Lords Sitting of 21 April 1890

THE ACCIDENT TO THE STEAMSHIP CITY OF PARIS.

  QUESTION—OBSERVATIONS.
  *EARL DE LA WARR: My Lords, in putting the question which stands on the Notice Paper of the House with regard to the passenger ship City of Paris, I wish to call your Lordships' attention for a few moments to one or two circumstances connected with it. First, as to the formidable nature of the accident, it is described in a well-known publication, the Engineer, as being without parallel in the history of navigation of steamships. I will give your Lordships a few particulars showing the character of the vessel. She is, I believe, the fastest ship afloat, and of great size and power. She is stated to be 560 feet long, 63 feet beam, and 42 feet in depth. Her tonnage is about 10,500, horse-power about 18,000, and she has accommodation for 1,000 passengers. She is propelled by twin-screws, and driven by triple-expansion engines of the latest and most approved construction for obtaining the greatest speed at the least proportionate consumption of fuel. The engines make about 85 revolutions per minute. With your Lordships' permission I will now quote a few lines from the Engineer—
  "At half-past 5 on the evening of the 25th March the City of paris was about 2 6 miles from the coast of Ireland running full speed. There were in each engine-room at the time three men, one on each platform. The man on the top platform felt the tailrod of the low pressure engine vibrate and went forward. He had not gone five steps when the low pressure engine flew to pieces. In a few seconds this great engine, standing about 45 feet high, was a heap of scrap. The explosion of a great shell might work such havoc in an ironclad. It is difficult, in the face of such total destruction, to form any theory as to what gave way first. We are puzzled to imagine how it is possible that materials so excellent could have been so completely destroyed. There is not a broken bar or bolt which does not show that it has only given way as the result of the utmost violence."
  From this account it appears that the cause of the accident, according to the statements which have been given by those who have seen the vessel since she
  922
  arrived at Liverpool, as to where the mischief originated, in what part of the ship or in what portion of the machinery is not yet clear. It appears, however, that the screw shaft, upwards of 100 feet in length and about 21 inches in diameter, had broken, and that the consequence of that was it became, of course, separated from the engines, which then went at a very rapid rate, shook the vessel, and caused very great vibration throughout her entire structure. I do not, my Lords, feel that I am in a position now to go further into the details. That was not my object to-night in putting this question to Her Majesty's Government, as I hope there may be an official investigation and a Report made upon the matter. I think I have stated enough to show the great importance of having an official inquiry. I will only mention one or two more facts which your Lordships ought to know. I do not think it is necessary to go farther into the details. I have thought it desirable to refer to them as showing the great importance of an inquiry into an occurrence which I believe it will turn out has arisen, according to all the information I possess, from the fact that sufficient precautions were not taken. I do not desire in any way to prejudice the question, neither do I wish to cast blame upon any of the persons connected with the vessel. On the contrary, I feel that I ought to speak of the exemplary conduct of the crew, and, indeed, of all persons on board. There cannot be a doubt that the ship was built upon the best known principles for ensuring safety as well as for speed; but I think there is reason for asking whether all the appliances for preventing danger to passenger ships were used. It may be found upon inquiry that they were not. But on two points specially do I wish now to speak, I mean of the appliances which were used in this vessel. I would venture to ask Her Majesty's Government, in the event of no further inquiry being made, if the House can be informed whether the City of Paris was provided with a well-known safety appliance for the engines of steamships, I mean a marine engine governor, one of the chief objects of which is, in case the shaft is broken and becomes detached from the engines, to

  923
  very much lessen, if this appliance is properly constructed, if not altogether to prevent great mischief. Only a few minutes ago I received a communication from a person who is well qualified by his knowledge of these matters to give an opinion (I do not know that I am at liberty to mention his name) that the City of Paris had what is called a governor, but that it was only useful under certain circumstances, and would not have been efficient for the purpose of preventing this accident. As your Lordships are doubtless aware, I am not speaking from my own personal knowledge of these matters; but I have reason to believe that what I have stated is correct. The other question to which I wish to direct your attention for a few moments is, had the vessel sufficient sailing-power to keep her on her course when under sail alone. We have had, I think, already a practical answer to that question—that she had not sufficient sailing power. I believe that all the reports which have reached us show that the vessel drifted many miles out of her course, and that if she had fallen in with bad weather the consequences would have been most serious. I am not in a position to speak with authority on the subject; but I think it is a point deserving of the greatest attention, that no passenger steamship should be allowed to go to sea without having sufficient sailing power to keep her on her course. Those, my Lords, are two questions which, if the matter comes under inquiry by Her Majesty's Government, will, I hope, be duly considered. I would now ask Her Majesty's Government whether any inquiry will be made into this accident, which must be recognised as extremely serious, involving as it did the lives of more than 600 passengers besides the crew on board.
  *THE EARL OF LIMERICK: My Lords, I have been requested by my noble Friend Lord Balfour of Burleigh, who is detained on the Railway Rates Inquiry in Ireland, to answer the noble Earl's question. An official investigation has been ordered by the Board of Trade into the case of the City of Paris, and the Report will be published in due course. If the noble Earl then desires to move that the Report should be laid on the Table of the House there will be no objection.

CRIMINAL SENTENCES.
LORD HERSCHELL: My Lords, I feel that I need make no apology for calling your attention to the subject mentioned in the notice which I have given; for I am quite sure there cannot be two opinions about its importance, and I think I shall show that it would be difficult to entertain doubt as to its urgency. It is no new thing to hear complaints of the inequality of the sentences pronounced upon criminals, and the complaint may be said to be an old-standing one. But hitherto that inequality has arisen, for the most part at all events, merely from the idiosyncracies of the particular tribunals which have been administering the Criminal Law in their estimates in particular cases of the punishment which ought to be awarded. The matter, however, has now assumed a new phase, inasmuch as vital differences of opinion as to the principles which should regulate and measure the sentences to be pronounced have not only presented themselves, but have been avowed and acted upon. The view taken by some is that the sentences should be meted out with a regard only to the gravity of the offence to be dealt with; that there should be no reference to the previous career or earlier convictions of the prisoner then to be sentenced; that to punish a trivial or small offence with lengthened imprisonment or penal servitude by reason of the previous career of the offender is wholly unjustifiable; and that the length of sentence ought solely and exclusively to be regulated by a regard to the circumstances of the particular act for which sentence was then to be pronounced. One consequence, at least, of this difference of opinion has been that we have seen Judges at successive Assizes, in their Charges to the Grand Jury, criticising and attacking the principles which had been acted upon by their predecessors, and giving their own views on the subject—a spectacle which certainly is not edifying. In saying this I do not intend to cast the slightest blame upon these learned Judges; because where such differences of opinion exist, and where expression has been given to one view of the case, it is inevitable that those who entertain a different opinion, and are going to act upon it, should make their differ-

925
ence of opinion clear. At the same time, this difference of opinion has, of course, taken a practical shape, and we have seen sentences vastly differing in their severity inflicted upon prisoners committed for precisely the same offences, under circumstances of the same gravity, and where the previous record of convictions was almost precisely the same. One prisoner might get seven years' penal servitude, and at the succeeding Assizes another might get two months' imprisonment, so that the prisoner who had committed the later offence and received the later sentence had served his time, and got back to his home or to his old associates, while the other prisoner, committed under precisely the same circumstances, had still several years to remain in penal confinement. I do not think it can be disputed that inequalities of this description are in themselves an evil. They tend to create and foster a belief that the law in its administration is unjust, and that it proceeds upon no settled principle, but upon the mere caprice of those who administer it. I think I shall have the concurrence of your Lordships in this at all events: that whatever discretion must be left to our tribunals in the application of our system of punishment, the principles which should guide those who administer the law and apply that system ought to be settled by the State, and ought not to be left to the individual idea or emotion of the particular tribunal which has to pronounce the sentence. The differences of view to which I have alluded are supported by arguments of cogency and weight; and I venture to think that the time has come when the State should intervene, and should weigh well these opposing views and arguments, when some pronouncement should be made upon them by authority, and when the system should be settled, and its application only left to those who have to administer the law. I will state shortly what are the opposing views, and the leading arguments which have been from time to time urged in support of them. There are those who advocate short sentences only for small offences, contending that the punishment should be distinctly proportionate to the offence, and should have regard to that alone, and not to the career of the offender. They urge that to pass
926
a sentence of penal servitude or a long term of imprisonment for a trifling offence is cruel to the person sentenced, and shocks the sense and sentiment of the community by the disproportion between the punishment and the offence. There are, indeed, some who urge that no regard ought to be had to previous convictions in weighing the punishment to be inflicted on an offender, inasmuch as he has already suffered the punishment for his offence, and has under his previous conviction paid the penalty to the State: that he has wiped out the offence, and that to keep it in view in sentencing him for a new offence is, in reality, punishing him for it a second time. It is also said that these short sentences are as effective for their purpose, and have been proved to be so, as long sentences of penal servitude; that light sentences are not followed by an increase of the crime that has to be punished; and, that this being so, it is more merciful to the prisoner to inflict short terms of imprisonment only, while, at the same time, it is less burdensome to the State, inasmuch as the shorter the term of imprisonment the less will be the cost to the State for the maintenance of the prisoner, and the smaller the consequent public burden. There is another argument also urged, to the effect that if you pass long sentences for small offences against property—such, for instance, as trifling larcenies—it renders it impossible for you to mark, as you ought to mark, the distinction between graver and lighter offences, and disables you from measuring the difference between offences against person and against property. If for those trifling thefts you pass these long sentences, you seem to regard less seriously cases in which limbs are rendered useless and health injured than you regard the loss of a few pounds, or of a watch, or an article of clothing. I own that to me this last consideration appears to be of no little weight. I have thus stated what I understand to be the leading views of those who advocate that punishment should be thus meted out in short sentences, and if not with no regard, at all events with not any great regard, to the previous career of the prisoner. I do not propose to state my own views upon this subject generally on the present occasion, for

927
this reason—that I am urging upon Her Majesty's Government the necessity for an inquiry into this matter, and I think that it would be inexpedient for me to commit myself to any views. Indeed, I frankly confess that on some of the points to which I shall call attention I myself feel as much as any of your Lordships the necessity of patient and careful inquiry into the subject. But on one point I must express my opinion. It is not a point which can be elucidated by further inquiry, and it is this: I cannot at all subscribe to the doctrine that the State is not justified in having regard to the previous career, the number of convictions of the prisoner, and the want of effect from the punishment already undergone, in determining the sentence to be passed in a particular case. I do not assent to the view that a prisoner, by undergoing his sentence, wipes out all his previous record, and that you are punishing him a second time if, when he is brought before you again, you look at his previous career to aid you in considering whether it will be sufficient to give him a short sentence. I hold strongly to the view that early sentences to the extent of the third or fourth, or even more—I am not at all fixing a limit at the moment—should be as light as possible, consistently with the gravity of the offence committed, because there are many cases where offences committed in early life have been afterwards redeemed by an entirely different career. But if yon are not to look at the previous record of the prisoner to see whether he has been often convicted before or not, it seems to me impossible to deal with the matter in that fashion. All that I am expressing my opinion upon is this: that the State is perfectly justified in ascertaining whether a prisoner had been previously convicted, how he had been acting before and what punishments had been inflicted upon him, in order that the punishment inflicted might be sufficiently deterrent. That leaves it entirely an open question how far it is expedient to have regard to previous convictions for the purpose of increasing the punishment to be awarded. I think, too, that the present tendency in some quarters to inflict lighter sentences, and to consider it unwise to inflict sentences of penal servitude for trivial offences, is a reaction in some degree, and I think a wholesome
928
reaction, from the over-severity which has been shown in other quarters in the extent to which long terms of penal servitude have often followed upon even trifling and minor offences. I could cite numberless instances of this, but I will give one or two only as illustrative of what often takes place. Take this case for example. A prisoner, after one brief committal to gaol before his trial for the offence of stealing a cup, was sentenced to five years' penal servitude and seven years' police supervision. Another prisoner, who, it was true, had been previously convicted many times and committed for small terms of imprisonment for 16 minor offences, was sentenced at a Quarter Sessions to eight years' penal servitude and seven years' police supervision for stealing some watercresses and shell-fish.
LORD ESHER: Was that a sentence by Judges?
LORD HERSCHELL: I think it was at Quarter Sessions. I do not mean to cast any slur at all upon the administration of justice at Quarter Sessions. I believe that at the vast majority of Quarter Sessions in the country justice is extremely well-administered; but I think it right to say that those who have paid attention to this matter have directed my notice to the fact that it is rather at Quarter Sessions than at Assizes that the habit of passing very considerable terms of penal servitude after previous conviction is followed. I believe that this has, to some extent, arisen from the fact—which, however, would not explain the second sentence of eight years, though it might explain the other—that no sentence of less than five years' penal servitude can be passed, and that consequently between a sentence of 18 mouths' imprisonment and one of five years' penal servitude there is no middle course. I am aware that a sentence of two years' imprisonment may be given; but the regulations and discipline of the gaols are such that it is desirable to avoid that sentence, if possible, and therefore it is scarcely ever passed. Therefore, practically, if the 18 months' term required to be exceeded there was no alternative but to inflict the five years penal servitude. I think that was a mistake, and that it has been unfortunate in its operation, and I rejoice to hear that the Government contemplates reduc-

929
ing the term of five years to three years, so that there may be a more gradual extension of punishment in cases in which it is necessary to go beyond the term of 18 months' imprisonment. Now I will state the opposition to these views of light sentences to which I have called your Lordships' attention. Let me say, at the outset, that there has been in some quarters the impression that those who advocate light sentences are actuated rather by a regard for the prisoner, by feelings of compassion, and by the wish that a prisoner shall be sentenced to no more punishment than that to which it is essential he should be condemned: whilst those who are in favour of longer terms of imprisonment, or of penal servitude, are actuated less by regard for the prisoner and rather by consideration for the interests of the community and the necessity of protecting property. The principal advocates of those views to which I am going to call your Lordships' attention are bodies to whom no such suggestion will apply. I am quite sure when I tell your Lordships who they are you will see that if they differ from the view, which I will call that of leniency, it is with no lesser desire than can be entertained by the advocates of that view for the advantage and reformation of the prisoner. Chief among those who advocate views opposed to those I have mentioned are the Howard Society and the Discharged Prisoners' Aid Society. Without committing myself to all the views advocated by the Howard Society, I am prepared to admit—and I am sure your Lordships will admit —that it has done useful work in gathering information with regard to the treatment of offenders and the mode in which crime should be dealt with; that it has made many recommendations for improving the law, and that it has shown a tender regard for the interests of prisoners. As to the Discharged Prisoners' Aid Society, your Lordships will recognise the good work it also has done, and that by its means many a man has been saved from relapsing into crime, and given a chance of retrieving his character and pursuing an honest career. I mention this because I think it would be a great mistake if it were supposed that this difference of opinion, as to what I will term leniency or severity, depends upon any difference of feeling or sympathy towards the unfortunate
930
Prisoners—for many of them are unfortunate—who come within the reach of the Criminal Law. Now, these two societies, although they differ entirely from those who advocate the view to which I have called your Lordships' attention, that no regard should be paid to the previous career of the prisoner, are not altogether at one as to the course which they think should be pursued. Put, my Lords, I may say, in the first place, that the view that those lighter punishments are not followed by any increase in the number of offenders is one that has not met with universal acceptance, and it is obvious that, in order to arrive at any conclusion on the point, a survey of considerable breadth would be necessary. And for this reason: It may be that in a particular borough or county where the experiment has been tried there has been no increase in the number of prisoners coming up for trial, and yet there may be a relative increase, because if crime diminished elsewhere while it was stationary there, it is clear that, compared with other parts of the country, there would relatively be an increase. Upon that point I express no opinion, but I think it is a matter deserving of investigation. The other view urged is, that repeated short sentences are useless in deterring an offender, that they bring the law into contempt, and operate really as an encouragement to crime. If a person, upon being convicted, suffers a short sentence, and then goes out into the world again free to commit another crime, with the certainty that another short sentence will result upon conviction for it, so far from acting as a deterrent it acts as a positive encouragement. More than that, it is urged that it tends to lead others besides the criminal himself to think that crime is a matter of comparatively small account, because the punishment is only slight, and hence those who have watched and studied the question assert that the fears of those who might otherwise abstain from crime are very much removed by finding that it will only meet with penal results that will very soon pass over. In fact, they seem to be so little terrible that this sort of language is heard among criminals:—
"You need not be afraid of the beak, he will only give you a few days or a few weeks; I

931
have been lots of times in quod and I don't care a fig for it; you will soon come out again and be as jolly as ever; who cares for the beak?"
My Lords, you will quite understand from language of that kind the result of treating repeated offences with only light sentences. That there are many cases in which light sentences produce little or no effect upon the offender is certain, and I will give two or three illustrations from cases taken at hap-hazard from the records of a single Quarter Sessions, but I suppose they might be paralleled in many other instances. A prisoner was sentenced in June, 1837, to six months' imprisonment. (Your Lordships will understand that I am not giving the convictions at Petty Sessions at all. In many cases there were, besides those which I am going to read, a number of convictions at Petty Sessions.) The same prisoner, in October, 1888, was convicted and sentenced to two months' imprisonment; in March, 1889, he was convicted of an equally serious offence and sentenced to only one month is imprisonment. Another case was this: On the 13th of December, 1887, a man was sent to prison for four months for housebreaking; on the 3rd of May, 1888, very soon after he came out of gaol, he was again convicted of housebreaking, and sentenced to five months' imprisonment; and on the 17th of March, 1889, the same prisoner, only two or three months after he came oat of prison, was a third time convicted of a similar offence, and he was then sentenced to two months' imprisonment. I am now going to cite an extreme case. I do not know whether there may not be other cases like it, but at the particular Quarter Sessions this was the measure of the punishment that was awarded. A woman was sentenced in January, 1884, to six months' imprisonment; in April, 1885, to eight months; in July, 1886, to 14 days; in August, 1886, to two months; in December, 1886, to three months; in April, 1887, to three months; in August, 1887, to two months; in June, 1888, to one month; in July, 1888, to two months; in October, 1888, to three months; and for an offence committed on February 27, 1889, she was sentenced in March to four months' imprisonment. It is perfectly obvious that these punishments had not
932
had the slightest deterrent effect upon this particular prisoner, and such cases are naturally pointed to in order to show that repeated short sentences have no deterrent effect whatever. In answer to these cases it may be said that other cases might doubtless be adduced of persons who have been sentenced to penal servitude and who have, shortly after their release, relapsed into crime, and that, no doubt, is true. The argument, then, is this. It is said that these short sentences are not merciful to the prisoners, because it is hopeless and impossible, in so limited a period, to produce reformation, or to teach habits of industry to inveterate offenders, and that if prisoners were kept longer in detention such reformation would be, at least, rendered more possible. The recommendations made by the authorities to which I have called attention differ somewhat The Howard Society advocate a steady, though a small and gradual, increase of punishment for each offence. They are not in favour of any sudden jump, or of very lengthened terms of punishment, for small offences, but they add this: that it should be made certain, on conviction for an offence, whatever the punishment awarded for that offence might be, that if the offence were repeated, the punishment would be somewhat greater; and that if there were only that certainty of increase the punishment would be likely to be more deterrent than when, for aught the prisoner knows, and judging from his past experience, the punishment may be lighter instead of heavier. I believe that is a matter which your Lordships will think worthy of careful consideration. They also suggest that, in some cases, where a prisoner needs more lengthened supervision, police supervision should be substituted for penal servitude. Your Lordships will be aware that police supervision often accompanies sentences of penal servitude; but these authorities suggest that it should accompany considerably lighter sentences, and that the necessity might thus be done away with of punishing with lengthened detention cases where otherwise that would be unavoidable. On the other hand, some Judicial authorities have a strong objection to police supervision; they will not inflict it, and question very much its expediency and advantage. There is one suggestion made by the Howard Society,

933
in connection with this subject, which I think deserving of consideration—namely, whether it might not be possible to introduce police supervision only if a prisoner failed to report himself to some Authority, such as the Discharged Prisoners' Aid Society, for example; that is to say, that if the prisoner reported himself to that society police supervision might be dispensed with, and that, in that way, you might obtain all the advantage of police supervision without the disadvantages which lead to such strong objection being taken to it. The Discharged Prisoners' Aid Society also deprecate these repeated short sentences, and they deprecate them, coo, in the interest of the prisoners. Their view is that if a certain number of convictions and short sentences prove insufficient you should enlarge those sentences after a certain limit, whether you fix that limit at two, or three, or four convictions, and that then there should always be a certainty, save in exceptional cases, of a long term of imprisonment. Their experience shows that the chance of the reformation of offenders, after a term of penal servitude, is considerably greater than it is in the case of prisoners who are sentenced to short periods of imprisonment. The Discharged Prisoners' Aid Society have obtained information from some other societies upon this subject. I wish to avoid troubling your Lordships with details, but I may say that the balance of opinion amongst those societies who have been for many years interested in putting prisoners in the way of getting an honest livelihood, is strongly against repeated short sentences. They say that the results of such committals have not been satisfactory, while in the other cases they have been quite the reverse. Indeed, many of the societies have given up all attempts to assist offenders who have been imprisoned a number of times for short periods, because their experience has proved to them that it is hopeless to attempt to do so, and that they are only throwing their money away in attempting it. Those who were applied to had rendered assistance in 265 cases, and out of those 66 had been convicted again. After they had had assistance rendered to them they had returned to their evil courses, and had again been sent to prison; and there were only 95 who
934
could in any way be pronounced satisfactory. In the case of one of those societies, during a particular year, 32 prisoners were assisted who had been convicted more than three times, and sentenced to short terms of imprisonment. Of those only 13 could be persuaded to go to work at all, and the results generally were most unsatisfactory; whereas, during the same time eight prisoners wore assisted who had suffered penal servitude, and out of those seven went to work and turned out satisfactorily, and only one failed to report himself. My Lords, I venture to think that I have now, at all events, furnished materials sufficient to show that there is ground for inquiry into this matter, and that public advantage would be likely to result from that inquiry, and from a definite pronouncement by authority of the principles which should regulate the infliction of punishment in criminal cases. It has been suggested that advantage would be gained by the creation of a tribunal for the revision of sentences, in order to diminish the possibility of such inequalities as now exist. No doubt there are great difficulties in connection with the creation of a Court of Review. One difficulty which meets us at the outset, is the question whether such a tribunal is to be empowered to increase sentences, or is only to have power to decrease them. I think there would be a strong feeling against giving power to such a tribunal to increase sentences after they had been allotted by the Judges who had tried the prisoners. I am not at all sure that there might not be a considerable amount of opposition to the idea of any other tribunal increasing the severity of the sentences. The only other way of providing for a revision of sentences without doing that, would be to provide that no sentence should be pronounced at the trial, but should be submitted first to the revising tribunal. That course, I think, would be open to considerable objection. There are great advantages in sentences being pronounced immediately after conviction, and I do not think, therefore, that such a suggestion as that would generally commend itself. The only other course would seem to be to create such a tribunal, and to give it power to diminish but not to increase sentences. I am not sure that the objections to that would be insuper-

935
able. I will not pronounce any final opinion upon that. I am not sure, however, that, even if the power of such a Body were limited to diminishing undue severity, it would not be advantageous, although there might be cases of undue leniency where the sentences could not be increased. I pass now to a class of cases of an entirely different description, but where also, I think, it must be obvious that our present system has proved to be utterly unsatisfactory and hopelessly useless. I refer to the repeated short sentences for drunkenness, or for trivial offences connected with drunkenness, particularly in connection with drunken women. On a particular day, and this is only a sample of what might have been found on other days, in one of our prisons in the country, there were 33 women who had been convicted of drunkenness and petty offences 40 times and over; one had been convicted 60 times, one 98 times, and one 102 times. I am informed, moreover, that these figures do not really represent the number of times they had been convicted, as many of them change their names, so that their records cannot be completely traced and sometimes they pay fines and do not go into prison at all. In one case, and this is given me by ! the chaplain of one of our gaols, one woman had been subjected to imprisonment 404 times, and, in addition to that, her husband had paid fines for her drunkenness 200 times, so that she must have been brought up no fewer than 600 times before the Magistrates. Another woman had scarcely ever been out of prison since she was 15, and she is now 63 years old; and almost every woman discharged on Monday, is re-imprisoned the same day or the next, is released on Thursday or Friday, and is in again on Saturday. Daily, there are cases of women returning to prison after less than a week's liberty. Here is an instance of how one woman spent her year, all the sentences being for short terms of imprisonment:—On January 23, 21 days; on April 8, four days; on April 14, 14 days; on May 2, 30 days; on June 2, 30 days; on July 5, 60 days; on September 30, seven days; on October 11, seven days; on October 25, seven days; on November 15, seven days; on November 23, 30 days; and on December 22, five days. I also have the
936
record of a woman who has undergone the following sentences. I do not trouble your Lordships with all of them, but only give the successive short terms of imprisonment:—In 1864, six months; in 1865, three months; in 1866, five months; in 1867, three months; in 1868, two months; in 1869, one month; in 1870, three months; in 1871, six months; in 1872, six months; in 1873, 12 months; in 1874, five months; and in 1875, two months. In the face of these examples it must be obvious that the present system of dealing with such cases has wholly failed. Repeated convictions for short terms have not done good, but considerable harm. One can easily understand that a woman who has been sentenced to a few days' imprisonment in that way returns to the world with her craving for drink stronger than ever, and her immediate relapse is certain. Surely it is worth consideration whether it would not be possible to make a change. Why should not some different system be attempted? There are homes for inebriates, where those voluntarily submitting to discipline have been cured, and where not a few apparently hopeless drunkards have been turned into sober and useful members of society. May it not be worth trying whether these persons cannot be dealt with in some other fashion than at present? Of course, for such offences as those to which I have referred in connection with drunkenness 12 months' imprisonment could not be inflicted. I am not saying that would be desirable; but it might be possible to adopt a system of detention for a certain period in some home, if it were frankly recognised that the object was not punishment, but reformation. I do not think that there would be any public sentiment against submitting hopelessly incorrigible women to such a period of detention, for the purpose of keeping them from their drunken habits and teaching them to lead a better life. I am not urging this dogmatically, in any way, but only suggesting that it might be well worth considering whether some other system could not be adopted, seeing that the present method of dealing with such offenders has proved utterly ineffective. I have touched on certain points in connection with our system of punishment which need inquiry and investigation, especially on

937
those which have led to the development of different opinions. I do not, however, wish to limit the inquiry to those points alone. Our present system of punishment has been in operation unaltered for a very long time, and, under those circumstances, is very apt to run in a particular groove. There has been sufficient experience to afford justification, to use a commercial expression, for "taking stock" of the system, and for inquiring whether it may not be too rigid in one direction, and too flexible or wanting in certainty in another direction. I have ventured, therefore, to draw your Lordships' attention to these points, and I think I have shown a groundwork, at all events, for the question which I am putting to Her Majesty's Government, whether an inquiry may not very well be instituted, which shall overhaul our present system of punishments, so that we may see whether it cannot be made more effective for the purpose for which it is designed.
THE LORD CHANCELLOR: My Lords, probably no one will doubt the importance and interest attaching to the subject which my noble and learned friend has brought forward. At the same time it is necessary that your Lordships should be very careful in accepting such a phrase as "a case for inquiry." In one sense every subject of debate is a case for inquiry and consideration by your Lordships, but not necessarily one to be dealt with by a Committee of Inquiry or by a Royal Commission. The facts of the case, as far as they are susceptible of being ascertained, are already within the knowledge of the country, but I will frankly admit at once that the matter is one which demands consideration by the persons responsible for legislation, namely, Her Majesty's Government. It is possible, however, to exaggerate the supposed differences between sentences by statements that such and such different punishments have been awarded for the same offence. Each of these words requires exposition. The same offence might be the same offence in point of law, but a very different offence indeed in point of moral culpability.
LORD HERSCHULL: I did not say "the same offences." I said "offences of the same gravity, and committed under the same circumstances."
THE LORD CHANCELLOR: If my noble and learned Friend means to ask for an examination of all sentences with reference to the circumstances and gravity of the offences, it is obvious that such an inquiry would be absolutely impossible, because it would be endless. It would not exhibit any principle, but merely the facts upon which individual Judges have passed sentences. On one or two of the subjects under discussion the Legislature has already pronounced authoritative judgment. My noble and learned Friend has brought before your Lordships the opinion entertained by some persons that previous convictions ought not to be taken into consideration in sentencing prisoners. But the taking into consideration of previous convictions in delivering sentence does not depend upon the views of individual Judges, because the Legislature has rendered an offender liable to graver punishment for the commission of an offence after a, previous conviction. The offender becomes liable to graver punishment by reason of that circumstance alone. It is, therefore, clear that the State has already pronounced its judgment upon that principle. If it were necessary that that principle should be defended, my noble and learned Friend has himself very candidly pointed out why it is the right of the State to take into consideration the previous career of the criminal to be punished. But, my Lords, it is impossible not to know that the variety of views which have prevailed from time to time, among Judges is only the reflex of views which have prevailed in the State from time to time. I will take the instance given by my noble and learned Friend in regard to the periods of penal servitude. There was a notable case in which certain bankers had been sentenced to 14 years' transportation for the misapplication of certain securities. The history of the legislation on this subject is very extraordinary, and reflects a considerable light upon the change of views, not only of the Judges, but of the Legislature itself. That offence was at that time subject, as an extreme penalty, to 14 years' transportation: which three learned Judges thought ought to be inflicted in that case. Two years afterwards, the offence was dealt with by the Legislature and subjected only to five years' penal servitude. Then

939
came an Act of Parliament which turned every sentence of five years' penal servitude into seven years. During that time there had been the power of inflicting a sentence of three years' penal servitude, but the Legislature deliberately took that away, making the term necessary to be inflicted five years. When the Legislature has itself exhibited that oscillation of view it is idle to suppose that among those who have to administer punishment there will not be different views held as to the principles on which punishment should be inflicted for the particular offences committed by persons who are brought before those who have to administer the law; and, unless you are to refer the sentences to some other tribunal, I do not know how you are to avoid the necessary result that different minds will take different views. Within the recollection of some of your Lordships the crimes of forgery and murder were punished with the same penalty; and it was thought very undesirable to relax the laws which inflicted the same punishment as for murder for the offence of forgery. Now, my Lords, the objections to any standard which could be fixed by the Legislature are too obvious to require statement. The Legislature cannot foresee the circumstances of each particular case, or see the consequences of every Act. There may be temptations such as would be very likely to influence persons of which the Legislature ought to have it in their contemplation that human nature might yield to. I suppose there are many things comprehended within the Criminal Law as to which it would be possible to say that while on the one hand you must enforce, so, on the other hand, you must not be so insensible to human frailty that you will inflict the extreme penalty allowed. Then what is the remedy? If you are to leave it to the Judge, the condition of things which my noble and learned Friend has described necessarily arises. The idio syncracies of particular minds necessarily fasten upon some particular points. Others, again, will take a totally different view, and the views taken of the punishment to be awarded for particular offences, committed under varying conditions, must necessarily differ also. I must say that I do not take the view of my noble and learned Friend as to the impossibility and undesirability of in-
940
creasing a sentence on appeal. When once the right to appeal for rectification of judgment is given, the tribunal appealed to must pronounce the judgment which ought originally to have been pronounced. I do not agree, therefore, with my noble and learned Friend in what he said with regard to the alteration of sentences where they have been either too lenient or too severe. Every one, I am sure, has, at times, been struck with the inadequacy of sentences, and I can only say that I receive many complaints of punishments which are too inadequate, as well as of punishments which are too severe. I do not think there would be such feeling as is supposed against correcting, on proper principles, such sentences. Only last week there was brought before me the case of a child of 11 years of age who had been subjected to the grossest cruelty and maltreatment by her father, and, in that case, the Magistrate thought it consistent with his duty to sentence the man to only one month's imprisonment. No doubt this sentence would to some persons seem almost a licence to the father to pursue in the future his course of abominable cruelty. I believe, however, that in that case, as in many others, the outside world does not always understand the principles upon which the Magistrates proceed. No doubt the Magistrate felt bound to consider that the father was the support of the household, and that to sentence him to a longer term of imprisonment would be to sentence the wife and children to the workhouse. That would be just the sort of case in which a Court of Appeal could say whether or not the proper punishment had been inflicted under the particular circumstances, which cannot easily be foreseen beforehand or discovered afterwards except by actual evidence. Now, the condition of things is apparently this: There are two sections of people in the community who take different views as to the principle upon which punishment should be inflicted in cases of repeated offences. Some hold that punishment should be inflicted upon the principle of trying to reform the criminal; others that the injurious effect of the offence upon the State should alone be regarded, and that the offence should, consequently, be dealt with according to its gravity.

941
Now, these different views constitute, perhaps, a very fair subject for debate and for consideration by those who are responsible for inaugurating legislation upon the subject. I do not mean at all to say that the circumstances to which my noble and learned Friend has called attention are not such circumstances as may well make it appropriate and fit to consider and discuss that question. But that is not a matter which involves an inquiry in the sense which my noble and learned Friend suggests, either by a Royal Commission or any other tribunal of the kind. My Lords, the conclusion to which I have come, and I may speak on behalf of Her Majesty's Government, is that this is a subject which they are not under the necessity of inquiring into in that way, and, though it is a fit subject for them to consider, that there is no reason why they should seek further than they have already got materials for its consideration. In that sense my noble and learned Friend has undoubtedly made a case for inquiry by those who are charged with the responsibility of Government; but I certainly could not recommend that any inquiry, either of a character so vague as to necessarily remit the matter to your Lordships again for discussion, or so minute in regard to the circumstances under which sentences have been passed as to render it impossible that such an inquiry should ever come to an end, should take place. The circumstances connected with this subject are familiar to us all. I congratulate my noble and learned Friend upon the candour which he has exhibited in discussing this question. I am aware that it is sometimes thought that particular classes of Judges are more disposed than others to pass severe sentences. I believe that is an error, and that there is no such distinction between classes of judicial functionaries. There is a larger number of Chairmen of Quarter Sessions than of Magistrates, and that may be one reason why there are greater differences of opinion among them; but that there is any reason to suppose that Judges are disposed to pass too severe or too lenient sentences I do not believe. I regret that my noble and learned Friend should have apparently availed himself of the assistance of those who think it incumbent upon them to attack the Magistrates
942
and Chairmen of Quarter Sessions. However, the subject to which he has drawn attention is important, and the Government will feel bound to consider it, with the desire of finding some mode of fixing a standard or principle of inflicting punishment upon offenders. But for that purpose they already have materials at their command, and therefore they cannot assent to the appointment of a Royal Commission.
*LORD COLERIDGE: My Lords, holding the office which I do, I think it is fit I should say a few words on the subject which my noble and learned Friend has brought before your Lordships' House to-night, and in the first place that our thanks are due to him for the manner in which he has brought it forward. As my noble and learned Friend on the Woolsack has said—and it is hard for me to dispute the wisdom of his conclusion, although he has said he does not see how he can accede to the prayer of the noble and learned Lord Herschell—none of us I think who have listened to this Debate will say that it is a purposeless Debate. And it certainly will not be without result, because the persons who are interested in and responsible for the administration of the Criminal Law cannot but be impressed by the fact that in your Lordships' House this has been thought a fit subject for grave consideration, and that the arguments of the advocates for two lines of punishment, so to speak, should have been presented to your Lordships for an almost judicial determination upon them. If I should venture to question anything in the speeches of my noble Friends it is the use of the term "principle," because I doubt very much whether those who administer the Criminal Law are conscious, at least to themselves, that they are administering it according to any elaborate or philosophical principle in every sentence which they pronounce. Speaking for myself, having thought a good deal about the matter and having a great many instances, present to my mind, I may say that when I pronounce sentence I do my best to pronounce it according to my judgment as the case before me appears to demand, and that no particular theory of one kind or another influences me, or is present to my mind, when I am inflicting punishment, I am compelled to inflict it

943
for the particular offence for which the prisoner is being tried before me, But I must confess—as no man who has ever had to deal with this subject can deny—that there are different guiding thoughts present in the minds of persons who approach these matters. On the one hand, there are persons who, as I should be disposed to think, are inclined to magnify the importance of offences against property; and, on the other hand, there are men who may be inclined to think too little of offences against property and to magnify overmuch offences against the person and against life. That may well be when we consider that there are in the Courts over which I have the honour to preside 15 Judges, and as we are all, I trust, men of independent minds, it cannot be expected that in administering a complicated criminal system we should all proceed on exactly the same lines, and that a crime brought before one of my judicial brethren for adjudication and punishment will be regarded by that one Judge exactly as it would be regarded by my 14 colleagues. But I very much doubt whether anything like the principle which Lord Herschell has put forward is really advocated by any member of the Bench. Speaking for myself, I am afraid that I am perhaps an offender in disregarding repeated convictions if the offences have been what I should call peccadilloes rather than serious crimes. That is a tendency of my mind; yet I should never dream for one moment of acting upon any such fallacy as that prior convictions of the criminal are not to be taken into account in passing sentence upon him for even the most trivial matter imaginable. What always feel is that one most important duty of a Judge is to take care that a sentence does not enlist the sympathy of the public on the side of the criminal, and that is always the result, at least there is always that tendency, where the sentence may fairly and reasonably be considered excessive. Sympathy is always in that case enlisted on the wrong side. What I have always felt is, though your Lordships are as competent to form a judgment upon it as myself, that if a Judge punishes with great severity even the twentieth peccadillo, what is he to do in the case of a really grave offence? I have known a woman
944
to be sent to penal servitude for 15 years for stealing a shovel. It may be quite true that she had previously stolen 16 or 17 other shovels, and it may appear to some that that would justify the 15 years' penal servitude; but I do not think so, and nothing will ever persuade me that I ought to punish an offender such as that woman as I ought to punish a person who has inflicted gross and detestable cruelty on man, woman, or child. In cases like this the punishment and the offence are not correlative, and whenever there is an excess of punishment, the minds of intelligent men are set against the law instead of being enlisted on its side and against the criminal. If you inflict severe sentences for such offences the weapon breaks in your hand. There is only one other matter upon which I should like to say a few words. I rejoice to hear from my noble and learned Friend on the Woolsack that the question of establishing a Court of Criminal Appeal has, at all events, been considered by the Government; for I have long thought that the establishment of a Court of that kind would have a most powerful effect in promoting a greater uniformity of sentences. A steady course of decisions by a Court of Criminal Appeal, specially authorised to keep the administration of the law straight and uniform in these matters, and disregarding as it would all emotional feelings which tend to warp the judgment, would certainly, I believe, have that effect; for those who have the power of inflicting sentences would know that they were subject to revision. And, my Lords, I do not for a moment hesitate to accede frankly and entirely to the term which my noble and learned Friend on the Woolsack applied to such a tribunal, that it should be a tribunal at large. If there is to be a Court of Appeal it must have the power not only of reducing punishment, but of increasing inadequate sentences. I have no sentimental desire simply to diminish punishment; I desire to make it useful and in accordance with the righteous sentiment of the community, and I think, therefore, that a Court of Appeal should be left at liberty to diminish or increase sentences. There is one point upon which I think with regard to the difference in sentences, that perhaps there is less difference

945
among Judges than appears at first sight. I am thinking now of two oases, accounts of which your Lordships may have seen in the papers, which seemed very much the same—one case where a man did kill his wife, and another case in which a man had attempted to do so. The two might look at first sight very much the same. One was a case of which I had personal cognisance, and though it was a most miserable case, in which a young man devotedly attached to his wife, had undoubtedly killed her, it was a case about as little removed from an accident as could make it a crime, and the man was very properly convicted and sentenced to a very slight punishment. In the other case, which had not ended in death, there had been a most deliberate and brutal attempt to murder an unfortunate woman, and it met with a, very heavy punishment. Both cases were apparently very much the same, though one was punished lightly and the other severely. I give that as an instance upon which I ask your Lordships to believe that unless you really know the whole circumstances of a case, unless you are present at the trial and know the way in which the thing has been presented, you may be entirely misled in contrasting one case with another without a full knowledge of the circumstances. I will only add that I thank both my noble and learned Friends for the speeches they have made.
*LORD NORTON: My Lords, it may seem somewhat presumptuous in me to venture to add a few words to a debate which has been carried on by the highest legal authorities in this House; but as one who, during a long period, has constantly attended to legislation and administration on this subject, what I have to say may not be considered unworthy of attention. My noble and learned Friend Lord Herschell has asked for an inquiry into the principles which guide the decisions of our Judges in criminal cases in the hope of diminishing the present unequal incidence of punishments. I think a more important subject of inquiry would be the actual penal system itself, and the nature and degrees of the punishment. Nor do I think it would be useful to attempt to control the idiosyncracies of Judges. The punishments require to be more accurately adjusted. The
946
Report of the Commission upon Criminal Law in 1834 laid great stress upon the law's uncertainty, arising out of the wide discretionary power given to Judges, and the want of definition. The variety in the administration of the penal system was said to spread the belief among offenders that severity of punishment depended upon accidental circumstances. In respect of secondary punishments, the Commissioners said what was wanted was a more constant legislative supervision of our system and greater discrimination in the infliction of sentences. What we want is not to limit the discretion of Judges, which is absolutely necessary-and inevitable, but to give them better opportunities by our penal system to adapt punishment to particular cases which come before them, for it is impossible to formulate the infinite variety of circumstances of cases which come before our Judges at Assizes and before Quarter Sessions. In 1834, when that Report was made, there was no step in our penal system between death and transportation. I, myself, had some share in obtaining the first decisive vote of the House of Commons against transportation, when the conditions of colonisation and the state of our Colonies rendered it impracticable any longer, and I also served on the Committees which substituted the punishment of penal servitude. But I thought a great mistake was made by those Committees in measuring the terms of the new by the terms of the old punishment, there being nothing parallel between them, and there being no reason why a certain number of years of transportation should in any way be represented by a certain proportion of penal servitude. From that date to the present time, there have been a succession of Royal Commissions and Acts varying the terms of penal servitude. One Commission, after a panic from an increase of crime, immediately increased the term of penal servitude, as though that were certain to be a more effective punishment. From time to time changes were made under the Reports of those successive Commissions, and Acts of Parliament have been passed down to a very recent year varying the terms of penal servitude, and so ragged has the system become

947
that at this moment there is a large gap between the maximum term of imprison-meat (18 months) and the minimum term of penal servitude (five years) the intermediate terms having slipped out of our Statute Book. I am very glad to hear that it is the intention of Her Majesty's Government to re-introduce the minimum term of three years' penal servitude.
THE LORD CHANCELLOR: The noble Lord is mistaken in supposing I said that. I did not say so.
LORD HERSCHELL: I do not think my noble and learned Friend said that; but I gathered that that was the case from what I understood to have been stated by the Home Secretary in the other House. I understood him to state that the Government proposed it.
*LORD NORTON: I thought that was stated by Lord Herschell. However, I hope it will be restored within an early date, as I believe that a term of three years' penal servitude is very much wanted. What is clear at the present moment, as has been stated by Official Authorities, is that the punishments of imprisonment and penal servitude have been identical. They are both carried out in the prisons of this country, and only differ in duration. There is, of course, some difference in treatment during the various periods of the punishment, but they are both carried out in the prisons of this country. What we have, therefore, to do is to make a proper graduation of prison punishment. The misfortune is that we are now practically reduced to this one sole form of punishment. I am glad to see that even an extension of my noble Friend Lord Mill-town's Bill has passed a Second Reading in the other House, which shows that we are beginning to see that the abandonment of that most effective of all punishments—corporal punishment—was a mistake, and that we shall add to the effect of our penal system if we restore its infliction in suitable cases. Fines are by no means imposed as they might be, with a summary mode of recovering them. Sureties for good conduct might relieve the contents of our gaols, in lighter cases. We might in those ways, I think, improve a good deal what I may call the adaptation of our penal system to every variety of crime. The use of all these punish-
948
ments must, of course, depend upon the principle observed in the administration of our system. The object of all punishment is to deter from a repetition of the offence. The Commissioners of 1863 lay that down as the true penal principle, and that punishment should be as severe as is consistent with the health of the prisoner, and should never be longer than is necessary to make it deterrent. Many of the cases which have been cited by my noble and learned Friend show that in the minds of learned Judges, and in the contemplation of Legislature too, the measure of severity is the length of the punishment. But it very often happens that the length of the term of punishment is a dilution of its severity, while frequently the shortness of the term is a means of more effective severity. Length of sentence has been advocated as a means of reforming prisoners under detention in prison; but I do not think that there can be a worse place for reforming a man's character, or improving his moral condition, than a prison, and we are falling into the double mistake, as it seems to me, of treating our prisons as reformatories, and reformatories as prisons. The only reforming of character in prison is by way of deterring the criminal from the repetition of his offence. You may educate a hypocrite in a cell, and you may damage the faculties of his mind, but you cannot train him for healthy life during detention in prison. Reform a man as much as you can while deterring him, but that must be the principal object of his imprisonment; the reformation is merely incidental. I do not hesitate to say that no punishment at all would be better than an undeterrent punishment. An undeterrent punishment is simply a useless infliction upon a man to the sacrifice of his wife and family and to the failure of his possible restoration to a useful position in the country. It is quite clear from the cases which my noble and learned Friend has cited that our present prison system is undeterrent. The number of re-commitments to every prison in the country shows that it is undeterrent. You may go through all our prisons and you will not find in the cells 1 case in 20 of a first conviction. There may be some

949
causes of recommitments, which are external to inefficiency of imprisonment, but their recurrence 10 and 20 times proves the fact of undeterrence. The inquiry, then, must not only be as to our present administration of punishment, but into the nature of the punishments themselves and the rendering them more effective. The main thing to find out is how to restore our penal system to efficiency; not to guide our Judges in its administration, nor to form a cast-iron rule, which would leave Judges no discretion. A. perfectly graduated scale of punishments would enable Judges to adapt their sentences to the nature of the offences brought before them for the purpose of deterring from their repetition. The latest Reports of both the Prison Commissioners and the Directors of Prisons, and now those two Bodies are the same, show, both in the case of local prisons and of convict prisons, a decrease of crime which has certainly gone on in recent years. People maybe misled into supposing that that decrease has been caused by the efficiency of our punishments, and that that is a proof that there is no need for any change of system. I do not believe that at all; but that what has caused the decrease of crime has been improved habits of life, operation of reformatories in breaking up of haunts and nurseries of crime, and the Discharged Prisoners' Aid Societies throughout the Kingdom finding employment for prisoners on the completion of their punishment, and thus preventing their relapse into crime. I do not think we can attribute much of it to the efficiency of our present system.
*THE EARL OF KIMBERLEY: My Lords, I should not have said a word in this discussion had it not so chanced that in the year 1879 I was Chairman of a Commission for inquiry into the working of our system of penal servitude. Incidentally to that inquiry some of these questions were considered, and it might be as well that I should remind the House of what some of your Lordships may have forgotten has been the course of legislation upon one or two of these points. In 1863 a very important Commission was appointed on the working of the Penal Servitude Acts, and inconsequence of the Report of that Commission the sentence of three years' penal servitude
950
was done away with, the minimum term being fixed at five years. In all cases of second convictions the minimum term of penal servitude was raised to seven years. Then, as I have mentioned, I had the honour to preside over the Commission which was appointed in 1879, to inquire into our system of penal servitude. That Commission also incidentally considered the subject of criminal punishments generally. Acting upon the evidence which was given by the specialists, including some of the most experienced of Her Majesty's Judges who were called before the Commissioners, they recommended that the provision that there should be a minimum sentence of seven years on a second conviction should be repealed on the ground that it worked extremely ill, and that provision was accordingly abolished. The Commissioners at the same time recommended that the sentence of three years should not be restored, as they did not think that an adequate term of penal servitude. Without dwelling on those two points, I am quite satisfied that it was right to get rid of the second minimum sentence of seven years, for the obvious reason that Judges were in many cases put in a position which made it impossible to properly apportion their sentences. Either they must impose a sentence of penal servitude for seven years, which was too severe, or have recourse to a term of imprisonment for one year and a half, which was too light. That shows the extreme difficulty of the Legislature laying down specific laws upon this subject. You cannot possibly foresee what may be the shades of difference in particular cases, and it is, therefore, extremely dangerous to lay down special provisions as to maximum and minimum sentences. I would not say there are not arguments in favour of intermediate sentences between two years' imprisonment and five years' penal servitude. But the House should remember that the system has been tried, and the three years' penal servitude sentence has been condemned, on the ground that it left no margin for remission of punishment in consideration of good behaviour in prison; and without such a provision prison discipline is impossible. Then there is this consideration which has arisen since we made our Report. Undoubtedly, the fact that

951
there is no sentence between 18 months and five years is an imperfection in our law; but I do not think it follows that that gap must be filled by a sentence of three years' penal servitude. No doubt there has been a great change in the prison system since 1864, all the prisons being now under the management of the Government. I gather from the Reports of the Prison Commissioners that the difference between the treatment of prisoners in penal servitude and in prison is a difference of name, and no longer a difference in principle, and that there has ceased to be that dividing line which formerly existed. It seems to me that it is a matter for consideration and inquiry as to whether some general change should not be made in the system, and whether some better system could not be devised. A sentence of penal servitude is looked upon now as marking a graver kind of crime, and it is a matter for consideration whether, if that distinction were broken down, it might not diminish the deterrent effect of the administration of the law upon criminals. Upon that point I will give no opinion; but I think the noble and learned Lord on the Woolsack has not given sufficient weight to the undoubted fact that some Judges and Chairmen of Quarter Sessions proceed upon the theory that long sentences should be imposed upon habitual offenders irrespective, to a great extent, of the nature of the offences, and others take into account only the particular offence which the criminal has committed. I cannot help feeling that that difference of opinion has proceeded too far, and that it has caused results so extraordinary in the differences between sentences pronounced that it is a matter which Her Majesty's Government should consider. I think it would be very worth while to consider whether some form of punishment could not be devised which could stand between the maximum of imprisonment and the minimum of penal servitude. I should certainly have thought it would have been possible to have brought that matter before a Commission; but, at all events, I hope Her Majesty's Government will give their best consideration to the points which have been raised.
*LORD MORRIS: My Lords, it is possible the House will not consider I am intruding unduly in this discussion, as I
952
have had the opportunity of gaining some experience in regard to this subject from having filled the office which I held in the Sister Country, and having been engaged for many years in the administration of the Criminal Law in that part of the United Kingdom. That will, I think, plead my apology for intruding on the time and attention of the House. I shall certainly not inflict upon your Lordships a long speech, because I am of opinion, though we have heard a great deal of discussion as to whether long sentences are a deterrent punishment or not, that long speeches are certainly very often a great punishment; but they are not so often a punishment to those who deliver them, and perhaps the punishment does not fall upon the right persons. I think my noble and learned Friend opposite has done some good by ventilating this subject; but I do not think he can urge it further than as somewhat of an exercitation upon the subject, because the noble and learned Lord upon the Woolsack has stated that in his opinion, an opinion in which I take the liberty of saying I entirely concur, it is not a subject for inquiry before either a Committee or a Royal Commission. In this regard apparently two different sects have sprung up among the Judges of England, upon this question of criminal punishments, in which the prophets on either side can do what other prophets cannot, that is to say, they can ensure that their prophecies shall take effect, by the infliction of such sentences as they think fit within the maximum punishment prescribed by the Legislature. The matter has been dealt with somewhat as it appears to me as if it was left at large to any learned Judge, like an Eastern Cadi inflicting punishment and awarding as many strokes as he pleases to be given to anybody brought before him. But our Judges have to award within that which the Legislature has stated shall be the punishment. For each crime there is a maximum punishment allotted, and there is a natural elasticity left to the Judge for the exercise of his discretion. With regard to this matter of principle, as it is called, like a great many other matters of principle which we hear of nowadays, it is really a matter of detail. Judges like other people will take different views of the same state of facts. An offence which appears very grave to

953
one Judge does not appear at all so grave to another. The idiosyncracies of one Judge can never be guaged by the feelings of other. On one occasion in Ireland I remember an effort was made to bring about an interchange of opinions among the Irish Judges. The Lord Chief Baron Pallas brought the subject before a meeting of the Irish Judges. He was anxious that some rough idea at least should be arrived at as to the gradations of punishment within the maximum which the law imposes. But he found that was impossible, nay, more, unreasonable, because a Judge should decide according to his own conscientious opinion, and not the opinion of someone else and should, within the limit which the law allows him, inflict that which he considers an adequate punishment. It appears to me also that this is only the fringe of a much wider question, and I should much deprecate interfering with the larger question by dealing only with the fringe of it. It is only part of the larger question of the Criminal Code of this country. No less than 12 years ago, my right hon. and noble Friend the Secretary of State for India, then Home Secretary, issued a Commission to four of the most experienced Judges that could be put upon it—Lord Blackburn, Mr. Justice Lush, Mr. Justice Stephen, Lord Justice Barry—to report upon this subject, that Commission brought in a Report. It is now a matter of 12 years' standing, but nothing has been done upon it yet. That really is the matter to be dealt with, and it must be dealt with practically, because in a revised Code crimes would have to be defined in different classes to those in which they are placed at present. At present they are classed far too generally in their extent. Take, for instance, the crime of manslaughter; a manslaughter may be actually a murder, but a jury taking a merciful view of it will only bring in a verdict of manslaughter. Well, that crime dwindles down until you come to causing death by mere negligence, simply by carelessness in driving over somebody in the street. Nay, more, it might even reach a stage where there was no negligence, but where homicide had occurred by accident, the person committing it being engaged in some unlawful act of another character altogether. Well, the gradations of
954
punishment are correlative. They range from penal servitude for life to a fine of 6d., or ordering a prisoner merely to be kept in custody until the evening, or letting him out altogether on his own recognisances. Punishments might be fixed for each sub-divided class of offences by which the responsibility of the Judge would be very much lessened; but I cannot, with great respect to my noble and learned Friend, see how any Commission or Committee of Inquiry could throw light upon the question as to the view which different Judges may take of the same stats of facts, within the bounds which the law allows them by fixing a maximum punishment. Upon those grounds I am I glad that the noble and learned Lord upon the Woolsack considers that the subject should be dealt with by Government, and not merely by the appointment of a Committee of Inquiry or a Commission.
LORD HERSCHELL: My Lords, I am, of course, very well satisfied that Her Majesty's Government themselves propose to enter upon the inquiry which I advocate, with the view to dealing with it hereafter. I trust that the result of that inquiry may be satisfactory, though I confess still to a doubt whether it would not be more advantageous to institute some other form of inquiry previous to the introduction of legislation. It has been said that there have been oscillations in the view which the Legislature has taken in the matter from time to time. If so, would it not be important to inquire what has been the practical result of the operation of those changes of system—whether crime has increased or decreased, and whether the number of prisoners returning after light sentences is greater or less? Surely, as a preliminary to any step towards legislation, it would be desirable to very carefully compare the results of those oscillations of view in different directions.
THE EARL OF NORTHBROOK: I do not know whether the noble Lord has a right of reply.
THE LORD CHANCELLOR: Not upon a Motion.
LORD HERSCHELL: That is so; and in those circumstances I will merely express the hope that the Government will give the matter early attention, and that

955
if no other inquiry is made than that by the Government themselves, they will, before proposing any legislation, favour the House with Returns or statistics as to the results of light sentences where they have been tried, in order to afford means of comparison between different places. It is of great importance that the House should be put in possession of such Returns, and if the Government do not lay them on the Table of the House I shall take an opportunity of moving for them at a future time.
House adjourned at a quarter before Seven o'clock, till tomorrow, a quarter past Ten o'clock.