Commons Sitting of 21 February 1866

MINUTES.
NEW WRITS ISSUED—For Tiverton, Brecknock, Lancaster County (Northern Division), London, Limerick County, Sunderland, Ripon, Leominster.
SELECT COMMITTEE—On Controverted Elections.
PUBLIC BILLS—Second Reading—Juries in Criminal Cases [16] 2R. deferred.
Committee — Telegraph Act Amendment *[23] [Lords].
Report—Telegraph Act Amendment *[23].

NATIONAL FAST FOR THE CATTLE PLAGUE.—QUESTION.
SIR BROOK BRIDGESsaid, he would beg to ask the Secretary of State for the Home Department, Whether it is the intention of the Government to recommend the appointment of a day for National Fast and Humiliation in consequence of the national calamity of the Cattle Plague?
SIR GEORGE GREY: Sir, the opinion of the Government on this subject is distinctly expressed in the letter which, in the name of the Government, I addressed to the Archbishop of Canterbury, and which has been laid before Parliament. The Government still retain that opinion. If a day of humiliation were to be appointed by the authority of the Queen in Council, its observation must be enjoined on the whole kingdom, including Ireland. The course which appears to Her Majesty's
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Government to be preferable is that which is being adopted in various parts of the country where the cattle disease is severely felt of voluntarily setting apart a day either throughout a diocese, at the suggestion of the bishop, or parochially, for holding a special service to pray for the blessing of God on the means used for arresting the progress of the disease.

THE TAME VALLEY VIADUCT.

  QUESTION.
  SIR ROBERT PEELsaid, he wished to ask the President of the Board of Trade, Whether his attention has been directed by the Government Inspectors of Railways to the alarming condition of several of the arches of the viaduct spanning the Tame Valley, near Tamworth, on the Midland line of Railway, and what steps have been taken by the Board of Trade in the matter, with a view to the protection of life and property? He believed that three of the arches in the centre of the viaduct had given way.
  MR. MILNER GIBSONsaid, in reply, that owing to the short notice that had been given him, he had been unable to look into the matter so fully as he could have wished. The portion of railway referred to was opened in 1839, before the Board of Trade had jurisdiction or the power of inspection. He was not aware, however, that any representations had been made recently by the Government inspectors, but full inquiry should be made, and he would give the House all the information he possessed.

JURIES IN CRIMINAL CASES BILL.

  [BILL 16.] SECOND READING.
  Order for Second Reading read.
  SIR COLMAN O'LOGHLEN, in moving the second reading of the Bill to codify and amend the Law in relation to the keeping together and discharge of Juries on the trial of Criminal Cases, said, he hoped to be able to show to the House sufficient grounds to induce them to agree to the Motion. Public attention had been recently called to the question of the discharging or the keeping together of criminal juries by the recent case of Charlotte Winsor, which was still pending in our courts, which would not be affected by this Bill. He had introduced a Bill similar to the one now before the House last Session, before the case of Charlotte Winsor occurred; but that measure he

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  had been compelled to withdraw in consequence of the opposition it received from his learned Friend the Solicitor General, and owing to the general desire that then prevailed to get rid of all business which was not absolutely necessary, with a view to the general election. The present Bill would affect the administration of justice in the courts of quarter sessions, as well as in the Superior Courts, and he therefore begged the attention of the chairmen of quarter sessions to its provisions. The Bill consisted of two parts; the first related to the keeping together of juries in criminal cases, and the second to the discharging of these juries; and it proposed to amend the present law in some respects, and in other respects to declare it. The Bill purported to be a Bill for amendment and codification. Some objected to declaratory Bills in general; but it was impossible to introduce a Bill to codify, without embodying in it the existing law. The Speech from the Throne last year called attention to the necessity for codifying the law, but no attempt was made to do so. It was almost impossible for the Law Officers of the Crown to bring forward the necessary measures, and this must, therefore, be undertaken by independent Members, it being left to the Law Officers to see that no unnecessary or improper changes were made. The first provisions of his Bill related to the keeping together of juries. According to the present law and practice, if a case lasted more than a day the jury was allowed to separate, if the charge were one of misdemeanor; but if it were a case of felony, they were not allowed to separate until they had delivered their verdict. The practice had existed so long as to have acquired the force of law. In such a case no Judge would take upon himself to allow a jury to separate, and it required the direct sanction of the Legislature to enable him to do so. It was not evident why there should be any difference in this respect between cases of felony and cases of misdemeanor; and why, if juries were allowed to separate in misdemeanor cases, they should not be allowed to separate in felony cases; and he proposed to make the law the same in misdemeanor and felony cases. The Bill did not propose to compel the Judge to allow the jury to separate, but it gave him a power to allow them to do Be in all cases, or to keep them together as he thought proper. There were cases of misdemeanor which were more serious
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  in their character than many felony cases, and with respect to which public feeling was oftentimes greatly excited, and while they were pending it might be inexpedient to allow the juries to separate. On the other hand, there were cases of felony about which there could be no such public feeling, such as larcenies and forgeries, and yet in these cases Judges had no power to allow juries to separate. The present practice greatly interfered with the due administration of justice. Felony cases, which it was thought might be got over by the usual time of the rising of the court, were often taken at a late hour, but something occurred in the course of the trial which rendered it necessary that the court should sit to a late hour to finish it or lock up the jury. The practice, therefore, was for the Judge to sit late and finish the case rather than lock the jury up. It was a practice which he thought ought to be discouraged as much as possible, for juries were as anxious as Members in that House when the dinner hour arrived to get home to dinner, and consequently when that hour arrived the cases did not get that full and careful examination which they ought to receive at the hands of a jury. There was some force in the argument that it might be dangerous to permit the separation of juries in felony cases which involved political or religious feeling; but the same objection applied to misdemeanors. The trial of O'Connell in Ireland lasted between twenty and thirty days, and the jury were allowed to go to their homes every night; and it did not appear that any injury arose in that case to the administration of justice, for in the result the jury returned a verdict in favour of the Crown. The Bill, of course, contemplated that a Judge would not allow the separation of a jury if it would in any way tend to defeat justice. He next proposed to give Judges the power of adjourning a felony case in the interest of the prisoner as well as of the prosecutor before it was concluded when the necessity of the case required it. A case of felony might unexpectedly take such a turn that it might be desirable to adduce fresh evidence on either side, but practically he was prohibited by the present law from doing this, as if he did so he would have to lock up the jury, and in some cases for several days. The next proposal of the Bill was designed to remedy an inconvenience which had arisen in Ireland, where some court-houses were

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  in counties and the nearest hotels were in cities, and as a Judge could not allow a jury to leave his jurisdiction, he was obliged to have them locked up in the court-house. During the recent Fenian trials the inconvenience did not arise in Dublin, but in Cork the juries had to be accommodated in the grand jury room. The inconvenience had been frequently condemned by Irish Judges, and therefore it was that he proposed to remedy it by allowing the jury to be taken from the county jurisdiction into the city for the purposes of refreshments and sleeping. The third and most important change which he proposed in this Bill was that a Judge might order a jury to be supplied with refreshment after they had retired to consider their verdict. The present law which denied them refreshment was a relic of barbarism. Our ancestors seemed to have thought that juries ought to be coerced into giving verdicts, and they knew no other means of coercion were so effectual as starvation. It led to a trial between the strength and weakness of individual jurors, and often the claims of conscience and honest conviction were obliged to yield to physical exhaustion. The alteration of the law in this respect had been advocated by nearly all the public journals, and by many Judges. In 1861, in the case of "The Queen v. Charlesworth," Mr. Justice Crompton said that the custom of confining juries without meat, drink, and fire, and so exposing them to hunger, thirst, and cold, seemed to be a barbarous relic of ancient times, which it would be well to get rid of. Within the last month the question was incidentally touched once in the case of Charlotte Winsor, in the Court of Queen's Bench, by Lord Chief Justice Cockburn, who said—
  "There is no authority for that [allowing the jury refreshment]; and, indeed, the authorities are rather the other way. The passage in Doctor and Student does not go that length; and, if it did, it could hardly militate against the long-established usage not to allow refreshment after the jury have retired to consider their verdict. The oath of the bailiff is strict in its terms—to keep the jury without meat or drink, &c, and not to allow any one to speak to them without leave of the Judge; and the latter words apply to the not speaking to them, not to the allowing them refreshment. The question is whether, as the system of coercion has been handed down to us by our ancestors, the Judge could take upon himself, without the intervention of the Legislature (and the sooner it occurs the better) to remove the coercion by the mere exercise of his own discretion and authority. I do not think that he could do so."
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  In the last century, he (Sir Colman O'Loghlen) would remind the House, one of our poets had written of this practice—
  "The hungry jurors soon the verdict sign,
  And wretches hang that jurymen may dine."
  With respect to the discharge of juries in criminal cases the law had fluctuated from time to time. Before the Revolution Judges took upon themselves the power of discharging a jury whenever they thought that the interests of justice required it; or whenever they thought the Crown had not established a case but was able to do so. Lord Hale held that opinion; but since the Revolution no Judge has ventured to discharge a jury, except in a very extreme case, merely to enable the Crown to make a case stronger. The Bill proposed that, except in certain specified cases, no Judge should have the power to discharge a jury. With respect to the necessity for legislation on this point he would quote the Chief Justice of the Court of Queen's Bench, who, in the case of "The Queen V. Charlesworth," said it was impossible not to feel that the law was to a certain extent in an unsatisfactory state, and that in no part of legal procedure had the practice of courts fluctuated more than it had in reference to the discharge of juries. In the case of Charlotte Winsor, the same Chief Justice said—
  "We are dealing here not with one of those fundamental principles which lie at the very basis of our system of criminal jurisprudence—such as the maxim that the Judges shall decide questions of law, and juries questions of fact, or that the verdict of a jury should be unanimous; but we are dealing with a mere matter of practice which has fluctuated at various times, and perhaps at present may not be considered quite settled."
  Surely a law which had been pronounced by the Lord Chief Justice in an unsatisfactory condition, and which he had this month stated to be considered not quite settled, was a law which this House ought to deal with, and its doing so could not be considered unnecessary legislation. The case of "The Queen v. Charlesworth" was a case in which this House directed a prosecution for bribery; a witness refused to give evidence; the Judge committed him for contempt and discharged the jury. The question whether he was justified in doing so came before the Court of Queen's Bench, and the result was certainly most extraordinary. Two of the Judges, Mr. Justice Crompton, and he believed Mr. Justice Wightman, held that the Judge was wrong; Mr. Justice Blackburn held that he was right, and

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  the Lord Chief Justice could not make up his mind, but was inclined to agree with Mr. Justice Blackburn. Such a state of the law required the intervention of the Legislature. The Bill proposed that a jury should not be discharged after a party accused had been given to them in charge, except in cases that were specified, These exceptional cases were the separation of the jury without leave, the sudden illness of one of the jurors, or of a witness, or of the accused. A Judge now had power to discharge a particular juryman who might be ill, but it was doubtful whether he could discharge the jury. This Bill would give him power to discharge either the particular juryman, or the whole jury. It was doubtful, now, if a Judge had the power to discharge a jury even if they separated without leave; but if they so far forgot themselves, it was desirable that the Judge should have the power to discharge them. He would give the power. His Bill dealt with the difficulty that arose in the case of Charlotte Winsor. It had, however, nothing to to with the case of Charlotte Winsor, and if the House should consent to the second reading he would consent to the further proceedings being postponed till the case of Charlotte Winsor had been settled by the Exchequer Chamber. He proposed to give power to a Judge to discharge a jury, if they could not agree to a verdict in a reasonable time; what was reasonable time being left to the decision of the Judge without appeal. He also proposed that a jury might be discharged should the Judge be taken ill. By another clause he proposed to give power to receive, if necessary, a verdict on a Sunday. A doubt had arisen! on this point in the case of Charlotte Winsor. The jury were locked up for several hours on Saturday; and the question arose whether the Judge could receive the verdict on the following day; or whether, in the event of their agreeing on Sunday, they must continue locked up till Monday, The point as to the legality of taking a verdict on a Sunday had not been formally decided, but the opinion generally expressed by the Judges was that it was not legal. To obviate all difficulty in future he proposed to enact that the verdict of a jury who had been locked up on Saturday night could be legal if taken on Sunday. This was simply giving a power which it was expedient to have, and which Her Majesty herself exercised last week in giving Her Royal Assent to the Bill for the suspension of the Habeas Corpus Act in
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  Ireland on a Sunday. These were the main features of the Bill, and he hoped the House would consent to read it a second time. Any points of detail could be fully discussed and settled in Committee, and he was not so wedded to the measure as it stood that he should object to any amendment that would render its working more satisfactory.
  MR. NEATEsaid, he thought the hon. and learned Member had made out a good case and did not want to encumber him with help; but he would refer to the practice of the French Courts with respect to allowing refreshment to jurors. Some time ago he was present at the hearing of a remarkable case, when the jury, at three o'clock, expressed a wish to retire to dine. The Judge offered them an hour, but they asked for two hours, and were allowed that time. He begged to second the Motion.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir Colman O'Loghlen.)
  MR. S. B. MILLERthought the Bill so far as it was declaratory was unnecessary, and so far as it was new it involved a most mischievous and dangerous precedent. If the Bill were passed the effect in Ireland would be, that the separation of a jury in a case involving party considerations would lead to its being tried out of the jury-box; and, therefore, a more mischievous innovation could not be proposed. No doubt the proposal was qualified by leaving much to the discretion of the Judge; but in such a case he would not leave the matter to a Judge's discretion. When a prisoner had once been put upon his deliverance, if he were not convicted, he had a right to be discharged, and it would be a most monstrous injustice if the Crown were allowed in such cases to adjourn the trial to procure fresh evidence. He believed legislation in this respect to be altogether unnecessary, and being unnecessary ought not to be encouraged, and if it were once admitted on the ground of difference among Judges, the House would have a busy time of it. The question of refreshment was a comparatively unimportant one, for a Judge had ample power to discharge a jury when he considered it unreasonable to detain them longer. He called upon the Solicitor General to oppose the postponement of a trial after a prisoner had once been given in charge of a jury.
  MR. WATKINsaid, that addressing

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  himself to a common-sense view of the question, he thought no gentleman connected with the law would get up and say that the present state of the law with regard to juries was satisfactory. His hon. and learned Friend had only to make out a primâ facie case, which he had done, and then the question as to the machinery and the exact mode by which these imperfections of the law were to be dealt with should be considered in Committee. As the law stood at present, if any emergency or difficulty arose, the Judge had no power to make such orders and arrangements as would meet that difficulty in cases of felony, though he had that power in civil cases and in cases of misdemeanor. He hoped the Government would not oppose the Motion before the House, and that they would be prepared in Committee to suggest any Amendments with regard to the machinery of the Bill which they might have to offer.
  MR. GATHORNE HARDYsaid, the Bill was divided into two parts—one which related to keeping jurors together during the trial; the other with respect to discharging them absolutely. With respect to the first part the hon. and learned Baronet (Sir Colman O'Loghlen) proposed to allow an absolute discretion to the Judge, whoever he might be, whether he were one of the chief Judges of the land, a recorder, or a chairman of quarter sessions. Now, that seemed to be to him to be giving to the Judges a power which they had no more information upon or proper power for exercising than any other person in Court. The case of discharging juries was quite different. But with respect to keeping juries together there might be circumstances wholly unknown to the Judge which would make it most improper to allow him the exercise of any discretion. For instance, there might be some party feeling of which the Judge might know nothing, and if he allowed the jury to separate during the trial the ends of justice might be seriously interfered with. No practical hardship whatever arose from keeping the jury together during the period of trial. The hon. Member for Oxford (Mr. Neate) seemed to think that the Judge had no power to allow juries refreshment before they were locked up. That was not so, although he had never heard of a jury of Englishmen asking for two hours for that purpose. In France, however, where they had better dinners, the juries might be anxious to
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  discuss the subject at their leisure. Englishmen, on the other hand, looked more to the business before them than to satisfying their appetite. With regard to the proposal to allow jurors refreshment after they had been locked up he had no great objection to offer. In most cases, however, jurors took care to provide against danger beforehand. There was a celebrated case in Yorkshire in which the friends outside supplied the jurors with both meat and drink, and a question arose whether the verdict was valid because some of the jurors had more porter than was good for them. With regard to discharging juries, the hon. and learned Baronet proposed to lay down rules beyond which Judges were not to go. In the case of "The Queen v. Charlesworth" the Judge thought it necessary to commit an important witness for contempt; there was, therefore, an absence of evidence, and the Judge, in the exercise of his discretion, discharged the jury. But under this Bill the Judge would not have that power in such an emergency, and, therefore, there might be a failure of justice. Now, at a time when the important case of Charlotte Winsor was going to a higher Court the House ought to hesitate before giving its sanction to this Bill. The hon. and learned Baronet was willing to defer the Committee until that had been decided; but why should he ask the House to commit itself to the principles of the Bill, which might be wholly unnecessary, when the decision is given. The hon. Member for Stockport (Mr. Watkin) said there were some defects in the law and that the object of the Bill was to amend it, and therefore the House ought to give it a second reading. Now he objected to such a principle altogether. When hon. Gentlemen presented Bills in that House those Bills must be tried upon their own merits and not on the demerits of the system they proposed to amend. The questions of keeping juries together and of discharging them were not lightly to be legislated upon; and when there was now before the Exchequer Chamber a great case which would call forth the opinions of all the Judges he would ask the hon. Gentleman, not with any hostility to the amendment of the law, but with a hearty desire to see it amended when necessary, not to force the House to commit itself to a decision which might much better be deferred until the Judges had pronounced authoritatively on the question.
  THE SOLICITOR GENERALsaid, if his hon. and learned Friend (Sir Colman O'Loghlen) had limited his Bill to allowing refreshments to be given to juries after they had retired to consider their verdict he should not have any opposition to offer. The main provision of the Bill, however, was that which related to the power of Judges to discharge juries in criminal cases when they could not agree. It was enough for him to say on that point, to induce the House not to consent to the second reading, that the case of Charlotte Winsor, in which this question was involved, was now pending. It had been argued before the Queen's Bench, who had delivered a very clear judgment, which was generally acquiesced in by the profession. At the same time the Attorney General had thought fit, considering the importance of the case, and also a certain decision of the Irish Judges, which was contended to be not in accordance with that of the Queen's Bench, to allow a writ of error by which the case would go before the Exchequer Chamber. If that Chamber affirmed the decision of the Queen's Bench, there would be no ambiguity whatever as to law for the future; the law would be as clearly settled by it as it could possibly be by any words that could be introduced into an Act of Parliament. It sometimes happened that in endeavouring to clear up subjects we only obscured them. When there was a matter of law or practice clearly settled further legislation was not only unnecessary but mischievous, because doubts sometimes arose which did not arise before. He quite agreed with the hon. and learned Baronet upon the desirability of codifying our law, but by that he understood codification of legal principles. He was not one of those who thought that it was desirable or possible to codify the practice of the courts, for that practice must adapt itself to a great variety of circumstances which no human prescience could foresee. Many provisions of the Bill related to matters of practice, about which there was no difficulty whatever. There was no doubt that refreshment might be allowed to juries before they retired, and there was no necessity to legislate upon that point. It was also perfectly clear that a Judge could discharge a jury in consequence of the illness of a witness, his own illness, or any unavoidable accident happening during the trial, such as the court-house being on fire. But while the Bill appeared to hamper the discretion
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  of the Judges on the one hand, it gave them a wider discretion than was proper on the other. His hon. and learned Friend defined all the cases in which the Judge could discharge a jury; but circumstances which he had not defined might arise in which it might be necessary to exercise a discretion. Suppose a case of collusion between a prisoner and a witness—in the case of "The Queen v. Charlesworth" collusion was not established—but in such a case the Judge should have power to discharge the jury. But this Bill would take away that power. That was an instance of the inconvenient way in which the Bill would hamper the discretion of the Judge. In other respects the Bill would give the Judge a power which appeared improper to trust him with. And on that point he must express his entire concurrence with the views of the hon. and learned Member for Armagh (Mr. S. B. Miller). It would not be desirable in important cases to intrust any Judge with the discretion of allowing the jury to separate. It would be said, whether with truth or not, that the jury having gone to their homes had talked over the matter with this person or that, had been tampered with by the Crown or the prisoner, and in any important ease was it possible that a verdict obtained under such circumstances would be satisfactory? There was a provision in the Bill which, taken by itself, might be useful—that of enabling a Judge in certain cases to direct that a jury should be taken to an hotel instead of being kept in the court-house. If that, coupled with another provision empowering the Judge to order reasonable refreshment for the jury after they had retired had formed the subject of the Bill, he would have thanked his hon. and learned Friend for having introduced it. He did not think the status quo perfect, and he was by no means opposed to reasonable change; but he must ask the House whether he had not shown good grounds why the Bill should not be proceeded with. Under these circumstances, he trusted his hon. and learned Friend, who was a sincere law reformer, would accede to the recommendation of the hon. Member for Oxford University to postpone the second reading until the decision in the Winsor case was arrived at. Otherwise, he should be compelled to move that the Bill be read a second time this day six months.
  MR. GEORGEthought it strange that

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  though they had now in Parliament all the Irish Law Officers of the Crown not one of them felt it to be his duty to attend in his place to give the benefit of his advice upon a matter which equally concerned England and Ireland. The objections which had been urged against the measure were entirely unanswerable. Some of the matters to which it referred were still sub judice. As for allowing a jury to separate once that a prisoner had been given in charge, however it might work in England, it would be absolutely impossible that anything of the kind should be allowed in Ireland. The great difficulty in conducting Irish trials was to keep the case to the particular issue sent to the jury—the guilt or innocence of the prisoner; and such a provision as that would be attended with the greatest mischief. To give refreshments to a jury after being locked up was not at all so objectionable, but other provisions of the Bill were either mischievous or unnecessary, and therefore he could not give it his support.
  MR. DARBY GRIFFITHcalled attention to what he considered the hardship of compelling persons to give their services as jurors without any compensation for their loss of time, while witnesses and every other person connected with the trial were allowed their expenses. At ordinary sessions and assizes there were as many as four sets of jurors called upon to give their services, and it was often done at the greatest possible inconvenience. He recommended the Home Secretary to remedy this grievance, whether anything was to be done by legislation or not.
  SIR COLMAN O'LOGHLENsaid, he would consent to postpone the second reading, as had been suggested by the hon. Member for Oxford University. He would put it off to the 18th of April.
  Motion, by leave, withdrawn.
  Second Reading deferred till Wednesday 18th April.

  CONTROVERTED ELECTIONS.
  Mr. SPEAKER Mr. SPEAKER acquainted the House, that his Warrant for the appointment of Members to serve on the General Committee of Elections was upon the Table:— Warrant read, as followeth:—
  Pursuant to the provisions of "The Elections Act, 1848," I do hereby appoint—The Right honourable Spencer Horatio Walpole, Member for the University of Cambridge; John Bonham-Carter, esquire, Member for the City of Winchester; George Ward Hunt, esquire, Member for the
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  Northern Division of the County of Northampton; The Right honourable Henry Thomas Lowry Corry, Member for the County of Tyrone; Samuel Whitbread, esquire, Member for the Borough of Bedford; and James Clay, esquire, Member for the Town of Kingston upon Hull; to be Members of the General Committee of Elections for the present Session. Given under my hand this twenty-first day of February, 1866.
  JOHN EVELYN DENISON, Speaker.

  OXFORD UNIVERSITY AND LEOMINSTER ELECTIONS.
  Gathorne Hardy, esquire, being chosen to servo in this present Parliament as a Burgess for the University of Oxford, and also as a Burgess for the Borough of Leominster, made his Election to servo for the University of Oxford.

  NEW WRITS.
  For Tiverton, v. Right hon. Viscount Palmerston, deceased; for Brecknock, v. Colonel John Lloyd Vaughan Watkins, deceased; for Lancaster County (Northern Division), v. Right hon. Marquess of Hartington, Secretary of State; for London, v. Right hon. George Joachim Goschen, Chancellor of the Duchy of Lancaster; for Limerick County,v. Right hon. William Monsell, Vice President of the Board of Trade; for Sunderland, v, Henry Fenwick, esquire, Commissioner of the Admiralty; for Ripon, v. Right hon. Sir Charles Wood, baronet, Manor of Northstead; for Leominster, v. Gathorne Hardy, esquire, who has elected to sit for the University of Oxford.
  House adjourned at Two o'clock.