoe of Liverpool, the Crown Solicitor in Ireland, and by very many of the most eminent magistrates. It was also clearly established by multitudes of cases on record, one of which was that of a stepfather who, clearly proved guilty of most horrible cruelty to a child, was allowed to go free on agreeing to pay a weekly sum to support the child in the union. On a great question of this kind he was almost ashamed to enter into so subordinate a question as that of expense; but the House might be assured, from the evidence taken before a Committee of the House, that, so far from the expense now employed on public prosecutions being increased, it would be considerably diminished by the stop that would be put to frivolous prosecutions for the sake of gain. He would gladly accept any suggestions that might be made to him on the subject; but he thought it was most important that the House should show that the right of the poor and of the rich to criminal justice stood upon an equal footing, and that the woman and the workhouse child should know that they might take their place under the eye of public justice, and, instead of shrinking, as at present, from the difficulties they had to encounter, that they might know they had now provided for them a guardian to whom, when oppressed, they might at once apply, aud by whom they should certainly be supported.
§ Motion made, and Question proposed, "That the Bill be now read a second time."
§ MR. W. EWART
said, he went quite along with his hon. and learned Friend in his views upon this subject; indeed, he thought the necessity for legislation was so evident that nothing could be said against the principle of the Bill. He considered that 700 the provisions of it were perfectly satisfactory, and he trusted that the House would agree to its second reading, and that the whole subject would be then referred to a Select Committee.
§ VISCOUNT PALMERSTON
said, there could be no doubt the subject was one of very deep importance, not only to the personal interests of the community at large, but as involving also the great question of public morality and of the discontinuance of crime. At the same time, the proposal to establish a public prosecutor was one on which it was well known that there existed great diversity of opinion. The example of Scotland an Ireland might be quoted in favour of such a measure; but there were grounds upon which it might be doubted whether that which succeeded in those countries would be equally applicable to the larger area of England, and the more numerous and complicated transactions which came before English courts of justice. At the same time, the House, he thought, would not be prepared either to deny the principle of his hon. Friend's Bill or to adopt at once the arrangement he proposed. It was the intention of the Attorney General, had he been present, if the House chose to allow the Bill to be read a second time, to propose the postponement of further procedure upon it, and that a Select Committee should be appointed to inquire into and examine the subject to which the Bill related. It was not the Bill which it was proposed to refer, but the subject; it was obvious that the reference of the Bill merely would be too narrow for the accomplishment of the object in view. The subject was well worth the consideration of Parliament. No doubt, the appointment of a public prosecutor, if the details of such a measure could be so arranged as to avoid giving rise to any new inconveniences would be a great advantage. Yet, if, on the one hand, those who, from their position in life, were too poor, or from the want of information, too ignorant, successfully to prosecute a wrong before a court of justice—if such persons would derive great benefit from the existence of a public prosecutor, and if vexatious proceedings would be to a great extent stopped, yet, on the other hand, it was obvious that a great responsibility and a great discretion must be vested in such a public officer, and that he must operate through a great variety of private agencies, for he could not in his own person conduct all those prosecutions, or even himself decide 701 which should, and which should not, be carried out. The question, therefore, as it appeared to him, although well deserving of serious consideration, would require great preliminary care, information, and investigation. He would submit to the hon. and learned Member that, whether the Bill were then read a second time or not, further proceedings should be suspended, and that the House should agree to the appointment of a Select Committee, which the Attorney General on an early day would propose, and which should inquire into the whole subject-matter to which the Bill related.
§ Amendment proposed, to leave out from the words "That the," to the end of the Question, in order to add the words "subject of the said Bill be referred to a Select Committee" instead thereof.
§ MR. PACKE
concurred in the recommendation of the noble Lord, and hoped the hon. and learned Gentleman would withdraw his Bill, in order that the whole subject might be referred to a Select Committee. He hoped, too, that that Committee would have power to call for persons, papers, and records; for this was altogether so novel a proposition in our criminal jurisdiction that he was quite sure it could not be fairly considered without the fullest inquiry beforehand.
§ SIR FREDERIC THESIGER
would take the liberty of seconding the proposal of the noble Lord to postpone the second reading of the Bill till after the receipt of a Report from a Select Committee to be appointed to consider the whole subject. The subject was one of very great and serious importance; and the Commissioners appointed to consider the state of the criminal law had expressed their opinion that the establishment of a public prosecutor would necessarily introduce great changes in the criminal law, and should not be consented to without the greatest caution and consideration. When it was considered that such a measure would probably be followed by an alteration of the law as to the system of grand juries, that it might lead to the appointment of stipendiary magistrates, that it might render unnecessary the existence of clerks of assizes and clerks of the peace, that it might involve a greater jurisdiction in magistrates and a greater power of preventing cases going to trial—when all these circumstances were taken into consideration, it would be obvious that a most careful examination was necessary, before the House adopted 702 any particular measure relating to this question.
§ MR. J. G. PHILLIMORE
said, he concurred in what the noble Lord had said as to referring the whole question with which this Bill dealt to a Select Committee; and he was willing, therefore, that the second reading should be deferred for a month or six weeks.
§ MR. I. BUTT
said, he would assent to the proposition of the noble Lord, provided it was distinctly understood that it was the subject and not the Bill that was referred to the Select Committee. The Bill was liable to insuperable objections, seeking as it did to effect a radical change in the constitutional principle upon which criminal prosecutions were conducted. A responsible public prosecutor alredy existed, the Attorney General having, theoretically, the powers of such an officer, and it was open to him to a great extent to convert the theory into practice. The law on this subject was identical in England and Ireland, the Attorney General having authority to conduct any prosecution himself, or to employ a barrister to do so, where the general tranquillity of the country or the prerogative of the Crown was concerned; and it had unfortunately happened that in Ireland many cases partaking of an insurrectionary character had occurred which had called for the frequent intervention of the Attorney General. He thought, however, that to take the prosecutions in England out of the hands of the magistrates, as the Bill proposed to do, and as was done in Ireland, was not at all necessary, and he should be sorry to see it done.
§ Question, "That the words proposed to be left out stand part of the Question," put, and negatived.
§ Words added.
§ Main Question, as amended, put, and agreed to.