Commons Sitting of 13 March 1867

MINUTES.
SELECT COMMITTEE—On Army (India and the Colonies), Colonel Percy Herbert added.
PUBLIC BILLS—Ordered—Inclosure.*
First Reading—Oxford and Cambridge Universities Education* [71]; Inclosure* [72].
Second Reading—Libel [11]; Industrial Schools (Ireland) [17].
Committed to Select Committee—Libel [11].
Committee—Criminal Law [8] [R.P.]; Oyster and Mussel Fisheries* [61].
Report—Oyster and Mussel Fisheries* [61].
Considered as amended—Metropolitan Poor* [66].

LIBEL BILL— [BILL 11.]
(Sir Cohnan O'Loghlen, Mr. Baines.)
LIBEL BILL— [BILL 11.]

  SECOND READING.
  Order for Second Reading read.
  SIR COLMAN O'LOGHLEN,in moving that the Bill be now road the second time, said, that the question of the law of libel was one of general interest; he would therefore trespass a short time on the attention of the House while he explained the provisions of the Bill, and the existing evils he proposed to amend thereby, trusting that he should be able to advance reasons which would satisfy the House that the Bill ought to be read a second time. In the outset he would say that this measure was substantially the same as that he introduced in 1865, which was received with approbation by the press generally, and was supported by petitions from upwards of seventy proprietors of journals, but which he was obliged to withdraw on account of the pressure of business. It was not deemed expedient to re-introduce the Bill last year; but this Session he had taken the earliest possible period of doing so, in order that the subject might be discussed previous to the more exciting debates upon the Reform Bill. Upwards of sixty petitions had already been presented to the House in favour of the measure, and he should show that its principles were founded upon justice, and that it was suited to meet the exigencies of the case. Happily, the question was one which was entirely outside party politics. The time had arrived when neither party sought to influence matters by press prosecutions, and therefore all parties could approach this question and consider it merely in the light of

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  one of law amendment. Before he called the attention of the House to the provisions of the Bill, he might perhaps be permitted to take a short retrospect of the present law of libel. The House was aware that for a long period the law relating to this subject was part of the common law of the land—and, in fact, there was no exact definition of the word "libel." Jeremy Bentham had said that the definition of that word in law was so general that it might be taken to mean anything written of a man of which he thought he had grounds of complaint. The present definition seemed to be anything written which tended to bring any person into ridicule, hatred, or contempt. The law as it stood was entirely opposed to the principles of a free press; and indeed it was a wonder to him how, considering the arbitrary laws which governed it, it could have obtained the position it had in this country. It had, however, not obtained that position entirely without the aid of the Legislature, because, after the trials which took place in the cases of the Dean I of St. Asaph and Woodfall, a Bill was I brought forward by Fox and supported by Pitt, which was carried, and might be called the Magna Charta of the press. By that I Act the power of defining libel was taken out of the hands of the Judges, and such questions were left to the juries. That really was the foundation of the liberty that the press at present enjoyed. But it did not do all that was necessary, for various complaints had been from time to time made with regard to the pressure of the law of libel on the press. A long time the maxim prevailed "the greater the truth the greater the libel; "but happily it was now exploded. It was not till 1843 that the Legislature again interfered; but in that year, in consequence of petitions from the Provincial Newspaper Press Association, a Committee was appointed by the House of Lords, and subsequently Lord Campbell introduced a Bill which became law, and effected a very beneficial change, by allowing the person sued to plead the correcotuess of a report, that he had inserted an apology at the earliest possible moment, that the report was inserted without malice, and in some cases a justification. That was a very valuable extension of the law, and conferred great privileges upon the press; and the consequence was that no further agitation took place in Parliament upon the subject until 1857. In that year a circumstance occurred which caused the
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  attention of Parliament to be again directed to the subject. In that year an action was brought against Mr. Davison, the proprietor of a newspaper—The Durham Advertiser—in consequence of a report which appeared in his paper of the proceedings at a meeting of the Improvement Commissioners at West Hartlepool. To the declaration in that case the defendant pleaded that the report was a correct one, and that no action lay; but on a demurrer the Court of Queen's Bench ruled that the correctness of a report did not remove from the defendant the responsibility of publishing any libel contained in it. On trial the verdict was for the plaintiff, with a farthing damages; but notwithstanding that those damages were merely nominal, the defendant had to bear his own costs, which exceeded £400. This case led to the presentation of a number of petitions to Parliament praying for an amendment of the law of libel; and the House of Lords again appointed a Select Committee and examined witnesses, the object of the Committee being to inquire into whether immunity should be given to persons publishing bonâ fide and accurate reports of proceeding of the two Houses of Parliament, of assemblies or public meetings under certain conditions and liabilities. The Select Committee reported in favour of extending protection to bonâ fide reports in the former case; and that—
  "Where an action is brought for an alleged libel in the report of the proceedings of a public meeting lawfully assembled for a lawful purpose, if the report be faithful, the jury shall find a verdict for the defendant unless the plaintiff has sustained actual damage."
  Lord Campbell, accordingly, in 1858, introduced a Bill to carry out the recommendations of the Select Committee; but it did not pass the second reading, being thrown out by a majority of 35 to 7 votes. The matter again slept until 1865, when he (Sir Colman O'Loghlen) introduced his Bill. The measure now before the House consisted of several distinct subjects. In the first place, it dealt with reports of public meetings; in the second, it endeavoured to fix upon the authors of libels the responsibility now resting upon the proprietors of newspapers for publishing them; and the third point had reference to proceedings on indictments for libel. The alterations the Bill made in the law were undoubtedly of a serious character. It would make the

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  speakers at public meetings liable for any scandalous language they might utter; and so long as the newspaper reporters reported the proceedings accurately, it would relieve them or the proprietors from liability to action. At present any man might get up at a public meeting and attack a man's character, well knowing that unless he imputed to him the commission of an indictable offence, or said something calculated to injure him in his profession or business, he could not be put upon his trial for the words he used, although the newspaper proprietor who reported his words could. In his opinion, a man who went to a public meeting, where he knew his words would be taken down, ought to be as much responsible for what he might say as for what he might write. He knew very well that objections would be raised against alterations in the law of slander—a law which had long existed, and which many would say had been sanctioned by custom and the Judges, and that they could not do so without sapping the very foundations and principles of the law; but with great respect for the opinions of eminent Judges, he would say that it was fitting that the law should be changed in accordance with changes in the spirit of the times, and he thought he could satisfy the House that there ought to be a change in the law so far as to render persons liable for the speeches they chose to make at public meetings. The very principle of the doctrine that there was a difference between libel and slander was that the latter was not so deliberate as the former. But when it was considered that the speakers at meetings were well aware that their speeches were being taken down by reporters and would be published, and that any person animated by malice might go to a meeting to give vent to calumnies with the express object of getting them reported, a state of the law which exempted them from all liability, and fixed it upon newspaper reporters or proprietors, was disgraceful, and ought not to be allowed to continue. This question was raised in the House of Lords when the Bill of 1858 was before it, and both Lord Campbell and Lord Lyndhurst expressed opinions which were in entire concurrence with those he now enunciated. Lord Lyndhurst said—
  "When you come to consider the circumstances attending a public meeting such as I have described, the principle on which the distinction between written and oral slander is made, hardly applies, A man goes to a meeting prepared with
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  a slander. He sees it taken down; he speaks it for that purpose; he knows it will be published. Take, however, another illustration. Supposing I dictate words detracting from the character of another man to a person who puts them down, and I wish him to publish them. In that case I am responsible, and may be indicted for the libel. It is true that in the example we are now considering there is no authority given—no expression of a wish that it should be published. But everybody knows that it is the intention of the speaker that it should be published, and therefore I say the distinction between oral and written slander does not apply to the case we are now dealing with."—[3 Hansard, cxlix. 963.]
  And the present Lord Chancellor was of the same opinion, because he said there was no real distinction between talking libels in public and writing them for the purpose of being published; therefore, reason and justice alike demanded that he should be made responsible for them. Reporters were too much pressed to weigh and consider the matters which they were reporting with such nicety as to detect libels. Very often they wrote at great speed, and folio after folio of their copy was taken away by messengers and despatched to the printers as fast as they wrote it, so that scarcely any time could be given for revision—and, indeed, they might not even know that what they were writing constituted a libel. Yet they or the newspaper proprietors were made liable. One object of the present measure was to give them the same immunity with respect to correct reports of public meetings as they enjoyed in regard to reports of judicial proceedings. That exemption, which they enjoyed by virtue of a legal decision given some sixty or seventy years ago, was originally confined to trials; but he believed it had been gradually extended to police courts, bankruptcy examinations, and proceedings before other tribunals. He did not propose to give an absolute immunity, but that it should be a defence to an action for libel to plead that the words which formed the subject-matter of the libel were spoken at a public meeting convened for a lawful purpose, open to reporters, and were published without malice, and in the ordinary course of business as a newspaper report; provided always that the newspaper proprietor consented to publish immediately an apology, or any explanation, not of unreasonable length, sent to him by the person aggrieved, in as conspicuous a place in his paper as that in which the libel was published. An objection might be taken to this that men of straw might make damaging speeches,

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  and that if the remedy against the newspaper were abolished, the injured party would have no remedy at all. The speakers, however, would be liable to a criminal information, and greater mischief, he contended, accrued from the present law than would result from the immunity he proposed. It was obviously very important that the public should be furnished with accurate reports of what took place at the meeting of local bodies, invested with taxing and other powers, and at important railway, bank, or other commercial and public meetings. Mr. Baines, in his evidence before the Lords' Committee, said—
  "In large towns public meetings are held almost daily, and frequently several in a day, so as to make it practically impossible for any Editor to read the reports before going to press. Reports are brought in by reporters, very often from distant places, late at night, written out by several different reporters, sent to the printer folio by folio, and sometimes not finished many minutes before the newspaper must be printed and in the post office. This Is the every day routine in newspaper offices, both in London and in the country. There is scarcely any kind of meeting where matter is not uttered which by a rigid interpretation of the Law of Libel, especially before its recent improvement, would be actionable. There is, perhaps, scarcely a meeting of the House of Commons at which something is not said that might be actionable, yet the exposures made of evils and wrong-doings are of the highest public utility. If perfect security is required against the publication of libels, the only effectual security is to be found in the censorship of the press. This would, of course, destroy public liberty, and any curtailment of the existing practice of reporting public meetings would strike a severe blow at all kinds of improvement."
  And he proceeded to urge on the Committee the propriety of giving protection to such reports, saying—
  "I would further beg to submit to the Committee, that the publicity of the proceedings of public meetings through the press is a very important check on wanton and defamatory statements. I maintain that the press, in this way, prevents and corrects a much greater amount of defamation than it propagates. The very knowledge on the part of speakers that their words will be published, is a check upon them."
  It might, however, be said that no actual grievance existed, since actions of the kind he sought to prevent were never brought. The contrary, however, was the fact. Mr. Dobie, the solicitor to The Times, stated,: in his evidence before the House of Lords' Committee, that two actions had been brought against that journal for reports of: public meeting. In this case, although speeches delivered in that House—one the jury only gave a farthing damages, the being for a speech by Dr. Lushington, the defendant had to pay his own costs. In present Judge of the Admiralty Court,
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  and the other for a speech by Lord George Bentinck, relative to proceedings which had been taken under an old Act against horseracing. In one of those actions justification was pleaded, and the case never came to trial, but The Times had to get rid of the action by paying the plaintiff's costs as well as their own, and the other action was abandoned, but The Times was put to a great expense in preparing their defence. He held in his hand a book by Mr. Evelyn, containing a list of such actions which had been brought from the case of "Davison v. Duncan," in nearly all of which the jury showed their opinion of the merits by giving only nominal damages, yet in nearly all the newspapers had to pay considerable costs. There was first the case of "Duncan v. Davison," in 1857, when the damages being a farthing, the costs were over £400. In the following year there was an action against The Sheffield Independent, in consequence of some uncomplimentary allusions made at a trades union meeting, the damages being 1s., and the defendant having to pay his own costs. In 1862 there was the case of "Rogers v. Loader," against the same journal, for a report of proceedings connected with the workhouse; and the jury, in that instance, exercising their power under Fox's Act, found that the report was not a libel. In 1864 there occurred the case of "Hood v. Cowslade, which was an action against The Reading Mercury for a report of the proceedings at a meeting of the Board of Health. In that case the Lord Chief Justice said that, in his opinion, under the law as it then stood, a report of proceedings at a public meeting of an organized body was just as privileged as if the proceedings had taken place in a Court of Justice. The attention of the Lord Chief Justice was called to the Durham case, but his Lordship intimated he did not agree with the ruling in that case, adding that public opinion had advanced so much of late years that he was inclined to say that the press had full immunity in publishing reports of proceedings at public meetings such as he had referred to. In another case, against The Nottingham Daily Guardian. It arose out of an electioneering squabble, and was an action for publishing the report of a speech at ac

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  tion was brought by a Roman Catholic clergyman for a libel contained in a speech made by a Protestant clergyman, and reported in that paper, and the defendant was put to enormous cost in defending himself. There was another case, tried in 1865, in which an action was brought against the proprietors of The Manchester Guardian for an alleged libel contained in a report of a public meeting, and a second action was brought against the person who had uttered the libel complained of; but the latter action was withdrawn, and the result of the action against the proprietors of The Manchester Guardian was that, on the suggestion of the Judge, a juror was withdrawn; but the proprietors had to pay the costs. He thought that these cases offered sufficient evidence of the existence of a real grievance; and, this being so, the question was how could that grievance be remedied? One proposition he had to make was, that which was made by Mr. Johnson Gedge, the Secretary to the Provincial Press Association, when examined years ago before a Committee of the other House. That gentleman proposed that newspapers should be at liberty to publish reports of all speeches made at public meetings, provided the reports were accurate, and the publishers inserted, if required, a contradiction made by any person complaining of any statement so published, the contradiction, being of moderate length, to be inserted in as prominent a part of the paper as that which contained the original report. The suggestion as to the publication of the contradiction was taken from the French Law of Libel. M. Dupin, having told the House of Commons' Committee that there were few actions for libel in Prance, was asked—
  "Has a person reflected upon in any periodical publication a right to compel the editor to insert his answer to the attack, and, if so, under what circumstances?—He has the right, in any case in which the attack implies an imputation upon his character, to compel the editor to insert his answer, provided that answer is not more than twice as long as the attack. Thus, if an attack is ten lines, your answer must not be more than twenty. In this case, a journal which would refuse the insertion would be condemned to make it by the courts of justice. Nevertheless, the courts of justice have sometimes sanctioned the refusal of the editor to insert the answer if the answer was offensively couched, although the offence was by way of reprisal-either against the editor or against others. Is this provision found of practical utility, and does it operate as a useful cheek upon slander?—This provision granted by the law is very useful."
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  This provision, then, having been found to have a very beneficial effect in Franco he (Sir Colman O'Loghlen) believed a similar effect would be produced if it were adopted in England. The main object of the first part of the Bill was therefore to make those who chose to make scandalous statements at public meetings responsible for those statements; and the second object was to give immunity to the press in publishing reports of proceedings at public meetings; but this part of the question was one which he thought might be considered in Committee, and it might be found that the newspapers might be relieved by other means than those which he proposed. Upon this point he was ready to listen to any suggestions or amendments. The second part of the Bill related not only to the press, but to all sorts of actions for libel. It dealt with costs, the most material question in every action for libel. Under the law as it existed in England, unless a plaintiff obtained a verdict for 40 s. damages he was not entitled to costs; but in Ireland a farthing damages carried costs. The difference in the law as between the two countries was one that, in his opinion, ought no longer to exist; and he therefore proposed that the law of Ireland should be assimilated to that of England in this respect. He also proposed that unless a plaintiff obtained a verdict for damages amounting to £5 or upwards, he should not be entitled to more costs than damages. He had read cases in which Judges had refused to tell the jury what amount of damages would carry costs; but he thought it undesirable that this practice should be followed, because, although it was a legal fiction that all persons should be acquainted with the law, it was very seldom that juries could be found who possessed such legal knowledge: and he was glad to perceive that the Chief Justice of the Common Pleas, in a recent case, had not followed the practice resorted to by other Judges, but had told the jury the amount of damages which would carry costs. At present, where only a shilling or even a farthing was recovered in the shape of damages, although the plaintiff did not get his costs, the defendant bad to pay the expense he had incurred in defending the action. In his opinion the press ought to be protected against actions being brought by pettifogging attorneys for costs, or by parties who merely desired to gratify a malignant feeling. It was suggested to the Committee of the House

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  of Lords that if substantial damages were not given to a plaintiff the defendant should not only be freed from the payment of the plaintiff's costs, but should have his own costs paid by the plaintiff. Mr. Johnson Gedge, the proprietor of The Bury Post, and other witnesses, had urged that the defendant should have his costs paid where the proceedings against him were shown by the verdict to have been vexatious or malicious. In the Kill he (Sir Colman O'Loghlen) brought in in 1865 he had proposed that where a plaintiff only obtained a verdict for 20 s. damages, he should not only not be entitled to costs, but should pay the costs of the defendant, and he only gave the plaintiff costs where he recovered 40 s. Since then he had found that there were several objections to the proposal that the plaintiff should pay the defendant's costs where he had recovered any amount of damages, and he now proposed to effect his object in a different way. His present proposition was that, as in other cases, the defendant in an action for libel should be at liberty to pay money into court; and if the jury considered the amount so paid into court sufficient to cover the injury, the defendant would be entitled to costs from the plaintiff. At present he could only do so under Lord Campbell's Act, where he pleaded a full and ample apology. The course he proposed was that in most actions in tort, and he thought it might be beneficially adopted in actions for libel. Furthermore, he proposed that where money was paid into court, and was not accepted by the plaintiff in discharge of his action, the plaintiff should not be allowed to proceed unless he gave security for costs; the newspaper proprietor who defended was already bound to give security to the Crown on the establishing of his paper, for any damages that might be awarded against him, and it would be no hardship to require the plaintiff to give a similar security. The third part of the Bill related to indictments or prosecutions for libel. At present there were three courses open to a party libelled: he could bring an action, he could file a criminal information in the Queen's Bench, or he could indict the publisher or writer of the libel. If an action were brought, the defendant stood on tolerably equal terms with the plaintiff: he could plead justification, could himself be examined as a witness, and, in case of obtaining a verdict, be could recover costs from the plaintiff. In the case of pro-
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  ceeding by criminal information no one could file such an information without leave of the court, so that there was a check against vindictiveness; but there was no check against procedure by indictment. In criminal information or indictment, moreover, the defendant stood in a very different position—he could not offer himself as a witness—his mouth was stopped, and though he might plead that what he had stated was true, and that the publication was for the public benefit, he could not be called in support of his plea, although very probably he was the only person able to establish it, course could be resorted to for purposes of oppression or to gratify malignant feelings. Again, where a man was indicted the Crown had power—though that power was now restrained by public opinion—to pack a jury; but the plaintiff in an indictment for libel could use this power, inasmuch as the prosecutor stood in the position of the Crown; and an instance in which the attempt to do this had been made had occurred in the sister country, but it drew from the present Chief Justice of Ireland, then Mr. Whiteside, so strong a remonstrance that the Judge interposed. The system was liable to the greatest possible abuse, as was exemplified in the case of Sir Robert Clifton, who had been summoned before police magistrates for a libel alleged to have been contained in a letter he had written; and in the case of the proprietors of The Railway Times and Chronicle, who were summoned to appear at Bow Street for having inserted in their paper letters reflecting on the management of the directors of the South Eastern Railway Company, those letters having been written by Mr. J. J. Hamilton, a shareholder in the company to the extent of £33,000. In Scotland the right of criminal prosecution in cases of libel practically did not exist, or had become obsolete. There was another inconvenience in the existing law, which was that a person indicting another for libel was not liable for costs himself, unless the defendant pleaded and proved, under Lord Campbell's Act, that what he had published was for the public benefit. He had originally proposed to do away with procedure by indictment in libel cases in this country; but on reflection he saw that cases might arise in which it would be desirable that a larger power of punishment than that of awarding damages should be retained; and his present proposition was therefore that no

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  indictment for libel should be sent into court without the consent of the Attorney General, or, in case that office were vacant, of the Solicitor General. He also proposed that on a trial by indictment or information for libel, the defendant might offer himself as a witness. The fourth part of the Bill simply proposed a short form of pleading justification, so that the pitfalls which were at present due to the technicalities of the law might be avoided. But in order that the plaintiff might not be injured by the use of a plea which might be regarded as of too general a nature, he proposed to give him power to require a bill of particulars. Furthermore, he proposed that the Bill should not extend to Scotland. In conclusion, he had only to say that in his opinion the best protection against the licence of the press would be found in having the press conducted by respectable persons, and anything which tended to expose the proprietors of newspapers to needless and vexatious proceedings was calculated to discourage such persons from retaining their connection with the press. He was not prepared to say that every provision in the Bill ought to receive the sanction of the House, but he was perfectly willing to have it amended in Committee.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir Colman O'Loghlen.)
  THE SOLICITOR GENERAL: I do not rise to offer any opposition whatever to the second reading of this Bill. After hearing the statement of the hon. and learned Gentleman I think that it will be in many respects a highly beneficial Act if it passes: but there are several matters in it which will require care and consideration, either before a Select Committee or in Committee of this House, because I think it will be found that there are very great powers given to the press by the Bill, and it is a question whether those powers are not larger than the hon. and learned Member intended. Let me call attention for a moment to the case that was mentioned by the hon. and learned Gentleman, that of "Davison v. Duncan," which was decided against The Durham Advertiser, for commenting on the proceedings of the West Hartlepool Commissioners. The decision in that case was the occasion of Lord Campbell's Bill in 1858. That Bill, which was in some respects similar to that now before the
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  House, but differing from it in some material particulars, was thrown out on the second reading by the House of Lords, in consequence of the difficulties felt by some noble Lords as to the extent to which the privileges of the press ought to be carried. In commenting on the case of "Davison v. Duncan" Lord Campbell said—
  "The inconvenience arising from the chance of the injury to private character is infinitesimally small as compared to the convenience of publicity. But it has never yet been contended that such a privilege extends to a report of what takes place at all public meetings. Even if confined to a report of what was relevant to the object of the meeting, it would extend the privilege to an alarming extent. If this plea is good, a fair amount of what takes place may be published, whatever harm the publication may do to private character, provided it took place at a meeting of a public nature—a wide description, embracing all kinds of meetings, from a county meeting to a parish, meeting."
  Those were the observations made by Lord Chief Justice Campbell in the case referred to; and I would ask the hon. and learned Member—not for the purpose of impeding the progress of his Bill, but in order to prevent its being wrecked either here or elsewhere—that some more careful definition of a public meeting than that contained in the 1st clause should be hereafter framed. I find the definition of a public meeting in the 1st clause is "any public meeting lawfully assembled for a lawful purpose." That, in the words of Lord Campbell, is extending the liberty in a rather alarming degree, more especially since, as was pointed out by Lord Lyndhurst in the debate on the Bill in the Upper House, in a great many cases people go to a public meeting for the purpose of uttering slander. And although under the 2nd clause these persons are made liable for any injury done to the person slandered, yet they are frequently persons against whom it is useless to bring any action at all, and the real injury is done by the circulation of the slander in the newspapers. So far, however, as I have been able to give attention to the Bill and to the statement of the hon. and learned Gentleman, I think that the second clause will work extremely well. It has been urged that slander and libel are not by the law put upon the same ground—that the person uttering slander usually does so in the heat of the moment, and that the effect is fleeting; while the words used in a libel deliberately published are intentionally used, and are of a very different cha-

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  racter from words used in the heat of the moment. I cannot, however, help thinking that the observation made by Lord Lyndhurst in the debate in the House of Lords is perfectly true—that a man who goes to a public meeting to make a statement makes it with a deliberate intention, and with a full knowledge of what it comprehends. I cannot see, however, why that man should not be liable to an action, or to any other proceeding for libel, just as if he had published the libel, and circulated it. I will not detain the House by going through the different clauses of the Bill; but that which refers to paying money into court I think will be fair and useful. I would suggest, however, that in Clause C, providing that unless the jury shall give damages exceeding £5 the plaintiff shall not be entitled to more costs than damages, it would be well to add words to the effect—"Except the Judge should think that the action was one which ought to have been brought, and that costs ought to be awarded." With regard to the practice of some of the Judges in declaring what amount of damages carry costs, it differs in various Courts; but I cannot help thinking that it would not be inconvenient if the jury always know what damages would carry costs. I cannot quite agree with the hon. and learned Gentleman that everyone is expected to know the law, although there is an old legal maxim that ignorance of the law is no excuse. I recollect that a very learned Judge, Mr. Justice Maule, who is now dead said that if it were supposed that every one was acquainted with the law the Judges of the land were exceptions; because in a writ of error it was always set forth that there were manifest errors in the judgment. The clause requiring that no prosecution for a libel shall be brought except with the sanction of the Attorney General will also require to be considered in Committee. I do not think that my hon. and learned Friend the Attorney General would shrink from performing a public duty; but this difficulty must arise, that a case would go before the jury with a certain amount of sanction to the prosecution if the Attorney General had given his consent to its institution; and, in the next place, the clause was open to the objection that it would not be easy, without some proper machinery being provided, to enable him to do so, for the Attorney General to determine accurately whether the case is one in which there
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  ought to be a prosecution. The 8th clause of the Bill, which enables a defendant at the trial of an indictment or information for libel to offer himself or herself as a witness, and also enables the husband or wife of a defendant to be examined, has my unqualified approbation. Since the passing of the Common Law Procedure Act the practice has prevailed under its sanction of pleading generally in actions of libel that the alleged libel is true; but any difficulty arising from this is removed by the provision that a bill of particulars of what is intended to be relied upon by the defendant shall be given in all cases where it is desirable it should be given. With regard to the clause in which it is proposed that security for costs should be given by the plaintiff, I did not quite follow the hon. and learned Gentleman's reasoning; but it appears to me that all the parties ought to be put upon the same footing in that respect. I have made these remarks in order that they may receive the hon. and learned Member's consideration, and not with any view of opposing the second reading.
  MR. NEWDEGATEsaid, the Bill had been introduced as a Bill in the first instance to promote the freedom of the press. It was the practice of hon. Gentlemen on the opposite side of the House, the hon. Member for Leeds especially was wont to laud the press of this country, and to compare the cheap press with that of the United States, drawing a just comparison in favour of the higher tone that prevailed in the cheap press of England. Now, if under the present state of the law the public press of the country was marked by a high tone, he thought that the House would not lightly regard any proposal to alter the law under which that press existed. The hon. and learned Member (Sir Colman O'Loghlen) had laid great stress upon the injustice of leaving the proprietors of newspapers liable to be prosecuted for defamation; but the probability was, that the responsibility which at present attached to the proprietors had done much to create the present high tone of English journals. The man who undertook a risk under securities for his good conduct was likely to be a man of higher character and position than a person placed under no such moral and practical restraint. This Bill, in the first instance, purported to widen the freedom of the press; but how would it affect the freedom of individuals? One peculiarity

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  of our legislation of late years had been that it had enormously increased the liberty and power of associations, but it had done very little for individual freedom. Formerly from the other side of the House proceeded eloquent vindications of individual freedom; but now they heard nothing from that quarter but appeals for the extension of the freedom and power of associations. The hon. and learned Gentleman proposed that individuals who made statements at public meetings which might be supposed to be slanderous or libellous should be liable—for what? Not for the words spoken by them, but for words reported. He was happy to say that reliance could generally be placed on the accuracy of the reports of the speeches which were delivered in that House, and of what was said out of it; but then it must be remembered that reporting was at present under the restraint that operated on the proprietors of newspapers. A reporter must be a highly educated man, and it was well known that many of them were persons of the highest possible attainments, and some of them were members of the legal profession. Reporters were better judges of what constituted a libel than a person who spoke under excitement at a public meeting. When a man littered a libel in the heat of discussion at a public meeting there existed the means of correction, for the statement might he immediately contradicted;—the slander might be answered on the spot; and he had known many instances in which that had taken place, even where the meeting was notoriously packed. But how did the grievance arise? Why, by the publication of the report; because the report reached the public far beyond the meeting at which the slander was uttered. The grievance was therefore far more in the publication than in the utterance of the slander? It might be almost impossible for the person libelled to reach the author of a slander, if the publisher of it was to have perfect indemnity. No man valued the freedom of the press more sincerely than he did, but he saw danger in the proposed alteration. We had a press which deserved all the encomiums that had been passed upon it; but there was a difference between freedom and licence, and if they removed all responsibility on the part of the publisher, in his I opinion they would open the door to a class of newspaper proprietors lower than the present. They might depend upon it,
  1732
  that freedom was not an accident, but a privilege which could only exist by being preserved within due restraints. He loved freedom. Tory he was; no one could show him the occasion on which he did not defend freedom. But they should not forget that freedom—that liberty generally perished by its own excess. Therefore was it that he looked with much suspicion on the principle of this Bill, and trusted that if the Bill passed a second reading that it would be referred to a Select Committee; or that else the Committee of that House would thoroughly investigate and consider the various principles contained in it, so that whilst endeavouring to extend, they might not destroy, the freedom of the press. It would be difficult to preserve individuals from abuse that might arise from the licence of the press, if there was no law to prevent the conductors of newspapers from putting reports into the mouths of speakers which were totally inaccurate. That reporters should be perfectly accurate was impossible. It would, therefore, be a great hardship that any speaker should be liable to an action for a false report. A free press was one of the most powerful instruments for preserving individual and collective freedom; but, if it were under restraint or in the hands of a Government, it might be a most effective means of tyranny. He (Mr. Newdegate) looked with the greatest suspicion on the clause which proposed that a Government officer should decide whether an indictment would lie or not, instead of that primary act of jurisdiction being left to the proper tribunals of the country. Let them look across the Channel, and stake warning from the position of the press in France and in Spain. In those countries the press was used against the people. They could not be too careful of the manner in which they dealt with the law which wholesomely regulated the press, whilst at the same time it preserved its liberty, lest both the law and the press should degenerate from their high tone and character. He had spoken strongly; but he objected to the principle of the measure, oh the ground, first, that he saw in it danger to the freedom of discussion; secondly, to the freedom of individuals; and ultimately, he feared, by encouraging excess, to the freedom of the press itself.
  MR. BUXTONsaid, there were two evils which the hon. Gentleman the Member for North Warwickshire chiefly appeared

  1733
  to dread; but these were carefully provided against by the Bill. The first was, that libels might be put into the mouths of speakers by the reporters; but the Bill declared that unless the report was a faithful one the paper publishing it should not be protected. Again, that hon. Member said that if a man uttered slander at a public meeting another speaker might get up and answer him, but the libel would still be published in the newspaper. Well, the same protection was afforded by the Bill in the case of a libellous report, because it expressly required that the answer sent to the editor by the person aggrieved must be inserted in the newspaper in which the report had appeared. The hon. Gentleman had told them to look at the press of France and Spain, and certainly the more they looked at it the less they liked it; but what had happened in those countries did not, he thought, justify them in placing our own press under oppressive restrictions.
  MR. THOMAS CHAMBERSagreed with the hon. Member for North Warwickshire in thinking that the utmost care was required in dealing with this subject. There was no conceivable engine capable of being employed for the purpose of inflicting wrong on private character comparable in power to the press, and its power had for many years been increasing in a geometrical ratio by reason of the immense multiplication both of newspapers and of their readers. At a public meeting a man might, in the heat of debate, say something which it would have been better to leave unsaid, but it passed away like breath in a moment, and the wound was soon healed—if, indeed, any wound was given at all, for the person concerned might not be present But the mischief done by those fleeting words, evanescent as it would probably be, was made permanent when they were circulated far and wide by a newspaper published and sold for a profit. Before they removed the present restraints it was necessary first to prove there was a grievance. He did not think that it had been proved that there was. He agreed in all the compliments that had been paid to the press; he would bear personal testimony to the admirable manner in which, as a rule, the press of this country was conducted; but it was worthy of consideration whether its high tone was not due—partly at least—to the wholesome restraints of our law, and whether it was desirable to relax those re-
  1734
  straints upon so formidable an instrument both of good and of evil, merely because some newspaper proprietor, who was generally a rich man, might now and then be brought into a court by some not very worthy individual to answer for an alleged libel. Let them diminish the securities under which the freedom of the press was exercised and they would open a door, which they might not afterwards be able to close again, to dangerous excesses. He did not know whether the representatives of the press generally complained of any grievance in this matter, or whether they had petitioned that House to relieve them from any alleged unjust or oppressive operation of the present law. If that were so, no doubt the question should be brought before the Legislature. But the first part of this Bill required the gravest consideration, depriving a man, as it did, of the right to sue for the redress of a wrong done to his reputation, which was, in most cases, a far greater injury than an assault upon his person. The provisions of the second part of the Bill were, he thought, excellent. As to the third part, he agreed with the Solicitor General that it ought not to depend on the will of a Government officer whether or not one man should be entitled to indict another for libel. Supposing one person published a gross libel on the character of another in order to extort money. [An hon. MEMBER: That case is excepted from the measure.] He was glad that it was excepted; but there were many other motives for publishing gross libels equally wicked, and he could not see why a man should not have as free a remedy in a court of justice where his reputation was assailed as he had when violence was offered to his person.
  MR. ROEBUCKsaid, that it appeared that no one had any objection to fix the liability for a slander uttered at a public meeting upon the speaker; but great objection was entertained to relieving from responsibility the proprietor of a newspaper if which it might be reported. Whatever the hon. Member for North Warwickshire (Mr. Newdegate) said, he said in so solemn a manner that they became alarmed; the bias of their minds was disturbed by the solemnity of his utterances. Let them, however, look at this question like men who were not terrified out of their wits. Who was most likely to bring an action against a newspaper? Was it the honest man? Certainly not.

  1735
  An honest man against whom a libel had been published would go to the proprietor of the journal in which it had appeared, and say, "I have been libelled. Give me the opportunity of stating the facts of the case;" and if the newspaper refused to publish his answer, it would still, under this Bill, be liable; but if it inserted the answer, and afforded the person libelled the means of defending himself, it would not be liable. But what did the dishonest man do? He rushed to an attorney, who at once wrote to the proprietor of the paper for the name of his solicitor, in order that he might servo process, and, without asking for any explanation or contradiction of the false statement, immediately commenced proceedings. If the newspaper proprietor offered to insert an apology, the pettifogging attorney would say that that was not the time; they must wait. The meaning of this was, that they were to wait until costs had been incurred, otherwise, he would got no pickings, no fees, no bill. When, however, the matter came on for trial, he was "quite open to an arrangement." That meant that the poor unfortunate newspaper proprietor should make an arrangement by which he should pay all the costs. What possible harm could happen to society from the passing of this Bill? That was the real question for the House to consider. He had heard a great many platitudes uttered in laudation of the press, and he could not altogether acquit the hon. and learned Member for Marylebone (Mr. Thomas Chambers) of having uttered some against it. The hon. and learned Gentleman had talked about its terrible power. What was the meaning of that? Why, it meant a terrible good. Then the hon. and learned Gentleman said that publications had enormously increased, and not only that, but so also had their readers. What did that imply but that the greatest possible advantage was derived by the public from the press? In the very remarkable evidence given by the hon. Member for Leeds (Mr. Baines) before the Committee of the House of Lords on that subject, there was an enumeration of the various classes of public bodies the proceedings of which the newspapers were accustomed to report. There were—"1, both Houses of Parliament; 2, Courts of Law and police courts; 3, municipal corporations, and bodies of commissioners for objects of local administration, protection, and improvement; 4, Poor Law guardians; 5, vestry meetings;
  1736
  6, Parliamentary, municipal, and other elections; 7, meetings of magistrates for county and other business; 8, county, borough, or parish meetings convened by sheriffs, mayors, or other authorities; 9, meetings of public charities, or institutions benevolent, educational, reformatory, and religious; 10, public meetings to promote political, legal, and social reforms; 11, meetings of mechanics' institutions, and philosophical societies, the Society of Arts;12, public lectures like those on the supply of cotton, adulteration of food, &c.; 13, meetings of railway proprietors; 14, meetings of banks, and other joint-stock companies; meetings of Chambers of Commerce." Was there not immense advantage to the public in the reporting of these meetings? And how was it done? It was done by reporters, whom the hon. Member for Worth Warwickshire (Mr. Newdegate) himself admitted must be educated men, and whose only desire was to give faithful reports of what took place. These reports the editor of a daily paper had no time to revise. He must therefore either exclude all accounts of such proceedings, or run the risk that in some rare instances the malignity of some individual might do injustice to the character of another. But, even if such a thing occurred, the very weapon that inflicted the wound healed it the day after the slander had appeared—the very journal which had circulated would give equal publicity to its contradiction, and therefore no mischief was done to an honest man. Under these circumstances, the House would not have much difficulty in assenting to the second reading of this Bill. When the Bill got into Committee, every clause ought to be carefully considered; but the measure was not one to be referred to a Select Committee. Did the hon. Member for North Warwickshire think that was the first time that that question had been considered? Why, it had long been under consideration, he might almost say for centuries; all their great writers had given their opinion upon the matter, and it was now ripe for decision. The House should decide it on its own responsibility, and when it had done so he thought they need fear no danger to society.
  MR. BAINESsaid, it seemed to him that that was a case in which there was a claim the most irresistible for plain justice to the most important institution of this land—namely, the press. Gentlemen connected with the press were now liable to

  1737
  heavy punishment for not doing that which it was notoriously impossible that they should do—that was to say, for not examining reports, often brought in at the last moment before publication, in order to eliminate from them whatever might be defamatory. It was said that slander ought to be punished. He admitted it; but who was the slanderer? The hon. and learned Member for Marylebone (Mr. Thomas Chambers) argued that it was not the utterance by the voice that did the mischief, but its publication in the newspapers. He said No: the man who first uttered it first published it to the world. It was true a report of what was said was printed, perhaps on the following day; but one very important consideration must be borne in mind—namely, the effect produced upon what was said at a public meeting by the known fact that the speeches to be delivered there would be published. The man who uttered a speech knew that it would go to all the world, and he therefore measured, regulated, and moderated the statements which he made. But that was not all. It was quite possible that a libellous statement uttered at a public meeting might be distorted and magnified to such a degree as to do infinitely more harm than if the actual words were given. But the following day the actual words were known. Then the man who had been libelled came forward, sent a statement for the correction of that libel to the newspaper, that statement was inserted, and thereby the evil that had been done was redressed. "Without the newspaper they could not have that, because that which had gone forth on the wings of rumour they could not identify or refute; but when it appeared in the press, they could ascertain what it was and refute it. The proceedings of public meetings, then, were immensely modified and improved by the knowledge that they would be published to the world, and by the fact that they were published by men who had no malice, and no other interest in the matter except to give correctly to the world what was said. Those men were not the guilty parties. The Legislature chose to punish, not the man who uttered the slander, but the man who published it. That reminded him of the ancient Persian law under which great persons were not punished, save by proxy, for their errors. Cyrus was too great to be punished, and therefore they had whipping boys as deputies. The condition of the proposed exemption—namely,
  1738
  that the newspaper should be required to publish a refutation of the libel which it might have been the innocent means of circulating—the proprietors of newspapers were Milling to accept. He believed that many proprietors of the provincial press had petitioned for the adoption of a measure like the present; and he was glad to find, from the very liberal speech made that day by the Solicitor General, that there was now every prospect of ail absurd and unjust state of the law relating to the press being at length remedied.
  MR. MILNER GIBSONsaid, that as the House seemed willing to accord a second reading to the Bill, he would not make any remarks on the principle of the measure. But there was a point of some importance raised by the learned Solicitor General on which they ought to have some clear understanding. That hon. and learned Gentleman said that, although prepared to give newspaper proprietors an immunity from prosecution in certain cases, he thought it would be necessary to define very carefully those public meetings in regard to the speeches delivered at which the proprietors of newspapers should enjoy an immunity for the publication of faithful though slanderous reports. Now, for himself, he believed it would be found extremely difficult to have any other definition than that contained in the first clause of that Bill—namely, that the exemption from liability should extend to the reports of all speeches at all public meetings lawfully assembled for a lawful purpose. He spoke with the more confidence on that subject because, when the matter was brought some time since before the House of Lords, a clause was introduced into the late Lord Campbell's Bill laying down precisely what were the kind of meetings the reports of which should be privileged. Lord Lyndhurst objected to the definition then proposed, and actually suggested the very words used in the present Bill—namely, "any public meeting lawfully assembled for a lawful purpose." That definition seemed to be accepted at the time as the best that could be devised if the thing was to be done at all.
  SIR GEORGE BOWYERsaid, he entirely concurred in the part of the Bill which brought slanderous expressions used at public meetings within the law of libel. At present what a man said against the character of his neighbour at a public meeting was actionable only if it came within the law of slander, which was of

  1739
  a very narrow description; but if he said anything which, if written, would be actionable, but which was not actionable if spoken, he was entirely exempt from responsibility. That was a great abuse, because the man who spoke slanderous words knew perfectly well that there were other persons present who were writing them down. Therefore, as he spoke the words knowing that they were going to be published, he ought to be liable the same as if he wrote them with his own hand. But he (Sir George Bowyer) felt considerable doubt whether a paper publishing slander ought, in every case, to be exempt from responsibility. The editor of a respectable paper not only ought to, but did exercise, he believed, a certain discrimination in publishing the reports of speeches, and if he saw anything in a speech that was decidedly of a slanderous nature, and which ought not to be published, it was his duty to hold his hand, to take care what he did about it, and refrain from publishing attacks upon private character. It might be said there was no occasion to make the newspaper editor or proprietor liable, because the remedy ought to be against the person who uttered the words at the meeting. But the injured person might not always be able to find the actual utterer of the slanderous words, even though his name might be given in the newspaper. Under those circumstances, the remedy against the man who spoke a slander might be, in many cases, insufficient. Even if he were discovered, he might be found to be "a man of straw," against whom it would be absurd to bring an action, inasmuch as he would be unable to pay damages in the event of the verdict being against him. But then it was said that the proper remedy for an honest man to have recourse to was to apply to the editor of the newspaper in which the slander was published, and to call upon him to contradict it. It must, however, be borne in mind that a great many persons might read the slander who might never see the contradiction, and who, even if they did see it, would not be disposed to attach to it much importance. Besides, people would rather read a slander than a refutation. It was once said by a witty French writer—he believed Madame De Sevigne—that some person to whom reference was made had so little credit for telling the truth that no one would believe him even though he were to speak ill of his neigh-
  1740
  bour. It was clear that slander was a thing which found very ready acceptance; and he (Sir George Bowyer) was afraid that in the cases in which contradictions were published in a newspaper, there would be some persons who would not look upon the denial as a sufficient proof that the slander was without foundation, He therefore was of opinion that it was right the proprietors of newspapers should be placed under some sort of restraint with regard to the publication of matter tending to involve private character, and that they ought not to be absolved from all responsibility for such publication, even though the slander were originally uttered by a speaker at a public meeting. That, however, was a point which could be discussed in Committee, and he hoped it would receive due consideration, for the publishers of newspapers wielded such enormous powers that it would lead, he was afraid, to great inconvenience if they were to receive the complete immunity which was proposed.
  MR. SYNANsaid, that newspapers were under a necessity to report the proceedings of public meetings lawfully constituted, and they were therefore, he thought, entitled to some protection. Freedom of the press in this country was not, as had been advanced, a matter of privilege, but a matter of right.
  MR. HENLEYsaid, that as at present advised, he could see no objection to the 1st clause of the Bill, which exempted, under the conditions stated, accurate reports of public meetings. Upon the 2nd clause he should withhold judgment, as he was not at present disposed to assent to making words spoken subject to the law of libel. That clause required serious consideration, as they all knew the great difficulty of proving the exact words uttered, and the temper and tone in which they were uttered. They also knew something about standing on public hustings. Strong language was there used sometimes. Was a man who used strong language on the hustings to be liable to an action for libel? That part of the Bill, however, could be dealt with in Committee, although he confessed that at present he did not like the clause. To extend the law to words spoken was taking a great step, and he believed that on the whole it would lead to more inconvenience than the contrary. He saw no harm in absolving the press if the answer to the libel appeared in the same part of the

  1741
  paper. It was an immense advantage to have everything published, and they might go a little out of their way to relieve those who were at the expense of publishing from penal consequences.
  MR. WALPOLErose merely, in consequence of the observations of his right hon. Friend and of the learned Solicitor General, to suggest the advisability, in order that the wording of the two clauses referred to might be put into the best shape for discussion in Committee, that after the second reading of the Bill it should be referred to a Select Committee, where the clauses could be better dealt with.
  SIR COLMAN O'LOGHLENagreed that it would be better to remit the consideration of these clauses to a Select Committee at once.
  Bill read a second time, and committed to a Select Committee.
  And, on March 20, Select Committee nominated as follows:—Mr. Secretary WALPOLE, Mr. SOLICITOR GENERAL, Mr. MILNER GIBSON, Sir ROBERT COLLIER, Viscount AMBERLEY, Mr. HENLEY, Mr. LOWE, Mr. LAWSON, Mr. ROEBUCK., Mr. SANDFORD, Captain GRIDLEY, Mr. SULLIVAN, Mr. BAINES, and Sir COLMAN O'LOGHLEN:—Five to be the quorum.

INDUSTRIAL SCHOOLS (IRELAND) BILL.
(The O'Conor Don, Mr. Monsell, Mr. Leatham.)
INDUSTRIAL SCHOOLS (IRELAND) BILL.

  [BILL 17.] SECOND READING.
  Order for Second Reading read.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(The O'Conor Don.)
  MR. PEEL DAWSON,in moving that the Bill be read a second time that day six months, said, he thought the measure was an unwise and inopportune proposal for extending the Reformatory Schools Act, and ought to be regarded with a just sense of suspicion and distrust, because it would have the effect of encouraging sectarian education in Ireland, which it had been the avowed policy of Parliament for the last thirty-five years, and of every successive Government during that period, to restrain and discourage, so far, at least, as assistance from the public purse was concerned. He regarded this Bill as an underhand attack on the national system of education in Ireland, which, though it had many faults, had been the means of diffusing a better system of education throughout the country than any other system was likely to attain. It behoved Parliament, therefore,
  1742
  to take care that no underhand blows should be dealt against it. It might be in the recollection of the House that in 1861 a very similar measure to this was introduced by the hon. Gentleman who now represented the city of Cork (Mr. Maguire); but with this difference—that whereas in that Bill the charge for supporting the schools was laid on the poor rates, by the present Bill it was transferred to the county cess. He (Mr. Peel Dawson) felt it his duty to give that Bill his opposition; and it met with so little favour from the House that it did not receive a second reading. Under its operation the fourteenth provision of the English Act would be extended to the sister country, and therefore any children under the age of fourteen who might be found begging might be clothed, fed, and educated at the public cost. No better mode, he maintained, of holding out a premium to vagrancy than the establishment of such a system could well be devised. It would also furnish a dangerous temptation to parents to repudiate all responsibility in the care and nurture of their children by making a declaration simply before a magistrate that they were unable to control them. He could discover no security against the uncontrolled expenditure of public money. The Bill was all the more untimely, in his opinion, because the late and present Chancellor of the Exchequer had promised that the educational expenses in unions, and the salaries of teachers should henceforward, as in England, be made a charge on the Consolidated Fund. He objected to having such a measure pressed to a second reading in the unavoidable absence of the Chief Secretary for Ireland and the Irish Law Officers. He learnt from a petition which had been presented to that House, that instead of paying 15 d. a week for a pauper child, as at present in most unions, the county charge, if the Bill passed, would be raised to 5s. a week for every child who might be kidnapped into the proposed schools in certain parts of Ireland. He doubted not that most of the unions in Ireland would declare their opposition to this measure. He feared that the provisions of this Bill would be made use of for purposes of proselytism, and he could not assent to a Bill which, in his opinion, would tend to such a breach of the principles of Christian charity. The adoption of this Bill would increase and aggravate the disputes which were continually going on, and which

  1743
  caused so much rancour among ministers of the different religious sections in Ireland, especially in reference to foundlings and the offspring of mixed marriages. The difference between the relation of the religious bodies in Ireland and in England prevented a fair analogy being drawn between them. He contended, moreover, that Ireland was already overschooled, and that no sufficient time had elapsed for testing the principles that had been applied in the same direction in England. The feeling of the Protestants of the North of Ireland was opposed to this measure, and such opinions were entitled to receive the attention and consideration of the House, and the Presbyterian Church there wholly protested against it. He had received a letter from an eminent professor in the Presbyterian College at Londonderry, in which he said that the establishment of this system in Ireland would bring about an educational revolution; that the design of its promoters was to substitute sectarian for united education, and to obtain greatly increased endowments for the promotion of the sectarian system; and he remarked that the Irish system of education differed entirely from the English, and that it was not advisable to follow up the English precedent. Resolutions were also passed at a meeting of ministers in the synod of Omagh, County Tyrone, in opposition to this attempt to further sectarian education, which it was contended would entirely supersede the national system in Ireland, and which was calculated to cause alarm to the taxpayers of the country. He agreed in the opinions thus expressed, and foresaw that if this Bill were passed into a law it would be turned into an instrument of religious discord and of possible proselytism.
  LORD CLAUD HAMILTONseconded the Amendment.
  Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Peel Dawson.)
  Question proposed, "That the word 'now' stand part of the Question."
  MR. KNATCHBULL-HUGESSENsaid, that as it had fallen to his lot to prepare and introduce the English Reformatory and Industrial School Bills last year, which were adopted by the right hon. Gentleman (Mr. Walpole) and subsequently became law, he wished to say a few words upon the subject. The non-extension to Ireland of those Bills had not arisen from any
  1744
  doubt on the part of the late Government that the principles which had proved so beneficial to England were equally applicable to the sister country. But the Irish Reformatory Act had been passed subsequently to the first English Act, and was a separate measure with some separate provisions, and it was thought better, in the first place, still to keep the Acts separate, and, in the second place, as it was positively necessary to renew the English Industrial Act which was about to expire, it was deemed better to introduce as little as possible that might give rise to controversy, and possibly delay the passing of that Act, introduced as it was, of necessity, at a late period of the Session. From the speech of his hon. Friend opposite, the House would imagine that the Irish Reformatory Act must have already proved injurious to the system of National Education in Ireland. But what was the real state of the case? That Act was passed in 1858. He believed there were now nine Reformatories in Ireland. But since the date of that Act the National schools in Ireland had increased more than 1,000 in number, and the number of children on the school-rolls had increased more than 300,000. At the close of the year 1865, there were 6,372 schools in operation, with upwards of 900,000 children on the rolls, and an average daily attendance of more than 320,000. How could any one say that the reformatories have injured the system of National Education? But if this was not the case, what evil was likely to result from the extension to Ireland of the Industrial Act? This Act was for the prevention, as the reformatory was for the cure, of juvenile crime. The classes of children to be dealt with under the Act were these (with a limit as to age)—1, children accused of an offence punishable with imprisonment, who have not been previously convicted of felony; 2, children found begging in the street; 3, children without home or proper guardianship; 4, refractory children in workhouses; 5, children whose parents represent that they are unable to control them. Now, what percentage of the 900,000 children on the rolls of the Irish National Schools did his hon. Friend think would come under any of these denominations? The truth was that the reformatory and industrial schools aimed at a class of children different from that which supplied the National schools; they were children who would not be reached at all without these schools. No doubt there were difficulties in

  1745
  the system—there always must be difficulties where you engraft State assistance upon voluntary management—bat the good far preponderated over the evil. With respect to the objection that the Bill was proceeded with in the absence of the noble Lord the Chief Secretary for Ireland (Lord Naas), he could only say that if his memory served him right, that noble Lord had expressed his approval of the Reformatory Act when it was introduced, and there was no reason to doubt his approval of the present Bill. He (Mr. Knatchbull-Hugessen) had heard with much pain the observations of his hon. Friend opposite, upon the subject of proselytism. Why make it a question whether these unfortunate children should be educated as Protestants or Catholics, when the real question was, whether they should be educated at all? Besides, whenever the question of the Established Church in Ireland was mooted—a question upon which the House would probably hear a great deal more before long—we were always told that although the great majority of the Irish people were Roman Catholics, the vast proportion of the property in Ireland belonged to Protestants. If that was the case, were they to suppose that Protestants were so dead to the interests of their religion, that they would not provide Protestant industrial schools, rather than suffer the Roman Catholics to possess a monopoly of these institutions? For his own part, he confessed that he did not envy the man who would refuse to allow these children to be taught morality, for fear that morality should be inculcated by teachers of a creed differing from his own. It would be a happy day for Ireland when Roman Catholics and Protestants should learn to march forward on their own way, without continually seeking to jostle one another upon the road. But until that happy day arrived, at least do not let the. House choose such a question as this for the battle-field of religious differences—a question of rescuing the outcasts of society from sin, misery, and degradation, was surely a question of all others upon which men of all creeds might forget their differences, and endeavour to meet and to agree to act together upon the grounds of common patriotism and common humanity.
  MR. DUNLOPsaid, that when he had attempted to pass a Bill for the establishment of the industrial school system in Scotland, he was met by the most determined opposition on the part of the Members from Ireland, who expressed fear lest,
  1746
  under his measure, Roman Catholic children might be proselytized. He was therefore delighted to find that many Irish Members seemed at length to appreciate the real value of the industrial school system, and were now desirous of having it applied to Ireland. He could assure his hon. Friends that in Scotland they had found that the dangers which were apprehended from adopting a system of this kind were only visionary. Under these circumstances he should cordially support the Bill, though he would not have done so if he had thought that the national system would be endangered by it. He had, however, no apprehension that this would be so. The class for which the Bill was intended was a very limited and a very peculiar class, and the peculiarity of the class was the great reason for providing that the education given should be sectarian. In schools of this kind a great deal depended upon having managers whose hearts were in the work, and they could hardly hope to obtain this amount of interest unless the schools were sectarian. While supporting the Bill, however, he thought that some improvement might be made in the details; and in particular, he thought that the same securities should be given against proselytising Protestant children in Ireland as were given in reference to Roman Catholic children in England.
  MR. SYNANsaid, he was at a loss to comprehend the grounds on which the hon. Member for Londonderry (Mr. Peel Dawson) opposed the Bill, as the national system in Ireland did not provide for that class of children for whose sake industrial schools were sought to be established. The industrial school S3'stem had operated most beneficially in England, and he desired to see its benefits extended to Ireland. As to the statements that the Bill would promote vagrancy and proselytism, he thought a decisive refutation was given to those assertions by the provisions of the Bill; because the grand juries, the proprietors of Ireland, were to be the parties to grant money for the establishment of these schools, and they were certainly not likely to tax themselves to promote vagrancy and proselytism. He believed that the Bill, instead of encouraging vagrancy, struck at its root; because, by enabling a mass of vagrant children to receive an industrial education, it provided the means of making them industrious citizens.
  LORD CLAUD HAMILTONsaid, that no one who had spoken in favour of the Bill had attempted to show that there ex-

  1747
  isted any public necessity for taxing the Irish cesspayers for the purposes contemplated by the measure before the House. He had been for over twenty years the chairman of the Board of a large union in Ireland, and was acquainted with all classes there, religious and political, and he could truly say that not one single person had addressed one line or word to him in favour of the present Bill. In order to ascertain what amount of sympathy was excited by the measure, he had made inquiries as to the number of petitions presented in reference to the Bill, and he found that there had been only one petition, signed by two persons, presented on the subject, and that petition was against the Bill. The measure would establish a new and very costly system of education in Ireland, and how was it to be paid for? It was to be paid for out of the county cess, which affected the pockets of all the poorer classes in Ireland. The promoters of the Bill had failed to show that the existing system in Ireland had failed to meet the evil for which a new system was now alleged to be necessary. In all the poorhouses in Ireland there were industrial schools; and he had known numbers of instances of young men and women who, after acquiring a knowledge in the poorhouse of some industrial occupation, had earned enough afterwards not only to keep themselves, but to enable them to withdraw their brothers and sisters from the house. Let them show him that there was a class of juvenile vagrants in Ireland requiring industrial schools, and he was open to conviction. It was very easy to point to the system in England; but he was happy to say that they were not horrified in Ireland by that mass of juvenile crime which was concomitant with the accumulation of wealth in this country. He felt that he was only doing his duty in supporting the Motion for the rejection of the measure, and in so acting he was not influenced by any desire to prevent industrial education in Ireland; but did so because he thought the effect of the Bill would be greatly to mar the operation of the existing system of education, and to sap the principle of self-reliance by offering an inducement to many parents to drive their children into vagrancy and crime in order to make them qualified to obtain a first-rate education at the public expense.
  MR. LAWSONsaid, he believed that the Bill would confer a very great boon on Ireland. It proposed to deal with children of the vagrant class, and to place
  1748
  them in schools—extending to Ireland the system which prevailed in England. The hon. Member for Londonderry (Mr. Peel Dawson), had put forward the extraordinary proposition that Ireland was already over-schooled; but, in answer to the objection urged on such a score, it was only necessary to state that it rested entirely in the option of the grand juries to grant or withhold money for the establishment of the industrial schools. The noble Lord the Member for Tyrone (Lord Claud Hamilton) asserted that there existed no necessity for such legislation. If that be so, and if in the county which the noble Lord represented the people were perfectly satisfied with the existing machinery at work there, it was extremely probable that the grand juries of that county would not put the machinery of the present Bill in motion: but what reason was there why the grand juries in other counties, where things were not in so satisfactory a state in respect to proper provision for vagrant children, should not be intrusted with the power which it was proposed to give them by the present Bill? He found it difficult to understand the argument that the industrial school system would interfere with the system of National education in Ireland, for the latter system was voluntary. No child could be sent to the National schools without the consent of the parents, and the schools were day-schools, so that the children returned to their parents every day. The industrial schools, on the other hand, would take in children having no protection, and train them up in the principles of religion and morality. This object could not be attained except by the establishment of schools to be conducted according to the religious faith of the children, like the reformatory schools, which were working so well in Ireland. He had no doubt that the pockets of the cess-payers, which the noble Lord the Member for Tyrone was so anxious to protect, would be properly protected by the grand juries, and he gave the Bill his hearty support.
  SIR HERVEY BRUCEsaid, he did not concur with the hon. Member for Londonderry (Mr. Peel Dawson) that the national system of education in Ireland rendered these industrial schools unnecessary; because the first and great principle of the system was that children of all denominations should be simply instructed in secular knowledge, scrupulously declining to enter into the religious element at all. His own opinion rather was that if we

  1749
  took these children from the streets it was due to them to see that they were provided not only with secular education, but also with religious education according to the religion of their parents. He thought the gravest and most serious objection to the Bill was the proposal to charge the people of Ireland for the schools to be established. He held that it was very unfair to charge the poorest classes of the Irish people with the education and training of these outcast children, and that the expense should not be taken out of the local funds. If he understood the hon Member who introduced the measure, the provisions of his Bill would differ from those of the English Industrial Act in a very important particular. That Act provided that the national funds should pay 2s. 6d. per week for the support of such children; but he saw no clause in the Bill providing that some such contribution should be given by the State towards the support of these children in Ireland. It had been said that Ireland was over-schooled, but he did not think so; though he believed that the education pursued in the model schools was not applicable at the present moment to the wants of the people of Ireland, and much of the money expended on them might be employed for the maintenance of the schools contemplated by the present Bill. The whole expense was to be provided out of the county cess. That was, in his estimation, very objectionable. Independent of any other objections to the Bill, he thought it was brought forward at a very unseasonable time. Owing to the disturbances in Ireland many hon. Members, and most of the Irish Members of the Government, were absent, and it was unfortunate that a measure in which they were deeply interested should be prosecuted in their absence. He thought it would only be showing befitting courtesy to the noble Lord the Chief Secretary for Ireland and the other Irish Members of the Government to delay the further consideration of the Bill. If the hon. Gentleman the Member for Roscommon (The O'Conor Don) would promise not to ask the House to go into Committee upon the Bill until the Chief Secretary and other Irish Members had returned to their places, he would not object to the second reading.
  THE O'CONOR DONsaid, that he had not imagined that any opposition would be offered to the second reading of this Bill, because it was merely a proposal to extend to Ireland the benefits of the Act passed
  1750
  last Session for Great Britain. He heard, however, with great surprise the intention of his hon. Friend opposite to oppose the second reading; but did not believe that it was necessary for him to say anything until he had heard the reasons assigned for this opposition. Before dealing, however, with these reasons, he would endeavour to answer the challenge of the noble Lord the Member for Tyrone (Lord Claud Hamilton.) The noble Lord said that it was incumbent on him to show some necessity for the establishment of these proposed new institutions; but two things were evident-from the speech of the noble Lord. First, that he was not present in the House when the Bill was introduced, when he (The O'Conor Don) stated the reasons which influenced him in bringing in the Bill; and secondly, that he had not studied very accurately the criminal statistics of Ireland. In bringing in the Bill he (The O'Conor Don) stated the reasons which operated in his mind in inducing him to propose it; he believed those reasons strong ones. He would now repeat some of them. The noble Lord had drawn a very pleasing picture of the comparative immunity of Ireland from crime, and had boasted of the absence in Ireland of that great mass of juvenile criminality which was so conspicuous in Great Britain; but the noble Lord evidently had not read the judicial statistics published on the authority of the Irish Government. With the permission of the House he would read a passage from the last Report of Dr. Hancock, who was the gentleman who compiled the judicial or criminal statistics of Ireland, and in that passage would be found the answer to the question, why did he introduce this Bill? After giving the table containing comparison between the criminal classes in Great Britain and Ireland, Dr. Hancock goes on to say—
  "This table exhibits a very satisfactory result, that although the number of police in Ireland is double the number in a corresponding portion, of the population of England and Wales, the number of criminal classes, other than vagrants and tramps, known to the police, in less than one-half, being 11,444 as compared with 22,923 in a corresponding portion of the population in England and Wales in 1864. In vagrants and tramps under sixteen years of age the proportion is reversed, being 3,475, or nearly double 1,812, the number in a corresponding portion of the population in England and Wales in 1864. In connection with this subject the total absence of industrial schools in Ireland should be borne in mind, whilst there were in certified industrial schools in England and Wales at the end of the year 1864 no less than

  1751
  1,409, or 381 in a portion of the population of England and Wales corresponding to Ireland. During the past Session the law as to industrial schools has been consolidated for England and Wales by statute 29 & 30 Vict. c. 118; but this valuable code of laws, commencing in the year 1854 by statute 17 & 18 Vict. c. 86, and amended by successive enactments, after ten years' experience, has not yet been extended to Ireland. The continuous increase in the number of juvenile delinquents, which I have had to notice for three years, would appear to indicate the necessity of this extension to Ireland."
  This was his answer to the challenge of the noble Lord. He would now pass on to the statements of his hon. Friend the Member for Londonderry (Mr. Peel Dawson.) Before doing so, he should point out to the hon. Baronet the Member for Coleraine (Sir Hervey Bruce) that he was quite mistaken in supposing that the provisions for Treasury advances towards the maintenance of children in industrial schools was omitted from this Bill. Section 35 of the English Act provided that the Treasury should be empowered to make certain payments towards the support of children coming under the operation of that Act, and if the hon. Baronet looked to Clause 3 of the Bill before the House, he would find that it proposed to embody in this Bill Section 35 of the Act of last Session. The hon. Baronet's objection, therefore, on this head had no foundation in fact. As to the statement of the hon. Gentleman who moved the rejection of this Bill, it consisted of several objections; some of them had been answered by previous speakers, but to some of them he found it necessary to reply. His hon. Friend objected to the Bill, because he thought it would endanger the national system of education; he objected to it because it would give rise to sectarian disputes and differences; he objected to it because it would add to the burden of county rates; he objected to it because it was brought forward at an untimely moment, when the Irish Law Officers were absent; and finally, he objected to it because a certain portion of his constituents disliked it. This Bill, it was said, will interfere with the national system of education in Ireland. In the name of common sense, how? With what class of children did it deal? With, those wandering and begging in the streets—those without any protectors, without any visible means of obtaining a livelihood, with the miserable little wretches at present growing up in ignorance, idleness, and crime. How can this affect National schools? None of these children attend
  1752
  such schools; there is no one to send them there, and, if there were, who would support them whilst attending there? The Bill, then, in no way affects children at present attending ordinary National schools. But it may be said it proposes to touch workhouse children; the schools in workhouses are National schools, and so far it interferes with national education. But what class of workhouse children does it affect? Only those who are so unruly and unmanageable in the workhouses that they can be taught nothing, and disturb the discipline of the establishment; and is it to be supposed that because a few bold, unruly, juvenile paupers may be transferred from workhouse schools to establishments in which a particular form of Christianity is taught, that thereby the national system of education is endangered? He was willing, however, to omit this clause in Committee, because he thought those unruly workhouse children ought rather to be sent to reformatories. But perhaps the hon. Gentleman would say that it was in the affirmation of the principle of granting public aid to educational establishments of a denominational character that he saw the danger to the national system of education. If so, he (The O'Conor Don) would only say that that principle had been already affirmed. It had been affirmed in the passing of the Irish Reformatory Act, and no one had ever heard that, by the passing of that Act, the system of national education had been weakened. The hon. Gentleman next laid great stress on the disastrous results of religious differences and disputes in Ireland. He entirely agreed with him in that, and believed that his Bill was so framed as to give the least possible opportunity for such arising. His hon. Friend, though objecting to what he called the sectarian character of the proposed institutions, did not directly suggest that they should be, like the national schools, mixed as to the religious persuasions of the inmates. Had he done so, he (The O'Conor Don) could easily show the objections to this course. The hon. Member did not propose this, but his argument simply amounted to this:—If this Bill be passed, in some isolated instances squabbles might arise as to the religious persuasion in which certain deserted children should be registered; therefore the Bill should be rejected, and not only these children but all the others who would come under its operation should be left neglected and deserted in the streets

  1753
  to grow up in vice, and to add to the criminality of the country. This was literally the logical conclusion of his hon. Friend's argument. These schools could not be other than denominational, or if they were religious disputes would be only intensified. It must be recollected that they were to be founded and managed by private individuals. Now, no private individuals would go to the trouble and expense of getting them up or undertake their management unless they could manage them in accordance with their own religious opinions. But supposing that children of all religious persuasions could indiscriminately be sent to any one of these institutions, this, instead of putting an end to religious disputes, would only increase them tenfold. Under the Bill as proposed the only dispute which could arise would be the registration of the child in the first instance. That settled, no other cause of difference could exist; but make these establishments open to children of all persuasions and your difficulties only commenced with the registration. Then followed immediately demands for the appointment of chaplains of the different persuasions, demands for the admission of visitors to teach religion, disputes as to the regulation of hours for religious instruction, and a whole host of other most difficult and annoying questions. One of the great recommendations, then, of the present Bill was that it got rid of all these perplexities, and reduced to the minimum the occasion for religious differences. It had been said that the hon. Member for Cork (Mr. Maguire) had introduced a Bill on this subject and had failed; but the hon. Member for Cork never asked the opinion of the House on his Bill. He introduced his Bill late in the Session, found he had no time to proceed with it, and withdrew it. This, therefore, was no argument against the present Bill. His hon. Friend (Mr. Peel Dawson) objected to the expense this would cast on the county rates. He had no desire unnecessarily to increase the county rates, but the question really was not what will this Bill cost, but is it worth the cost? He maintained that it was. In an economic point of view he maintained that it ought to be supported. By taking up unfortunate vagrant children and rearing them in the habits of industry you diminish the danger of having to support them afterwards as criminals. Moreover, these children should be in some way supported, either by the
  1754
  proceeds of beggary or pilfering, or in institutions such as he proposed. If supported in either of the former ways, they would have to be supported entirely at local expense; if in industrial schools a grant would be received from the Treasury. He maintained, therefore, that the Bill proposed a relief not an addition to local burdens. He thought he had now answered all the objections coming from the other side, and would not detain the House much longer. He might, however, mention that the experience of the last few years justified the expectations of those who supported reformatory and industrial schools. These institutions had now for some years been tried in Great Britain, and were declared successful by the inspectors. About 75 per cent of those discharged from reformatories were known to have turned out well, and the same might be said of the industrial schools. Nor did the reformatories in Ireland show a different result. Out of all those discharged from one of the largest reformatories in Ireland—namely, Glencree, only twelve were re-convicted of crime, and out of 163 discharged all over Ireland in 1865, only three had relapsed. The results of the past legislation were therefore eminently satisfactory, and he felt sure the House would not refuse to extend to Ireland the benefits of those industrial institutions now carried on in Great Britain.
  MR. CHICHESTER FORTESCUEthought the House greatly indebted to his hon. Friend (The O'Conor Don) for bringing forward this Bill, to which the real ground of opposition was not its interference with the national system—an argument which would not bear the slightest examination—but the lamentable prejudice of many persons of the Presbyterian denomination in Ulster. He never anticipated that that prejudice would have been stated so broadly and with so little excuse as it had been in relation to this Bill, when in the mouth of the hon. Member for Londonderry (Mr. Peel Dawson), it took the form of a horror of the system of proselytism. No one in that House would more cordially than himself join in the condemnation and detestation of the system of proselytism between the different communions in Ireland, which was, in fact, one of the greatest curses under which that country lay; but he must say, speaking candidly, and believing what he said to be the truth, that system of proselytism, although practised sometimes in an unjustifiable manner by

  1755
  all communions was, he thought, practised by the Catholic Church in a less systematic and aggressive manner than by the Protestant Establishment. The danger of proselytism, however, was no argument against the Bill. Its provisions prevented such a danger by enacting that children should only be sent to industrial schools under the exclusive management of their own denomination. His principal object, however, was to inquire from the Government whether they had formed any opinion as to the merits of this Bill. He hoped the Home Secretary would state the views entertained by the Government as to the extension of the industrial system to Ireland. He ventured to anticipate that they would not wish to make a distinction between the three kingdoms in this respect, or argue that what was good for Scotland and England was not good for Ireland; especially after the conclusive statement so carefully and accurately made by his hon. Friend in support of the second reading of the Bill.
  MR. WALPOLE,having been appealed to by the right hon. Gentleman to say what the Government thought of this Bill, felt himself authorized to state, for himself and those Members of the Government he had consulted on the subject, that he could see no reason why the Bill, which was good for England and Scotland, should not, in principle, be extended to Ireland. The only doubt which suggested itself to his mind as requiring consideration was as to some of the reasons which had been stated in relation to vagrancy and quasi-offenders in Ireland. But the references made by the hon.. Gentleman who moved the second reading of the Bill to the criminal statistics of Ireland had removed his doubts upon that point. There were other questions as to the amount of charge and the mode of charging for the establishment, which might require some further consideration in Committee than he had been able to give. But, reserving himself on these points until he could confer with his noble Friend the Secretary for Ireland, he should offer no objection to the second reading.
  Amendment, by leave, withdrawn.
  Main Question put, and agreed to.
  Bill read a second time, and committed for Tuesday 26th March.

CRIMINAL LAW BILL— [BILL 8.]
(Mr. Russell Gurney, Mr. Coleridge.
CRIMINAL LAW BILL— [BILL 8.]

  COMMITTEE.
  Bill considered in Committee.
  (In the Committee.)
  Clause 1 (Limitation of 22 and 23 Vict. c. 17) agreed to.
  Clause 2 (On Acquittal, &c, of Person Indicted who has not been committed or held to Bail, Court may order Prosecutor to pay Costs to Accused if he think the Prosecution unreasonable).
  MR. HURSTobjected to the clause. This proposal was inconsistent with what had hitherto been recognised as the true principle of criminal law, that prosecutors in criminal cases only performed their duty to the State, and therefore in all ordinary cases the costs of the prosecutions were paid by the country. Looking at the great difference of opinion as to what was or was not a reasonable cause, he thought the decision on the point ought not to be thrown upon the Court. He moved the omission of the 2nd clause.
  MR. RUSSELL GURNEYsaid, he thought we had acted too long on the principle contended for by the hon. and learned Gentleman. It was impossible to admit that prosecutors were invariably actuated by motives of public duty. There were a great many prosecutions instigated by private motives and of private interests. A system had grown up under which parties, having preferred an indictment before the grand jury and obtain a true bill on ex parte evidence, obtained a bench warrant under which the accused was taken into custody, and this for the purpose of inducing a compromise of private rights. This system had been carried to such lengths that the Legislature at length interfered and passed the Vexatious Indictments Act, which provided that no party should be at liberty to go before the grand jury unless the case had first of all been inquired into by a magistrate. If the magistrate was of opinion that the case was well founded the matter took the usual course. The Act had had a most beneficial effect; but since the prosecutor still had it in his power to go before the grand jury upon his own responsibility, the system, sometimes adopted with a view to extortion, had not been entirely put an end to. Cases of this nature had again

  1757
  and again come before him, and he did not remember one in which the prosecution had been successful. The invariable result was, cither the case was abandoned before the jury, or the jury acquitted, The object was attained when the Bill was found, and the defendant, after being put to great inconvenience, after having engaged counsel and brought up his witnesses ready for trial, found the trial put off on some plausible pretext, and was driven under the pressure of a charge wantonly made to settle some civil dispute between the parties, Was it reasonable that the defendant should be obliged to bear all the expenses of that prosecution? Was it not more reasonable that the prosecutor, who had preferred the charge, and insisted on going on with it on his own responsibility, having failed in establishing the charge, which might be wholly groundless and brought in order to extort money, should, on a Judge's order, be obliged to pay the costs? The hon. and learned Gentleman was not correct in saying that the proposition was a novel one; in cases of libel, when the defendant was acquitted of the charge, the prosecutor had to pay the costs.
  THE SOLICITOR GENERALsaid, he could not agree with his right hon. and learned Friend (Mr. Russell Gurney). In all cases where prosecutions were instituted without reasonable and probable cause, not without malice, a civil action lay in which damages could be obtained. But it was a dangerous innovation to say where ex concesso there was no malice, and the proceedings were bonâ fide, if the Judge thought there was an absence of reasonable cause, the prosecutor should be ordered to pay the costs of indictment. The Act under which these prosecutions were frequently instituted was the 22 & 23 Vict. c. 17, s. 1. It enacted that—
  "After the First day of September, 1859, no Bill of Indictment for any of the Offences following—namely, Perjury, Subornation of Perjury, Conspiracy, Obtaining Money or other Property by false Pretences, Keeping a Gambling House, Keeping a disorderly House, Any indecent Assault—shall be presented to, or found by, any Grand Jury, unless the Prosecutor or other Person presenting such Indictment has been bound by Recognizance to prosecute or give Evidence against the Person accused of such Offence, or unless the Person accused has been committed to or detained in Custody, or has been bound by Recognizance to appear to answer to an Indictment to be preferred against him for such Offence, or unless such Indictment for such Offence if charged to have been committed in England, be preferred by the Direction or with the
  1758
  Consent in Writing of a Judge of One of the Superior Courts of Law at Westminster, or of Her Majesty's Attorney General or Solicitor General for England."
  The 2nd clause of this Bill was to this effect—
  "Whenever any Bill of Indictment shall be preferred to any Grand Jury, whether under the Provisions of the Act 22 & 23 Vict. c. 17, or otherwise, against any Person who has not been committed to or detained in custody, or bound by Recognizance to answer such Indictment, and such Bill of Indictment shall be ignored by the Grand Jury, or, being found by them, the Person accused thereby shall be acquitted thereon, and the Court before which the same Indictment shall be so preferred or tried shall be of opinion that such Indictment has been preferred without reasonable Cause, it shall be lawful for such Court, in its discretion, to direct and order that the Prosecutor or other Person by or at whose instance such Indictment shall have been preferred shall pay unto the accused Person the just and reasonable Costs, Charges, and Expenses of such accused Person and his Witnesses (if any) caused or occasioned by or consequent upon the preferring of such Bill of Indictment, to be taxed by the proper Officer of the Court; and upon Nonpayment of such Costs, Charges, and Expenses within One Calendar Month after the Date of such Direction and Order it shall be lawful for any of the Superior Courts of Law at Westminster, or any Judge thereof, or for the Justices and Judges of the Central Criminal Court (if the Bill of Indictment has been preferred in that Court), to issue against the Person, on whom such Order is made, such and the like Writ or Writs, Process or Processes, as may now be lawfully issued by any of the said Superior Courts for enforcing Judgments thereof."
  Therefore even when prosecutions were instituted by order of a Judge of a Superior Court or by order of the Attorney General, if the Judge thought fit, costs were to be awarded. But there was another objection. They were going to enact a new civil remedy. If one person prosecuted another without reasonable and probable cause, it was extremely probable that he did so also with malice. The issue in a case where a person who had been a prosecutor was made defendant in an action for malicious prosecution, was totally different from where a person was indicted. It was said that after acquittal, the prosecutor having directed his evidence to the question whether the defendant was guilty or not guilty, the Judge, without having a jury to assist him, without further evidence to show probable cause, was at once to say, "Here is a case in which costs ought to be given." There was another inconvenience. The Judge at the trial might say there was not reasonable and probable cause, and condemn the prosecutor in costs; but the defendant

  1759
  bringing his action for malicious prosecution, the jury might by their verdict declare that there was reasonable and probable cause;—so that there would be conflicting judgments on the same point. In a civil action for malicious prosecution the defendant—the prosecutor in the criminal proceedings—was at liberty to show by his counsel and by his witnesses that he had reasonable and probable cause for preferring the indictment complained of; and if the jury were of opinion that no reasonable and probable cause had been shown they could punish him by making him pay the costs of the person indicted. The Bill, however, proposed that the Judge of the Criminal Court should, without giving the prosecutor an opportunity of showing that he had reasonable and probable cause for preferring the indictment, have power to order him to pay the costs. The clause was unnecessary, since the remedy it proposed to give in cases of malicious prosecutions was now obtainable by civil action.
  MR. THOMAS CHAMBERSdid not understand that the clause was intended to apply in cases where a Judge had authorized the indictment to be preferred.
  MR. RUSSELL GURNEYsaid, the clause would not apply to such cases—he intended to confine the operation of the clause to cases which came under the Vexatious Indictments Act.
  MR. SERJEANT GASELEEthought it would be dangerous to give the magistrates at quarter sessions the power of determining what did and what did not amount to reasonable and probable cause. He thought the best thing to be done was to get rid of the grand jury system altogether.
  Question put, "That the Clause, as amended, stand part of the Bill."
  The Committee divided:—Ayes 93; Noes 64: Majority 29.
  Clause, as amended, ordered to stand part of the Bill.
  Clause 3 (Accused Person to be asked by Justice if he wish to call Witnesses. Their Depositions to be taken and returned to Court of Trial, if he call any.)
  LORD HENLEYasked whether the right hon. Gentleman had any objection to omit the following words in the clause:—
  "Such justice or justices, before he or they shall commit such accused person for trial or admit him to bail, shall, immediately after obeying the directions of the 18th section of the Act 11 &
  1760
  12 Vict. c. 42, demand and require of the accused person whether he desired to call any witnesses; and whatever the accused person shall then say in answer to such demand shall be taken down in writing and signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them in due course of flaw, and afterwards, upon the trial of the said accused person, the same may, if necessary, be given in evidence against him without further proof thereof."
  He thought this provision would operate rather hardly in some cases. If witnesses were called at the trial, who had not been named to the magistrate, it would be urged against the prisoner that the defence had been "got up" in the interval, and it would in that way suffer prejudice. He should also be glad to know whether the defendant would have the right to demand an adjournment for the production of witnesses.
  MR. RUSSELL GURNEYthought the words to which the noble Lord referred were of great importance, because it frequently happened that the prisoner did not know at what time to call his witnesses, and it was therefore desirable that he should be formally asked whether he had any evidence to adduce in proof of his innocence.
  MR. THOMAS CHAMBERSsaid, that it was the universal practice for the magistrate to ask the prisoner whether he had any witnesses.
  MR. HENLEYsaid, as the magistrate in asking the question was required to caution the prisoner that anything he might say in reply would be used in evidence against him, it was clear that he must, before putting the question, have made up his mind to commit the prisoner for trial. Under such circumstances, it was not fair to require the prisoner to decide at the moment upon the expediency of calling witnesses in his behalf.
  MR. THOMAS CHAMBERSthought that the objection to the clause would be met by the omission of the words requiring that the answer of the accused person should be taken down and used in evidence against him.
  MR. RUSSELL GURNEYsaid, he did not object to the omission proposed by the hon. and learned Member for Marylebone.
  Amendment agreed to.
  MR. SERJEANT GASELEEinquired whether the prisoner was to be entitled, as a matter of right, to a remand when his witnesses were not in attendance?
  MR. RUSSELL GURNEYtook it for granted that the magistrates would grant a remand when the witnesses for the defence were not upon the spot when the case was heard.
  MR. BRUCEwished to know whether the words of the clause included witnesses as to character?
  MR. RUSSELL GURNEYsaid, the clause was only intended to include witnesses as to facts.
  MR. HOWESasked whether the magistrate would be able to grant or refuse a remand at his discretion? He thought it was necessary for the protection of an accused person that his right to a remand for the purpose of bringing forward his witnesses should be distinctly stated in the Bill.
  MR. RUSSELL GURNEYreplied that in all cases where a remand was necessary it would be granted. When the prisoner was again brought up his innocence might be clearly proved; in which case he would be at once set at liberty instead of being confined until the ensuing assizes, which might not be held for several months after his committal.
  MR. HENLEYsaid, a new light appeared to be thrown on the matter by this proposal as to witnesses. It appeared from the statement just made by the right hon. and learned Gentleman that he intended that the magistrate should try the case from beginning to end, and not merely ascertain whether a primâ facie case had been made out by the prosecution. If the prisoner were acquitted by the magistrate, his witnesses would not be paid.
  MR. ROEBUCKthought that the more important question was under what circumstances was the magistrate the most likely to come to a proper decision. When the magistrate had heard the witnesses on both sides he would be in a better position to come to a decision upon the case than if he had only heard those called on behalf of the prosecution.
  MR. RUSSELL GURNEYsaid, a case had come to his knowledge in which the magistrate having decided that a primâ facie case of robbery had been made out against a prisoner, had refused to hear his witnesses, although five respectable persons were ready to prove an alibi. When the case came on for trial the counsel for the prosecution at once withdrew the charge when he heard the evidence of the defence.
  SIR FRANCIS GOLDSMIDsaid, that
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  as the clause now stood it would include the expense of witnesses to character. It would be quite sufficient to pay the witnesses who knew anything of the circumstances of the case.
  Clause, as amended, agreed to.
  Clause 4 agreed to.
  Clause 5 (If Witnesses for Accused, bound by Recognizance, appear at the Trial, Court may allow Expenses.)
  MR. HENLEYwished to ask, why the granting of a certificate of attendance to the witnesses who had appeared on behalf of the prisoners should be optional on the part of the magistrate? If the object were to enable the magistrate to refuse the certificate of witnesses who had given their evidence in an unsatisfactory manner, or of witnesses who ought never to have been called, it was right enough; but certainly after witnesses had been bound over to attend the certificate ought not to be withheld. He therefore moved that the words "if such magistrate should think fit to grant the same" should be left out.
  MR. RUSSELL GURNEYsaid, that the object was simply to give to the magistrates a discretionary power in the case of those witnesses whose evidence was unsatisfactory or who ought not to have been called. He quite agreed, however, in the opinion of the right hon. Gentleman that a certificate ought not to be refused to a witness who had been bound over to attend.
  Amendment agreed to.
  LORD HENLEYthought that the fee of 1s. payable to the clerks for the names of witnesses handed to the prosecutor was too high. At petty sessions, for instance, seven or eight witnesses were often called in one case, and if 1s. were allowed for each name the expenses would be much increased. He suggested either that the fee should be lower, or that the duty should be attached to the offices held by the clerks
  MR. RUSSELL GURNEYsuggested that the fee should be reduced to 6d.
  Amendment made.
  MR. CHILDERSthought the Committee ought to know, before the clause passed, what was the estimated cost which would be thrown upon the public by the Bill. The question was of some importance, for the cost of committals was al-

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  ready about £320,000; and it was now proposed to add the expenses of the defendant's witnesses. He presumed that the Treasury had taken the matter very carefully into consideration.
  MR. HUNTsaid, that when the matter came before the Treasury the principle of the Bill was assented to generally, on the assurance of the Home Office that it would tend to the promotion of justice. He had no idea how an estimate such as that referred to by the hon. Gentleman could possibly be made out, inasmuch as the effect of the Bill could only be ascertained after it had been in operation for some time. As far, however, as his experience would enable him to judge, he believed the expense would be very small; for few prisoners called witnesses, and in cases of alibi they generally broke down.
  MR. CHILDERSthought the answer just given was a very unsatisfactory one. He was of opinion that the Government ought, before assenting to the change, to obtain information on the point and lay it before the Committee.
  MR. HUNTshould like to ask the hon. Gentleman how he would set about the preparation of such an estimate. He was perfectly willing to admit that the Bill ought not to be hurried through Parliament; but he candidly confessed that, as far as he was concerned, he did not see that even by postponing it for three months he should be able to frame such an estimate.
  MR. NEATEbelieved the answer which the Committee had just heard was a perfectly satisfactory one. He did not think that accused persons should be debarred from privileges which were now granted to those engaged in the prosecution. When equal justice was in question the expense ought not to be taken into consideration.
  MR. SERJEANT GASELEEwas surprised to hear so much said about expense. Large sums were frequently voted for the most foolish purposes, and then nothing was heard about the expense. The question was whether the proposition was a just one or no. If it was, the question of expense was beneath the dignity of the country.
  MR. HENLEYsaid, that at present the expenses of the witnesses for the prosecution were in part defrayed by the county and in part by the Treasury; but he could not see that any power was given by this clause to compel the Treasury to make payment towards the expenses of witnesses for the defence. He thought
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  the witnesses for the defence should be paid as well as those for the prosecution.
  SIR WILLIAM HEATHCOTEthought so to. He thought also that the expenses of the defendant's witnesses before the magistrate should be allowed; but he questioned whether, as the clause now stood, there was any power given by which witnesses for the defence could be paid in the case of a prisoner brought up before a magistrate and discharged. It was, he thought, of the utmost importance both to the ends of justice and to secure against injustice, that encouragement should be given to diligent sifting of the charges made in the first instance.
  MR. HUNTsaid, that the Treasury certainly intended to contribute towards the expenses of witnesses for the defence, as they now contributed towards the expenses of witnesses for the prosecution. He thought, perhaps, as there were several of the suggestions made which ought to be considered, it would be better for the present to report Progress.
  MR. CHILDERSsaid, that the contribution on the part of the Treasury towards the expenses of witnesses for the prosecution was not made under any statute, but was the subject of an annual Vote, the title of which, if the Bill were carried, would have to be altered, so as to include the expenses of witnesses for the defence. With regard to the estimate to which he had referred, it would not, he believed, be difficult to make, because the Treasury at present knew the average cost of witnesses for the prosecution in each county, and the clerks of the peace could easily furnish information as to the expenses of the witnesses for the defence.
  MR. BRUCEagreed with the views expressed by the hon. Member for the University of Oxford (Sir William Heathcote.)
  MR. RUSSELL GURNEY MR. RUSSELL GURNEY moved that the Committee report Progress.
  Motion agreed to.
  House resumed.
  Committee report Progress; to sit again upon Tuesday next.

  INCLOSURE BILL.
  On Motion of Mr. Secretary WALPOLE, Bill to authorize the Inclosure of certain Lands in pursuance of a Report of the Inclosure Commissioners for England and Wales, ordered to be brought in by Mr. Secretary WALPOLE and Mr. HUNT.
  Bill presented, and read the first time. [Bill 72.]
  House adjourned at five minutes before Six o'clock.