§ As amended (by the Standing Committee) considered.
§ *MR. TALBOT (Oxford University)said the only object he had in moving the Amendments standing in his name upon 698 the Paper was to make the Bill more perfect. For the Bill itself, he thought his hon. and gallant friend deserved great credit, and for having dealt vigorously with a very painful subject. The first one he proposed to move was to leave out "of or above the age of thirteen years," and the reason he moved it was this: that if they intended to punish this horrible crime effectually there was no object in limiting the age. He begged to move.
In page 1, line 6, to leave out the words, 'of or above the age of thirteen years.'"—(Mr. Talbot.)
§ Question proposed, "That the words proposed to be left out stand part of the Bill."
§ COLONEL LOCKWOOD (Essex, Epping)said he had endeavoured to meet the wishes of hon. Members on both sides who had assisted him in framing this Bill. It was fully discussed in the Grand Committee on Law, at which the Attorney-General was present, and various recommendations of the hon. and learned Member were taken into consideration. The object of putting in the limit of thirteen was to meet various recommendations made on both sides of the House. He believed also that any person committing an offence against any person under that age would be amenable under another Act. That being so, he would ask the hon. Member not to press his Amendment.
§ Amendment, by leave, withdrawn.
§ Sir WILLIAM TOMLINSON (Preston)having been called upon,
§ MR. GALLOWAYsaid on a point of order he had an Amendment of which he had given notice, which would come before the Amendment of the hon. Baronet. He desired in Clause 1, page 1, line 7, after the word "daughter" to insert the word "step-daughter." He hoped the Amendment would be accepted, because, in his belief, the experience of the Bill would show that those were the most serious class of cases.
§ COLONEL LOCKWOODsaid they had endeavoured to draft this Bill in such a 699 way as to limit the number of relations as much as was possible, because they had felt that the moment they went too far abroad it might be impossible to meet the objections that might be raised.
§ THE SOLICITOR-GENERAL (Sir EDWARD CARSON,) Dublin Universityasked upon a point of order whether it was within the purview of the Bill to make "incest" that which was not incest at present. Nobody doubted that it was a most abominable thing that there should be such a crime, but he submitted that they would be going outside the Bill if they made punishable as a criminal offence something which was not incest according to the present law.
§ *MR. H. D. GREENE (Shrewsbury)asked if the hon. and learned Gentleman had looked at the table of consanguinity and affinity in the prayer-book, or the Matrimonial Causes Act.
§
Amendment proposed—
In page 1, line 7, after the word 'daughter' to insert the word 'step-daughter.'"—(Mr. Galloway.)
§ SIR WILLIAM TOMLINSONsaid he desired that the Bill should become law, but he hoped consideration would be given to the extension he proposed to make by the Amendment standing in his name. The 27th Section of the Matrimonial Causes Act of 1857 provided that a wife should be able to obtain a dissolution of her marriage on the ground among others of incestuous adultery on the part of her husband. All the other offences named in that Act were already punishable by law, and they wanted to maintain the strength of the law, and wanted to show that this country regarded these matters as very serious matters. It was desirable that these offences, whether committed with persons related to the husband by consanguinity or only by affinity, at all events during the lifetime of his wife, ought to be treated with equal gravity. 700 Incestuous adultery had been defined as adultery committed by a husband with a person with whom, if his wife were dead, he could not wed, owing to his relationship with her either by consanguinity or affinity. He begged to move.
§
Amendment proposed—
In page 1, line 7, after the word 'sister,' to insert the words 'or who, being married, has committed incestuous adultery within the meaning of Section 27 of the Matrimonial Causes Act, 1857.'"—(Sir William Tomlinson.)
§ Question proposed, "That those words be there inserted."
§ *MR. H. D. GREENEsaid he was in no way associated with the promotion of this Bill, but he had taken considerable interest in the discussion in the Grand Committee on Law when no one who desired to extend the Bill ventured to go so far as the hon. Baronet, who now desired to extend it to entirely different offences to those comprised in it. Incest was at present an offence under the ecclesiastical laws of this country, and it was open under a statute of Edward I. for any one to report a case to the Bishop of the diocese, who could impose either a pecuniary or corporeal penance. He understood from experts in ecclesiastical law that the Bishops had usually been satisfied in the past with a pecuniary penance, and that from very rich people large sums had been obtained. It was desired now to make the offence of incest punishable as a crime. When making incest a crime punishable by penal servitude or imprisonment, it was desirable to limit it as much as possible, and the promoters had limited it to "grand-daughter, daughter, or sister." They had introduced no person related by affinity, and had perhaps not gone as far as they might, by not including persons connected by affinity. But the hon. Baronet asked for the inclusion of quite a different matter, and by introducing this Amendment was asking the House to make punishable what hereafter might become the law of the land by a Bill a little lower down on the Paper. The country was not yet ripe for making adultery punishable as a crime. If they were seeking to punish immorality generally he would earnestly support his hon. friend, but he was not desirous of going 701 with him in introducing such an Amendment into a Bill so limited in its scope as this, which for the first time was to make the crime of incest punishable as a crime. He heartily agreed that incestuous adultery should be punished, but he could not support such an Amendment being introduced in such a limited Bill as this.
§ COLONEL LOCK WOODsaid his hon. friend would see the difficulty in which they were placed; the effect of such an Amendment would be that the Bill would be rejected in another place. They were most anxious that it should pass, and therefore he would ask his hon. friend to withdraw the Amendment.
§ SIR WILLIAM TOMLINSONsaid he responded with great reluctance to the appeal of the hon. Baronet. He was exceedingly sorry to hear that there was likely to be a difficulty in dealing with the Bill elsewhere if his Amendment was adopted, and under the circumstances he begged leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ *MR. TALBOTsaid that the Amendment which he now proposed to move was not one which by any possibility could endauger the prospects of the Bill in this House or elsewhere. The object of this Amendment was to preserve to the Judge absolute discretion in passing sentence. Everybody conversant with the criminal law knew that the circumstances under which an offence might be committed differed very widely, and that an offence committed by one person might not be by any means of equal gravity when committed by another, having regard to the attendant circumstances. Under those circumstances, he desired to leave the Judge absolute discretion in dealing with the cases brought before him. He begged to move.
§
Amendment proposed—
In page 1, line 10, to leave out the words 'and not exceeding seven years.'"—(Mr. Talbot.)
§ Question proposed, "That the words proposed to be left out stand part of the Bill."
702§ MR. GALLOWAYsaid that in his opinion there were two objections to this Amendment. In passing criminal statutes it was, in the first place, usual to put in a limitation of this kind, and if they gave unlimited scope they would have different Judges passing different sentences for the same offence, than which there was nothing more likely to bring the law into ridicule and contempt, and nothing which did so much harm to the administration of the law. He hoped, therefore, the Amendment would not be persisted in.
§ COLONEL LOCKWOODsaid he was very reluctant to accept such an Amendment, and he hoped his hon. friend would withdraw it.
§ *MR. LAWSON WALTON (Leeds, S.)said he hoped the Amendment would not be accepted for the reasons pointed out by the hon. Member for South - West Manchester. They were for the first time making a crime and a crime of a very special character. They were familiar in the law with cases by which the public conscience had been shocked by the immense disparity of the sentences passed by Judges for the same offence. In those cases, although the Judges endeavoured to base their decisions on common principles, there were always individual members of the Bench who felt conscientiously impelled to give effect to their own individual views. It would be a great misfortune, and tend largely to prevent due administration of this Bill if savage sentences were imposed. He thought the restriction was a useful one.
§ *MR H. D. GREENEsaid he did not think that the right hon. Member could point to any Statute that imposed a criminal liability where such a restriction was not put in, but his reason for desiring that this Amendment should not be pressed at this moment was that carnal knowledge of a child under thirteen was already punishable, and carnal knowledge of a person between thirteen and sixteen was amenable to a maximum penalty of two years hard labour. They were now going to give the Judge the power to punish these offences in a different manner, and therefore they ought not to give a minimum penalty and leave it to the 703 fancy of a Judge to impose any sentence which he might be impelled to impose by sentiment. They must fix a maximum beyond which he could not travel. He hoped, under the circumstances, the Amendment would be withdrawn.
§ *MR. TALBOTsaid that after the observations which had been made, although he could not withdraw the Amendment he would not put the House to the trouble of dividing upon it. He would rather that it was negatived.
§ MR. VICARY GIBBSsaid the Bill first dealt with consanguinity, but the Amendment incorporated in it extended to cases of affinity. If they included stepdaughter they must of necessity accept the Amendment he now proposed to move, which was Clause 2, page 1, line 25, after "brother" to insert step-grandfather step-father, step-son, step-grandson or step-brother. He begged to move.
§
Amendment proposed—
In page 1, line 25, after the word 'brother,' to insert the words 'step grandfather, stepfather, or stepson.'"—(Mr. Vicary Gibbs.)
§ Question, "That those words be there inserted in the Bill," put, and negatived.
§ *MR. TALBOTsaid he now came to his last Amendment on the Paper, which was to leave out Clause 5. The object of this Amendment was to enact that these offences need not necessarily be tried at the Assizes. As the House was aware, Quarter Sessions very often sat between the times of the Assizes, and he submitted that they might very well be tried at the Quarter Sessions under special circumstances. The result would be that a person charged might not be kept in custody for so long a period before trial.
§
Amendment proposed—
In page 2, line 9, to leave out Clause 5."—(Mr. Talbot.)
§ Question proposed, "That the words proposed to be left out stand part of the Bill."
704§ SIR JOSEPH LEESE (Lancashire, Accrington)said there were several very grave offences which were, in his opinion, very wisely withheld from trial at Quarter Sessions and only allowed to be tried by judges at Assizes. This was a very serious offence, and ought, in his opinion, to be tried before the most competent Court.
§ SIR EDWARD CARSONentirely agreed with the hon. and learned Member. They were creating this afternoon an offence of a very serious nature, with the maximum penalty of seven years penal servitude.
§ *MR. H. D. GREENEsaid he hoped the hon. Member would now be satisfied and would withdraw his Amendment, but his objection to the Amendment was that it only pertained to the first half of the clause. To leave the whole clause out seemed to him to be proceeding too rapidly in the line of humane legislation.
§ Amendment, by leave, withdrawn.
§ MR. GRETTON (Derbyshire, S.)said there was no reason why this Bill should not apply to Scotland and Ireland, unless it was suggested that as these offences were unknown there the Bill was not required. He therefore begged to move that Clause 6 be left out of the Bill.
§
Amendment proposed—
In page 2, line 12, to leave out Clause 6."—(Mr. Gretton.)
§ "Question proposed, "That the words proposed to be left out stand part of the Bill."
§ MR. HEMPHILL (Tyrone)said this crime had never been heard of in Ireland, and that was a reason why this Amendment should not be agreed to. It would, he thought, be also very unfortunate to spring a Bill of this kind upon the House in the absence of nearly all the Irish representatives. In ancient times there were certain offences so bad that no law was made against them, because it was inconceivable that such offences could be committed. That fact was present in his mind at this moment, and although he desired that the laws of the 705 two countries should be as uniform as possible, and although he had noobjection whatever to this Bill, he thought such an Amendment was unfair when the Bill had been read a second time on the distinct understanding that it should not apply to either Scotland or Ireland.
§ MR. MALCOLM (Suffolk, Stowmarket)thought the clause should be omitted unless some reason could be given for the exemption. He failed to see why England should be made the corpus vile upon which to try this experiment. The offence with which the Bill proposed to deal was not confined to the country south of the Tweed, and it would be a good thing to extend the measure to Scotland.
§ SIR EDWARD CARSONhoped the House would not accept the Amendment. He had not the least objection to the Bill extending to Ireland, but when Bills had been introduced containing a clause of this kind, and had gone through Committee with the clause still intact, it was not fair to Members from Scotland or Ireland to propose to omit the clause on a Friday afternoon, when they might reasonably have gone away satisfied that the point would not be discussed, especially as no Amendments dealing with the matter appeared on the Paper. Under these circumstances he hoped the House would reject the Amendment.
§ MR. CALDWELLpointed out that the law of Scotland was much stronger on this subject than the law of England as proposed in the Bill. It should be noted, however, that prosecutions in Scotland were undertaken only by the Lord Advocate, so that it would be impossible to apply this Bill to Scotch procedure without a special clause being introduced. He suggested that it would be advisable to restrict prosecutions under the Bill to cases authorised by the Attorney-General or the Solicitor-General.
§ MR. GRETTONasked leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
706§ COLONEL LOCKWOODmoved that the Bill be read a third time.
§ Question, "That the Bill be now read a third time," put, and agreed.