Lords Sitting of 6 April 1869

MINUTES.
PUBLIC BILLS—Second Reading—Lord Napier's Salary* (37); Mutiny*; Marine Mutiny *.
Reported with Amendments—East India Irrigation and Canal Company * (31).
Report—Habitual Criminals (32–41.)

GOVERNMENT OF INDIA ACT AMENDMENT BILL, 1867.—NOTICE.
THE DUKE OF ARGYLLsaid, that in consequence of certain Questions that had been put to him by his noble Friend the Marquess of Salisbury and other noble Lords, he had to state that he intended to proceed with the Bill introduced by Sir Stafford Northcote on behalf of the late Government, in the last Session of Parliament, relative to the constitution of the Council of India; and that he would make a statement with respect to it on Thursday week next.
THE MARQUESS OF SALISBURYasked if it would contain any new clauses relating to the financial control of the Council of India?
THE DUKE OF ARGYLLreplied that it would not.

HABITUAL CRIMINALS BILL.—(No. 32.)
(The Lord Privy Seal.)
HABITUAL CRIMINALS BILL.—(No. 32.)

  REPORT.
  Amendments reported according to Order).
  Clause 4 (Power to apprehend holders of license on suspicion).
  THE EARL OF KIMBERLEYsaid, that in the law as it stood there was no provision authorizing the temporary committal of a ticket-of-leave man to any county or borough prison. He therefore proposed to insert in Clause 4 words enabling a magistrate to commit such a man to any prison within his jurisdiction, there to remain until he could conveniently be removed.
  Amendment moved in Clause 4. line 6, after ("to") insert ("any prison within his jurisdiction, there to remain until he can conveniently be removed to").
  Amendment agreed to.
  Another Amendment moved in line 7, after ("confined") to insert—

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  "In order that he may there undergo the term of penal servitude to which he is liable under the said Penal Servitude Acts or some of them."
  Amendment agreed to.
  Clause 5 (Penalty for breach of conditions of license).
  Amendment moved, to add as separate paragraph at end of clause—
  "There shall he repealed so much of the fourth section of the Penal Servitude Act, 1864, as requires the holder of a licence to report himself personally once in each month."
  Amendment agreed to.
  Clause 10 (Person twice guilty of felony and not punished with penal servitude to be subject to the supervision of the police).
  LORD ROMILLYproposed the omission of that portion of the clause which authorized imprisonment for twelve months, with or without hard labour, upon mere suspicion. Common justice dictated this Amendment; for, as the clause stood, a man who had done nothing, but whom a policeman suspected, and as a magistrate thought justly, might be consigned to prison over and over again, and this might go on during the whole of a man's existence. If the magistrate were bound to have evidence of a single fact of any description he should not complain, nor did he object to the commital of persons found in any place under circumstances justifying the belief that they were about to commit or aid in the commission of a felony; but he could not approve the imprisonment of persons on a mere suspicion that they were getting a livelihood by dishonest means. It was true that such persons must have previously committed two offences, and that the object was to punish them when about to commit a third. If all police constables and magistrates were exempt from the passions of human nature he should offer no objection to the proposal; but if they had any feeling of dislike towards a man who had been twice convicted it would enable them to inflict a punishment which should only be inflicted when there was evidence of his intention of committing a felony. He did not believe the people of this country would tolerate such an arbitrary power, which would practically operate as one law for the rich and another for the poor; it being obvious that no magistrate would commit on mere suspicion a rich man who had plenty of friends, and that the
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  poor and friendless man alone would be subjected to such severity.
  Amendment moved, to leave out lines 20, 21, 22, 23, and 24.
  THE EARL OF KIMBERLEYsaid, he could not accept the Amendment, since it struck at the very root and principle of the Bill. The object of the Bill was two-fold. First, it made certain provisions binding on persons under license; and the object of the second part of the Bill, which included this clause, was to place men who had been twice convicted of serious offences, but had been sentenced by the Judges to the alternative sentence of imprisonment instead of penal servitude, in the same position as those who had been so sentenced, and who held a license under the Penal Servitude Acts. Persons against whom there had been repeated convictions were frequently sentenced at sessions and Assizes to imprisonment for six months or two years, and it was only right that such persons, having committed more than one felony, should be put in the same position as licenses with respect to police supervision. The object of the Bill was to strike at the "habitual criminal" class, men who formed notorious gangs and were well known to the police, but against whom no actual proof of crime might for a long period be established. The clause would empower their arrest under certain safeguards, and the magistrate would then call upon them to show that they were not getting a livelihood by dishonest means. His noble and learned Friend feared that magistrates might, from corrupt motives, oppress these men and imprison them without just cause; but for his own part he had more confidence in the administrators of justice, and it must be borne in mind that these proceedings would be public, and would be reported in the newspapers, and that the persons arrested might be defended by counsel. The chief officer of police, as a responsible man, would be very careful in giving authority for an arrest, and the magistrate would have to be satisfied that the prisoner was pursuing dishonest courses. He thought, therefore, that the clause was sufficiently guarded.
  LORD CAIRNSbegged to make a suggestion that the wording of this clause should be assimilated to that of Clause 4, to which no objection had been

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  offered, so that it should stand that a person being brought before a magistrate must make it appear, to the satisfaction of the magistrate, that he is not getting his living by dishonest means.
  THE MARQUESS OF SALISBURYthought this would aggravate rather than relax the stringency of the clause. In its present shape the magistrate must have reasonable grounds for believing that a person was getting his livelihood by dishonest means, and he believed the class on whose behalf the noble and learned Lord opposite objected would prefer this to the form suggested by his noble and learned Friend (Lord Cairns). He regretted that the framers of the Bill, in providing such large and exceptional powers as those provided by the Bill, had not employed words having meanings better known to the law. He doubted whether there was any legal definition of "dishonesty," and he feared that magistrates in country districts, little accustomed to the administration of the law, might construe anything opposed to their own views of morality as "dishonest." He should prefer the word "illegal." The noble Earl (the Earl of Kimberley) had proposed as a security that the chief officer of police must authorize the apprehension of suspected persons; but suppose that suspected person had been already apprehended. Suppose that a police constable had arrested a man upon a charge that was not sustained, the intervention of the chief officer of police would thus be set aside, and the constable and the magistrate between them might send the man to prison for a year, with hard labour, because he could not prove that he was not getting his living by dishonest means. He thought that it would have been more satisfactory if the sanction of the chief officer had been required as an element in the conviction of the man.
  THE EARL OF KIMBERLEYsaid, he had no objection to the Amendment suggested by the noble and learned Lord (Lord Cairns), but he had no wish to make the clause more stringent than it was already.
  EARL GREYthought there was serious objection to punishing a man on the mere suspicion of a police-constable and magistrate.
  LORD CAIRNSurged that the 4th and 10th clauses, having the same object, should be couched in the same terms.
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  He preferred the language of the 4th clause, for it was rather anomalous to inflict punishment in case it appeared to the magistrate that there were reasonable grounds for believing that the prisoner was getting his livelihood by dishonest means, whereas it was quite consistent with Parliamentary usage to do so in case a suspected person failed to make it appear to the satisfaction of the magistrate that he was not getting his livelihood by dishonest means. He would propose, therefore, that the latter form be substituted.
  THE MARQUESS OF SALISBURYsaid, that as the clause now stood the prisoner was to prove that he was not getting "a livelihood"—not "his livelihood"—by dishonest means. How was a man to prove that he was earning no money by dishonest means? He might, indeed, repel any allegation to the contrary; but how could he rebut it? Could any Member of their Lordships' House prove that he was not getting a livelihood by dishonest means? It seemed to be hoped that magistrates would put a lax construction on the clause; but if they happened to be logicians the provision was one under which not only every man who was listening to him, but every man in the three kingdoms, might be sent to prison.
  LORD ROMILLYsuggested that a greater security would be given by substituting "magistrates" for "a magistrate," so that no magistrate singly was armed with this power.
  THE LORD CHANCELLORthought that words to the effect that the prisoner must prove that he was not getting his livelihood by dishonest means would meet the justice of the case.
  Amendment withdrawn.
  Then clause amended as follows:—
  "First. If, on his being suspected by a constable or police officer of getting his livelihood by dishonest means, he fails to make it appear to the justices or magistrate before whom he is brought that he is not getting his livelihood by dishonest means."
  THE EARL OF KIMBERLEY THE EARL OF KIMBERLEY moved to insert at end of clause—
  "When a person is convicted under this section of an offence which subjects him to the supervision of the police, the record of his conviction shall contain a statement to the effect that he is subject to the supervision of the police in the pursuance of this Act for a period of seven years commencing from the date of his conviction, or

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  words to the like purport, but the omission of any such statement shall not exempt and person from the operation of this section."
  Amendment agreed to.
  Clause 12 (Amendment of Sect. 4 of the Vagrant Act).
  LORD ROMILLY LORD ROMILLY moved to leave out, in line 27, the words ("was unlawful or that his intent,"). As the clause stood, an ordinary trespasser might have been visited with severe penalties.
  THE EARL OF KIMBERLEYsaid, he had no objection to the Amendment; but he thought his noble and learned Friend had over-rated the effect of the clause. Its object was not to add to the punishment authorized by the Vagrant Act, but to render it unnecessary to prove any overt act. At present a policeman might see a man lurking about a house, evidently intending to break into it, but he could not apprehend him unless the man did something incipient to breaking in. His noble and learned Friend proposed to limit this provision to cases of felony, and the object of the Bill being to deal with the graver class of crimes, he would not object to the Amendment.
  Amendment agreed to.
  THE EARL OF KIMIBERLEYsaid, that the words of the clause were too vague, and proposed to define such houses in the following terms:—
  "Lodging-house, beer-house, public-house, or other place where excisable liquors are sold, or place of public entertainment or public resort."
  Amendment agreed to.
  THE EARL OF SHAFTESBURY THE EARL OF SHAFTESBURY moved an addition to the clause, ("or allow the deposit of goods, having reasonable cause for believing them to be stolen").
  Amendment agreed to.
  THE EARL OF KIMBERLEY THE EARL OF KIMBERLEY moved an Amendment in page 6, line 3, to leave out from ("and if") to the end of the clause and insert—
  "And any license for the sale of any excise-able liquors or for keeping any place of public entertainment or public resort which has been granted to the occupier or keeper of any such house or place of resort as aforesaid shall be forfeited on his first conviction of an offence under this section, and on his second conviction for such an offence he shall be disqualified for a period of two years from receiving any such license; moreover, where two convictions under this section have taken place within a period of two years in respect of the same premises, whether the persons convicted were or were not the same, the justices or magistrate may, if they or he so think fit, direct that for a term not exceeding one year
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  from the date of the last of such convictions no such license as aforesaid shall be granted to any person whatever in respect of such premises; and any license granted in contravention of this section by the Excise or otherwise shall be void."
  This provision would give the magistrates control over beer-houses as well as public-houses.
  THE EARL OF SHAFTESBURYregretted that melting-houses were not to be subjected to some restrictions. Were it not for those houses stolen plate, no matter were hidden, might frequently be discovered, but whenever plate was stolen it was taken to these places, and within two or three hours after the robbery was melted down. He trusted that the Government would at no distant day feel themselves in a position to deal with these establishments.
  EARL GREYobjected to any discretion being left to the magistrates as to shutting up such houses after conviction, and thought that premises as to which, there had been two convictions should be invariably debarred from a license for a certain time. The owners of these houses sometimes possessed an influence over the magistrates, who would, therefore, be reluctant to exercise severity. There was to be no discretion in the case of the tenant, and there should be none in the case of the landlord.
  THE MARQUESS OF SALISBURYsaid, that it was introducing a new principle to make a landlord responsible for the character of his tenant, and he could not see why it should be applied exclusively to this particular kind of property. The effect would be that the value of every public-house in the kingdom would immediately fall. No landlord could be certain that his tenant would not come under the operation of this clause, and unless he had been unduly careless it would be hard to make the landlord suffer. It was unwise to attempt to prevent crime by indiscriminate severity towards persons guilty of no crime, nor even of any carelessness. As to melting-houses gold and silver could easily be melted in any good kitchen fire, so that the surveillance of those establishments would not prevent the evil referred to by the noble Earl (the Earl of Shaftesbury).
  EARL GREYcontended that if a landlord had two successive tenants who carried on business in the same objectionable manner it was not unjust to suspend the license for a year.
  THE EARL OF HARROWBYwas also of opinion that the punishment was not excessive, and he objected to an invidious discretion being left to the magistrates, who were often on friendly terms with the owners of the houses.
  THE DUKE OF CLEVELANDquite agreed with the noble Lords. He thought that two successive tenants of bad character argued carelessness on the part of the landlord, and that a discretionary power would involve conflicting decisions.
  LORD ROMILLYagreed with the noble Marquess (the Marquess of Salisbury) that it was a new principle to make the landlord answerable for the propriety and morality of his tenant. The large brewers had necessarily an enormous number of public-houses, so that they could not be excessively fastidious as to their tenants' characters, and the persons who took public-houses were of a peculiar character, for they must be persons who were not afraid of a little tumult. He thought their Lordships would act very harshly if they were to impose such a penalty upon persons presumably innocent without great consideration.
  THE EARL OF KIMBERLEYthought cases of hardship might occur if no discretion were left to the magistrates. However, as the clause stood, a landlord would for his own interests look very sharply on his tenants' conduct. He admitted that the discretionary power proposed might be somewhat invidious, but this objection applied to all discretionary powers.
  Amendment agreed to.
  THE EARL OF KIMBERLEY THE EARL OF KIMBERLEY moved to add as a separate paragraph at end of Clause 14—
  "Moreover, where proceedings are taken against any person for having in his possession stolen goods, evidence may be given that there were found in the possession of such person other goods stolen in two or more other robberies within the preceding period of twelve months, and such evidence may be taken into consideration for the purpose of proving that such person knew the goods to be stolen which formed the subject of the proceedings taken against him."
  This addendum was intended to carry into effect the suggestion that the law as to guilty knowledge in the case of receiving stolen goods should be assimilated to that in the ease of uttering base coin. A person might in one instance unintentionally utter base coin, but when he
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  did so several times guilty knowledge might reasonably be inferred, and the same argument applied to the receiving of stolen goods. Such evidence would not in itself be conclusive, but it would be put before the jury as an element in the case.
  Amendment agreed to.
  Bill to be read 3a on Thursday next; and to be printed as amended (No. 41).
  House adjourned at a quarter past Six o'clock to Thursday next, half-past Ten o'clock,