HL Deb 18 March 1828 vol 18 cc1171-7

The Marquis of Lansdowne moved the order of the day for the second reading of the two bills which he had introduced for the consolidation and improvement of the Criminal-laws. He thought it right in the outset to state, that although he was strongly satisfied of the utility of the bills, he would not have attempted any improvement of the Criminal-law by propositions of his own, if he had not recently been in a situation which enabled him to obtain that information and assistance, which alone encouraged him to take the subject into his hands. He had been induced to proceed in his object, by being in communication with the intelligent and learned gentleman who filled the office of under-Secretary of State for the Home Department (Mr. Phillips), and with another learned gentleman, who had devoted much of his attention to the improvement of the technical language of the law, and who, in some acts recently passed, had effected the most important improvement, by constructing laws, so that their meaning was made accessible to the capacities of almost every individual in the country.—He would shortly state the substance of both the bills, which he proposed should proceed pari passu through their different stages. The first was a bill to consolidate and amend the statutes relative to offences against the person. Their lordships would recollect, that some years ago a discussion had taken place in that House and amongst the public, with respect to the state of the Criminal-laws. The right hon. gentleman who then and who now filled the office of Home-secretary, had turned his attention, most commendably, to the improvement of that portion of the law, and he carried certain amendments into effect, which had greatly simplified the laws upon this subject. But it was impossible to effect all his object at once, and there therefore remained a large description of statutes, relating to personal violence, scattered over the wide surface of the voluminous collections of laws, and which might, with the utmost advantage, be brought under one head and title—the title of the bill which he then held in his hand, for consolidating the laws relating to offences against the person. Those laws were fifty-six in number. They commenced in the reign of Henry the 3rd, and terminated in that of his present majesty. Their lordships would find, in the preliminary part of the act, an enumeration of the statutes which it was proposed to repeal, for the purpose of re-enacting them in a more simple form. In the act he should first advert to, their lordships would find, in the first instance, that petty treason would hereafter be made the same as murder. There did not appear any longer to exist a necessity for keeping the offences separate. The only effect of keeping them as separate offences had been, to invest the parties charged with petty treason with certain privileges with respect to challenging witnesses, and which they would not have had if they had been indicted for murder. When they recollected that petty treason was only murder aggravated by some circumstances—such as its having been perpetrated by a wife against the husband, or by a servant against the master—their lordships would think it most extraordinary, that a person so accused should have any advantages, which the common murderer was deprived of. The only inconvenience which could arise from the proposed alteration of the law would be, the loss of certain forfeitures by the criminal. By section the third, an accessary after the crime of murder would be liable to be transported; at present he was liable only to imprisonment. By section eight, justices of the peace were enabled to commit for offences beyond the sea; which heretofore could be inquired into only by the privy council. A very remarkable case, that of general Wall, I would illustrate the point to which he was calling their attention. The general was executed under very peculiar circumstances many years ago; and in that instance the inconvenience was extreme, from the necessity of carrying on the inquiry before the privy council, in consequence of the offence having been committed in a distant country. He proposed that in future all such inquiries might be carried on by justices of the peace.—He now came to the crime of manslaughter. As the law now stood, if a person were killed under circumstances which led to a conviction of murder, but did not die till he reached England, the criminal might be tried in England; but this was not the law in cases of manslaughter. He proposed making the law in cases of manslaughter the same in this respect as the law against murder. By section 12, he proposed that all cases, in which a person should be killed by another in order to prevent a commission of a felony, should be held by law to be justifiable homicide. He now came to what he considered a most important clause, in relation to what was commonly called lord Ellenborough's act. He proposed, that in addition to the existing law against maliciously shooting, or drawing a trigger to discharge fire arms, or stabbing, cutting, or wounding, to make the law apply to the discharging of any loaded arms, for there were means of accomplishing the same object without the use of fire-arms; after the provision against cutting and stabbing, he would introduce words to include the use of any weapon for the same object, and capable of causing death. A person had recently been acquitted under this act, because he had made use of an instrument not of a nature to cut, or stab. The instrument, in his opinion was of no consequence, when the intention was manifested.—On the same principle rested the next clause, by which it was provided, that all attempts to produce death by strangling, drowning, &c. should be deemed equally capital as attempts to kill by any other methods. Nothing could be more absurd than not to punish, as a murderer, the man who might, for instance, follow another person and shove him over a bridge or into the water, with an intent to kill, and from which effort the victim might escape only by chance. By the 15th section, it was proposed to apply the same punishment for administering poison, or using any instrument to procure abortion in a woman found not to be quick with child, as when the woman was quick with child. At present, the law made a distinction between the two cases. The 16th section, he conceived, their lordships would think a great amendment. It was to make the concealment of a bastard child a substantive offence, instead of requiring that it should be preceded by an indictment for murder; which was necessary as the law at present stood. By the twentieth section, it was proposed to make a change in the crime of abduction, by rendering it criminal to abduct any female not only possessed of property, but having any interest whatever in property. As the law now stood, the heiress to the greatest property in the kingdom might be exposed to abduction with impunity. The twenty-first section introduced a clearer definition of that part of the law which related to the abduction of any unmarried girl under sixteen years of age; and was suggested by the unfortunate case of Miss Turner, which had occupied so much of their lordships' attention. By the twenty-third section it was proposed to enact, that a person whose consort had been abroad for seven years, if that consort were known to be living, might not marry with impunity; but should be subject to the punishment of bigamy. The sections from that to the thirtieth, proposed the extension of various punishments to offences which were now not reached; such, for instance, as impeding persons going to buy or sell corn at a market, &c. The only remaining section was the thirty-first, by which it was proposed to give the judges a discretionary power of imprisonment in cases of abandoning seamen on any foreign or colonial coast. That crime was now punished, in all cases, by a short imprisonment. It was most evident, however, that there was a great latitude in the degree of its atrocity. A man might be left on a desert or inhospitable shore, under circumstances which nearly amounted to murder; yet now the captain of a vessel so acting was not liable to a greater punishment than he who sailed away leaving a sailor on the coast of France or Portugal. It was intended to arm the judges with a discretionary power on the subject. Having now come to a conclusion with respect to the bill for consolidating and altering the laws respecting offences against the person, he should say a few words in explanation of his second bill; namely, a bill proposing the Introduction of certain Amendments in the Law of Evidence. The first point related to the admission of the evidence of Quakers in criminal cases. It was singular, considering the high authority by which it had been long ago declared that the affirmation of Quakers ought to be received in criminal as it was already received in civil cases, that no alteration had hitherto been made in the law on the subject. It was the opinion of lord Mansfield, in a most able judgment, in which he stated the grounds of that opinion, that it was most expedient to make the change now recommended. In fact, the want of such a change had been, in many cases, attended with great inconvenience. It had prevented many criminals from being tried; and, in other cases, where they had been tried, it had prevented conviction. He had the means of knowing that a system of depredation on the Quakers, in the town of Manchester, had been carried on to a great extent by gangs of rogues from London, in the confidence of the protection which they enjoyed from the non-admissibility of the evidence of the persons whom they plundered. He also knew many instances in which the property of Quakers had been abstracted from mail and other coaches, in consequence of the difficulty which the present state of the law threw in the way of bringing the robbers to condign punishment. It was but a few years ago that, at Hoddesdon, in Hertfordshire, a most atrocious murder was committed, in the presence of four most respectable individuals; but in consequence of those individuals being Quakers, their testimony could not be received. More recently, a forgery was committed upon the bank of Cirencester. One of the partners of the bank was a Quaker; and it so happened, that he alone was capable of proving that the hand-writing was forged; and as his evidence could not be received, the forger escaped punishment. In all other instances the oath was administered according to the form to which the party was accustomed. If a murder on the river Thames were alleged to be committed by a Chinese, and if the only evidence in his favour were a Quaker, as the law now stood, the declaration of a Lascar, after he had broken his saucer, would be immediately received, while the affirmation of the Quaker, though he appealed to heaven for its veracity, would be rejected. Why should there be any difference in the credibility of a Quaker with reference to a criminal, when there was none with reference to a civil case? It was remarkable that the legislature had never entertained any apprehensions of the want of veracity on the part of Quakers in civil cases. In the reign of George 1st, the archbishop of York proposed a clause in the Tithe act, excepting the testimony of Quakers. Their lordships rejected the clause; and not a single instance had been heard of in the century that had elapsed of a want of conscientious conduct in a Quaker, with reference to that act. If it was not improper to admit the testimony of Quakers in civil cases, how much less so must it be to admit it in criminal cases, where the natural conscience of man was more alive to minute accuracy of statement? The next point of his bill went to admit, in cases of forgery, the evidence of the person whose hand-writing was forged. By the law as it at present stood, the evidence of such a person was not admissible, when it could be proved that he had any interest, direct or indirect, in the transaction. Great evils had arisen from this state of things. It was now proposed to admit the evidence of any person under such circumstances; his credibility being, of course, a matter that would be weighed by the judge and jury. There were only two remaining clauses. One was, to place a person who had been guilty of a felony, not punishable with death, and who had undergone the punishment of that felony, in the situation in which he would have been placed had he received a pardon under the great seal, and to render him a competent witness in a court of justice. It was doubtful, and only doubtful, whether he was so at present; the benefit of clergy having been abolished. If it was right to do this with respect to cases of felony, it was evidently right to extend the principle to cases of misdemeanour. He had now gone through the principal clauses of his second bill. He was by no means prepared to assert that the improvements which they would introduce were extensive. There was nothing in them of a very novel or extraordinary character. But their lordships would agree with him, that on such subjects they ought to proceed by slow degrees, and with a watchful attention to the progress of legal proceedings, in order that any amendments introduced into the law might be introduced on safe and intelligible grounds. He believed that those which he had the honour to recom- mend for their lordships' attention, possessed that merit. He submitted them to the House with confidence, from the great legal assistance he had received out of the House, and also from the learned lord, (Tenterden), and from whom he had experienced not only that courtesy which he maintained towards every one, but that zeal for the improvement of the law which gave additional lustre to the many qualities by which that learned lord was distinguished in the high station which he filled with so much advantage to the country.

The bills were then read a second time.