HC Deb 14 February 1861 vol 161 cc439-48

said, he rose to move for leave to introduce Bills to consolidate and amend the Statute Law of England and Ireland relating to offences against the person, malicious injuries to property, larceny, forgery, coinage offences, accessories and abettors, and also to repeal certain enactments which had been consolidated in other Acts. It would be in the recollection of the House that during the last Session Rills bearing the same title as those on the Notice Paper came down from the other House of Parliament, and, after being read the second time, had to be dropped because the state of public business would not admit of their then receiving that consideration in Committee which was thought desirable. At the time of their withdrawal, however, an intimation was given by the Government that an early opportunity would be taken in the present Session of introducing the Bills into this House; and, he thought, the House would agree with him that no unreasonable delay had been allowed to interfere with the performance of such promise. The Bills in question were seven in number, and their general object was to consolidate and assimilate the Statute Law of England and Ireland bearing upon crimes. One of the seven, however, was simply a repealing Bill, abolishing the enactments for which the other six, if passed, would become the substitutes; while another, referring to accessories and abettors, fell rather under the category of criminal procedure than of crime and punishment. These measures would not interfere with that portion of our criminal law, now small in extent compared with the rest, which was common or unwritten. As to the propriety of consolidating the statute law, but one opinion was entertained among all who had applied their minds to a consideration of the subject. It might be expected, indeed, that with respect to the various Bills which from time to time were proposed as means for carrying out consolidation, those Bills or those means might meet with more or less of disapprobation; but he repeated that as to the propriety of consolidation of the criminal statute law no second opinion was entertained. Any attempt, on the other hand, to collect and put into a compact form that other part of the criminal law which was called common or unwritten would amount not to consolidation merely, but to codification, and would stir up controversial matters. But, as for many years past the great bulk of our criminal law had been the creature of statute, the Bills which he was about to bring in would effect a very considerable reform in the administration of that branch of our jurisprudence. The punishments provided by the common law were comparatively few and simple. As society grew older, and new wants were felt, other punishments had to be established, and these were based upon statute. The measures, it would thus be found, to which he invited attention, not only dealt with a very large portion of our criminal law, but with that portion which was most familiar in its operation, and which, in its relation to the interests of society, was of the gravest character. No doubt, while consolidating, it was wise also to assimilate the law of the two countries as far as practical and convenient; but, as the circumstances and exigencies of England and Ireland in important points materially varied, it was obvious that a limit was placed by that fact on the expediency of assimilation, and, consequently, on the extent of consolidation. That distinction had been observed in framing the Bills now before the House. The proposal contained in the Bills to consolidate and assimilate was but part of a most important work, in which it would be of the highest advantage to make material progress—he meant the reformation of the statute book. In order to this the statute book should contain only those statutes which were in operation —not repealed, expired, or obsolete; and those statutes which alone composed the statute book should appear on the face of it in a convenient form, collected under proper heads and divisions. That collection was the function of consolidation, and when consolidation had taken place expurgation must follow. They could not have a perfectly satisfactory statute book until they were able to combine these two operations. Consolidation, however, was the first step, and the necessity for it was the most urgent. That portion of the statute law which related to crime was the most easy to consolidate, and, therefore, he hoped the House would be of opinion that the step taken by these Bills was in the right direction, and that the benefit to be derived from them, if passed, would be not inconsiderable, forming an auspicious beginning in the course of general statute law conso- lidation, and conferring important facilities and benefits in the way of clearness, intelligibility, and access both upon those who were subject to the law and those who administered it. He admitted, however, that after the sum of improvement these Bills would effect, much would still remain to be done. suppose these Bills passed, they would be published in autumn as component parts of the statute book, which, so far, would be extended; but, if they followed up their work with the other process of expurgation going on, a great mass of enactments and clauses of other Acts would disappear from the statute book. The subject of consolidation had not been recently taken up for the first time; its necessity had been long felt, and legal writers of great eminence, in comparatively early times, when the statute book was much less formidable than now, had insisted on it, and deplored that it had not been carried into effect. That eminent statesman, Sir Robert Peel, had paid great attention to the subject, and various Acts consolidating the criminal law had been prepared under his auspices, and still bore his name. A number of Royal Commissions had been issued from time to time to inquire into the existing state of the Statute law, with a view to digesting and consolidating it; and as this was a matter of great importance, as showing the authority on which the Bills were brought in, he would venture to remind the House of the dates of those Commissions. The First Commission for the digest and consolidation of the criminal law was issued in 1833. In 1836 a similar Commission was issued, which made three Reports. In 1837 there was another Commission, and which issued four Reports. In 1845 a fourth Commission was appointed, which issued five Reports. From 1833 down to 1849 there bad been no less than four Commissions and twelve Reports on the subject of consolidation. Although the Bills he was now seeking to introduce were not framed by any body of Commissioners, they had been prepared after a careful perusal of the Reports of the various Commissioners to which he had referred. In 1853 and 1854 two successive Commissions were issued, which differed from some of the previous ones in some respects, and which were called Statute Law Commissions; for, whereas certain of the earlier Commissions he had mentioned had reference to crime alone; the Commission of 1853 and 1854, which was the last of the series, had reference to the statute law at large, of which that relating to crime formed only a part. In 1856 eight criminal Bills were prepared by the Statute Law Commissioners, and were referred to eminent and competent authorities—Lord Wensleydale, the late Chief Justice Jervis, Sir FitzRoy Kelly, and Mr. Greaves. Those Bills were the foundation of the measures which he was now seeking to introduce. They were placed before the other House by Lord Cranworth in July, 1856, but, in consequence of the late period of the Session, they were dropped and not further proceeded with. In the following year a change was made in the mode of procedure adopted by the Commissioners. Up to 1857 it had been considered that the labours of the Commissioners should be confined to the work of consolidation, without any attempt at amendment, but in that year the Statute Law Commissioners, presided over by Lord Cranworth, resolved that, in future consolidations, admitted imperfections and omissions should be remedied. That plan had been invariably acted upon since 1857, and the present Bills, although entitled to the character of Consolidation Bills, contained various alterations and amendments of the existing law. With two omissions they were similar to those which were introduced in 1857, and which had been previously approved by the deliberate judgment of Lord Wensleydale, Chief Justice Jervis, Sir FitzRoy Kelly, and Mr. Greaves. They were not brought forward, therefore, without due consideration and ample information; they embodied the result of the labours of successive Commissions, and could not fail, he thought, to meet the approval of the House. The next point to which he would advert was that of the assimilation of the criminal law as it prevailed in England and in Ireland, an object which, in the Bills on the subject which had been introduced in 1857, it had been sought, to a limited extent, to attain. The question, not being one of a party character, had been dealt with by successive Governments with an earnest desire to solve the difficulties by which it was encompassed in a satisfactory manner; and the administration of the Earl of Derby had, accordingly, in 1858, taken steps to carry out, still further than had been proposed in the previous year, the principle of which he was speaking. The measures, however, which the Government of Lord Derby had laid before Parliament with that view, and which were substantially the same as those which had received the sanction of Lord Wensleydale and other eminent authorities, had been dropped, owing to the dissolution which had taken place shortly after their introduction; but an eminent Member of that Government (Mr. Whiteside) had in the Session of 1859 laid upon the table certain Bills which had not gone beyond a second reading, and which embraced the principle of assimilation to the extent provided in those to which he now invited the attention of the House. Again, in the vacation of 1859, Mr. Greaves, assisted by two gentlemen of the Irish bar, Mr. Pigott and Mr. McBlane, applied themselves diligently to the task of consolidation, and, with great care, prepared Bills which were introduced into the other House of Parliament, and were subsequently referred to a Select Committee of the Upper House. Those measures also failed to pass this House in consequence of the lateness of the Session. Into the history of the various measures which had been introduced on the subject of the consolidation of the criminal law generally, up to the present moment, he should not further enter, beyond saying that as the Bills proposed to be brought in, stood when brought into the other House by the Lord Chancellor last year, the punishment of death was reserved for infliction, under the Offences against the Person Bill, for two offences only—murder and the administration of poison with intent to murder; but subsequently, in the passage of the Bills through the other House, three other instances in which death might be inflicted were added to the catalogue of offences so punishable. These instances were, wounding with intent to murder; destroying or seriously damaging a building with intent to murder; and setting fire to a ship with intent to murder. The Bills, however, as they were now framed, had been restored in that respect to the shape in which they had been originally introduced. For malicious injuries a provision was copied from a Statute of George III., inflicting the punishment of death on those who were found guilty of setting fire to arsenals, dockyards, and establishments of that kind. The Bill left that punishment as it was; and it would be for the House to deal with it. Some expressions of dissent had been used with regard to the punishment of whipping, which occurred with some frequency in these two Bills. Where it was sanctioned at all it was restricted to persons of the age of eighteen, and some hon. Members thought that too advanced an age. He had left the clauses as they stood, but it would be competent for any Gentleman at the proper time to review the decision of the framers of the Bills, and in the end, doubtless, that would be done which would give satisfaction to the House. If the House granted him leave to introduce these Bills he should propose after they were read a second time to refer them to a Select Committee. He had already stated that that course had been satisfactorily adopted by the other House of Parliament. There were circumstances in the state of Ireland more or less different from the circumstances of England, which made it expedient not to alter the principle of the law, but to confine assimilation to cases to which it was reasonably applicable. If the propriety of the changes proposed, with a view to assimilation, were challenged, it would be necessary to refer to various enactments affecting the sister kingdom, and to compare them with the criminal statute law of England. Some amount of detailed labour might be necessary, as any hon. Member was fairly entitled to require it, and it could be better accomplished in a Select Committee than in a Committee of the Whole House. It was not too much to anticipate that the Bills would come from the Select Committee in a State in which they might be regarded with the persuasion that the law was properly and prudently consolidated, and that no injurious changes had been introduced for the purpose of assimilation or otherwise. In conclusion he would move for leave to introduce the first of the series of Bills to which he had referred—that to consolidate and amend the Law relating to Offences against the Person.


said, the House must feel grateful to the hon. and learned Solicitor General for the full, clear, and satisfactory statement which he had made of the history of consolidation and of these Bills. He believed he was thought bold and audacious for saying last Session that they ought not to take these Bills on trust, and that they should be referred to a Select Committee. But any one who had heard the statement that evening must be satisfied of the propriety of carefully examining these provisions. These Bills would not diminish the bulk of the statutes, and they would not simplify the knowledge of the criminal law to be gathered now from Archbold or any book of practice. He suggested that the whole subject of consolidation should be taken in hand. Why not consolidate the criminal law of England, Ireland, and Scotland? If there was one part of the United Kingdom which required general consolidation more than another it was Scotland. The law of Scotland was in as barbarous a state as that of Italy. There was no habeas corpus; though a prisoner might demand his discharge after 150 days if the public prosecutor did not bring him to trial within that time. Again, in Scotland, a man might he hanged by the casting vote of a jury of fifteen, and the judges, if a new crime was committed, adapted the law to the new state of facts. The Eighth Report of the Commissioners in Procedure contained a most capital code, and having seen the advantages of the Codes Justinian and Napoleon, he did not see why they should not have a perfect code for the United Kingdom, to he called the Victoria Code, showing how, from the time when a man was taken into custody on a charge of committing any offence, to the time of his final acquittal or punishment, the law afforded every possible security that a regard for truth and justice, and for the lives and liberties of the Queen's subjects, could require.


said, that he did not rise to criticise the details of these Bills, but to express, on behalf of his Colleague, the right hon. and learned Member for the University of Dublin, his warmest acknowledgments for the way in which the hon. and learned Solicitor General had spoken of the Bills introduced by him (Mr. Whiteside) when in office under the Earl of Derby's Government; and he could promise that his right hon. and learned Friend would give all possible assistance to complete this work before the Select Committee. He would suggest that the five Hills which his right hon. and learned Friend had introduced should be sent to the Committee along with the present measure; and also that some of the provisions in the two other Bills of his right hon. and learned Friend—that in the criminal procedure and the punishment statutes, might be usefully imported into the present Bills. The principle of assimilating the law of England and the law of Ireland, especially with regard to conspiracy to murder and other grave offences, might be carried further than seemed to be intended by the Bills now before the House. In the present improved state of Ireland, there was no reason why such a difference should exist.


said, he could not but deprecate the expending of large sums of money upon Commissions for improving and consolidating the law, from which the country obtained little benefit. Moreover, he strongly objected to the use of the lash on juvenile offenders. It was a degrading punishment; and a boy who had once been whipped never forgot it. Sixty-four crimes, if the culprit was under eighteen years of age, were still visited with flogging; and its results, as described to him, were perfectly horrifying. He regretted to say that the county of Lancaster was more conspicuous for this punishment than any other. There was actually more flogging in Lancashire than in all Ireland. In Salford and Manchester there was more of it than in any other place whatever. He believed that it was a very injudicious penalty; and, if the Committee reported for its retention, he should think it his duty to take the sense of the House on the question. In his opinion many of the sentences at the quarter sessions were far too severe, and not suited to the times. The policy of the country was to mitigate both the sentences and the actual punishment.


said, he was not aware that the magistrates of Manchester were more severe or cruel in the administration of the law than other people. It had certainly been their custom to give lads guilty of petty offences a good whipping rather than subject them to the contaminating influences of a long imprisonment. The hon. Gentleman (Mr. Hadfield) said that a boy who had once been whipped never forgot it. He (Mr. Turner) believed that that was quite true, for when they had given a lad a good sound whipping they seldom saw him again. He considered that flogging was the best punishment for juvenile offenders; but he hoped there would be less and less of it in Manchester, for many ragged schools had been opened with a view to keep children out of the hands of the police altogether.


said, he thought the hon. and learned Solicitor General had done well in not attempting to consolidate the laws of England and Scotland in the same measure. With respect to the strictures on the Scotch law which had fallen from the hon. and learned Member for Wexford, it might be true that the majority required for a verdict in Scotland was too small; but it was better, at any rate, than the scandal of acquitting persons notoriously guilty in consequence of there happening to be some one capricious or partial individual in the box. He believed that the Scotch criminal law would bear comparison with the laws of England or Ireland; and as for their civil law, it was notorious that most of the improvements which had been introduced of late years into the English code had been borrowed from Scotland. He might instance, for example, the Divorce Bill, and the Declarator of Legitimacy. Five years ago the Scotch Members had had to fight a hard battle to prevent the English law of bankruptcy from being forced down their throats against their will. They succeeded; and the other night they had had the satisfaction of hearing a measure proposed by the hon. and learned Attorney General, the chief features of which were all taken from the Scotch law.


said, he considered that the Solicitor General had exercised a wise discretion in consolidating the laws of the two countries. He had been glad to hear the hon. and learned Member for Wexford (Mr. M'Mahon), who occasionally spoke loudly of Irish grievances, declare that the difference between the laws of the two countries was but trifling. With regard to corporal punishment, he was of opinion that, when administered, a magistrate ought to be present. It was all very well to say "Let a boy be soundly whipped," but it was impossible, under present regulations, to know what amount of torture was inflicted. If whipping were to be retained as a punishment, the magistrate who ordered it should be present to see it administered. In the army and navy, when the men were flogged, an officer was obliged to be present. One hon. Member had said that he would rather be whipped than put on bread and water for three days. For his own part, he confessed he would prefer the bread and water, which, taken in prison, might be very beneficial. Motion agreed to.

Then the following Bills were ordered to be brought in by Mr. SOLICITOR GENERAL, VISCOUNT PALMERSTON, Mr. ATTORNEY GENERAL, and Sir GEORGE LEWIS.

Offences against the Person,—Bill to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person.

Malicious Injuries to Property,—Bill to consolidate and amend the Statute Law of England and Ireland relating to Malicious Injuries to Property.

Larceny, &c.—Bill to consolidate and amend the Statute Law of England and Ireland relating to Larceny and other similar offences.

Forgery,—Bill to consolidate and amend the Statute Law of England and Ireland relating to indictable offences by Forgery.

Coinage Offences,—Bill to consolidate and amend the Statute Law of the United Kingdom against offences relating to the Coin.

Accessories and Abettors,—Bill to consolidate and amend the Statute Law of England and Ireland relating to Accessories to and Abettors of Indictable Offences.

Criminal Statutes Repeal,—Bill to repeal certain Enactments which have been consolidated in several Acts of the present Session relating to Indictable Offences and other matters.

And the said Bills were afterwards severally presented, and read 1°.