§ The Duke of Richmond,in moving for the returns of which he had given notice, begged their Lordships' attention while he explained what had been the course pursued by a noble and learned Lord at the last assizes for the county of Sussex. In that county there were at the present time two houses of correction and one gaol. One of these houses of correction was situated at Lewes and the other at Petworth, twenty or twenty-five miles from Lewes. The situation of the latter, however, was so inconvenient, that the judges objected to go there. At the last assizes the learned judge who presided in the criminal court, ordered, that four prisoners whose names were not in the calendar should be brought up for the purpose of being discharged in the usual way by proclamation. One was committed for stealing a large faggot of the value of a few pence, two others were committed for stealing two birch faggots each, and the last (a woman) was committed for stealing some petty articles in a union workhouse in the eastern part of the county. These prisoners had been committed by the magistrates for trial at the quarter sessions, which would be held subsequently to the assizes. The learned judge, however, desired the gaoler to take those prisoners out of the custody of the keeper of the house of correction and bring them to court, in order, that they might be discharged in the usual way by proclamation. The clerk of the arraigns also called on the gaoler to proceed forthwith to Pet-worth, twenty-five miles off, to bring over to Lewes eighteen prisoners who were there awaiting their trial, the learned judge having declared, that he felt it his duty not to allow a single untried individual to remain in any house of correction in the county. The answer of the gaoler was, that for him to go over would be useless, first, because there would not be time, and next, because the keeper of the house of correction would certainly refuse to give up his prisoners. He was glad to find the gaoler had so discharged his duty; and, in his opinion, the keeper of the house of correction would not have been justified in giving them up except under a writ of habeas corpus. The clerk of arraigns was then applied to for a written order from the judge to the keeper of the house of correction, authorising him to deliver up the prisoners, but 565 such order was not given; indeed, it could not legally have been given. Independently of which it would not have been right for the prisoners to be driven over twenty-five miles to Lewes two days before their trial, during the very time which they would require for preparing their defence. He (the Duke of Richmond) understood the noble and learned Lord to maintain, that he was bound to discharge every prisoner remaining in the county prisons at the close of the assizes, even though they might have been committed for trial at the quarter sessions. The noble and learned Lord adverted to the examples set by former judges under similar circumstances; but the question had been brought before the whole of the judges, and a majority had pronounced a different judgment. Under such circumstances it was surely better for an individual judge to how to the decision of the majority rather than to act on his own views. In 1810, Baron Wood thought fit to discharge eight prisoners at the close of the assizes, in all of whose cases the witnesses and prosecutors had been bound over to appear at the next quarter sessions. No bills having been found against them, they were discharged by proclamation. The question of the right of the judge to discharge prisoners under such circumstances was brought before the whole of the judges a majority of whom were of opinion, that it was not incumbent on the judge to discharge all the prisoners, but discretionary to keep those whom he thought fit, if even the witnesses who had been bound over did not appear. But the act of the noble and learned Lord himself proved, that he did not at the time think it incumbent upon him to deliver all the prisoners, or why did he stop short at the four prisoners? Why did he not remain until he had transmitted a written order to the keeper of the house of correction at Petworth to deliver up his prisoners, and until he had discharged them by proclamation? He must be allowed strongly to object to the exercise of any such power as that claimed by the learned judge. To discharge prisoners without trial was to offer a premium to crime, and to inflict a serious injury on some of the best interests of the country. Another evil engendered by such a system was, that prosecutors were placed by it in a false position, exposed to all the odium attending the preferring a charge against 566 one who had been discharged without punishment. A prisoner going back to his parish under such circumstances, would be able to impose on his ignorant neighbours, by representing the prosecution as a mere trumped up affair, countenanced by the magistrates certainly, but which had been disregarded by the judge. Uniformity of decision on the part of judges in such cases was most important, and evils innumerable would follow the adoption of a principle which encouraged crime, by opening to the criminal a loop hole for escape. He imputed no blameable motive to the noble and learned Lord, but he deeply regretted, that he had supposed his duty called on him to take the course adopted by him. The noble and learned Lord might have made allusion to the subject in his charge to the grand jury, or he might have communicated with the Secretary of State, or with the chairman of the quarter sessions (who was sitting during a part of the time occupied by the trials). From what he knew of the magistracy of the county, he must express his conviction, that had the noble and learned Lord taken the latter course, the circumstances connected with the Lewes house of correction never would have happened. He (the Duke of Richmond) had been called upon by the noble Lord, the Lord Chief Justice of the Court of Queen's Bench, to bring in a bill on this subject. That noble and learned Lord at the same time stated, that he coincided in his view of the question. If the House wished him to undertake such a measure, he would not shrink from it, but at the same time he must request the noble Viscount on the Treasury bench, to get some Member of Government to take the charge of the bill in the other House, as he could have no possible means of doing so, and indeed because he understood, that it was very difficult for any Member of that House, not a Member of the Government, to bring forward a measure with any chance of success. The noble Duke concluded by moving for a return of all prisoners for trial in the different gaols and houses of correction in England and Wales, at assizes during the last year, but who were not inserted in the calendar; specifying their offences, and also whether any, and which of them, were discharged by proclamation.
§ Lord Abingersaid, that had not the noble Duke disclaimed all intention to 567 attack him, and impute blameable motives, he might, from the tone and tenor of some of his remarks, have fallen into the error of supposing that the noble Duke had been actuated by such an intention. This he would say, with reference to the subject matter of the noble Duke's statement, that were the same circumstances to occur again, he should be prepared to act in a manner precisely similar to that which had called forth the noble Duke's animadversion. With regard to the four prisoners who were discharged, the sheriff was desired to put their names in the calendar, as they were in the same gaol with the other prisoners. A return was made of their names in due course, and they were discharged by proclamation. With regard to the prisoners at Petworth, he would at once declare that he never entertained the least thought of having those prisoners over to Lewes. The noble Duke was labouring under a mistake on that head. He never gave any such authority, though, had he thought himself justified by law in doing so, he would not have hesitated to give it. With regard to the committal of prisoners for trial, he admitted the right of the magistrates to commit them for trial at the quarter sessions, provided the assizes did not intervene; but when the assizes were near at hand, then he maintained that they ought to be committed for trial at the assizes, because all prisoners ought to be committed to the place where they could most speedily be tried. If the assizes were the nearest, then they ought to be committed for the assizes: if the quarter sessions came on sooner, then they should be committed for trial at the quarter sessions. Unless this principle were adopted, much injustice was likely to be done to prisoners by their being detained in prison longer than the exigencies of justice absolutely required. All the prisoners in the county gaol at the time of the assize should, he contended, be brought up by the sheriff for trial or discharge by proclamation. The opinion which appeared to prevail among some of the magistrates of Sussex he felt bound to say was not universal; for in one instance a prisoner had actually been committed on the 18th of March, the commission day; the magistrate, therefore, Mr. Blackman, a gentleman of known constitutional knowledge, had given practical evidence of his belief that the prisoner had a right to be tried as early as possible. He could 568 assure the noble Duke, that in pursuing the course which he had adopted he had intended to convey no offence to the magistrates, or to the Lord-lieutenant of the county. He had acted for the best; and he could not but say, that if a similar case were to happen again, he should again act in the same manner.
Viscount Gagesaid, that a few years ago, it had been the practice of the Lewes bench of magistrates to commit the prisoners brought before them to the assizes or sessions which next succeeded; but in consequence of the complaints of the judges of their being overburdened with cases, many of them of a trifling description, it had ceased some time ago. He thought that, under the circumstances which had been detailed to the House, it would be exceedingly advisable that a bill should be introduced to make some general provision upon the subject.
§ The Duke of Richmondsaid, that he was of opinion that the power of taking bail should be extended, for he thought that no man should be sent to gaol for a longer period than was absolutely necessary. He was fully aware that there was no attack intended to be made upon the magistrates or the Lord-lieutenant; for he in the latter capacity could have nothing to do with it. He contended, however, that there should be uniformity of practice in all cases. There had been intermediate sessions appointed to be held in Sussex already, with a view to the speedy discharge of the prisoners; and so far from its being likely that any very great hardship would have been suffered in the present case, the court would have sat within ten days of the time when the prisoners were discharged by the noble and learned Lord. The magistrates, if they had been disposed to act harshly towards the offenders, or in opposition to the will of the noble Lord, might have issued their warrant for the re-committal of the persons discharged on the very day after the departure of the noble Lord from the assize town; but they abstained from doing so, because they would not appear to persecute the accused parties. He had felt himself bound to bring forward this subject as Lord-lieutenant of the county, and in that capacity he begged to express his sincere hope that her Majesty's Government would take charge of the bill which he proposed should be introduced, but if the Members of the Government declined 569 to do that, he should feel bound to introduce the measure himself.
§ The Lord Chancellorsaid, that he entertained no doubt that the magistrates in this case had acted in the manner which they conceived to be most correct, but the course which they had adopted at least established this fact—that their practice required to be set right. It could not be a wholesome state of the law, that magistrates should be permitted to commit offenders over the assizes to some sessions to be subsequently held, and that the judge of assize coming to deliver the gaol in which they were confined should exercise his discretion as to whether they should be tried or not. That was the effect of what had been done in this case, and the practice undoubtedly required alteration. It was exceedingly important that prisoners should be tried at the earliest possible moment, and although it was true that the imprisonment which they suffered before trial might be taken into consideration in the event of conviction after that event, yet it might be that no punishment at all was merited. A remedy should be applied to the evil which existed, and the best mode of informing the magistrates of the error of their system, would be through the means of a legislative enactment.
§ Motion was agreed to.