QUESTION. (Hansard, 7 February 1859)

§ MR. WALPOLE

I have to request the attention of the House to the question which has just been put to me, and to the answer which I am about to give. The question has been put to me in a form which is not calculated to convey an accurate impression of the facts, inasmuch as it leads to the impression that Sir John Paul and Mr. Strahan have already been punished to the extent demanded by the laws of the country, which is not the case. Questions of this nature are of the most painful character to one who fills the situation which I have the honour to hold; but since the inquiry has now been made, I had better answer it publicly and at once, instead of requesting the permission of the House to refuse to do so, as under ordinary circumstances I should have done. I had better answer it, because, certainly, mistakes and great misapprehensions have occurred with reference to this particular case, and also in order that the House may be made aware that Parliament itself is partly the cause of much of the complication which exists respecting it. By the law under which Sir John Paul and Mr. Strahan were tried, and which still exists unrepealed, the offence of which they were convicted—that of selling securities deposited for safe custody with them, and appropriating the proceeds to their own use-was punishable by transportation for a term not exceeding fourteen years, and not less than seven. These unfortunate gentlemen were tried in October, 1855; and they were convicted under that law, not of one single offence, but I must point out, without any wish to press unduly upon them, of one of a series of similar offences which have inflicted an amount of misery upon hundreds of people, equal to any amount of punishment which the law as it stood could have inflicted on them. It is true that Parliament has since, unfortunately, sanctioned another law—the Fraudulent Trustees Act—without repealing the old law, which enacts for precisely the same offence the punishment of penal servitude, not exceeding three years' or not less than two years' imprisonment. It was under these circumstances that I was pressed to consider whether an entire remission of their sentence ought not to be granted to these gentlemen. My first duty was to inquire what lied been the practice of the Home Office with reference to re- 146 commendations to be made to the Crown where after punishments of a grave nature had been inflicted by the Courts of Justice, the Legislature had passed a subsequent enactment relaxing the penalty for offences of the like nature. I am speaking in the presence of three of the ablest men who have filled the office of Home Secretary, and they will confirm me when I say there is no instance in the records of the Home Office of any person convicted and sentenced under a particular law being held entitled to a mitigation of punishment in consequence and on account of subsequent legislation having diminished the punishment for such offences. Perhaps I may be permitted to say that most extraordinary representations have been made by friends of these parties, sometimes persons high in rank and position, attributing to me that either by a prejudiced view of the case, or by a severe administration of the law, I had imperilled the health of these prisoners, and even destroyed the mind of one of them. Such representations, totally unfounded as they were, ought not to have proceeded from such a quarter. The question then is, whether, under these circumstances, the law being complicated by subsequent legislation, and the principle of the Home office, founded on good reasons, being such as I have stated, there is any ground for recommending to the Crown, not a mitigation, for that is not asked, but an entire remission of the sentence. I wish to point out to the hon. Gentleman end to the House, and through the House to all persons who may take an interest in matters of this kind (in fact they must interest the whole community) that in ordinary cases where a series of gross delinquencies have been proved it is not usual to limit the punishment to the maximum of one offence; but for the interests of justice very often another punishment is perhaps added for a second offence, to begin when the first expires. Placed under such circumstances, I have no means of judging, except by conjecture, what the Courts would do; but I have thought it right to consult the highest authority in the land, and I am informed by him that it is reasonable to consider the subsequent law as virtually repealing the former law, and as entitling the parties convicted under the first law to some mitigation of their punishment, though not stating what that mitigation ought to be. Now, it is my duty to lay down a rule with regard to the future and with regard 147 to the past. With regard to the future it will be for the Court to say whether, when a series of grave offences has been committed, the punishment shall or shall not be the maximum prescribed by the Act, or whether the punishment shall be cumulative or not. I have, therefore, no difficulty with regard to the future. But, with regard to the past, I must endeavour to lay down a rule, partly by conjecture as to what would have been the punishment awarded supposing the second statute had been the statute under which these persons bad been tried. The only conclusions to which my mind has arrived are these, that if I can lay down such a rule I ought to do so; that in laying down that rule I should take special care to draw no distinction between those convicted under the statutes whether they are rich or whether they are poor, and that on behalf of myself and of every one who may hereafter hold the office which I have the honour to hold, I should request most humbly, respectfully, and earnestly the support of the House in the discharge of the duty that devolves upon that office. I hope that the House will at least feel confident that, without any partiality on the one hand, or any prejudice on the other, I shall endeavour to take care that justice is duly and properly administered, and that it will firmly give me its support as long as I discharge, to the best of my ability, this most delicate, difficult, and painful duty.