§ Order for Committee read.
§ House in Committee.
§ Question again proposed, "That Clause 1 stand part of the Bill."
§ MR. BOWYER
said, he rose to move, as an Amendment, that the Chairman do now leave the Chair. This was a Bill which meant nothing more nor less than to abrogate a part of the British constitution. And what grounds were assigned for so important a step? A good deal had been said about the inconveniences arising from the present system; and on these grounds of inconvenience alone the institution of grand juries in the most important part of this country was to be abolished. No suggestion was made of any means by which this inconvenience might be obviated; it was proposed not to amend but to abolish and destroy. He was much surprised that such a Bill should come from the Conservative side of the House, which professed uncommon respect for, and devotion to, our antient institutions. No doubt the hon. and learned Gentleman who had charge of the Bill (Sir F. Thesiger) was actuated by the purest motives in bringing it forward, but he (Mr. Bowyer) could not help thinking that he now somewhat regretted the task he had undertaken. There were not wanting indications in the past history of this question to show that the agitation against grand juries in the metropolis arose simply from the unwillingness of persons engaged in trade and other occupations to serve on them. Attempts had been made on previous occasions to introduce a Bill of this description; and it was not long since the late Solicitor General, then Recorder of London, had proposed a measure with the same object in view, which passed that House rather rapidly, but which was rejected by the other House, being received with reprobation by all the law Lords, and being especially condemned by the Chief Justice of England, who denounced it as an attack upon the constitution of the country. He might be told that this Bill applied only to London; but if grand juries were abolished here, he did not see how it would be possible to maintain them elsewhere. It was letting in the small end of the wedge. Indeed, he was not 1434 quite sure it was not letting in the large end too. He would, with the permission of the Committee, now proceed to advert to what the law was upon this subject, and to urge upon their attention the violation which such a change must make in one of the most valued principles of our constitutional system. To put a man on his trial without the intervention of a grand jury was against the whole policy of our constitutional history and against the law of England. Certainly, the Attorney General had the power of filing an information for misdemeanours without the intervention of a grand jury, and the Court of Queen's Bench possessed a similar power, but these very exceptions showed the principle on which the rule itself was founded. For the law allowed criminal informations to be filed, only in cases of misdemeanour, and no one could therefore be put on his trial for felony except on an indictment found by a grand jury, or on the inquest of a coroner's jury. And, indeed, it was customary, even after a verdict of a coroner's jury, to prefer a Bill before the grand jury, and put the prisoner on his trial on the indictment. And in cases of misdemeanour, the law would not allow any man to be tried without indictment found by a grand jury, unless with the sanction of the highest Criminal Court in the realm next to the House of Lords, or by the act of the highest law officer of the Crown responsible to Parliament. Such is the constitutional principle of the law of England. Yet this principle was sought to be abrogated for the convenience of a few persons. Black-stone, in the fourth volume of his Commentaries, p. 349, quoted the famous passage of Magna Charta, which says—Nullus liber homo capiatur vel imprisonetur aut exulet aut aliquo alio modo destruatur nisi per legale judicium partium suorum vel per legem terræ.Blackstone then proceeded to say—The antiquity and excellence of this trial for the settling of civil property has elsewhere been explained at large. And it will hold much stronger in criminal cases, since in the times of difficulty and danger more is to be apprehended from the violence and partiality of Judges appointed by the Crown in suits between the king and the subject, than in disputes between one individual and another to settle the metes and boundaries of private property. Our law has, therefore, wisely placed this strong and twofold barrier of a presentment and a trial by jury between the liberties of the people and the prerogative of the Crown. It was necessary for preserving the admirable balance of our constitution to vest the executive power of the laws in the prince; and yet this power might be dangerous and destructive to that very constitution, if executed 1435 without check or control by justices of oyer and terminer occasionally named by the Crown, who might then, as in France or Turkey, imprison, despatch, or exile any man that was obnoxious to the Government by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that no man should be called to answer to the King for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow- subjects—the grand jury—and that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate not only from all open attacks (which none will be so hardy as to make) but also from all secret machinations which may sap and undermine it, by introducing new and arbitrary methods of trial by justices of the peace, commissioners of the revenue, and courts of conscience. And, however convenient these may appear at first (as doubtless all arbitrary powers well executed are the most convenient), yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern.Could the House entertain the slightest doubt as to the course which Blackstone would take were he now a member of that body. He (Mr. Bowyer) would admit that there were inconveniences incidental to the present system, but he believed they might be all obviated without trenching upon the liberties of the subject in the way this Bill proposed to do. For instance, he was aware that cases sometimes occurred in which indictments were preferred against persons behind their backs, and in which bench warrants were issued before they knew that they were accused. No doubt that was a great inconvenience; but it might be easily avoided by providing that no indictment should be sent before a grand jury without previous notice being given to the accused person, or without proceedings having been taken publicly in the first instance before a magistrate. Another inconvenience of the present system was that sometimes witnesses were bought off and were prevented appearing before the grand jury, or that, having gone before the grand jury, they neglected to make their appearance at the trial. This might be effectually remedied, however, if proceedings in the first place were taken before a magistrate, 1436 by binding over the witnesses to appear both before the grand jury and at the trial. The real difficulty in the way of administering criminal justice in this country arose from the want of a public prosecutor, and this was a difficulty which did not arise in Scotland or Ireland, as in the former there was the Lord Advocate, and in the latter there was the Crown Solicitor. In short, all the existing evils were susceptible of an easy remedy, without resorting to the extreme remedy of abolishing grand juries. If grand juries were abolished in London the thing must go further. Grand juries in the country would be soon done away with, for the argument would be speedily urged, if grand juries have been abolished in London, why should they continue to exist in the country. The institution of grand juries brought into the administration of justice many persons who would not otherwise be brought in, which was a great feature in a free country. Though it might be an inconvenience to trades people to attend on grand juries in London, still it was most important that those classes should take a part in the administration of justice. If the present Bill passed, instead of the people having in their hands the important function of accusation by means of presentment, what duty would pass into the hands of magistrates, removable at the pleasure of the Crown—practically of the Home Secretary. The exception of cases of treason and misprision of treason made in the Bill, showed how much the hon. and learned Gentleman felt the force of this objection. But the hon. and learned Gentleman had not provided for cases which might have a political complexion, and in troubled times be no less important in a national point of view; and such cases were more likely to arise in London than in any other place. The importance of this Bill could scarcely be exaggerated, and involved the most grave constitutional considerations. It appeared to him to be fraught with so much danger and evil that he could not consent to its proceeding further. He, therefore, moved that the Chairman do now leave the chair, with a view to preventing the further progress of this measure; as he believed that if it stood over till next Session his hon. and learned Friend would in the interval apply his great ability to the task, not of abolishing grand juries, but of ascertaining how any inconveniences resulting from them might be obviated.
§ SIR FREDERIC THESIGER
said, he thought he had some reason to complain of the course pursued by his hon. and learned Friend. When he asked leave to introduce the Bill, he heard nothing urged against its principle, except some desultory observations from the hon. and learned Member for Dundalk (Mr. Bowyer). Ample notice was given of the second reading, and the Bill passed without opposition until the night when it was appointed for Committee, on which occasion the hon. and learned Member for the Tower Hamlets (Mr. Ayrton) merely stated that he had some Amendments to move; while the hon. and learned Member for Dundalk, even at that time, gave no notice of any objection which would go to the principle of the Bill. He thought it inconvenient, and he might almost say unfair, to the House and to the introducer of a Bill of this kind, that no intimation should be given, until the present late stage, of an opposition to the principle of the measure. With regard to the observations of his hon. and learned Friend, he (Sir F. Thesiger) did not in the slightest degree regret having introduced the Bill; he should, indeed, regret it if it failed, as it was solely from a knowledge of the existing inconveniences and not through any pressure from other parties, that he had done so. He had adopted this course, too, after communication with the Government, who had kindly left the matter in his hands. His hon. and learned Friend had assailed the measure on the ground of principle, quoted Black-stone and other ancient names to raise a prejudice against it, and finally characterised it as a violation of the British constitution; but he (Sir F. Thesiger) could refer to more important institutions than this which had been broken in upon by legislation. In the County Courts, for instance, a single Judge decided on the interests of parties without the intervention of a jury. Now, he thought that Blackstone, if he were living, would be of opinion that that was a greater inroad on the constitution than the proposition now made. His hon. and learned Friend had referred to the danger of the present measure leading to an interference with grand juries in the country. Now, when he brought in the Bill, he had expressly guarded himself against the supposition that the measure had any such object, for he thought it was of importance that the country gentlemen should take a part in judicial proceedings, and be connected 1438 with the Judges in the administration of criminal jurisprudence. He thought, however, with regard to the Metropolitan police districts, that there were special reasons in favour of the adoption of his Bill. His hon. and learned Friend had not made himself master of his subject, for if he had read the evidence given by witnesses of great experience before the Commissioners for the Amendment of the Criminal Law, he would have found the highest names recommending that, within the metropolitan districts at least, grand juries should be dispensed with, and that a Committee of that House, composed of persons of great legal knowledge and experience, had also urged the adoption of that course in all cases where preliminary inquiries had taken place before police magistrates. The grand juries at the Central Criminal Court and at the Middlesex Sessions had been in the habit of presenting themselves session after session as not only unnecessary, but a positive obstruction to justice; while Recorder after Recorder, and Judge after Judge, had strongly expressed their opinions that grand juries might properly be dispensed with in the metropolitan police districts. The late Recorder of London, in 1852, declared in the strongest manner his opinion that grand juries were positively an impediment to the administration of justice; the grand jury at the same time made a presentment to a similar effect; and, as Attorney General under Lord Derby's Administration, he (Sir F. Thesiger) introduced a Bill for the abolition of grand juries within the metropolitan districts, which he believed would have been carried but for the dissolution of Parliament. He considered that grand juries might safely and properly be dispensed with in the metropolitan districts, where, by means of the stipendiary magistrates—who were carefully selected from the Members of the legal profession—preliminary investigations might be instituted which would be full and searching, at the same time that the interests of the accused were sufficiently protected. Such inquiries were conducted publicly, the parties charged being confronted with their accusers and their witnesses, whom they had an opportunity of cross-examining. After the case had been attended with all this publicity, which alone was a sufficient protection to the accused, for it brought the circumstances as much home to the knowledge of every person in the kingdom as if he had been present in court, 1439 the magistrate, if he saw sufficient reason, committed the accused for trial. But before a trial could take place a new tribunal of persons, sitting in a secret chamber, hearing witnesses in the absence of the accused, desultorily assembled for the purpose of deciding as to whether there should be an inquiry, which had already been decided under more favourable circumstances by the magistrate. The case was, therefore, a peculiar case, as applicable to the metropolitan police district, and did not affect any other portion of the country. If the grand jury sent the case for trial, they only endorsed the decision of the magistrate; but if, on the contrary, with their imperfect means, under any circumstances, they should throw out the bill of indictment, the greatest public evil would be done, for in that case the grand jury become an obstruction to justice. The grand jury in the metropolitan district was known as the "Hope of the London Thieves." But supposing the bill thrown out—the bill of indictment after the decision of the magistrates—would the accused party under all the circumstances of publicity be any better because he did not go to trial, more especially if he could clear his character? The public were acquainted with the accusation; they knew it was the opinion of a magistrate that the accused ought to be put upon his trial; but they could not be aware of the reasons which had induced the grand jury to ignore the bill. Whether, therefore, the grand jury found or ignored a bill, their action was supererogatory and frequently mischievous. Another strong objection to the continuance of grand juries in the metropolitan districts arose from the circumstances that persons were enabled to prefer bills without any notice to the accused parties, to obtain bench warrants for their apprehension, and to use this legal machinery for purposes of malice or extortion; and these instances were unfortunately not very rare. He trusted, then, that the principle of this Bill having beer already recognised by the House, hon. Members would consider that he had answered the objections of his hon. and learned Friend, and the more especially as this was not the stage when there ought to be any interposition to stop the further progress of the measure.
§ MR. AYRTON
said, the Session was remarkable for the number of Bills passed through their earlier stages sub silentio on condition that their principles were to 1440 be discussed at a subsequent and unusual period. Therefore it was, that the hon. and learned Member had been allowed to pass his Bill to its present stage, the second reading having taken place at a late hour, and during the confusion of hon. Members leaving the House. He (Mr. Ayrton) endeavoured to prevent the hon. and learned Member pushing the Bill subsequently through another stage at the unseemly hour of 2 o'clock in the morning, and succeeded by hon. Members declining to be parties to such a proceeding, and quitting the House so as to reduce it below the proper number for carrying on business. The hon. and learned Gentleman (Sir F. Thesiger) had, therefore, rendered it incumbent on his hon. and learned Friend (Mr. Bowyer) to take the course he had done. He (Mr. Ayrton) entirely objected to the proposition for abolishing grand juries within the metropolis. There was no institution in the country, which they could not show to have some defects, either in its origin, nature, or practical application, and if that was to be the ground on which destruction was to proceed, he knew no institution which could stand the test of such a scrutiny. He would beg to ask, what was the distinctive feature of the administration of justice in this country as compared with that of almost all others? In France, and indeed throughout the rest of Europe, the administration of criminal justice depended solely on the Crown; while, in this country, the administration of justice was a mixed operation between the Crown, the aristocracy, and the people. The latter were represented by petit juries, the aristocracy by grand juries, while the Crown presented itself in the person of the Judge. Some supposed that our mixed system of Government of Sovereign, Lords, and Commons, depended entirely on Parliament, but it had a broader basis in all the institutions of the country, of which the most important was the administration of justice; and it was to this system that we were indebted for the maintenance of liberty. He insisted that if we changed this system, and if in the metropolis the wealthy and intelligent classes were no longer to take part, as now, in the administration of justice, we should destroy one of its principal features. The grand-jury system, he would submit, did most essential service in guarding the liberty of the subject, and he must ridicule the idea that a stipendiary magistrate, a mere creature of the Home Office, was a sufficient barrier between the sub- 1441 ject and the Crown. He objected to uncontrolled power being placed in the hands of stipendiary magistrates; and, if this Bill passed, it would have the effect of giving the stipendiary magistrates of the metropolis, greater powers than any court of justice possessed, with the exception of the House of Lords, because they could refuse to commit, and thereby deprive a complainant of all means of seeking redress without appeal. He (Mr. Ayrton) knew of a case in which a magistrate of that class refused to commit parties for an assault, who were subsequently, by the intervention of the grand jury, tried, convicted, and sentenced to two years' imprisonment. It had been suggested that the grand jury of the Court of Queen's Bench, would afford a substitute for the local grand juries, but that was an error, for if that court were to sit out of Middlesex, as it might do by law, there would be no grand jury at all for the county of Middlesex. The hon. and learned Gentleman desired to get rid of certain evils connected with grand juries, and yet left the grand jury of the Court of Queen's Bench untouched. It was notorious that for the very purpose which the hon. and learned Member deemed most objectionable the grand jury of the Court of Queen's Bench was found more convenient, and that some persons chose rather to prefer indictments there than before grand juries of the Central Criminal Court. While the Queen's Bench grand jury was left, the alleged grievance of grand juries would be only partially remedied, and this measure, therefore, could not be said even to accomplish the ends which the hon. and learned Gentleman had in view. But there was a fatal objection to the Bill, that it proposed that every inhabitant of the metropolis should hold his liberty at the will of the Attorney General. There was no provision that in all cases there should be investigation before a magistrate, but there was a clause which gave the Attorney General the right to file an information for felony, a power which he had never possessed. By the mere fiat of the Attorney General, without inquiry, without oath, without even an affidavit, any individual might be committed to prison upon a charge of felony, and such a person having no right to a writ of habeas corpus, might have to lie in gaol until the Attorney General chose to discharge him or bring him to trial. It was most reckless legislation, and so insulting to the inhabitants of the largest metropolis in the 1442 world, that the Bill ought to be at once rejected. The object of grand juries was to secure an independent tribunal between the Crown and the people, so that the people might not be left to the mercy of the stipendiaries of the State. If the Committee should come to the conclusion, as he trusted they would, not to proceed further with this Bill, he would not shrink from entering into the whole question of the constitution of grand juries, and he would remind the Committee that the objections of the hon. and learned Gentleman applied to all grand juries, and not to the grand juries of the metropolis alone. There were stipendiary magistrates out of London. But were they to understand that the hon. and learned Gentleman thought the landed gentry, who exercised the powers of magistrates, were so unworthy of trust in the discharge of their duties, that it was necessary to have a special institution to watch over them? Such must be the doctrine of the hon. and learned Gentleman, in fact, though he might deny it in language; but he would advise the Committee to look to acts and disregard language, especially when it fell from the lips of a learned and accomplished lawyer. He warned hon. Members to beware how they trifled with an institution like this—seeking to abolish it in respect of two and a half millions of people, and to retain it in so many other places smaller than London. It was said there was a greater check upon magistrates in the metropolis by means of publicity, but he would remind them that there was hardly a country town where there was not a newspaper, and in the country there was tenfold more publicity, because the local papers, not concerning themselves so much about the affairs of the whole kingdom as The Times looked for support in publishing at length matters of local interest. He trusted he had said enough to prevent the Committee proclaiming, by their assent to this measure, that country justices were so deficient that, while grand juries were abolished in London, it was absolutely necessary to maintain them to watch over the conduct of the aristocracy in the country. He hoped the House would let it go forth to the inhabitants of the metropolis that their rights and privileges would be as much respected as if they had a representation commensurate with their numbers, wealth, and intelligence. Grand juries were no idle or useless tribunals. There had been 20,000 bills ignored in ten years, 1443 and 57,000 persons acquitted. It was very easy to tell a man that, if innocent, he would be acquitted upon trial; but was it no punishment to be compelled to submit to the disgrace of standing in a dock and being charged with an offence? The evils incident to grand juries were two in number. The first was, that a man might he indicted without a preliminary inquiry and without depositions. What could be easier than to pass a law, not for the metropolis alone, but the whole country, that no bill should be found by a grand jury unless an information had been taken down in writing, so that it might remain on record for the use of the accused when he was put upon his trial? The second abuse was that, when the witnesses had been examined before a magistrate, it was putting them and the public to unnecessary expense to have them examined again before the grand jury. Why not provide that the written statements on oath of the prosecutor and the witnesses should be laid before the grand jury, with liberty to send for the latter if required? By the adoption of these two provisions, they would get rid of every grievance affecting the institution of grand juries, make the administration of justice quicker and more simple, relieve witnesses and the public from unnecessary expense, and render grand juries more efficient. If grand juries had been in abeyance for great political purposes, so had the Habeas Corpus Act, for there was scarcely an instance on record of a subject being brought into Westminster Hall to be discharged from imprisonment merely oppressive on the part of the Crown. A Minister of State might wrongfully direct a subject to be seized or his house to be broken open, but by the law of England he could be indicted, with his agents, for this offence against the law. The very existence of such safeguards obviated the necessity for calling them into action, and it was because a Minister of State could be thus indicted by a grand jury, without the intervention of the Crown, that such proceedings were unknown. He believed that the liberty of the subject depended upon the maintenance of grand juries and other similar institutions. Without them Parliament would be of little avail, we might talk of liberty in the House of Commons, but we should he deprived of the means of possessing it, and we should be reduced to the state of the continental nations, where the word of command was obligatory, and those to 1444 whom it was directed had no option but to obey, whilst those who were aggrieved were dependant for redress upon the pleasure of the Crown. Such an outrage on public liberty as this Bill would effect was never before attempted; and it was the duty of the House, if they wished to prevent the ultimate predominance of a civil service class, to refuse to proceed with it, the more especially as all the evils incident to grand juries might be remedied by the two short and simple provisions he had suggested.
§ MR. M'MAHON
said, that if the Bill provided that when any ordinary case had been investigated by a police magistrate, there should be no further inquiry before a grand jury, nothing could be said against it; but it so completely substituted the police magistrate for the grand jury that it could not safely be passed into law. It was based on the assumption that there were stipendiary magistrates in every division of the metropolitan district, but this was a mistake; there were no stipendiary magistrates in the City of London; and did the hon. and learned Gentleman, who was the adviser in that House of the country party, mean to tell them that tradesmen in the City of London who might have attained a certain dignity had all the learning and experience of legally educated persons, and were competent to decide as magistrates, and that country gentlemen were not competent? The county of Essex formed a portion of the area over which the Central Criminal Court had jurisdiction, and at the present moment a man was lying in Newgate under sentence of death for a murder committed at Stratford. That man had been heard before, and committed by, county magistrates. It was true that the grand juries at the Central Criminal Court, and at the Middlesex Sessions, were in the habit of denouncing themselves as useless nuisances and obstructions, but the present Bill was not a proper remedy. The sheriffs ought to be required to summon the same class of gentlemen who were summoned to serve upon grand juries in the country, where no such depreciatory presentments were made. At present the persons summoned in London were small shopkeepers, and others to whom it was an honour to be placed even on a petty jury; but because they did not like the duties and the trouble it occasioned them, they were pleased to abuse the functions entrusted to them. The Bill proposed to 1445 give extraordinary power to the Crown. All cases within the jurisdiction of the Central Criminal Court must be heard before a police magistrate or the Attorney General; but it must be remembered that the police magistrates in the metropolitan districts were the creatures of the Crown, and held their offices only during the pleasure of the Crown. He could only speak in terms of praise of the manner in which those gentlemen now performed their duties, but a time of great political excitement might come—a meeting collecting within a mile of Westminster Hall might be dispersed with bloodshed and violence; if they appealed to a stipendiary magistrate, he would lay it down that he was precluded by the statute of Charles II., and the sufferers would have no redress, as his decision under the Bill would be final, and there would be no grand juries to appeal to, as at present. It was not right that the people of the metropolis, and the representatives of the country at large, should be at the mercy of the stipendiary magistrate and the Attorney General, which they would be under the Bill. The inhabitants of the metropolis appeared somewhat disposed to imitate the rioters of Wales in their opposition to toll-gates, and a Rebecca outbreak might occur, obnoxious members might be assaulted, and upon application to a police magistrate for redress, it might be refused, and they could go no further. The hon. and learned Gentleman told them that one of the evils of the grand jury system was, that parties could go secretly before a grand jury, and obtain a warrant against other persons for the sole purpose of extorting money. The remedy for that evil was to make such persons give security for costs. There would always be an opportunity of tampering with witnesses under any system; but that might be avoided by a recurrence to the ancient system of appointing an examining officer. Another reason against the abolition of grand juries in the metropolis was, the fact that the City of London Judges were appointed by the Corporation; and it was not likely that a prisoner would consider he had fair play from a Judge appointed by, perhaps, the influence of the alderman who bad sent his case for trial. He (Mr. M'Mahon) had no objection to the application of the principle of the Bill to minor and petty cases; but the result of passing it as it stood would be, to create a public prosecutor, an institution which he, for one, trusted never to see in this country, for 1446 then justice would be administered in England as it was on the Continent, and there would be an end to the liberty of the English people. The system of administering justice in England was as near perfection as it could be; and, as there was no way of mending the clause as it stood, he suggested that the hon. and learned Gentleman should withdraw it, at least until the Criminal Law Commission should have made its recommendation on the general subject. The Bill professed to exempt treason and misprision of treason; but, under the Treason Felony Act of 1848, the whole jurisdiction, in such cases, would be placed in the hands of the stipendiary magistrate, in consequence of that having made treason felony for the convenience of trial.
MR. W. WILLIAMS
was of opinion that grand juries had afforded more protection to the liberties of the people than, perhaps, any one of our institutions. He did not believe that there was any general desire, on the part of the public, to put an end to the present system, and, at all events, a measure of this kind, if brought forward at all, ought to be introduced by the Government. He hoped the House would reject the Bill; and he, for one, would give it every opposition in his power as a metropolitan representative, as well as a representative for the whole country.
§ MR. COBBETT
said, he looked upon this measure as only the small end of the wedge, which would be pushed much further. The intention must be to do away with grand juries altogether, which, he should consider a fatal change in the constitution. If this were not the intention, where was the necessity for this Bill? The objections to grand juries in the metropolitan districts applied with even greater force to those beyond the metropolis. It was said that in London the police courts formed a preliminary tribunal, and supplied all that was necessary. The stipendiary magistrate was the younger institution of the two, and he saw no reason why they should not co-exist, as they had hitherto done; certainly he could see no reason why one should absorb the other. For his own part, however, he did not see the benefit of trying a man before a police magistrate and then sending him before a petty jury. It was, in his opinion, an objection to the police court, that the proceedings which took place there, were in the nature of a trial. One of the great advantages of the grand-jury system was, 1447 that the case was discussed in private, and came before the petty jury without being in the slightest degree prejudged, whereas the proceedings in the police court appeared in all the newspapers, opinions were formed and expressed respecting the case, and it could not fail to be, to a considerable extent, prejudged. Another objection, too, arose with regard to the police magistrates—namely, that they were created by the Home Secretary, and only existed at the will of the Home Secretary; they were, in fact, dependent on the Home Secretary for their continuance in office and their very bread; and he would remind the Committee that Mr. Arnold, one of the metropolitan magistrates, had only last year published a pamphlet complaining of this, and adducing instances in which the police magistrates do not feel themselves independent of the Home Office. The substitution of police magistrates for grand juries, therefore, did not afford that security which was required before the Crown could put a man on his trial for a criminal offence. Mr. Justice Willes had objected to the present Bill in a recent charge to the grand jury at Hertford, and expressed a hope that it would not pass. With regard to another point, he did not think that his hon. and learned Friend (Sir F. Thesiger) had at all made out his case, that grand juries in the metropolis acted as an obstruction to justice. It was said that their investigation involved a great waste of time. It should be remembered, that grand juries saved a good deal of time by throwing out bills which must otherwise be heard by the petty jury. His own experience as a criminal lawyer convinced him (Mr. Cobbett) that grand juries, so far from obstructing the course of justice by wasting time, expedited it by the number of bills which they threw out. Among the advantages which arose front the grand jury system was the amount of information which was circulated among country gentlemen during their attendance at the assizes and amongst the middle class at sessions of the peace. There were fifty-two counties in England and Wales. Twice in the year, in each county, the Judges in their charges to grand juries, consisting of the gentry of the county, gave in fact useful lectures on law, on recent changes of law, and on social questions of all kinds. The gentry, in their turn, lectured farmer and tradesmen from the bench at quarterly sessions, and taking six grand juries in each county, there could not be less than 1448 six thousand persons of these two important classes of the community who were bound to come and sit quietly and listen to these lectures every year. Every man went home a better informed man than when he came. Was there no advantage in an institution like this? But, this was not all; Judges and Governments learned something from grand juries. For years great efforts had been made to mitigate the severity of the criminal code of this country, but the Legislature remained unmoved, despite the efforts of Sir Samuel Romilly and others, until a petition from the grand jury of London (the very grand jury now proposed to be abolished) was presented by Mr. Brougham in 1830, which, stating that juries would not convict in the clearest cases in which the punishment of death was inflicted for comparatively trifling crimes, led to the abolition of that punishment in numberless cases, and brought about the change that others had vainly sought to obtain from Parliament. He trusted, under the circumstances, that the hon. and learned Member would withdraw his Bill for the present, and bring it forward again with any practicable amendments of the system, but preserving the principle; if he did not, he (Mr. Cobbett) should be compelled to vote against it.
§ MR. BAINES
said, that, believing that the Bill was capable of being made safe and valuable by the aid of alterations which might he engrafted on it, he should not support any Motion the effect of which would be to throw it out altogether. It had been said that the Bill would subvert the whole grand jury system of England but he did not believe that such a result would follow, and the hon. and learned Member, who had introduced the Bill, had himself stated that it was his desire to maintain the system throughout the country generally. As to the objection that the measure was opposed to principle, he thought that the whole question resolved itself into this—had such a strong case of public expediency been made out with regard to the metropolitan district as would justify them in passing the Bill, although it was to a certain extent an infringement of the ancient criminal law of the country. He (Mr. Baines) would not meddle with any institution without a strong legislative necessity; but when that necessity existed he could not withhold his support from remedial measures. The House had not long since given its assent to the Bill for the increase of summary jurisdiction in 1449 cases of larceny, and that Bill had been an improvement upon the old system, although it was a great innovation on the old system of criminal law. The real question was, whether this Bill was calculated to promote the salutary and effective administration of justice? If the Bill would prevent the escape of the guilty, which in a great many instances now occurred, and if it would prevent that danger to the innocent which was also of frequent occurrence, he thought that no one could doubt that the operation of the measure would he beneficial. It was said that Mr. Justice Willes had expressed an opinion unfavourable to this Bill; but that learned Judge had had little experience in the administration of criminal justice in the metropolitan district; and when he remembered what had been said upon this subject by the Criminal Law Commissioners, and by those who had had the best opportunity of watching the administration of criminal justice within the City of London, especially by the late Recorder (Mr. Stuart Wortley), who was no wanton innovator on the rights and privileges of the people, and than whom a more upright, honourable, and able judge never sat upon the bench, he came to the conclusion that some such measure as that now proposed ought to receive the sanction of Parliament. Under the circumstances he thought that the Committee should not reject the Bill, but that they should proceed with its consideration, and should endeavour to render it as efficient as possible.
§ MR. JOHN LOCKE
said, he felt bound to vote for the Motion of the hon. and learned Member for Dundalk. It had been said that the opinion of Recorder after Recorder and Judge after Judge who had sat at the Central Criminal Court, was in favour of the abolition of grand juries there. That opinion, no doubt, was formed from what they had seen from time to time passing in the Central Criminal Court, but he imagained that those considerations, unconnected with the ordinary business of the Court, which, in the course of the present discussion, had been presented to the notice of the House, had not been brought under their attention, and that they had not regarded the question from an enlarged point, or weighed how far the abolition of the grand jury system would affect the liberty of the subject. The right hon. and learned Gentleman who had just sat down had not given the slightest reply to the objection of his hon. and learned 1450 Friend (Mr. Ayrton). The argument that the only remedy against an officer of the Crown would be removed by the abolition of the grand jury had not been answered. That was a grave consideration in connection with the Bill. He had also instanced a case where a person, accused of a crime was discharged by a police magistrate, but subsequently the grand jury found a true bill, and he was tried and sentenced to a considerable term of imprisonment. Nor did he (Mr. John Locke) think that the clause providing against the abolition of grand juries in cases of treason and misprision of treason went far enough, for the interests of the Crown might come in collision with those of the subject in the most ordinary cases. He, therefore, maintained that the subject should retain the right of claiming that protection which he had hitherto enjoyed in the intervention of the grand jury.
§ MR. BRISCOE
said, he had come to the consideration of this question perfectly unbiased, but having heard the arguments urged against the Bill, would vote in favour of the Amendment. The speech of the hon. and learned Gentleman the Member for Stamford, and all the arguments in it, went to the abolition of grand juries generally. The hon. and learned Gentleman said the grand jury of London was unnecessary and obstructive, but then he had only proved his case by arguments which referred to grand juries generally.
THE SOLICITOR GENERAL
stated, that he was physically unable to say much, but he was extremely anxious to say that if the Bill had for one of its consequences the abolition of grand juries all over the country, as well as at the Central Criminal Court, he should feel bound to oppose it. But no part of the statement of the hon. and learned Member for Stamford warranted such an inference. The advantages of the grand jury system in the country were very great, particularly in bringing the gentry of the country into contact with the administration of justice; but the contrary was the case in the Metropolitan districts, owing to the different class from which Metropolitan grand juries were taken. He admitted that the Bill required Amendment, but he thought there could be no second opinion that public examination before a police magistrate would be far more advantageous to the prisoner, as well as to the public, than a private examination before a grand jury. Looking, therefore, at the principle involved in the Bill, 1451 he (the Solicitor General) considered it, would be a serious evil if it was rejected in its present stage.
§ MR. HENLEY
said, he had listened attentively to the arguments in favour of the Bill, but he had not heard any reasons assigned for making a distinction between the metropolis and the country with regard to the abolition of grand juries. Indeed, some of the arguments in favour of the measure told as strongly against the maintenance of grand juries in the country as in the metropolitan districts. For his own part, he did not think that because some abuses existed it was desirable to abolish an institution which was essentially beneficial. It had been said that grand juries might be dispensed with in a large town much more safely than in the country; but it must be remembered that the metropolis was parcelled out into districts which were under the jurisdiction of a small number of magistrates, and if grand juries were abolished, and for reasons of any kind these magistrates—to whom he did not intend to impute any corrupt or improper motives—should refuse to deal with cases submitted to them, there would be an absolute denial of justice. It was said that under such circumstances an application might be made to the Attorney General, but he did not think that in any case between the subject and the Crown it was likely recourse would be had to that official. As to the argument which had been drawn from the Summary Jurisdiction Bill, in favour of this measure, he must remind the Committee that that Act was voluntary, and not compulsory. The hon. and learned Gentleman opposite had said that grand juries in country districts were generally composed of country gentlemen, and he (Mr. Henley) was glad to find that that class—who did not usually get credit for having more wit than their neighbours—were so far at a premium; but he thought the great body of tradesmen in this metropolis were quite as fit to be trusted with the duties of grand jurors as any country gentleman. A London special jury was said to be the best tribunal before which man could be tried, and who were they but the same class which composed the London grand jury. Besides, the cases which the magistrates had to decide were different from those decided by grand juries; for in the one case the magistrate had only to decide if there was evidence enough to warrant sending the accused for trial; whereas, the grand jury went a step 1452 farther, and decided if that evidence was sufficient to procure a conviction, and therefore one inconvenience which would result from the adoption of the Bill would be that in cases where magistrates were now accustomed to take bail on committal, they would be compelled to pursue inquiry much further, and defendants would be kept under remand for a considerable time before they were committed. It was further alleged that the Bill might be amended in Committee, but he could see on the paper no notice of any Amendment which would materially alter its main features. For these reasons, therefore, he felt it his duty to support the Motion of the hon. and learned Member for Dundalk.
§ Motion made, and Question put, "That the Chairman do now leave the Chair."
§ The Committee divided:—Ayes 80; Noes187: Majority 107.
§ MR. M'MAHON
said, if the clause was allowed to stand as it was, no grand jury whatever could under any circumstances be assembled within the district of the Central Criminal Court, and he could conceive that under such an arrangement grave cases might occur in which there would be an entire failure of justice. In the case of a riot or some great public nuisance the magistrate before whom the charge was brought might refuse, on some ground or other, to commit; for instance, one alderman carrying on a similar manufactory in the City of London, might be complained of before another alderman carrying on a similar manufactory, and the result would be that there would be no satisfactory judicial inquiry into the matter at all. He thought it would be desirable that the clause should be amended so as to meet such cases by providing that a grand jury should be summoned at least once or twice a year within the district. As, however, the Committee could not then amend the clause, he should suggest that its consideration be postponed, with the view to such an Amendment being moved on the bringing up of the Report.
MR. W. WILLIAMS
said, the only argument urged in favour of the application of the Bill to the metropolis exclusively was the existence of the police magistrates; but it ought to be borne in mind that the whole of the metropolitan police districts were not under the control of the police magistrates. The grand jurors of London were a most intelligent body of men, and quite capable of coming to a just and fair, and right and discrimi- 1453 nating decision upon any matters submitted to them in their capacity of grand jurors.
§ SIR FREDERIC THESIGER
said, he must decline to postpone the consideration of the first clause in order to allow the hon. and learned Member for Wexford (Mr. M'Mahon), to introduce, at some future period, an Amendment which would violate the principle of the Bill. He did not think that such a retrospective proceeding would be a satisfactory manner of conducting their deliberations, and trusted that the Committee would adhere to the resolution which it had already pronounced by a large majority. The question which they were now called upon to determine was whether the first clause, which embodied the whole principle of the Bill, should stand part of the measure. He (Sir F. Thesiger) had been accused of having smuggled in the Bill; but he had no interest whatever in the measure; and in urging on the second reading at the unseemly hour to which the hon. Member for the Tower Hamlets adverted, he had only availed himself of the sole opportunity afforded him, and done what any other private Member would have done. Should the Bill be passed into a law all parties would still have an opportunity of going before the grand jury of the Court of Queen's Bench—a fact which might remove many of the objections urged against the Bill. The Attorney General at the present moment, besides the power of filing ex officio informations, might enter a nolle prosequi, and prevent any prosecution. In the course of his own official existence he had occasion to enter a nolle prosequi upon an indictment under circumstances in which he thought there was an attempt to convert the criminal law into an engine of extortion, by keeping an indictment hanging over the head of the accused. It was not, therefore, such an unconstitutional course to say that, supposing a magistrate should refuse to entertain a complaint, and the parties should desire to have the matter investigated, they should have an opportunity of going before the Attorney General. In Ireland the Attorney General had the power of deciding whether accused persons should be sent to trial or not. Plausible and even unanswerable arguments could be advanced against any measure that might be proposed; but the question for the consideration of the Committee was whether the evils incident to the system of grand juries in the metropolis were 1454 greater than those which, might be produced by his Bill. He did not believe that police magistrates, exercising their power in public, would exercise it corruptly on behalf of the Government. He should like to see them made entirely independent, by appointing them to their offices during good behaviour. Practically they were independent, because no Secretary of State would remove them while they honestly and satisfactorily performed their duties. The question was whether this clause should stand part of the Bill, and that question involved the principle in favour of which the Committee had decided by a large majority.
§ MR. AYRTON
said, he had made no imputation of smuggling the Bill through the second reading against the hon. and learned Gentleman. All he wished to show was that no debate had taken place on the principle of the Bill. He would observe, however, that it was strange that the hon. and learned Gentleman should have complained of his hon. and learned Friend the Member for Wexford (Mr. M'Mahon) making retrospective observations, and yet he himself immediately made observations of the same character, and, in fact, addressed himself to the principle of the measure. The question was properly raised, to what extent were they about to carry this destructive legislation? He thought the proposal of his hon. and learned Friend the Member for Wexford was a most reasonable one; and if the hon. and learned Gentleman the Member for Stamford did not accede to it, he would continue his opposition to the measure on every clause and every word in the Bill. He was not disposed to pay much respect to a division in which twice as many hon. Members voted as were present during the debate, and he thought such a proceeding, although constitutional, added little to the dignity and character of the House. It was perfectly true that the Committee had affirmed by its vote that grand juries were to a certain extent to be abolished, and that the preamble of the Bill stated that it was desirable to dispense with the attendance of grand juries at the Central Criminal Court and at the courts of general and quarter sessions in the metropolitan police districts, except in particular cases. It was, however, a question of degree how far that legislation should be carried. The hon. and learned Gentleman said the groundwork of the Bill was that there were stipendiary magistrates in the metro- 1455 polis who cautiously and carefully examined cases which were brought before them, and protected the interests of the people. What other inference could be drawn but that the gentlemen who acted as magistrates in the country could not be trusted to the same extent, and that they did not discharge their duties as well as the stipendiary magistrates in London? This was an indictment against the country magistrates, and those who wished to uphold the character of those gentlemen in the administration of justice were bound to vote against the Bill.
§ House resumed; Committee report progress; to sit again To-morrow.