§ Order for Second Reading read.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Attorney General.)
§ SIR HENRY JAMES
, in referring to the small number of hon. Members present, stated that he was aware that many of his hon. and learned Friends were anxious to have taken part in the discussion upon this Bill, which had come on in rather an unexpected manner, the right hon. Gentleman the Chancellor of the Exchequer having stated a few days ago that he could not tell exactly when it would be brought forward. He should certainly have expected that the second reading of such an important measure would not have been taken without Notice; nevertheless, he should not feel justified on that occasion in moving the adjournment of the debate. He should, however, briefly state his view of the subject. The measure appeared to him to be a great advance upon that of last 1751 Session; and it was evident that the Commissioners to whom it had been submitted had discharged their duty carefully and with great ability. He thought, in these circumstances, that but few would wish to subject the majority of the provisions of the Bill to a lengthened criticism. Looking at the Bill, as a whole, it seemed to him that its acceptance by the House would be a great public benefit. So far as he could assist in the passing of the measure, the Government would find no undue opposition from him, and he trusted that no unnecessary obstacle would be thrown in the way by hon. Members on his own side of the House. But there were clauses which required full and grave consideration, and which contained a good deal that was new. The House was aware that by the Bill all repression of crime by means of Common Law must cease, and that there would exist simply the protection given by that measure and by those Statutes which were unrepealed. For his own part, he would be rather disposed to keep the Common Law in existence still. The Bill, also, was not complete. It should either be a codification or consolidation of the law to every purpose, or it should not exist at all. But this Bill was incomplete as a Code or Consolidation Act; for instance, in it there was no mention of such an assembly as that which was repressed by the Irish Convention Act; though he (Sir Henry James) knew that popularly—and especially among the working classes—there was a strong desire to have a complete codification, so that they might know what the law really was. Power was given to the Judges to regulate procedure, pleading, and practice, without the consent of Parliament having been obtained, and he considered this likewise extremely undesirable. Indeed, when the fitting moment came, he should ask the House to discuss whether it was disposed to delegate so important a function of its own to others? The Bill, in the 13th clause, contained a provision in which he could not concur. It was one which would give power to a Judge, in any case where he considered that the offence charged, even if committed, deserved merely nominal punishment, to discharge the prisoner without a verdict. That was a very great power to place in the hands of a Judge. He would sup- 1752 pose the case of a Judge who thought, for some reason, that the Legislature had exercised a wrong discretion in rendering certain Acts criminal. In such a case, the power vested in him might be exercised. Then, again, there might be political prosecutions; and if the Judge entertained strong views on one side or on the other, he might, by virtue of this provision, prevent the case going to the jury. Theoretically, the clause conferred a power in favour of the Crown which might be arbitrarily exercised. It might be said that in many cases it would be a hardship to convict a man for a trivial offence which would deserve merely nominal punishment; but in such a case it should be left to the counsel for the Crown to withdraw, or to the jury to acquit. Then, again, by Clause 537, it was sought to give the Attorney General for England a new power—namely, that of staying criminal proceedings at any time before trial on his own motion without investigation. The clause, if adopted, would make the Attorney General master of every prosecution, and would enable him, if he thought fit, to prevent any person prosecuting in the name of the Crown. He was very unwilling, on the Motion for the second reading of the Bill, to go into a discussion of its clauses; but he could not help pointing out that it seemed to be very imperfect in its definition of offences. By way of example, he would mention the definition contained in Clause 216 of the crime of bigamy. Bigamy, it said, was to mean the act of any person who while any valid marriage, wherever contracted, subsisted between himself or herself and any other person, went through the form of marriage with any other person in any place in any part of the world. The result of that would be that a British subject born in India—a Mahomedan or Hindoo—who might legally in his own country marry more wives than one, might be prosecuted for bigamy if he visited this country. There was this further provision—that even belief, with cause for belief, in the death of wife or husband occurring more than seven years before the contracting of a second marriage would not protect a person from being prosecuted for the crime of bigamy, if it happened that the first wife or husband was living at the time of the second marriage. To this view of the 1753 law he strongly objected. The provisions of the Bill in relation to unlawful assemblies and rioting also appeared to him open to objection. In reference to the former, the learned Commissioners stated in a memorandum that their definition probably went a little further than the present law. It appeared to him to go a great deal further. If three persons met to carry out a common purpose, however good, and if they conducted themselves in such a way as to cause any person in the neighbourhood, however timid or foolish, to fear a disturbance of the peace, those three persons could be held to constitute an unlawful assembly, and might be liable to a year's imprisonment. But even that provision was harmless compared with the one on rioting. If a Justice of the Peace approached a gathering of 12 persons as near, in his own estimation, as he could safely come, which might not be within earshot at all, and read the Riot Act, those 12 persons, although they might not know that the Riot Act had been read, if they did not disperse, would be liable to penal servitude for life. These instances would suffice to show that the Bill, although, on the whole, framed with a care, a consideration, and an ability which entitled the learned Commissioners to their best acknowledgments, was, nevertheless, one which ought to be received with great caution, and carefully scrutinized. Among minor matters calling for attention, he might point to the great amount of power which the Bill granted to the Court rather than to the jury. There was this further point to be considered—whether the punishments under the Bill were not, in many cases, too heavy in proportion to the offences. Even in cases where the same punishments had existed before, the House ought not, therefore, blindly to accept them. With regard to whipping, he should be sorry to see enacted, or reenacted, so many instances of that corporal punishment for offences without due deliberation. These were some of the matters which he thought would form the subjects of discussion when the House went into Committee on the Bill. He believed that the measure, whether amended then or after further consideration, would prove beneficial to the public. The difficulty, however, of passing in one Session a measure of some 1754 600 clauses, many of them pregnant with important matter for discussion, was obvious. Hence the suggestion he made, which his hon. and learned Friend the Attorney General seemed rather to have misunderstood, that the Bill should be disposed of in parts. Parliament taking up the work of revision one Session at the point where it had been loft the previous one. He trusted his hon. and learned Friend would not insist upon the whole Bill or none this Session; but he could assure him that, in making the suggestion he did, he was animated by no feeling of hostility to the Bill, but only by a desire that the House should not overlook in it any point worthy of its attention.
§ MR. GRANTHAM
thought the speech which his hon. and learned Friend the Member for Taunton had just delivered was the best answer that could be given to that which he delivered a few nights ago. The objections he had urged might be met by Amendments which, when placed on the Paper, would be considered by the Government. Many of them, no doubt, would be accepted; but they would not require much discussion, and in that way very great progress would be made with the Bill. A Bill of this description could only be competently discussed by legal men; and having undergone the most careful consideration for three or four mouths of some of the most eminent Judges, it was not necessary that the clauses should be discussed over and over again. If everyone who spoke kept to the point, he did not see why they might not in seven or eight nights dispose of all the main points of the Bill. With regard to bigamy, for instance, the objection of his hon. and learned Friend might easily be disposed of by an Amendment which he might place on the Paper at once. And so on, with regard to Rules and Orders. It would not take long to discuss that matter. He thought it most desirable that a large discretion should be given to the Judges to order whipping, as the infliction of that punishment had proved very beneficial. As to Judges discharging prisoners without passing sentence, that was giving them only a little more extended power than they had at present, when they could discharge them upon passing a nominal sentence. In conclusion, he hoped that hon. Gentlemen who took part in this discussion 1755 would follow the example of the hon. and learned Member for Taunton, and make short speeches, so that there might be a possibility of passing the Bill this Session.
§ MR. HOPWOOD
remarked, that this Bill was a great improvement on the Bill of last Session; it was more simple in language, and went more directly to the point. They might, therefore, congratulate themselves that they had not been induced to pass the Bill of last year en bloc. The Bill, if passed, would be a great act of legal reform, which would reflect lustre upon the Session, and be a great advantage to the public. He feared, however, that at the "Massacre of the Innocents" the Bill would be found to take its place in the limbo of abandoned Bills. But in that case it would be the Government who would be responsible. They could pass it by declaring it to be their winning horse, and if they did so he would give them all the aid in his power. They could pass it by saying they thought much more of it than of the Army Discipline and Regulation Bill, the Bankruptcy Bill, or the many other Bills which, if persevered in, would be obstacles to the passing of this measure. Seven days of Parliamentary time had been spoken of for passing the measure. But where would they get seven days? If they meant to pass the Bill, they ought to put it in the front of battle; but he did not see any sign of that. They had begun the discussion to-night by an accident. The measure had been seven or eight months before the Commissioners, but it had been before the House only a month. He was not going to act on the servile doctrine that because Judges had gone through it he must take the measure on trust. Judges had too great a proneness to settle things as matters of arbitrary law. On the perfection with which the House did its business in discussing this Bill during the present Session the law of England would probably depend for the next 20 or 30 years. They were opening up, not questions of mere technicality, but matters of vital concern to everybody in the community. He trusted that the non-legal Members of the House would take part in the discussion of the clauses. In the case of infanticide a new offence was created, and this was a subject which would certainly give rise to con- 1756 siderable discussion. The Bill professed to be a Code. In his opinion, however, a Code ought to be complete; whereas this was an incomplete one, for one section expressly said that people indictable under other Statutes were to remain so. Would his hon. and learned Friends the Law Officers of the Crown state what Statutes were, to their knowledge, outside the present measure? The question of examining prisoners, again, was said to be likely to be debated at considerable length. He thought the Bill ought to have been dealt with by a Select Committee of that House, and not by an extraneous body, however eminent.
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
said, he was anxious to disabuse the minus of hon. Members of the idea that the Government was desirous that this Bill should pass without full consideration. The House was not asked to accept the measure without a complete examination. What had been done with advantage to the House was, that trained lawyers and distinguished Judges had gone through that which they believed to represent the Criminal Law of this country, and had presented to Parliament the result of their labours. But the House was not called upon to take the result of those labours without careful examination. It was admitted by the last speaker that this Bill would effect a great legal reform and confer a benefit on the whole community; but, then, many of the observations he had made seemed to have been intended to show the impossibility of passing any Code whatever, and that they must at once abandon their attempt, because the magnitude of the subject was so great that it could never be submitted to complete discussion. Now, there was a great deal of that measure which would be accepted by the legal Members of the House without discussion—that was to say, the Code, as presented to them, would be taken to represent to the minds of lawyers that which was the existing law. Of course, there were some points on which differences of opinion would arise. The hon. and learned Member for Taunton had suggested one of them. But that was a matter for discussion when, they went into Committee, rather than upon the second reading of the measure. What was the mode in which they were to deal with the Bill? If the House were to go through the whole of 1757 the Criminal Law of England in order to see whether it could not amend every part of it, it would be impossible to pass any Code. But if the Bill were approached in the spirit in which the hon. and learned Member for Taunton (Sir Henry James) had approached it, the work before them might be accomplished, and the real points of difficulty which would arise would be found comparatively few. With regard to the definition of bigamy, to which the hon. and learned Member for Taunton had referred, the object of those who had framed this Code was not to alter the law of bigamy, but to present it in a form in which it should represent the existing law of England; and those who had charge of the Bill would be only too glad to accept any verbal Amendment which would bring the definition of bigamy contained in the Bill into closer conformity with the existing law, if it was really faulty. He could not, however, concur, on the question of principle, with the hon. and learned Member for Taunton's view of the law of bigamy. The hon. and learned Member for Taunton appeared to think that an honest belief that the first marriage had been dissolved by death, although the second occurred within the limit of seven years, was a complete defence to a charge of bigamy. Now, he did not believe that was the law; but thought that, for wise purposes, the Legislature, considering the importance of the marriage tie and the ruinous results to the supposed wife and children which might ensue from the supposed marriage, had made the law of bigamy very strict. And though the question might not be free from doubt—and Judges had differed about it—that was a subject which might be fairly discussed in Committee, and was certainly no reason why they should not attempt to define what the law of bigamy was. On the contrary, if there was one branch of the law more than another as to which uncertainty was an evil, it was that relating to marriage. Then, again, with regard to unlawful assemblies, if the definition contained in the Bill was wrong, any hon. Member could propose in Committee to amend it. If they were to postpone the consideration of such a measure as this till some happy Session which would be so perfectly free from other and more exciting topics that the House could devote all its time and at- 1758 tention to the passing of a Criminal Code, they would have to wait till a time very closely resembling the Greek Kalends. He thought, therefore, that they had better apply their minds to the work now that it was actually before them, oven although the audience might be thin, as it was apt to be when strict questions of law were being discussed. He admitted that the definition of the law of murder, as to which there was considerable difference of view, could not be disposed of without discussion. To leave so serious a crime undefined was attended with very grave inconveniences; and now that a Bill was brought forward which attempted—with what success would be seen by-and-by—to define it, the House would do well to give it their best consideration. The only chance to obtain uniformity in the law was by the adoption of a Code. His hon. and learned Friend the Member for Taunton objected to the authority sought to be given to the Judges to frame rules as to practice, pleading, and procedure. Such a power they exercised already; and if it were decided that those rules should be the subject of enactment and be embodied in the Bill, what possible hope, he asked, was there that the Bill could pass this Session? It was, in his view, sufficient that the rules should be laid before Parliament, and that anyone of them could be objected to. The hon. and learned Gentleman opposite (Sir Henry James) expressed a desire that the Bill should pass, and yet he was in favour of putting it off to another occasion. In that suggestion Her Majesty's Government could not concur. The law ought to be certain; it ought to be known; and if it was disobeyed it ought to be enforced: and it was because the law ought to be known and enforced that the Code was presented to the House.
§ MR. MORGAN LLOYD
regarded the Bill before the House as a great improvement on that of last year. It was capable of improvement; but, taking it altogether, it would, he thought, commend itself to every lawyer. Last year's Bill attempted to define everything, but really defined nothing; while the definitions of the present Bill were, upon the whole, accurate. What he would suggest to hon. Members on both sides of the House, and especially to every legal Member, was to go carefully 1759 through the Bill, section after section, and to put down opposite to each section what they objected to, and what Amendments they proposed; and, probably, no hon. Member would come forward with so large a number of Amendments as would seriously impede the progress of the Bill through the House. There were, however, defects in the Bill which ought to be removed. He thought it extended too far the latitude given to Judges. Under it, their discretion would range from such a punishment as penal servitude for life to the infliction of a day's imprisonment. A most dangerous power was also given to the Committee of Judges to frame Rules of Procedure. That extended to alterations in the principles upon which the Criminal Law was administered. "Procedure," as the Bill stood, included all the provisions relating to the conduct of a trial, the examination of witnesses, and even the examination of the prisoner, all of which were subject to be altered and modified by the Rules. He thought these powers should be limited and defined. He objected to that part of the Bill which enabled prisoners to give evidence, and was of opinion that the principle which it involved should be eliminated from the Bill and be subjected to discussion by itself. If that part of the Bill were removed, together with the provisions relating to a Court of Appeal, the chances of the Bill becoming law this Session would be improved. He intended to do all he could to facilitate the passing of the measure.
§ MR. GREGORY
thought the Bill a model of draftmanship, and although it would require alterations, they must be very carefully considered; otherwise the measure would be injured. He held that it was incumbent upon them to make the law, so far as they could, clear and intelligible, and that hon. Members should promote the adoption of the Bill by every means in their power. There was, he thought, a general concurrence admitting the value of the principles of the Bill, and he hoped that its provisions would be discussed in a liberal spirit. Hon. Members ought to consider how important were the matters with which the measure dealt; and he hoped that they would not deal with the details or Amendments as was sometimes done by the votes of those who had heard no- 1760 thing of the discussion of them. Even if they worked hard, the Bill would consume considerable time before it was passed; as, no doubt, there were many details in it which would affect not only the liberties but the lives of the Queen's subjects, and these ought to be examined carefully, but with no obstructive motive. It had been said in some quarters that heavier penalties than could at present be inflicted were meted out to offences by this Bill; but it should also be noted in many instances the penalties were mitigated.
§ MR. HERSCHELL
hoped he should not be suspected of desiring to obstruct the Bill. He had a Motion on the Paper relating to the subject for a long time, and he therefore rejoiced when it was taken in hand. It was to be remembered that fair criticism on the second reading might be calculated to facilitate the passing of a Bill. The Government ought to keep in view the difficulties they had to meet, for they could not be evaded by ignoring them. It was no use thinking that the Bill would pass through the House without very considerable discussion, as he was quite sure that such a view could only be doomed to disappointment. It was true that the Bill was, in some sense, a codification of the law; but they could not be expected to codify obsolete absurdities, and, therefore, the Bill was, in a great degree, legislative. Even although they might not altogether like the Bill as drawn, unless they thought it would do wrong, they should abstain from indulging in verbal criticism; otherwise, it would be impossible to codify the law at all. In saying that, however, he wished the Government to remember that many objections would be taken to the Bill in detail; and unless they had taken that into account, he warned them that they had better abandon the Bill for the present year rather than waste time in discussing it. It was useless to think that the Bill would be easily got through. It was open to those who objected to capital punishment, and those who objected to Hogging, to raise those questions; while the examination of a prisoner, which the Bill proposed to permit, and the Court of Criminal Appeal which it set up, as well as the extension of the jurisdiction of Quarter Sessions, must necessarily lead 1761 to discussion. He would, however, rather postpone codification than not deal with procedure and other matters which it had been suggested might be deferred. If the Bill was to be gone on with, it was inevitable that a good deal of time must be given to it. He did not for a moment say that the Bill was not satisfactory and extremely well done; but that was no reason why they should not criticize it in provisions which they thought objectionable. For example, he thought that the provisions with respect to bigamy might call for consideration. He quite agreed with the Solicitor General that the existing law with regard to bigamy was very much open to doubt, particularly upon the point with regard to seven years' absence. They had one decision one way, and one decision the other way, and the unfortunate fact was that the framers of the Bill proceeded upon the worst of those decisions, and the one least consonant with common sense. They had made it a criminal offence to re-marry within seven years, even with reasonable ground for believing that husband or wife was dead, if it should turn out not to be the case. And he could not conceive why the 64th section should make it unlawful for a man to take peaceable possession "by night" of that to which he believed he was lawfully entitled. In some cases, men could be more severely punished for a conspiracy to commit an offence than for actually committing the offence itself. This, he thought, was a defect which ought to be remedied. With regard to the pleading practice and procedure, he was of opinion that the Judges ought only to be allowed to settle by means of rules the details of the general plan which Parliament had laid down. He might add, in conclusion, that his sole object in making these few observations was to assist, and not to obstruct, the passing of the Bill.
§ SIR GEORGE BOWYER
said, it was not the fact, as was stated by the hon. and learned Member opposite (Mr. Hopwood), that those who supported the Bill thought that it ought to be passed without discussion. On the contrary, he held that all the supporters of the Bill entirely concurred in the view expressed by the Solicitor General that the House should not accept the measure without complete examination. He (Sir George 1762 Bowyer), of course, entertained the greatest respect for the opinions of the learned Judges who had considered the Bill, yet it was not for the House of Commons to delegate its authority to Judges or anyone else; and it was the duty of the Members of that House to do the best they could as legislators, without any authorities whatever. The hon. and learned Member for Beaumaris (Mr. Morgan Lloyd) had started the idea of leaving out some of the most important parts of the present measure in order that they might be dealt with in a separate Bill; but he could not consent to that proposal, because, in adopting it, hon. Members would be abandoning the most necessary part of their duty; for the Code ought to be a complete Corpus juris of the Criminal Law of England, and unless it was complete it would be worse than nothing. Again, unless the whole measure were postponed, until the parts alluded to by the hon. and learned Member were settled, the remaining portion would be no longer a Code. It would be but an incomplete work, and the House would do better to let it alone. The hon. and learned Member for Durham (Mr. Herschell) had suggested that as the punishment of death was included in the Code great delay might arise, because anyone who objected to that punishment as an abstract principle, would raise a discussion; but the question whether it should exist was so large as to require separate discussion, and he would suggest to hon. Members who might have an objection to its infliction that in passing this Bill their opinion would in no way be compromised, inasmuch as there would afterwards be time to raise that great question which branched off into so many others, political, religious, and social. For if everyone was to ventilate, upon the discussion of this Bill, his own opinions and crotchets with regard to the punishment of death and other matters, it would be impossible to go on with the measure with any prospect of getting through the work either in the present or in any other Session. It would be well if, in the discussion of the question, hon. Members would adopt a system somewhat different to that which was sometimes assumed. He meant a more colloquial form of discussion, something like that which prevailed in the Venetian Senate; of course, not the form in use in that Senate, where no one was 1763 allowed to make a speech, but had to state his opinion only, after the manner of a Judge. It would be easy for hon. Gentlemen to express their opinions briefly, in a colloquial, quiet manner, without making long oratorical speeches. He agreed with the Solicitor General as to the extreme desirability of passing the Bill in one Session; for if it were postponed from one Session to another, possibly from one Parliament to another, it would be but a piecemeal production, and would lack that unity which a Code ought to possess. There were instances in history of Law Codes, such as the Code of the Emperor Justinian and the Code of Napoleon; and it would be found that those, and other like enactments, had always been passed in one Act. Had this not been so, they would have been altered and maimed, and would not have had the same unity as a Corpus juris ought to have—namely, one harmonious whole. Therefore, he trusted that the House would endeavour by every means possible to pass the measure during the present Session, a result which could only be arrived at by their looking at it as a matter of business and not as one of debate. He admitted that the Bill introduced last year had appeared to him to be imperfect, inasmuch as it contained inaccuracies and absurdities obvious to all lawyers, most certainly to those engaged in the administration of Criminal Law; but it had since undergone a most salutary change, and by the industry, labour, and learning of those appointed to revise it, it had been converted into a piece of legislation of which the country and the Legal Profession had every reason to be proud. Notwithstanding that there might be points which would require careful consideration, he doubted whether the Amendments of private Members, with a few exceptions, would be useful; and he believed that if, instead of proposing them, they would submit those Amendments to the Attorney General or Solicitor General, more good would be done. He did not mean to say that hon. Members would be bound to submit to the opinion of the Law Officers of the Crown; and, in his judgment, if hon. Members considered it their duty to persevere with their Amendments contrary to the opinion of the Law Officers of the Crown, they would only be exercising their unquestionable right, which, very 1764 properly, ought to be exercised. The Code must be, not the act of an individual, but of the House of Commons, and the House of Commons must consider it and not delegate its powers to any particular Government. Some of the criticisms bestowed upon the Bill appeared to be worthy of great consideration; and, for his own part, it seemed to him that the penalties contained in the Code were unnecessarily severe, and that sufficient margin was not left for cases in which mitigation of punishment might be advisable. This power of mitigation must be left to someone; for it was impossible to be acquainted at all with the administration of criminal justice without seeing that in a great many cases there were circumstances which could not be embodied in any Code or law, but which must be left to the consideration of the Judge who wished to administer justice tempered with mercy; and to the Judge, therefore, power would have to be given to sentence a prisoner to less severe punishment, under some circumstances, than it would otherwise be. With regard to the views expressed by the hon. and learned Member opposite (Mr. Herschell) on the crime of bigamy, he did not think he had shown sufficient grounds for enabling persons to contract another marriage within the seven years expressed in the Bill, considering the serious effects a second marriage might have upon the life of the former wife or husband. After seven years, there might be a fair presumption that the wife or husband was dead; but still the second marriage would be invalid and the children illegitimate. The first marriage would, of course, be the only valid one; and although the person married again would not be indicted for bigamy, the children, as he had said before, would be illegitimate. All this showed how important it was to limit the power of contracting a second marriage. With regard to the other point raised by the hon. and learned Member for Taunton (Sir Henry James), as to whether foreign subjects of Her Majesty would be liable to be indicted for the crime of bigamy when they came to this country for the commission of an act which was not contrary to the law of their own country, he (Sir George Bowyer) thought that the less the House went into details of the kind at that stage of the Bill the 1765 better. He thought that hon. Members should approach the Bill with a determination to put their shoulders to the wheel, and with the endeavour to get it through this Session; that they should allow their own personal opinions and convictions to remain in abeyance, and restrict themselves to a quiet mode of debate, with the certainty that, if need be, a Bill could afterwards be brought in to amend the Code. By that means, the Bill could be passed that Session, and it would then remain a great honour and trophy to Her Majesty's Government, and all who had taken part in facilitating its passage would be able to look back with satisfaction upon their work.
§ MR. WATKIN WILLIAMS
also hoped they would pass the Bill this Session. If obstructions were resorted to, the Bill could not pass. If the Government were really in earnest, and showed their earnestness by giving a reasonable time for discussion, bethought they could pass the Bill this Session. It would be a dereliction of duty, if Members abstained from discussing those important principles on which the Bill would alter the law. For instance, it would be a mistake to pass without discussion that part of the Bill which would allow the accused to become witnesses, or that part which would allow an appeal in criminal cases. But he thought the House would agree with him that if they were to discuss every doubtful principle of the law with the view of amending it by this Bill codification would become impossible. The law should be accepted as it at present stood, and hon. Members should not introduce the discussion of principles such as punishment by the lash and capital punishment. The Bill had been crude when first brought up; but the Government had since then obtained the assistance of lawyers the most able, the most experienced, and the most trusted, for the purpose of drafting and completing it. This was not a Party measure; but sometimes measures were calculated to bring credit to the Government, and those who were against the Government were thereby greatly tempted to prevent the Government of the day having the credit. He hoped hon. Members would rise above that feeling, and be influenced by the sentiment that the credit of Parliament was involved in this measure. 1766 He hoped that, for the credit of Parliament, the Bill would be passed this Session.
§ MR. CHARLEY
congratulated the Government on the introduction of this Bill, and the House on the spirit in which the Bill had been discussed on both sides. He hoped it would become law this Session. Portions of the Bill were deserving of great approval, the definition of counterfeit coin, for example. The hon. and learned Member for Stockport (Mr. Hopwood) had spoken of the provisions relative to infanticide in the Bill as if they were entirely new. But he would remind the House that similar provisions were contained in a Bill—the Infanticide Bill—which he had carried in four successive Sessions through the second reading, and he rejoiced that the Code contained them. There were a few points in the Bill to which he felt obliged to take exception. He objected to the omission of the Lord's Day Act, which was not, as had been said, an obsolete Act. He was opposed to the introduction into the jurisprudence of this country of the system of examining the accused, which was one of the worst features of the French Criminal Code. The provisions of the Bill relating to a new Court of Appeal would require very careful discussion, as the motions for new trial in criminal cases which they proposed to permit might introduce into our Criminal Law all the subtleties, refinements, and delays of nisi prius. In his own experience, the clemency of the Crown had always been exorcised in such a manner as to meet any defeat of justice in the verdict of a jury in a criminal case. Though the Bill required close consideration, he sincerely trusted it would become law during the present Session.
said, he did not wish to speak in a hostile way of the Bill, but warned the Government not to suppose that the measure could be passed without a great deal of verbal criticism. He feared that the Government would find, when the Bill should come to be considered in Committee, that so many Amendments would be proposed that it would be exceedingly difficult to carry it this Session, especially if they intended to retain the new proposals contained in the measure. There were three most important innovations suggested in the Bill which would require the most 1767 careful consideration. A change was proposed with regard to punishments which he cordially approved—he referred to the rule which would limit a cumulative punishment by imprisonment to two years. This was a step in the right direction, as any sentence of imprisonment beyond 18 months was terribly severe; at the same time, he (Mr. Cole) was most anxious that Judges and Recorders should have the power, which formerly existed, of giving three years' penal servitude. At present, nothing less than five years could be given. He should also wish that a power should be given to give five years' penal servitude in cases where a former conviction was proved. At present, nothing less than seven could be given, which, in his opinion, was often much too severe a sentence, where the former conviction was for some trivial offence, and, perhaps, many years ago. Of the provisions relating to bigamy he could not express approval. They would require to be altered in several important particulars. So far as that part of the Bill which was merely a codification was concerned, he had no doubt the House would be anxious to assist the Attorney General in passing the measure, though even here there was a good deal of alteration which required consideration; but with regard to the changes that had been made in the law, opinions were likely to be diverse, and it might, therefore, be wise to throw them out altogether.
§ MR. BULWER
reminded the House that the question under consideration was whether they should read the Bill a second time. He had heard no objection to this course as yet; and he thought a great many of the remarks they had listened to might, with advantage, have been deferred until they were in Committee. As there appeared to be such a general desire to pass the Bill, it would, perhaps, be as well to accept the statement of the Commissioners, that the law at present was as it was represented to be in the Code, and to leave Amendments and innovations for future consideration.
§ SIR ANDREW LUSK
said, a good many lawyers in the House seemed to think that nobody knew anything about justice but themselves. But the public knew what justice was, and required some alteration of the present state of things. There 1768 were, no doubt, difficulties in the way; but he hoped the House would not lose this opportunity of dealing with the subject. He therefore appealed to the legal Members not to delay by criticism, suitable for Committee, the passing of a Bill to secure a much-needed improvement in the administration of the law.
§ MR. W. S. STANHOPE
agreed with the hon. and learned Member for Penryn (Mr. Cole) in the suggestion that, in Committee, the minimum sentence of penal servitude should be reduced to three years.
§ MR. MUNDELLA
thought there was a general consensus of opinion as to the opportuneness of the Bill before the House, and he hoped they would all facilitate its progress as much as possible. There had been for some time a widespread feeling in its favour, and no one could doubt that if it became law, as he hoped it would, there would be a great improvement in the administration of justice.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
Sir, I do not propose to offer more than a very few observations upon the debate to which we have listened. When I came down here, I expected that there would be some objection raised to the principle of codification generally; but, so far from that being the case, there has been, on the part of the House, nothing but universal consent to that principle. I might also have expected that, although the Bill has been examined by a great number of hon. Gentlemen most competent to form an estimate of it, and to discover any defect which it might contain, some material fault might be pointed out; but that has not been the case. As a matter of fact, no material defect has been found in it. When the discussion commenced I thought it possible that some hon. Members, although not open opponents of the measure, might have a lurking inclination not to advance it, perhaps to oppose its progress; but, on the contrary, there has been shown a general, and, I am sure, a bonâ fide, disposition to facilitate the passing of the Bill into law. Before I comment more particularly upon the measure I will make a remark upon the difference that has been noticed between the measure of the present Session and that of the last. Some hon. Members have drawn a comparison between the two, 1769 very much to the disadvantage of the latter; hut, in my opinion, the strictures on the Bill of last Session are hardly merited. I do not think it was open to the objection of vagueness that has been urged against it, nor do I think it was open to the objection that it inflicted graver penalties than the law previously authorized. But I have no doubt that the Bill is a great improvement upon that of last Session; for, after all, it could not have been otherwise, considering the nature of the Commission to which it was relegated and the immense amount of labour bestowed upon it by that Commission. My hon. and learned Friend the Member for the Denbigh Boroughs (Mr. Watkin Williams) is rather offended that I, on one occasion, offered some sort of apology for the Commissioners who brought so much learning to bear upon this measure. No doubt, I was very wrong in doing so, in the view of the hon. and learned Gentleman. But I did nothing of the kind, and, therefore, I think my hon. and learned Friend must have entirely misunderstood me; for I said that the Commissioners by whom this matter had been investigated, and who were asked to bring to bear upon it their learning and ability, were men of the very greatest eminence to be found in this country. I said, however, that it was a matter for regret that the Lord Chief Justice of England had not been one of the authors and revisers of the Bill; and I do think that if he could have been one of the Members of the Commission it would have given very great satisfaction. But it is one thing to regret the absence from the Commission of a lawyer so experienced, so eminent, and so illustrious as the Lord Chief Justice, and another to offer an apology for the Members of the Commission. We are to-night engaged in discussing the principle of the Bill, and in that respect the discussion has been very satisfactory; for to the principle of the Bill no one has in the slightest degree objected, while, as regards the details, these ought properly to be reserved for consideration in Committee. The object, of course, which the framers of the Bill had in view was to reduce a portion of the Criminal Law to reasonable dimensions by codification—I say a portion of the Criminal Law, because, if you attempt to do too much, you will do nothing; and the intention has been to reduce it 1770 within a reasonable compass, and, at the same time, to make it plain, simple, and intelligible to minds uneducated to the law. Seeing that some hon. Members who are not lawyers have exhibited an interest in this measure, I am very desirous that their interest should continue, and that they should take part in its discussion; for if I find that the law has been made clear and intelligible to them, I shall be certain that one of the objects which the Government had in introducing the Bill has been attained. If we do nothing more than make the Criminal Law plain, simple, and easy of comprehension, we may not accomplish anything very heroic, but we shall, I think, do a great good to the community; because it is desirable that all law, especially the Criminal Law, should be made certain and intelligible to the people, so that they may understand what acts are right, and what are prohibited, and what acts, if committed by them, render them liable to punishment. The Bill is, substantially, drawn upon the lines of the Bill of Sir James Stephen, to whom the greatest credit is due. Besides codifying and simplifying the law, the Bill was designed to effect considerable improvements and many marked changes of the law. Some hon. Members had objected to the proposed changes, and had given their opinion that it would be well for the Government to be content with codifying the existing law only and allow the alterations to stand over for a more convenient season; but I entirely dissent from that view, because I think you would be but perpetuating absurdities in many instances if you were to re-enact the existing law, although you might reduce it in compass and simplify its language. But if there are grave and obvious defects in the law, whilst you are framing a measure of this kind why should you not remove them? Once you are convinced that any alterations of the law are required, I do not, for my own part, see that it would be wise to neglect your opportunity of introducing them. Now, the Bill introduces several radical alterations, and I thought that perhaps during this discussion I should hear very many objections to them. But, instead of that, I have only heard objections to one or two of the proposed changes. I will mention some of the alterations proposed by the Bill. There 1771 is an alteration of the law as regards cumulative penalties and minimum punishments, and a provision with regard to the doctrine of a woman being supposed to act under compulsion of her husband, which doctrine had been swept away; then there is an alteration in the distinction between misdemeanour and felony, to all of which no objections have been raised. Again, there is a limitation of the acts to be construed into the crime of murder; and that, practically speaking, is one which makes a man liable to be indicted for murder if he has intended to take away life, and in that case only. Then there is the alteration in the law with regard to infanticide, and that change has been met with entire approval. Further, there is a simplication of the law of theft, placing it on an entirely different basis from that on which it formerly stood; and the simplification of all the Acts involving dishonesty and forgery. No objection was raised to that. Then we have the Court of Criminal Appeal, and the alterations giving a new trial in criminal cases, and providing for the examination of prisoners; besides that most important alteration of the law which makes criminal pleading—now so cumbersome and, I will add, absurd—perfectly plain and easy. If there were any serious objections to this measure, we should have heard them; but we have not, and are, therefore, encouraged to believe that they do not exist. Some hon. Members, however, have objections to three of the proposed changes—namely, the proposal to alter the Courts of Criminal Appeal, and to give an appeal in criminal cases where such appeal is not now allowed; the provisions with regard to new trials; and, lastly, those with respect to the examination of prisoners. Now, I say, without hesitation, that all these changes are of a radical character, and demand not only discussion, but the very gravest and earnest consideration, before they are passed into law. But there will be no difficulty in discussing them, for the Government does not grudge the time which will be necessary for that purpose; and such questions, therefore, can be disposed of, I will not say at once, but after a discussion of reasonable duration. I thank the hon. and learned Member for Taunton (Sir Henry James) for his generous and encouraging 1772 speech, in which he has suggested that there were some difficulties as regard the sections which relate to bigamy, to unlawful assemblies, and to riot. So far as bigamy is concerned, I have followed the objections of my hon. and learned Friend to the definition of the crime, and during the course of the discussion I have not discovered the answer to them; but then I will not say an answer does not exist, because I have the greatest confidence in the framers of the Bill, and doubt not that if I put myself in communication with them an answer will be furnished. With regard to unlawful assemblies and riot, I do not quite go along with my hon. and learned Friend; but the law on this point being but a repetition of the old law, there can be no need for any lengthy discussion about it, and if he convinces me that his view is a correct one, a few strokes of the pen will do all that he wants. Of course, it is very important, as was said by my hon. and learned Friend the Member for Durham (Mr. Herschell), to consider at this stage what course will be taken and what chance there is of passing the Bill. I myself think it has a good chance, because it has met with universal approval, not only in this House, but in the Press and in the country generally. I think the House will come to the conclusion that it would not be wise or right to discuss at any length what I may call the drafting or codification part of the Bill, that part of the Bill which merely states the existing law, and renders it simple; and it is my opinion that the House will do well to take the plain draft which has been very carefully prepared by persons most competent to deal with it. If you accept the codification of the Bill, there only remain to be dealt with the alterations which it effects in the law; the whole of them, I think, are on the Table of the House and have been read by hon. Members, and it does not appear to me that there will be much discussion upon them. The great bulk of them have at once been accepted as a vast improvement; and although, with regard to the rest of them, a discussion will take place, it need not be of undue length. I hope the Bill may be proceeded with in the spirit of its framers, and in that of the hon. Members who have this evening expressed a desire to 1773 facilitate its passage into law. On my part, certainly, I will undertake to give every consideration to the Amendments which may be suggested; but I hope such Amendments will be placed by hon. Members on the Table as soon as possible. Further, I trust that they will not be left for verbal communication, because it is very much easier to deal with them in the usual way than when they are sprung upon one, so to speak, in the Lobby of the House, or at dinner time, or even in the course of the debate. If that is done, and if the Government, as I have no doubt they will be, are willing to yield to every reasonable Amendment without trouble and without any undue anxiety to carry their point by the mere force of numbers, then I think the Bill will rapidly advance.
§ Question put, and agreed to.
§ Bill read a second time, and committed for Monday next.