HL Deb 08 April 1859 vol 153 cc1530-44

Order of the Day for the Third Reading read.

Moved—That the Bill be now read 3a.


My Lords, I object to this measure, both in principle and detail, and I wish to state to your Lordships the reasons and grounds of my objection. In the first place, I would suggest to your Lordships that when any measure is brought forward changing the fundamental laws of the country, and particularly the important laws which relate to trial by jury, you ought not to consider only the present state of things, but to look forward to the future—to take into account complications which may hereafter arise, and to proceed with the greatest circumspection and caution. At present we are not at all aware what arbitrary government means; we now pursue the directly opposite system. Prosecutions for political offences are never heard of among us; the administration of justice is mild in the extreme; and we have no grounds of complaint whatever on any of the points I have referred to; we may be perfectly satisfied with our present position. But, unfortunately, I have lived in times of a very different character. I have seen the time when the Government was carried on, in comparison with the present state of things, upon arbitrary and even tyrannical principles—when political prosecutions were of constant occurrence, and were conducted with extreme harshness, and when punishments of great severity were inflicted for political offences. I have been myself, to a certain extent, not merely a witness of, but an actor in, those times. I will not enter into the circumstances which have occasioned the change that has since occurred. Perhaps the growing prosperity of the country and the contentment which it has produced may have contributed to bring about that result. But, my Lords, we must not so far delude ourselves as to suppose that such a state of things can never again arise. Violent political feelings may again be excited, and who can venture to say that a similar state of things may not again occur? At all events, let us not, acting under such a delusion, take any steps towards destroying the barriers and fences the constitution has given against the exercise of arbitrary power. That would be the extreme of folly. Now, what is the language of the constitution, and what is the system under which we have lived? The constitution provides that no man shall be put on his trial for any grave offence except on the presentment of a grand jury, or found guilty except on the subsequent verdict of the petty jury. The decision of the grand jury must be that of twenty-four persons, declaring on their oath that they believe the party charged is guilty of the offence of which he is accused. That has hitherto been the law of the country, and it is the law at this moment. It has stood the test of the very worst times. In the most arbitrary periods of our history that law has never been infringed or broken in upon. Attempts have been made at different times to invade it by intimidation and corruption; but the law itself has stood as a barrier, firm as a rock, amidst all the storms of the very worst epochs, and has come down to us unchanged. And I must regret, my Lords, as a Member of the Conservative party, that the first attempt to change this law is made under the Conservative Government; above all, I regret that a measure of this kind is brought forward on the Motion of my noble and learned Friend on the woolsack, a Conservative Lord Chancellor, for whom I entertain such distinguished respect and esteem. I have stated whist is the law, and has continued to be the law throughout the whole period of our constitutional history. But let me remind your Lordships of the opinion of that great authority, Blackstone, on this subject;—and it is not only his own opinion, but that of all the writers on constitutional law that preceded him. He says, "the founders of the English law have, with excellent forecast, contrived that no man should be called on to answer to the King for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow-subjects of the grand jury, and the truth of such accusation must afterwards be confirmed by the unanimous suffrage of twelve of his equals superior to all suspicion. "Blackstone adds, that this law ought to remain "sacred and inviolate." But how sacred and inviolate? Not only from those attacks which none have ventured to make, but from all measures calculated to sap and undermine it, and to introduce arbitrary rules of trial by justices of the peace. He goes on to state that, however convenient a change might appear—as doubtless all arbitrary powers, well executed, are the most convenient —vet it should be resisted, as the little inconveniences in the forms of justice are the price a free nation must pay for its liberties in more substantial matters. Such is the language of that great Judge in stating, not his own opinion alone, but that of all the great authorities which had preceded him. Now, let me recall to your Lordships' recollection that there are exceptions to this rule, and when you come to consider those exceptions, you will find that they confirm the rule, and confirm it in the most marked and decided manner. One of those exceptions is the power which the Attorney General has to dispense with a grand jury in a case of criminal information ex officio. The Attorney General is a high officer. He is, or is supposed to be, a man of great learning. He fills a most responsible situation. His conduct is viewed, both by the public and by Parliament, in this exercise of the prerogative, with the greatest jealousy, and he exorcises it, when he uses it at all, with the greatest caution. I recollect, as an illustration of this, that many years ago, when I was a Member of the House of Commons, a very distinguished individual, who then held the office of Attorney General for Ireland, a gentleman of great talents and of extraordinary eloquence, was supposed to have transgressed in this respect by having filed a greater number of criminal informations ex officio than was usual for a person in his situation. My Lords, this gave occasion to a very long and animated discussion in that House; and though the result was that the House was of opinion that he had not transgressed the usual rule of his duty, yet what was said in that controversy by parties on both sides of the House showed the jealousy that they entertained of the exercise of this extraordinary power. There is another exception to which I will refer, and which is the only other exception—namely, that the Court of Queen's Bench, and the Court of Queen's Bench alone, has the power of granting criminal informations upon an application made to it for that purpose by private individuals. But, my Lords, that power, as my noble and learned Friend the Chief Justice well knows, applies only to exceptional cases supported by the clearest evidence. [Lord CAMPBELL: Cases of misdemeanour only.] And when the application of the party applying for such an information is refused, what is the language of the Court? "We dismiss you to the constitutional tribunal of a grand jury." These are the only two cases of exception to the general rule. What, then, is the object of my noble and learned Friend in the present Bill? Mark, my Lords. The Attorney General in the exercise of his high functions and the Court of Queen's Bench have the power of dispensing in certain cases with the grand jury. And what are you doing by this Bill? You are giving that power to every police magistrate within the metropolitan district; and not only the power which is given to the high officers that I have mentioned, but a far greater power, for, as my noble and learned Friend the Chief Justice has just stated, that power of the Court of Queen's Bench and of the Attorney General is confined to misdemeanours, whereas you are giving by this Bill power to dispense with grand juries, nut only in cases of misdemeanour, but also in every case of felony. My Lords, these gentlemen to whom you are giving this power are paid officers of the Government; they have been appointed by the Government, they are removable at the pleasure of the Government. Are you willing, then, to make this extraordinary change in our Jaws? Is there any occasion, any case of necessity, to justify such a change? I think I can show your Lordships that no such necessity exists. But let me not be mistaken. My noble and learned Friend on the woolsack paid a just eulogium to the character and abilities of the gentlemen who now hold the office of metropolitan police magistrates. I entirely concur with my noble and learned Friend in acknowledging their integrity, their legal capacity, and their independence; but, my Lords, we are not legislating alone for the present moment, we are not to confine our view to the present hour. We are legislating for the future. Suppose the just possible case of arbitrary Government being established in this country—what is the first step taken by an arbitrary Government? To appoint men who shall be subservient to their will, flexible and supple, ready on all occasions to do the will of their superiors. I beg your Lordships to consider what the consequences will be, under such circumstances, if this Bill of my noble and learned Friend should pass into a law. I confess that I was surprised at the argument, or rather the statement, of a noble Earl (the Earl of Shaftesbury) on the second reading of this Bill, which was the only thing that he had to urge in favour of the Bill. And what was that argument, or, rather that fact? That he had been two days in the City of London in a room without a seat in order to prefer a Bill which afterwards was passed after a very short inquiry. I confess I was surprised, because I recollect that that noble Earl owes his title, his dignity, and his station in this House and in this country to the verdict of a Middlesex grand jury. We all know very well—everybody must recollect — the part which Lord Shaftesbury took in the Exclusion Bill. After the last Parliament of the reign of Charles H. was dissolved, the Court determined to inflict vengeance on the noble Lord for the part he had taken. A Bill was exhibited against him for high treason. That charge was supported by the same infamous witnesses to whose testimony Lord Stafford fell a victim. The jury, fortunately for the noble Lord, threw out the Bill. If that Bill had not been thrown out, the noble Lord would have suffered the same fate as the unfortunate nobleman to whom I have referred. But no doubt I shall be reminded that there are exceptions in this Bill—that charges of high treason are excepted. There are these and other exceptions, but they do not provide for one-twentieth part of the cases which may be made use of by an arbitrary Government for inflicting vengeance upon its political opponents. Cases under the Riot Act, cases of libel, cases of imputation on a Minister, charges against his character and integrity, and a variety of other cases that will occur to the mind of my noble and learned Friend, are not excepted in the clauses to which I have referred; and I say that enough there remains to give ample scope to an arbitrary Government to inflict vengeance upon its political opponents. These are some of the grounds why I object to this Bill. It is harmless at the present moment; but will it always be harmless? We must look to the future. It is our duty to provide against all contingencies, and not to suppose that the present harmony and the present smoothness of the Government will always continue. Statesmen should look forward to contingencies of various kinds to guard against them. Our ancestors guarded against them in the provisions to which I have referred. But, again, my Lords, how will this Bill of my noble and learned Friend be received by the other House of Parliament? We provide for ourselves. We protect ourselves by a grand jury; but the Commons of England, at least in the metropolitan district, are not protected. That protection is taken away by this Bill, but the protection of your Lordships' House remains entire. Is this legislation that ought to commence in the House of Lords? Ought we to say to the Commons of England, of every rank and station, "You shall not be protected by a grand jury, but we will take care to protect ourselves," for every man knows that no Peer can be tried at the bar of the House of Lords without in the first instance a grand jury having presented a Bill against him. There is no exception in the Bill of my noble and learned Friend in favour of the Commons of England. I ask you, therefore, what kind of reception is this Bill likely to meet from the Members of the other House when it goes down there? Will not the Members of that House say, "Shall a Bill be brought in by the Peers of this realm in which they take care to shelter themselves, but at the same time leave the Commons of England exposed to its operation?" Again, there is no equality in this Bill; for, according to its provisions, if a complaint is made before a magistrate, and that complaint is dismissed, the prosecutor has a right to go before the grand jury and a Bill may there be found against the accused. The prosecutor, therefore, has an appeal against the decision of the magistrate. But how-stands it with the party accused? The accused has no appeal, for if the decision of the magistrate be against him the case immediately goes before the common jury —he has not like the prosecutor the right of appealing to the grand jury against the decision of the magistrate. Is there any fairness in that? If there is any favour to be shown, the general maxim of the law is to show it to the accused; but here the favour is shown to the prosecutor. These are some of the details of the Bill to which I most strongly object. But let me remind you of another circumstance. I do not consider that the advantage and use of the grand jury are confined to presenting indictments and returning true bills. They have other uses, not less important. The attendance of the grand jury on the Court adds to its weight, its dignity, its importance, its impression on the public mind. Again, no man can place greater reliance than I do on the integrity of the Judges; but give me leave to say that there is no mode of keeping men within the line of their duty more certainly than by securing that their functions should be performed under the inspection of a body of men of their own station—men of learning and of observation. Again, allow me to remind your Lordships how important it is that the gentlemen of the country should, as grand jurymen, attend from time to time the administration of justice, for they thus become acquainted with the law, with the mode of its administration, and with the principles on which it is founded. We were told, I remember, on a previous stage of the Bill, by my noble and learned Friend on the woolsack, that the grand jury were desirous of being relieved from the performance of these duties. I regretted to hear it; I think it a bad symptom. I believe there are many situations in which persons occupying them desire to be relieved from their duties. But I believe that there is no better security for the liberties of the country than that the business of the country should be, to a great extent, performed by the citizens of the country; and I believe that the part which has been taken by the gentlemen of this country in the administration of public affairs, and especially in the administration of justice, has secured to the people, and still secures to them, all the advantages of the liberty which they enjoy. An illustration of the consequences of a different system may be drawn from the French Revolution. For sometime before that event it had been the habit to withdraw from the people and the gentry of the country all administrative duties and all judicial functions, so that they gradually lost all knowledge of public affairs, and ceased to be respected by their inferiors. When the Revolution broke out, therefore, there was no rallying point as it were, no body of men on whom the great mass of the people could fall back for their defence, and the consequence was, that when Government was overthrown all the institutions of the country fell prostrate before the mob. I believe that all the inconveniences which have been urged against the grand jury system may be referred to one consideration—namely, that the numbers of the people have outgrown the machinery. To remedy that, instead of adapting your machinery to your principle, you, by this Bill, sacrifice your principle, and leave your imperfect machinery to stand. It is said that persons who have Bills to prefer before the grand jury are sometimes kept waiting two or three days. The petty inconveniences which have been referred to obviously arise from want of arrangement; and are you, then, instead of improving your arrangements, to abandon the principles of jury law and constitution. Then it is said that great numbers of people of different conditions—some of them of the very lowest class—are by this means brought together for weeks, and that this leads to the spread of vice and immorality. This may be so, but that is no reason for abandoning your principle but rather for adopting it. The question of expense has also been mentioned, but I am glad my noble and learned Friend was ashamed to press that point very strongly. Why not adapt your machinery to the existing state of things? It was said by the supporters of the Bill that practically the grand jury were of no use. How of no use? Almost in the same breath we were informed that a great number of bills which had passed the police magistrates were thrown out by the grand jury. If that be so, how can it be said that they are of no use? Again, we are told that the grand jury are very frequently composed of ignorant men—whose fault is that? That is the fault of the sheriff; and if he misconduct himself by not summoning proper persons to fill the office of grand jurors, he ought to be advised to review his conduct, and to amend it in that respect. Men of station, of character, and of position, ought to be summoned on the grand jury, and if ignorant men are placed there it is the fault of the sheriff or the summoning officer. Then, again, particular cases of hardship, or of ignorance, have been alleged. It is an observation of Westminster-hall that cases of hardship are the foundation of bad laws; and if instances of blunder, ignorance, or misconduct are reasons for altering your laws, there is no part of your law that would remain upon the Statute-book. But this is not the way to deal with exceptional cases; if hardships occur from ignorance, that is no reason for altering your system. I must remind your Lordships that when this Bill came on the other night my noble and learned Friend said that it would be confined to the home district, and that it would not extend further. I beg leave to caution my noble and learned Friend and your Lordships that if you once establish the principle as applicable to the home district it will not stop there, for most of the arguments in support of this measure apply as strongly to the counties as to the home district. If the petitions of the grand juries of the home district suffice to procure for them a discontinuance of their attendance, you may depend upon it the grand juries in all the counties in England will speedily send up their petitions to the same effect. My noble and learned Friend on the woolsack objects to these grand juries because the inquiry before them is secret; but surely that argument, if it is good for anything, is good for the abolition of grand juries, not merely in the metropolitan districts, but all over the country. The system is a great barrier of defence for the accused against false and unfounded accusations. Unless the grand jury is satisfied that the case made out is one on which, if not answered, a verdict of guilty would be returned by the common jury, they ignore the bill; and if they return a true bill they do so under the sanction of an oath. It is my apology for having detained your Lordships at such length that I look upon the preservation of this system as a matter of great importance, and I do not like to see this first step taken to break down an institution which has existed for 500 years, in the worst times, and under the most arbitrary Governments, and is now for the first time sought to be invaded.


said, he had objected to the Bill at a former stage upon constitutional grounds, and he retained his objection still. There was no precedent for the introduction of such a Bill, which he regarded as a first step to the abolition of grand juries throughout the country. He trusted, then, that their Lordships would not agree to the third reading; but if they did that they would make material alterations in the provisions of the Bill before they allowed it to pass.


said, that he also had opposed the Bill, and he trusted that the Lord Chancellor, after what he had heard fall from his noble and learned Friend (Lord Lyndhurst), would not press it further during the present Session. The fact was that their Lordships were asked to pass the Bill at a moment when there would not be time for its discussion in the other House of Parliament. The Bill was one which required very grave consideration, and he thought that it would not be respectful to the House of Commons to send it down to them under present circumstances.


said, he was not insensible to the disadvantage under which he laboured in being opposed by his noble and learned Friend (Lord Lyndhurst), for whose opinions he had been for many years accustomed to entertain the greatest deference, and who deservedly possessed great authority in their Lordships' House. But he thought he had a right to complain of the course which his noble and learned Friends and also the Lord Chief Justice had taken with regard to this Bill. He explained its provisions very fully when he introduced it, and laid before them the grounds on which he thought such a measure desirable, and he received the general concurrence of their Lordships. On the second reading his noble and learned Friend (Lord Lyndhurst) was present, and never intimated the slightest objection to it. The Lord Chief Justice certainly made a few remarks against it, which met with no support and encouragement, and no division was taken at that stage. When the Order of the Day was read for going into Committee, his noble and learned Friend (Lord Lyndhurst) put a question as to a particular clause in the Bill, and, in reply, he (the Lord Chancellor) said that he intended to propose an addition to that clause. His noble and learned Friend then stated that that would remove many of his objections. [Lord LYNDHURST: Lessen the objections.] Perhaps "lessen the objections" was the phrase. He was, however, induced to believe that his noble and learned Friend would not offer any active opposition to the Bill. When he (the Lord Chancellor) moved the third reading, his noble and learned Friend suggested that such a Bill ought not to be read a third time in the absence of the Lord Chief Justice; upon which, in order to meet the objection of his noble and learned Friend, he consented to postpone the third reading to a distant day. He had since received a communication from his noble and learned Friend relative to the Bill, but he had no reason to believe that he was generally hostile to it; and although his noble and learned Friend certainly made objections to it, yet he did not know until to-night that there was to be an opposition to the Bill. He thought he had also some reason to complain that the postponement which he had agreed to at the request of his noble and learned Friends now enabled them to urge him to withdraw the Bill, on the ground that it would be impossible to pass it during the present Session. He was sure they did not mean to accomplish this result; but it had been the effect of his having acceded to the request of his noble and learned Friends. He did not yield to them in veneration and regard for our ancient institutions, but he was not so blindly enamoured of them as not to see their defects; nor was he so wedded to antiquity as, when ancient things had declined from their original use, to hesitate to place a reforming hand upon them merely from prejudice for a venerated name. His noble and learned Friend said he regretted that a Bill of this kind had been introduced by a Conservative Government. His noble and learned Friend's historical recollection was rather short, for it was not the first time it had been introduced. In 1849 a similar Bill was introduced in the House of Commons by a Liberal Government. In 1852 it was introduced by a Conservative Government. In 1857 a, similar measure was introduced by him with the sanction of a Liberal Government. When, therefore, his noble and learned Friend said their Lordships were legislating without considering the reception which this Bill would meet with in the House of Commons, he must tell him that a similar Bill had passed an important stage in the House of Commons no less than three times, and that he believed a majority of that House would be favourable to the present measure. His noble and learned Friend took his stand upon the objection that the Bill would take away a great protection from the liberty of the subject, and he argued that grand juries ought to be continued for the purpose of protecting persons charged with political offences. Now, one would have thought that there was nothing whatever in the measure excluding persons charged with political offences from its operation; yet he had carefully guarded the liberty of the subject in this respect by providing that for persons charged with political offences there should still be the intervention of a grand jury. [Lord LYNDHURST: My noble and learned Friend is under a mistake.] Well, if their Lordships had gone into Committee on the Bill, and his noble and learned Friend had had the kindness to point out that the words of the clause did not go sufficiently far, and that words ought to be introduced for the more effectual protection of the liberty of the subject, he should have acquiesced immediately, and should have felt much indebted to his noble and learned Friend for his suggestion. With regard to the question of expense and inconvenience, he had expressly told their Lordships that the removal of great expense and inconvenience was a very minor part of the advantages of the measure. He had introduced the measure on the ground that within the Metropolitan Police district, where magistrates who had been trained to the law, and who sat in a public court, had the accused before them and gave him an opportunity of examining witnesses, after an investigation especially directed to discover whether there were grounds for sending a person for trial, it was not necessary to interpose a secret tribunal with imperfect means of inquiry, which decided without having the accused before it, and whose interference was likely to be actually mischievous to the administration of justice. He would not detain their Lordships by recent instances of the truth of this position, yet there had been cases which strikingly proved that grand juries in the metropolis were not only of no use, but were actually mischievous. He entertained the same fear with his noble and learned Friend that persons might wish to extend this measure to grand juries in the country, which he should deprecate, believing it to be extremely important, that the services of country gentlemen should be retained in the administration of justice; and he thought there were reasons which rendered the measure expedient for the metropolitan districts which were wholly inapplicable to the country. It appeared that, although his noble and learned Friend agreed in the principle of the Bill so far as the metropolitan police districts and the magistrates within those districts were concerned, yet he objected to the Lord Mayor or an Alderman sitting in a public court in the City, and sending cases for trial without the intervention of a grand jury; his noble and learned Friend doubting whether absolute wisdom was to be found in Lord Mayors and Aldermen. He was afraid that if his noble and learned Friend extended his views beyond the City he would not find absolute wisdom anywhere. It was, he knew, the fashion to censure the magistrates within the City; yet he would appeal to those of their Lordships who had seen the magistrates of the City discharging their duties, and he would challenge his noble and learned Friend to produce an instance in which there had been any failure on the part of the City magistrates to do their duty in quite as exemplary and satisfactory a manner as the magistrates of the police courts. And if he should introduce this Bill again to their Lordships, he would not allow a stigma to be cast upon the magistrates of the City of London, by making them an exception to a measure that was considered beneficial for the other districts of the metropolis. Unless, therefore, his noble and learned Friend, could bring forward something more substantial than a sneer against the magisterial administration of the City he should not forego including thorn in the provisions of the Bill. There were, however, some outlying districts of the counties of Surrey, Kent, and Essex, to which the jurisdiction of the metropolitan police courts did not extend, for which some special provision might be made. It had been objected that the magistrates for these outlying districts sat privately, and had the power of committing to the Central Criminal Court, and it was urged that they ought not to be allowed to send parties for trial without the intervention of a grand jury. He had on a former occasion stated that he had always felt this to be a great objection to a general measure for the metropolitan districts, and a noble Earl had suggested that he might provide that these magistrates should not be permitted to commit persons for trial without the intervention of a grand jury, unless they were sitting openly in petty sessions in some public room. He told the Lord Chief Justice that he was willing to amend the clause in this sense; but it had suited his noble and learned Friends to argue as if the Bill were to remain without alteration. Under these circumstances he thought he had some reason to complain of having been desired to withdraw his measure without offering a single remark or objection to its withdrawal. Of course, in the present state of the Session it was perfectly hopeless to expect to pass this Bill through the House of' Commons. He should therefore now withdraw the Bill, but he trusted he might be able to introduce a similar measure at a very early period of next Session.


said, he hoped his noble and learned Friend would revive the Bill next Session. He wished, before the Bill was withdrawn, to say that the calm deliberation and patient investigation requisite for the due discharge of judicial duties could not be expected from these grand juries. He had once served upon one of them himself, when they had 400 Bills placed before them, and fresh prisoners came in from the various metropolitan districts more rapidly than the grand jury could dispose of the Bills requiring their attention. A summons to act as a grand juror was dreaded by every merchant and trader, for it often produced an interruption to his business, extending over nine or ten consecutive days. The system operated most oppressively towards an industrious and most important class, without in any way furthering the ends of justice. It was a mistake to suppose that it was a compliment and an honour to be placed upon the grand jury—certainly for himself he could say, that the duty it had imposed on him was one of the severest punishments he had ever sustained. He trusted, therefore, that this measure, proposing so desirable an improvement, would be revived on the reassembling of Parliament.


also hoped that the measure would be re-introduced, for it was one of practical reform, than which few more valuable could be proposed. He was convinced that the present grand jury system was the means of enabling many notorious criminals to escape from the hands of justice. The noble and learned Lord who had commenced the discussion could not have actually heard the grounds on which the noble Lord on the woolsack had objected to the existence of grand juries in the City of London. The noble and learned Lord did not object on account of the great inconvenience and trouble to prosecutors, but because there had been a gross failure of justice from the intervention of a grand jury, and who probably had not the same evidence laid before them that was laid before the committing magistrates. It was not to be supposed that grand juries could pay the same attention to the evidence that had been given by the trained magistrate, who had collected and sifted the evidence before he committed the accused. No doubt the rejection by grand juries of bills in cases where the same evidence as that before the magistrates was brought before them was mischievous; but he believed it was notorious that those who were interested in defeating the criminal law availed themselves of tampering with witnesses, and so led to the ignoring of the bill, and they could not be proceeded against for perjury, because the evidence before a grand jury was given in secret, and the law was thus defeated.

Motion (by leave of the House) withdrawn.

The Order for the Third Reading discharged, and Bill (by leave of the House) withdrawn.