Lords Sitting of 30 March 1854

MINUTES.
Sat First in Parliament.—The Lord Suffield, after the death of his Brother.

ADMINISTRATION OF THE CRIMINAL LAW—PROSECUTIONS FOR PETTY OFFENCES—QUESTION.
LORD CAMPBELLsaid, he was desirous of putting a question to his noble and learned Friend on the woolsack as to the intentions of Her Majesty's Government with respect to what appeared to him to be a great defect in the present administration of the criminal law. He had just returned from administering justice to Her Majesty's subjects upon circuit; and in every county he had visited he remarked the existence of a great evil, namely, that there were commitments for what were called felonies, but what were in reality offences of the most trivial character, such as stealing a loaf of bread, a pound of bacon, a pair of old shoes, or a few turnips of the value of 1d. All these offences it

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had been his duty to try over and over again; he did not complain of that, as probably he was as usefully employed in performing the functions of a Judge as in assisting their Lordships in their deliberations. But the class for whom he felt was the offenders themselves. It had happened again and again that the persons who had been committed for such miserable offences had been lying for months in gaol, and had suffered a much longer period of imprisonment before being brought to trial than would have been awarded to them upon conviction. Many of them pleaded guilty, and would have pleaded guilty in the first instance if they had had an opportunity afforded them of doing so. Surely, this was a state of things which ought not to be allowed to remain; and he would suggest that the justices in petty session should have the power of dealing summarily with these cases; for he thought there was no difference in point of reason and common sense between a trespass and a felony of the class referred to. If turnips were pulled up out of the ground and carried away, the offence was in point of law a trespass; but if they had been previously pulled, and had been left upon the ground, the taking them away became felony; and in the latter case there was a commitment and a trial "before my Lord Judge" at the assizes. Surely, the distinction made between the two cases was discreditable to our law. It was highly desirable that the justices in petty session in the case of a trifling felony should have the power, with the consent of the offender—and in most cases that consent would be willingly given—of exercising a summary jurisdiction, and, upon conviction, of awarding a few days' imprisonment, which would be as much as the offence deserved. The matter was one which could only be properly taken cognisance of by the Government; and he wished to ask his noble and learned Friend the Lord Chancellor if there was any intention upon the part of Her Majesty's Ministers to bring in a measure to remedy the crying evil of which he complained?
THE LORD CHANCELLORadmitted that the subject was one which deserved the most serious attention. He believed his noble and learned Friend was not in the House three weeks ago when a petition was presented by his noble and learned Friend behind him (Lord Brougham), not exactly to the same effect, but praying that some steps might be taken for
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enabling persons charged with these very minor offences to plead guilty at a court of petty sessions, and to give the magistrates in petty sessions the power summarily to dispose of the case. He (the Lord Chancellor) had expressed upon that occasion his sympathy with the feeling in which that petition originated, and his general concurrence with the petitioners as to the importance of the object which they had in view; but he must say that he had felt, and felt still, great difficulty in knowing where to draw the line, and in defining those cases where the jurisdiction of the justices in petty sessions should be exercised. He agreed with his noble and learned Friend that the matter was one to which Her Majesty's Government ought to direct its attention; and when the petition was presented, to which he had already referred, he had suggested that it would he better to wait until his noble and learned Friend should have returned from circuit, because it was a subject with which he, as the head of the chief court of criminal jurisdiction in the country, was particularly conversant. He should be most ready to concur with his noble and learned Friend in an endeavour to devise the best possible scheme for remedying an evil, the existence of which he admitted; but he was sure his noble and learned Friend would feel with him that there were difficulties to be overcome; because, to limit the summary jurisdiction to cases where the property taken was of less value than a shilling, or anything of that sort, would not in point of fact be to deal with the subject at its foundation. What was wanted was something of a more general nature; and it appeared to him that the difficulties to be encountered had reference not only to value, but also to the constitution of the tribunal before which the case should be brought. It might very often happen if the jurisdiction were given to the justices in petty session, that the party charged might be taken before magistrates in whose presence he would hardly dare to say anything, he would be so completely under their control. These were some of the difficulties which appeared to him to stand in the way of dealing with the subject practically; but he fully admitted its importance, and, although he could not say that it was at present under the consideration of Her Majesty's Government, he would take care that it should be under their consideration as soon as he could get the concurrence of

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his noble and learned Friends in devising measures by which those difficulties might be overcome.
LORD BROUGHAMsaid, his noble and learned Friend (the Lord Chancellor) had already referred to what had passed when he (Lord Brougham) had presented a petition some time ago. He entirely concurred in the opinion which his noble and learned Friend the Lord Chief Justice had expressed, that a great number of the cases which were sent to the assizes for trial were cases of a very trifling character, and such as ought to be disposed of before another tribunal. The petitioners had requested him to present a Bill to their Lordships, having reference to the grievance of which they especially complained—the dragging of the jurors and prosecutors and witnesses from all parts of the country to the assize town where the prisoners in one-third, or even in one-half the cases pleaded guilty. They urged that this was a great grievance as well as a great expense; that there was no necessity why it should continue; and that the parties aggrieved were not only the prosecutors, and witnesses, and jurors, but even the offenders themselves. His reason for not having presented such a Bill to their Lordships was, his concurrence in the opinion of his noble and learned Friend, that the subject was one which Government ought to take up; and that the change could only be advantageously—he might say safely—carried out under Government control. He had also another reason. He thought that any measure of this kind ought to originate in the other House of Parliament, composed as it was in a great measure of the magistracy of the country. The first reason which he had assigned was, however, a sufficient vindication of the course which he had taken in not complying with the request of the petitioners, by presenting a Bill upon this subject—a subject which would more properly be dealt with by Her Majesty's Government, and by a measure introduced under the superintendence of the Secretary of State, than by any private Member of the Legislature. He trusted that his noble and learned Friend would avail himself of some other opportunity of giving to the Legislature, the profession, and the country, the great benefit of the opinions which he had expressed a few weeks since, on the important subject of a public prosecutor. He trusted that that subject also would come under the consideration of the Government, and,
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although he agreed with his noble and learned Friend that there were very considerable difficulties to be overcome, he thought that the time had at length come when it was absolutely necessary some such measure should be carried into effect.

THE WAR WITH RUSSIA—
  THE RUSSIAN FLEET IN THE BLACK SEA—

    QUESTION.
    THE EARL OF MALMESBURY: My Lords, I rise to put a question to the noble Earl opposite the Secretary of State for Foreign Affairs, with reference to some rumours which have created considerable anxiety in the public mind, and which have been confirmed by private letters—some of which I have myself seen—from Odessa and Constantinople. These letters state that a considerable force of Russian ships had left Sebastopol, and had made a descent upon the coast of Circassia; but they do not appear to agree as to the object of the movement, some saying that it was to carry Russian troops to reinforce the garrisons along the coast of Circassia, while others think the object was to bring away the garrisons from the isolated forts upon that coast. Your Lordships will be aware that the line of fortresses along the coast of Circassia is, virtually, all that Russia possesses in that country, and it is supposed to be one of her most vulnerable points, and the most open to successful attack. Whatever, therefore, the object may have been—whether it was to strengthen these garrisons or to withdraw them from the strait in which they might be supposed to stand—it was of considerable importance that that object should have been prevented by Her Majesty's ships. On the contrary, however, if these rumours be true, the Russian force has not only been unimpeded in any way, but Her Majesty's fleet and the French fleet are still lying at anchor in Beicos Bay. I have now two questions to ask my noble Friend—the first is, whether he can say that the rumours of a Russian force having left Sebastopol for the coast of Circassia are true or false? and, in the second place, whether he has any objection to state to the House the position now held by the combined fleets—whether they are lying, as I understand they are, in Beicos Bay? in which, it appears to me, they would be very nearly useless in the way of preventing any of those sudden operations which may have taken place on the part of Russia.
    THE EARL OF CLARENDON: My Lords, the only answer I can give my noble Friend is, that I have read in the public journals the reports which he has referred to, but that the Government has received no official communication upon the subject. Such information as they have received is rather of a contrary character, so far as Circassia is concerned. A recent telegraphic despatch from Constantinople stated that it was reported that several—I think ten—Russian ships of war had left Sebastapol and were between that place and Perekof, which is upon the northern coast of the Crimea, and not at all near the coast of Circassia. That is the only information we have had. With respect to the position of the combined fleets, I may say that, according to the last accounts, they were at Beicos Bay, and that Sir Edmund Lyons had just returned from a cruise in the Black Sea, having been with the steam portion of the fleets, in the course of which he passed along the fronts of the forts to which my noble Friend has alluded, and in front of Sebastapol; and after having cruised a month in the northern parts of the Black Sea, returned without having seen a single Russian vessel.

TESTAMENTARY JURISDICTION BILL.
On Motion that the House go into Committee on this Bill,
THE LORD CHANCELLORsaid, it was not his intention to move—notwithstanding the notice he had given—the restoration of the clauses relating to real estate, which had been struck out in the Select Committee. Personally, he entertained the same opinion as he had held when he introduced the Bill, and as had been held by the great majority of the Commissioners who had inquired into this subject. He thought that the retention of the clauses would be very beneficial; but he had had so many communications, not only from his noble and learned Friend now on his left (Lord St. Leonards) and those who usually acted with him, but from other noble Friends of his upon the Government side of the House, and who were also of opinion that the clauses ought to be withdrawn, and that unless they were withdrawn the Bill would be defeated, that he had felt it his duty to yield to what appeared to be the general sense of the House. Another reason which had induced him to take this course—notwithstanding that he had thought the matter so important as to give notice to restore the clauses
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relating to real estate—was the doubt which he confessed he entertained whether it was quite a wise course to pursue, when a subject had once been referred to a Select Committee and considered and decided on by them, to move the restoration of any matter which that Committee had struck out. He felt that this would be a strong measure to adopt, except under very extraordinary circumstances; and although he had felt justified in giving notice of a Motion to restore these clauses, on account of their having been recommended by so very large and preponderating a majority of the Commissioners, he thought it better, under all the circumstances, not to persevere with it. What he proposed, therefore, was that the House should go into Committee pro formâ, for the purpose of introducing amendments, with respect to compensation and some other matters, that the Bill with these amendments should be printed, and that the recommittal should take place on Monday next.
LORD ST. LEONARDSwho had given notice of his intention to move a clause confining the jurisdiction in matters testamentary to one branch of the Court of Chancery, to empower the Judge of the Prerogative Court to sit as a judge of such branch, and to give precedence in contentious testamentary matters during ten years to the present advocates, addressed the House briefly in support of these propositions. With respect to the first, the noble and learned Lord said, while it would give the jurisdiction to the Court of Chancery, and obviate the necessity of creating a new court, it would keep the testamentary business together, which was a very important object, that business being of such a nature that it ought to be confined to one court. With respect to the advocates, who had devoted their lives to the successful pursuit of their profession, and who were about to have the ground cut away from under them by the operation of this Bill, his proposal to give them preaudience, in order that the public might have the advantage of their learning and experience in that branch of practice, leaving the business open in other respects to the general body of the bar, was one which he was sure the bar would receive with very great pleasure. Upon the other point, he thought there could be little doubt that great benefits would result if they should be able to secure the services of the learned Judge of the Pre-

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rogative Court in connection with that class of cases which had occupied so much of his attention, and over which, up to this moment, he had had perfect jurisdiction.
THE LORD CHANCELLORsaid, his noble and learned Friend and himself were very nearly agreed as to their object; but he thought there would be some difficulty in discussing at this moment the details of the proposed Amendments. The better plan would be for his noble and learned Friend to give notice of his clause, and have it printed. He (the Lord Chancellor) would have the Bill altered in conformity with his own view; and if that alteration should not meet his noble and learned Friend's approval, it would be open to him, of course, to propose his clause in Committee.
LORD CAMPBELLexpressed his regret that the clauses relating to real estate had been struck out by the Select Committee. He thought, however, that his noble and learned Friend (the Lord Chancellor) had exercised a wise discretion in the course he had pursued in acquiescing in the loss of those clauses, though he must express his opinion that the measure would be a very imperfect one without them; and he had thought that within that House there was a great weight of authority in favour of that part of the measure; and although he now heard for the first time that there was a strong feeling against it, he should be sorry to be included in the number of those who opposed it. He, for the most part, deeply regretted that after a will disposing of real and personal property, which now stood on precisely the same footing, as far as testamentary disposition was concerned, had been established by the solemn adjudication of a court of competent jurisdiction, its validity might still be questioned in an action of ejectment, and that a distinction for this purpose should be made between freehold and leasehold property. He concurred with his noble and learned Friend opposite (Lord St. Leonards) as to the advantage which would result from confining this jurisdiction to one branch of the Court of Chancery, instead of dividing it among all the branches. And he admitted that the case of the advocates was one which ought to be dealt with with great tenderness towards a most learned, respectable, and honourable body. He doubted, however, whether giving them precedence of all the Queen's Counsel, although it would place them in a very honourable position, would
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be found very profitable. He thought they had a much better chance of being employed as juniors than as leaders, and he suggested that their own opinions should be ascertained before this arrangement was pressed.
LORD BROUGHAMwas understood to concur in the propriety of forming a court within the Court of Chancery for hearing cases of testamentary jurisdiction. The interests of the public would be, he thought, consulted by retaining the services of the learned Judge and the learned advocates who now practised in Doctors' Commons.
LORD ST. LEONARDSwould endeavour to ascertain the wish of the bar on the subject. There were gentlemen of great learning and experience practising in Doctors' Commons, but with regard to the juniors of that court, he did not wish to place them, against their will, over the heads of persons who had a great deal of business in the Court of Chancery. There might be a power given to these gentlemen to declare at once the position in which they would like to stand in this respect.
In reply to the Earl of DONOUGHMORE,
THE LORD CHANCELLORsaid, that the salary of the registrar, the sealer, and the record-keeper would be fixed at the same amount as they had previously received, as nearly as the amount of fees received by them could be ascertained.
House in Committee; Amendments made. The Report thereof to be received To-morrow.
House adjourned till To-morrow.