SECOND READING. (Hansard, 20 July 1859)

MR. WHITESIDE
in moving the second reading of this Bill which, he said, was one of a series of ten Bills which he had introduced for the purpose of amending the criminal law, said he was extremely desirous of learning the intention of the Government on this subject. The principle of one of the clauses in the Bill immediately before the House was that corruption of blood in cases of treason and forfeiture of goods in cases of felony should be abolished. In cases of felony when they hung a man, reluctantly, for committing a great crime, on what principle could they deprive the innocent family of the criminal of any property which he had in his possession at the time of the convic- 136 tion? Surely, if they hanged the man who had made himself amenable to the law, that was enough without punishing his relatives for a crime in which they had taken no part, and the commission of which they could not prevent. He was not aware whether this law extended to other countries; but at all events, it was for an alteration on the side of humanity that he contended. If the Attorney General could not state the course which the Government intended to take in reference to criminal law reform he should most certainly take the opinion of the House on the Bill then before them, as well as upon the Offences against the Person Bill. The late Government had considered this matter, and the principle which was involved in one of his Bills was whether they ought not to abolish the punishment of death in those eight or ten cases in which it might be inflicted for offences which did not come within the definition of murder or treason. In his opinion, not only ought it to be abolished in all cases in which life was not taken away, but in cases in which it could be proved that there was no actual malice prepense. He could not understand constructive malice, like that which was alleged against a person who was tried for murder for shooting a man who had dressed himself up as a ghost in a white sheet and sallied forth to frighten the good people of Hammersmith. One man who, if not an actual believer in ghosts, at all events was not frightened at them, went out with a pistol, saw the ghost, shot at the ghost, and the ghost died. He argued, "If it be a ghost I may shoot at it, because I can do it no harm." That man was tried for murder, and the jury at the trial were very desirous to make it out manslaughter; but the Judge ruled that, by law, it was murder; and the jury, after some contest with the Judge, were obliged to return a verdict of guilty on the charge of murder. The man, however, was not executed, a pardon being granted. There was another kind of constructive murder in Ireland, which was not very intelligible. Suppose a man were to shoot at a duck in a farmer's yard, and in doing so killed a man, the law as it stood, said, that if he merely meant to shoot the duck out of sport his life should not be taken away; but if his object had been to appropriate the duck to his own use it was held that he was engaged in the commission of a felony, and ought to be hung for having killed a human being while so employed. He would abolish capital 137 punishment in such a case as that, but not where a person went out with intent to kill one man, and by mistake or chance happened to kill another, because there the man went out with the intention to destroy human life. In the debate upon the Conspiracy to Murder Bill the distinction between the law of Ireland and England was plainly pointed out by the then Government, and Lord Palmerston wanted to assimilate the law so as to make the offence punishable by death in both countries; but that would have been legislating in a retrogressive spirit. He was told that if this Bill passed the punishment of death for 350 offences would cease, and statutes to that number be repealed. All he could say was that that would be a great improvement. If the Government was opposed to the principle of these Bills he would take the sense of the House upon the first one; but he hoped that instead of that the Government would themselves take the question up, and carry out this great amendment. If that were their wish he should willingly leave the Bills in their hands, but should closely watch the conduct of the Government in reference to this matter.

THE ATTORNEY GENERAL
said, he had listened with surprise to the mixture of threat and persuasion by which the concluding observations of the right hon. Gentleman were characterized, and while he should be happy to have the right hon. Gentleman as an auxiliary, he could assure him he did not entertain the least fear of him as an opponent. After the many attempts which had been made to consolidate the criminal law, it was, he was ready to admit, high time that the question should be taken up, and taken up too by the Government of the day, who should be made responsible for dealing with it in a satisfactory manner. It would undoubtedly, therefore, be his duty—and he believed he had the sanction of the Government for saying so—to endeavour, in conjunction with his hon. and learned Friend the Solicitor General, to discharge through the medium of the Government the important task of putting the criminal law of this country on a sound and rational basis, a position in which it certainly did not at present stand. That work would he speedily under taken, and he trusted that the proofs that it had been pursued in an effective manner would be laid before Parliament at the commencement of next Session. With respect to the question of the corruption of blood, to which the right hon. 138 and learned Gentleman alluded, he could only say that he was disposed to regard its present position as the result of feudal times, and as not now necessary to the efficient administration of justice. He also concurred with the right hon. and learned Gentleman in the general principle of its being desirable that the punishment of death should be dispensed with as far as possible, but in making that statement he must not be understood as pledging the Government to the adoption of any particular course. He should for the present content himself with assuring the House that the important subject to which the right hon. and learned Gentleman had called their attention should receive his serious consideration, and as a proof of his sincerity in the matter he might state that it was only that very morning he had had a conference with the Lord Chancellor with respect to the best mode to be adopted for digesting the statute and criminal law, both of England and Ireland, and he hoped that in accomplishing that arduous undertaking he should have the assistance of the right hon. and learned Gentleman.

§ MR. EDWIN JAMES
said, that the country was much indebted to the Attorney General for the distinct and explicit statement he had made upon this important question, and also the right hon. and learned Gentlemen opposite for the interest he had always taken in it. It was essential that Government should itself deal with the question, and he strongly objected to its being referred to a Commission, because that very fact stifled law reform; for when in such a case law reform was urged, it was frequently said that the whole matter was being examined by a Commission. There were many points which should be immediately taken into consideration by the Government—such as giving power to the jury to view the ground where a murder had been committed, which was often very essential to a proper understanding of a case. In reference to the expediency of passing an Act to avoid the forfeiture of property in the case of felony, such a measure would be highly beneficial. The only effect of the present state of the law was to induce prisoners to make assignments of their property before their trial, and their unfortunate families were in consequence often deprived of their means of livelihood. He recollected a learned Judge say in while on circuit that it had always puzzled him to know how a certain class of attorneys, not in a very respectable position 139 got rich, and he bad at length found out the reason, which was that they undertook to defend prisoners, and, having obtained assignments of their property, did all they could to procure their conviction.

MR. WHITESIDE
said, he should be happy to give the hon. and learned Attorney General any assistance in his power, but he could not give his assent to any measure which was opposed to the principle of the abolition of death punishment for all crimes short of murder and treason. He did not consider that copying the Statute-book was amending the law. If they merely copied and classified the statutes, that might relieve barristers of some labour, but it would be neither amending the law nor abridging the statutes. He was opposed to exceptional legislation in this matter for Ireland; and, indeed, if they assimilated the scale of punishment in the two countries, the necessity for exceptional legislation for that country would almost entirely cease.