§ Mr. HOPWOOD, who had a Notice upon the Paper which he was precluded from moving—
That the law regulating the appointment, jurisdiction, and duties of Justices of the Peace, and the administration by them of the Criminal Law in summary cases in England and Wales, needs speedy and thorough investigation, with a view to its amendment,said, there could be no doubt of the imperative necessity of the inquiry referred to in that Resolution. In November last he introduced to the right hon. Gentleman the Home Secretary an influential deputation of the working classes, who expressed their feelings on the subject. They did not offer any detailed scheme, but urged their conviction that the existing law was in a most unsatis- 1994 factory condition, and pressed with undue and unnecessary harshness on the poorer classes of the community. Premising that no man ought to be tried excepting by his peers, they suggested that an extension should be given to option of trial by jury, as illustrated in the recent case under the Conspiracy Act and other instances; a clearer separation of criminal from civil offences, as had been done in the case of workmen's contracts; and a re-consideration of the whole question of imprisonment, which among certain classes had become too common, they said, and had in a great measure ceased to be regarded either as a punishment or a disgrace. They stated that the greatest dissatisfaction was felt with the way in which many of the magistrates discharged their duties, and urged that no reform of the laws of summary jurisdiction could remove the suspicion with which the local administration of justice was unhappily attended, unless it were accompanied by some remedial measure with regard to the appointment of the local magistrates. Having these objects in view, they desired an inquiry. The Home Secretary, while combating their views on certain points, gave the deputation on the whole a favourable reception. With regard to the law regulating appointments, as it stood at present it was most unsatisfactory, especially with respect to the appointment of magistrates. It was also a scandal and a reproach to both political Parties in the State, the sole ground on which those appointments were made being that the persons receiving them had rendered services to their Party in their respective neighbourhoods. That kind of patronage was a public trust, and the manner in which it was administered by Lords Lieutenant of counties was often a disgrace to those high functionaries. The qualification now required for holding the office of a justice of the peace did not include any knowledge of the law, or any fitness for the discharge of the important duties to be performed, involving the administration of hundreds of Acts of Parliament; indeed, for all the precaution taken, he might be a man who could neither read nor write, and it might be possible to find that there had been magistrates who could do neither. The present qualification as regarded the counties, which dated as far back as the reign of George II., was that the person appointed 1995 should possess £100 a-year from land or have £300 a-year from land in reversion. Justices appointed were young or old. As regarded the former, in counties it was considered a sufficient passport to the magisterial office that the person chosen should be 21 years of age, if he were the representative of landed estate in the county. It was monstrous that a mere property qualification should suffice. In the case of the older men who were selected, a knowledge of the world and of the habits of the community among whom they had to administer justice might help to qualify them for the office, but surely some amount of legal knowledge was also necessary? According to the Commission of justices of the peace, they had to inquire, among other things, "into enchantments, sorceries, arts of magic, forestalling, regrating, engrossing," and other obsolete matters. He knew it would be said that the magistrates, so far as a knowledge of the law went, relied on their clerks, and in seven cases out of ten the clerk was practically the magistrate, and being in practice as an attorney might decide eases in which his clients were concerned. But would the House believe it there was no legal obligation even for the clerk to be a lawyer; any magistrate might appoint his butler, and although there could be no doubt clerks ought to have some legal knowledge; and as a rule they had, yet he had known more than one instance of a mere attorney's clerk being appointed to the office, with nothing to recommend him but his cheapness. The clerk, again, might be the confidential solicitor of half the country round, and might and did advise magistrates while cases, political or otherwise, affecting their own clients, were under consideration. Indeed, he knew a case in which the magistrate's clerk, being also a political agent, advised the dismissal of a charge of offence against the Ballot Act at an election, but which on the very same evidence the grand jury sent for trial, and justice was not defeated. That injustice was known and keenly felt. He should, no doubt, be told that he was attacking a respectable body of men. That was a parrot-cry in such cases. But he had yet to learn how justices or justices' clerks or any body of men could be insulted by a statement that there were some unworthy men among them against whom the pub- 1996 lic ought to be protected by legislation. Magistrates had to deal with 34 large classes of offences, and in addition they were called upon to inflict punishment for breaches of prison discipline. The lash was not very popular in England, but any felon, or other person, sentenced to hard labour could be whipped by order of the magistrate. He found from the judicial statistics just issued that in the year 1874 there had been 163 cases of whipping in the gaols of England and Wales; putting in irons, 60; confined in solitary cells 16,300 men and women; stoppage of diet, 40,000. He found in some gaols the whipping was extravagantly done, in others very sparingly. In Manchester, where there was a daily average of persons imprisoned of 467, there had been 39 whippings, while in Liverpool, where the daily average was rather more, only 8; and in Wandsworth, with a much larger number of prisoners, 14, which was also the figure at Salford. At Coldbath Fields Prison, with four times the number of prisoners, there had been 40 whippings; but at Maidstone, with a daily average of 312, there had been only 2, and at Wakefield, Durham, and Stafford, none at all, although the daily number of prisoners in each of those prisons was much larger than in Manchester. His right hon. Friend (Mr. Cross) was proposing to transfer these powers by his Prisons' Bill from local to national jurisdiction, and it would be a nice point how to regulate these floggings. Were they to go up to the Manchester level, or come down to that of Wakefield, Durham, and Stafford? Then, as regarded the other punishments in the gaols, he found that at Coldbath Fields no females were punished at all, while at Liverpool there were 1,193 women put into solitary cells, and only 813 men. The total number of cases dealt with by the magistrates in 1874, by summary jurisdiction, was 622,000 out of which 486,786 were convicted, and against those convictions there were but 107 appeals, of which 51 were in cases of bastardy and 28 as regarded the Beer Acts. Deducting only the bastardy cases from each side, that would give in round figures one appeal to every 8,600 convictions. That, however, was not a proof that justice had been done in all the other cases, because in nine out of ten cases there was no appeal. It was 1997 monstrous that that should be the fact, when they reflected how many thousands of these cases were assaults, and subject to any amount of perjury. They all knew that the police frequently made charges of assault, and yet the magistrates had the power of sending a man to prison for six months on the word of a policeman, without an appeal. These were things not to be borne, and fully justified his demand for investigation. Some of these cases were so outrageous that the Home Secretary was called upon to overrule decisions like these. There was the case, much commented on, of the captain who the other day was sent to gaol for keeping a refractory seaman in irons for an excessive time; but if the captain had had an appeal the case might have been calmly discussed; it would have been decided whether the magistrate was right or wrong, the captain would not have been wronged by injustice, and his right hon. Friend would not have been obliged to interfere. He complained that although magistrates were not allowed by law to pass sentences of more than six months' imprisonment, yet by dividing charges they often exceeded that amount. Thus if a man were charged with assaulting two policemen, the man would probably be sentenced to six months for the assault on each, the second sentence to commence at the expiration of the first, the result being that the punishment of a year's imprisonment was inflicted while the law limited the magistrate's power to six months only. He found, too, that there were a great number of imprisonments for the non-payment of costs. There were at the present moment several prisoners in Salford Gaol who, unless they could find sureties, in a Very short time would be going through six months' imprisonment in addition to three to which they had been first sentenced for night-poaching. Doubtless there were many similar cases. Often when the magistrate assessed the breach of the law at 6d. the unfortunate delinquent would be sent to prison for seven or 14 days, or a month, for non-payment of the fees or the costs; and that also was a point into which there ought to be an inquiry. In making those observations he wished it to be understood that he was attacking the system, and not the men by whom it was administered, and he did so, because the subject was an 1998 important one, and one in which he took much interest. But while he made no attack on individuals, he contended that the law as it stood was objectionable, and protested against the present mode of appointing magistrates as monstrous, maintaining that an inquiry ought to be instituted by the Government as to how they were to be appointed in future, so that some evidence of fitness for the office might be secured, as well as the proper administration of the criminal law in summary cases. He also thought the right of appeal should be multiplied wherever personal liberty was affected. A crying evil existed; but he was sure that the subject could not be in better hands than those of the right hon. Gentleman the Home Secretary.
MR. ASSHETON CROSSsaid, he was not disposed to find fault with the way in which the hon. and learned Gentleman opposite (Mr. Hopwood) had laid his case before the House, or to deny that it was deserving of the utmost attention. The general tone of the hon. and learned Gentleman's speech might, however, lead to some misconception out-of-doors, inasmuch as the inference might be drawn—he would not say correctly—that he had brought a great indictment, not against any individual justice, but against magistrates as a body. [Mr. Hopwood: No, no!] He knew that was not the feeling of the hon. and learned Member. Standing as he (Mr. Cross) did, in a certain sense, at the head of the magistracy of the country, he was bound to say that, for his part, he believed there were no men who, as a body, acted more fearlessly, more honestly, with more care, with more patience, or with a more thorough determination to do what was right than the magistrates of this country. They gave an enormous amount of time, and took infinite trouble, for which they got no thanks—at least he had never got any himself—to discharge properly the duties which devolved on them. Having, however, said this much on behalf of the magistrates—and he could not speak too strongly of them in thatway—he was willing to admit that the system which the hon. and learned Gentleman had brought before the House was one which required alteration, and it had been his intention, if the state of Public Business had admitted of his doing so, to introduce a measure with a view of correct- 1999 ing many of the anomalies which existed in the present state of the law. He hoped, however, early next Session, if not before, to be able to deal with one or two matters in it which required amendment. He did not, he might add, think that there was need of much inquiry for the purpose, because all the facts of the case were, he believed, already very well known, and whenever he brought forward his measure he would, he imagined, be able to show how certain mischiefs had crept into the system which it was desirable to remove. Act after Act, for instance, had been passed, into which, whether owing to the action of the draftsman or some other cause, a clause relating to summary jurisdiction had in some shape or another been introduced, and the result was that, a number of those clauses having got into Acts of Parliament one by one, it was impossible to obtain a bird's-eye view of the whole of our criminal law, except in some big book which was scarcely ever read. He, however, had, with the assistance of several able persons, taken the trouble to get a somewhat complete view of all those ugly clauses, and he certainly was of opinion that they wanted re-arrangement, and that they could easily be re-arranged without making a revolution in the practice of the criminal law. He was also quite willing to admit that it was a great hardship that out of 140,000 sent to gaol there should be as many as one-third to whose cases the statute law was not applicable, and that great relief might be given by the amendment of the part of the law relating to costs. He could not, however, assent to the statement that there was throughout the country great disatisfaction with the decisions of the justices. Their decisions, he believed, on the contrary, though they might not in many instances be learned in the law, carried with them very great weight with the people themselves. The hon. and learned Member found fault with the mode of their appointment, but he seemed to have much more knowledge, he (Mr. Cross) might add, of their apointments of justices in boroughs than in counties. He was quite aware that in the county with which he was connected the appointment of the magistrates was at one time extremely political. He was not blaming one side more than another; but he was happy to 2000 say that the system had been changed, and that the appointments were now practically non-political. With regard to the counties, he believed that the Lords Lieutenant generally made the appointments fairly; and the Lord Chancellor was responsible for the selection of borough magistrates. If we could not trust the Lords Lieutenant and the Lord Chancellor it would be rather difficult to find any one in whom confidence could be reposed. The hon. and learned Member talked about the qualifications of justices, and suggested that they should know a little law. Now in the administration of justice he (Mr. Cross) thought that a little law was a dangerous thing. What they wanted, with, of course, some knowledge of law, if possible, was a great deal of sound common sense. Look at the great body of the people from whom the justices were selected. They were persons who had spent a great number of the years of their life in active employment and in building up their fortunes or promoting the honour and renown of their country. It was in the same class which supplied them with Members of Parliament that they practically found their magistrates. They could not put them through any examination. The examination which these men had passed had been the work of their lives; they had raised themselves to a position which qualified them for appointments to the magistracy. In his own country they had a magistrate for every policeman, 800 in number, but he did not say that they had too many magistrates—and it was quite right that they should be in the commission of the peace. He might here remark that he would alter the terms of the commission with regard to witchcraft and enchantments, if the change would give any satisfaction to the hon. and learned Member opposite. Undoubtedly one of the oldest laws which could be found provided, and it was no doubt desirable, that there should be on the commission of the peace gentlemen learned in law. So far as they could that was carried out by the practice which almost invariably obtained of making use of the County Court Judges, and he could speak of the immense services which were rendered by the County Court Judges, not only at petty, but at quarter sessions in all cases of appeal. The hon. and learned Member had referred to the absence of any 2001 qualification in the justices' clerk, and had said that they might appoint a butler to the office. The magistrates' own character was at stake in the administration of justice, and they would take care to appoint the best man they could get. He admitted that the clerks ought to be paid by salary, and not by fees, and he hoped to be able to persuade Parliament to make the Act which was now permissive compulsory. With regard to terms of punishment, there were a good many old statutes, and they found that in these the punishments were more severe than in the modern statutes, and it was one of the great evils of Consolidation Acts that the severer penalties were almost always retained. With regard to the differing amounts of punishment awarded by the justices as stated by the hon. and learned Member, he wished to have their administration in prisons as uniform as possible, for, although they did their duty there as honestly as they did elsewhere, they were apt to get into particular grooves in particular localities. The hon. and learned Member had referred to the question of appeal. Now, from the decisions of the justices, there was a short, cheap, and easy appeal to the Secretary of State, and he had been perfectly astonished at the comparatively few cases in which complaints had been made to him of the decisions of the justices. As to the question of costs in criminal appeals he knew that there was a feeling in some populous places that persons were sent to prison so that the clerks might get their fees, and he should like to see some legislation by which the clerks would be paid by salary, and, secondly, that power would be given to the magistrates to give time to parties so that they might find sureties for payment. He did not think that any inquiry into the subject was necessary, and in conclusion be desired to repeat his testimony to the admirable way in which the magistrates of this county performed their duty.