Lords Sitting of 9 March 1886

MINUTES.
PUBLIC BILLS—First Reading—Burgh Police and Health (Scotland) (28).
Second Reading—Arbitration (17); Justices' Jurisdiction (18); Law of Evidence Amendment (19).
Third Reading—Drill Grounds* (24), and passed.

BURGH POLICE AND HEALTH (SCOTLAND) BILL.
(The Earl of Elgin.)
BURGH POLICE AND HEALTH (SCOTLAND) BILL.

  BILL PRESENTED. FIRST READING.
  THE EARL OF ELGINsaid, that the Government proposed to reintroduce this Bill, and in substantially the same form in which it left their Lordships' House last year. Their Lordships might remember that this Bill was one of great detail, and had been referred to a Committee of the House, who had introduced many Amendments, and the Government thought it would be convenient to re-introduce it in the form to which it was brought by the Committee. The Government would put on the Paper any Amendments before the Committee stage that they might think necessary, and he would ask the House to give the Bill a second reading some day next week.
  Bill for regulating the police and sanitary administration of towns and populous places; and for facilitating the union of police and municipal administration in burghs in Scotland—Presented (The Earl of ELGIN); read 1a. (No. 28.)

ARBITRATION BILL.—(No. 17.)
(The Lord Bramwell.)
ARBITRATION BILL.—(No. 17.)

  SECOND READING.
  Order of the Day for the Second Reading read.
  LORD BRAMWELL, in moving that the Bill be read a second time, said, that it was in substance the same Bill which had been read a second time by their Lordships last Session. It was the object of the measure, not to alter the Law of Arbitration, but to consolidate it in the same manner as the law with regard to bills of exchange had been consolidated. For his own part he did not look upon consolidation as being of much use to the public, although to lawyers there could be no doubt of its utility. The public were usually acquainted in a general way with the law upon any subject, and if, any unusual case arose the more prudent would consult a solicitor rather than look to Consolidation Acts. At the same time, if a consolidated law were well expressed and correct, it certainly was for the good of all. Considerable trouble had been taken in preparing this Bill—which had its origin in the Chambers of Commerce—by Mr.

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  Macdonell, a gentleman well known at the Bar as the author of a book on Awards. The Bill had been also revised by the gentleman who drew up the rules of the High Court; assistance had been sought from Mr. Russell, the author of the well-known work on Awards; and he might say that he should not have presented the Bill to their Lordships unless he had taken every care to make it worthy of their acceptance. He hoped that the second reading of the Bill would be taken then; the Committee stage he did not propose to take till after Easter, by which time the Bill would have been printed and circulated.
  Moved, "That the Bill be now read 2a."—(The Lord Bramwell.)
  LORD DENMANsaid, that, having for 11 years drawn up every Reference Order in the Court of Queen's Bench at Nisi Prius, he was glad to say that no complaint was ever made of a delay or failure of justice by his mistake; and he attributed that to his always having had the counsel and their briefs together, so as to settle the terms of agreement whilst fresh in their minds, and so as to add anything which might seem to be overlooked. He was glad to see in Clause 38 that even a mistake could be corrected. He found in Clause 61 that there was a power given to the arbitrator to admit certain evidence, without oath or affirmation; but no power to punish anyone giving such evidence under any circumstances. He found in Clause 80 that an arbitrator could not sue fees, though he had a lien for them, and he could attach for non-payment; but those not liable to attachment ought to be subject to be sued. In Schedule 1 a power was given to proceed de die in diem; but it ought to be provided that an arbitrator should proceed at once, and, if unable to do so, give up, by consent of parties, to some other arbitrator. It ought also to be provided that any person refusing to consent to arbitration should bear any extra expense thereby incurred. The arbitrator, having to state a case for the Court, would generally be of the Legal Profession.
  THE LORD CHANCELLOR (Lord HERSCHELL)said, he should not oppose the second reading of the Bill, though he had not been able to give it such close attention as he could have wished. Of course, in a matter of this kind everything
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  depended upon the accuracy with which the law was stated, and the Law of Arbitration must be admitted to be one of considerable difficulty. In the interval which his noble and learned Friend had suggested before the Committee stage, all persons who took an interest in the subject could examine the measure and offer criticisms upon it. It might turn out, if there were many of such criticisms, that it would be better to refer the Bill to a Select Committee to deal with those criticisms and embody them, so far as they were just, in the provisions of the Bill; but he did not wish to speak decisively at the present time.
  Motion agreed, to; Bill read 2a accordingly.

JUSTICES' JURISDICTION BILL.
(The Lord Bramwell.)
JUSTICES' JURISDICTION BILL.

  (NO. 18.) SECOND READING.
  Order of the Day for the Second Reading read.
  LORD BRAMWELL, in moving that the Bill be read the second time, said, the Bill had twice passed their Lordships' House. Its object was to enable Courts of Quarter Sessions and Recorders to try persons charged with burglaries of a small and unimportant character. It was well known that besides the graver cases of burglary there were many of a very trivial character which could be disposed of much more quickly at the Quarter Sessions than by waiting for the Assizes. If a man broke a window and put his hand in and stole a piece of meat between 9 o'clock at night and 6 in the morning, it would be burglary. In the same manner, if a lodger broke out of a house before 6 o'clock in the morning, taking with him his fellow-lodger's clothes, it would be burglary. It was impossible, however, in an Act of Parliament to make distinctions between the gravity of offences, and the Bill therefore gave a jurisdiction to Quarter Sessions and Recorders in all cases of burglary. It would be well, however, to have a clause in the Bill reciting that the object was that small burglaries only should be tried at Sessions, leaving magistrates to exercise their discretion in the matter—a discretion which he felt sure would be properly exercised.
  Moved, "That the Bill be now read 2a."—(The Lord Bramwell.)
  THE LORD CHANCELLOR (Lord HERSCHELL)said, that he entirely sympathized with the object of his noble and learned Friend in introducing this Bill. There was no doubt that a certain number of burglaries were of such a trivial character that they could be as well tried at Sessions, where now much more serious cases were tried. It would be very undesirable, however, that the greater and more important cases of burglaries should be tried at Sessions, and not at Assizes. If a provision were inserted in the Bill directing magistrates to exercise their discretion as to the tribunal to which they would send the case for trial, having regard to its gravity, he thought they might depend on that discretion being properly exercised.
  Motion agreed to; Bill read 2a accordingly.

LAW OF EVIDENCE AMENDMENT BILL.
(The Lord Bramwell.)
LAW OF EVIDENCE AMENDMENT BILL.

  (NO. 19.) SECOND READING.
  Order of the Day for the Second Reading read.
  LORD BRAMWELL, in moving that the Bill be read the second time, said, that the object of the measure was not to compel, but to enable, any accused person and his wife, with his consent, to give evidence at any stage of the proceedings against him. This Bill had already once passed through their Lordships' House, and it had the approbation and strong support of the noble and learned Earl (the Earl of Selborne) who recently sat on the Woolsack, of the late Earl Cairns, and of the noble and learned Lord who sat below him (Lord Fitzgerald). Of all persons in the world, the man who knew best whether an accused person was guilty or not was the man who was charged with an offence; and yet under the present law that was precisely the man whose mouth was closely shut. It must be a most grievous thing to an accused person that, when he could prove his innocence, he was not allowed to give evidence. Already steps in the direction of allowing an accused person to give evidence on his own behalf had been taken to a certain limited extent, and this Bill merely proposed to go further upon that path. The principle of the measure had been recognized in the Explosives Act and in the Criminal Law Amendment Act which was passed in the last Session of Parliament.
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  The part of the Law of Evidence which he proposed to repeal was the last remnant of the very unreasonable condition of that law which existed some 50 years ago. He was surprised that a measure of this kind should be opposed by the noble Lord (Lord Denman) opposite, whose father, when Lord Chief Justice of the Queen's Bench, had been the first to carry an Act which had for its object the amendment of the Law of Evidence. A similar Bill to the present had passed through the other House of Parliament some time ago. He begged to move the second reading of the Bill.
  Moved, "That the Bill be now read 2a."—(The Lord Bramwell.)
  LORD DENMANsaid, he would quote from the Bill of Pains and Penalties, 1820 remarks by his noble Relative, then Solicitor General to Queen Caroline, as to not calling an accused witness. Mr. Denman said—
  "I was about to observe that there were certain individuals whom we have not called before you, and it is simply for this reason that our case is already proved; and we do not think it decent or consistent with the principles of justice to overload these minutes of evidence already so vast and unwieldy—we do not think it consistent with the principles of justice to admit that we are bound to go one step further. We heard the challenges and defiances, and we heard that the corespondent might be called. This is a fiction, this is one of the unparalleled circumstances of this extraordinary case. From the beginning of the world to the present moment no instance is to be found in which a party accused is called to prove the adultery. We are to be told, forsooth, because he knows the fact he ought to be called to the bar take his oath upon the subject. The answer is in a word—there is either a case against us or there is none; if there is no case there is no occasion for us to call a witness. If there is a case no man would believe the supposed adulterer. That is a circumstance upon which the nicest casuists might dispute, with some prospect of success, on either side of the question; but I think the feelings of mankind would triumph over their morals, and it would be thought more excusable even to deny on oath a circumstance so degrading as that—a circumstance of confidence so unfit to be betrayed, that perjury would be thought venial, in comparison with the exposure of the woman he might have betrayed into his toils. Will my learned Friends show a case in which such a witness has been produced? And, if not, it must be taken that the abstinence from calling such witness must be founded on too deep principles in the nature and heart of man to be repelled, even upon this occasion, to which so many principles have been made a sacrifice."—(2 Hansard, [3] 179–80.)
  He, as a magistrate, could never believe a defendant in an affiliation case on his oath.

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  He found that oaths by persons charged with debt were no longer admitted, he alluded to the extension of creeping on; but was convinced that it had gone too far, and ought to be restrained rather than extended.
  THE MASTER OF THE ROLLS (Lord ESHER)said, that it was opposed to the principles of the law of England that a man should be convicted by hostile examination out of his own mouth. He was afraid that if accused persons were to be submitted to cross-examination they would be convicted, in 99 cases out of 100, otherwise than by evidence produced by those who prosecuted them. It was quite a mistake to suppose that because an accused person could not now give evidence on oath he was thereby prevented from giving his own account of the matter. An accused person now had an opportunity of making a statement without being liable to cross-examination; and the question left to the jury then was, whether that statement, if it suggested innocence, was consistent with the evidence of guilt brought forward by the prosecution; and the jury was always directed that if it was they should acquit the prisoner; but if he were allowed to be sworn he could be cross-examined as to his character as well as in reference to the particular crime charged against him; and if he were found to be of bad character, it might, and would, be pressed upon the jury that he was a person who was extremely likely to have committed the offence of which he was accused. With every deference to his noble and learned Friend, who had had very large experience in those matters, he could not help expressing a strong dislike to the proposed innovation in our Criminal Law, the most careful of freedom yet known to the world.
  LORD MONKSWELLbegged to thank his noble and learned Friend for introducing that most important and beneficial alteration in the law. Many Judges had lately adopted the practice of allowing the prisoner to give his account of the transaction not on oath; but that seemed to him to be a very inconvenient compromise between shutting the prisoner's mouth and not permitting him to give evidence in the regular and proper manner, subject to cross-examination. It was to be presumed that every innocent man would like to give
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  an account of the transaction in his own way; and why was an innocent man, wrongly accused, to be prevented from doing that simply because a guilty man might commit perjury? It might be said that if accused persons were allowed to give evidence they might at times be convicted out of their own mouths; but if a man's examination were not compulsory and he chose to give his evidence, and it convinced everybody of his guilt, why should he not be convicted? To deprive innocent men of the opportunity of explaining their conduct in order to screen a few guilty men who might at present escape was not a reasonable mode of proceeding. If the prisoner's evidence was to be given, it ought to be given subject to the usual right of cross-examination. There was no fear of that right being abused in this country; the authority of the Judge, and the feeling of the jury, the Bar, and public opinion would repress any such abuse; and they knew that prosecutions in England were conducted with great forbearance and moderation.
  THE EARL OF MILLTOWNsaid, they were told that the Bill would not make it compulsory on the prisoner to give evidence; but if the measure became law it would be known that the prisoner could give evidence if he chose; and, therefore, if he did not do so, would not the obvious inference be drawn by every jury that he was a guilty man? Under those circumstances, the guilty man would feel that his only chance of escape was by going into the witness-box and committing perjury. But the prisoner might be a man who was innocent of the charge brought against him, though he might be well known to the police as having committed previous offences; and if it could be shown to the jury—what was now carefully kept from them—that he was a bad character, that circumstance would prejudice the case of the prisoner. If he had been previously convicted that fact was kept from the jury, that they might come to an unbiassed conclusion; but if that Bill were passed, that fact would be immediately brought forward by the counsel for the prosecution. Again, an innocent accused person might feel a burning sense of indignation which would cause him not to give his evidence with the clearness which might otherwise characterize it; and when cross-examined by

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  a practised counsel he might give such answers as tended to convict himself. That Bill would introduce a gigantic innovation in our Criminal Law, and he could not but look upon it with considerable suspicion.
  VISCOUNT CRANBROOKsaid, he felt bound to state that it was by a gradaal growth in his own mind that he had come to the conclusion that, after what had already been done in that direction, it was almost inevitable that they should go still further. The principle of that Bill had been partially introduced already in some cases. The precedent of the Explosives Act had been mentioned. It was introduced into a measure which was carried through the House last year; and if it were accepted to meet the difficulty of getting evidence in some instances they could hardly reject it in others. He dared say that if they adopted it in criminal cases a prisoner might find himself compelled to give evidence; and it would be much better that he should be put upon his oath than that he should make the kind of statement that was commonly made now. At present a prisoner often reserved his defence; and if he had an opportunity of giving evidence on oath when before the magistrate he would be under a strong inducement to do so, because if he did not he would lay himself open to the suspicion that he had no defence. Everything that had been done of recent years had been not for the sake of either one party or the other, but to bring out the truth; and he was bound to say that he thought, if the prisoner was to give evidence at all, it was much better that he should give it on oath, and subject to cross-examination. The whole case came to this—how best to determine the guilt or innocence of the man who was charged. It seemed to him that if they once introduced the system of allowing a husband or wife to give evidence, the one for or against the other, it would be a great improvement on the present state of the law to allow a prisoner to give evidence if he thought proper to do so. At the present time the Criminal Law was a sort of Game Law for giving a fair chance to a prisoner, instead of obtaining a knowledge of whether he was guilty or not.
  LORD FITZGERALDsaid, he believed that there was no noble and learned Lord present who had a larger experience
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  of the Criminal Law than he had. The result of his long experience had induced him to believe that the present state of the law inflicted a good deal of hardship, and not infrequently much injustice. In many cases, where the prisoner had been tried on a serious charge, the accused might have been able to dispose of the whole case against him if the state of the law had allowed him to go into the witness-box and be subjected to examination. Many convictions, indeed, were passed because the accused person was not allowed to give evidence. The Bill being intended to remedy this state of things, he would give it his support. If a prisoner was competent to be heard as a witness, they ought to get rid of all those hindrances which at present prevented him going into the witness-box, and which sometimes led to the accused being unjustly convicted.
  THE LORD CHANCELLOR (Lord HERSCHELL)said, he agreed with the views which had been expressed by the noble Viscount. He thought there had been a remarkable change not only in public feeling, but in professional opinion, on this question during recent years. He remembered, when he first had a seat in the House of Commons, that this question was discussed; and the general feeling, not only of the House, but of professional opinion in the House, was against the proposed alteration of the law. As time went on, however, and men weighed the arguments for and against the change, an alteration—perhaps the more important because it had been gradual, and not the result of any agitation—had passed over men's minds; and during the late Parliament many Members were found to be in favour of this measure who in former years had been opponents of it. If he thought that this measure would merely tend to the greater certainty of convicting the guilty he would not be prepared to support it, if he thought that, at the same time, it would add to the dangers of the innocent. He thought it was such a terrible thing that a man innocent of a crime should be convicted of it, that he would not be disposed to alter the law even if it were shown that an increase in the conviction of the guilty would, at the same time, result in an increased danger to the innocent. He believed, on the whole, however, that it would be

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  to the advantage of the innocent that this change would tend. He did not deny that there might be cases in which there might be an increase of danger to an innocent man on account of nervousness and other matters, but they must weigh the matter as a whole; and he was certain that the advantage to the innocent man of being able to tell his story himself, and even to have his attention directed by examination and cross-examination to the points which were telling against him—though he might not be able to see them himself—would be of the utmost advantage to the accused. He wished to add a word of practical experience in this matter. He had been professionally engaged in a trial under the Explosives Act in which this change of the law was seen in operation. It was a crucial test of the advantage or disadvantage whether prisoners should be allowed to give evidence, inasmuch as each prisoner electing to give evidence set up a different defence, and the defences were hostile to one another—that was to say, that the defence which each prisoner set up really told against his fellow-prisoner, although in favour of himself. Their Lordships would see that it was, therefore, a very trying case by which to test the advantage or disadvantage of allowing the prisoner to give evidence. He believed that every counsel who was engaged in that case—some of them prejudiced against this change of the law—confessed, at the end of the trial, that they believed distinctly it was to the advantage of the prisoners in the case cited to give evidence, and make their statement of the case. He believed the more experience was gained of this change of the law the more it would be found that the dangers which were depicted were really imaginary, while the advantages were very real.
  LORD BRAMWELLsaid, that the opinions of the noble and learned Earl (the Earl of Selborne) and the late Earl Cairns, uttered in a former debate furnished arguments in reply to those now used by the Master of the Rolls (Lord Esher). The noble and learned Lord spoke of a practice which he said was common; but he should like to ask the noble and learned Lord whether that which he said was common had ever occurred in his own practice? It did not do full justice to the prisoner to make a statement
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  if he were not subject to cross-examination. The accused ought to be able to give his evidence if he thought fit, and to be dealt with as every other witness was, giving evidence on oath under the responsibility which attached to the making of an untrue statement. Undoubtedly, that would give rise to perjury, for, unfortunately, the more evidence the more perjury; but they must look not merely to the disadvantages, but also to the advantages, which in this case preponderated. There might be a possibility of mischief resulting from the measure, from prisoners committing themselves on cross-examination; but he did not think this would be a serious evil. The prosecuting counsel did not now resort to bullying; if he did he would be cheeked by Judge and jury and public opinion. A change had occurred in the conduct of prosecutions, and the prosecuting counsel regarded himself as a public official whose duty it was to see justice done. If they wanted to give a prisoner the right of making a defence upon oath, subject to his story being impeached upon cross-examination, the only way to do it was to encounter the dangers referred to by enabling him to give his evidence as the Bill would allow him to do.
  Motion agreed to; Bill read 2a accordingly.

NATIONAL GALLERY—HOURS OF OPENING.

  ADDRESS FOR A PAPER.
  VISCOUNT HARDINGE, in rising to move—
  "That an humble Address be presented to Her Majesty for copy of a Memorandum drawn up and signed by the Director and Trustees of the National Gallery with reference to the risks and inconvenience attending the proposed opening of the Gallery on week days up to 10 p.m.,"
  said, that he should have liked to quote extracts from the Memorandum; but as he could not quote from a Memorandum which was not before their Lordships, he would briefly state that the objections of the Trustees to opening after dusk were chiefly these. No Continental Gallery was open at night. The electric light was in its infancy, with no guarantee against occasional extinction, it having been known to have failed in that respect at the reading room of the

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  British Museum. Large crowds assembling at night in the Gallery would stir up an unusual amount of dust. The breath of a large number of persons congregated together generated gases which occasioned a hurtful deposit upon the pictures, and it was quite impossible to cover all pictures with glass, the reflection from the glass being adverse to a proper study of the pictures. Then, again, they apprehended that crowds of a certain class would congregate in the Gallery from the character of the neighbourhood. Lord Palmerston always thought this a vital objection to opening at night. On wet nights all the roughs and idlers in the street would congregate, to the annoyance of those who wished to study the pictures; and with respect to the advantages which would accrue to the working man, it was very doubtful whether, after a hard day's work, working men would leave their homes to visit the Gallery. It must be borne in mind, too, that the step once taken would be irrevocable. Again, instances having occurred of wanton injury to the pictures at the National Portrait Gallery, where crowds seldom congregated, such a risk would be apprehended in a Gallery where a large number of people assembled at night and gave greater facilities for such outrages. Moreover, evil-disposed persons might take advantage of such crowds to make use of explosive material, with the prospect of untold injury being effected. The Trustees made this protest as custodians of public property of priceless value, and gave this opinion quite irrespective of the merits or demerits of the general question. He had always voted against Sunday opening, and would do so again. He begged to move that the Paper be printed, and circulated.
  THE EARL OF HARROWBYsaid, he did not wish by his silence to be held to agree with the noble Lord's arguments, which he should be prepared to meet on Friday, when the whole question came up in the ordinary course of Business.
  LORD SUDELEYsaid, that as the discussion was coming on on Friday, their Lordships would not expect him to follow the noble Viscount into the details of his speech; and he should, therefore, content himself with saying that the Government had no objection whatever to the production of the Memorandum.
  Address for—
  "Memorandum drawn up and signed by the Director and Trustees of the National Gallery with reference to the risks and inconvenience attending the proposed opening of the Gallery on week days up to 10 p.m."—(The Viscount Hardinge.)

RAILWAYS—ALLOTMENTS TO SERVANTS.

  QUESTION. OBSERVATIONS.
  THE MARQUESS OF HUNTLY, in rising to ask the Lord President of the Council, If he will apply to the principal Railway Companies to furnish Returns of the number of allotments and gardens allowed to the servants in their employment on the railways; and, if they can supply such Returns, whether he will add them to those promised from the Agricultural Department? said, he had communicated with the Great Northern Company and the London and South-Western Company, and he was informed that there would be no difficulty in supplying the information. The men, he understood, were on duty 10 hours a-day, and yet found time to cultivate these allotments.
  THE LORD PRESIDENT OF THE COUNCIL (Earl SPENCER), in reply, said, that when the noble Marquess brought this matter forward the other day he was unable to grant the Return which was then asked for, and he was afraid that he must now adopt the same course. He did not believe that the Return was at all necessary, because the Return which he had promised would include all allotments under whatever landlords the tenancies were held, not excepting those made by the Railway Companies. There would, therefore, in his opinion, be no advantage in having two special Returns. While he was speaking on this matter, he should like to announce to the House that at a conference which he had had that day with the Chairman of the Inland Revenue he found that the Government would be able to present the Return promised a short time ago before the ordinary Agricultural Returns instead of after. He thought it would, perhaps, be more than convenient to have the very long Return which he had engaged to furnish before the Agricultural Return. The Government hoped before June probably, though he could not actually bind himself to the time, to be able, to furnish,

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  independently of the ordinary Agricultural Returns and without disturbing them, the important information which he promised the other day.
  THE MARQUESS OF HUNTLYsaid, that as the railway allotments were not entered in the rate book, he did not see how they were to be included in the Government Return.
  EARL SPENCERobserved, that the noble Lord seemed to know exactly how the Return was furnished. He believed it was furnished from other sources than the rate book. The Chairman of the Inland Revenue informed him that there was no difficulty in getting the information.
  House adjourned at Six o'clock, to Thursday next, a quarter past Ten o'clock.