SECOND READING. (Hansard, 30 March 1870)

§ MR. C. FORSTER
, in rising to move that the Bill be now read a second time, said, its object was to abolish the law which forfeited to the Crown the property of any person convicted of felony. It was identical with the Bill which he had introduced in 1864 on the same subject. The history of the question since that time, however, afforded a striking illustration of the difficulties with which private Members had to contend in endeavouring to pass through that House the simplest measure of public utility. Before 1864 the proposed legislation had been twice recommended by the Statute Law Consolidation Commissioners, and when he introduced his Bill it was received with every mark of favour, and the House passed the second reading by an unanimous vote. Subsequently, however, he had great pleasure in relinquishing the question into the hands of the Attorney General of the day—his hon. and learned Friend the Member for Richmond (Sir Roundell Palmer)—who introduced a Bill dealing with it in 1866, which, although he regarded its provisions as somewhat too complicated, distinctly recognized the principle of abolition of forfeiture, and afforded the means for the settlement of the question. That measure was welcomed as an important step in the path of legal reform; but after it had passed, without a division, through the House of Commons, a change of Government occurred, and the subject not having been taken up by the new Ministry, the Bill was allowed to drop. In the following Session, the Secretary of State for the Home Department (Mr. Walpole) expressed his approval of the principle of the measure introduced by the hon. and learned Member for Richmond, but wished to see it carried out by different machinery, and the political complications and Dissolution of Parliament, which occurred shortly after the announcement, left the matter in the same state as when he first took it up. Nothing would have given him greater satisfaction than to leave the question to be dealt with by the present Attorney General; but as the hon. and learned Gentleman had stated last Ses- 932 sion that the Government did not propose to deal with the subject, he felt himself reluctantly compelled again to bring it under the notice of the House. The Bill of the hon. and learned Member for Richmond provided for the appointment of curators, in whom the property of felons was to be vested. That measure was far less liberal than his own, inasmuch as under it the expenses were to come out of the felon's property. He could not but think that when any act was right to be done, the best way was to do it in the simplest manner; and, therefore, instead of involving himself in the complicated details of his hon. and learned Friend, he preferred to revert to his Bill of 1864, which had been designated as the shortest Bill ever laid before Parliament. Its principle had received the approval, among others, of Chief Justice Whiteside, the Chief Baron of the Exchequer, and Vice Chancellor Malins, and he had recently received letters from many eminent legal gentlemen to the effect that it would afford the most convenient mode of settling the question. The hon. Member for Leeds (Mr. Wheelhouse) had suggested that it should abolish the distinction between felony and misdemeanour; but, although that was desirable, it was not within the scope of the present Bill, which was to give a simple remedy for an oppressive injustice. The species of civil death against which this measure was directed was peculiar to this country. In other countries of Europe the convict was allowed to dispose of his property, even in those cases in which a capital sentence was carried into execution. Hon. Members might remember the case of a notorious murderer abroad, of whose last moments full details were given, special mention being made of his testamentary disposition, and he, for one, could not understand why because the offender was punished the innocent should be compelled to suffer. There were, moreover, many misdemeanours, such as night poaching, perjury, and the various forms of conspiracy for which the sentences passed were heavier than for the majority of felonies; and yet he had never heard it contended that any inconvenience arose from leaving persons convicted of the former class of offence the control of their property. How often did it now happen that when prisoners, who were sentenced for some 933 trifling larceny, were obliged to hand over any money they might have about them to the Sheriff, as the representative of the Crown, instead of leaving it for the support of their wives and families, a feeling of sympathy was excited in their favour, instead of a feeling of reprobation being produced against their crime? It was, indeed, contended that the Crown, upon proper representations being made to it, was ready to forego its rights in such cases; but, even if that were literally the fact, it furnished no good reason why a law, which was a blot on our jurisprudence, should be allowed to continue. He found that out of £1,200 which had been forfeited to the Crown in 1864, £400 had been returned; while out of a sum of £1,589 forfeited in 1868, £1,112 had been returned; and he would put it to the right hon. Gentleman the Chancellor of the Exchequer whether, with all his zeal for the public revenue, it was desirable for so small an amount that a right which was so cruel in its operation should be maintained. When the subject was last before the House, he had mentioned the case of an iron-master, with a large trading connection, against whom a verdict of manslaughter had been returned by a coroner's jury, in consequence of a fatal accident having occurred through the carelessness of his superintendent in his absence. That verdict was afterwards quashed, and the gentleman in question had since died, his death, it was said, having been accelerated by the shock which his constitution had received by his dread of the forfeiture of his property. After the verdict he retired from his trading connection, because he would not subject his property to a peril which no care on his part might be able to prevent. Was it desirable, he would ask, that in a great trading community like ours such an impediment in the way of commerce should be permitted to continue? In the present state of the law, innocent persons, when accused of felony, were frightened into executing a deed transferring their property to others, and there had been cases where the temporary trustees had refused to reconvey the property confided to them on the acquittal of the innocent parties. Forfeiture of the property of a felon was unknown in the earlier history of the Roman Republic. We first hear of it in those dark and troublous times which 934 seemed too truly to presage the fall of liberty; and in the succeeding period it was exercised by some of the worst of the Emperors, who found in it an additional motive for their assassinations and judicial murders. It was never resorted to by Augustus, Trajan, or any of those Cæsars whose names have come down to us as the benefactors of their age; while, by the code of Justinian, it was limited to the single case of treason. Sir, when the feudal system succeeded to the Roman, forfeiture was recognized as one of its necessary incidents, the forfeiture of the fee to the lord by the felony of the tenant being the inevitable termination of the contract between them. But the feudal age was not the golden ago of jurisprudence. As the nations emerged from barbarism, the first indication of civilization had boon the repudiation of this penalty. It was repudiated by the Code Napoleon, and that it remained so long on our statute book was only to be accounted for by the conservative spirit in which all advances were made in this country. It was clearly opposed to all recent legislation; and he could not but think that, in a Reformed House of Commons, composed so largely of Liberal Members, a grievance of this magnitude need only to be mentioned to be abolished; and he therefore, with confidence, moved that the Bill be now read a second time.

MR. OSBORNE MORGAN
said, he looked upon the measure as one of those short and simple, and at the same time useful, enactments which went to relieve the statute book from the reflection that it was so complicated and involved as to be almost unintelligible. The practice of forfeiture of a felon's goods had survived the circumstances which called it into existence, and it was unsuited to the exigencies of modern society. The law upon the subject was so full of subtleties and unmeaning distinctions, and so much involved in obscurity and perplexity, that it was difficult even for a lawyer to state what the precise effect of a conviction was in regard to forfeiture. Even an acquittal for felony now sometimes involved penal consequences. An innocent but nervous man running away 935 from a charge of felony might suffer the forfeiture of all his goods and chattels. The fact that the Crown frequently did not avail itself of its strict rights also seemed to him a powerful argument for the Bill. No doubt the Bill touched upon a question of great magnitude; but, on the principle that half-a-loaf was better than no bread, he would accept it with pleasure rather than wait for a comprehensive measure.

§ MR. JESSEL
said, the best thanks of the House were due to the hon. Member for Walsall (Mr. C. Forster) for his exertions in this matter. He (Mr. Jessel) thought a Bill of so much importance would have been with more propriety intrusted to the Government; but, having regard to the number of subjects they had undertaken to deal with this Session, he thought they must be excused for leaving it to private Members, and that being so he would do all in his power to make this measure as perfect as possible. He did not think there could be two opinions as to the principle; but the Bill required considerable amendment before it passed into law. The common law of England, by which these forfeitures were created, was a mass of inconsistencies; and the penalty was open to the objections that it attached to felony and not to misdemeanour, and that, practically, it was enforced only in exceptional and occasional circumstances. There could be no imaginable reason why forfeiture should follow upon a conviction for felony and not upon one for misdemeanour, which was often a much graver offence. In the absence of any reasonable ground for the distinction lawyers had been compelled to substitute the effect for the cause, and to say that a crime involving forfeiture was a felony, and that a crime that did not was a misdemeanour. In this case our own law was opposed to that of every other nation in Europe, all of whom had abandoned the system of forfeiture for crime, and substituted for it a more rational system. The principle of the Bill was sound, because it abolished a law which was unequal and unfair in its operation; the forfeiture not being proportioned to the gravity of the offence, but to the amount of property which the offender happened to possess. The Bill would, however, require some modification in its details. Its title was open to objection. It purported 936 to be a Bill to abolish the forfeiture of lands and goods on conviction for felony. As the law stood the fee simple of lands was not forfeited; but formerly when a person had been convicted of a capital crime and sentenced, the Sovereign took the lands for a year and a day, and then the lands escheated by reason of the convict's corruption of blood; the effect of that old law was that the convict could not hold land, and no one could inherit it. Lands were thus escheated either to the Crown or to the lord of the manor, and if the principle of this Bill was to be carried out, the law of escheat must be abolished. This corruption of blood had been limited by an Act of George IV. to cases of treason and murder, and it was now quite time it was altogether done away with. The Bill should also meet all cases in which the goods of a felon were now forfeited. The Continental codes all recognized the right of a person robbed to recover from the effects of the thief, if he had any, the value of the property stolen, not limiting the restoration to the actual stolen property or the proceeds of it. That had never been the case under our law, and could not be as it stood; but he thought it was sound in principle. Besides this, in his opinion they should follow the Continental laws in so far as they made the property of felons liable for compensation in cases of murder and of maiming, the jury fixing the amount and leaving it to the prosecutor to levy the amount on the felon's goods. That would be an incentive to private persons to prosecute, and would deter persons from compounding felonies. He thought that the present law, by which persons convicted of felony lost their right to any pension that they might hold under the Crown or from the public, ought to be maintained. When they were altering the law they should. not be above taking a lesson from their Continental neighbours, who followed criminal convictions with what was known in foreign countries as "the loss of citizenship." An unfortunate recent occurrence, connected with the proceedings of that House, suggested for consideration whether it would not be well to enact that a person who had been convicted of an infamous offence should thereby be rendered incapable of holding any office under the Crown and of sitting in either branch of the Legislature. He hoped 937 the Bill would be referred to a Select Committee.

MR. BRUCE
said, that the Government would not only consent to the second reading of the measure, but would facilitate its further progress by every means in their power. The observations of the hon. Member for Dover (Mr. Jessel) must have convinced the House that the subject could not be dealt with in the brief and simple manner proposed by the Bill as it now stood; and it would be well worth while to legislate upon it more thoroughly and efficiently, in the sense indicated by the lion. Member for Dover, even at the risk of occasioning a little delay. The law, as it now stood, was utterly indefensible—so indefensible that it was inexplicable that it should have been allowed to remain so long in its present condition. It involved sometimes the loss of a few pence—at others that of thousands of pounds—without any reference to the respective merits of the two cases. The uncertainty of the operation of the law was also very objectionable. The more the operation of the law was fixed and certain, and the less that was loft to the discretion of the Executive Government, the better; that was a rule that applied to all cases, and in this among others. He doubted whether it would be desirable to encumber the Bill with the provision suggested by the hon. Member for Dover, for disqualifying persons once convicted of felony from holding an office under the Grown or a seat in either House of Parliament; but he quite agreed with what had fallen from the hon. and learned Gentleman in reference to the adoption in our law of the practice common in Continental codes, of entitling the injured person to recover compensation out of the property of the man who had robbed or maimed him. He thought the suggestions on that head contained in the Government Bill of 1865 would form a good basis of operations. The discussion that morning had proved that this subject was ripe for legislation, and that a measure should be passed much larger in scope and more effectual in its operation than the Bill in its present form. By referring it to a Select Committee those improvements could be accomplished, and he therefore hoped that his hon. and learned Friend the Member for Walsall (Mr. C. Forster) would not object to that course.