HC Deb 08 March 1882 vol 267 cc402-40

Order for Second Reading read.


, in moving that the Bill be now read a second time, said, that it embodied in great measure the result of the labours of the Commission which had sat to consider the subject of our Criminal Law several years ago, and it was very much to be deplored that the labours of that Commission had not yet been utilized for the Public Service, though, no doubt, there had been many practical difficulties in the way of their recommendations being brought about. The present Bill was an attempt to make use of a large portion of the Commission's labours. On the Commission were four eminent Judges—Lord Blackburn, the late Lord Justice Lush, Mr. Justice Barry, and Mr., now Sir James, Stephen. Some of the recommendations of these learned Judges were also embodied in another measure, which would be referred to in the discussion on the present Bill—that of the hon. and learned Member for Chatham (Mr. Gorst). In order to take out of the Code as settled the portion which related to procedure, which mainly constituted the present measure, it was necessary to introduce clauses of adaptation. Those would require consideration, and possibly there might not be entire unanimity as to them, though he had bestowed some care upon them. In the Speech from the Throne, at the commencement of the Session, allusion was made to this subject, and a Bill was promised; but he trusted his hon. and learned Friend (the Attorney General) would not attribute to him any want of respect in proceeding with a measure which, so to speak, had been "on the stocks" for some time before that announcement, and which he desired to launch before the House. Almost everything submitted as a matter of procedure by the Commission to the Government of the day was included, and as he had taken the course of adopting, wherever possible, the very words of the Commissioners, he trusted the Government would not feel it their duty to oppose the Bill. The first point was that the measure produced this useful effect—it defined the ground upon which arrest on a criminal charge might be made with or without warrant. Then it proceeded to enlarge the jurisdiction of the Courts of Quarter Sessions. It had long been thought that the work of the Assizes might be considerably and usefully relieved by certain cases being transferred to Courts of more limited or inferior jurisdiction, though there was the objection that those Courts were not always presided over by men trained for the purpose. The Bill proposed that Courts of Quarter Sessions should have power to try cases of robbery with violence, assault with intent to rob, and burglary. This would greatly relieve the work of the Judges of Assize. The Courts indicated already dealt with similar cases of crime for which as high punishments were inflicted. It became important, however, to see the effect of that transfer. It would give those Courts power to inflict penal servitude for life. That, he admitted, was a dangerous thing to do. In some Courts there was a desire to exceed the limit of ordinary punishment. Therefore, some limitations were proposed in the measure with the view of checking any arbitrary use of their new powers by Quarter Sessions. These Courts had usually kept their sentences within due limits; but there was a notable exception in the case of the Surrey Sessions, where three prisoners had, in one Session, been sentenced to 20 years' penal servitude. He had thought it his duty to bring before the notice of the House of Commons the severe sentences passed at those Sessions by way of questions to the Home Secretary, and he would appeal now to any hon. and learned Lawyer present whether he had ever known such sentences elsewhere? However, that showed the necessity of some limitation in the power of Quarter Sessions, because, without that limitation, a Court with a peculiar Chairman, guided by an idea that it knew better than all other Courts how to repress crime, might even inflict penal servitude for life. It was strange that the Surrey Court should persist in such relentless sentences, which had the effect of blotting a fellow-creature out of the world for so long a period—perhaps only on account of a series of pilferings. He was glad to say that other Courts were not so severe, and he had asked for a Return from the Middlesex Sessions, as well as from the Surrey Sessions, for three years past, which he hoped, by comparison, would show such severe sentences were not necessary for the repression of crime. If they were not necessary, it was culpable to proceed in such a severe, relentless, and vindictive manner. It would not, therefore, be safe to give every Court an unlimited power of punishment with the jurisdiction which the Bill proposed should be transferred to them. At present, Courts of Quarter Sessions had power to give extraordinary sentences for compound felonies—that was, where a man was convicted after a previous conviction. It would also pile up sentences one on the other in respect of separate offences. The Bill provided that no such Court should sentence for one, or, cumulatively, for several crimes, for a longer term than 10 years, or such other time as the House might think proper; and in case a person was convicted, but not charged with crime previously, for no longer term than five years, or such other time as might be agreed upon by hon. Members in Committee. He knew that at the Surrey Sessions seven years were frequently given for a first conviction, and he could hardly understand how men could be competent to preside who would deal in that way with their fellow-creatures, acting upon some preconceived notion of the enormity of vice, and inflicting punishments of the extraordinary character to which he had referred. The Bill also contained a clause that such Courts should have no power, for these or similar offences, to sentence to whipping or flogging any male above the age of 16 years. Next, as regarded the Coroner's jurisdiction, that also had been dealt with by the Commissioners. The Bill followed in the lines which those Commissioners had laid down. It proposed to abolish the extraordinary double jurisdiction in criminal proceedings by which men found guilty on Coroner's inquests were liable to be tried on that verdict, as well as on the bill found by the Grand Jury, and were not brought in the usual way before a Justice. His alteration was, that if the Coroner issued a warrant for the apprehension of a supposed offender, it should be to take him before a Justice, who might deal with him as though a warrant had been issued on information laid before him. That proposal had been recommended by several learned Judges. Then, as to the question of bail. The lines laid down by the Commissioners had also been followed in that respect. The Bill defined the cases in which there was a discretion to grant bail, and those in which bail was a matter of right, points of immense importance both to the administrators of the law and to those whom the law personally affected. With regard to the drafting of indictments, it was proposed, in the first place, to abolish the distinction between felony and misdemeanour. That would make the wrongful joinder of felonies and misdemeanours by an incompetent and careless draftsman no longer a ground for the escape on a technical excuse of a person who might be guilty of the accusation brought against him. The general provisions as to indictments also sought to bring them down to the region of intelligibility by clothing them in simple and precise language. Technicalities would be avoided and their place supplied with allegations, which it was essential to prove. The Bill also described the objections which should not invalidate the indictment. The 70th clause gave amplified powers, as compared with those given by the Commissioners, to the Court or a Judge to require the prosecutor to give further particulars, together with access to any document or thing under his control or in his custody, to aid the defence of the accused, of the nature and circumstances of the charge brought against the accused. The absence of this power at present often worked to the wrong of the person charged. With respect to treason, perjury, and false pretences, the present requirements for indictments were of the most absurd character, expressed in a long rigmarole of legal phraseology which nobody understood, and which often gave rise to technical objections to the detriment of the due administration of justice, the result being that the guilty had frequently escaped owing to the want of skill of the draftsman. This the Bill endeavoured to amend. He was glad, too, that the recommendations of the Commissioners that the Outlawry Act should be abolished would be practically attained. It was true that the Act was seldom put in force; but it might be enforced and the old theory be carried out—as the House was doubtless aware, that, according to the law as it at present stood, the criminal outlaw was an unhappy wretch, out of the pale of society, and that anybody might put an end to him. In regard to the question of special juries, he had ventured to differ with the Commission, which was of opinion that in all cases a special jury might be obtained either at the suit of the prosecutor or the accused. He thought that would be an extremely invidious power, and his proposal was that the prosecution should have the right of obtaining a special jury only in special cases, while the accused should have the right in all cases, subject to the sanction of the Court. He proposed this, because the accused might belong to a different class in life from the people ordinarily assembled to try him. If a man was tried by his peers it would be carrying into effect the old notion of the law. He also proposed, in accordance with the recommendation of the Commission, that the accused should, in every case, have the option of giving evidence. It was obvious that there was nothing which an innocent person accused of a crime would desire more than to give evidence on his own behalf. There was no doubt that, if this had been allowed in the cases which had lately disturbed the public mind—Clowes and Johnson—and in which two innocent men had been convicted, but who were subsequently pardoned and released, after having suffered a period of imprisonment for violence which the prosecutor confessed on his deathbed they had not committed, they would have been able to corroborate each other, and, although they might not have been able to prove their perfect innocence, they would have produced that "reasonable doubt" in the minds of the jury, on which juries were constantly told to act. He sought to abolish the Attorney General's right of reply in criminal cases. It was very hard that the accused, where he called no witnesses, should not have the last word. The privilege had been absurdly extended at Assizes and Quarter Sessions to the deputies of his hon. and learned Friend. At present, if the Attorney General or Solicitor General appeared to prosecute they had the right to reply, and the same privilege was also claimed and acted upon by their young friends whom they nominated in their stead. The Bill proposed to alter that practice. It was a matter which produced a sense of injustice in many persons' minds. He would next call attention to the provision to establish a Court of Criminal Appeal. The only appeal now was the varying and uncertain one to the Home Office. It was well known there were instances in which capital sentences had been carried out on innocent persons, who would have been saved by an Appeal Court; and he called attention to a Return just issued, which he had obtained, respecting the Prerogative of mercy, that there were five or six cases in which a free pardon had even been given in cases where men had been sentenced to death, while there were hundreds of cases in which the sentence of death had been commuted to penal servitude for terms varying from that of life to a very small number of years—in fact, more than one-half of the capital sentences were not carried into effect. In one case a person sentenced to death was discharged after one year's imprisonment. This was strong proof in favour of the right of appeal which the Bill proposed to give. There was no doubt that a Court of Appeal would deal much more satisfactorily with the varying shades of guilt than a Home Secretary possibly could. The same argument applied to other than capital sentences, and, indeed, to the whole administration of the Criminal Law. If appeal should be allowed in the most paltry civil cases, why not in these? In the County Court, a man who was sued for £21 had any number of appeals, and a similar principle ought to apply to criminal cases, where life and liberty were concerned. It existed in every civilized country except England. He would refer to the charge of Mr. Justice Mathew, in favour of an appeal against sentences delivered by the Grand Jury at a recent Assize for Liverpool. It showed what care we had for the rights of property, when the same privilege was not extended to the life of any individual. It was a fact that in the great majority of cases an appeal could not be justified; but there were exceptions, and those exceptions should be provided for. If he was told that there would be so many appeals brought before the Court that it would be flooded with them, he would reply that he did not believe it, for, as a rule, criminals charged with offences were mostly, he regretted to say, too poor and friendless, and had not the means wherewith to appeal. Besides, in his experience, the guilty quite acquiesced in their conviction and sentence. Therefore, he thought such appeals would, in fact, be few; and, beyond that, the Commissioners strongly recommended the establishment of such a Court, and there could be no higher testimony. In any case, he believed it would tend to prevent those cases of in-justice which had so much shocked the public mind. To him it was a matter of surprise that the question should have been debated so long, and that, although similar Bills had been brought in year after year, they had been relegated to the depository of good efforts, and never came into effect. Though most people had expressed or affected sympathy with the object, few had exerted themselves to meet one of the plainest demands of justice. However, an hon. Member (Sir Eardley Wilmot) had charge of another Bill for establishing a right of appeal in cases of capital punishment, and the time had come when the question could be no longer delayed. The Bill also provided for new trials of a special character by order of the Secretary of State. The proposal contained was—Section 127—that if, upon any application for the mercy of the Crown on behalf of any person committed for crime, one of Her Majesty's principal Secretaries of State in England, or the Lord Lieutenant in Ireland, should think fit, either on the evidence given at the trial, or by reason of other evidence brought to his knowledge, he might, by an order in writing, direct a new trial or inquiry into the case before three Judges, who should not for this purpose be bound by the ordinary legal rules in regard to evidence, but should call any evidence they might think fit. This provision would, he believed, be a great relief to an over tasked Minister of State. It could not be expected that such a Minister should go personally into all the evidence in every case in which he was appealed to, and the result was that in most cases the Home Secretary referred such matters to the Permanent Under Secretary of the Home Office for consideration and report; and the House could readily understand what a relief it would be to an over-taxed Minister to be enabled to direct an inquiry before three Judges, who would take the responsibility of deciding upon the innocence or otherwise of the persons concerned. He did not say the opinion of the Judges who tried them was not of great weight, but it was not in all cases conclusive; and he would appeal to other Members of the House whether they had not in vain appealed to the mercy of the Crown in many cases in some of which a considerable remission of sentence might have been made, and in some of which the prisoners ought to have been allowed to go free? But these prisoners dragged the chain of hopeless captivity, darkness shadowed every prospect for them, and they were expected to obey the prison regulations with gentle and docile mind, and submit to the long servitude for life which was placed upon them. He himself had brought under the notice of the right hon. and learned Gentleman (Sir William Harcourt), among others, the case of two men who were condemned to death, and who were now undergoing a sentence of penal servitude for life. They were constantly making piteous appeals to him and declaring their innocence. He had exhausted every means of inquiry in order to bring evidence to bear upon an appeal which he had addressed on their behalf to the Home Secretary, and the evidence was, to his own mind, convincing that both these men were innocent. He could not complain of the refusal of the Home Secretary to liberate these men. He was bound in the matter by usage and practice. He was over-mastered by the pressure of great affairs. But he (Mr. Hopwood) felt that he had a right to tell the House of such cases. He believed that in this, as in other cases, if such an inquiry as that proposed in the Bill could be held, the innocence of the prisoners would be clearly established. There was, how ever, no remedy for these men, for there was no appeal at present from the decision of the Secretary of State. He submitted to the House that he had laid before them a good plea that the revision of convictions and. of sentences should be placed in competent hands before a public Court, where the matter in question could be debated before the public gaze, and the decision of the Court given upon the facts. Where punishment had fallen upon innocent men society was incurring daily a great responsibility; and he believed an assurance from his hon. and learned Friend the Attorney General, that a reform in this direction was intended, would bring to the public mind intense and general satisfaction. The hon. and learned Gentleman concluded by moving the second reading of the Bill.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Hopwood.)


said, there could, he thought, be no doubt that his hon. and learned Friend the Member for Stock-port (Mr. Hopwood) was justly entitled to the thanks of the House for having brought forward that subject, and for the trouble he had taken in connection with it. The reform of the Criminal Procedure of the country had for a long time been before the House in various forms, and all who were acquainted with the circumstances had been satisfied that reform was imperatively needed. He therefore hoped the day would soon come when the Government would find itself in such a position as to feel themselves compelled to take up the matter. He could conceive nothing more terrible than the lot of an innocent man sentenced to penal servitude, and that consideration ought to make them very careful with regard to their mode of action, and the way in which they dealt with prisoners on their trial, and how they altered the procedure that was to affect them. Above all, they ought to be most careful to avoid intrusting the trial of prisoners to inexperienced persons. He was greatly opposed to the proposal to extend the jurisdiction of Quarter Sessions, on the ground that an enlargement of their power would be both unwise and prejudicial. His experience was that the magistrates, as a body, were most sincerely anxious to do justice, and no doubt the cases which came before Quarter Sessions were very varied; but after the first day of the Sessions the attendance of magistrates was very small, and very often on the second day cases were tried by the Chairman and one magistrate. If the jurisdiction was to be extended some serious and extensive reform must be effected; they must have practised and experienced men, who ought to be thoroughly versed in the practice of Quarter Sessions. He was bound to say that his experience of 10 years at Quarter Sessions had convinced him that many of the Chairmen were thoroughly inefficient, and quite incapable of properly dealing with the cases brought before them. He had known instances of gentlemen being appointed as Chairmen of Quarter Ses- sions who had never had the slightest experience of criminal trials previous to their appointment; he knew of an instance in which a particular Chairman confessed his incapacity to perform the duties which attached to his position. He was not putting that as a universal rule. It was in Courts where inexperienced persons presided that miscarriages of justice occurred—persons who had no sort of experience in criminal trials. He therefore thought the House ought to hesitate before they extended the jurisdiction of such Courts. He hoped that when the Government dealt with the subject, steps would be taken to secure the appointment of experienced persons as Chairmen, so that prisoners should not be unduly exposed to the risk of unjust conviction. He condemned the present indictments as technical in the last degree, and he hoped this evil would be remedied. He quite concurred with his hon. and learned Friend as to the desirableness of abolishing the distinction between felony and misdemeanour. He also thought it was desirable that the Court should have power to change the place of trial, where there was a great amount of local prejudice, or where, from other local circumstances, it was desirable to do so. He did not see why a special jury should not be empannelled for the trial of criminal cases; but the system introduced at the suggestion of the Lord Chief Justice of a judicious mixture of special jurors with common jurors had proved very advantageous, besides giving universal satisfaction, and therefore diminished the importance of this proposal. He was also in favour of juries being enabled to "view" in criminal cases, and of the accused being allowed to give evidence on his own behalf. With regard to the latter, he had come to the conclusion that to permit that would be a most valuable improvement on the present system, as helping materially the administration of justice. He had never been able to see why the person who knew the most about the matter should not, if he chose to undergo the test of cross-examination, be allowed to give his own account of it. It had been said by some that to allow a prisoner to enter the witness-box would be to expose him to unjust treatment, but he failed to see how there could be any risk of that in this country. In many cases, if prisoners were allowed to give evidence, persons unjustly accused would be enabled to prove their innocence. With regard to appeals, he thought that a prisoner ought to be allowed to appeal, if leave were given him by the Court; but he did not think it necessary, as his hon. and learned Friend had proposed, to give the right of appeal in every case, his (Mr. Mellor's) opinion being that the Courts should retain a discretionary power in their hands. On the whole he approved the provisions of the Bill, and considered that it would greatly improve the law; and he hoped that either after it was allowed to go into Committee, or when the Government should bring in their own measure on the subject, a speedy consequence would be such a state of Criminal Procedure as would be generally regarded with something like satisfaction.


said, he thought it must be clear that this was a matter of importance, which could only be dealt with by the Government; but, at the same time, he thought that in so dealing with it his hon. and learned Friend the Attorney General would not bind himself by this preliminary discussion. As the Government, therefore, were no doubt at present considering this subject, he (Mr. Gorst) desired to impress upon the House that it was the procedure part of the Criminal Law that stood in urgent need of amendment. Prominent among the points that required immediate consideration was the removal from the Statute Book of many grotesque punishments that had long been allowed to remain as part of the law of the country. Hon. Members were not, perhaps, aware of the nature of some of these punishments. He would give three instances to indicate what he meant. In the first place, he found that a person stealing a "hopbine" from a hop-garden was liable to imprisonment for 14 years. Then, again, an attempt to injure, with intent to destroy, not machinery, but a tool used in the manufacture of textile fabrics, might be punished with penal servitude for life. And, lastly, he did not suppose any Member of the House would ever guess what the punishment was for breaking a bottle of pickles. Any person guilty of this offence was liable to death, an anomaly which arose from the fact that, in an Act passed to prevent the burning of Her Majesty's ships, the description of this offence was so extended as to include the destruction of any stores whatever in a victualling yard—such as that at Gosport. These punishments were, of course, manifestly absurd, and should be done away with. He thought also that his hon. and learned Friend the Attorney General would find it expedient to effect a general mitigation of punishments. In other respects, except for the extravagance of these punishments, the Criminal Law of this country did not stand in need of any very pressing amendment, and the codification of the Law, though it might be satisfactory, was not urgently needed. If the Government did undertake the task of codifying the Criminal Law, he trusted that they would attempt to do it upon some scientific system, and that the excessive verbiage and repetition which now characterized our Statutes would be avoided. If they were not, our Code would not compare favourably with those of France, Germany, and other countries. Returning to the subject of the Bill itself, he wished to call his hon. and learned Friend the Attorney General's attention to the conditions regulating arrests by warrant. The law as it stood at present was curious and inconsistent. Under the present law no one charged with perjury or with threatening to murder could be arrested by this process; yet no one would venture to say that those were not serious offences. But anyone who killed a deer in an enclosed place might be arrested without warrant provided he had killed a deer before. If these curious existing distinctions were to remain, some such clause as had been inserted in the Bill was necessary. But he would suggest a much simpler method of dealing with the whole subject. In other countries arrests without warrants were permitted only in cases where there was a danger that the offender would otherwise escape. There was really no other ground for permitting such arrests, and, in his opinion, our procedure should in this respect be assimilated to that existing abroad. In the Bill which he had submitted to the House—the Criminal Procedure Bill—he (Mr. Gorst) proposed the simple amendment of the law, that in all offences for which the punishment was death, or penal servitude, the persons suspected might be arrested without warrant, and in all cases where the punishment was less, they should not be liable to be arrested without warrant, unless it was thought they would otherwise escape justice. This simple rule would get rid of the anomalies to which he had referred. The law with respect to the granting of bail was equally unsatisfactory. Why should a man, charged with so grave an offence as unlawful drilling to the use of arms, be entitled to demand his release on bail? Or, again, why should a forger possess that right, when it was well known that persons of that class were often likely to be the readiest to break their bail at any risk? His own suggestion was that no person arrested upon a charge punishable on conviction with death or penal servitude should be entitled to bail in any case. That would introduce a consistent and reasonable treatment of prisoners in respect of bail. It had been argued that the jurisdiction of Quarter Sessions should be increased. He could not agree, however, with the expediency of that proposal, which would throw still more work into the hands of unprofessional men, and preferred seeking the remedy for overcrowding of the Assize Courts in relieving the Judges by disposing of the smaller indictments before Barristers, who would assist the Judges. He would propose, also, that the indictment should be simplified; a mere schedule would suffice, and might replace the cumbrous and absurd forms now in use. Nobody ever read them, and if they did they would be utterly unable to determine what it was with which the prisoner was charged. The object of an indictment was simply to show that a person was about to be put on his trial, and it should be without formality, and couched in the briefest and simplest possible language, which would effect a great improvement in the administration of justice. The question of appeal after conviction was a more difficult one. But if an appeal were to be allowed at all, it should not be optional, but be given as a matter of right. There was no danger of frivolous appeals being brought to a Court of Appeal constituted like the present; such appeals would be snuffed out at once. He should be very sorry if the right of appeal were subject to the opinion of the Judge, for, in his idea, appeals so given would be worthless. The only authority that should deter- mine whether an appeal should or should not lie should be the Court of Appeal itself. He objected most strongly to the strange and unconstitutional power which it was proposed to confer upon the Secretary of State for the Home Department of ordering a new trial. The actual trial in England was a procedure of which we might all be proud; but the procedure preliminary to the trial—the procedure which consisted in finding out the truth or falsity of a charge—was primitive and barbarous. There ought to be arrangements for investigating the innocence as well as the guilt of the person charged, and, in his opinion, the interference of the Home Secretary should only be invoked when the Prerogative of mercy was to be exercised. In the case of convictions for murder, he did not think the functions of the Secretary of State were or ought to be judicial. He ought not to determine the question of guilt, as that was a matter that ought to be determined by the ordinary tribunals of the country, and, if necessary, by a judicial appeal. The Home Secretary's intervention ought not to be on the ground that the conviction was erroneous, but because there were circumstances in the case which would render interference necessary. On the point whether the accused should be allowed to give evidence, he thought that the proper time when the accused should be allowed to make a statement was when he was first apprehended, whereas the artful criminal would be most anxious to give his version of the affair at the trial, when he had had time to get up an ingenious and plausible story. There were some additions which he (Mr. Gorst) should like to see made to the Bill. He was in favour of an amendment of our laws in accordance with the principle of French and German Criminal Laws, by which the truth or falsehood of charges against persons was investigated in private, thus minimizing the unpleasantness of the situation in the case of innocent persons; and he thought that as soon as a prisoner was arrested he should be taken before a magistrate and discharged, unless the magistrate was satisfied that there were some grounds for the charge. It should be the duty of the Justice before whom the prisoner was brought to state the charge and the grounds for the charge, and invite the prisoner to make any statement he liked. He would suggest that at the latter stage of the case, when the prisoner was asked if he had any answer to make to the charge, the magistrate should state the points upon which an explanation was necessary. Such an examination, he thought, would tend to bring out the innocence of innocent persons, and establish the guilt of the guilty.


said, he desired to thank his hon. and learned Friend (Mr. Hopwood) for the interesting speech in which he had introduced the Bill, as he believed it would tend very much towards elucidating and elevating the subject. His hon. and learned Friend had animadverted upon the sentences passed at the Surrey Quarter Sessions, which he said were far too heavy for the crimes in respect of which they were awarded. He (Mr. Cropper) was a justice of the peace, though he had nothing to do with the Surrey Sessions; and his experience of Quarter Sessions generally was that the sentences passed were very carefully weighed. More especially, in his opinion, did the sentences passed at Sessions in respect of offences against the person carry out the true view of the community as to the relative application of punishment between those offences and offences against property. He considered that the sentences passed for offences against the person, more especially where the victims were women and children, at Quarter Sessions were severer, and more in accord with the common sense of the people than the sentences passed at the Assizes. Clause 15 of the Bill effected a most useful change in giving Quarter Sessions the jurisdiction to try the crimes of robbery with violence, assault with intent to rob, and burglary. In some few counties in England, as in Westmoreland, the consequence would be, if the Bill became law, that it would be almost unnecessary for any Criminal Assizes to be held. Perhaps this, however, would be an advantage, as it would enable changes in the Assize arrangements to be made which would lessen the duties of the Judges. The proposal of the Bill which sought to prevent the failure of justice by reason of magistrates having no power in respect of crimes committed just outside their jurisdiction would be of great advantage. In respect of appeals in criminal cases, he did not think they would be advan- tageous, especially in such cases as those of flogging; but he agreed with the establishment of a Court of Criminal Appeal in all cases where the death penalty was in question. He believed the Bill, as a whole, would be of much use and advantage to all who were interested in the administration of justice.


said, that he would not detain the House for very long; but he wished to say a few words with regard to this very important Bill. The hon. and learned Gentleman who introduced the Bill (Mr. Hopwood) deserved great credit for the pains he had taken with regard to it, and for the attention to detail, the study, and learning he had employed. He (Sir E. Assheton Cross) took it, from the efforts which were made by the hon. and learned Gentlemen who had proposed measures upon the subject, that there was absolute proof that there was a very great and rapidly-growing desire in the country that the Criminal Law should be properly codified. He agreed, however, with what had been said by his hon. and learned Friend the Member for Chatham (Mr. Gorst), to the effect that no private Member could hope to prosecute such a Bill and carry it through the House. He was further of opinion that it would not be right to leave a subject of such vast importance in the hands of any private Member. In his opinion, the public would not be satisfied unless a Bill of such undeniable importance were carried through Parliament on the responsibility of the Government of the day. He was quite sure, from what he had heard said in the last Session by Members of the Government, that they were anxious to proceed as rapidly as possible with this work. He was sure the hon. and learned Gentleman the Attorney General would share his regret at the absence from that discussion of a man who had devoted himself with so much zeal and energy to the reform of the Criminal Law—he meant Lord Justice Holker. It would be a great loss to the country if all the labour and trouble which had been bestowed upon this complicated subject by him, and by which his name, together with those of Lord Blackburn, Lord Justice Lush, and Mr. Justice Fitzjames Stephen, would be inseparably connected with it, should be practically lost, and not bear proper fruit. Not- withstanding all the labour that had already been been bestowed on this subject, he could well understand that the hon. and learned Gentleman the Attorney General would be perfectly well able to assure the House that there were still points which required attention, and that a measure of such importance as a Criminal Code would require revision before it could be allowed to pass into law. At the same time, although that might be so, he was sure the hon. and learned Gentleman would be willing to pay a tribute of praise to Lord Justice Holker for his exertions in respect of this matter. He was glad to hear that, imperfect as it was, the Government was not only going to take up this Code, but to prosecute it. In the last Session of Parliament he ventured to express the opinion that the Code placed on the Table was too large, and that there was no hope that it could be carried in one Session of Parliament. He thought the Government had acted wisely in determining to bring it in in portions in different Sessions, and he was sure that it would be more quickly passed into law in that way. A great many subjects had been touched upon in this matter, and he did not wish to refer to them all; but there were one or two upon which he felt bound to say a word or two. In the first place, as regarded the preliminary steps before a criminal was brought to justice, some opinions had been expressed by his hon. and learned Friend the Member for Chatham in favour of a private examination. Although he quite agreed that in the case of arrest of innocent persons injury might be done by public examinations, yet the whole of our procedure had been framed with scrupulous care to do every possible justice to accused persons; and he, for one, very much doubted whether the country was prepared to substitute a secret examination. With respect to indictments, he fully agreed that they might be simplified with great advantage. An anecdote was told of Mr. Justice Littledale, who, in his day, was a very eminent draftsman. He drew an indictment for conspiracy at very great length, with an immense number of counts, and then, as an afterthought, added a supplementary count. The indictment was so voluminous that it had to be brought into Court in a wheel-barrow. The learned Judge, on the application of counsel, ordered Mr. Littledale to elect on which count he would proceed. He decided to go on the additional count he had drawn at the end of the indictment; and it was then discovered that, through an error in copying, a line had been left out, the consequence of which was that the prisoner was acquitted. The question of their simplification was one, therefore, which deserved consideration, for there was vast room for improvement with regard to the form of indictments. There was another question to which he hoped that the Government would pay great attention. He doubted very much whether this part of the subject had met with as much attention as it deserved, either from the Gentlemen who prepared the Criminal Code or from the Committee who considered it—he meant the scale of punishment. When the first step in the consolidation of the Criminal Law took place, an important reform was accomplished; and when Peel's Act was passed, the object seemed to be to classify and divide offences into those against the person and those against property. When those Consolidation Acts were passed, the punishment as it existed under the old Statutes was left exactly as it stood. The tendency of Criminal Law of late years had been very much to modify the extreme punishments of former years; but when the law was thus consolidated, the old punishment from the old Statute was simply incorporated, and the result was that the present law was full of the greatest possible anomalies. Therefore, when they came to that part of the subject, he hoped that the sentences which might be passed would be carefully considered by the Government. There was another question with regard to punishment which was of a very serious nature, and for which it would be much more difficult to provide a remedy—namely, that whatever the punishment in the Statute Book might be, they could not possibly provide for the different temperaments of Judges, however eminent, who had to administer the law. He wished very much the Judges could, by some more intimate communication amongst themselves in some way or other, regulate the punishments given more completely than they did. He held that had been attempted in several cases; but he thought it rested with the Judges for some means to be found in which particular classes of cases should receive a certain sentence, unless there was some exceptional cases in which the Statute allowed more. In that way he believed that something might be done towards establishing greater equality in the punishments for offences that were similar in character. Again, the line drawn between the jurisdiction of the Court of Quarter Sessions and between those cases which must go to the Assizes stood, at the present moment, in a very unsatisfactory state. He thought that the Court of Quarter Sessions might try a very great number of cases which now went to the Assizes, and in which the average punishments were very often far less than those given at the Court of Quarter Sessions. Cases of burglary, however simple, must now go to the Assizes, although the punishment given for them might be only a few months. That matter might with great advantage be carefully revised; and in simple cases of burglary the option might be given to magistrates, under proper conditions, to send the prisoners to the Court of Quarter Sessions instead of to the Assizes. As to the question of appeal, he agreed with his hon. and learned Friend the Member for Chatham that the 127th clause of the Bill was based on an utter misapprehension of the duty of the Secretary of State. The Secretary of State had, in his (Sir R. Assheton Cross's) mind, nothing to do except to advise Her Majesty on a case after the decision had been given by a Court of Law; and he, for one, was strongly against any Bill that proposed to leave it to the Secretary of State to say whether there should be an appeal, or a new trial or not. That was totally distinct from the functions which the Secretary of State had to perform; he was not a judicial officer, and if there was to be a new trial that question ought to be decided by a Court, and not by a political officer. While an appeal on points of law would be right, it would not be wise to allow appeals as a matter of right upon questions of fact. If there was to be an appeal on a question of fact, and if it was to be a matter of right, the practical effect would be that the man who had had one trial, and who wanted to take the chance of another, would hope to get a different verdict from another jury. That would be a great innovation in our Criminal Law. At present, if the Judge said he was not at all satisfied with the trial, and the result was entirely against the weight of evidence, they knew that the Judge would make such a representation to the Secretary of State that no injustice would be done. But if they gave the right of appeal to prisoners it would be difficult to refuse it in particular cases. Another question which presented itself was as to the admission of the evidence of prisoners. That question had been before them many years, and public opinion on it had been gradually ripening. Not long ago public opinion would not have been in favour of allowing the evidence of prisoners to be given, subject, as must evidently follow, to the cross examination of the prisoner so tendering his evidence. And they knew that it had been thought by many persons of high authority that if they allowed prisoners to give evidence if they wished to give it, many innocent men who refused to give evidence would be prejudiced in the eyes of the jury by that mere refusal. He had thought that there was a good deal in that objection, and he thought so still; but he confessed that his mind had undergone a considerable change on that matter, and, looking at it as a whole, he thought, in the long run, it would be advisable to allow a prisoner to give evidence if he wished to do so, subject, of course, to cross-examination. At all events, it was worth a trial. He was aware that would be a considerable change in the Criminal Law, and he had not come to the conclusion which he had mentioned without much serious hesitation and consideration. He was anxious to hear what was about to fall from the hon. and learned Gentleman the Attorney General, who, he presumed, would allow those two Bills to be read a second time, and would also insist, and properly insist, on that matter being left in the hands of the Government. He felt sure that the hon. and learned Gentleman would obtain the full assistance of the House, if he would promise that the Government would proceed with all reasonable speed. He could wish also that they might have some assurance on the part of the Cabinet that they would do all in their power to allow, at least, some portion of that Code to become law during the present Session.


said, he could assure his hon. and learned Friend (Mr. Hop-wood) that the present discussion, so far from being an embarrassment, would be an assistance to the Government. There could, he thought, be no objection on the part of the Government to allowing this Bill and the cognate Bill which stood on the Paper to be both read a second time. That was only due to his hon. and learned Friends who had taken so much trouble in framing and drafting those Bills applying to a certain portion of the Criminal Law. But he perfectly accepted what had just fallen from the right hon. Gentleman opposite (Sir R. Assheton Cross), that the responsibility of altering the law to such an extent as it would be altered if such Bills as those were to be included in the Statute Book must rest with the Government; and an earnest of their desire to deal with the subject was to be found in the reference that had been made to it in the Queen's Speech. The responsibility, he might add, was a very great one, and the labour very onerous, when they attempted to codify a law of that character; but he could not, however, be so explicit as he should wish to be on the matter to the House. It was not a question of consolidation only; but they had to codify alike the Common Law and the Statute Law on those subjects; and in that process they incurred some peril by giving up the elasticity of the Common Law, which met every phase of every crime, because it was desired that the work of codification should in future form the whole law on those subjects. The House would understand that when a measure had been announced in the Speech from the Throne, the proper time for a statement of its details must be when leave was asked to introduce it; and it would, therefore, not be becoming in him now prematurely to offer any such statement in respect to a measure which he hoped would be presented to the House before long. He was only able on this occasion to deal in a general manner with the question under discussion. He should not, however, be breaking through any Rule of the House if he said that he should not have the slightest feeling of delicacy in appropriating the labours of others. It would, he thought, be a great error if the result of those labours, which had now become public property, were not used for the public benefit, without the least personal feeling on the part of one who introduced a Bill to the House. When the result of those labours was utilized, he trusted it would be understood that it was accompanied also with the fullest acknowledgment that the credit of any Bill that was introduced chiefly belonged, not to Members of the present Government who introduced it, but to those Members and those Commissioners who had borne the burden of framing the original Criminal Code that was presented to the House. The right hon. Gentleman had said that he (the Attorney General) should be the first to acknowledge the labours of Sir John Holker in connection with that subject. He had before, and he now again, made the fullest acknowledgment of those labours. The right hon. Gentleman said that they all regretted the absence of Sir John Holker from the House. Now, to his mind that feeling was mitigated by another circumstance. While Sir John Holker's absence from the House was a matter they might regret, his presence in another-place, sitting as a Judge, was a subject of gratification, because his services to the public would be great and valuable. He valued Sir John Holker's presence on the Judicial Bench still more on another account; because he hoped, by that appointment, it would be established in the future that political opinions would never prevent the elevation to the Bench of those best qualified to render judicial service to the country. With regard to extension of the jurisdiction of Quarter Sessions, which his hon. and learned Friend (Mr. Hop-wood) in the 15th section proposed, he was afraid he could hold out no hope that he could, on this occasion, accept his hon. and learned Friend's view. His hon. and learned Friend would increase the jurisdiction of the Quarter Sessions over such crimes as robbery with violence, a crime which might vary in its character to a great degree. He thought that this was a question rather of administration than of judicial arrangement, and one that should be dealt with in connection, not with codification of the Criminal Law, but with other alterations of the law. As the Quarter Sessions were at present constituted, the extension of jurisdiction without any limitation was a matter which ought to be considered very carefully before it was adopted. His hon. and learned Friend dealt next in point of order with the comparatively unimportant subject of the right of the Attorney General to reply in all cases, and mentioned that that right, which was originally claimed only by the Attorney General or the Solicitor General, was now insisted on by every gentleman requested by the Attorney General to undertake a prosecution. That right had come down from times when the Crown strove much to obtain convictions in political cases. He thought the time had come when that right might be very much curtailed with respect to counsel representing the Attorney General, and that there might be considerable limitation with regard to the right of the Attorney General himself; but all he could say was that it was a matter which required, and should receive, careful consideration. The next point touched upon was the examination of the accused upon trial. The House had already, by a majority of considerably more than 2 to 1, voted in favour of a Bill of the hon. Member for the Isle of Wight (Mr. Evelyn Ashley) to allow prisoners to give evidence on trial. The Law Officers of the late Government voted in support of that Bill, as he did himself. Since that time he had not heard anything to alter his opinion; and he thought it a proposition which would receive the acquiescence of a great majority of the House, and that such acquiescence would be in accordance with public opinion. As to giving magistrates the same power to examine prisoners when first brought before them as was possessed by the Juge d'Instruction in France, he must say he doubted whether that ought to be done. A judicial officer was in a different position; he was a trained man; but it was very much open to doubt whether such a power should be given universally to untrained magistrates at the stage of the proceedings to which his hon. and learned Friend the Member for Chatham (Mr. Gorst) referred. He would remind his hon. and learned Friend that it was different in France, where this duty was performed by trained, experienced men; and he very much doubted the benefit of private examinations at the stage of the case suggested by the hon. and learned Member. If the proposal was that at the termination of the proceedings, when the accused was asked to reply, he should then be allowed to make the same statement, on oath, which he would be able to make on the final trial, that was a point worthy of consideration. Then as to a Court of Appeal, the question was one which must be met; but no one knew of the difficulty of the subject until it was attempted to draw a Bill to meet it. There might be three kinds of appeal—one on questions of law, another on questions of fact as to the guilt or innocence of the accused, and a third as to the justice of the sentence. There was at present, in a certain shape, a Court of Appeal on questions of law, which could not, however, be considered altogether satisfactory. The right of appeal depended on the will of the Judge, and he never thought that a proper state of things. Then on questions of fact various difficulties arose. Was the appeal to be a matter of right? If they once put a limit to the right, they would lose a great deal of the benefits expected from it. If they made it to depend on the opinion of the Judge, that opinion would affect the right of the prisoner to appeal. Then, was the appeal to be at the will of the Attorney General? That was a proposition which ought not to receive approval. It was impossible for the Attorney General to have before him the proper materials for forming a judgment. It was most objectionable, when they would have all classes of cases to deal with—political cases among others—that a political officer should have the power of determinining whether there should be a right of appeal or not. On the other hand, were they to give a right of appeal in all cases? Then every man who had money at his command, if he were convicted of the smallest crime—of picking a pocket of a handkerchief, for example—would always appeal, otherwise he would be deemed to admit his guilt. Thus the number of appeals would block up the Courts. Therefore, some line must be drawn, either in relation to the offence, the punishment, or otherwise, before an absolute right of appeal could be given to every person. There was another practical difficulty, also, and that was with regard to the materials they would bring before the Court of Appeal to enable them to come to a decision. If guilt or innocence was to be proved, would they bring before the Court of Appeal the same witnesses as had appeared before a jury? The difference between a false and true witness did not always depend on the words he uttered. If they did not bring the same witnesses before the Court of Appeal, there would, in such cases, be insufficient materials before it. On the other hand, if they were to bring the same witnesses before the Court, great practical difficulties would arise. Therefore, he could not attempt to give any confident opinion as to the best course to pursue. The matter was one upon which he was sure the House would in the future bring its best judgment to bear. Then as to there being a new trial upon appeals by the Crown, he shrank from such a proposal. It was a principle of our law that a man should not be tried twice for the same offence. If they looked to the difference of evil between a guilty man being acquitted and an innocent man convicted, the balance seemed to incline against a man being tried twice. Moreover, he must confess that after a person had been acquitted by a jury, to ask for a second trial for a political offence would be a matter to be much deplored, and would, he thought, be strongly opposed to public opinion. Much had been said of the inequality of sentences passed by different Judges; but although certain sentences were applicable by Statute to particular crimes, there were so many degrees of guilt that sentences necessarily varied perhaps, also, according to the idiosyncrasies of the Judges. Of course, they might make sentences uniform with regard to particular offences by Act of Parliament; but they could not so adapt them to degrees of the same crime. Although there often appeared to be great inequality of sentences according to the reports in the papers, it must be remembered those accounts did not present all the facts which were brought before the Judges; and, therefore, great injustice was often done to the Judges by those who condemned them on such testimony. Again, there was a difference in the manner in which some Judges regarded particular classes of crime; and although agreement might be come to as to sentences to be passed in Post Office cases and the like, yet there could never be such uniformity as to disarm criticism founded upon the records of trials published in the public journals. It might be very desirable to have some review of sentences; but he would not say whether that should apply to cases where sentences were unduly light, as well as where they involved punishment grievous to be borne. He hoped his hon. and learned Friend would not be discouraged if he ventured to point out that the power proposed to be vested in the Home Secretary of causing inquiry to be made in certain cases by three Judges was open to serious objection, and that it was a subject which could not be received with great favour when it came before the House for graver consideration. The Home Secretary ought not to be converted into a Judge, and the power it was proposed to give him would tend to produce either too much laxity or evils of an inquisitorial character. In conclusion, he had only to say that he had been anxious to avoid committing himself to any exact propositions; but he hoped he had said enough to show that the responsibility of introducing a practical measure had now been brought home to the Government, and every effort would be made to carry out the wishes of the House with regard to legislation upon this important subject.


said, they heard a great deal about France and Germany from hon. and learned Gentlemen who were members of the English Bar; but they seemed to forget that there was such a country as Scotland, and that there was in Scotland already a system of private preliminary inquiries and a system of public prosecution. He (Mr. Arthur Elliot) felt that privacy of inquiry was, in many respects, not desirable; but there was no necessary connection between private examinations and public prosecutions. The two modes, he thought, ought to be combined and adopted in England, for there was a great deal in the Scottish system of public prosecution which they might have in England with great advantage; while, on the other hand, there was much in the administration of justice in England which might usefully be introduced into Scotland. The main changes of the Bill were that it proposed to establish a system by which a prisoner might be able to tell his own story, subject to cross-examination, a course which had hitherto been very much opposed in this country, and by no one more vigorously than the late Lord Chief Justice Cock-burn, who had always strongly opposed private examinations; but he had equally advocated a system of public prosecution from the beginning to the end of every case. The most important part of this Bill was that proposing to give the Home Secretary the power to order a new trial, and that was spoken of as a new proposal; but in the Bill of the late Government there was a clause giving that power to the Secretary of State. With respect to the question of a new trial as of right, it should be remembered that that right would only be exercised by a person who had been convicted, and the prosecution could not, on its merits, get a new trial. The old principle of justice in England and in America was that a man could not be tried twice. In America that had been altered; and in this country new trials had been very nearly established, but the Privy Council had decided against them. It was not alleged that new trials in America were too frequent in consequence of the existence of a Court of Appeal in that country; and he believed if a Court were established in this country it would not result in any great number of appeals. In France a Judge who was dissatisfied with a verdict might order a fresh investigation; it was the same in Austria; and some system of new trials was gradually being established throughout the world. No doubt the danger, as had been said by Sir John Holker, was that if the law was altered everyone who was committed would move the Court for fresh investigation; but he (Mr. Arthur Elliot) did not think that would be the case. Under the Summary Procedure Act—an Act associated with the name of the right hon. Gentleman the Member for South-West Lancashire (Sir R. Assheton Cross)—everybody who was sent to prison for three months without the option of a fine was entitled to appeal; and it was found that appeals were not brought unless there was some real benefit likely to arise from such a course being taken. One matter that he should like to say a word or two upon was the question of the enlargement of the jurisdiction of Quarter Sessions. There was no greater authority than the right hon. Gentleman on the subject of Quarter Sessions; and he had laid it down that there ought to be some fresh line of division between Sessions cases and Assize cases. At Manchester he (Mr. Arthur Elliot) had seen Grand Juries, over and over again, make presentments to the Court of Assize to that effect, and it was no use sending simple burglaries to the Assizes: and he had heard Judges state, over and over again, that they concurred in those presentments, and saw no reason why the Quarter Sessions were not as capable of deciding simple cases of burglary after 9 o'clock at night as of house-breaking before that time; but nothing had been done in the matter. He was aware this was a Government matter, and could only be dealt with by the Government; but he must remind the House that what they had hoped to do to-day, and what his hon. and learned Friend (Mr. Hopwood) had chiefly hoped to do, was to elicit the general concurrence of opinion that something, at all events, in the nature of a Code, about which so much trouble and learning had been expended, that the fruits of all that labour should not be thrown away, and that, when they saw their way to do so, the Government might take up the subject again, and should find general support on both sides of the House.


said, that this had been a useful if not an exhaustive discussion. During its progress the question had been asked whether the Government intended to proceed with any part of the Codification Bill? The best earnest of the intention of the Government was the promise made in the Queen's Speech, and if there were time, the Government desired to press that which was deemed the most important part of the Bill—that relating to procedure. If the proposal of the Government to delegate a part of the authority of the House to large Committees were accepted, these were questions which could give rise to no Party friction; and he could not conceive that any subjects could be more properly remitted to a Committee to be disposed of, or of any measures that the House would more readily accept on such authority. Occupying the position he did, it might assist in the formation of public opinion if he said that he was glad to hear the right hon. Gentleman opposite, his Predecessor, say that, after considerable doubts, his mind now inclined to favour the admission of the accused to be examined on hi s own behalf. He (Sir William Harcourt) did not believe it possible for anyone to occupy the position of Home Secretary without being satisfied that, in those cases—he hoped they were few, but still there had been too many—in which a miscarriage of justice had occurred, and in which innocent men had been convicted, the miscarriage might have been prevented if the accused had been able to tell his own story. Cases had come under his cognizance in which he was certain that if, when the evidence for the prosecution had been given, the man accused had been able to tell his own simple story, the result would have been different. Perhaps the examination of the accused might lead to the rightful conviction of some who otherwise would be acquitted; but that would not be a result to be deplored, particularly if, in other cases, innocent men were saved from conviction. No one could see as much of the administration of the Criminal Law as he did without deeply regretting that there should be in appearance one law for the rich and another for the poor. He saw every day that, from want of means to secure adequate defence, many were convicted who otherwise might be acquitted; but it was difficult to say how this could be remedied. It was impossible that the State could undertake the defence of every prisoner as well as the prosecution. [Mr. WARTON: Why not?] Well, anyone could see the answers to that question of the hon. and learned Member for Bridport. At all events, one of the best correctives would be to allow a man to give evidence on his own behalf. Many a man whose mouth was now closed was not able to summon witnesses, and to bear the expense of producing them. The inequality of the sentences given by the Judges was, to his mind, most unsatisfactory, and the suggestion made by the right hon. Gentleman opposite was well deserving of consideration. It was that the Judges should concert among themselves, as far as possible, to give sentences with something more like regularity and equality, and that it should not happen, as it too often did, that the character of a man's sentence should depend very much on the accident of the Judge before whom he was tried. The matter had been brought strongly under his (Sir William Harcourt's) notice by one Department of the State, the Post Office, the fact being pointed out that, for nearly as possible similar offences, extraordinarily divergent sentences had been passed, and, as far as could be seen, without any sufficient reason. His situation in the matter was peculiar, for he was attacked on two sides, with complaints that sentences were too light in some cases, and that they were too heavy in others. He had, however, no power to interfere, and it was right that he should not have. One of the first principles of our jurisprudence was that the Judges were independent of the Executive; and if the Executive could order them to pass heavier or lighter sentences, we might have the Executive dictating the sentences for political offences. Applications to the Secretary of State to influence the sentences passed by Judges were applications that ought not to be made; he had no such power, and he ought not to have; he had nothing to do with the matter; the Judges were, and ought to be, the only authorities on the question of sentences. He admitted, however, the scandal which arose from sentences of an enormously different character for offences that were very similar; and he concurred with the right hon. Gentleman opposite in wishing that the Judges would, at all events, in certain classes of cases, take counsel together to secure something more like equality in sentences. He supposed that no one had more reason than he had personally to desire that there should be provision for new trials in criminal cases, in respect of which sometimes the Home Secretary had a grievous and heavy responsibility; but he had never yet seen a plan which he could approve for the institution of a Court of Appeal in criminal cases. If appeal were allowed, there would be an application for a new trial in almost every case. It seemed to him to be the essence of justice that it should be speedy and, and as far as possible, final. A similar delay to that allowed in cases concerning property could not be tolerated. He should be glad to consider any plan for appeal which would be likely to prove satisfactory. He failed, however, to understand what advantage would be gained by a Court reviewing the decision of a Judge and jury, who had all the facts and circumstances before them at the time, and perhaps reversing the decision at which they had arrived. He thought a debate of that kind was extremely useful, as it would lead the public to consider the question; and no change could be made in the law which affected the rights of the citizens unless they had the support of the public opinion of the country.


said, he did not desire to detain the House at that late hour; but he could not allow the discussion to close without it being understood that the House was not unanimously in favour of altering the law, so as to enable prisoners to give evidence, or rather to compel them to do so, as was proposed by the Bill. He would admit that the question was one which deserved attention, and very considerable attention; but he was not sure that changes in the manner proposed would be at all desirable. For instance, if a prisoner might be cross-examined, he might admit a previous conviction, and there was then a danger of his being found guilty, merely on the ground that he was a man of a character likely to commit such a crime. He could not agree with the right hon. and learned Gentleman the Secretary of State for the Home Department that injustice had been done, because prisoners were not allowed to make their own statements. Where the prisoner was not represented by counsel, he was not only allowed, but invited to do so. Even when the prisoner was represented by counsel the late Lord Chief Justice Cockburn, on many occasions, allowed the prisoner to make his own statement of facts to the jury; and, if that practice became general, every legitimate object aimed at by the proposal to enable prisoners to give evidence on oath would be attained. He (Mr. Morgan Lloyd) did not believe that the jury would doubt such a statement, simply because it was not on oath, especially if it offered a reasonable explanation of the circumstances under which the prisoner had been charged. He thought they should abide by the old rule that a prisoner ought not to be bound to criminate himself. As regarded indictments, he thought there ought to be a distinct line drawn between criminal cases proper and those which were criminal in form, but civil in reality. It was his intention, when the opportunity offered, to bring the subject forward; but as regarded the law relating to the examination of prisoners, unless he should be satisfied he was wrong, he should certainly oppose any change. One reason why he objected to the change was that it entirely revolutionized the law. He, for one, was not prepared to change the law of England to that extent, unless he was satisfied by much stronger arguments than he had yet heard. Similar changes which had been made in the Criminal Law of America had not worked very satisfactorily, and he referred to the Guiteau trial as an illustration of this. The scandals which had been witnessed in connection with that trial should make them pause before they carried out a change which would probably have such momentous consequences.


said, he was of opinion that anyone who had given attention to the subject would admit that the question of the codification of the Criminal Law was one surrounded with the greatest possible difficulties. He had had the privilege to go through the first draft of the Criminal Code Bill brought in by the late Government with some very distinguished men in law; and the further they discussed the question of codifying the Common Law of the country, the more the difficulty presented itself to them, and the more hopeless seemed the task of arriving at any satisfactory conclusion. One of the main difficulties, and one which the House would easily understand attracted his attention and rivetted his interest, was the question of the right of public meeting, and the definition of what might be termed riotous assemblies. It seemed to be hopeless almost that any number of men could agree upon any particular description of what should constitute offences of that kind; but there could be no difficulty, he thought, in further consolidating the Statute Law. Much had been done, he understood, in that direction; and he hoped, as the result, if the Bills under discussion were not passed, the Government would, at least, do something towards the further consolidation of the Statute Law. Then there was the question of procedure, which was one of interest to everyone, both layman and lawyer. There was no doubt that even the securing of criminal convictions in this country was fraught with the greatest possible difficulty and enormous expenses; and he sincerely hoped that something would be done to remedy the present condition of things. The right hon. Gentleman the Member for South-West Lancashire (Sir R. Assheton Cross) had informed them that afternoon of an indictment that had had to be wheeled into Court in a wheelbarrow, because of its extraordinary extent; but in the discussions to which he had referred, among some very learned and distinguished men in law in this country, he (Mr. Broadhurst) had heard it stated that a recent prosecution in the case of some fraudulent transactions on the part of a secretary in London, the indictment would cover sufficient parchment to cover the whole of Waterloo Place, Regent Street. He felt sure that much good would arise from the present discussion, and from the assurances of his hon. and learned Friend (the Attorney General) on the subject. Great credit, and very proper and well-deserved credit, had been accorded to the late Attorney General—Sir John Holker—for the part he had taken in making this question of criminal codification one of a practical nature. He (Mr. Broadhurst) was sure the House would forgive him if he, for one moment, directed their attention to something even more remote in connection with it. He felt that the House was mainly indebted to a very much abused interest for making this a practical question, and creating a public opinion on it—namely, the trade unions of the United Kingdom. It was now more than eight years since they first discussed this subject, with the assistance of some very able gentlemen not having seats in that House; and if the right hon. Gentleman the Member for South-West Lancashire had been in his place now, he (Mr. Broadhurst) thought he would have been quite ready to bear evidence as to the usefulness of the work which those much-abused people had done with regard to Law Reform—not only with regard to the Criminal Code now under discussion, but with regard to the reform of many other laws which had done much good to the country, and had secured the removal of vicious and unjust laws from the Statute Book. He felt that he was entitled to say this after the years of action he had had as a layman, and the interest their unions had taken in this matter, and the money and time they had expended in impressing on successive Governments the necessity of making plain to the people the laws they were every day called upon to obey.


, in replying to the objections raised to the granting of appeals in criminal cases, said, as he understood the proposal, it was intended so to limit the right of making applications for new trials in criminal cases as that no improper delay should be interposed between the offender and the sentence he deserved, and that no such application would be granted except on adequate grounds. Subject to that, he thought that there ought to be a power of granting a new trial; for he was at a loss to see what distinction in principle there was between granting a new trial in a civil case and in a criminal case, or why a new trial should not be granted as much in the one case as in the other. If a verdict were against the weight of evidence in a criminal case, there should be the same right of applying for a new trial as in a civil case under similar circumstances. He particularly objected to the vicious distinction made by the hon. and learned Gentleman the Attorney General with regard to the right of new trial in cases where sentences were light and where they were heavy, for if injustice had been done it ought to be rectified, whether the sentences were severe or not. With regard to Quarter Sessions, whatever line might be drawn between them and the Assizes, he (Mr. Stuart- Wortley) hoped in future the commissions to the Judges of Assize would be so revised as to relieve them from the necessity of clearing the gaol by trying cases which could be very well disposed of by Quarter Sessions. He was in favour of the proposal of allowing accused persons to give evidence; but he had some doubt whether in that way they would elicit anything in the nature of substantive evidence of any great value; but, at any rate, they would be able to discover at some stage of the inquiry whether the prisoner had put forward different defences which were inconsistent with each other, and thus, in alarge number of cases, make impossible the preparation of all those elaborate alibis by which justice was now so often defeated. He trusted that in dealing with this subject Her Majesty's Government would not consider themselves bound to take up the whole of the Code, but would see their way to dealing separately with its independent parts. Although there was great need of codification of the Criminal Law, yet the necessity was not one which pressed with particular heaviness upon the public, because, as a matter of fact, the duty of interpreting and administering the law fell upon persons who were competent to perform the duty; so that it was really only a question of a smaller or greater amount of expense in obtaining opinions of the necessary weight. But, in matters of procedure, he thought there was great reason in the desire of the public for an improvement; and he hoped the Government would soon see their way to dealing with that portion of the Code.


said, he agreed with the hon. Member for Stoke (Mr. Broadhurst) that there was great necessity for Amendment in the law of criminal procedure. He also thought that a right of appeal in criminal cases was absolutely necessary. There could be no difficulty in granting a right of appeal in such cases, any more than in civil cases. In his opinion, pressure, if necessary, should be put on the Government to induce them to establish a proper tribunal for the hearing of criminal appeals, there being no satisfactory promise to be deduced from the assurances given. He was disappointed that the Bill had not met with greater encouragement as regarded its principles than it had received from the Government.


said, he should be glad to see any improvements in criminal procedure; but in this Bill there were so many controverted points that he feared its promoters could hardly expect to make any real progress with it in the present Session. As to the Court of Appeal, he could not agree with the last speaker, because an appeal would be made in every case where the accused person had sufficient means; and, as a rule, he believed the Criminal Law was rightly administered. There was, however, one proposal in the Bill to which he gave his entire approval—namely, that a prisoner should be entitled to give evidence on his trial. He could not understand on what principle the law shut the mouth of a person who was charged with an offence. It was a still more monstrous scandal that the wife of an accused person could not give testimony on his behalf in a Court of Justice. He had himself known instances of great injustice being done in consequence of the operation of this rule. It was also said that cross-examination would be dangerous; but he did not believe it would be at all dangerous to an innocent person.


said, he altogether dissented from the opinion expressed by the hon. and learned Member for Plymouth (Mr. E. Clarke) as to the advantage of allowing prisoners to tender themselves as witnesses. He protested against the statement so frequently repeated in Courts of Justice and in the Press that a prisoner's mouth was shut. On the contrary, a prisoner had the very best opportunity of giving an account of his conduct when he was charged before the magistrate, at a time when it could be inquired into; and any reasonable account of his conduct which he might then give, however false it might be, would, if the prosecution did not inquire into its truth, be taken at the trial to be true. The most that could be said was that his mouth was shut on his trial in the same sense as hon. Members' mouths were shut while he (Mr. Bulwer) was addressing them; but it was not always shut. It had been suggested that persons should be examined and cross-examined from the dock. This might lead to gross injustice; not only by encouraging the police to bring an unfounded charge against a man of bad character, but of a man being convicted, not because it was proved that he had committed the offence with which he was charged, but because the jury would know—what at present they were not allowed to know—that he had committed some other. It was very difficult to see what limits could be put on such a cross-examination. If it were permitted, difficulties would arise from statements made at the last moment. Few prisoners would ever make a defence when before the magistrate, but would reserve it for the trial, and rely upon legal ingenuity in the meantime supplying them with some plausible statement to put before the jury, into the truth of which it would then be impossible to inquire. But in many cases inquiries would be absolutely necessary, and great inconvenience would be occasioned, either by preventing the jury from dispersing—perhaps for weeks—or by letting them go and summoning them again. From an experience of 30 years in the practice of the Criminal Law, his belief was that no great amount of injustice was done. It certainly was not administered in any spirit of harshness or injustice towards the accused, for he believed that for every innocent man convicted 99 guilty ones escaped. With respect to appeals in criminal cases, he would merely add to the objections to the proposal, that he thought that the institution of an Appeal Court might lead to less trouble being bestowed on trials of prisoners, because it might be thought that errors could be rectified by the Court above.


said, he was very glad that the hon. and learned Gentleman the Attorney General had practically pronounced against persons being put for the second time on their trial for one offence, because everyone familiar with Courts of Justice must be aware that juries occasionally gave the most perverse and wicked verdicts. But, notwithstanding that, it would, in his opinion, be far more in the interests of justice that the finality of proceedings should not be disturbed, than that an appeal should be possible in a few cases of mistake. When legislation was proposed on this question, the House would do well to let prisoners tender themselves as witnesses, for although he did not agree that their mouths were entirely closed, it would be far more satisfactory; and he still thought that the interests of justice would be promoted by permitting them to tender themselves for examination. If that were allowed, juries would convict in many cases by reason of the prisoner not tendering himself for examination. It was highly desirable, also, that the wives of prisoners should be made admissible as witnesses for the defence. Great injustice was now occasioned by prisoners not being able to call them. There had been much uncalled for animadversion upon the Judges for the supposed inequality of their sentences; but with regard to the matter it should be remembered that a sentence depended not so much upon particular offences then laid to the prisoner's charge, and of which he had been found guilty, as upon his previous career in crime. As regarded it, he would throw out the suggestion that, in order to equalize them, there should be maximum and minimum sentences within which a Judge must keep in all cases in which previous convictions within a short period were recorded against a prisoner.


said, he entirely differed from the view taken by the hon. and learned Member for Knaresborough (Mr. Thomas Collins) that wives should be permitted to be examined in favour of their husbands, because the thing they most wished to avoid was the manufacture of evidence; and who was more likely to be tempted to manufacture evidence than the poor wife in favour of her husband? He (Mr. W. H. Leatham) had always regretted that in affiliation eases the defendant was now permitted to be examined in his own case, which often led to perjury. He would not, however, jeopardize the second reading of the Bill by saying more, as the hour was so late.

Question put, and agreed to.

Bill read a second time, and committed for Wednesday 7th June.