HC Deb 11 June 1860 vol 159 cc270-80

Order for Second Reading read.


, in moving the second reading of the Offences against the Person Bill, said, this was one of several Bills for the consolidation of the Criminal Law which had come down from the Lords. The Bills dealt with offences against the person, malicious injuries to property, coinage offences, the law relating to accessories and abettors, forgery, and larceny; and they resulted from the labours of various Commissions which during the last twenty-seven years had considered the subject of our criminal law. He thought the House might congratulate itself, that after the question which had been disposed of that night, and which would have unavoidably led to the continuance of party discussion, they now approached a subject remote from party strife, which commended itself to all parties alike, and which he was sure would obtain the careful consideration of the House. Each of these Bills proposed not only to consolidate, but also to assimilate the law of England and of Ireland on the particular matter to which it referred; but only one, that relating to the coinage, included Scotland, and was therefore applicable to the whole of the United Kingdom. At the head of criminal law reformers in modern times, and the most successful of them, stood the late Sir Robert Peel, who entered upon the career of the amendment and consolidation of the criminal law in 1826. Subsequently, many statutes had been passed, putting the criminal law of England and Ireland, to a considerable extent, on the same footing. Most law reformers thought it now desirable that, instead of having one law for England and another for Ireland, the statutes in force in the two parts of the kingdom should be carefully considered, and so altered that one criminal law should be applicable to both countries; and it was to a great extent owing to the zeal and ability with which the right hon. Gentleman the Member for Dublin University (Mr. Whiteside) and the hon. and learned Member for Suffolk (Sir FitzRoy Kelly) had devoted their time and attention to this work that the attempt was now made, in addition to measures of general consolidation and improvement, to effect an assimilation, as far as practicable, of the criminal law of England and Ireland. The hon. and learned Gentleman then described the labours of the successive Commissions issued between the years 1833 and 1845 with a view to the reform of the law. The Commission issued in the latter year was appointed with power to revise the work of the Commissioners who had preceded it. In 1845 two Reports were made under that Commission, and Reports were also made in 1847, 1848, and 1849—being five Reports in all. In the year 1848 Lord Brougham introduced a Bill for the consolidation of the criminal law, founded on the Reports of the Commissioners, but that Bill did not pass into a law. The hon. and learned Gentleman, having referred to the Commissions of 1852 and 1855, proceeded to say that in 1856 eight Bills were prepared relating to England, and were introduced into the House of Lords, but failed to pass into law in consequence of the lateness of the Session. In the spring of 1857 a Resolution was come to which was em- bodied practically in the Bills now before the House. Up to that time it appeared that the various Commissioners had been somewhat restricted in their labours by not being called on to suggest or devise amendments in the law, their duty being simply to consolidate. Amendment, however, ought to proceed together with consolidation, for to embody the words of the existing law, however objectionable, into a consolidating statute, leaving amendments to be brought about afterwards by different other Acts, was not a very satisfactory mode of proceeding, and would not have embraced the assimilation of the law of England and Ireland. In order, therefore, to place upon the statute-book good laws, expressed in convenient terms, nine Bills, going in some respects beyond the scope of the present Bills, were brought forward, and those Bills, he might state, were the foundation of the measures he now submitted to the House. Subsequently, under Lord Derby's Government, it was determined that this matter should be proceeded with, and particular attention was called to the necessity of assimilating the law of the two countries; and, after Lord Derby's Government had ceased to exist, the right hon. and learned Gentleman the Member for Dublin University brought forward certain Bills, and it had been the intention and endeavour of those, to whom the preparation of the present Bills had been committed, to incorporate in them everything that could be properly taken, for that purpose, from the Bills of the right hon. and learned Gentleman. With respect to the Bills of the right hon. Gentleman and those before the House, there was one point of difference which he would briefly explain. It was thought by that right hon. Gentleman a convenient arrangement in a scheme for the consolidation and amendment of the criminal law to put the punishments, with convenient references, into one distinct Bill, which might be called a Punishment Bill. This was a matter on which opinions might vary; but it had been the practice in this country to do, with respect to the punishment of crime, what it was proposed to do in the present Bills—namely, after the definition and description of each particular crime, to enact, in the same clause, the punishment. He would not affect to decide which plan was the more convenient; but he did not suppose that the right hon. and learned Gentleman would think the point of so much importance as to deem these Bills open to any grave objection on that account. He should confine himself on the present occasion to the general statement he had just made, and defer, until the next stage, any observations as to the manner in which it was proposed to bring about the amendment and assimilation of the law, and the extent to which that amendment and assimilation would be carried. The hon. and learned Gentleman concluded by moving the second reading of the Offences against the Person Bill.


said, the subject now before the House was one interesting alike to the philanthropic lawyer and the statesman. It was impossible to reflect upon it for a moment without thinking of the difficulties that Romilly, Mackintosh, and even Peel had to contend with in endeavouring to amend the criminal law. When the late Government obtained possession of the Reports of the Statute Law Commissioners they found there was a great difference of opinion among those eminent persons as to whether or not we could consolidate the Criminal Statute Law of the two kingdoms into one set of statutes. Some of them thought that there ought to be separate laws peculiar to Ireland, while others, including the late Chancellor of Ireland (Mr. Napier), were of opinion that it would be better to lay aside exceptional legislation and to have a common system of Criminal Statute Law applicable to the two countries. Afterwards the late Home Secretary called upon the Irish Executive Government to state in writing—which was always convenient, for it conduced to precision—their views upon the subject. That paper was drawn up, and it recommended the abolition of the punishment of death in all cases save the premeditated taking away of human life. The Bills of the late Government were framed somewhat differently from these. For example, it was thought convenient to have a Procedure Bill and a Punishment Bill separate from the other measures. That plan had now been departed from, and at the risk of repetition, the clauses of the Punishment and Procedure Bills had been incorporated in the others. He did not think that that alteration was an amendment, but rather the reverse. Again, while some of the recommendations of the Commissioners as to the abolition of the punishment of death had been acted upon, others had been neglected. The principle upon which those recommendations were founded was, that capital punishment should only be inflicted in cases in which death followed the act of the offender. In these Bills, however, while the punishment of death was no longer to be inflicted in the case of a conspiracy to murder, attempts to murder, such as administering poison, exploding gunpowder so as to damage buildings, or setting fire to a shop with intent to commit murder, were still to remain capital offences. When the Offences against the Person Bill went into Committee, it would be desirable to reconsider those provisions. He, for one, was of opinion that they would do more to repress crime by establishing a severe secondary punishment which would be certain to follow its commission, than by maintaining the punishment of death in these cases. He was also sorry that a definition of murder, calculated to put an end to the cases turning upon the distinction between implied and expressed malice, had been omitted from these Bills. Subject to the improvements which might be made in them in Committee, he thought that it might be convenient to pass those measures, and he had no doubt that if any of the clauses were altered the House would, upon a conference, be found open to conviction. With all deference to those learned persons, he was not quite sure that the Judges were the best persons to decide upon such questions as were raised by these Bills. He did not mean to be disrespectful, but he remembered several passages in the life of Si Samuel Romilly in which that eminent man complained of the difficulties which he had to encounter in quarters where they were least to be expected. He was also of opinion that in cases of high treason it would be sufficient to take away a man's life, without depriving his family, who might have nothing to do with his offence, of his estate, and that it would be desirable to do away with the confiscation to the use of the Crown of the goods and chattels of convicted felons, thus carrying the punishment home to the defenceless and unoffending families of the criminals. The Crown virtually never did take the property of convicted felons, and therefore he thought it time to abolish the legal fiction. If they abolished the punishment of death in eight out of ten of the cases in which it was now imposed by the statute, and consolidated and assimilated the law of the kingdoms of Great Britain and Ireland, they would have done a good work; and though the noble Viscount might not have passed a Reform Bill he would have had the satisfaction of having, with the assistance of the able law officers of his Government, carried a measure which would be useful to the country, and which would redound to his credit.


said, he was willing to accept these Bills, and would give his best assistance towards improving them in Committee; but he could not agree with the Solicitor General that they had at last hit upon the right way of consolidating the criminal law; and he did not believe that upon the plan now acting upon the Statute Law would be consolidated within our time. He had more than once expressed an opinion which he now repeated—that there was but one mode of dealing with this question, and that was to undertake the consolidation of the criminal and statute law as a whole. The Attorney General had intimated a plan for that purpose, the constitution of a Department of Public Justice, or a Board whose functions should be, first to expurgate and next to consolidate the whole body of law, and then submit it to that House. He believed if the Attorney General would come down to the House prepared to constitute such a Board, he would find that the House would not be illiberal in granting money for that purpose. If such a Board was constituted and composed of able men, he was satisfied that in two or three years the whole statute law might be expurgated and consolidated. If the Roman law, which was much more voluminous than ours, could be codified in four or five years, and the French law in three years, was it to be said that the English law could not be likewise codified? If the Attorney General succeeded in doing that, he would have effected a greater work than had been accomplished in our time.


thought there were good reasons why this Bill should be referred to a Select Committee. A great deal of money had been expended on this and other similar Bills. He had looked through the Bills, and he thought he could satisfy the House that it would be a very serious thing to give them a second reading. By one provision of the present Bill the definition of murder or manslaughter extended to killing any person, whether he was a subject of her Majesty or not. If the House adopted that clause, then it followed that killing a person abroad—a foreigner—not in the dominions of Her Majesty, would be murder. Now, there was an Englishman fighting with Garibaldi in Sicily; if he should be taken prisoner, he might be sent over here and his countrymen would be required to find a Bill against him at the Old Bailey, and we ahould be called upon to hang him. Take another case. It was said that a great number of his (Mr. M'Mahon's) countrymen were going to some part of Italy, who might have to fight against the King of Sardinia; suppose the Sardinians to take some of them and send them over here to be hung in batches. They would thus be dealing with persons who were not subjects of the Queen, and it would be the whole story of the Conspiracy to Murder Bill over again, and they would be continually troubled with prosecutions of that kind. Then again, as if the law of landlord and tenant were not sufficient already, a very objectionable clause was inserted, making it a punishable offence to assault any one engaged in making a distress. The provision that persons who were convicted under the Act should be bound to find sureties for good behaviour would practically have the effect of subjecting them to almost perpetual imprisonment. The same defect ran through the whole group of Bills. He objected to the clause in the Coinage Bill which empowered any one to whom base coin was tendered to give the utterer into custody on the spot, because a mistake might be so readily made as to the nature of the coin, and also to the provision, that even if, in an action for false imprisonment, the plaintiff obtained a verdict in his favour, the Judge should have power to disallow costs unless he approved the case. In the Larceny Bill there was a provision that if any person should unlawfully and wilfully course, snare, or carry away, kill or wound, or attempt to kill or wound, any deer in an unenclosed part of a forest or chase, he should be liable to a penalty of £50. That was according to the existing law; but the provision went on to say that if any person should be convicted of a second offence of the same kind—namely, attempting to kill or wound any deer, &c., he should be guilty of felony. He doubted whether that could be called an improvement, and if the Bills were read a second time he hoped that at all events they would be referred to a Select Committee.


said, great inconvenience arose from their not having any key to the manner in which these Bills were prepared. It was impossible to know what part was an amendment, and what part a mere repetition of the existing law, and it was impossible that hon. Members should ascer- tain it for themselves by a comparison of the Bills with the statutes. Some of the amendments were not improvements. He doubted the wisdom of providing that if a person fired a gun with a charge in it, but with no cap to it, he should be deemed guilty of an attempt to commit murder. It also seemed a contradiction in terms to say that if any person attempted to procure a miscarriage it should be an offence whether the woman was with child or not. He observed that there was a want of harmony and symmetry of the Bills. A person who was hung for one felony was to be buried in a particular way, but there was no provision as to the burial of the body of a person who was hung for another description of felony. He hoped that the Solicitor General intended to proceed with these Bills, and not to make of the second readings a mere display for a night, as had been done in the last three or four Sessions, because it tended to render consolidation ridiculous.


did not think it necessary to discuss the details of the Bill at that stage, and he should not, therefore, trouble the House with any lengthened observations in regard to them. He congratulated the law officers of the Government on the vigorous efforts which they were now making for consolidating the criminal and statute law of England and Ireland, and he hoped that that consolidation would be still further extended in many other respects between the two countries.


was also glad to see that the Government had determined upon effecting a consolidation of the various statutes, and thought the country was much indebted to the hon. and learned Gentleman opposite (Mr. Whiteside) for having done so much towards assimilating the laws of the two kingdoms. One great reason, he thought, why all former attempts at consolidation had failed was because the Commissioners had other work to do besides that of consolidation. He was of opinion that the Bill was calculated to introduce improvements in our criminal jurisprudence. It would be a good thing to have a Board appointed that should watch the legislation of the House, codify the statutes, and so simplfy the phraseology of Acts that the plainest intelligence could comprehend them. The objections that had been made to the measure might be considered in Committee. Now that the House had bidden farewell to political reform he trusted there was some prospect of legal reform.


said, he could assure the House that it was intended to proceed with those Bills vigorously and earnestly. It would be a poor return for the ready co-operation of the other side of the House in these law reforms if the Government were at all slow or indifferent in the prosecution of them. He should be exceedingly sorry, however, to see the Bills referred to a Select Committee, for he should then despair of seeing them pass into law this Session. All the matters which bad been objected to involved formalities on which he should desire to have the sense of the House, and he had much more confidence in the benefit which would be derived from a discussion in the House than in any result to be obtained by a Select Committee. The general consolidation of the statutes was being proceeded with as earnestly as the scanty means at the disposal of those responsible for it would allow, and he hoped before the end of the Session to be able to lay on the table a Bill, which would be the first step towards a general consolidation—towards expurgating the statute book, and removing those things which were impediments to their consolidation—he might even say towards a systematic arrangement and codification of the statute law. The House would then be able to see at a glance what was the existing state of the law, and he thought it would be a surprise to many to learn to within how small a compass the statute law might be reduced.


had to thank the Law Officers of the Crown for the production of these Bills, knowing from experience the difficulties that at present arose in connection with the statutes. He hightly approved the determination of the Government to proceed with them vigourously; but he thought there were some parts that would require very careful consideration.


said he was afraid, although these Bills presented a considerable advantage, that when even these Bills had passed we should be very far from the commencement of a criminal code. There was a great want of scientific arrangement in these Bills, and a great deal of repetition and unnecessary matter might have been spared had there been proper scientific definitions of what constituted certain offences, such as murder and assaults. The whole Bill did not contain a definition of any offence. The language of these Bills was very different from that of any other codes in the world. Hon. Gentlemen acquainted with the codes of France, Sardinia, and Prussia would see that in them offences and punishments were set forth in very terse language, so that every person could understand what was forbidden and what the punishment was if he committed an offence. Some of the clauses of this Bill ran on to a great length without a stop, such were the long-winded phrases employed in them. This mode of drawing up Acts of Parliament ought to be got rid of as soon as possible, especially in regard to criminal matters He must make an observation regarding the mode of debating these Bills. Bills of consolidation must always to a certain extent be taken on trust by the House, for it might happen in a thin House—a not unlikely state of things when law reform was under consideration—that some Member, perhaps least of all acquainted with law, might introduce and carry an Amendment which would put the Bill into confusion, and render abortive the labours of the learned person who had drawn it. Our form of Government was not favourable to scientific legislation. Law reform had always been prosecuted with the greatest success under despotic Governments—as under Justinian and Napoleon I. In those cases the new body of laws or code had been maturely considered by a select Concil of the most learned and experienced persons. But in this country there was the inconvenience of having to discuss the Bills in two separate large assemblies, composed, for the greater part, of unlearned persons. The only way of dealing with this difficulty, was for the House to defer greatly to the opinions of the learned lawyers who prepared the Bills, and to take such Bills to a great extent on trust, without minutely discussing their details.


hoped that the Committee would be fixed for some time when there could be a full discussion of the Bills, for very extensive Amendments were required.


was glad that the Attorney General had made up his mind not to send those Bills to a Select Committee, because the only chance of their passing them into law was to pass them in the ordinary way through a Committee of the Whole House. The Law Officers of the Crown would then be present to explain the reasons for each alteration of the law, and the House could then decide. He regretted that the Government had not found it consistent with their duty to get rid of the punishment of death for certain offences for which he thought—following the spirit of legislation of late years—it might very well have been abolished. The changes which had taken place during the lifetime of the present generation in that direction had all been successful. Where the punishment was not necessary for the repression of the crime it ought to be got rid of. These, however, were matters for Committee.

Bill read 2° and committed for Thursday.

Then the Bills following—namely,

  1. (2.) Malicious Injuries to Property Bill.
  2. (3.) Coinage Offences Bill.
  3. (4.) Accessories and Abettors Bill.
  4. (5.) Forgery Bill.
  5. (6.) Larceny, &c., Bill.
  6. (7.) Criminal Statutes Repeal Bill.
were severally read 2°, and committed for Thursday.


thought it would be to the convenience of the House if the Government would adopt some plan by which it might be seen at a glance whether a clause was an Amendment, or alteration, or simply consolidation. That would very much facilitate the progress of these Bills. Those who had drawn these Bills could speedily underscore those clauses that were Amendments of the law, and those clauses could be printed in italics.