§ Lord Denman
, in 1432 moving the Second Reading of this Bill, stated that the object of the measure was to remedy certain existing defects in the administration of the Criminal Law, which the Judges had experienced in the execution of their duty. One of the chief of these was, that in many cases where a less severe punishment than was enacted by Statute would answer the ends of justice, the Judge was wholly without any discretionary power of mitigating the penalty. Thus, where transportation for life was the punishment affixed to an offence by Statute, the Judge was bound, if the party was convicted, to pass sentence of transportation for life, though he might very often be of opinion that a milder sentence would be of adequate severity. In some cases a part of the sentence was remitted upon subsequent application to the Secretary of State; but where mitigation was required, it was fit and proper that the court which tried the individual should be the authority that was to apportion the measure of punishment. There were two other objects proposed by this Bill: one was to correct certain defects in the Central Criminal Court, rendering it necessary for the party to give recognizances, as was now required before he went before the Grand Jury, which had been found attended with considerable inconvenience in practice. Again, as the matter now stood, after a writ of certiorari had been moved in the Court of Queen's Bench, the venue became no venue at all when the case was brought into the Superior Court; and it must be tried in some county, for the fictitious venue of the Central Criminal Court had ceased to have any value. To obviate this inconvenience, it was provided by the Bill that the writ of certiorari must always state where the trial was to take place, and the Sheriff was to be empowered to empanel a jury. With respect to another provision of the Bill, he was not quite satisfied with it as it stood at present, nor was his noble and learned Friend behind him. Very serious offences were often committed, short of felony, but accompanied with malignity, such as aggravated assaults, breaches of trust, &c. These the law comprised under the head of misdemeanors, and there was at present no power of adding solitary confinement or hard labour to the term of imprisonment provided for them. So that in one class of offences this additional punishment might be awarded; but other offenders, who were far more deserving of punishment, might escape it. In cases of assault, perhaps, of 1433 a very aggravated nature, it often happened that the public were disappointed to see the party escape with the punishment of an assault of the most ordinary kind, and this from the want of some more particular definition of what were to be considered aggravated cases. He did not know how a more particular description could be given, or how it would be possible to prevent the evil of inadequate punishment, but by leaving a discretionary power to the Judge, to be exercised upon a consideration of all the circumstances of the case. If, however, any noble Lord was prepared to point out a better mode of securing the end, there would be ample opportunity of taking the subject into consideration when the Bill had been printed. He should be disposed to suggest that this discretionary power should be confined to the Superior Courts.
§ Lord Denman
was still open to hear of any method by which the purpose might be more conveniently effected. Some discretion must be exercised in almost all cases; and that could only be upon a view taken by the Court at the time of all the circumstances of the offence. He hoped their Lordships would give this Bill a second reading.
highly approved of the three clauses to which his noble and learned Friend first referred; and any one who read them must say that they were great improvements on the present law. With respect to the second section of this Bill, however, he entertained the most serious objection to it. As it now stood, any person convicted before any tribunal of an assault, was liable to be imprisoned for three years; he might be held to hard labour during the whole of that time, and sentenced to solitary confinement for a period to be determined by the court. What was an assault? If a man held up his fist in the face of another within striking distance, that was an assault. To leave such a punishment at the discretion of the judge was, he thought, hardly consistent with the spirit now pervading the administration of criminal justice in this country. See what the consequences might be. Inferior magistrates might suppose that they were bound to give the maximum of punishment. In a game case, for instance, where a notorious poacher, who had been several times convicted, was indicted at the quarter sessions for an assault or other misdemeanor, 1434 would the noble Earl opposite wish to be subjected to the temptation of having such a man at the mercy of justice, with the tremendous power of giving him three years' imprisonment, with hard labour and solitary confinement, while his offence might only call for a very slight punishment in itself? He thought the discretionary power, therefore, ought clearly not to be left to the quarter sessions. Was it to be allowed at the assizes? If not, it would be quite inoperative. But there not only did the Queen's Judges administer justice, but Serjeants, Queen's Counsel, and others, to whom, however anxious they might be to do their duty, he would be extremely reluctant to leave this tremendous discretion. Yet it would be very invidious to say that it should belong to the Court of Queen's Bench, and not to the noble Earl, the President of the Council, for instance, sitting in quarter sessions. On these grounds he should certainly think it his duty to move that the clause be struck out.
§ Lord Denman
suggested that assaults to which the higher penalty was to be allotted, might be described as assaults "with intent to commit a felony."
§ The Earl of Devon
, as the person who had introduced into the other House the Bill on which rested the power of committing with hard labour, felt that the class of cases to which this punishment was to be made applicable, should be strictly defined.
agreed with his noble and learned Friend in thinking several of the clauses great improvements on the present law; his only doubt was as to the provision alluded to respecting assaults. He would suggest that the definition of offences which were to be vested with the severer penalty might be, "all attempts to commit felony, and all assaults accompanied by such attempt." At all events, there could be no doubt that the words should not be left as they now stood, making a common assault, without the attempt, liable to be punished in this way.
The Earl of Stradbroke
denied that there would be any disposition, in a court of quarter sessions, to punish offenders against the game laws with the extreme severity conjectured by the noble and learned Lord opposite.
thought the words might be introduced "assaults with intent to commit a felony," or "assaults of an indecent description."
The Lord Chancellor
Might it not be better to except from the operation of this Bill such assaults as common assaults? By the Common Law, all cases of fine and imprisonment, and fine or imprisonment, were left to the discretion of the judge. He understood his noble and learned Friend's principle to be the same, with the addition, that instead of fine and imprisonment, the parties should be liable to hard labour and solitary confinement; leaving the law in the other particular, namely, as to the discretion of the court, as it was; but with this restriction, that the punishment should in no case exceed the limit imposed by this Act. He thought, however, that the extensive discretionary power proposed should be confined to the Judges of the Superior Courts.
§ After a few words from Lord Demnan, Bill read 2a.
§ House adjourned.