§ Order for Committee read.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Assheton Cross.)
§ MR. NEWDEGATE saidI am anxious to call the attention of the House to some circumstances connected with this measure which appear to me to have been overlooked in the debate that took place on the second reading of this Bill. It appears to me that the majority, who support the Government on this Bill, have been acting and voting somewhat mechanically on the subject. This seems to be the case, because the policy now pursued by the Government is not consistent with the antecedents of their Party, or consistent with the general course of conduct which might be expected from a Party professing Conservative principles. When this Bill, or one very like it, was introduced last Session, by the present Government, that was the first occasion in the history of the Conservative Party, so far as I can trace it, when a direct attack was made by a Conservative Government upon the great principle of local self-government in relation to the imprisonment of criminals, and the infliction of punishment. I know it has been said that there has been au unexpected, though not at all universal, concurrence of opinion on this subject on the part of the courts of quarter sessions; but I should like for a moment to recall the attention of the House to what occurred in the last Session. A Prisons Bill having been introduced, the right hon. Gentleman at the head of the Home Department endeavoured to push it through a second reading at somewhat short notice, but at the desire of hon. Members of this House the right hon. Gentleman deferred the second reading, because the time for holding the quarter sessions was near at hand. I can answer for it, in one case at any rate, that a very small proportion of the magistrates assembled in quarter sessions had really had time to consider or understand the Bill, whilst hon. Members who are anxious to support the Government in their new policy, posted down to the various quarter sessions, 846 and claimed the votes of many justices rather as a matter of Party allegiance than on the merits of the Bill. ["Hear, hear!" and a voice "No!"] Well, I am glad to hear that there has been some exception to the action I have described, and which I witnessed myself in one court of quarter sessions. I say, then, deliberately, that with the exception of the Middlesex quarter sessions, most of the courts of quarter sessions were taken by surprise, and in many cases voted their assent to the Bill, without giving it the full consideration it ought to have received, and which it would have had but for the fact that it was introduced by a Government with whose general policy in other respects the majority of the county justices have agreed, but to that policy this Bill certainly forms a very marked exception. We have had, Sir, an assurance from the right hon. Gentleman the Secretary of State that no one is more devoted to the principle of local government than he himself; and he asks us to accept this Bill as an illustration, I suppose, of his devotion to the principle of local government. Now, there is a great distinction between what may be termed "local government" and local self-government. The right hon. Gentleman proposes by his Bill to place a certain number of justices in the position of inspector of prisons commissioned to report to him and not to the court of quarter sessions. He reverses the position of the prison inspectors and of the visiting justices. He makes the inspectors and the commissioners the exponents of the power and sole control over the gaols which he seeks, while he commands the visiting committee of justices, whom he would appoint, and orders them to visit gaols to report to him as the central authority; and this is the manifestation he presents to us of his devotion to the ancient principle of local self-government. He then enunciated an extraordinary opinion with respect to the common law of this country, which he declares that by this Bill he does not infringe. With the permission of the House, I will quote the expressions of the right hon. Gentleman, expressions in which he seemed to deny that this Bill, if passed, would constitute what he considers an infringement of the great principle of the common law in the matter of local self-government. The right hon. Gentleman said— 847
The hon. Member-for North Warwickshire said that the Bill would interfere with common law, and quoted Lord Coke. But Lord Coke had laid it down that gaols could only be erected by the authority of Parliament. Gaols were always created by statute. But statutes could abolish thorn without interfering with the common law. Equally so far as the Justices were concerned they had no power by law over the gaols.[Mr. ASSHETON CROSS: By common law, I said.] I accept the right hon. Gentleman's correction. "Justices by common law had no power over a gaol." [Mr. ASSHETON CROSS: Hear, hear!] Then am I to understand that no statute can afford proof of the requirements of the common law? That may be the right hon. Gentleman's opinion. I quoted a high authority the other night to show that statutes are very often explanatory, very often declaratory, of the common law, and that they much more often limit, and specially direct, than contravene the operation of the common law. But the right hon. Gentleman says further that the justices have no common law right over gaols. How is that, Sir? For by this very Bill ho not only abolished the control which the magistrates have hitherto exercised, as Her Majesty's officers, in the regulation of gaols, in accordance with the common law, but also by this Bill he seeks to abolish the responsibility of the office of sheriff, in the matter of the custody of the great mass of prisoners in these gaols, and places himself at once in the position, or, to use a familiar phrase, in the shoes, not only of the justices, but also of the sheriff. Yet the right hon. Gentleman says this is no infraction of the common law. The right hon. Gentleman ought to be a high authority; but, with the permission of the House, I will read what is Lord Coke's definition of common law.Common law" (Lex Communis), says Lord Coke, "is taken for the law of this kingdom simply without any other law; as it was generally holden before any statute was enacted in Parliament to alter the same, and the King's Courts of Justice are called the Common Law Courts. The common law is founded upon the general customs of the realm, and includes in it the law of nature, the law of God, and the principles and maxims of the law. It is founded upon reason, and is said to be the perfection of reason, acquired by long study, observation, and experience, and refined by learned men in all ages. And it is the common birthright that the subject hath for the safeguard and defence, not only of his goods, lands, and revenues, but of his wife and children, body, fame, and life also."—[Coke upon Littleton, 97, 142. Treatise of Laws.]848 Then what says Lord Hale? According to Hale—The common law of England is the common rule for administering justice within this kingdom, and asserts the King's royal prerogative, and likewise the rights and the liberties of the subject. It is generally that law, by which the determinations in the King's ordinary courts are guided, and this directs the course of descents of lands, the nature, extent, and qualification of estates, and thereon the manner and ceremonials of conveying them from one to another, with the forms, solemnities, and obligation of contracts, the rules and directions for the exposition of deeds and Acts of Parliament, the process, proceedings, judgments, and executions of our Courts of Justice; also the limits and bounds of Courts and jurisdictions, the several kinds of temporal offences and punishments, and their application," &c.—[Hale's History of the Common Law, pp. 24, 44, 45.]Well, Sir, I presume that the right hon. Gentleman will not deny that the sheriff is by common law a representative of the King's authority in every county wherein he acts, during the term of his office, and that he is essentially a common law officer. The right hon. Gentleman will not deny that, inasmuch as common law is the growth of custom, the property of gaols before any statute was passed was vested in the justices as the representatives of the ratepayers, and is therefore the property of the county or borough, held by them in trust for the Crown, in trust for the execution of the law with respect to prisoners; and yet the right hon. Gentleman, knowing, as he ought to know, the nature of the common law, and that by the common law the great principle of local self-government exists throughout the country, and has done so for ages, comes down to this House and proposes to displace the magistrates, as trustees of the Crown, and to displace the sheriff, as the custodian of the prisoners in every county, and tells us that in thus centralizing the possession of this property and the authority over these prisoners, and the execution of justice in his own office, and yet he tells us that he proposes nothing in contravention of the common law. Sir, it is my desire that this delusion should be dispelled; and to show the House how this Bill violates a fundamental principle of common law, I will refer to a case that proves my position. The poisoner, Palmer, was captured at Rugeley, and imprisoned in the gaol at Stafford. Such was the general conviction of his 849 guilt that his counsel thought he could not have a fair trial in the midland counties, for we in the midland counties knew him; and, to the best of my belief, if it had been possible for him to have escaped a conviction for the murder of my acquaintance—I may say my friend, Mr. Cooke, for I knew him well—this Palmer would have been immediately tried for two other murders. I am perfectly cognizant of this case. Was there, under these circumstances, any common law power, or statutable power to remove the trial to the Central Criminal Court? No! The common law directed that the man should be imprisoned, and, if convicted, whatever the penalty might be, that he should suffer that penalty within the jurisdiction in which he had committed his crime. It was not thought desirable to make a special statute for this special case, which might appear ex post facto and personal legislation; so a Bill was brought into the House of Lords by Lord Chancellor Cranworth, which was a general Bill, to modify and direct the operation of the common law, and thus become a part of the common law itself. The Trial of Offences Bill was brought in by Lord Cranworth on the 5th of February, 1856; and what did he say?The Lord Chancellor said he had to present a Bill of an important character, which it was desirable should be sanctioned with as little delay as possible, to enable the Court of Queen's Bench to order certain offences to be tried at the Central Criminal Court. When a person was charged in the country with any serious offence which was likely to prejudice him in the eyes of the neighbourhood, it was competent for the Court of Queen's Bench to remove the proceedings into that Court. The case would then be tried in ordinary course in the Court of Queen's Bench by a trial at bar—a process which was not only attended with considerable expense, but occupied a great amount of time, and was not a convenient mode of trial for felony. It was therefore desirable that, at the discretion of the Court, such cases should be sent for trial to a more convenient tribunal, the Central Criminal Court."—[3 Hansard, cxl. 218.]Lord Cranworth then went on to say there were doubts as to the legal power thus to remove the case to the Central Criminal Court, and that he presented the Bill to solve those doubts. These doubts had arisen, because common law primarily prescribed that the man should be tried at Stafford, in which county the offence was committed, and because, al- 850 though the common law recognised the power of the Court of Queen's Bench to claim the trial of any prisoner elsewhere, the common law had not recognised the Central Criminal Court, for it is a comparatively modern Court. The Trial of Offences Bill was, therefore, carried for the purpose of enabling such cases as that of Palmer to be removed from the county where the offence was committed, and to be tried at the Central Criminal Court, after application had been made to the Court of Queen's Bench. When the second reading of the Bill came on Lord Campbell stated that—It often happened that a fair and impartial trial could not be had in the county where the offence was committed; and when that was the case an application might now be made to the Court over which he presided to remove the indictment by certiorari into the Court of Queen's Bench; but then it could only be tried in an adjoining county, or by a trial at bar, both of which might be very inconvenient. In the Central Criminal Court, however, such a case could very well be heard, and very little delay would arise in bringing on a trial in this way."—[Ibid. 512.]Lord Campbell admitted that the rule according to the common law was that the offender should be imprisoned and tried within the local jurisdiction (the county) in which he committed the offence, but also that the common law had recognised exceptions to this rule in particular cases, when an offender might be tried in an adjoining county, and that the only other alternative was a trial at bar, at which the attendance of all the Judges would be requisite, and which would thus be inconvenient. The Trial of Offences Bill was read a second time on the 11th of February, 1856. In April it was passed into law, and on the 14th of May, Palmer was tried and convicted at the Central Criminal Court. Then came in the operation of common law again. Having been convicted and sentenced to death in the Central Criminal Court, was he executed in London? No. For the injunction of the common law is that the offender should be returned to the scene of his crime, and accordingly he was sent back to Stafford Gaol, and was there executed on the 14th of June, 1856. Now this is a case in point, and proves how strong is the common law of the country in maintaining the great principles of local self-government; for the rule of the common law is, that every man who commits an 851 offence must be imprisoned where the offence is committed, and if convicted he must be executed in that county, and it was only by a special statute that there could be a departure from the principle of local self-government in the trial of Palmer—an exception not extended to his execution. The right hon. Gentleman the Secretary of State for the Home Department says that he does not interfere with the common law by means of this Bill. Why, he has brought in a Bill to suspend the operation of common law in every county and borough in the United Kingdom, with respect to the possession by the authorities of these localities of their prisons—to suspend the functions of their magistrates, to suspend the functions of their sheriffs, and then he says—"I am doing nothing to intercept the operation of the common law," which he has not denied to be founded on the principle of local self-government. The right hon. Gentleman by this Bill is not satisfied with verifying his own dictum that every gaol must exist or be abolished by Act of Parliament, but he takes power to sweep away any or all of the gaols from the counties and boroughs of this country from the jurisdiction under which they exist, and to appropriate that jurisdiction to the central authority, which at present is vested in himself. Is this, Sir, no infraction of the principle of the common law? I beg the House not to pass this Bill lightly, though there may be a large majority in its favour. I own that I was rather disappointed at the conduct of the noble Lord at the head of the Opposition and of the other Members of the late Administration, who absented themselves from the division on the second reading of this Bill the other night. During the last Session of Parliament they twice voted against this Bill; once against the second reading and once against its further progress. Why have they all deserted when this same Bill has been again introduced this Session? True, they have not consented to the principle of the Bill. I am glad to say that they seem to object to the principle of the Bill as strongly as I do; but I ask, again, why they deserted the House when a division was called on the second reading of the Bill? Sir, I regard their conduct as proving that they have not yet learned the duties of an Opposition. What is the duty of an Opposition? Clearly this:—If they have a definite 852 objection to any measure the Opposition ought to oppose it, and if they are left in a minority they must trust to their position being improved in the opinion of the country through the fulfilment of their duty. There are one or two other points which I should like briefly to touch upon with respect to this Bill, and first with regard to the forces that support it. The force which is most usually referred to is the demand for a remission of local taxation, urged upon this House and the Government by the Chambers of Agriculture. Hon. Members, and particularly the hon. Member for East Gloucestershire (Mr. J. R. Yorke), declared in the late debate on the second reading of this Bill that that was the motive of his votes; and the hon. Member for East Gloucestershire went beyond that, and said that he, for one, would not be satisfied with the transference to the Consolidated Fund of the charge for the prisons of England and Wales, but would demand that the charge for the country police should also become a charge on the national Exchequer, and I suppose he would go as far as the hon. Baronet the Member for South Devon (Sir Massey Lopes), and transfer the charge for lunatic asylums also to the Consolidated Fund. Now, although the Government declare that they will stop in this course of centralisation after they shall have, by the passing of this Bill, effected the centralisation of all property in and all the authority over the gaols, their supporters in this House, and their supporters out-of-doors in Chambers of Agriculture—not in all cases, perhaps, but in the majority of instances—declare that this is but a first step in the process of what they call relief from the burden of local taxation, which is worked in such a manner that it involves in each case a further resort to the process of centralisation. There is a force urging forward this measure to which I should like to direct the attention of the House. Ever since the year 1862 there has been a pressure brought to bear by the Roman Catholic Members of this House in favour of appointing regularly paid Roman Catholic chaplains in every county and borough prison. In that year Mr. Pope Hennessy brought in a Bill which would have rendered it obligatory upon every bench of magistrates, whether borough or county, to appoint a Roman Catholic 853 chaplain, to keep a Creed register, and to assign to the sole care and direction of every Roman Catholic prisoner, whose name was entered in the register as a Roman, Catholic, to a regularly-appointed and paid Roman Catholic chaplain. By that Bill, moreover, the prisoner was debarred of any option as to receiving the visits of the Roman Catholic priest; and the Bill would also have forbidden access to such prisoner, being a Roman Catholic, on the part of any other minister of religion than the Roman Catholic chaplain. That was the Bill which Mr. Pope Hennessy brought in; and I have here an account, given in The Tablet newspaper, of that Bill having been, prior to its introduction, examined by the Roman Catholic Bishops, and sanctioned by Cardinal Wiseman. That measure was avowedly promoted by Cardinal Wiseman and the Ultramontane Party in this country. Sir George Grey, who was then Home Secretary, declared that he could not assent to a measure that would have entailed the appointment of so great a number, perhaps not less than 116 Roman Catholic chaplains on such terms; but he promised to bring in a Bill the following year on the subject. Accordingly in 1863 he introduced and carried the Bill called the Prison Ministers Bill. That Bill provided that the justices might at their discretion appoint Roman Catholic chaplains, and that on the special request of any Roman Catholic prisoner, or of a prisoner of any other religious denomination, a minister of his religion might visit him, and that the prisoner should not be compelled to attend the services of the Church of England, or accept the ministrations of the Church of England chaplain. Now, that Bill satisfied the principles of religious freedom; but were Roman Catholic Members satisfied? I have a record here on that head. Not in the least, Although the Bill passed in 1863 gave perfect freedom of worship to every prisoner who was not a member of the Church of England, the agitation continued until in the year 1865 Sir George Grey introduced and carried a general Bill for the consolidation and amendment of the laws relating to prisons. Still, however, Sir George Grey, supported by the Conservative Party, and by his own friends the Whigs, and the great majority of 854 the House, refused to render compulsory the appointment of a Roman Catholic chaplain to every county and borough gaol in England and Wales; but he did go a step further towards satisfying the Roman Catholic demand. He consented that the direct request of the prisoner should not be necessary to bring him a Roman Catholic priest or the minister of a Dissenting church, as the case might be, but that the Roman Catholic priest or other minister might visit the prisoner if the latter did not object to receive his ministrations. Well, did even this concession satisfy the Roman Catholic demand? Not in the least. The Ultramontane agitation continued, and in the year 1866 the O'Conor Don moved a Resolution in this House, directed and especially aimed against the local authorities in charge of the county and borough prisons in Great Britain, because they did not use the discretion which was vested in them by the Prisons Act of 1863 and 1865 and appoint in most of their gaols, as permanent officers, Roman Catholic chaplains. In the year 1870 my Friend, the late Mr. Maguire, obtained the appointment of a Select Committee of this House to inquire into the conduct of the magistrates. He asked me to serve on that Committee, but I refused, because in moving for that Committee he had shown his animus to be still more determined than that of Mr. Pope Hennessy. These were the words which he used. He said, speaking of the Middlesex magistrates, "all that was required was that the same state of things should exist in this country as existed in Ireland." In speaking of the justices of the peace, he used the words "incorrigible bigots," and said he "was prepared to justify the use of those words. There were 800 prisoners in the gaols of Middlesex. In two of the prisons the law had not been put in force. In the other three it was inoperative." What did he mean by that? Why, that the magistrates had not appointed Roman Catholic chaplains in all the gaols, though in all they had obeyed the Acts of Parliament and allowed access by Roman Catholic priests to the prisoners whenever requested and when these evils were not objected to by the prisoners themselves. Still the agitation continued after 1870, until in 1872 a Bill was passed by the House of Lords; to 855 this hour there is open discontent among the Catholic priests, because only 10 of their number have been appointed chaplains, although county and borough prisons are in number 116, whilst in the case of the convict prisons, of which there are 12, eight Roman Catholic chaplains have been appointed. We know, then, from their conduct during the last 15 years that the Roman Catholic hierarchy are disposed to attack the magistracy of this country, and deprive them of their control over the prisons, on the special ground that they have not appointed as many Roman Catholic chaplains as the hierarchy desire. That is another force of the attack directed against the magistracy of this country. And what is the third? The third is an importation of the right hon. Gentleman the Home Secretary himself. The right hon. Gentleman, in depriving the justices of the peace of the direction and control of the prisons, takes from them the appointment of all the officers. No doubt the proposal receives the approbation of Cardinal Manning, who, like the late Cardinal Wiseman, prefers that the Home Office should have the appointment of the prison chaplains rather than the local magistrates. He takes from the justices the appointment of all the officers, and what does he tell us? That he intends to incorporate in the Civil Service, already much overloaded, all the officers of the goals he intends to retain for the boroughs and counties of England and Wales; he has thus enlisted the Civil Service in his attack upon the unpaid magistracy. Then the right hon. Gentleman says, with reference to the subject of patronage, that he cannot conceive how the magistrates can wish to retain that patronage. Well, if the right hon. Gentleman finds patronage to be so very inconvenient, and desires to avoid trouble, why does he remain Secretary of State? Why does he, by accumulating patronage by this Bill, seek to place an additional burden on his already over-weighted shoulders? He says that he desires to increase the efficiency of the Service by giving opportunities for the promotion of those officers through their removal from one gaol to another, at the discretion of the central authority; and he declares that he proposes all these changes from a desire to enforce uniformity. I have heard another extraordinary reason 856 for this measure. I have heard it said that because railways now cover the entire country, and that criminals can travel with greater ease than formerly, and that because the communication of intelligence is so rapid, that there can be no reason for preserving local self-government in the control and management of the prisoners or gaols. Thieves may travel by railway, but their offences must be local. Does not common sense tell one that, if access by railway is so easy to every part of Great Britain, and communication by telegraph is so rapid, supervision by the central authority must be ten times easier, and there is therefore less reason for depriving the several localities of self-government in the matter of their prisoners and gaols? Such arguments as these appear to me to have had undue weight with the Members of this House, who are now asked to reverse the policy which, to my knowledge, the Conservative Party have pursued for 30 years, in order to oust their brother justices from a jurisdiction, the exercise of which has resulted in a diminution of crime to such a degree that the comparative freedom of this country from crime has become one of its advantages in the eyes of all civilized nations. Do not tell me that prison discipline has nothing to do with the administration of justice. Sir, I am sorry to say that I have had to resist political pressure, put upon me to support or to make applications for the remission of sentences under the modern system of prison discipline—applications made to the Secretary of State. I have resisted those applications sternly—nay more, twice in this House it has been my duty to impugn the discretion of the Home Secretary, for the time being, in recommending the exercise of Her Majesty's prerogative of mercy. In both cases I was exposed to the whole political pressure of the organization which seeks the abolition of capital punishment, and I never undertook such a painful task in my life. From this experience I view with extreme jealousy the transfer of judicial authority to a political officer like the right hon. Gentleman. In this lies one of my distinct objections to this Bill. The Commissioners appointed to inquire into the exercise of the prerogative of mercy recommended that there should be a Council of non-political officers ap- 857 pointed to aid the Home Secretary, in order to counteract the possibility of political influence being used in the exercise of this, his judicial function. This House, by a large majority, gives a Government which calls itself "Conservative" power to strike down some of the best securities for the freedom and safety of Her Majesty's subjects, by destroying a branch of local self-government under the common law which has existed for centuries in local control of the local prisons in every county and borough throughout England and Wales. I wish the House distinctly to see the course upon which it may be embarked; if the House still persists in passing this Bill, which infringes the fundamental principle of ancient common law—I am told that this Bill will be forced on—then, Sir, I trust that this Bill will be treated as an exception to the future course of legislation, and that it will not prove to be a step in the direction of further centralization. I thank the House most sincerely for the kindness with which it has allowed me to trespass upon its time thus far; but now that the Constitution of this country is assailed in one of its vital parts, I ask the House to permit me to quote a document, and an opinion of one whose authority I believe the House will recognize as of the highest character, and to whom I referred in the debate on the second reading of this Bill—I mean the late M. de Tocqueville. Now, Sir, not only by the Bill before us, but by the whole process of centralizing legislation which has been going on too rapidly within the last few years, you have been approximating to the system of Beaurocracy which has attained such proportions in France, the system of the Code Naopleon; and here let me ask the House to mark the difference between the common law of England and the principle of the Code Napoleon of France; the Code, moreover, which now forms the basis of the administration and government of the greater part of Europe. The common law of England is founded upon the customs, the feelings, the practice of the nation, as illustrated in the various localities. The Code Napoleon is founded upon the Roman law. In the one case responsibility and authority are assumed to exist with the nation according to the classification of the inhabitants of the realm: that is the common law of England. 858 In the other case the head of the State is the source of responsibility, authority, and power. That is the Code Napoleon. In France the head of the State is responsible for the peace of the whole country. In England every county, every borough, nay, every hundred, is responsible for the peace of the locality. Under the common law of England, it was provided on the 10th of April, 1848, every man is bound to act as a constable when called on by lawful authority. Under the Code Napoleon no man is allowed to act as a constable unless he is a paid officer of the State, and every man is liable to the conscription as a soldier. Under the Code Napoleon the first duty of the citizen is to serve as a soldier. Under the common law of England the first duty of the subject is to act as a constable. True, he may be pressed to serve in the Militia; but that is only a secondary duty. The House will understand this difference. It will understand that under the common law of England the whole nation is engaged in the maintenance of its peace. Under the Code Napoleon the head of the State is solely responsible for internal peace. In the difference between these two principles of Government, you will discover the greater security for internal peace which has been enjoyed in England as contrasted with France. With the permission of the House, I should like to read a few words which were written by M. de Tocqueville in a letter to his godson, by way of illustrating this fact, that the people of England have had reason to be more contented, more peaceful, and more orderly than the people of France, because under our common law their freedom is better secured. In this letter to his godson, who was about to study the Roman law, M. de Tocqueville says—Roman law has played a most important part in almost all modern nations. It has done them much good, and in my opinion still more harm. It has improved their civil laws and spoiled their political laws; for Roman law has two sides. The one concerns the relations between individuals, and in this respect it is one of the most admirable products of civilisation; and the other part has to do with the relations between subjects and Sovereign; and then it is full of the spirit of the age, when the last additions were made to its compilation, the spirit of slavery. Aided by Roman law and by its interpreters, the kings of the fourteenth and fifteenth centuries succeeded in founding absolute monarchy on the ruins of the free institutions 859 of the Middle Ages. The English alone refused to adopt it, and they alone have preserved their independence.Then he adds, and I desire particularly to draw the attention of the hon. and learned Members of this House, and especially the Law Officers of the Crown, to this important passage—Your professors will not tell you this; but it is the most important part. Still the present is not the time for considering it, for your examination will not relate to it.Now it appears to me, that the professors of law in this House, the Law Officers of the Crown and their predecessors in office, imitate the reticence of the professors De Tocqueville described. They have been ominously silent; they have not said one word to assist the House in seeking to understand the legal aspect of this Bill, nor have they told the House how we should understand its bearing on the common law of this country, and whether, by thus centralizing authority, we are not departing from the common law, and following the principles of the Code Napoleon, which, however they may be modified, are adverse to the freedom of the subject, and have in too many instances failed to secure the peace and order of society.
§ MR. SPEAKERwas about to put the Amendment which the hon. Gentleman had placed on the Paper—namely, that the Bill be committed that day six months, when
§ MR. NEWDEGATEsaid, that he had not moved the Amendment.
§ MR. MUNTZobjected most strongly to the enormous power which it was proposed to give to the Home Secretary in regard to the management of prisons. The Home Secretary was to have the power to discontinue any gaol he might think proper, to make any rules he might think proper, to appoint any officials he might think proper, and to fix their salaries to any extent he might think proper. The avowed objects of the proposed changes were uniformity and economy; but the advantages to be reaped from such changes were outweighed by the disadvantages attending the destruction of the independence of local self-government. The problematical advantages expected from these changes, if any, might be obtained as well without affecting our common law in respect of local self-government. Why 860 could we not have uniformity without decentralization? The same object might be obtained by giving the necessary instructions to the local authorities, without the Home Office taking the matter entirely into its own hands; and with regard to economy, the advantage to be gained in that respect was more ideal than real. If due examination were given to it, it would be found that the Bill was not so simple as it appeared. It was urged that the House would watch the increase of expenditure under that measure; but hon. Members who knew how business was done there and understood by experience how difficult it was to get any real reduction made in the mass of items which composed the Civil Service Estimates, would feel that Parliament could not place any very effectual cheek on the growth of such expenditure. The case of the Commission under the new Poor Law, the charge for which, though originally small, had crept up to a very large annual sum, was an illustration of what they might fairly expect to happen in the present instance. He had come in personal contact with many magistrates, and found some of them to be in favour and some against that Bill, a number of them saying that they must go with their Party in the matter. He regretted, however, that the question should be made a Party one on either side. Magistrates who were perfectly willing to do their share of duty felt that under the new system things might go on pretty well while the old magistrates and the old servants remained; but, when new comers were appointed, and the justices found themselves looked upon merely as intruders, new justices would not take the place of those who had died off, and the whole system of prison management would thus gradually fall into the hands of the Government Commissioners and their subordinates. If local taxation did press heavily, relief might be afforded without interfering with local management, which was one of the safeguards of the State. He moved that the House resolve itself into Committee that day six months.
Amendment proposed, to leave out from the word "That," to the end of the Question, in order to add the words "this House will, upon this day six months, resolve itself into the said 861 Committee," — (Mr. Hunts,) — instead thereof.
Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. RODWELLsaid, some of the objections to the Bill were based on a misconception; and the dangers which had been suggested by the hon. Member for North Warwickshire (Mr. Newdegate) were so remote that there was no need to discuss them. He did not think that the observations of the hon. Gentleman were quite complimentary to those who supported this measure, because he said it was mechanical and due to Party feeling. Now, he (Mr. Rod-well) protested against that statement, that it was mechanical simply implied this — that after the very full discussion that had taken place there was little more that individual Members could add to the arguments for this Bill; but when the hon. Member stated that the support of the measure was dictated by Party motives, he seemed to have forgotten the speeches which had been made on both sides of the House. He did not see what inference the hon. Member wished to draw from his observations. The visiting justices were created by the Act of 1865, and, although they might suggest rules, they could not carry them out without the sanction of the Secretary of State. The only difference this Bill would make was that changes would be initiated by the Secretary of State, but he would not, therefore, really exercise any more power than he now possessed. He could not understand in what sense the term centralization was used. No one was more sensitive or jealous than himself about interference with local authorities and local administration; but in the administration of a prison the duties, of which the Justices were deprived, were more analogous to those of a house steward. Crime must be dealt with uniformly throughout the country, and in the application of general principles there was nothing calling for local knowledge or a consideration for local circumstances. There was no difficulty or danger in placing the power of appointing Officers in the hands of the Home Secretary. The power of the visiting justices was very great, and clothed 862 them with very great responsibility. They had to see that no unnecessary severity was practised on prisoners, and they acted between the Executive and the man who was under his sentence. So far from considering this Bill as a slur on the magistrates, he regarded it as a recognition of the services of those gentlemen. He believed they would be most useful to the Home Secretary in carrying out this Bill, and their cooperation would procure the confidence of the people of the country in the administration of the law being fairly carried out through the country.
§ SIR ANDREW LUSKsaid, that uniformity was the principal recommendation of the proposed change, and the absence of it at present was due, not so much to diversity in the administration of the internal affairs of prisons, as to want of uniformity in the sentences passed on prisoners, which was the reason why those confined in some prisons often expressed gratitude that they were not in other prisons where sentences were more severe. Much was made of the want of uniformity, but that applied far more strongly to the sentences of the Judges than to the discipline of prisons. One Judge gave 15 months' imprisonment and another five years' penal servitude, with, perhaps, the addition of flogging, for the same offence. There was an enormous discrepancy in the sentences, and that was one of the great evils that was complained of; but it would not be cured by this Bill. As a magistrate, he did feel the slight which was thrown on their body, and he thought this interference with them was very unnecessary. It was unfair and most undesirable to throw a slur upon those who had hitherto managed the prisons both wisely and well. All this legislation was proposed to shift the cost of prisons from the landowner, and the land, to the rates, and the people generally. The saving would be merely trifling, and it was not worth while changing the law for the small gain that would be realized. He had never yet seen affairs so well managed by public officials as by private individuals. He also objected to the Bill on the ground that it would increase and intensify the principle of centralization.
§ MR. A. MILLSsaid, he did not rise to prolong the debate; but there was one part of the Bill which he regarded 863 with some anxiety, relating to the employment of the labour of prisoners. There was great weight in the objection raised to the practice which had obtained in some prisons in that respect. He hoped the necessity for pressing the clauses of which Notice had been given by way of Amendments would be removed by some distinct statement from the right hon. Gentleman as to the course he would be prepared to take if the House passed the Bill. He trusted the House would go into Committee on the Bill at once, as he regarded it, on the whole, as a step in the right direction, and calculated to promote uniformity of prison discipline throughout the country.
§ MR. PEASEalso trusted that the House would at once go into Committee. He thought the Bill well drawn and calculated to carry out the intentions of its framers; but he objected to its principles in toto. The principle was that everything should be governed in London and inspected in the country; whereas he held the reverse should be the rule — that everything should be governed in the country and inspected from London. The objects proposed by this Bill might have been attained quite as well by legislation of a different kind. There would be no difficulty in closing small prisons; and as to the treatment of prisoners, their treatment in convict prisons was much more arbitrary. Prison discipline would be more rigid, and consequently detrimental rather than improving to the prisoners. He believed the whole question arose out of the much-mooted point of local taxation, and if it were not brought forward on that ground there would be no feeling on either side of the House in favour of the Bill. It appeared to him the Government desired to shirk the question of local taxation, for, whilst they had moved certain payments from local to Imperial taxation, they had not altered the basis of local taxation in the least. This Bill would have very little, if any, effect in relieving local taxation, but it would postpone to a more indefinite period still the question of local areas and local government. He objected entirely to the principle of the Bill because it was opposed to the Constitution of England as at present established on this question, which he thought had worked so admirably for many years.
§ MR. EVANSassured the House he was not influenced by any Party feeling or motives in giving his support to this Bill; and, with respect to any opposition offered to the Bill, it seemed to him to come from both sides of the House. He supported the Bill, not as a measure of economy or as a saving to local rates. Some economy might be effected, but he believed it would be very little, and the mere juggle of paying money out of one pocket into another would be no saving to the country. The reason why he supported the Bill was because he believed it would secure, not absolute uniformity, but much greater uniformity, in the discipline and management of gaols than was possible at present, and its provisions would enable the Home Secretary to remove prisoners from one gaol to another, and thereby lead to a classification of prisoners much better than could be secured by local agencies. When he supported the Bill last year he was not aware how it would be received by the country or by his own constituents; but he could now say that it had been very well received by his constituents and by the magistrates of his own county. Some hon. Members were opposed to it, because there was no provision in it to prevent Judges and magistrates passing unequal sentences on prisoners; but he apprehended that that was a matter beyond the Home Secretary's power. He admitted that it was desirable to have equal sentences; but there were difficulties in the matter.
MR. ASSHETON CROSSsaid, ho hoped that the House might now be allowed to go into Committee on the Bill, every point relating to the principle of which had been fully discussed, not only last year, but this year, and there would be an opportunity of discussing any detail in Committee. He wished merely to say in answer to the hon. Member for North Warwickshire (Mr. Newdegate) that when the question of local taxation was brought before the House it was distinctly stated by the hon. Baronet (Sir Massey Lopes) who brought the Motion forward, that if there was one thing Imperial as distinguished from local it was gaols. He (Mr. Cross) should have thought that his hon. Friend would then have pointed out the evils which would arise from taking such a step, because he must have known that if the whole charge were paid out 865 of the Imperial Exchequer there must be Imperial control. Yet he found voting with the hon. Baronet on that occasion the hon. Member for North Warwickshire. [Mr. NEWDEGATE explained that he voted without hearing the hon. Baronet's statement.] He was surprised that his hon. Friend should have given a vote without hearing the reasons for giving it. The House had heard a good deal from his hon. Friend and the hon. Member for Birmingham (Mr. Chamberlain) about the rights of magistrates which had gone on for centuries. But these gaols had not for centuries been under the magistrates. The gaols in old times were the "King's gaols," and the only persons who had the slightest rights with regard to them were the sheriffs; and if the sheriffs were to be taken as representatives of local self-government it was reducing local self-government to the very minimum. When we came to the magistrates, what had they to do with the gaols? In the time of Charles II. the magistrates at quarter sessions were authorized to fix the charges for the sheriff for the maintenance of prisoners. In the time of George II. they were empowered to make certain rules for the government of gaols, which otherwise were to be entirely in the hands of the sheriffs. Then, in 1774, the magistrates were specially charged with this most important duty—to see that the gaols were whitewashed; and it was not until 1784 that visiting justices were appointed to inquire into ordinary gaols; and, with regard to convict prisons, Inspectors were appointed to visit them regularly and report to the Home Office. And when we really came to this question of visiting justices, to speak as the hon. Member for Birmingham did of upsetting the institutions of the country was practically playing with words.
Question put, and agreed to.
Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.
Bill considered in Committee.
§ (In the Committee.)
§ Preliminary.
§ Clause 1 (Short title of Act).
§ Mr. RYLANDSsaid, there was no intention on the part of himself or his 866 Friends to offer a factious opposition to the Bill, but they would rest satisfied with the expression of the feeling of the House in the large majority by which the second reading was carried. He appealed to the right hon. Gentleman not to press forward the Bill with so much haste. He yesterday received a letter from one of the most active and valuable magistrates on the committee of the Salford Prison, than which there was no prison in the country better managed, in which he complained that the Bill was pressed forward with such rapidity that the magistrates had no opportunity of considering its provisions. He thought it was only reasonable that a few days should be allowed to the local magistrates to consider the Bill and make suggestions.
MR. ASSHETON CROSScould not agree to the hon. Member's suggestions, seeing that the Bill had been before the country since last year. At the end of the Session the Government were always charged with not having brought forward their business early enough, and at the beginning of the Session they were accused of bringing it forward with undue haste.
Clause agreed to.
Clause 2 (Commencement of Act), agreed to.
Clause 3 (Application of Act).
MR. PAGETmoved, in page 1, line 14, after "Prison Act, 1865," to insert "and to all other Prisons mentioned in this Act."
MR. ASSHETON CROSSopposed the Amendment, observing that the two classes of prisons were wholly different. It was thought right to retain the services of the visiting justices for the borough and county gaols, because the prisoners there, as a rule, were confined so short a time that they would have no opportunity of seeing the Government Inspector.
SIR JAMES LAWRENCEobserved that whenever the question raised by the Amendment came on for discussion he should be prepared to argue that the wisest thing for any Government to do would be to secure the independent testimony of visiting justices in regard to what was going on in the convict prisons of the country.
Amendment, by leave, withdrawn; Clause agreed to.