§ Order for Second Reading read.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Attorney General.)
§ MR. STANLEY LEIGHTON
I rise, Sir, to a point of Order. I wish to call your attention to the fact that Part VIII. of the Bill, which we are now asked to read a second time, is the same in substance as the Bill the second reading of which was resolved in the affirmative on Monday last. I presume that you. Sir, take official cognizance of the contents of that Bill. Its object and its title is "To Establish a Court of Appeal in Criminal Cases." Part VIII. of this Bill also proposes to do the same thing by providing that any five Judges of the High Court shall be a Court of Appeal in criminal cases. And it is further proposed that that Court, when constituted, shall deal with the same subject-matters as those which are included in the Bill already referred to the Grand Committee—that is to say, the constitution, jurisdiction, and evidence which appertain to a Criminal Appeal Court. Now, I wish to call your attention to the law of Parliament on this matter, as stated in the book to which we all refer. I find that in page 305 of Sir Erskine May's book, it is said—It is a rule, in both Houses, not to permit any question or bill to be offered, which is substantially the same as one on which their judgment has been expressed in the current session. This is necessary, in order to avoid contradictory decisions, to prevent surprises, and to afford proper opportunities for determining the several questions as they arise. If the same question could be proposed again and again, a session would have no end, or only one question could be determined; and it would be resolved first in the affirmative, and then in the negative, according to the accidents to which all voting is liable, and a mere alteration of the words of a question, without any substantial change in its object, will not be sufficient to evade this rule.And then, Sir Erskine May proceeds to quote precedents— 91On the 7th July, IS 10, Mr. Speaker called I attention to a motion for a hill to relieve I Dissenters from the payment of Church rates before he proposed the question from the Chair. Its form and words were different from those of a previous motion, but its object was substantially the same, and the House agreed that it was irregular, and ought not to be proposed from the Chair. Again, on the 15th of May, 1860, the order for the second reading of the Charity Trustees Bill was withdrawn, as it was discovered to be substantially the same as the Endowed Schools Bill, which the House had already put off for sis months.Now, the Charity Trusts Bill and the Endowed Schools Bill, are precisely on all fours with the case before us the former simply provided that persons of any religious denomination might be trustees of a charity. The latter dealt with the government of endowed schools, with the masters, scholars, parents, course of teaching, &c. But because the two Bills happened to coincide in admitting to trusteeship persons of any religious denomination, the Speaker declared their objects substantially the same, and declared the rule in these words—That a question being once made and carried in the affirmative or negative cannot be questioned again, but must stand as the judgment of the House.You will see, Sir, that affirmation and negation in this case are convertible terms, and that it does not matter whether the former Bill has been affirmed or negatived. You will also notice that the question must be decided by the Speaker, and not by the majority of the House. Now, in order to test whether Part VIII. of the present Bill is not identical with the Criminal Appeal Bill, I may call attention to the fact that there is an Amendment upon the Paper, which was suggested by the speech and Amendment of the hon. and learned Member for Launceston (Sir Hardinge Giffard) on the former Bill. That Amendment is to the effect—That no Bill on Criminal Procedure will be satisfactory to this House which diminishes the responsibility of the jury by giving an appeal against their verdict.Now, that is an Amendment which would have been fatal to the first Bill; and I ask whether every speech made for and against the Criminal Appeal Bill, would not, when we discuss this Amendment, be pertinent to the Bill now proposed? This, therefore, is a second Bill 92 on the same subject, and if the Government should persevere in the course they have taken, may they not bring in a third Bill, and may not every one of the 600 Members of this House bring in a Criminal Appeal Bill sandwiched in this way between the clauses of another Bill? If that is done, that which Sir Erskine May so clearly prophesied, will inevitably take place. The Session will have no end, and the only possible result can be the passing of one Bill. In point of fact, if we accept the Amendment I have read to you, we shall come to a contradictory conclusion on the same matter, in the same Session; and the object aimed at in this rule is to prevent the possibility of such a thing occurring. I would also suggest this further test—supposing the first Bill had been rejected, would it then have been possible, in that case, for the Government to have brought in this second Bill, containing, as it does, a number of clauses to secure an object which had been already rejected by the House? I have pointed out to you, Sir, that, according to precedent, whether a Bill is affirmed or rejected, the rule which forbids its re-discussion is precisely the same. All I ask you now is, whether Part VIII. of the Bill now before us is not substantially the same as the Criminal Appeal Bill. If you declare it to be the same, then, I presume, the House will accept your ruling, and not proceed with the second reading of the present Bill? I may also add that the hon. and learned Gentleman in charge of the Bill has already admitted that the two measures with regard to Criminal Appeal are practically the same in principle, and that it is only in matters of detail that they differ.
§ MR. SPEAKER
I have examined the two Bills to which the hon. Member refers. The scope of the one is limited to providing a Court of Appeal; the other has a much wider scope. Now, these are both measures for the consideration of the House; and, as the House is well aware, it very often has before it several Bills for effecting the same object. No doubt, if one of these Bills were rejected by this House, and it were proposed then to proceed with another Bill substantially the same, it would be irregular. But no Bill has been yet rejected by this House on this matter; and I see no ground for interposing between the hon. 93 and learned Gentleman and the House with respect to the Bill now before the House. With regard, to the quotation which the hon. Gentleman has cited, it does not apply, because that quotation does not refer to Bills under the consideration of this House. These two Bills are now under the consideration of the House, and it is open to the House to take whichever Bill it prefers, or to consolidate them if it thinks it necessary to do so.
§ MR. MORGAN LLOYD,
in rising to move, as an Amendment to the Motion—That, in the opinion of this House, no Bill is satisfactory which, in a trial for criminal offence, directly or indirectly compels the accused person or his or her wife or husband to submit to cross-examination,said, he wished to support the Bill, and not to throw any difficulty in the way of its second reading. But he thought there were some provisions in the Bill which ought to be discussed in the House, and not left to be disposed of in the Grand Committee. Those were provisions which involved a fundamental change in some of the most cherished principles upon which the administration of our Criminal Law was founded. It had always been a recognized principle of our law that no man was bound to criminate himself, and persons accused of crime were, therefore, incapable of giving evidence either for or against themselves. Now, the present Bill proposed to depart from those principles, and to make prisoners admissible witnesses and liable to cross-examination. In other words, it proposed to substitute the Continental for the English system. It would be said, no doubt, that prisoners were only made admissible witnesses on their own behalf, and were not compelled to give evidence for the prosecution; but would anyone say that if a prisoner was by law an admissible witness for the defence, he would not be morally compelled to give evidence? If he did not tender himself as a witness, his silence would be taken as an admission of guilt. To enable him to give evidence was, therefore, to compel him to do so. The change was proposed in favour of the accused; but would he be benefited by the change? He could now make a statement not upon oath, if not defended by counsel, and many Judges had allowed him to do so even 94 when so defended. Would his statement obtain greater credence if given on oath? At present, the Judge hold the balance fairly between the prisoner and his accuser; but if the proposed change were made, the Judge might come into conflict with the prisoner, and there was danger that at English criminal trials such scenes as had been seen in Continental countries might occasionally be witnessed. Another objection to the change was that it would lead to perjury. If a prisoner gave evidence, he would be bound in self-defence to deny his guilt. If convicted of the crime charged, he would therefore be virtually convicted of perjury. Was he to be tried and punished for the perjury? And, if not, what a spectacle would be presented to the country of perjury going unpunished. He thought the proposed change most dangerous, and trusted it would not be adopted by the House. He begged to move the Amendment which stood upon the Paper in his name.
§ There being no Seconder, the Question was not put.
§ MR. INDERWICK,
who had given Notice of the following Amendment:—That no reform of the Procedure in Criminal Cases will be satisfactory which does not provide that the evidence of persons charged with crimes and offences shall be taken in all respects as if they were defendants in civil causes,said, that, in dealing with the question, they ought to adopt some general and comprehensive principle, and not proceed in the partial way they were then doing; and the best system to adopt in our criminal legislation was that which would so conduct the investigation as most certainly to elicit the truth. In recent times the tendency of legislation had been, not only to permit plaintiffs and defendants to give evidence on their own behalf in civil cases, but actually to compel defendants to give evidence against themselves. This remark would also apply to certain offences under the Licensing and other Acts, and to proceedings to be taken under the recently and rapidly-passed Explosives Act; and it was further extended in bankruptcy cases, where bankrupts were compelled to answer questions as to the disposal of their property, whether those questions tended to convict them of a criminal offence or not. As an instance of the impolicy of the rule which enabled par- 95 ties to avoid asking questions tending to criminate, he might refer to the sale of commissions in the Army. There were questions constantly arising upon the payment of over-regulation prices, and Messrs. Cox, the Army Agents, were examined over and over again, but declined to answer, as they were not bound to criminate themselves. Now, such a system could never have arisen but from the fact that the evidence of what really took place could never be obtained. Thus the House had to regard those illegal sales as an established practice, and the country had to pay accordingly. Another privilege of defendants was, that their husbands or wives, as the case might be, could not give evidence against them during the continuance of the marriage. The Bill had adopted the principle that defendants should be competent to give evidence in trials for indictable offences, if they thought proper. But the Commissioners had not had the courage to follow out the principle to its full logical extent. Undoubtedly, the great majority of the people of this country, and probably of that House, recognized that it would only be just and right to allow prisoners to give evidence. He hoped, therefore, that when the Bill wont before the Grand Committee, that Committee would take into its consideration that such was the case. He might quote on that side the opinion of Mr. Russell Gurney, than whom, from the great amount of his experience as a Criminal Judge, there could be no greater authority on the subject, given in speaking on the Bill of 1878, which was introduced by the hon. Gentleman the present Under Secretary of State for the Colonies (Mr. Evelyn Ashley). Mr. Gurney said that the whole object was the ascertainment of the truth, and that the proposals of the Bill took away a great burden from his mind; for he could not bear that any jury should convict a fellow-man until all the evidence that it was possible to obtain had been thoroughly sifted. Mr. Justice Stephen, too, in his book, stated that the power of giving evidence would be a positive assistance to the innocent, and no hardship to the guilty. The old law had been altered in respect of matrimonial offences, and the new law was found to work well. He (Mr. Inderwick) had had especial experience of the working 96 of the system, and never heard any objection raised against it. His hon. Friend who had just sat down had objected to the Amendment on the ground that it was un-English. That might be so, at the present time, in the sense that it was not part of the English law; but it had not always been so. It was formerly the law of this country that accused persons might be examined by the Judge, and the questions put by the presiding Judge to the prisoner were generally found to assist the innocent. It was so in the earliest State trials, in which many instances might be found of questions addressed to prisoners. It was, however, said that an innocent man might, by his nervousness or timidity, give the impression of guilt, and that an ignorant man might, in his ignorance, say something which might incriminate himself. If he thought so, he should not introduce such an Amendment; but, from his own experience, he believed that cross-examination would be in favour of an innocent person, for during its course it would be able to set right any mistake he might have made in his direct examination. After all, the thing to be considered was the best way of arriving at the truth. There was, no doubt, a good deal of cross-swearing in civil actions, the plaintiff stating one thing and the defendant another; but, on the whole, justice was done and the truth ascertained. He would place the defendant in a criminal action, that was, the accused person, in the same position as the defendant in a civil suit, and allow him to tell his own story. The questioning of a prisoner by the Judge, so as to give him an opportunity of making his statement on any point with regard to which explanation was required, was a kind of questioning that would be directly in favour of the prisoner, if he were innocent. To put the prisoner in a criminal suit in precisely the same position as a defendant in a civil suit would, in the first place, have the effect of relieving many innocent persons from grave suspicion. The prisoner would have the benefit of his cross-examination, if he were innocent; and, on the other hand, the country would have the benefit of it, if the result of the examination should terminate in the demonstration of his guilt. His view was that the prisoner should be put on his oath, and examined and cross-examined, when he 97 came up for trial, either before a magistrate or a Judge of Assize. He would place the man in the witness-box, and not in the dock. He desired to draw attention to this circumstance. The Bill, in its present shape, provided that the accused might be a competent witness for himself on his trial. He would not, however, delay that step so long, for, in his opinion, the time when it was most important that a man should be a competent witness on his own behalf was when the charge was first brought against him. He would, therefore, allow a person charged with a criminal offence to give evidence, and make any explanation he might have, at the earliest opportunity—namely, before the magistrates, and before he had time to concoct a story to explain away any suspicions which might attach to him. Thus the prisoner would have a good chance of escaping the imprisonment preliminary to a trial; for if, on inquiry, his statements were found to be true, and he could show his innocence, he would, of course, be set a liberty at once; while, if he were guilty, the power of the prosecuting counsel to question him would often have the effect of preventing him from setting up one of those false alibis which were a scandal to the administration of the law at the present day.
§ MR. STANLEY LEIGHTON,
in rising to move, as an Amendment—That no Bill on Criminal Procedure will be satisfactory to this House which does not provide for the return of the verdict by a majority of the jurors; the public interrogation of the accused before committal and before conviction; and the assignment of counsel to prisoners,said, he regretted the hon. and learned Gentleman the Attorney General had not thought it worth while to explain what alterations in the present system Her Majesty's Government were prepared to accept; for, in his (Mr. Leighton's) opinion, a subject of this sort ought to be brought to the touch of public opinion, and not kept wholly in the hands of Judges and lawyers. Our laws should be brought into harmony with common sense. English law was founded not in reason, but on precedent. Lawyers were not jurists. Many Judges, like Mr. Justice Lush and Mr. Justice Blackburn, who were on the Commission for the Codification of the Law, had probably never gone into a Criminal Court before they were raised to the Judicial Bench; 98 Few lawyers had ever been present at the proceedings before the committing magistrates; still fewer had ever been inside a gaol; and, consequently, they were unable to realize how helpless the position of a prisoner was before he was brought to trial. Mr. Justice Stephen, whose opinions were in many instances overruled, was the only one of the Commissioners who was a jurist and criminal lawyer. Many of the defects of the present system were stereotyped in the Bill—for instance, no real attempt was made to amalgamate the Scotch and the English Criminal Codes. The subject of bail, again, was one which required attention, as, under the existing law, it was possible for a prosecutor to be imprisoned while a prisoner escaped. It had happened that the captain of a Russian vessel, robbed of his watch the day before his vessel should sail, declined to be bound over to prosecute, and was therefore detained in prison, while the accused was admitted to bail, and absconded; so that when the day for the trial came the prosecutor, who had lost his watch, had been imprisoned a fortnight, and the thief escaped scot free. Injustice was also done by the exclusion of the evidence of those who did not understand or acknowledge the nature of an oath. A minister had been waylaid and robbed by two members of his congregation, and the only witness was a little girl, who, as she was attending a board school, did not understand the nature of an oath. The result was that the case was dismissed for want of evidence. The question of keeping up the distinction between felony and misdemeanour was one which required to be carefully considered. This Bill defined the evidence requisite for a committal as evidence sufficient to put a man upon his trial. Now, clearly this was no definition at all; the true test should be whether, in the opinion of the magistrates, there was evidence sufficient to procure a conviction. Among the omissions from the Bill was the absence of a provision for the summary punishment for false swearing, which would enable that offence to be as promptly dealt with as a contempt of Court, which was the system in Scotland. He now addressed himself to the special points of his Amendment. This country was quite singular in requiring unanimity on the part of a jury. Elsewhere 99 verdicts were taken of 11 to 1, 8 to 7, 8 to 4, 6 to 3, and of a bare majority. Scotland, France, India, our other Crown Colonies—everywhere, in fact, where trial by jury existed—the verdict of the majority was accepted except in England. The unreasonableness of one man on a jury was able to control the reason of 11. Bentham said we obtained unanimity by torture, and a verdict was a compromise. Hallam said the law requiring unanimity was a relic of barbarism; and the verdict of a majority was supported by lawyers of the highest eminence. There was no reason why the practice in English Courts of Justice should be different to that in other Courts of Justice, or to that of public Assemblies, or a Bench of Judges, where all questions were decided by a majority. The Commission appointed by the House in 1835 had reported in favour of a change in this respect; and one, at least, of the learned Judges who had sat on the Commission had also thought it necessary. The present system was founded on a misunderstanding of the origin of English juries, who were witnesses of the facts rather than judges of the evidence in early times. Neither in Anglo-Saxon nor in feudal times was unanimity essential. The system of interrogating prisoners worked well in Scotland; until recently, it had been practised in England also. The fact was that the modern plan of allowing counsel to prisoners had virtually closed their mouths. This privilege was only permitted as late as 1836. When a prisoner was obliged to defend himself, he was virtually bound to answer the evidence brought against him, which was a very different thing from being defended by counsel, with his own mouth conveniently closed. Our present system was very unfavourable to poor, illiterate, and undefended prisoners. He desired, therefore, to permit the interrogation of prisoners, but not without the safeguards provided by the Scotch law. Then, again, the prisoner ought to have a right to see the depositions without paying for them. If the public examination of the prisoner appeared on the depositions, then the Judge at the trial would be able to understand what was the line of his defence, and assist him in it. The law as it stood now was strongly in favour of the rich, the educated, and, it must be added, the guilty: and he cordially 100 shared the opinion of Mr. Justice Stephen, that the interrogation of prisoners ought to be permitted, as giving them the opportunity of establishing their innocence, or providing the means of proving their guilt. The last part of the Amendment related to the assignment of counsel to the accused in every case, which, he contended, ought to be the invariable rule, and should not be done only in cases which involved issues of life and death. Precisely the same care to secure a right verdict should be taken in every case; and if the Government and the country were too stingy to provide for the payment of counsel, counsel should be assigned without payment. The hon. Gentleman concluded by moving the Amendment of which he had given Notice.
§ SIR GEORGE CAMPBELL
said, he would second the Amendment, because he thought the hon. Member (Mr. Leighton) had got the right sow by the ear, or, he might say, had got several right sows by the ear. At the same time, he hoped the hon. Member would not press the Amendment too far, because he (Sir George Campbell) very much hoped that this Bill would be read a second time; and the effect of the Amendment, if carried, would be to defeat the second reading, and thus destroy the Bill, the only defect in which was that it did not go far enough.
§ SIR GEORGE CAMPBELL,
in reply, said, that he would second the Amendment as a matter of principle. From the Queen's Speech, they were led to believe that they should have to deal with the codification of the Criminal Law; but, after that, it was altered to a Bill dealing with criminal procedure; and now, when it was absolutely introduced, they found it only dealt with a fragment of that procedure as regarded indictable offences, while there were many things connected with that subject which were of the utmost importance, and which it did not touch. He might mention, as examples, the constitution of the Courts, and of common juries; whether the verdict of the jury was to be unanimous, or by a bare majority, or by what majority; how witnesses were to be examined; the subject of oaths, and so on. In almost all other countries it was not considered necessary that 12 jurors 101 should agree. His hon. and learned Friend (Mr. Inderwick) thought that the defendant ought to be examined, as in civil cases. For his own part, he (Sir George Campbell) would very much prefer a public examination of the accused before committal and before conviction. In regard to the interrogation of the accused, when he was apprehended, and in several other respects, the Criminal Law of Scotland, as was admitted by all who had had any experience of its working, was much superior to the English law; and in England it might be of great advantage to draw instruction and example from the Scotch law. He had spent most of his life in India, under a system in which the interrogation of the accused occupied a most important place, and had acted as an Appellate Criminal Judge. He almost invariably found that, in order to come to an opinion as to the nature of a case, about the first thing that was asked was—what did the accused say? He could testify to the fact that, in the interests of the innocent man, much more than in the interests of the prosecution, it was essential that an opportunity should be given to the accused of stating his case. In former days, while the English criminal procedure prevailed in Calcutta, he, as Judge of the High Court, tried a case of serious robbery of which two persons were accused, one or other of whom was guilty. One happened to be rich, and employed counsel, who defended him ably. The other was undefended, and apparently totally unable to conduct his own defence. To the surprise of the clerk he told the interpreter to ask the man to state what he had got to say, and he burst into so eloquent a defence that he was acquitted and the other was found guilty. Though he should not like to see the accused examined on oath, he certainly thought he ought to be judicially interrogated, so that he could give an explanation of his case; and he hoped that matter would be fully considered in detail when the Bill was sent to the Grand Committee.
To leave out from the word "That" to the end of the Question, in order to add the words "no Bill on Criminal Procedure will be satisfactory to this House which does not provide for the return of the verdict by a majority of the jurors; the public interrogation of the ac-
cused before committal and before conviction; and the assignment of counsel to prisoners,"—(Sir. Stanley Leighton,)
§ Question, "That the words proposed to be left out stand part of the Question," put, and agreed to.
§ Main Question again proposed, "That the Bill be now read a second time."
§ MR. A. ELLIOT
said, he thought the Bill under Notice was an important measure which might be considered in two lights; either in the light of a measure to codify the law, or in the light of a measure introducing some proposals not very numerous, but of a very important character. As to the codification part of the Bill, he shared the regret of his hon. Friend (Sir George Campbell) that it did not go further; and he very much regretted the Government had not introduced the very complete measure to which had been devoted an enormous amount of time and trouble on the part of some of the ablest lawyers. It seemed to him a somewhat strange thing that when English lawyers met together to consider criminal procedure, it did not strike them, as it struck everyone acquainted with other systems, that it was the enormous cumbersomeness of the English system that was so trying—the enormous amount of trouble that was taken, and with so very little result. What happened in the case of murder committed in England? Why, first of all, there was an inquiry before a Coroner and 12 jurors, then the case was investigated by a magistrate, afterwards by the Grand Jury, consisting generally of 23 gentlemen, and, finally, by a Judge and jury; so that they had, at least, something like 50 persons altogether inquiring into the one case. In such a case in Scotland the preliminary inquiry would be by the Public Prosecutor, who would go to the scene of the murder, and make his own inquiries and examine witnesses on the spot, and ask questions of the prisoner himself; and after that the case would be ripe and ready for the final tribunal—a Judge and 15 jurymen. The question of the advisability of Coroners' inquiries into such cases had often been considered; and at Liverpool, some years ago, the Solicitor General recommended the total abolition of such inquiries, and he (Mr. Elliot) would even go further and say that the Grand 103 Juries as a system might be dispensed with. The inconvenience caused to jurymen by attendance at Quarter Sessions, which were held in boroughs every six weeks, was very great. It was, therefore, desirable to consider whether some change in the system requiring their attendance ought not to be effected. He should be sorry to say anything about the Scottish system which would seem to suppose that it could be brought wholesale into England; but with respect to the question of public prosecutions, it should be remembered that had been recommended by some of the greatest of the English Judges; and, in 1874, the Judicature Commission reported in favour of the system which placed every criminal case from the very commencement in the hands of Public Prosecutors. There were many important changes that required making—for instance, with regard to the examination of prisoners, he thought it was desirable not merely that the prisoner should be examined before the trial, but that he should be examined, with proper safeguards, when he was before the Judge. Another desirable change which had not been adverted to in the Bill was the simplification of indictments.
§ Notice taken, that 40 Members were not present; House counted, and 40 Members being found present,
§ MR. A. ELLIOT,
continuing, said, that another matter that required careful consideration, though of minor importance, was the question of dealing with special juries in criminal cases, as it would be extremely undesirable that there should be the appearance of having class juries. There were certain cases where crimes were committed that required close attention on the part of the juries, the cases, such as frauds, being of a complex and intricate nature. Still, he did not approve of the proposals that were made in the Bill, as he thought it should be provided that only in cases of complexity should special juries be granted. In this matter, also, they might again look across the Border and see what was done there. In Scotland there were no special juries, but they had a mixture of special jurymen on every panel, which insured certain men being upon each jury who were capable of thoroughly understanding the case. 104 Those were all the remarks that he would now trouble the House with upon the Bill; but he must say he was surprised at the little interest that was taken in such an important subject beyond the interest taken in it by legal Gentlemen, especially when it was remembered that it was a Bill that effected important changes, and touched all classes.
§ SIR R. ASSHETON CROSS
said, there were very serious changes contemplated by that Bill in the administration of the Criminal Law—many of them, he thought, very great improvements. For instance, he had always thought that the Statute limiting the jurisdiction of the Quarter Sessions was a very wise measure; but he agreed that the jurisdiction of the Quarter Sessions required alteration, and he had not the smallest doubt that when the Bill came back from the Grand Committee the clauses bearing on this point would be very much improved. It had always seemed to him that the existing law on the subject drew a line which satisfied nobody; because, whilst, on the one hand, Quarter Sessions had some very difficult cases to deal with, on the other hand these powers were circumscribed in much more trivial matters. There was a new provision in the Bill on which he should like to make a remark. It was one which, although it was contained in the Explosive Substances Bill passed the other day, would require consideration—namely, the power to examine into a suspected offence before any person was charged at all. That, he thought, in many cases might be a very proper proceeding to be exercised. At the present moment he had forgotten what the practice in Scotland was in that respect; but his impression was it was the universal practice. He did not agree with a remark recently made by the hon. Member opposite (Sir Georgo Campbell), to the effect that the Criminal Law of Scotland was very much better than that of England; in some respects it was still, if he might say so, in a very barbarous state, especially the long examinations sometimes held in the absence of the accused person. That, in this country, we should not stand at all. He was not quite certain whether, as a matter of justice, it might not be necessary to introduce some safeguards into the preliminary inquiry, in order to protect the interests of those who might be suspected, but who 105 were practically innocent. First, with, regard to the provision respecting Special Juries, he would admit that, in some cases, it was necessary to have Special Juries; but, on the whole, this proposal should be watched with the greatest care. No man, simply because he had more money than another, ought to have the right to be tried by a Special Jury; and he should be sorry that the notion should get abroad that such a man could be tried by a different class of people. As to the form of the indictment, nothing could be more absurd than some of the present indictments laid before Courts of Justice; and he was of opinion that the simpler the indictment, the better for all parties, and especially the prisoner, who had a right to know, in as simple and clear a manner as possible, what he was going to be tried for. As far as the evidence of the prisoner was concerned, he was bound to say, after great consideration, that he had last year entirely come round to the feeling that it was wise, under all the circumstances, that the prisoner should be examined if he chose. He was quite aware there was this objection to adopting the practice—that if the prisoner said he would rather not be examined, it would raise a presumption against him; but, on the whole, he thought that no one who had had much experience in criminal trials could fail to be of opinion that it would be for the ends of justice that a prisoner should be allowed, if he chose, to go into the witness box and tell his own story as a matter of course. On the whole, he believed the practice, in so far as innocent prisoners were concerned, would be beneficial. There was one question only that he wanted to ask, and it had reference to criminal appeals. In this Code there was a provision giving to the Secretary of State a right, on an application made to him, practically to exercise the Prerogative of the Crown, and order a new trial. He must say, from his own experience at the Home Office, that he was afraid that it was a growing practice, in connection with criminal trials, to keep back evidence, instead of allowing it to be sifted in Court, with the view of sending it to the Secretary of State afterwards, in the hope that it might have weight with him. That was a very dangerous practice to be allowed to arise, because, unless witnesses were subjected 106 to severe cross-examination in public trials, you really would not know where the truth lay. He hoped the clause would be struck out; and he was glad to see that such a clause did not appear in the Court of Criminal Appeal Bill, which had been introduced the other day by the hon. and learned Attorney General. Such a provision would expose the Secretary of State to a pressure which it would be absolutely impossible for him to resist. The Bill was going before one of the Grand Committees upstairs, and he hoped that after it was there revised and overhauled it might become law in the course of the present Session. It was quite clear that the Bill, as a whole, was a stop in the right direction; and he hoped it would be followed up in future Sessions by other steps, so that they would have the great Code brought forward by the late Sir John Holker treated by degrees, and passed, Session by Session, into law. He hoped that a small Act would then be passed to say that the four Acts should all be treated as one, in order that the whole might be embodied in one Statute, which anybody might be able to see, and which, when they saw it, they would be able to understand. They would then have made an enormous stride, which would be of the greatest benefit, not only for criminals, but the cause of justice.
§ MR. EDWARD CLARKE
said, he wished he could feel as sanguine with regard to the future of the Bill and the other parts of the Code of the late Sir John Holker as the right hon. Gentleman who had just spoken (Sir R. Assheton Cross). He wished he could think that the almost absolute indifference with which the House had treated this question of Law Reform was an augury that these measures were likely soon to pass into law. He was afraid it simply meant a resolution of the House to delegate to the Grand Committee the consideration of all questions, not only of detail but of principle, connected with the Bill. The way in which the House had dealt with the question of Law Reform was a little disheartening. In the case of the Criminal Court of Appeal Bill, Members of the Legal Profession only took part in the debate, and they were rewarded by hearing a Member say that no one but lawyers had been allowed to speak. On the present occasion, the lawyers seemed to have taken 107 the hint; and he supposed they would be told that nobody, not even the lawyers, took any interest in Criminal Law Reform. He hoped the Bill would be passed into law that Session; but, at the same time, there were two or three matters in it deserving of serious consideration. The clause, providing for a magisterial inquiry into crime before any person was accused, was a clause of a remarkable and valuable character; but it was a curious thing it should be allowed to pass through the House on second reading practically without any discussion at all. He agreed with his right hon. Friend that the clause with respect to the powers of the Secretary of State to order a new trial should be expunged altogether, on the ground that the Secretary of State ought not to be constituted a judicial officer. If, however, it was allowed to stand, he would much rather see the power of ordering a new trial vested in the Attorney General than in the Secretary of State. He should not have risen, however, had he not been anxious to state the satisfaction with which he had listened to the practically unanimous opinion of the House that a prisoner in a Criminal Court should be examined. With one exception, all the speeches made in the present debate had been in favour of the examination of the prisoner; and now that the principle had been supported by the two Front Benches there was every hope that this clause would be passed into law. He believed there was no matter in which the public took more interest than that; and it seemed to him that it was the grossest wrong to an innocent man, charged with a crime, to treat him in the manner in which he was treated in this country, by preventing him from giving the evidence which might bring about his acquittal. Now, when an offence was committed, the ministers of justice looked about for the person who probably committed it; they arrested someone upon whom suspicion rested by reason of his profiting by the crime, or having been in the neighbourhood when it was committed; and the moment he was arrested his mouth was practically closed, and he was not allowed to give the evidence which might clear himself from the charge, and help to bring it home to the guilty person. He had, in the course of his experience, seen numerous hard 108 cases of this sort. He hoped that that was the last time on which that subject might be dealt with controversially; and, if for that reason only, he trusted that the present Bill might be added to the Statute Book.
§ MR. GIBSON
said, it was quite plain that, although the Bill had received the sanction of the Criminal Code authorities, it would require considerable attention on the part of the Standing Committee. Before the Bill was read a second time, he should like the hon. and learned Attorney General to give his views on Part VIII., which dealt with appeals. It contained an entirely independent Code, and was wholly inconsistent with the Bill relating to Criminal Appeals. He should like his hon. and learned Friend the Attorney General to state whether it was the intention of the Government to drop all the clauses in that part, and satisfy themselves in that respect with the Bill now before the Committee upstairs. Otherwise, he thought the position they took up in the matter was somewhat inconsistent. He wished also to ask him to clear up any misunderstanding or uncertainty that might exist in the minds of hon. Members as to what were the intentions of the Government in regard to Clause 122, which gave power to the Secretary of State to order a new trial. With regard to it, he must say that he agreed with his right hon. Friend (Sir R. Assheton Cross) in hoping that that section would be abandoned. The Bill, however, contained some very important proposals; and he felt bound to congratulate the Government on presenting an intelligible series of provisions regulating the appointment of special juries in criminal cases and a change of venue. He could not conclude without saying a word on the point of receiving the evidence of the accused. He had been for a long time in favour of that reform, and he believed that public opinion was quite ripe for the change, and that it would be productive of great advantage. He was glad to find that the Bill had not encountered any substantial hostile criticism, and he trusted that it might be tested upstairs, and passed into law before the end of the present Session.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
said, the question had been asked by his hon. and learned Friend the Member for Rye (Mr. Inder- 109 wick) why the Government had not introduced the Code as a whole? In answer to the question, he (the Attorney General) must say that his view was that it would be useless to do so, with any hopes of passing it through in one Session, or, indeed, to pass it through the Standing Committee. It contained something like 550 clauses, dealing with a vast number of subjects of the greatest importance, in which deep interest was taken, and on which much debate was to be expected. On the other hand, he had found that there was a general consent to the introduction of the Code in parts. That being granted, he thought it much better to take the procedure part first, for it stood more apart from the other sections of the Code than any other one section, and that was the reason why the present Bill was brought forward. His right hon. and learned Friend the Member for the University of Dublin (Mr. Gibson) had referred to the work which would have to be done by the Committee upstairs. There was, no doubt, much to be done; but the amount of work which would have to be done in dealing with the whole Code was much greater than any hon. Member was aware of. He wished to draw attention to several matters which had been referred to. He found that from the Press and other quarters he was receiving nothing but condemnation for his arrogance in proposing to make any alterations in the proposals of the Commission. He therefore thought it best to lay before the House the work of the Judges, endorsed as that work was by his late lamented Friend Sir John Holker. But he felt sure that the Grand Committee would have to spend great labour in bringing the Bill into its final form. He adhered, as loyally as he could, to the form of the Bill as it left the Commission, especially as it was a legacy from the late Government. He hoped, considering the spirit in which he felt sure the Committee would approach the consideration of the Bill, that a great advance would speedily be made in the way of codification. When, however, the details were considered, it would, no doubt, be found necessary to make many alterations; but, great as was the labour he saw before them, he did not think there was any reason for despairing that they would be able to pass it into law. With respect to the observations of the right 110 hon. Member for South-West Lancashire (Sir B. Assheton Cross) and the right hon. and learned Member for Dublin University (Mr. Gibson) with regard to the Court of Criminal Appeal Bill, he would observe that he had always hoped that the provisions of that Bill might form part of a Criminal Code. But he had found it impracticable to incorporate it in the Bill for the establishment of that Code; and therefore it was that he thought he would have been blame able if he had not put to the House itself the Court of Criminal Appeal Bill. It established a principle—that of an appeal of right—upon which the House was entitled to express an opinion. That was why the two Bills had been brought forward. But he hopped it would be possible to deal with both Bills together in Committee; and when the latter Bill had been settled in Committee, he should propose, if it were practicable, to incorporate it with the Bill under discussion. If, however, for any reason that were not possible, he should, of course, reserve the right to deal with the Appeal Bill separately, and not incorporate it in the Code Bill. To the suggestion that the question whether an appeal should be allowed should be left to the Secretary of State and the officials at the Home Office, he thought there were many objections. It might be said that the discretion would be exercised for political purposes; then, again, the duties of the Home Office were already so heavy that it was most undesirable to lay such a burden upon it. His hon. and learned Friend the Member for Beaumaris (Mr. Morgan Lloyd) objected to the accused being asked to give evidence. But that question was virtually settled by the almost unanimous opinion which had been expressed in favour of the principle. It was a more difficult matter to decide whether the evidence of the accused should be received at the magistrate's inquiry, or at a later stage of the proceedings. That, however, was a matter for the Committee. In Scotland, the examination took place at the preliminary investigation. But it should not be forgotten that there the magistrates were all trained lawyers. In this country, before unpaid lay magistrates, the greater part of whom were with, little, if any, knowledge of the rules of evidence, considerable danger might attend the practice. He did not think the 111 suggestion of the hon. Member for North Shropshire (Mr. Leighton) to incorporate English and Scotch law in one Code was feasible, as they were two entirely different systems of law; and such an operation could not be carried out until they were somewhat more assimilated than was the case at present. As to the question whether the verdict of the jury should be unanimous or by a majority, he was inclined to think that the time had not yet come for departing from the principle of a unanimous verdict. The feeling of this country still seemed to be in favour of requiring the unanimity of a jury for the conviction of a prisoner, though much might be said in favour of the verdict of the majority. With Judges of such high character as we possessed, and with the tendency to show the utmost fairness to the accused shown by the almost invariable assignment of counsel, no fear need be entertained of the working of the Bill, which, he hoped, would be moulded into an effectual and intelligible measure by the labours of the Committee.
§ MR. O'DONNELL
contended that the effect of referring this and other Bills to Grand Committees was to prevent anything like full discussion on the second reading. The House was not even to be provided with an adequate view of the Government policy, because it appeared that the Ministry would only bind themselves to what was accepted by the majority of a Grand Committee. Even the rooms in which the Grand Committees met provided for the exclusion of the majority of the House, for not more than 20 Gentlemen who were not Members of the Committees could find accommodation in them. These facts presented a state of affairs both unfair to the House and dangerous to the interests of the country. It was understood, on the adoption of the Grand Committee system, that the House would be favoured with a full exposition of the policy of the Government in reference to a Bill that was to be so referred; and this Bill was not second in importance to any that was to be so dealt with. Of course, the House would have to discuss afterwards many points that would be supposed to be settled in a small room from which the majority were excluded. Standing as he was on the banks of the Thames, where so many undiscovered 112 crimes remained unavenged, he was not likely to place any obstacle in the way of perfecting the instruments of justice; but he considered that many of the changes made by the Bill demanded the attention of every lover of fair play and liberty. He was in favour of an improved system of discovering and punishing real crime; but that was a different thing from investing officials with such powers of inquisition and torture as might, under the Bill, be inflicted upon a witness suspected by a magisterial official. The Bill included some of the most dangerous provisions passed for a limited period in exceptional circumstances in a Coercion Bill for Ireland. Before such formidable possibilities of grinding tyranny and oppression to be exercised by irresponsible officials upon the humblest and most defenceless class of the community became law, they demanded the most careful scrutiny, for a self-governing country like Great Britain, and still more for Ireland, where public opinion was powerless to restrain excess of authority, and appeal to England was of little avail. With the wholesale powers of arrest given by the Bill, the entire area of a country might be enmeshed within the hasty suspicions of a magistrate or of a police official; and if such a system were aided by the stimulus of police rewards, and the manufactured evidence of informers, there was the most formidable prospect of the worst kind of tyranny. The proposal to allow accused persons to give evidence might be a very wise innovation, and one that might be permitted as far as their own cases were concerned; but when so novel a principle was introduced as the power of undefined and irresponsible inquisition, none, however unacquainted with the working of the system in foreign countries, could fail to perceive the dangers that might arise from it. In France at this moment there was a general outcry against the laxity of juries, and their tendency either to acquit or to find extenuating circumstances—a tendency produced mainly by the feeling in the French mind against the inquisitorial processes which were virtually now to be introduced into England. He trusted that English law would not be deprived of any of its proverbial fair play; but the Bill seemed likely to destroy the ancient spirit of justice that had flourished 113 for 40 generations hitherto, for the sake of imitating the despotic Continental system; and, how would the Bill work in Ireland, where the people had already no confidence in the just administration of the law? Given an unscrupulous Public Prosecutor, policemen eager for rewards, a packed jury, and an Attorney General recently promoted to the Bench, all the materials were present for a judicial murder which must inevitably enlist the whole moral consciousness of the country against the administration of the law. Surely it would be better to let 99 guilty persons escape, than to convict one really innocent person in cases where the evidence was not clear and conclusive. He did not wish to deal with current events; but, at the time of the Fenian trials in 1867, the accused Fenians, who, except that they took illegal measures to overthrow the Government of England, were men in every respect of the utmost morality, honour, and probity, men of character as unstained as those of the knights of romance, stigmatized the evidence of the Grown witnesses as horrible and unscrupulous perjury. Witnesses might come in the night and whisper in the ear of the Inspector of police their suspicions against Irish politicians, whoso honourable opposition to the Government had singled them out for official hostility. Under the Bill, the Inspector might set on foot inquisitorial proceedings, and might cause not only the accused man to be arrested, but others also; and when they declared they had no evidence to give, might sentence them to week after week and month after month of imprisonment, till the dark cell, as real and as cruel as any mediæval torture, enfeebled the power, the will, and the constitution of the victims, and forced from them the very evidence which the prosecutors wished, whether it were true or false. The course taken by the Government in respect to this Bill, in excluding it from the general consideration of the House and referring it to a Grand Committee was such as to render it necessary for a combination of Members to be formed to consider the Bill carefully on those points which were dangerous to public and private liberty, and those points would be so considered seriatim at another stage. That consideration of the Law Officers of the Crown, in his opinion, had failed to 114 bestow upon it. Under the Bill the system of judicial procedure would be assimilated to that of the most despotic countries; and the House ought to have heard from Her Majesty's Government some statement with regard to safeguards to be provided against such an infringement of the liberty of the subject. He therefore protested against a measure of the kind becoming the law of the land.
MR. HINDE PALMER
said, that, in his opinion, the hon. Member for Dungarvan (Mr. O'Donnell) had strangely misrepresented the provisions of the Bill, and conjured up imaginary evils which were likely to result from its enactment, but which had no foundation in fact. For instance, he (Mr. Hinde Palmer) could not find, from one end of the Bill to the other, anything which resembled the examination of a prisoner by a Juge d' Instruction in France. He would have opposed the Bill as strenuously as the hon. Member for Dungarvan was inclined to do, if he thought that any of the evils alluded to were likely to arise under it. On the contrary, however, he found in it provisions as favourable to persons charged with criminal offences as it was possible to devise. With regard to the power of examining a prisoner, it must be remembered that this was optional; and considering the high authority, such as that of Sir James Stephen and others, which supported the proposal, he could not anticipate any evil results. On the contrary, he believed that the provision which allowed an accused person; to be examined, if he so desired, would be as much to the advantage of the accused as to the benefit of the prosecution. Again, he did not think it possible for the House to consider the details of such a Bill as the present with any good result. Indeed, he had always regarded the House as a very inefficient instrument for criticism of that character, and he believed its reference to the Grand Committee would have a good result. It would, in his opinion, tend to make it a perfect and complete measure; and when the Bill came down from that Committee, should it be found to contain any vital and fundamental principles which offended against public or private liberty, or that it tended in any degree to interfere with the fair trial of a prisoner, it could be reconsidered on 115 Report, and Amendments introduced. He hoped, therefore, that the second reading of the Bill would receive the support of the House, and that it would be sent to the Grand Committee. He considered the Bill a most earnest attempt on the part of the Government to consolidate and amend a portion of the Criminal Law, and he should vote in support of the second reading.
§ MR. MAYNE
said, he could not help giving expression to the greatest feeling of surprise he had experienced, during the short time he had been in that House, at its emptiness, when a Bill so important both to Irish and English Members was under consideration. It was a measure which dealt with the liberties of the people in a fashion they had not been dealt with for centuries; and it was no use for hon. Members to shirk the responsibility of dealing with its obnoxious principles by referring it to a Grand Committee, on which a large number of them had no seat. A questionable portion of the measure was that which made persons not accused of anything more serious than of being possible witnesses, liable to be committed to prison from week to week without, as it seemed, any limit whatever. Another innovation was that against which the Amendment he had placed upon the Paper was directed—namely, the system of packing of juries. His experience of judicial proceedings in Ireland had led him to propose that Amendment, for he had seen respectable jurors ordered to stand aside by a minor Government official in a very inconsiderate manner. That course of proceeding had given very grave dissatisfaction in Ireland, and particularly in Dublin, especially as it was done on no other ground, apparently, than that of religious belief. It was only recently that the system had become objectionable; because it was unnecessary, so long as jury packing was possible under the law existing up to 1871. Up to that time jury packing had been elevated almost to the dignity of a science; it had, indeed, come to such a state that the Government of the country could not fail to see that the confidence of the public in Ireland was completely alienated. Consequently, in 1871, Lord O'Hagan introduced a Bill on the subject, and, in doing so, said—On one of those unfortunate party trials which occasionally occurred in Ireland, there 116 was a challenge to the array, which succeeded, on the ground that the first 70 named on the panel were Protestants, and that, while the panel consisted of 250 names, 202 were Protestants, and only 48 Roman Catholics.He also said that—Such a state of things was monstrous and inconsistent with decent administration of justice.And added that—If the objects of the Bill introduced were gained, he was persuaded that the Government would thereby inspire the people of Ireland with a confidence in the administration of justice in that country."—(3 Hansard,  1033–4.)The Bill, which he might remind the House was supported or introduced by almost the same Government as was now in Office, was passed, and it did inspire the people with confidence in the administration of justice. Jury packing was stopped for a time; but they now had evidence that it might be brought about and practised in other ways than that which was stopped by the Bill of Lord O'Hagan. Recently, owing to a difficulty in criminal cases, a new system of tactics had been adopted. The difficulty was, not to get juries ready to convict, but to procure evidence of a sufficiently satisfactory character to satisfy a conscientious jury. And the difficulty had been overcome in some cases, apparently, by such a system of selection as succeeded in placing 12 men in the jury box that were supposed, in the matter of evidence, to be easily satisfied. It was a mere restoration of the old system of jury manipulation; a system which ordered a respectable gentleman like Mr. Leetch to stand aside—a gentleman whom the Government made a magistrate, while their minor official ordered him, as a juror, to stand aside in Green Street. It would have been better to have abolished trial by jury altogether in political cases; better, as the hon. Member for Dungarvan (Mr. O'Donnell) had said, to let 99 guilty escape than to convict an innocent person in cases where the evidence was not clear. In seven cases recently tried in Dublin, 56 jurors were necessary; and, of these 56, 47 were Protestants, and only nine Roman Catholics. The first jury was composed of Protestants entirely; the second, of 11 Protestants and one Jew; the third, fourth, and fifth, of all Protestants, and so on. The result was a state of things almost 117 worse than that condemned by Lord O'Hagan; there had been an outcry from all classes of society, especially in Dublin, against it, and at no time had public confidence in the carrying on of judicial proceedings at Green Street been so estranged and alienated as at the present. They might well omit from the Bill a power which had been so greatly abused, and it would still have the purpose and effect intended. There was a provision in the Bill by which these juries were to be drawn by ballot; and it was clear that the arrangement by which jurors were to be drawn out of a box, having their names written on a piece of card-board, was made in order that a jury might be obtained in that way who would be perfectly indifferent between the prosecutor and the accused. But that power of balloting would be neutralized if the power of selecting after the ballot was retained in the Bill. If he were in Order, he desired to move, by way of Amendment—That it is inexpedient to include in any measure for the reform of criminal procedure any provision enabling a prosecutor in a criminal case to order a Juror brought to the Book to stand aside.
§ MR. SPEAKER
I must inform the hon. Member for Tipperary that he cannot move his Amendment, the House having already negatived the Amendment of the hon. Member for North Shropshire (Mr. Leighton). Therefore the only Question before the House is the Motion that the Bill be now read a second time.
said, that, in his opinion, it would be the duty of every Irish Member, at every stage in the Bill, to register his protest against a Bill which they regarded as being simply a Coercion Bill under a dishonest disguise, and, moreover, a Coercion Bill in perpetuity. He could see nothing in the Bill in the direction of Legal Reform, nothing that anybody would think worth doing, except, perhaps, the Proviso for admitting a prisoner to speak for himself. It proposed to invest every police magistrate with powers that in old times would not have been intrusted to a King. He might summon any man whom a malicious constable might choose to suspect that evidence could be squeezed out—summon him without any information in writing or upon oath, and he might have a witness locked up in prison, if 118 he was considered unlikely to turn up to give evidence, and he could find no provision for allowing legal assistance to a witness arrested and crosshackled in that way, though the object of his examination was to inveigle him into statements upon which a charge affecting, perhaps, his life, might afterwards be founded, and he might be locked up until "he did what he was required to do." What was there in the secrecy of the Star Chamber more odious than? Such things might appear convenient and acceptable just now, because they would be used only against Ireland and Irishmen in England.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
interposing, said, he was sure the hon. Member did not wish to misrepresent the law; but he must remind him that the clause referring to the detention of a witness provided for the remand of a prisoner in the particular case of refusal to produce certain documents.
said, the clause was entitled, "Witness refusing to be examined," and that was the penalty therein prescribed for non-compliance. As long as inquiries such as they had had in Dublin Castle continued to produce informers and victims, at a time when the public temper was whetted for such things, he supposed there was not much use in asking whether the end justified the means. If the Bill succeeded in putting obnoxious Irishmen within the grasp of the law by fair means or by foul, if it patched up against them anything like a decent presumption, few people would look into the machinery by which the Act was worked. But it was this very state of the public mind—this eagerness to break down conspiracy by book or crook—which made this the most inopportune of all moments to introduce into the law of England changes of the most violent and revolutionary character. But the proceedings before a justice were only the preliminaries to the work of breaking down, destroying, and infringing a man's right of trial before his peers. There was scarcely a clause in the Bill, from the 1st to the 5th, that did not strike at one or other of the rights of the people. It was a matter of remote interest to Englishmen, whether an Attorney General should, or should not, have a right of instituting a prosecution at Bar before the Court of 119 Queen's Bench, or whether a person committed for trial in some distant part of England should be brought up hero to be tried. But, as far as Ireland was concerned, the Bill meant that any man who was formidable to the Government was first to be bullied and threatened at one of those secret inquiries before an under servant of the Grown, and then be sent for trial before one of the tribunals which the Crown could always pack to carry out its wishes. The Court of Queen's Bench in Ireland was always kept packed with the promoted prosecutors and political allies of the Government; and a Dublin Special Jury of landlords and Castle tradesmen would be more or loss than human if they were not obsequious servants of the Crown. Perhaps the very worst clause in the Bill was the 72nd, which provided that, if several persons combined with a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them should be hold to be a party in the prosecution of such common purpose to any offence, the commission of which was or ought to have been known as a probable consequence of such combination. The Crown thought the purpose of the Land League was unlawful; and, in 18S0, prosecuted the hon. Member for the City of Cork (Mr. Parnell) for conspiracy on account of his connection with it, although, 18 months afterwards, a responsible Minister of the Crown declared that the Land League was a most useful and lawful organization. The jury disagreed with the Crown on that occasion; but, struck as juries would be in Ireland under this Bill and under the Crimes Act, what course could an Irish Nationalist pursue which they would not declare unlawful at the dictation of the Crown. If the Bill passed, it seemed to him that every public man in Ireland had only the choice of withdrawing altogether from public life, or doing what possibly some hot-headed persons might do, taking refuge in the safer secret organizations. Again, some furtive little words in another clause proposed to embody, for the first time in a British Statute, the monstrous Judge-made doctrine laid down in the case of "The Queen v. Duffy," that, no matter how scandalous the conduct of a servant of the Crown, if he gave the criticism of his conduct the nickname of "seditious libel," the 120 man who commented on it was precluded from proving the truth of the libel, though he would be perfectly free to do so in the case of any individual who was not salaried by the Crown. There was one class of Nationalists who held that such Bills as this were of the greatest service to the Irish cause, because they increased the determination of the people to make England let go her grip. But, however that might be, the Irish people were not likely to be particularly terrified, whether schemes of coercion were laid for three years or 300. English rule in Ireland had been one unbroken Coercion Act. [" Hear, hear!"] He hoped hon. Gentlemen thought the results satisfactory. What he wanted the House to understand was that, in passing this Bill, they laid down the principle, and avowed it to the world, that as long as England ruled Ireland, she would rule it by a power more detested than the sword, by the official's secret and malicious whisper, and by the swearer's oath. They would also imprint in the Statute Book principles of law that were new to it, and which they would rather cut off their right hand than pass, if they thought they would be used against Englishmen, as, perhaps, they were willing enough that they should be used against Irishmen.
§ MR. M'COAN
said, that he had not heard the whole of the speech of the hon. Member who had just spoken (Mr. O'Brien); but from what he had heard he thought a good deal of it was irrelevant. The hon. Member apparently had forgotten the fact that the Bill had for its object, not so much the making of new law, as the codification and simplification of the existing law. Besides, he seemed also to forget that this was a Bill for the United Kingdom; and therefore English and Scotch Members would have as good reason to take exception, if there was anything objectionable in it, as Irish Members. The hon. Member discovered a new grievance in Clause 72; but if he would read it, he would find there was nothing new in it, and that it was simply a reproduction of the present Law of Conspiracy, for if persons combined for a common purpose and committed an illegal offence, each of them was guilty of the offence committed by the other. Similarly, Clause 78 only reproduced the old existing law, as stated in the case of "The Queen v. Duffy." The 121 only thing that appeared to be new in the Bill was that part proposing to give a prisoner the opportunity of stating his own case, and the greatest of the authorities were in favour of such a proposal as that; and, for his own part, he (Mr. M'Coan) considered it an improvement,
§ MR. T. D. SULLIVAN
said, that the hon. Member who had just sat down (Mr. M'Coan), in reading Clause 78—the Conspiracy Clause—had made a deliberate and a most significant omission. He referred, indeed, to that part of it which said that, if several persons combined with common intention to prosecute any unlawful purpose, and assist each other therein, each of them was a party to any offence committed in the prosecution of such unlawful purpose. But the hon. Member omitted that part of the clause which said'—The commission of which offence was, or ought to have been known, as a probable consequence of such combination.That was something new in the law of England and Ireland, because a person under the clause might be innocent of a criminal intention; but, unless he was a prophet, and gifted with Divine inspiration, he might find himself within its provisions. Was it honest, then—was it fair—that the hon. Member should have suppressed that portion of the clause?
§ MR. M'COAN
That is a charge of bad faith. I did not read the last part of the clause, because it is sufficiently plain that it is not new law. It is simply the re-enactment of that already in existence. It assumes that a man is—
§ MR. T. D. SULLIVAN
A prophet. A man would, no doubt, be aware of the probable consequences of his act if he fired a shot at a man; but here the proposal was to fix him with liability for the language and acts of other people. He wondered that Englishmen should, even in the time of panic, pass such legislation; but, in their hope of crushing out Irish nationality, they were ready to destroy public liberty and public right. But the fact was that England would not be able to keep Ireland in slavery without suffering for it terribly herself. He looked upon the Bill as another illustration of the decadence in England of that love of public freedom which had been for so long the boast and glory of the country.
§ MR. BRYCE
said, that, in his opinion, those who had looked so long for Law 122 Reform might congratulate themselves on seeing the great work of codification at last taken in hand. He hoped that, by the end of the Session, the Bill would become law, and that the Government would to able to have the satisfaction of seeing the first step in so great a task completed. He wished to remind the House of the debt which was owed in this matter to the Attorney General of the late Government. If there was one man more than another who cared about improving the law of this country, making it just, intelligible, and accessible, it was the late Lord Justice Holker, of whom, having had the privilege of a long and intimate friendship, he might truly say that his great legal acumen was not more remarkable than his ardent love of justice. There were two points to which he (Mr. Bryce) wished to draw the attention of the House. The first related to the scope of the Bill. It dealt with indictable offences only. He would suggest that it be extended to offences dealt with summarily, in order that the procedure in both cases might be identical. Otherwise great perplexity would ensue, for if the Bill passed as it stood, Quarter Sessions would be acting sometimes under the new law, and sometimes under the old law. The other point was as to the examination of the prisoner; and, as regarded it, he thought it would be desirable that an examination of accused persons should take place before they were committed for trial. Where, as in Scotland, an opportunity was in this way always afforded to a prisoner to clear himself of the charge against him if he could, the prosecution of an innocent man would be often avoided. He also thought it would be an advantage, if the prisoner could be called as a witness by the prosecution, instead of being only examined for the defence, a provision being, of course, inserted that he was entitled not to answer questions put by the prosecutor unless he liked. The process of a preliminary examination of a prisoner before the Sheriff had never been abused in Scotland; and he thought it would be a desirable feature to import into the English procedure, because it was not only a valuable means for the discovery of guilt, but also one by which an innocent man might free himself of a charge. At all events, that part of the Scotch procedure well deserved the consideration of the House. The proposal 123 as to this examination ought to be considered in the light of the experience of Scotland rather than in that of France, where it was well known that the power of repeatedly and severely cross-examining the accused permitted to the Juge d' Instruction was sometimes abused.
said, he thought it was hard that the hon. and learned Gentleman the Attorney General should bear the brunt of the accusation, made from a certain quarter of the House, that the Bill was conceived in such a spirit as if it were some deep-laid plot on the part of the Government to undermine the liberties of the Irish or the English people. As a matter of fact, it was originally drawn in 1878, long before the recent arrests which had taken place in Ireland had caused the present state of feeling there. It was then, in 1879, considered by a Commission of Judges, and substantially the present measure was settled by that Committee. He (Mr. Gorst) had enjoyed the friendship and confidence of the late Lord Justice Holker, than whom no man could be more jealous to preserve the liberties of all his fellow-subjects, and more anxious to prevent injustice being inflicted upon any human being. He did not deny that some of the clauses were open to criticism, and he should give his best efforts in Committee to amend them. He would further say that, if there were any elements which required amendment on account of their possibly working injustice to either Englishmen or Irishmen, they were present through inadvertence and not of design, and he was sure the Committee would do their best to eliminate them from the Bill. For his own part, he shared the view already expressed by several hon. Members that it was the amendment of procedure anterior to the trial which was especially required, and in that respect the Criminal Law of England was inferior to the law of all other European countries. With respect to it, he agreed with the hon. Member for the Tower Hamlets (Mr. Bryce) that we might with advantage borrow from the Scotch criminal system. He did not, however, agree altogether with the hon. Member's remarks about French procedure. The preliminary investigation anterior to the trial was, in France, conducted with fairness and consideration to the prisoner. It was only in the proceedings at the trial that 124 the French system was open to the animadversions which had been passed on it. He thought the method employed in Germany for the investigation of criminal offences would avoid all the errors of the Scotch and French systems, and be more in accordance with English notions of justice to the accused. In Germany, at the preliminary examination, which was undertaken by a Judge, for the purpose of investigating the truth of the case, the accused was invited to make any defence or explanation which he might desire to submit; and it was the duty of the Judge not only to call for evidence for the prosecution, but also to summon before him and examine every witness who, in his opinion, would prove the innocence of the prisoner. Those points, he thought, we might with advantage imitate. He trusted that the Representatives of Irish constituencies would believe that there was no desire in the framers or supporters of the Bill to interfere in any way with their rights and liberties.
§ DR. COMMINS
said, he fully agreed in the concluding observation of the hon. and learned Gentleman who had just sat down (Mr. Gorst), that there was no deep-laid plot against either English or Irish liberties in the Bill, although he could not see in it an object at all worthy of the admiration which the hon. and learned Member, as one of its authors, naturally entertained towards it. He could not help entertaining the thought that it hardly realized the deep and earnest expectations which had been so prominently entertained of it, more especially when consideration was given to the high authorities on the Commission to which it was referred, for care had not been taken to get rid of errors of procedure that often led to great injustice. For instance, prisoners were not protected against examination by policemen, whose eagerness to obtain admissions of guilt was in proportion to the weakness of a case; and nothing was done to mitigate the harshness with which untried prisoners were treated. They were treated as guilty before they were tried; and it would be necessary to introduce something into the Bill to remedy the unjust state of things which now existed in that respect. Then, again, juries were paid for trying trivial cases in Civil Courts; but no compensation was given to jurors who tried cri- 125 minal cases. Further than that, as to the trial itself, very glaring errors remained; and he had looked in vain throughout the Bill in order to find out whether there was any adequate provision made for recording criminal trials, so as to facilitate any proceedings that might be desired to be taken on appeal. In the French and Scotch procedure every word was recorded, and could be referred to whenever it was necessary. In the present Bill, it was true, there was to be a "Crown Book," in which the substance of the proceedings was to be entered; but, for all practical purposes, there might as well be no record at all. Again, a man might be put on his trial and punished, and then it might be discovered that he had been the victim of a conspiracy or a mistake; and yet, for all the sufferings which might be inflicted on a man, he was not entitled to one farthing damages. Take the case of Edmund Galley, or of Habron, who were condemned to death, and, after the commutation of the sentence, had to undergo penal servitude. Surely that might now be amended, and some provision made whereby a solatium might be given in such cases. The Proviso that prisoners should be allowed to make a statement in their own defence would expose them to a vindictive cross-examination, and might prove a very doubtful boon, for nothing would prevent a police officer in secret subjecting an untried person to an examination, which would vary according to the character of the officer. There was one thing about the Bill that he did not like—namely, that there seemed to run through it a kind of inquisitorial spirit, bringing into the English law, for the first time, the principles of the Inquisition—a determination, per fas et nefas, to obtain a verdict. There seemed a straining to get rid of those forms of the law which were the greatest bulwarks of innocence against malicious and unfounded prosecutions, and to get rid of them in those cases where the preservation of the forms might be serviceable to the accused person. The unlimited discretion proposed to be given to the Attorney General to change the venue he also thought would sometimes be cruel and oppressive in its operation.
§ MR. SPEAKER
said, he must point out to the hon. Member that his obser- 126 vations would be more appropriate to the Committee stage of the Bill than to that of the second reading.
§ DR. COMMINS,
while bowing to the correction of the Chair, said, that he took the course he had for the purpose of showing that the measure was an ill-drawn one, which would by no means improve our present Criminal Law. If it passed into law as it was, untried prisoners would be subjected to the most disgraceful and scandalous treatment.
§ MR. PUGH
said, he hailed the Bill as one that would bring about a great improvement in the existing law. He had no doubt that it would be regarded as a great boon in the country; but he thought that the distinction should be clearly drawn and maintained between the magistrate and the policeman, and that the duties of the former should not be made more difficult by requiring them to conduct preliminary inquiries into supposed offences before any complaint had been laid before them. In that view of the case, he maintained that the preliminary inquiry provided by Clause 12 was essentially a police duty. If they threw upon the magistrate the duty of getting up the case, it would be impossible that the same magistrate could form an unbiassed opinion upon the evidence. In the Indian Criminal Procedure Code of last year the duty of carrying on similar police duties had been thrown upon the magistrate; but the performance of such work by the Judge who afterwards had to try the case caused much dissatisfaction amongst the people, and had been very justly denounced from the Bench. This, however, was a matter which the Grand Committee would be able to deal with; and he had no doubt they would give to this and other points all the attention required to make the measure a very valuable one.
§ MR. BROADHURST
said, he very much feared that Clause 72 of the Bill might be applied to trades unions; and, if so, it would go a long way towards depriving them of the Charter of their liberties and rights, which they had obtained within recent years. He referred especially to sub-section (C) of Clause 72; but, indeed, the whole of that clause was a matter for grave consideration; and he certainly should not feel inclined to support the Bill with that clause in it, unless he had some dis- 127 tinct undertaking from those who were in charge of the measure that the clause would be materially amended before the Bill was ultimately passed. What he had risen specially to say was that, when a similar Code was proposed some years back by the late Government, similar objections were taken to parts of that Code; and he remembered bringing the subject, by means of a strong deputation, under the notice of the Government. It was suggested, at that time, that the Labour Laws—tho Trades Unions Act of 1871; the Labour Laws of 1875, and the amended Trades Unions Act of 1876—might very well remain a Code of themselves, for the regulation of labour disputes and difficulties, and that in any subsequent Criminal Code that might be passed care should be taken to safeguard the liberties of trades unions, by expressly setting forth that no other law would Le made to apply to matters of trades' dispute he hoped the ton and learned Gentleman the Attorney General would be good enough to bear in mind those few observations, and that he would be able, before the close of the debate, to give a promise that the laws which were passed at the dates he (Mr. Broadhurst) had referred to, and which were the result of nearly half-a-century of agitation, would be protected under the present Bill, and that care would be taken that the measure should in no way whatever interfere with the laws to which he had referred. On that condition only could he for a moment consent to the second reading of the Bill.
§ MR. DALY
said, the hon. Member for Stoke (Mr. Broadhurst) was anxious to protect the trades unions from the imposition of new legislation. He (Mr. Daly) wished to draw attention to several other clauses of the Bill, and especially to Clause 12, which he was glad to see had been the subject of comment by the hon. and learned Member for Cardiganshire (Mr. Pugh), who preceded the hon. Member for Stoke. That clause recited these words—"Every Justice who has reason to believe." Now, in the first place, the word "Justice" was defined in the Interpretation Clause to mean every kind of Justice, and the Justices of Ireland were essentially different from Justices in England, because Justices in England lived in harmony with the classes below them, while a Justice in Ireland was in 128 direct antagonism with the classes below him. The section stated—"Every Justice who has reason to believe." Now, what Justice in Ireland could have reason to believe of himself? He had no cognizance of what was going on around him, and his information was always supplied to him by a policeman. It was impossible for any hon. Member who had not resided in Ireland to realize the hardships, oppression, and affliction which the Irish people had to suffer at the hands of the policeman. Only the other day, in the City of Cork, a respectable tradesman, who might even call himself a merchant, and who was in the habit of exporting to different parts of the United Kingdom hundreds and thousands of tons of potatoes per week, was arrested on the platform of the Great Southern and Western Railway Station, on the supposition that he was engaged in treasonable practices. He was detained in custody for three or four hours, and then discharged, without a word of explanation or apology. When such things could take place, and when they had such experiences in Ireland, he thought they were justified in viewing with alarm what might happen if a magistrate's "reason to believe," promoted by police whispers, was to form sufficient justification for arrest and detention of Her Majesty's subjects. Upon such a whisper the magistrate would have power to summon to a police court, or any other place whore a petty sessions was held, any person within his jurisdiction, whom he had "reason to believe to be capable of giving material evidence concerning such offence." Was it not in accordance with human nature that a policeman, having set a matter of this kind on foot, would give the magistrate reason to believe that there wore a great many persons capable of giving evidence, but who might be inclined to be indifferent in the matter? Could any man realize the hardships which might be imposed on a number of persons in being drawn from their lawful business at the beck of the magistrate, induced by the whispers of a policeman? There was no analogy at all in these matters between England and Ireland. The two countries were so essentially different that any person who had not resided in Ireland could not appreciate the difference. He found, when he went further into the Bill, that under Section 129 25—"If the Justice is satisfied by evidence upon oath." There, again, it was the oath of the policeman, and there was abundant evidence that the statements made by policemen were afterwards constantly disproved. Nevertheless, they found that—If the justice is satisfied by evidence upon oath any person within his jurisdiction likely to give material evidence will not attend to give evidence,such a person was liable to be arrested. The word "likely" had a very broad meaning, and the policeman, in his desire to procure convictions, would not spare any person whom he considered "likely" to give evidence; and when he made a statement on oath that such a person was likely to give evidence, what became of the liberty of a subject, seeing that behind that person's back the magistrate could issue a warrant in the first instance? This clause did not even give the person a chance of responding to the summons; but the magistrate could, in the first instance, issued a warrant. If such things were enacted in regard to England as were imposed upon Irishmen by this Act, he believed they would almost lead to a revolution. He now came to Section 27, from which he found that when this unfortunate person was brought forward, "if he refused or neglected to produce any documents which he was required to produce," he was to be punished by imprisonment. Now, how could the magistrate have any cognizance of the witness having such documents at all? How was he able to understand that such documents existed, except upon the whispers of a policeman? How was the magistrate, under this extraordinary power, to have an opportunity of proving the statement made to him that such documents did exist without verification? Let the House look at the magistrate's powers. He had power to adjourn the proceedings for any period not exceeding eight clear days, and he might commit the person refusing to gaol unless he was willing to do what was required by him. But what if it was impossible for him to comply with the provision of the Act, and to do what he was called upon to do? How would he be affected if the documents did not exist at all? Could there possibly be a greater infringement of the liberty of the subject? The clause went on to say— 130If such person, upon being brought up on such adjourned hearing, again refuses to do what is so required of him, such justice, if he sees fit, may again adjourn the proceedings, and commit him for the like period, and so again, from time to time, until such person consents to do what is required of him.Would any honest man ever think of putting into the hands of Irish justices such tremendous power—power which amounted to the punishment of a man who was required to do what it was impossible for him to do? He granted that there might be some cases in which there might be contumacy; but he knew, from his own experience of the way in which justice was administered by the magistrates in Ireland, that under Section 27 of this Bill the most tremendous hardships would be inflicted on innocent people. Turning from the witness to the accused, he found in Sub-section D of Clause 28, that the justices—it was still a mere justice, selected from a class antagonistic to the persons who were brought under the operation of the law—he found that these justices might—Order that no person other than the accused, his counsel and solicitor, shall have access to or remain in the room or building in which the inquiry is held (which shall not be deemed an open court), if it appears to him that the ends of justice will be best answered by so doing.There was an old adage in the English law, that it was better for 99 guilty persons to escape than for one innocent person to suffer. But that adage appeared to be reversed in Ireland. [Cries of "Agreed!"]Hon. Members opposite were impatient; but he (Mr. Daly) was an Irishman, and he looked at this question from a very different point of view. Let him take one of these cases, which might be initiated by the policeman, and then placed by the magistrate under Section 28, by which means the accused was deprived of the liberty of having the case against him made known to the persons who were most familiar with his social surroundings. Under Subsection D, a man might be brought up in camera before the justices, and an accusation that was entirely false might be made against him, that he was in a certain place at a certain time. There might be 50 responsible persons who had met him in an open fair, or market, or some other public place, at the time mentioned in the accusation against him; but they would be deprived of the liberty of vindicating that man's innocence simply because the exact facts of the accusation did 131 not reach them. He certainly considered that this was the moat objectionable provision of the Bill. Of course, he was speaking in utter ignorance as to whether this was a simple quotation of the existing law or not; but this he did say—that whether it was the law as it stood at present on the Statute Book or not, it was a law at complete variance with the liberty of every man who claimed to act in a Constitutional manner. He could conceive no greater injury done to a man than this sort of Star Chamber examination, where a policeman could make any kind of false charge, without the chance of being detected. It was further well known that the charges made by the police would be well received by the magistrates, and the policeman himself knew that his only road to promotion lay in pleasing the justices. It must be borne in mind that all these powers were not powers intrusted to a responsible tribunal, but that they were powers entrusted to the ordinary justices. He believed if they had in these tribunals the most eminent and learned Law Lords in the United Kingdom, any man anxious to secure the liberties of the people would hesitate to exercise these arbitrary powers. But they were intrusting them in Ireland to men who were embittered by long struggles with the classes against whom the powers wore to operate, and who it was not unfair to say governed more by their passions and prejudices than by their reason. He entertained a very strong opinion that if Sub-sections B and C were on the Statute Book at present they ought at least to be removed at once. In regard to Clause 72 be also desired to say a word. He did not know anything about the Law of Conspiracy; but he did think that in any free country the words—If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was or ought to have been known to be a probable consequence of the prosecution of such common purpose.went too far. Now, supposing that four or five men agreed, as was common in Ireland, to take part in a faction fight; suppose that in some part of Ireland, such as New Pallas, such a party agreed to go to a fair in order to meet some of their opponents. [Laughter.] He had really no means of appealing to the reason of 132 hon. Gentlemen opposite, and, therefore, he was obliged to appeal to their imagination. He wished to base an argumen upon this clause dealing with alleged conspiracy for a common purpose. Suppose, then, that four or five men went to New Pallas, with the intention of meeting four or five other other men belonging to a hostile faction; suppose that two of them repented of their determination on their way to New Pallas, and went back; suppose that the other three proceeded and engaged in a faction fight with their opponents, and unfortunately beat a man to death, would it not be held, under the words of this section, that the two who had repented were liable to a charge of murder, because the offence was such that that ought to have been known to be the probable consequence of the prosecution of such a common purpose? [Laughter.] He was not speaking to the budding and briefless lawyers sitting below the Gangway on the other side of the House, who were indulging in a good deal of cachination of a certain post prandial kind. As an Irishman, he could make allowance for a good deal of their excitement. But what he said was this, that the words "probable consequence" were very dangerous words to introduce into any Bill which was subsequently to be made an Act of Parliament; and he believed that if this Bill were passed in its integrity, it would do a great deal to increase still further the bitter feelings which already existed in Ireland, and that it would intensify the conviction that at the hands of this English Parliament there could be little justice expected for Ireland.
§ MR. WARTON
said, he desired to say a few words before the Bill was referred to the Standing Committee. There were two modes of making a code. One was simply to state the existing law, as it was, in a clear and definite form; and the other was to combine with the existing law a great number of alterations and amendments of principle and practice. He would not say on which of those two modes they ought to proceed; but this he would say, and it was a matter upon which he had a considerable amount of feeling, that the present Bill went considerably towards the latter of these two plans, and contained a number of new questions of law and startling innovations in the existing 133 procedure which he did not think necessary at all. For instance, he would refer to the 100th clause of the Bill. That section really affected matters so important that when one talked of principles of law they could scarcely realize the effect of the change proposed to be introduced. For a long time it had been the custom of the country not to examine an accused person; and, in his opinion, there were very broad grounds why an accused person should not be examined. At any rate, the step now proposed was a retrogade one, and he did not think they ought to attempt to deal with a knotty point like that, by including it in a Bill which was to be referred as a whole to a Select Committee. He said nothing about the body to whom it was proposed to refer the Bill; but he took the Bill as it already stood, and, if it were allowed to pass, it would certainly introduce a great number of anomalies into the law of which he believed a great many hon. Members would disapprove. The proposal to examine an accused person raised a very important question, which took them back to the time of the Inquisition, and the Star Chamber. Nothing was more in accordance with the principles of our law than to give the accused a fair chance. He could not conceive any spectacle more hideous than that of calling upon an uninstructed man, who was a prisoner at the bar, ignorant, perhaps, of the very language of the indictment brought against him, probably with no counsel to defend him, who thought he was able to give an account of the circumstances of the charge against him, and then found himself suddenly cross-examined by an ingenious counsel. The very word used in ancient times to describe the torture of the rack was the "question;" and although in these days of humanity they would not establish a bodily rack, they were endeavouring to establish, by this Bill, a mental rack. Odious as the spectacle was, there was only one spectacle more odious, and that was the calling of the wife to say a word in favour of her husband. With the kindness and devotion which a woman always exhibited, she would be certain to come forward to say something in his behalf, but she would be probably ignorant of what the effect of her evidence was; and the result of his (Mr. Warton's) expe- 134 rience of the Law Courts was that ignorant and uninstructed persons were always disposed to rely upon some simple contradiction of the evidence, some insignificant point, such as this—the policemen declared that they saw a man in a particular situation at 4 o'clock, whereas it might have been 3 o'clock, and if the prisoner thought he could contradict that one particular point he would rely upon that more than anything else. Those who were in the habit of defending prisoners knew that in numberless instances they were pestered by prisoners and ignorant attornies to call witnesses to prove unimportant points. He had frequently of late seen counsel prosecuting for the Crown in numbers of cases against prisoners with all the eagerness proper only for civil causes. He had seen a prosecuting counsel urging forward a case with the same eagerness that he would have manifested if he had been defending the prisoner; and over and over again he had known a prosecuting attorney unduly press counsel to get a verdict, whether rightly or wrongly, and, in endeavouring to get that verdict, they not unfrequently conducted themselves as if they were baiting some wild animal. He contended that this proposal would add a new mode of unfairly obtaining convictions, and that if the prisoner in the dock was to be put upon this mental rack, it would be quite contrary to the principles of fair play which had hitherto animated our Courts of Justice. Her Majesty's Government expected to pass this Code after a very few hours of real debate. Their only object seemed to be to enable the Law Officers of the Crown to hurry the Bill through the House as rapidly as possible. He thought the principles they were tampering with were too sacred to justify the House in assenting to the course proposed. His own opinion was that the principle of examining accused persons in criminal cases was calculated to do an immense amount of injustice, and it ought not to have been introduced into a code. They knew how uninstructed a prisoner generally was; how often innocence was made to look like guilt; and that, through ignorance, many persons could never be brought to understand what the real facts were that affected them. That was only one matter out of many. This Bill converted the justices into policemen. By the 12th 135 section, every justice had the power of holding a preliminary inquiry. Now, it was the duty of a policeman to hunt out crime, and there was no reason whatever why a magistrate should be employed in discharging that duty. When crime was detected, and some person was charged with it, it was right to bring it before the magistrates. Magistrates should do justices' work, and policemen policemen's work. Last year they passed a Bill for Prevention of Crime in Ireland. At that time, no doubt, some such measure was necessary, and he supported the Government in the Bill they introduced under the peculiar circumstances in which Ireland was placed, because he knew there was an indisposition in that country to promote the ends of justice; that witnesses were kept out of the way and terrorized over; and that, therefore, there should be some means of investigating cases secretly, because it was not safe to have a witness examined openly. But he never dreamt that they were to take as a model for their future practice the Bill which was introduced in regard to the state of Ireland under most exceptional circumstances. And it ought to be a warning to the House how careful they should be in assenting to any measure under the pressure of the moment, if such a measure was to be made hereafter a pretext for introducing principles into the law which were entirely wrong. As to the investigation before the magistrate, the 27th section gave power to the magistrate to commit to prison any person who refused to answer any question that might be put to him. He thought the clause would require very careful consideration before its was inserted in the Bill. The clause stated that—Whenever any person, appearing either in obedience to summons or subpoena, or by virtue of a warrant, or being present and being probably required by the justice to give evidence, refuses to be sworn, or having been sworn refuses to answer such questions as are put to him, or refuses or neglects to produce any document which he is required to produce, or refuses to sign his depositions without in any such case offering any just excuse for such refusal, such justice may adjourn the proceedings for any period not exceeding eight clear days, and may in the meantime, by warrant in form D (1) in the first Schedule thereto, or to the like effect, commit the person so refusing to gaol, unless he sooner consents to do what is required of him.It would be seen that no account was 136 taken of the fact that the witness was only refusing to answer a question which might tend to criminate himself, and it had always been held that a witness had a perfect right to refuse to answer upon that ground. He did not know if it was the object of the Government to destroy that safe-guard, or whether they intended in future to subject witnesses to interrogations utterly regardless of the consequences to the witnesses themselves. Under this clause, ordinary witnesses who were not prisoners were compelled to answer questions that might tend to criminate themselves, and he thought it ought to be distinctly stated that witnesses under such circumstances might refuse to answer. He could not agree with his hon. Friend the Member for Stoke (Mr. Broadhurst) with regard to the 72nd clause of the Bill; because that section, as it now stood, had always been the law in regard to combinations acting together for a common purpose, and it had been one of the great safeguards for the preservation of order, that when persons conspired together, they should be all equally answerable. Indeed, in his judgment, it was a greater offence for persons to combine together to commit a crime, than for a man to commit a crime alone. It was wicked indeed for one man to do it; but it was far more wicked for a number of men to conspire to commit a crime in open defiance of the law, and to support each other in the wickedness they contemplated. Persons who gave each other mutual encouragement, and banded themselves together to violate the law, had always been designated conspirators, and were regarded as much worse than the man who committed a crime by himself. Therefore, he did not agree with the views expressed by the hon. Member for Stoke (Mr. Broadhurst), which made the hon. Gentleman doubtful whether he would support the second reading of the Bill or not. There was a much greater objection than all these in regard to the construction of the Code, and that was the peculiar circumstance that there were practically before the House two Bills—namely, this Bill which contained among other things provisions for the establishment of a Court of Appeal, and another Bill which had already been sent up to the Grand Committee, and which was now undergoing investigation there. He thought it was an unheard of circum- 137 stance that, at the very same time, almost at the very same hour, and from the very lips of the very same Law Officer of the Government, they should have recommended to them two Bills that were totally different and inconsistent with each other. He had heard the statement made by the Speaker; and althought the right hon. Gentleman had overruled the objection which had been raised, he (Mr. Warton) must say that the overruling of that objection did not get rid of the inconvenience—he would not say the illegality, but the inconvenience—which arose from the hon. and learned Gentleman the Attorney General coming forward at the very same moment with two perfectly inconsistent proposals upon the same subject. He wished to know how the hon. and learned Gentleman proposed to amalgamate the two Bills? He failed to see if the Court of Criminal Appeal Bill now before the Committee upstairs was seriously intended to be carried, how the appeal provided for in these measures could be made to apply. Certainly, a proposal to summarize the law, at the moment they were altering the law itself, seemed an eccentric and curious mode of procedure. He could quite understand the hon. and learned Attorney General saying—"Pass your Criminal Appeal Bill, and I will strike out of the Criminal Code Bill all the provisions relating to appeal, and only put into it the clauses which are calculated to make it a perfect Code of Procedure." That would be a reasonable process; but to ask the House to go on with this Bill, when another and a perfectly inconsistent Bill was being pushed on as quickly as possible, seemed to him to be a most extraordinary course. He thought it would be far better if the hon. and learned Attorney General would be willing to put off for some time the consideration of the present Bill. At the same time, he (Mr. Warton) did not intend to oppose the measure. He was only desirous of calling attention to the singular spectacle presented to the House, and he hoped the hon. and learned Attorney General, before they came to discuss the clause, would explain to the House—for up to the present moment he had said as little as possible—in what way the Government intended to deal with the two measures; whether they intended to stand by the Court of Criminal Appeal Bill, or whether they 138 meant to go on with both at the same time, and to place upon the Statute Book two Bills which differed very materially from each other?
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
said, he had explained the course he had intended to take most fully on introducing the Bill.
§ MR. WARTON
said, he had not heard the explanation. The hon. and learned Gentleman had certainly made no speech in moving the second reading of the Bill, and he thought it would have been much more respectful to the House if he had done so. The Bill was intended to qualify the existing law by introducing a number of new provisions into it, and it was scarcely respectful to the House to bring forward the second reading of so important a measure without a word of explanation. The proper time for that explanation was upon the second reading of the Bill, when hon. Members were present in their places, and not on the introduction of the measure, when a great many of them would be away. He feared the object was to hurry the Bill through the House in a way that was far from satisfactory; and, therefore, the explanation had been given at the wrong time. He hoped the explanation of the hon. and learned Attorney General would be satisfactory to the House, because the measure was one of great importance, introducing a great number of new principles, some of which did not amount to codification at all, while other parts of the measure altogether changed the law. He certainly hoped that such clauses would be omitted from a Bill which professed to be the Codification of the Law.
§ MR. T. P. O'CONNOR
said, he reechoed the surprise and dismay of the hon. and learned Member for Bridport (Mr. Warton), and sympathized with him in his feeling that such a Bill as the present, which dealt with the whole of the Criminal Procedure of the country, should be passing out of the hands of the House under the circumstances which had attended the debate of that evening. He would make two statements—first, that this Criminal Code introduced changes into procedure sanctioned for centuries in this country, which might be described as revolutionary; and, secondly, that this revolutionary measure had not been read, and was scarcely understood, by one out of 50 Members of 139 the House. He saw the right hon. Gentleman the Prime Minister in his place; and, if it were not a breach, of Parliamentary etiquette, he (Mr. T. P. O'Connor) would be disposed to press the question—Had the right hon. Gentleman himself read the Bill? How many non legal Members on the Treasury Bench and other Members of the House had read it, and how many of them knew that it proposed changes of the most startling nature in reference to every step in the Criminal Procedure of the country? It had been said that the majority of hon. Members sitting in the House did not expect to come within the operation of the Bill. He wished the Members on those Benches were able to feel the like security; and would say further, that if the Members of the Government were as unscrupulous as he would not suppose or assume, there was no hon. Member on those Benches who differed from the Government in speech that might not, if the Bill became law, be consigned to such term of imprisonment, or penal servitude, as the Judges and juries in Dublin passed upon him. The Prime Minister was credited by public rumour with the intention—incorrect, as he (Mr. T. P. O'Connor) honestly and sincerely wished—of withdrawing from the House the great advantage of his genius and services. But the retirement of the right hon. Gentleman would be at a most inauspicious moment; because, as had been made clear from the debate of that evening, when he passed the Procedure Rules, he gave a great blow to the dignity of their proceedings. The House was free from all responsibility with regard to the details of this measure, which was to go to a Committee upstairs, and had discussed the Bill in a most perfunctory and half-hearted manner. Hon. Members who were engaged on the Grand Committee, before which the Bill would go, were not likely to come down there and double the work they had to do; and the consequence was, that a Bill like this could be smuggled through a sleepy House without discussion. Coming to the Bill itself, he said there was not a fundamental or characteristic principle of English Criminal Procedure which it did not interfere with. If there was one point more than another which, with its usual self-complacency, the Press in this country had congratulated the English people upon, it was that 140 prisoners in this country were treated in, a different manner to prisoners in foreign countries. They were told that in France the prisoner was cross-examined by the Judge, who acted rather as a prosecuting counsel than as a man holding the scales of justice; they were told that moral torture was inflicted by this system of cross-examination, which was carried out in the prisoner's cell with no one to protect him from unfair treatment. But there was not a single blot which the English journals used to point out and condemn in the criminal procedure of foreign countries, which the Bill before the House did not sanction. The prisoner could be cross-examined by the prosecuting counsel, and this examination could take place in his cell, because the magistrates were to have power to transfer the hearing of cases to any place they chose; it might be held in the cell, in the middle of the night, and the words of the Bill were that the public could be excluded from attendance at the examination. But that was not all; the magistrate could, in short, do what he liked in the matter, because the wording of the Bill was so vague. It was to the effect that the magistrate might regulate the course of the inquiry in any way which might appear to him desirable, and which was not inconsistent with the provisions of the Act. Now, those provisions assumed throughout the guilt of the prisoner, and the magistrate had a perfect right, on the assumption of guilt, to inflict moral torture on the prisoner. Again, as the Bill said that a magistrate might require anyone to appear before him, there was nothing to prevent a prisoner being taken into his parlour, with no one else present than a constable. When the last Coercion Bill was under discussion, the Prime Minister made a pitiful, but certainly eloquent, appeal to the House not to confer upon the police in Ireland the power of entering houses at night for the purpose of search; but the House, nevertheless, more coercionist than the Ministry, gave the power which the Prime Minister had not asked for. One of the clauses of this Criminial Procedure Bill gave power to the police to enter a house either by day or night; and, by another clause, any magistrate who happened to be harassing a particular district, need not proceed on the information of a constable or an in- 141 former, but could, of his own motion, summon anyone before him he might choose. And when that person came before him, what could he do? He (Mr. T. P. O'Connor) had said that probably not one hon. Member in 50 had road the clauses of the Bill; and he would like to ask now, how many hon. Members of the House were aware that a magistrate could bring a person before him at any time and place, and that if he refused to answer such questions as the magistrate choose to put to him, or if he refused to answer them in the manner desired by the magistrate, he could be sent to prison for eight days; that, at the end of that time, he could be brought up again and again sent to prison, if he still refused, and so on for any number of times until he did that which was required of him? This was moral torture—here was the Inquisition, sanctioned by words as plain and intelligible as any draftsman could frame them. He now came to the conduct of proceedings in the Superior Courts. He had always felt that one great defence of a prisoner was, that the charge against him should be definitely stated. But under the Bill, as it now stood, the charge against the prisoner could be stated with as much indefiniteness as possible, while the defence made by the prisoner must be stated with the utmost definiteness. The charge need not contain the name of a person assaulted, for instance, nor the name of the owner of property intended to be defrauded, nor need the actual words be stated where they gave rise to the charge against the prisoner—that was to say, that a person could be charged with using language of intimidation, without the words of intimidation being set forth. In fact, the Bill, when it became law, would contain a deliberate incitement and invitation to prosecutors, in place of being definite in the charges brought against prisoners, to be as indefinite as possible, because the more indefinite they were, the more chance there would be of obtaining a conviction. Another startling innovation was, that the deposition might be produced at the trial of a witness examined at the preliminary inquiry, although that witness might not be forthcoming; or, in other words, the Crown Prosecutor, who had put forward the evidence of an informer, might get him out of the way at the trial, if his cross-examination was likely 142 to shake the testimony he had given. But the most dangerous part of the Bill was contained in Clause 50 and onwards, which amounted to the permanent enactment in Ireland of the system of packing juries. In the first place, it was proposed that the Attorney General should not, as now, be required to get the assent of the Grand Jury to any indictment; then the Attorney General could demand, and, as he (Mr. T. P. O'Connor) read the clause, the Court was compelled to grant trial at Bar. He thought the hon. and learned Gentleman the Attorney General, when he spoke on this question, might have been candid enough to inform the House that Clause 50 largely extended the jurisdiction of the Law Officers of the Crown with regard to trials at Bar, because that was really the effect of the clause. The hon. and learned Gentleman had said that the clause left the law exactly the same as it was; but he (Mr. T. P. O'Connor) repeated that it made a most extraordinary and revolutionary alteration in the law. It enabled the Attorney General to get rid of the protection afforded by the Grand Jury, and to bring the accused before the Court of Queen's Bench when he liked. The third provision of the clause related to the empanelling of special jurors; and here he would invite the House to take Clause 50 with Clause 72, in order to see the scope of the proposal. Let them put those two clauses together. There might be a special jury in the case of a trial at Bar, and according to Clause 50—Upon a trial at Bar, the jury shall, in England, be taken from the county of Middlesex, and in Ireland from the county of Dublin, or the county of the city of Dublin, as the order of the Queen's Bench Division may direct.That was to say, the Special Jury must be taken from a particular class of jurors in a certain portion of Ireland. Now, Clause 97 said—No peremptory challenges shall be allowed in any cases in which a special jury has been struck in the manner herein before provided for.The matter ran in this way—First of all, the Attorney General could have his trial without a Grand Jury; secondly, the ease was heard at the Queen's Bench; thirdly, it was heard by a Special Jury in the City of Dublin; and, fourthly, the right of peremptory challenge was not allowed in the case in which a Special Jury had been struck; 143 or, in other words, jury packing was made a permanent institution in Ireland. What did the House think of such a thing as that? If it were possible for such a thing to occur, if this House could be suddenly transformed into a Palace of Truth—a thing which might be described by logicians as a metaphysical impossibility—hon. Members would open their mouths; and it would be a curious thing to hear how many would be obliged to admit that this statement of his disclosed a condition of affairs perfectly new to them in regard to the effect of the Bill. These clauses established the pre-eminence of jury packing in Ireland at the dictation of the Attorney General for the time being. Did hon. Members know the character of the Queen's Bench in Ireland? It was a sort of ante-room to Dublin Castle; in fact, he did not know whether he was quite right in describing it as even an ante-room, seeing that the Judges of the Queen's Bench wore, in nearly every case, Members of the Privy Council, and that, as such, they were a part of the Executive which had the direction of the policy of the country, which included the institution of political trials. In that way, the Judges were concerned in giving directions for trials which they subsequently had to preside at. They changed the venue of these cases from Dublin Castle to the Four Courts, and were themselves the very persons who had referred those prosecutions to Courts of which they sat as members of the administration. He maintained, therefore, that the Queen's Bench in Ireland was a Department of the State to all intents and purposes. Then, they had this fact to consider, that the Attorney General, who was also a Member of the Privy Council, appeared, at the suggestion of the Privy Council, to conduct prosecutions before Members of that Privy Council; and, more than that, the defendant was brought there before a Special Jury, from which he had no right to eliminate by peremptory challenge. Take a case of seditious libel—the hon. Member for Mallow (Mr. O'Brien) knew something about that, as he had been charged with the offence at least once. What was seditious libel? It was, in fact, a statement against the Government which the Government did not like—any attack made upon the Government which met with their disapproval was a seditious libel. In the 144 face of that fact, would the House credit that it was now to be made a portion of the permanent law of the country, that no justification was to be allowed to be entered in reply to such a charge? In other words, any criticism on the action of the Government which the Government chose to prosecute meant conviction, because all they had to prove was the use of the words of which they complained. The Government had only to produce the papers which contained the words upon which the charge was founded. They need not prove the meaning or intention of the words, and, though justification was allowed to be pleaded in the case of any other libel, there was no such thing as justification permitted in the ease of seditious libel. [THE ATTORNEY GENERAL (Sir Henry James): What clause is that in?] He was surprised to find that it was necessary for him to extend the area of ignorance which seem to exist upon this Bill, because he found when he came to the fact that no plea of justification was allowed to a defendant in a case of seditious libel, that not only were hon. Members generally unacquainted with the provisions of the Bill, but that even the hon. and learned Gentlemen the Attorney General and the Solicitor General themselves had to ask what part of the Bill such a thing appeared in. The Law Officers of the Crown, who were supposed to have been engaged in perfecting every line of this Bill for months, were not able to tell off-hand what portion of the Bill contained the important provision enacting that no justification should be allowed in cases of seditious libel.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
I thought the hon. Member was speaking of some new enactment of the law. The provision he is referring to is no new law, but a portion of the existing law.
§ MR. T. P. O'CONNOR
said, the hon. and learned Gentleman knew very well that that was only law in the sense of being Judge-made law—law made by one single Judge. But whether it was Judge-made law or not, did the hon. and learned Gentleman put forward the fact that that was existing law, as an excuse for not knowing what portion of the measure that provision was in? The hon. and learned Member rose to correct a misapprehension which only existed in 145 his own mind. He (Mr. T. P. O'Connor) repeated that it was evident that the two Law Officers of the Crown did not know, and had to be informed, as to what portion of the Bill this important provision, disentitling a defendant to plead justification, in cases of seditious libel, was in; and that showed with what little wisdom the world was governed. Take the case of ordinary libel; the prosecutor's were not required to set forth the words that contained it, so that one man could charge another with libel, without being obliged to set forth the words which constituted the offence. But, mark this—that in definiteness being allowed to the prosecution, what was done in the case of the defence? If the defendant declared that he was obliged to state certain facts in the interest of the public peace, or for some other reason, he was required to set forth in writing the fact or facts which justified the plea, so that the prosecution had a detailed and definite statement of fact, to which the defendant was bound to adhere; whereas they themselves might reply in general terms. The prosecution might be general and vague in the original indictment, and when the defendant became definite and clear in giving the fact or facts, the prosecution might reply again generally. Vagueness was made the rule with the prosecution, and definiteness a necessity with the defence. He had spoken of the manner in which peremptory challenge was taken away, and perhaps the hon. and learned Gentleman the Attorney General did not know the clause in which that challenge was contained. If he was as ignorant on that point as he was with regard to justification in the matter of seditious libel, he (Mr. T. P. O'Connor) would inform him that the question of challenge was dealt with in Clause 97. How was it dealt with? In the first place, there was a right of priority given to the Crown. The prisoner had to speak first. There were several other provisions setting forth the grounds of challenge, and on these grounds, and on these grounds alone, could objection be taken to a person put forth as a juror. In the first place, a right of challenge was given where any juror's name did not appear in the jurors' book. Then, again, any number of challenges were given on the ground that a juror was not indiffe- 146 rent between the Queen and the accused; and they were given on the ground that a juror had been convicted of any offence for which he was sentenced to death or penal servitude, or to any term of imprisonment with hard labour, or exceeding 12 months. The clause went on to specify the following grounds, in addition to those he had quoted:—That any juror is disqualified as an alien, under the law in force for the time being in England or Ireland; or in Ireland on the ground that any juror was returned to serve as a juryman contrary to the provisions for the time being in force for the returning of jurors in rotation.Then came the words—No other ground of challenge than those above mentioned shall be allowed;so that, in fact, they had to go into the question as to whether a juror had been convicted of any offence for which he had been sentenced to death or penal servitude, or to any term of imprisonment with hard labour, or exceeding 12 months, or whether he was disqualified as an alien, or whether he was returned to serve as a juryman contrary to the provisions for return of jurors in rotation. These grounds might be alleged, or it might be said that a juror was not indifferent between the Queen and the accused. That might be very plausible; but how could they find that a juror was indifferent between the Queen and the accused? The clause went on to say—If any challenge was made, the Court might, in its discretion, require any party challenging to put his challenge in writing.What followed? Why the clause said—The other party may deny that the ground of challenge was true.And then the Court could select two jurors, or, if no jurors had been sworn, then two persons present whom they might appoint for that purpose, to try whether the juror objected to stood indifferent between the Queen and the accused, or had been convicted as aforesaid, or was disqualified as an alien as the case might be. The selection of these two triers rested with the Crown, or, in other words, with the Member of the Executive, who was also the Judge in the Queen's Bench for the moment. That Judge might appoint two of his packed jurors to decide the question as to whether a juror, whose qualification was under consideration, was or was not indifferent between the 147 Queen and the accused. Well, he (Mr. T. P. O'Connor) considered he was justified in saying that, under these circumstances, this would be a permanent enactment of the very worst description. He now went to the Conspiracy Clause. ["Oh, oh!"] He could promise the hon. Member who seemed to object to his going into this matter, that he would state nothing that was not in the Bill, and that he would state some things which would give information to the hon. Member's mind. The clause was such that under it any member of a trades union—consisting, as some trades union might consist, of 20,000 or 30,000 members scattered all over the country—could be held responsible for any single act of every single individual connected with the body to which he belonged. To that matter he particularly wished to call the attention of the hon. Member for Stoke (Mr. Broadhurst). Suppose there was some bricklayers' organization, and that the hon. Member for Stoke was president of it; and supposing down at Stoke, or some other part of the country, a member of that organization rattened another member, the hon. Gentleman himself could be made amenable for the offence here in London. The Bill said, "they must have joined together for an unlawful purpose;" but the House must not forget what a partizan Judge and a packed jury might consider an "unlawful purpose." Of course, there would be no danger if all Judges were honest, and if all Attornies General and Solicitors General were scrupulous, or, at any rate, as ignorant of the clauses of the Bill as the hon. and learned Gentlemen sitting on the Front Bench opposite. They must face the fact that impartiality such as that of those two hon. and learned Members was not easily paralleled, and they must always bear in mind that they might, at any time, in Ireland, have better informed Law Officers than these. This Conspiracy Clause said, in Sub-section C of Clause 72, that a person was a party to, and guilty of, an indictable offence who—Directly or indirectly counsels or procures any person to commit the offence, or to do or commit any such act as aforesaid.The clause went on to say—If several persons form a common intention to prosecute any unlawful purpose, or to assist each other therein, each of them is a party to 148 every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was, or ought to have been, known to be a probable consequence of such common purpose.Therefore, it was not necessary that there should have been an association for an unlawful purpose—it was not necessary that the results of an association should have been the deliberate planning and perpretation of unlawful acts—but that the result of any act should have been such as the wisdom of any associate should have foreseen. Supposing a man made a speech, and three years afterwards a crime was committed which, in the opinion of the prosecution, could be indirectly traced to that speech, the party who had made it could be held guilty of the crime, notwithstanding that the speech might have been delivered for the very purpose of preventing such crime. There was not an association in the land that would be safe under this Bill, if the law were administered, as it was being administered just now in Ireland. The measure was virtually a permanent enactment of some of the worst features of the Prevention of Crime Act. Apparently, nothing would satisfy the Government but adding to everything that was bad in it, dispensing with that which was least offensive, and retaining everything that was evil. The Bill said, in Clause 130—This Act shall not apply to or affect the Prevention of Crime (Ireland) Act, 1S82, and this Act and any proceeding there under may be earned into effect in the same manner and with the same consequences in all respects as if that Act had not been passed.So that the Government were not satisfied with one or the other measure alone, but they required the two. He regarded the Bill as most perilous to the liberty of the subject. It destroyed every one of the accepted principles sanctioned by tradition in this country. The practice and tradition had always been for the proceedings to take place in open Court; but, under the Bill, they could take place in secret. An old maxim was that every Englishman's house was his castle; but, under the Bill, every man's house would be liable to inspection by the police at any hour of the day or night. According to immemorial usage in this country, every man was assumed to be innocent until he was proved guilty; but the general effect of the Bill was to assume that every man was guilty until 149 he had proved himself to be innocent. The tradition and universal practice of the country had been that there should be definiteness in the indictment; but, for definiteness, this Bill would substitute vagueness in every part. These things could not be too strongly reprobated; but in England there were the safeguards of a free Press and an effective public opinion. In Ireland they had neither the one nor the other. The public opinion of Ireland was not effective with regard to the administration of the law or with regard to legal decisions. The more public opinion asked for anything, either from this House or from the Courts in Ireland, the more certain was it to be refused. The greater the unanimity of public opinion in Ireland on any question, the greater was the unanimity of English public opinion against concession to it. In Ireland, therefore, they had no protection in public opinion. They had no protection in the freedom of the Press, because there was no such thing as freedom of the Press in that country. There was no writer for the public Press who, if he dealt with political questions, could not be brought before a packed jury by an unscrupulous Attorney General, and convicted of seditious libel. In short, this Bill would take away the last safeguards of the liberty of the Irish people; and the Irish Members were therefore bound to meet it with a most obstinate and stubborn opposition.
§ Motion made, and Question proposed, "That the Debate be now adjourned."—(Mr. Sexton.)
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
said, he thought he need not express the hope that this Motion would not be accepted. Early in the evening hon. Members opposite had been absent, and had advanced no objection of any kind to it; but, having returned at a late hour, they raised objections, not to the second reading, but to clauses, innocent, he quite admitted, of the fact that they were repeating, over and over again, the arguments which had already been heard in the debate. The House had had to hear, over and over again, what had already been said, without a word of criticism on the principles of the Bill, and directed 150 only to clauses. He was sure the House would desire every possible discussion on the Bill; but it had been already discussed, and if hon. Members wished to discuss it further, all he could say was that the Government intended to meet this Motion for adjournment with strong opposition.
§ MR. O'DONNELL
said, that, until within the last hour, the Liberal Benches had been almost empty. Irish Members had, in the course of the discussion, kept themselves in the background, while leading Members on both sides had expressed their opinions. According to the traditions of the Chair, if an Irish Member had risen in the first hour of the debate, he would not have been called upon in preference to those who had a right to sit on the two Front Benches; and the present crowded state of the House had given rise to the suspicion that it was due to a "Whip" which had been sent round the Clubs in order to bring about an untimely close of the debate. It would be impossible for the Government to conceal a confederacy of that description from the condemnation of the public.
§ MR. SPEAKER
The hon. Member must confine himself to the question of the adjournment of the debate.
§ MR. O'DONNELL
said, he desired to speak on the details of the Bill. There were still some Amendments to be moved—for instance, the most important proposal that the Bill should be referred to a Standing Committee. The hon. and learned Attorney General, in introducing the Bill, had given but a very faint outline of its provisions; and one of the reasons why he (Mr. O'Donnell) had risen at all was that the hon. and learned Gentleman had made no clear statement in reply to the right hon. and learned Gentleman the late Attorney General for Ireland (Mr. Gibson), and several other hon. Members who had spoken, but had vaguely declared himself ready to abide by the decision of the majority of the Grand Committee, taking refuge behind a problematical sort of decision, instead of giving a clear statement of the policy of the Government.
§ MR. JUSTIN M'CARTHY
said, the hon. and learned Attorney General had given as his reason for opposing this Motion some supposed conspiracy on the part of Irish Members; but many of the 151 Irish Members had had to attend a meeting of great importance to them, having no connection with this Bill. When they were free from that meeting, they had come back to the House, and had remained there as closely as they did on any other evening. When he (Mr. Justin M'Carthy) came in, he found the late Secretary of State for the Home Department discussing the Bill in the presence of the Speaker and one other Member. What was to be done with this Bill after it left the House? This Bill affected the interests of the Irish people, and was it fair that Irish Members should have no opportunity of discussing its details? He had intended to take part in this debate, and he thought that he and others like himself were entitled to have a chance of doing so; and he hoped the House would not consent to the sudden closing of the debate.
§ MR. PARNELL
said, he thought the Government seemed to suppose that they had a Criminal Code for the House, as well as the Criminal Code they were proposing for this country and for Ireland. He certainly joined with his hon. Friends in considering that the Bill was one of much importance, which would have to be closely scrutinized before the Grand Committee, and again when it returned to the House. But the Government appeared to have the idea that a Bill of such enormous moment, and ranging over such wide questions, should be read a second time after the very partial discussion it had received to-night. The hon. and learned Gentleman seemed to be annoyed because he could not show some supposed absenteeism on the part of the Irish Members during the early hours of the debate. He (Mr. Parnell) himself was not able to be present in the early hours; but he knew that the Irish Members did not intend to show any discourtesy to the hon. and learned Gentleman himself. On the contrary, they waited in the House up to the last possible moment, consistently with not neglecting other important duties and interests which they were bound to attend to, in order to have the pleasure of hearing the hon. and learned Gentleman's exposition of the Bill. But the hon. and learned Gentleman had disappointed the expectations that had been formed of him, and had decided to move the second reading of the Bill without any explanation. It was, there- 152 fore, not in the power of his hon. Friends to pay that courteous attention to him which they would have desired to pay under other circumstances. The hon. and learned Gentleman would, therefore, see that he was not entitled to make that charge of deliberate absenteeism which he had made against the Irish Members. This was a most important Bill, and there were Amendments standing against it in the name of different Members, showing a great interest in the Bill. He had not before seen a Bill with so many Amendments against the second reading as there were against this Bill. It was a measure which excited unusual and unprecedented interest; and, considering that the House would be deprived of an opportunity of discussing it on the Committee stage, there ought to be a further discussion on the principles before the Bill went to the Grand Committee to which the Government had intimated their intention to send it. The attitude of the Government practically meant that the Irish Members were only to be entitled to speak on a Bill of this kind during the dinner hour, when it suited other parties not to be present. That was the only deduction he could draw from the hon. and learned Gentleman's speech, and therefore he maintained that Irish Members were entitled to press for a further discussion.
§ MR. T. D. SULLIVAN
said, he had heard many charges brought against Irish Members, and now they were charged with having been absent from the House; but he had thought that the longer the Irish Members were absent, the better the House liked it. But if they were absent, it was for very good reasons; they had most important business to attend to, and no charge could lie against them on that account, especially considering that English Members were absent in the same way. He had seen the Liberal Benches absolutely empty while important questions were under consideration, and Irish Members were frequently in the House keeping important questions before the country, when the House was almost entirely deserted. They considered this Bill of great importance, and the reason why he supported the Motion for adjournment was that it was important both to England and Ireland. If it dealt only with English liberties, they would let 153 English Members take care of their own interests; but they were concerned with the liberties of the Irish people, and were of opinion that this measure had not been sufficiently discussed at this stage. English laws, however drastic, might in a large measure be trusted to English magistrates.
§ MR. T. D. SULLIVAN
said, he desired to support the Motion for adjournment on the ground that this was a Bill of exceedingly great importance, especially to Ireland, and there was a great deal that Irish Members desired to say upon it. For that reason he held that they had a good claim to ask for an adjournment of the discussion.
§ MR. DAWSON
said, it was with sorrow that he saw not only the liberties of his own country, but the liberties of this country passing away by a measure of this character. He was very much of the opinion of his hon. Friend that hon. Members ought to have time to read the Bill and understand it, and that the Government should not seek to close the debate which, to his mind, they had not taken sufficient part in. A measure of this nature ought not to be forced on at that very late hour. If hon. Members would get up and give them some intimation that they thoroughly understood the question, and would not be forced and hoodwinked into giving a decision at that late period, he should withdraw his opposition to the proposal of the Government to go on with the Bill; but he felt certain that if they went on with it now, the vast majority of Members would be hurried into a decision for which they would have reason, some day or other, to be sorry. One difficulty which would be experienced if the Bill was pushed on now, would be that when it went to the Members of the Grand Committee, if it was not thoroughly discussed on the second reading, the Members of that Committee would be making Amendments in it which, when it came back to the House, would have to be fully discussed on Report, as well as those matters which the Government would not allow time to go into now. Hon. Gentlemen had not read the Bill; therefore, to hurry it through now would be to seriously affect the legislation of the country. He 154 thought it had been clearly shown that the English Members did not rise to the necessities of the occasion. He thought that sufficient reason had been shown on the part of the Irish Members for wishing to delay the measure until it was better understood by hon. Members. Let the Government give the Irish Members a further opportunity to inform English Members, and opening their minds upon this matter. He fully intended to support the Motion for adjournment; and, in doing so, he wished to say that a great change had come over the House. In other years they would have been permitted, with all their powers as Members, to take part in a full discussion of this Bill in Committee of the Whole House. They were not to be allowed to do that, however; and he therefore asked, was it fair for the right hon. Gentleman to tell them—
§ MR. SPEAKER
I must call the hon. Member's attention to the fact that he is not speaking to the Question before the House.
§ MR. DAWSON
said, he was about to speak of the innovations that crippled discussion, and which made hon. Members all the more entitled to have a full debate in that House while the principle of the Bill was before them. The Committee of the Whole House on this Bill had been taken away; and the result was, that he and other hon. Members, who were not on the Grand Committee, could not discuss the details, except on such an occasion as this. Was he not entitled to refer to that?
§ MR. SPEAKER
The hon. Member asks me for my direction, and I must therefore give it him. He is clearly not in Order in the observations he is making.
§ MR. LEAMY
said, he could very well understand the anxiety of the hon. and learned Gentleman the Attorney General to have this Bill read a second time that night. It was, of course, very natural that, being in charge of the Bill, the hon. and learned Member should wish it to pass the House as rapidly as possible, so that it might go before the Standing Committee; but, at the same time, he (Mr. Leamy) could not help thinking that the reason of the hon. and learned Member's anxiety was that he feared 155 that if the measure were adequately discussed at that stage, it would be very likely to meet with a more strenuous opposition when it went upstairs than that which he now anticipated for it. He (Mr. Leamy) doubted very much whether the hon. and learned Member could point to any Bill of such great importance as this, or to any Bill dealing with the Criminal Procedure, or with Law Procedure, which, though it did not touch such vital questions as were dealt with in this measure, was passed through the House after one night's debate. This was a measure which certainly deserved the closest possible attention from the House. He did not wish to raise any question about how it would affect Ireland, or how it would affect England; but he took it as a legal Bill, which would effect very serious changes in the Criminal Law of the country; and he submitted that those things should not be dealt with lightly, and that the House should not commit itself to changes like these without having carefully examined them. No one knew better than the hon. and learned Member himself the serious character of the changes that would be effected by the Bill; and it was only natural that he should be anxious to get the measure through that House, and sent to the Standing Committee, where no publicity would be given to the discussion that took place upon the details. If the present attempt of the Government were successful, there would be no adequate discussion on the principles of the Bill, and nothing would be known of the discussion in its details. He was satisfied there were many English Members who did not understand the Bill, and who, therefore, were unable to take part in this debate, and if an adjournment were allowed they would be enabled to inform their minds upon the matter. If the debate wore adjourned, these English Members would join the Irish Members in opposing certain clauses of the Bill. The measure contained 131 clauses, some of which, as he had said, wore of the greatest possible importance. The hon. and learned Gentleman the Attorney General had accused the Irish Members of repeating the same arguments over and over again; but, if that were so, was it not for the reason that the hon. and learned Gentleman had not attempted 156 to answer the arguments advanced? No attempt had been made to explain those points in the Bill upon which the Irish Members had put questions, and to which they had raised objections, and he (Mr. Leamy) submitted that they had a right to expect that the hon. and learned Gentleman in charge of the Bill would state whether or not the construction put upon the clauses by the Irish Members was a just and fair one. But to ask them to prolong the discussion at half-past 1 in the morning was really too much. It must be borne in mind that a considerable number of hon. Members had had to attend a meeting of the Grand Committee that day, which sat at 12 o'clock. It was to be presumed, as that Grand Committee in question was the one on Law and Legal Procedure, that it had occupied the attention of many legal Members of the House, who were consequently not in their places that night through having had to come down to Westminster at such an early hour that morning. He thought that to attempt to close the discussion on the Bill in the absence of these hon. and learned Gentlemen, who had been, serving on the Grand Committee because of their supposed special knowledge on the subject, was to attempt to pass the Bill through under circumstances of great disadvantage. He heartily supported the Motion for adjournment.
§ Question put.
§ The House divided:—Ayes 19; Noes 128: Majority 109.—(Div. List, No. 56.)
§ Main Question again proposed, "That the Bill be now read a second time."
§ MR. KENNY
said, he begged to move the adjournment of the House. He thought they had already given sufficient reasons why an adjournment should take place. The Irish Members had been accused of deliberately absenting themselves at the commencement of the debate; but that was not the fact. When the Irish Members returned to the House they found that the English Members were absent, and he thought it would be well—[Loud cries of "Divide, divide!"]—if an opportunity was afforded to further discuss this Bill. He protested against those interruptions, coming as they did, in some cases, from hon. Members who were not in the most 157 perfect state of self-possession. When he came back to the House, he found very few hon. Members present; and it was only at his (Mr. Kenny's) request that the hon. Member for Cavan (Mr. Biggar) had refrained from moving a "Count." He had missed the first portion of the debate; and he, therefore, desired to have an opportunity of making himself acquainted with the remarks which hon. Members had let fall during the discussion of the Bill on the second reading, by reading the speeches in the newspapers to-morrow before the debate closed. He was especially anxious to read in the papers to-morrow the introductory observations of the hon. and learned Gentleman the Attorney General. He thought that, considering the very late hour and the manifest unfitness of hon. Members to decide the great questions at issue, the hon. and learned Gentleman should now accede to the request of the Irish Members and consent to the adjournment.
§ Motion made, and Question proposed, "That this House do now adjourn."—(Mr. Kenny.)
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
said, he thought the evident sense of the House was in favour of the Bill being read a second time. Hon. Members opposite asked for the adjournment of the debate on the ground that the Bill had not been sufficiently considered; but he would point out that a Bill in almost identical terms was read a second time in 1879. The Bill had, therefore, practically been before the country during four years. He had been challenged with the statement that a measure of great importance like this ought not to be passed through the stage of second reading in one night; but, in reply to that, he would point out that the Bill of 1879 was read in one night, so that there was nothing unusual in the proposal now before the House. He trusted the hon. Member (Mr. Kenny) would not press his Motion for adjournment. If the House were disposed to allow the second reading to be taken, he would not ask the House to decide that night upon the question of referring the Bill to the Standing Committee, which they would have a future opportunity of discussing.
§ MR. SEXTON
said, he thought the course which their proceedings had taken recently was very instructive. Since the division, hon. Members, jubilant in the possession of the new powers placed in their hands, had proceeded on their return from the Lobbies to a lively manufacture of "evident sense," and their cries were so loud and well-sustained, that it had been almost impossible for the hon. Member for Ennis (Mr. Kenny) to make himself heard. The moment the hon. and learned Gentleman rose, he referred to the "evident sense" of the House; but it was evident to him (Mr. Sexton) that something in the nature of a compact and arrangement had been entered into between the hon. and learned Gentleman and those hon. Gentlemen who not so prominently, but no less effectually, contributed to the proceedings of the House. It was asked by hon. Members on those Benches that further time should be allowed for the consideration of a great measure that was about to pass out of their hands, and be referred to a Grand Committee, on which Irish Members were but slightly represented. But the Government refused that indulgence; and all he (Mr. Sexton) could say was, that if they persisted in the extraordinary course they had taken—if they relied on the energy of their Supporters to force Irish Members into silence—they would find that the time of the House during the Session would not be thereby economized. Because, it was obvious that, if they were not allowed to discuss the measure at adequate length, and if they were met with delusive pleas in support of the refusal of the Government, they would have to discuss the Bill at considerable length in the Grand Committee, He said it was a delusive plea to put forward, that the question was not one of principle, but of clauses, for the Bill was such a monstrous innovation upon the liberty of the subject, that every clause of it contained some vindictive and sinister principle. It would, therefore, be necessary for them, in the Grand Committee, to take the Bill clause by clause, in order to assert as fully and adequately as possible the right of Irish Members to bring their views to bear upon public opinion in this country. He asked the hon. and learned Gentleman to consider whether it was likely, in the long run, to save the time of the 159 House, after one Sitting, to deprive them of the opportunity for further discussion? The hon. and learned Gentleman said that hon. Members on those Benches had simply repeated one another; but he (Mr. Sexton) had listened, for instance, to the speech of the hon. Member for Galway (Mr. T. P. O'Connor), and the charge certainly did not apply in that case, for that hon. Member had brought forward two arguments, which produced some confusion in the minds of the Law Officers of the Crown. Those hon. and learned Gentleman were unable to refer to the clause which his hon. Friend was dealing with.
§ MR. THOROLD ROGERS
rose to Order. He asked, whether the hon. Member for Sligo (Mr. Sexton) was relevant to the Motion before the House in the observations he was making?
§ MR. SPEAKER
The hon. Member is travelling somewhat wide of the Question, and I must ask him to confine himself to the Question before the House.
§ MR. SEXTON
said, he claimed that the debate ought to be adjourned, in order that the hon. and learned Gentleman the Attorney General might, on Monday night, answer the speech of his (Mr. Sexton's) hon. Friend the Member for Galway. The only arguments, in the course of the debate, which had received any reply from the the hon. and learned Attorney General were the arguments which came from English Members. The arguments of Irish Members had been unanswered; and he (Mr. Sexton) said that to close the debate under such circumstances was nothing else than an injustice and a scandal.
§ MR. O'DONNELL
wished to say a few words on the reproaches which the hon. and learned Gentleman the Attorney General attempted to cast upon Irish Members for the manner in which they had intervened in this debate. He (Mr. O'Donnell) had taken pains to collect information as to the order in which hon. Members had spoken since Mr. Speaker left the House at the usual time, and he found that instead of being, as the hon. and learned Attorney General had suggested, in any way improper, the intervention of Irish Members in the debate had taken place at the only time at which they could intervene. He found that the argument of the hon. Member for Sligo (Mr. Sexton) was justified, and 160 that there was an explanation due from the hon. and learned Gentleman.
§ MR. SPEAKER
The hon. Member for Dungarvan appears to be reviewing the debate on the Question, "That this House do now adjourn." In so doing, the hon. Member is not in Order.
§ MR. O'DONNELL
said, he only proposed to reply to the speech which the hon. and learned Attorney General made on the Motion, "That this House do now adjourn," and not to review the debate. He had no desire to trespass on the time of the House, and no idea of going against the ruling of the Chair; but he thought he was entitled to reply to the speech of the hon. and learned Gentleman upon the Motion for adjournment. The time of the House until the intervention of Irish Members in the debate had been taken up by the speeches of two official Members, who took precedence over Irish Members, and by the speeches of English Members who had Motions and Amendments to move to the Bill. It was quite evident that it would be impossible for any Irish Member to claim the attention of the House in the face of the official Members on the Front Benches, and of the three or four hon. Gentleman who had Amendments to the Motion actually upon the Paper. The explanation of the hon. and learned Attorney General had been made before 9 o'clock, and from the time when Irish Members began to object to the Bill, there had been no reply to their questions from the Treasury Bench; and he (Mr. O'Donnell) said that on the principle of privilege and courtesy to the House alone, they were entitled to an official answer. Of course, this official answer could not then be given, and it was for that reason that the House ought to adjourn. The manner in which the hon. and learned Attorney General had misrepresented the action of Irish Members would, he thought, be usefully brought before the bar of public opinion; and then it would be found that their resolution, by the brute force of numbers, to suppress the opinion of Irish Members, would not redound to the cause or popularity of the Government. Ever since the Government Party seemed to have become aware that they possessed the number required to close the mouths of the Irish Party, they had not even listened to them with courtesy or attention; and that was an 161 illustration of what they already knew by experience—namely, that when power was given to Liberals, they would use it in a brutal manner.
said, that when the hon. and learned Gentleman the Attorney General reminded the House that the Bill had practically been read four years ago, he seemed to have forgotten that since that time the Prevention of Crime (Ireland) Act had been passed. He (Mr. O'Brien) thought the attitude of the hon. and learned Attorney General, and the conduct of hon. Members opposite, were a bad return for the forbearance shown by hon. Members on those Benches in reference to the Explosives Bill. This was certainly the first time, that, in a single night, a perpetual Coercion Act had been forced through an important stage, and passed on to a Committee in which the voice of Ireland would be practically suppressed. Every constituency in Ireland expected, and had a reasonable right to expect, that its Representative should be heard in protest against a measure of this description, which was but another blow to public liberty in Ireland. Not more than eight Irish Members had been heard against the Bill, and to their arguments not a single reply had been attempted, except by way of interruption s, which had turned out rather disastrously for the interrupters. If this was an attempt, before the protest of Ireland had been heard, and before the House had realized the infamy of this measure—if that expression was un-Parliamentary it was perfectly true—to suppress the voice of Ireland that night, all he could say was, that he was not sorry that the new system of coercion which this Bill was to inaugurate should have been commenced upon Irish Representatives.
§ SIR WALTER B. BARTTELOT
said, he understood the hon. and learned Gentleman the Attorney General to say that if the House were disposed to read the Bill a second time that night, he would give hon. Members an opportunity of making any statement they had to make with regard to the Bill on the Question that it be referred to the Grand Committee. He (Sir Walter B. Barttelot) believed he was in the recollection of the House in saying that the exact words of the hon. and learned Gentleman were— 162A full opportunity of making any statement they may please on this Bill on the Question that it be referred to the Standing Committee.And, that being so, he thought it would be wise on the part of the minority to accept the suggestion made.
THE MARQUESS OF HARTINGTON
said, he thought the hon. and gallant Member who had just spoken (Sir Walter B. Barttelot) somewhat extended the statement of his hon. and learned Friend the Attorney General. His hon. and learned Friend's statement was, that if the House were disposed to decide the question of second reading that night, the Government would not ask the House also to decide, on the present occasion, the question of referring the Bill to the Standing Committee. His hon. and learned Friend also said that the House would have another opportunity of discussing that question; but it was not possible for him to decide what was or would not be in Order. The hon. Member for Mallow (Mr. O'Brien), upon the subject of the adjournment of the House, said that every Member of the minority had not been heard. It was rather pushing the rights of minorities to excess to suppose that every Member of a minority could be heard against a measure to which objection was taken; and he (the Marquess of Hartington) asked the hon. Member to consider what would be the effect of that in the case of a measure opposed not by a small, but by a large minority. There was no intention whatever either to misrepresent the action of the Irish Members, or impute motives to them. All that was said was that the hon. and learned Gentleman the Attorney General waited for some time before he rose, and then only got up when he found that no one else showed a disposition to continue the debate. It was rather hard, therefore, to say that the hon. and learned Gentleman had not answered arguments addressed to the House. It was impossible for him to answer them, because they had not yet been made. ["Oh, oh!"] Well, he (the Marquess of Hartington) dared say, in anything he had to say, it might be alleged that he had not been present himself during a i great part of the debate. That was true, because he had had no intention of taking any part in the debate on the second reading, and had not, therefore, thought that his presence would be of any use. He had, however, heard some 163 of the speeches delivered that evening by hon. Gentlemen representing Irish constituencies; and he ventured to say that, having heard those speeches, he was of opinion that it was impossible that any of the questions raised in those speeches could be decided by an adjournment, or that any approach to a decision could be brought about by that means. So far as he had heard, hon. Members had dealt with matters of detail, which were subjects for discussion in Committee—either in the Grand Committee, or in Committee of the Whole House. Whether the details of such an important measure as this should be discussed in a Standing Committee or in a Committee of the Whole House was, no doubt, an important question; but the hon. and learned Gentleman the Attorney General had already intimated to the House that it was not the intention of the Government to ask them to go into that matter that night. Any arguments, therefore, which could be given why the details of the Bill should be considered in the Whole House rather than in the Standing Committee hon. Members would have an opportunity of stating. It seemed to him that nothing could be gained by continuing a discussion nominally on the second reading, but really on the details of the Bill.
§ MR. LEAMY
said, it would be impossible for the House to continue the discussion as to the desirability of referring this Bill to the Grand Committee that night; therefore, the suggestion of the noble Marquess was not a very valuable one. He (Mr. Leamy) did not think the hon. and learned Attorney General would persist in making his proposal at that hour of the morning, seeing that there was an Amendment to it. The noble Marquess had said that, so far as the Irish Members had taken part in the debate, it had been a discussion upon the details of the Bill. Well, to his (Mr. Leamy's) mind, it had been a second reading discussion. On many second readings he had heard speeches upon the details of Bills—in the case of the Prevention of Crime (Ireland) Act last year, for instance. He had heard very long speeches from hon. and right hon. Gentlemen on the details of the Bill I during the second reading; and he had heard speeches that night upon clauses of this Bill which were so important, that if it was thought desirable to incor- 164 porate them into the law of the land it should be done in separate Bills, and not in a measure of this kind. Was he to be told, for instance, that the question whether an accused person should be examined himself was not a question of sufficient importance to discuss on second reading?
§ MR. THOROLD ROGERS
rose to Order. He wished to know whether the hon. Member was speaking to the Motion for Adjournment or not?
§ MR. LEAMY
said, he merely wished to point out that though the noble Marquess had stated that they were dealing with the clauses, it must be borne in mind that those clauses, or some of them, were such as ought to be embodied in separate Bills. Under those circumstances, the clauses ought certainly to be discussed, to some extent, on the second reading. He doubted very much whether the hon. and learned Attorney General had ever expected that the Bill would go through in one night. The hon. and learned Member had informed them that the Bill was read a second time four years ago, and that certain Members were not in the House at that time. Well, probably a considerable number of those hon. Members who were now sitting behind the hon. and learned Member were not in the House then; and probably the Bill was as new to them as it was to many of the Irish Members. If the debate wore adjourned until Monday, it was probable that the second reading would be disposed of in a couple of hours, and that the rest of the evening could be devoted to the consideration of the question of referring the Bill to the Grand Committee. Let the Government assent to that proposal.
§ MR. SHEIL
said, it appeared to him, from what had fallen from the noble Marquess (the Marquess of Hartington), that if the Irish Members were driven to the necessity of putting the House to the trouble of a division, the hon. and gallant Member for West Sussex (Sir Walter B. Barttelot) would be bound to vote with them, as he had been under the impression that they could continue the present debate on the Motion to refer the Bill to the Grand Committee. The hon. and learned Attorney General had heard the hon. and gallant Member say 165 that he believed he (the Attorney General) and the noble Marquess had given the House to understand that the debate could be so continued, and the hon. and learned Attorney General had not dissented. However, the noble Marquess had rendered it perfectly clear later on, having clearly pointed out that no such hope could be entertained. Under the circumstances, it was hard to see how the hon. and gallant Gentleman the Member for West Sussex could withhold his vote from the Irish Party. In previous Sessions, when the Government sought to do what they wore attempting to do now, the Irish Members moved many Motions to prevent them, some of which were good, and some of which were frivolous. To his (Mr. Sheil's) mind, all of them now seemed to be good. He did not propose to repeat those Motions, but desired to let them go with the past, and to forget them; but he would put it to the House whether the state of the case now was similar to what it was in the old days? In the old days, the House might be kept up all night, until 9 or 10 o'clock next morning—as had happened within his own experience; but now a powerful engine was brought to bear on this line of proceeding—namely, the clôture, which, he was told, was threatened tonight. Was that, he asked, a fair opportunity at which, for the first time, to put the clôture in operation?
§ MR. SPEAKER
I must point out to the hon. Member that he is not speaking to the Question before the House.
§ MR. SHEIL
said, his reason for asking the House to agree to the adjournment was simply that the Bill had not been properly discussed so far as the Irish Members were concerned. The noble Marquess had told them that he had not been present to hear the whole of the debate, although he had been present long enough to hear all the Irish Members had to say on the principle of the Bill. He had said his reason for refusing to assent to the adjournment was that the Irish Members had not used arguments which the House should dwell on. Then, if that was so, they might be anxious to have an adjournment, so that they could advance arguments that the House could dwell on. Was it wise that the adjournment should be refused on the present occasion? The Bill was one of extreme importance; and although the speeches 166 which had come from the Ministerial side had been strongly in favour of the second reading, they served to show how excessively involved were the questions which arose in it.
§ Question put.
§ The House divided:—Ayes 15; Noes 131: Majority 116.—(Div. List, No. 57.)
§ Main Question put, "That the Bill be now read a second time."
§ The House divided:—Ayes 132; Noes 16: Majority 116.—(Div. List, No. 58.)
§ Motion made, and Question proposed, "That the Bill be committed to the Standing Committee on Law, and Courts of Justice, and Legal Procedure."—(Mr. Attorney General.)
§ Motion made, and Question, "That the Debate be now adjourned,"—(Mr. T. P. O'Connor,)—put, and agreed to.
§ Debate adjourned till Monday next.
§ House adjourned at half after Two o'clock.