§ LORD DENMAN
moved the Second Reading of the Bill, "For the Punishment of such as shall endeavour to deter Prosecutors, Witnesses, and Jurors, from the discharge of their duty;" and, in doing so, took occasion to refer to the Amendments in the Bill for the Protection of Life in Ireland. He had heard with great horror and regret the statement of the noble Lord (the Earl of St. Germans) with respect to the system of intimidation exercised on persons employed in furthering the ends of justice in Ireland; and, although he felt himself now precluded by the decision of their Lordships on the second reading of the Bill brought forward by Government, he could not help saying, that the particular provisions were still open to discussion. He had not been able, on account of public duties, to attend either on that debate or in the Committee; and, with leave of the House, would take that occasion to express what he thought of some importance on those enactments. He was sure the less stringent the Bill was made, the less likely to interfere with the ordinary feelings of our nature, the greater would be its chance of success; and, whilst it gave less offence to the community, it would become more efficient for the purpose for which it was intended. It appeared to him that the grounds on which the 1st Clause, giving the Lord Lieutenant the power of proclaiming any district, rested, were not sufficient, and ought not to be set forth on the face of an Act of Parliament as a foundation for the extraordinary powers which it proposed to confer. The clause enacted that any district in which any murder, or attempt to murder, or any assault with intent to inflict grievous bodily harm, had been committed, might, on evidence of such offence, be proclaimed by the Lord Lieutenant. Now, the offences thus enumerated existed throughout every county in England; and there was not a district in this country which might not on the same grounds be proclaimed. One could not help feeling some degree of alarm lest the provisions of such a Bill should become an example, on some supposed necessity, of legislation for England, and its application recommended on the same grounds. It had appeared to him, that in order to justify the proclamation of a 770 district, it would be desirable that three or more justices of the peace should make representation of the facts of the offences committed therein to the Lord Lieutenant; but he found, on inquiry, that the police reports for the various constabulary districts afforded him full information as to the details of every outrage occurring in the country. It would be much better that on their report the Lord Lieutenant should be authorized to act, with the advice of the Privy Council, according to his own sense of the exigency of the case. He was not sure that any Act was requisite to authorize the establishment of any number of police throughout a proclaimed district, except in so far as it was necessary to fix the place in which they were required with the additional expense. With respect to the clause requiring persons to keep within their own dwellings after sunset and before sunrise, and attaching a penalty for the non-observance of the regulation of transportation for fifteen years—or even of seven years, to which term it was proposed to alter it—he must confess that he felt the very greatest reluctance to any Bill which granted such a power, without requiring the fullest proof of guilt in every particular case. The mere right to take an individual into custody was in itself very large and extensive; and he thought that every person on being arrested should be allowed to give an explanation of his appearance out at night to persons competent to decide as to its satisfactory character. He confessed that he entertained the greatest reluctance to the clause whereby it would be made lawful to send any person taken up by the police between sunset and sunrise to prison, and to trial; and would suggest that, if his explanation was satisfactory, he should be at once released. In case only one magistrate should be present, he was to wait for the next petty sessions; and if then only one magistrate should attend, he was to be sent to prison at all events; but he thought it rather hard that the prisoner's fate should depend on such an accident as the number of magistrates who might be present. He felt a strong repugnance to the punishment which this Bill proposed to inflict. He could not conceive, that a Bill which enacted that a man should be punished by seven years' transportation for the mere offence of being out between sunset and sunrise, could have a good effect. They knew that such a punishment, in very many instances, amounted to transporta- 771 tion for life; because persons of humble rank who were sent for that period to the penal settlements were most frequently unable to procure the means of returning. The very possibility of such severe punishment would, in his opinion, be calculated to deter from prosecution, and defeat the operation of the Bill. He was told that transportation was greatly dreaded by the lower orders, whilst they had no fears of imprisonment; but he was convinced that the power of apprehension was the power of preventing mischief, at least for the time, and that imprisonment was no light matter, especially to labouring men. He had suggested to the noble Lord (the Earl of St. Germans) that it might not be wrong to make a distinction between the first, second, and third occasion in which offences under the Act had been committed. He took the liberty of recommending that a successive repetition of these offences should be considered necessary to expose the prisoner to the severest form of punishment, and would propose that for the first time, that is, for the breach of a mere police regulation, which might be perfectly innocent, and proceed even from praiseworthy motives, he should be treated with lenity; that on his repetition of any breach of the Act, he should be more severely punished, as guilty of contumacy, and of sinning against the law, calling for more severity, though but a malum prohibitum, and not a malum in se; and that only for a third offence, which would raise a strong suspicion of his concurring in mischievous objects, he should be subjected to the extreme penalty of the Act. If it thus went forth that transportation were a punishment to which the offender would be liable on the repetition of his offence, the law would become more effective from the reduction in the extreme punishment, and from the gradations of penalty. On the power to change the venue for the trial of offenders, he could only say that he saw no objection to it; for he thought the very necessity for introducing such an Act as the present necessarily imported that such a change of venue ought to take place. It could not be possible that persons employed in furthering and executing justice could be free from danger if there were such associations and persons as had been supposed to exist in order to justify that Act; and he thought the law in this country could be extended with much advantage to Ireland. It was some consolation to hear from the noble Lord, 772 that jurors in Ireland had not been deterred from the performance of their duty by intimidation or dread of violence; though not intimidated, they could not fail to be endangered by the state of things described. He was, nevertheless, of opinion, that the law in reference to that subject which existed in England ought to be a general law, and had frequently expressed his conviction that it ought to be rendered applicable to all parts of the kingdom whenever circumstances arose which called for its exercise. As to the offence charged in this Act, of intimidating witnesses, jurors, or prosecutors, surely it was one of the gravest offences that could be committed against human society, and should be provided for, not by a local enactment for a temporary purpose, but by a general Act extending to all times and places. He was convinced that the adoption of the hints he had thrown out would render the Bill more effectual for its immediate purposes, and would facilitate the return to the law and Constitution of England, the only remedy for the evils with which Ireland was afflicted.
agreed with his noble Friend that there was every reason for making the law, in the cases he alluded to, general and not local. He must deny, however, to-night, as he did on a former occasion, that a less punishment was inflicted for being out at night than the offence called for. In the first place, the punishment was left to the discretion of the Judge. And, in the next place, in order to constitute the offence, it must be proved that he was "out under suspicious circumstances, and not on his lawful occasions." But it was said there was no possibility of a man proving, when taken up, that he was out on his lawful occasions. Why, the proclamation of the district was an intimation to all liege subjects of Her Majesty that, if they went out after sunset, they should furnish themselves with proof that it was on their lawful occasions. A man able to justify his being out would not be punished at all, the Judge being enabled to exercise a wide discretion, from the infliction of 1s. fine to transportation for life. He heard from all the noble Lords connected with Ireland to whom he had spoken, that nothing but the fear of transportation in such aggravated cases as going about armed at night would have the effect of preventing such offences. He approved of the limitation of the Bill to three years; for if it did no good in three years, it would do no good at all; if it was not effectual in 773 that period they must take other modes of meeting the evil.
§ EARL GREY
said, that his noble and learned Friend (Lord Brougham) had misapprehended the argument both of the Lord Chief Justice and himself. His noble and learned Friend said that the offence was not merely being out at night, but being out under suspicious circumstances. Now, he (Earl Grey) wished once more to call upon the House to consider how little practical difference was made by the introduction of the words "suspicious circumstances." He maintained that a man might be perfectly innocent, although out under suspicious circumstances; and was a man to be transported, for mere suspicious circumstances, if he had not committed any real offence? Suppose a man was found going to see a dying relation, and that in the same direction there was a Whiteboy meeting—that would be a suspicious circumstance. He might have told the persons in his cabin that he was going to see a dying relation; but their statement of his intentions would not be received in evidence. And even in the case of a person who was going to a Whiteboy meeting, there would be nothing practically before the court but the mere fact of his being out at night. The effect of this law would be, that the Irish peasant would be liable for a mere act of forgetfulness, perhaps, in being out in the proscribed hours. He was glad to hear the Lord Chief Justice giving the weight of his knowledge of criminal and constitutional law in favour of the Amendment he (Earl Grey) had proposed. The more he reflected on the matter, the more repugnant he felt it was to justice to punish these offences in this severe way. Let the offence of being out at night armed or disguised, be made a separate offence. There would be no difficulty about that. The case of the noble and learned Lord (Lord Brougham) he must feel wanted a great deal of bolstering up to make it appear decent to the public. A more palpable instance of misapprehension of the arguments which had been used in this case than the speech of the noble and learned Lord, he (Earl Grey) had never heard in the whole course of his Parliamentary experience.
If the noble Earl lives much longer, I promise him he will have to put up with many similar misapprehensions. Now, as to the noble Earl's right to claim my noble and learned Friend the Chief Justice as the supporter of his 774 views, he must be consistent, and pledge my noble and learned Friend to the infliction of a three years' imprisonment for the venial offence of being merely out at night, as proposed by his own (Earl Grey's) Amendment.
§ The EARL of ST. GERMANS
pledged himself that all the suggestions of the noble and learned Lord should receive the consideration they deserved as coming from such high authority, in the interval which would elapse before the Government brought up the Report on their Bill. As to the transportation clause, he thought it best to leave the question of culpability to the discretion of a Judge assisted by a jury. He fully agreed in the principle of the noble and learned Lord's Bill, and should be happy to see it adopted by Parliament.
The EARL of STRADBROKE
Wha possible objection could there be to providing that a man when out within the proscribed hours should be liable to two years' imprisonment, but that when armed he should be liable to transportation?
hoped that the grave offence of intimidating jurors would be punished by a general Act, as prepared by his noble and learned Friend the Chief Justice. Such should be the permanent law, and the proposed change would meet with his hearty concurrence. He hoped some such suggestion as that of the noble Earl (the Earl of Stradbroke) would be adopted; for the great error of the clause alluded to was, that it clubbed together offences of a totally different nature; that it rendered liable to the same punishment a man out of his house for a diabolical purpose, and the man who was merely contemplating the beauties of nature, or some other beauty to him equally enticing. It was not now too late to introduce two clauses, so as to obviate all the objections which had been urged. As to the proposal of changing the venue, the only fair course was that adopted in the Bill of 1833—leave the question to the discretion of the Queen's Bench, on the application of either prisoner or prosecutor.
The LORD CHANCELLOR
said, he entirely approved of the Bill of the Lord Chief Justice, and he was disposed to give it his hearty support. The question of discretion in the Judge was the most simple question in the world. All who objected to the clause admitted that the punishment should be discretionary. According to the Bill which the noble and learned Lord (Lord Campbell) had himself introduced in 775 1834, an Irishman out at night in a proclaimed district was liable to three years' imprisonment, with hard labour; and he was to be tried, not by the regular tribunals, but by a court-martial. All agreed that the punishment ought to be discretionary. The question was as to the limit. The offence might assume ten thousand different shades; it might be justly punished by mprisonment for a day; it might well deserve transportation for seven years. But they could not anticipate all these cases of suspicion—they could not define beforehand every case that might arise; the whole must be left, as in many other cases, to the discretion of the court which tried the prisoner. There was no fear of trusting such a discretion to the Judges of Ireland, mildly and humanely as the law was administered there, and he trusted, therefore, that the clause would be suffered to stand as it was.
§ The EARL of ST. GERMANS
intimated that he would defer till Thursday the bringing up of the Report on the Protection to Life and Property Bill.
§ The DUKE of RICHMOND
thought there ought to be no delay in promoting this measure. The justification put forth for the Bill was, its immediate and absolute necessity; and he could see no other reason for the proposed delay than that Government did not wish to send down a Bill that might not be very palatable to some of their new Friends in the other House.
§ The EARL of ST. GERMANS
agreed with the noble Duke, that no unnecessary delay should take place; but at the same time it was very important that the provisions of the Bill should be carefully considered, and any Amendments adopted which would not destroy the efficacy of the measure. Besides, in the present state of business in the House of Commons, it was impossible that, even if sent down, the measure could be taken up there at present.
The MARQUESS of CLANRICARDE
protested against delay. If the measure was so absolutely necessary as had been represented, no Customs Duties Bill should be allowed to interfere with its progress. But he must say this was just like the conduct of the Government on this subject, for when they were on the same Bill the other evening, they had only the advantage of the presence of three or four Cabinet Ministers out of seven who had a seat in that House. He must say, too, that the whole of the argument in support of the Bill was from that (the Opposition) side of the House. 776 He gave the Bill his support, because he held it to be necessary for the protection of the innocent. He would prove to their Lordships, though he would not mention names, that in a considerable town in one of the disturbed parts of Ireland persons in business employed in the banks there, were obliged to go out to take the exercise necessary for their health earlier than was usual, because they dared not be out after nightfall. It might be thought a great hardship to punish a man for being out after nightfall; but who were the parties who were punished at present? Was it not those who were afraid to go beyond their own doors at night, lest they should be attacked? He held, therefore, that Government should not delay the measure on account of a Bill about Customs duties, or any measure of that kind, however important it might be to party or national interests. He would support the transportation clause, as one that was necessary, considering the state of Ireland. It might be a strong measure; but he always thought it more dangerous to see Government straining a law beyond what it would naturally bear, than passing a stringent law to serve a temporary object, and which was of such a strong character that the country was sure not to permit it to remain long on the Statute Book. The Bill was absolutely necessary for the pacification of Ireland. Even the Repeal Association found that it could do nothing towards that end. They sent down into the disturbed districts a person called the head pacificator, who, he believed, had been sometimes very useful in this respect; but in this instance he totally failed. Seeing then that they had found every kind of persuasion and influence which existed in Ireland failing to produce pacification, their only course was to give to the Ministers the powers which they asked; and if it was right that those powers should be given, then, he contended, that no delay should take place.
The EARL of WICKLOW
thought that if the Bill was not of so imperative a character as to demand that it should take precedence of all other measures, it ought not to pass. As it would not be in his power to attend on Thursday night, he would now state an objection which might be brought against the proposal for bringing the case of prisoners out after nightfall before the petty sessions. The petty sessions met every week; but a person might be apprehended on the evening of the day on which they met, and thus he would be 777 confined a whole week before his case could come under the consideration of the sessions. It was said that if the power of judging of such cases was left to a single magistrate, he would be put in danger by the discharge of his duty; but he had no fear of such a thing; for in Ireland there had never been manifested any disposition to injure a magistrate for the performance of his duty. Another point of consideration was, that they had no power to compel the attendance of gentlemen to form a petty sessions. Meetings might in consequence not be held, and thus a man who was in custody might be kept in prison from week to week till a meeting of petty sessions actually took place.
§ LORD MONTEAGLE
would venture to suggest a mode by which the inconvenience referred to by the noble Earl might be met. It was quite true that petty sessions might not be very regularly held; but he objected to a single magistrate having the power to dismiss a man found out after nightfall. On the other hand, if they did not interpose the authority of a single magistrate, they might subject an innocent man to great inconvenience. What he proposed, therefore, was, that a person apprehended under that Act should be at once brought before the next neighbouring magistrate, and that he should have the power of bailing the person to appear before the petty sessions. They would thus meet the inconvenience referred to by the noble Earl, without vesting in a single magistrate the power of judging in the case.
The LORD CHANCELLOR
asked if his noble Friend meant that it should be imperative on the magistrates to bail a man?
§ The EARL of ST. GERMANS
had no other object in delay than to have the Amendment coolly and deliberately considered. He was happy to inform their Lordships, that to-morrow his noble and learned Friend on the Woolsack would take the Amendments into consideration, and put them in such a shape that he would be enabled to lay them before the House to-morrow evening.
had found a very singular illustration of the argument he had used the other night in the Bill of the noble and learned Lord. It appeared that by that Bill a man might be sent to Botany Bay for taking a stone out of a wall, or a stick out of a hedge, the person to whom 778 the stick or the stone belonged being a prosecutor or witness in any case in which the offender had been concerned. This fully bore out all he had said in favour of the transportation clause.
§ LORD DENMAN
thought it rather unfair that his noble and learned Friend should draw any argument from the Bill in the particular position in which it then stood. He did not expect that the Bill in its present form would meet their Lordships' full concurrence. It did not even meet his own; and he had stated that in Committee it would require a great deal of consideration and amendment. He objected, therefore, to the noble and learned Lord drawing any conclusions from what was in the Bill. But at the same time he would ask, was there anything like a similarity in the object of the clause referred to in this Bill, and in that which made it a crime to be out after sunset? There was a very great distinction. The one was a mere police regulation; the other was a heinous crime. He found that, by one Bill, for the first offence they could transport a man seven years, who might be perfectly innocent, except in so far as he violated an Act of Parliament; but no man could possibly be innocent who committed the crime which his noble and learned Friend had pointed out in his (Lord Penman's) Bill.
had no doubt that his noble and learned Friend would alter his Bill: but he would venture to prophesy that when the Bill had gone through Committee it would just be liable to the same objection as now.
§ Bill read 2a.
§ House adjourned.