HC Deb 26 June 1908 vol 191 cc278-90

As amended (by the Standing Committee), considered.


said he had put down an Amendment to omit Clause 1 of this Bill. It was a Bill which dealt with a very disagreeable subject, and naturally the sympathy of the House was against the persons who committed the offence which this Bill was brought in to prevent. The reason why he moved to omit this clause was the same as that given by greater authorities than he, namely, Lord Halsbury and Lord Davey in the House of Lords when this Bill was discussed on the last occasion before that House. Those reasons were that the Bill made it an offence subject to a term of penal servitude of not exceeding seven years for all who were convicted of incest with a granddaughter, daughter, sister, or mother. It only dealt, therefore, with certain relatives and subjected the people committing the offence to seven years penal servitude, practically making a fresh crime. The first consideration he would put before the House was that up to the present time these offences against morality had never been made a crime. The House, therefore, should hesitate before making a sweeping addition to the criminal law of England at a late period on a Friday afternoon at the instigation of a private Member. Ho would deal with the particular reasons which were adduced against the Bill in a moment, but he thought, to start with, there should be a very strong case made out by the promoters of the Bill for making such a change as was proposed. So far as that House was concerned the Bill had never been before the House as a whole. It came on one night after eleven o'clock, and was not discussed. This offence was for the first time made a criminal offence, and subject to the criminal law. If the criminal law was brought in to deal with offences against morals they would be met at every turn with the difficulty that it was adults who committed these immoral offences. The words brother and sister in this Bill included half brother and sisters. Let them take the case of a brother and half sister. Was it right to make such an offence a crime; was it desirable? Once cases of this kind were brought before an Assize Court it would be found, as everybody familiar with the criminal law knew, that a prosecution of this kind would bring up a crop of similar cases in the particular locality. It was well-known that where a case of a disgusting nature came before an Assize Court the mere publication of it resulted in a crop of that particular class of cases. Further, by making this immoral offence a crime the door was opened to blackmail of every kind. There was a matter which would be brought to bear in all cases where consent was no defence to the particular crime charged. In such a case as he had mentioned the one was put in the power of the other. There was the further difficulty of people who threatened to make false charges in the case of an offence where both parties must be equally guilty, which there would be great trouble to disprove. This offence was not on the same lines as that of rape or anything of that kind. Here was a brother and half-sister living in one house and any person for reasons of enmity or of blackmail could give any information against them. It was a grossly immoral offence, and though he felt it was unpopular to oppose a Bill of this kind in the House, he ventured to submit that before this offence was made a crime the House should see to it that they did not take any step that might do more harm than good. He again wished to impress upon the House that they should be very careful in dealing with a question of this kind not to make a crime of an offence which had never before been treated as a crime in this country. What case was there? There was no suggestion that this offence was on the increase; indeed, it was far less known now than it was twenty or thirty years ago in parts of England, and only now and then was there a case in the criminal Courts. Was there the slightest reason to doubt that the spread of education and of civilising influences was doing away with this evil, and that there was, therefore, less need to deal with the matter so drastically as was proposed by the Bill? His right lion, friend had pointed out that the subject was discussed in 1903 in the House of Commons. True it was, and on that occasion the example of Scotland was cited. He understood that in Scotland this had an offence ever since 1757, or from an earlier date. The hon. and learned Member opposite, who had considerable experience of the law in Scotland, would perhaps agree that prosecutions for this offence in that country were exceedingly rare. He thought he was right in saying that only about twenty years ago did this cease to be a capital offence in Scotland, not that there had been many executions. In the debate to which he had referred, an hon. Member, who was a great authority on Scots law, said that prosecutions for this offence were practically unknown in Scotland. The Bill did not apply to Scotland, and he need not pursue that point further. There were certain details of the Bill which he did not think had been properly dealt with, and he would ask the House before passing a measure of this kind, having regard to the strong remarks of the two eminent lawyers who had sat on the opposite side of the House, and whose words he had quoted, to consider the whole subject carefully. Those distinguished lawyers raised the objection years ago that to make this a criminal offence would do more harm than good; and, however well intentioned the Bill might be, by bringing these matters into the light of the criminal Court, they would experience those consequences of publicity which were so well known to lawyers who attended criminal Courts. They should deal with the matter more by way of education than by extending the offence and making it criminal. He moved to omit Clause 1.

MR. STAVELEY-HILL (Staffordshire, Kingswinford),

in seconding the Amendment, said the subject was one which they did not wish to discuss at length. He seconded the Amendment for very similar reasons to those which had been advanced by his hon. and learned friend. There was a very large and increased demand among those lawyers who practised in the criminal Courts for a further consolidation of the criminal law, that it should be brought more up-to-date, and that various alterations and Amendments should be made in it. He thought that if they were going to create a new crime, the way to do it was not in a small Bill of this sort. Of course, if this offence were made a crime, no one could say otherwise than that the penalties which were provided in this clause were very moderate indeed, because no words could express the horror one had of this offence. He was very much afraid, however, that by making this a new crime, they were opening the door very wide to blackmailers, and to charges being brought against persons without proper foundation. They knew very well that in regard to an offence of a similar character, charges were brought by young girls which had no foundation whatever in fact. Relatives lived together under circumstances which no one questioned, but a charge of this sort might be brought and there would be, as they knew, the very greatest difficulty in furnishing any disproof. He thought that the Bill, if passed, would make the conditions of society in certain circumstances more dangerous than they were at the present moment. To create a new crime of this sort was very easy indeed, but where a charge was brought the difficulty of disproving it would be very great. It was for these reasons, and in the hope that nothing would be done until there was a general Amendment of the criminal law, that he seconded the Amendment.

Amendment proposed— In page 1, line 5, to leave out Clause 1."—(Mr. Rawlinson.)

Question proposed, "That the words proposed to be left out, to the end of page 1, line 12, stand part of the Bill."


said the grounds on which this Amendment had been moved were that they were creating a new crime, that there was no increase of this offence, and that there was a danger of blackmailing. But he thought the whole sense of the community was in favour of making this grave moral offence a crime. Out of every 1,000 people, 999 were under the impression that it was a crime, and most people would be astonished to hear that it was not. His professional experience had led him to know a good deal about this offence. No less than thirty-five cases, really of a most gross character, had come under his personal notice, within the last twelve months and he had known instances producing no less than three or four children of weak intellect, idiots and imbeciles. The cases were of the most grave kind. The hon. Member who had moved the Amendment, perhaps, had not such a large experience as he possessed as to this crime, which was rife, he was sorry to say, in certain parts of the country, and there was a case for the Bill on sociological grounds. In Scotland it was less common, but it did occur, prosecutions were treated by the Press with great discretion, and punishment was meted out, with a beneficial result, in that country. As to blackmailing, that objection would apply to almost every kind of offence. He did not see any real danger arising from that cause, as was feared by the hon. Members opposite. In regard to the objection, that they were creating a new crime by this Bill, he would point out that at one time this offence was a crime under the law of England. When the Puritans had sway over things in this country they made a long list of capital offences, which included adultery and incest. At the Restoration they swept away these penal offences, including that with which they were now dealing. It was a pure oversight, owing to what happened at the Restoration, that it was not a crime in England to-day.


said he desired on the part of the Home Office to say a few words in support of the principle of the Bill. The Home Office had been long aware, from the reports they had received from the police and other sources, that it was exceedingly necessary to add to the law provisions of the character proposed by this Bill. The hon. and learned Member for Cambridge University said the offence was probably less rife than it was in the past. He doubted whether anyone could say with any degree of certainty either that it was increasing or that it was decreasing, but it was quite certain, that the offence was by no means rare, and it was essential that some steps should be taken by the Legislature to put a stop to it. It was not merely the case of a moral offence affecting grownup people, but it might entail consequences of a disastrous kind on the offspring which sometimes followed from such intercourse, and from that point of view society had a special interest that should lead to steps being taken to put a stop to it. Nor was it the case that in Scotland the law was a dead letter. Every year there were a small number of convictions—on the average six each year—which showed that the law was necessary and that it could be put into force. So far from there being a danger, through this Bill, of persons being accused of the crime without being able to disprove it, he was afraid that, on the contrary, the danger would be found to be the great difficulty in proving the cases. But however difficult cases might be to prove, he hoped the House would agree that this offence should be regarded as a crime, and that the crime, when detected, ought to be punished.


said the hon. and learned Member for Cambridge had remarked that it was undesirable to make crimes of these immoral offences, and had used what was no doubt a strong argument as to blackmailing. But he would observe that the same argument applied to many other things. The deceased wife's sister was a case in point, and, if that argument had been allowed, they would never have passed the Marriage with a Deceased Wife's Sister Act. But the point to which he wished to refer was this: The hon. and learned Gentleman forgot that in India, which was under British law, the Courts treated adultery as a criminal offence, a fact which seemed very relevant to this discussion. He did not know that he was concerned with the ethics of that subject, but he remembered that one of the most learned Judges in India, a Brahmin, had discussed with him the fact that under the law in England that was treated as a civil offence which in India was made criminal; and the Judge had been sorry to have to explain the difference by saying that the leniency adopted in England towards so serious an offence as adultery was due to the exigencies of modern European society. He would, of course, himself, be sorry to adopt that view or to put it to the House, but he did submit that it was very relevant to the argument to point out that in our greatest dependency the course which the hon. and learned Member now deprecated was actually pursued, and the most conspicuous, and perhaps most common moral offence, was actually regarded in law as a crime.

MR. COURTENAY WARNER (Staffordshire, Lichfield)

said he wanted a little more information. He did not wish to prevent the Bill from passing and from doing good. What he did not understand about it was whether it was intended as a deterrent or punishment. All the speeches made had been in favour of the measure, and he did not wish to say anything in opposition to it if it was necessary. All the speeches had been directed to proving that it was necessary to have punishment. That was contrary to the ideas of modern legislation. The infliction of punishment in these days was that it should act as a deterrent. But the point in reference to this Bill was that they might be rather increasing the evil than stopping it, and therefore he thought that they had not had from the Government or from anybody else a sufficient statement as to whether this offence was on the increase, and whether it was necessary to do something to stop it, or whether it was likely to be stopped in any way by this Bill. If the Bill would really act as a deterrent he thought that it would be a valuable addition to the law. But, as far as he could see, there had not been one word said as to that. It was perfectly true that if they made a man liable to three, five, or seven years penal servitude he was likely to avoid doing that which would involve the risk of such a punishment. He would like to hear a little more, however, as to the necessity for the Bill, and as to the probability of its being of some efficacy in preventing the commission of the crime against which it was directed.


said he wished to say one word in reply to the hon. Member for Montgomery Boroughs, who had put forward exactly the right argument that this offence was in precisely the same position as other moral offences, and that if they made this a crime it followed logically that they must make adultery a crime in England. The hon. Member quite fairly accepted that. He thought it a very dangerous question to start, certainly on a private Member's Bill at a late hour of a Friday afternoon. He did not think that they would find many English lawyers of position to support the argument that because adultery was a crime in India, where the circumstances were very different in many ways, therefore it ought to be a crime here. Did the House really think that a case had been made out for a change in the law, when, as had been pointed out, the charge would be exceedingly hard to prove, and when there would be most dangerous results where there was a case made out? He did not wish to detain the House, and, if the sense of the House was against him, he would not press his Amendment.

MR. LUPTON (Lincolnshire, Sleaford)

said he was surprised that they were asked to pass a Bill of this sort. Poor people were forced to live together, men and it women often in the same room, and it was easy enough for anybody to make accusations which could not be disproved against parties who were totally innocent. They would make family life impossible if they passed such legislation. They would make it impossible for members of a family to live at home without running the risk of terrible accusations being brought against them. They all knew how convictions were brought about. Persons went into the witness box and swore what they said was true, and the jury ware advised if they believed them to convict the prisoner. Nobody, however, could go into the witness box and disprove accusations of this description. An accused might kiss the Book, and swear he did not do it, but, of course, his evidence would be useless, whilst the evidence of the person who said he did it would stand good. It would be only necessary for some malicious person to get up and swear falsely, and the accused would be sentenced to seven years penal servitude. He thought they might take advice from the fact that their ancestors had refrained from passing, legislation of this kind. Once they began with this class of legislation, they must go on, and what would happen to humanity if people were to be open to accusations of crimes which they could not possibly disprove? None of the parties to the alleged offence might make any complaint, and yet some third party might come forward and complain. It was contrary to all principles of the law to make this a criminal offence. Arguments had been used against it by men in the highest position and of the greatest repute; and he asked the House to pause before they tried to make the world good by legislation passed in a headlong rush. They might thrash and imprison people, but they would not make them good. There were appointed ways of dealing with immorality, and that was to try and lead people kindly by preaching religion and morality to them. When they left that path, which on the whole had answered so well, and had made us a great, a glorious, and a good nation, when they turned aside from the assistance of the clergy, the schoolmaster, and all the ladies and gentlemen who went about doing good, and simply relied upon the policeman, then they took the wrong course, and would make the world not better, but he was afraid very much worse.

Amendment negatived.

THE SOLICITOR-GENERAL (Sir S. EVANS, Glamorganshire, Mid.)

said there was an Amendment on the Paper in the name of the hon. Member for the Kingston Division of Surrey. He had spoken to his hon. friend about it, and he begged to accept it.

Amendment proposed— In page 1, line 12, after the word 'is,' to insert the words 'alleged in the indictment.'"—(Sir Samuel Evans.)


said there was another Amendment in the name of the hon. Member for Kingston, which, after consultation with him, had been accepted in a slightly different form. He begged to move, accordingly, in page 1, line 29, to leave out all after the word 'over' down to the end of line 3 on page 2, and insert 'such female; and, if the offender is the guardian of such female, to remove the offender from such guardianship and in any such case to appoint any person or persons to be the guardian or guardians of such female during her minority or any less period." The House would see that the effect of that would be that upon conviction for an offence under the Act against a female with regard to whom the person convicted was a guardian, he could be removed from his position of guardian or any position of authority, and the Court would appoint some other person in his place.

Amendment proposed— In page 1, line 29, to leave out all words after the word' over' down to the end of line 3, on page 2, in order to insert the words 'such female; and, if the offender is the guardian of such female, to remove the offender from such guardianship and in any such case to appoint any person or persons to be the guardian or guardians of such female during her minority or any less period.'"—(Sir Samuel Evans.)

Question, "That the words proposed to be left out stand part of the Bill, put, and negatived.

Proposed words there inserted.

MR. RAWLINSON moved the omission of Clause 4. It was, he said, a very exceptional class of crime where a wife was made to give evidence against her husband or a husband against his wife; and he certainly thought that if the Bill was to be passed this clause ought to be sacrificed. It was making the Bill much too strong to make it compulsory for a wife to give evidence against her husband.

Amendment proposed— In page 2, to leave out Clause 4."—(Mr. Rawlinson.)

Amendment negatived.

Motion made, and Question proposed, "That the Bill be now read a third time."

And, it being Five of the Clock, the debate stood adjourned.

Debate to be resumed upon Friday next.