§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Viscount Sankey.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF ONSLOW in the Chair.]
THE LORD CHAIRMAN
Perhaps I might say one word about the Amendments. As your Lordships see, there is no Marshalled List. The Amendments are on two papers—Amendments that have been handed in by two noble Lords. As to the first Amendment, Lord Rankeillour's, there is nothing to be said about it. With regard to the second, the noble Earl, Lord Halsbury, has handed in a manuscript alternative Amendment,
THE LORD CHAIRMAN
So there are two Amendments. After Lord Rankeillour's first Amendment I think your Lordships would wish to take Lord Halsbury's Amendment, because it deals with the same matter, and then Lord Rankeillour's second Amendment after 792 that. I think your Lordships will agree that that would be the most convenient method of marshalling the Amendments.
§ Clause 1:
§ Privilege of Peerage in relation to criminal proceedings to be abolished.
§ 1.—(1) Privilege of Peerage in relation to criminal proceedings is hereby abolished.
§ (2) The procedure to be followed, the punishments which may be inflicted, the orders which may be made, and the appeals which may be brought shall, whatever the offence and wherever the trial is to take place, be the same in the case of persons who would but for this Act be entitled to privilege of Peerage as in the case of any other of His Majesty's subjects.
§ LORD RANKEILLOUR had on the Paper an Amendment, in subsection (1), after "proceedings," to insert "for felony" The noble Lord said: The intention of this Amendment is to continue the jurisdiction of your Lordships in cases of treason, but within the last ten minutes it has been conveyed to me that my words will not have that effect because treason is a felony. When I was considering this subject, I first looked up the definition in, I think it was, the Encyclopædia Britannica, which said that it was held by some that treason was a felony, but apparently the prevalent opinion was that it was not. I then searched in what I am sure is a high authority, Halsbury's Laws of England, and I found there that it is distinctly laid down that there are three classes of offence—treason, felonies, and misdemeanours. I adopted that view with the greater confidence because I saw, in the edition which I looked up, that this had been revised under the auspices of the noble and learned Viscount on the Woolsack. But if the words are material, and if there be a serious doubt on the matter, and as I have not seen the Amendment of the noble Earl, Lord Halsbury, perhaps I might be allowed, instead of moving to insert the words "for felony" after "procedings," to move the words "other than proceedings for treason." I thought the authority I quoted would have been sufficient, but perhaps I might be allowed to move my Amendment in the alternative form.
§ What I submit to your Lordships is that the main argument in favour of a change in the present system does not apply to proceedings for treason. It has been put very forcibly to your Lordships 793 that under our present system we may have very trifling offences brought before your Lordships—trifling in substance, though actually felonies in law. I think the last case which your Lordships had before you, if there had been a conviction, really amounted to no more than culpable negligence, and we know that slight offences may be felonies while much graver offences may be misdemeanours. It has been forcibly represented that the course of justice should not be interrupted for slight offences, Judges brought here, taken from their ordinary duty, time occupied and expense incurred for slight offences, of which there may easily be a recurrence. But, while there may be trifling felonies, there can be no trifling treasons. Treason is an offence of the greatest magnitude, an offence not only against individuals but against our gracious Sovereign and the State at large. It stands in a class apart, and so much was this recognised by our ancestors that they provided a very special and terrible punishment for it, which I will not shock your Lordships' ears by reciting.
§ If the offence is a grave one in any of His Majesty's subjects, it is an especially grave one in a legislator who has taken an oath of his own, and who is responsible, under and with his Sovereign, for the conduct of legislation. And, as it may easily be the case that a legislator is a Privy Councillor as well, the gravity of the offence is gravely increased owing to the very special and drastic oath that he takes. I submit that in a case of such gravity there should be some special provision to mark it apart from ordinary offences by the manner of its trial, and that greater pains should be taken for a complete review, without any question of haste or any want of thoroughness and investigation. But the law at present does not provide for this. It is quite true that in the last two cases there have been trials at Bar before three Judges. But any accused person has no right to it. It is set in motion by the Attorney-General, and it requires his motion for that to come about; and, as far as the law goes, the alternative in the case of a Peer to trial before his peers is a trial before one Judge and a common jury. I submit that this should not be the case, and as we cannot, with all the latitude that we allow ourselves in this House, 794 put as an. Amendment to this Bill that there should always be a trial at Bar in a case of treason, it is far better to retain in these rare and exceptional cases the present procedure.
§ Your Lordships may have noticed other Amendments in my name. The proposed two new clauses are not technically consequential, but I have put them down in order to meet certain other objections that have been raised to the continuance of your Lordships' jurisdiction. The first one gives an option to a Peer who is charged with treason. I do not know whether the case is likely to arise, but it is possible that a case might arise where a Peer, indicted, would prefer to be tried at Bar, if not at the Central Criminal Court, rather than stand trial by his follows. I think it an unlikely case, but I can conceive it. For example, supposing one of your Lordships had sympathies or affiliations with a foreign Power. Let me suppose that Power was a propagandist Power, and let me suppose also that war arose. It is just possible that that noble Lord might fall under suspicion, perhaps an unjust suspicion—I hope I am not making anybody nervous by this supposition—of bringing aid and comfort to His Majesty's enemies. He might think that he would prefer a trial in the ordinary way to trial before your Lordships. The first proposed new clause seeks to effect that.
§ A great deal was said about the cumbrousness of this procedure, but need it necessarily be so cumbrous? I very seldom differ from my noble friend Lord Salisbury, but it appears to me that a process of delegation of your Lordships' powers might be carried through with no very much greater trouble than the formation of a Select Committee on a very important subject. I imagine that the Lord High Steward, with a special Committee of Selection, could very easily produce a panel from which a delegation of your Lordships might be chosen, and that would secure the right of challenge to the accused Peer. It might result in twelve of your Lordships, with three of your Lordships in the ordinary course, three of the Law Lords, sitting, and that would be very roughly equivalent to what would be the case in a trial at Bar before three Judges and a jury of twelve. These suggestions are no part of this Amendment, but I throw them out in 795 ease any of your Lordships might be disposed to view the Amendment itself with favour but at the same time to have doubts on the two scores—the option and the cumbrousness of the procedure.
§ Lastly, if this Amendment were to be carried, it would no doubt necessitate on Report several further Amendments to the Schedule. These would be a matter for research, which I am willing to undertake, but I think it would be presumptuous on my part to assume that the Amendment will be carried and put down consequential Amendments in the Schedule of Enactments Repealed. I submit that the main argument against the present procedure does not apply to the case of treason, and I ask your Lordships to make this small concession to tradition and sentiment, which is fully justified by the special need, the heinousness and, I may add, the rarity of the offence concerned. I beg to move in the alternative form.
Page 1, line 7, after (" proceedings ") insert (" other than proceedings for treason ")—(Lord Rankeillour.)
THE DUKE OF ATHOLL
After what has fallen from the lips of the noble Lord who moved this Amendment, just in case any of your Lordships should be under the delusion that the trial of a Peer for treason before his peers has always been fairly conducted, I need only refer your Lordships to the trial of Lords Balmerino and Kilmarnock in the year 1746 for their share in the Rebellion of 1745. At that time public opinion in this country had been so inflamed by false statements emanating from the Duke of Cumberland after the Battle of Culloden, and repeated in the Press, of the cruel behaviour of the Highlanders to their prisoners that it was really impossible to try the participants in the Rebellion without strong prejudice against them in any Court in the land. In particular, the story was put about and believed that in Prince Charles's orders, written by his General, Lord George Murray, before the Battle of Culloden, instructions for "no quarter" to be given were included. "The culprits," as they were called by the Lord Chancellor during the trial, not only pleaded during their trial that they had always gone out of their way to treat the Government prisoners with kindness— 796 a fact which is well known—but also in a petition to the King before their execution, as well as from the scaffold itself, they declared that they had never heard of the "no quarter" order and had been no party to such an order. Lord Chancellor Hardwicke however, harped upon their "cruelty and barbarity" prior to the "glorious and memorable day of Culloden." These words, of course, are not mine!
To-day only four copies of Lord George Murray's orders are known to be extant, and they are all in his own handwriting. Two are in my possession, one is among Cumberland's own papers, and the fourth, which I have also seen, was in Lord Hardwicke's hands at the time and is now, I think, in the British Museum. Not one of these four copies has a single word about giving "no quarter," but this allegation of cruelty remained, and was, as is well known, one of the strongest points that influenced the minds of what I may term the jury, whom I am not blaming. One word from the Lord Chancellor, who had the actual copy of the orders in his possession, and who was acting as Lord High Steward, might have made a considerable difference in mitigation of sentence, but he never produced his copy, and the wretched men went to the scaffold with this calumny of "no quarter" as their epitaph. This is my reason for thinking that at a time of inflammation of the public mind there often seems to be no more chance of obtaining a fair trial for an unpopular individual in any one particular Court than in another and, I may add, in any country, always assuming of course that the public Judiciary has been politically interfered with either directly or indirectly.
I hope your Lordships will excuse me if I say that, personally, I feel under a deep debt of gratitude to Lord Rankeillour for having given me this opportunity of clearing the character, in this House, not only of the two Lords whom I have mentioned, but also, incidentally, of my ancestor who wrote the orders, and I am glad to have been able to do so in the presence not only of those of your Lordships who are the lineal descendants of some of the jury, but also of the Lord Chancellor of England who, in these days, I am proud to number among my personal friends. I cannot but think that the days of the willfully 797 unjust Judge are over. I hope they are. If they are not, then the circumstances which result in unjust trials will be caused by a political upheaval of such a character that neither this House nor the ordinary Courts of Law will be able to control it.
There is just one other point I would like to make. I have hardly had time to look at it, and if I had had time I probably should not be capable of assessing its value, but it strikes me that in the happy opportunism of my noble and learned friend Lord Sankey in bringing in this measure he has again forgotten a tiling called the Act of Union. I think in Chapter 8, Article 23, he will find that there is a definite pledge and promise given to the Scottish Peers that they would have the privilege of being tried by their fellow Peers. I want to know in what circumstances and by what right your Lordships, even led by an ex-Lord Chancellor of such legal knowledge as the noble and learned Viscount, Lord Sankey, can be really prepared, on what is more or less in these days a trivial subject, to break your word as recorded in the Act of Union. I think the whole thing would be out of order from that point of view.
§ LORD STRICKLAND
I rise as one of many members of this House who hope that the proposer of this Amendment will succeed in so drafting it as to escape the difficulties, many of which he has indicated, which will cause it ultimately to be ruled out by legal acumen. In order to be able to offer some assistance I have spent some time this morning in the Library on the very same line of investigation—the great difficulty of discovering whether there be any form of treason which is not statutory. There may be Common Law treason, and treason by Statute. There are so many forms of treason that it is certainly very dangerous for an Amendment to be worded as this is worded. There is high treason, there is petty treason, there is treason felony, there is misprision of treason. This House, representing the hereditary principle, has to think of the future. The time may come when there may be treason enacted by a very advanced Government of the extreme Left. Such a Government may make it treason to differ from the Government in power. We have seen this enacted in 798 Germany and Italy quite lately, and if an Amendment is to be effective I think it should cover that possibility. Ideas move very rapidly in these days, and we must not be crystallised in the idea that we shall always have a Conservative Government, or even a Coalition Government, or indeed even a Socialist Government in this country. When there is a Socialist Government in this country with a large majority very astounding things will happen. Therefore there will be a time when we shall be very, very sorry that we have thrown away these privileges as almost worthless lumber. Who knows the why or the wherefore?
To come to the technical point I would suggest an investigation on these lines—to formulate an Amendment to cover all forms of treason whether enacted by Statute or based on the Common Law, and whether they be part of the law of the land to-day or whether they may be enacted by Statute in future. Perhaps an Amendment on those lines might defeat those who criticise the drafters of Amendments. The danger of legislation in the future cannot possibly be appreciated in your Lordships' House, which is so conservative, and perhaps the most conservative amongst us are the members of the legal profession. But I have had the honour to serve His Majesty on the other side of the world, where the Attorney-General has not always been a lawyer and where the difficulties of formulating Amendments to Bills have often been overwhelming for a real Labour Government. We welcome a real Labour Government, with which we co-operate to-day, but the time may come for a Government that has swung so far to what is known as the extreme Left that legislation will be passed which will make us regret—or make our successors regret—that some of us are to-day inclined to part so lightly with our privileges.
Finally, the cry for this Bill comes from the idea that the democracy does not want this sort of privilege. I can assure your Lordships that democracy does want this sort of privilege. The democracy loves display, and does not respect authority unless that authority is upheld by emblems. Certainly on the other side of the world, where we have the most marvellous and most admirable exhibition of democracy that history has 799 ever recorded, in the Antipodes, if any person in authority neglects the emblems of his office or the dignity he ought to uphold, whatever may be his other attributes he immediately loses popularity. I am quite certain that there are people in this country who are only too delighted to have a display. It cannot be defended from a legal point of view in any way, but I am quite certain the newspapers would have paid ten times the cost for the value of the copy provided for them. Moreover, we noble Lords are commonly assailed by the Press and by a very widespread section of public opinion for not being examples of virtue, for not being cultivators of Mother Grundy, for having departed too quickly from Victorian ideas. My Lords, if only one of these trials takes place in a great number of years it is proof positive that we are virtuous, at all events up to the point of not committing treason. If only for that reason, of being able to advertise our virtues, I think we ought to uphold this. Any carefully worded Amendment will no doubt sabotage this Bill, but let us try to find an Amendment that is likely to be accepted by Parliament.
§ LORD ATKIN
Perhaps I might be allowed to say a word or two in reference to the Amendment which has been proposed by the noble Lord to whom, if I may speak firstly for myself, I always listen with the greatest respect on any constitutional question, knowing how carefully he has studied and how he is entitled in fact to be called a learned Lord. But I cannot think that on this occasion his Amendment ought to commend itself to your Lordships. Just see what has happened. This House twice now has disclaimed the idea that it will any longer have its members on any footing other than one of common equality with all the other citizens in the country. They are to be equal before the law, and they are to be tried by the same tribunal as every other citizen. The Amendment does not seek, quite reasonably of course, to make any difference in respect of the serious crimes which will now necessarily go to be tried before a Judge and a jury. I need only mention cases of murder. One of the objections, certainly the prevailing objection I think in your Lordships' minds, was that the present tribunal is one of a large and 800 fluctuating body of people, the members of which you can never get together at any time, with the right of all your Lordships to be present, and your Lordships are the judges both of law and of fact, however difficult it may be to arrive at the fact and however difficult to know what is the law.
But that being the difficulty in ordinary cases, how very much more difficult in cases of treason! Cases of treason could hardly arise at all except in times when there is extreme political disquiet or when the country is at war, and those are the very cases in which feeling would be likely to run very high amongst all members of the community and no doubt also amongst your Lordships. That is exactly the class of case in which you might expect the members of your Lordships' House to appear necessarily and naturally to take a part in the trial of anybody accused of treason. It is exactly the kind of case where Party feeling might be brought to bear, not to decide the actual point—of course your Lordships would apply your minds to the facts—but because the questions that arise are questions that do stir up political feeling.
I have had the opportunity of studying some of the last trials for treason, which were the trials to which the noble Duke referred. I do not think, with great respect to him, that the trials he mentioned are instances of prejudice affecting the result of the trial—though things may have been said which were not justified—because, if I remember aright. Lord Kilmarnock pleaded "Guilty," as did Lord Cromarty. The only Peer who did not plead "Guilty" did so, I think, on a technical point which was eventually withdrawn. As they were taken in arms there was no question that they were guilty of making war against the King, and the result and the punishment unfortunately followed inevitably. As to particular points to which the noble Duke referred I have no doubt that what he said was thoroughly well justified, but with great respect it has no bearing upon the mode of trial or the result.
THE DUKE OF ATHOLL
I was only speaking of the means taken to inflame the minds of the jury. The sentences may have been just in one sense. They were rebels and they suffered for that.
§ LORD ATKIN
However much it might inflame the minds of the jury it would not affect the result. The evidence was so strong that no such inflammation was necessary to arrive at the inevitable result. In the record of these trials you will find the report of the Committee which was appointed to advise the House as to procedure, and in these cases you will find that it was advised that every member of the House of Peers should be summoned and that they should be told that it was their duty to attend under pain of incurring the grave and serious displeasure of the House. The consequence was that at the trial of the Scottish Peers 135—I think that is the right number—attended. I should imagine that was a very large proportion of the number of Peers available. Then there was another case—I think the last case before that—the case of a terrible miscarriage of justice in the Popish plot, when Lord Stafford was convicted on the evidence of that most wicked of all people, Titus Oates. He was convicted by this House, by a body of Peers consisting, I think, of 85. If any similar procedure to that is adopted, and it is considered the duty of people to attend on a serious issue like a trial of treason, who can contemplate the consequences?
§ LORD RANKEILLOUR
May I interrupt the noble and learned Lord to say that I have tried to meet this point in my third Amendment?
§ LORD ATKIN
I appreciate that and I was coming to deal with that position, but the Amendment as it stands does not provide for any alteration. I think that the proposal of the noble Lord by way of amendment makes the procedure very objectionable. As it stands you may have 300, 400 or 500 Peers attending, when public opinion is highly inflamed, for the purpose of determining this issue of treason, which involves questions of fact and also, I venture to say, having sat on appeal in two cases of treason in recent times, difficult questions of law. I venture to think that those are exactly the cases in which the procedure in this House should not be adopted. It is a very serious offence, as the noble Lord said, and a very serious offence committed by a legislator and a member of the Privy Council. But suppose there was a conspiracy in which 802 people who were commoners who were also legislators and Privy Councillors were charged with conspiracy to commit treason, and to commit treason in conspiracy with members of your Lordships' House. Would it not be very unfortunate to have commoners tried by one tribunal and fellow-conspirators tried before the tribunal of this House with difference in the results? Nothing, I venture to think, could be worse for the authority and prestige of this House.
So grave is the difficulty about procedure that the noble Lord—very reasonably, if I may say so—says that it ought to be altered and that there ought to be a panel. One of the striking things about high treason is that although, as your Lordships know, when this House is not sitting ordinary charges of felony can be tried before the High Steward and his Court—he empanels a certain number of Peers and summons them—so desirable was it thought by our ancestors that that should not be the case in charges of treason, that for such a charge all the members of the House must be summoned. The reason is obvious. To whom are you going to leave the responsibility of the difficult and delicate task of deciding who are to be the Peers to decide an issue of this sort? If it is a charge of treason it is a charge that must be brought under the auspices of the Government of the day, because that Government has been successful and it is a treason against them—against the Crown no doubt, but also against the Government.
My noble friend does not suggest how this panel is to be instituted, and I cannot imagine a more difficult task. Nor can I imagine that any one of your Lordships would be in a better position if he had to be tried by a small number of Peers than if he were tried by a jury, drawn from an impartial panel by lot so that no one knew what were the political prejudices of any of the jury, and with the right of challenge. I venture to think that that is the fairest tribunal that could possibly be devised. Therefore I venture to say to your Lordships that the trial of a Peer for treason by a panel selected in any way you please would be a most unfortunate mode of trial for any Peer. My noble friend suggested a panel or fifteen.
§ LORD ATKIN
A tribunal of fifteen drawn from a larger panel. I beg the noble Lord's pardon. Is that tribunal to decide by a majority?
§ LORD ATKIN
That is quite a new procedure in trials in this House, because in the past there always has been a decision by a majority. In the unfortunate case that I mentioned of the Popish Plot, Lord Stafford was condemned by a majority of something like fifty-two to thirty. I venture to think that, once you have decided that Peers are to be tried as ordinary people for serious offences, there is no reason at all for making a distinction in the case of treason. I suggest to your Lordships that charges of treason are exactly the kind of case where, if possible, abuses are greater than in any other case. Now your Lordships have started, and have decided that you will sweep away what is an outworn appanage of the Peerage, you should not falter but should make every Peer amenable to the Courts of this country precisely like every other citizen.
§ THE MARQUESS OF SALISBURY
If the noble and learned Lord who has just sat down will allow me to say so, I do not think the issue can be disposed of quite as simply as he would have us believe. He recited, of course, the arguments which have already been used in your Lordships' House in the other stages through which this Bill has passed. Among others he recited the objection which has been urged, that in the trial of a Peer by Peers the tribunal, although not consisting in the main of learned Lords, has to decide questions of law as well as questions of fact. That sounds, of course, a plausible argument, but I feel assured that there is very little in it. After the experience which your Lordships had in the trial which recently took place, there evidently never could have arisen any difficulty in that the lay Lords were or might be called upon to decide a question of law. We know what happened and what will always happen upon a question of law: the lay Lords will be very glad to be guided by the learned Lords. They were 804 in this case guided by the learned Lords, or, more accurately speaking, they were guided by the learned Judges who attended according to the Order on that occasion. So I really do not attribute much weight to those arguments.
The arguments which weighed with me upon the last occasion were quite different; they were the difficulty of distinguishing between felonies and misdemeanours, and the difficulty of the numbers of your Lordships in trying what might be a relatively small issue. Those were the main difficulties which I felt, and which led me to vote in favour of the Second Reading of the Bill. But I feel that those arguments have nothing like the same weight when applied to the Amendment which has just now been submitted to your Lordships. I do not go into the question of the drafting of my noble friend's Amendment. It may be that the drafting is not perfect and that there may have to be, if your Lordships agreed to the Amendment, a certain amount of redrafting in the later stages of the Bill in order to put all questions of treason upon the same footing, whether the charge is treason, treason felony, misprision of treason, or whatever it may be. This is merely a question of drafting, and I am quite sure that the matter can be put right. Therefore all that argument which weighed, I believe, with the majority of your Lordships upon the Second Reading, all the argument which depends upon the difficulty of distinguishing between misdemeanour and felony, disappears; it is gone, as far as this Amendment is concerned.
What is the other argument? It is a much more formidable argument—the argument to which the noble Lord has addressed himself just now: the great difficulty of having a trial when the tribunal is as numerous as your Lordships' House. I think, however, that there are certain considerations which weigh against even this argument when the case which this Amendment contemplates is distinguished from the trial which recently took place in your Lordships' House. After all, what we are taught to think of is a State trial, not a question of careless driving on the high road which led to the death of an unfortunate individual. It might be that if we did not alter the law, even smaller charges of felony would be the subject of this 805 procedure: small questions of alleged larceny, twopenny-halfpenny charges which could not really be properly judged by your Lordships' House as a whole without a grotesque result. In the present Amendment we are contemplating State trials—not held, as I venture to think, in the present state of things in this country. I do not look forward in the near future to trials for treason in which one of your Lordships will be the accused, or anything of that kind. We do live, however, in times of great change, of profound unrest, and we cannot tell when we look forward what the future may have in store. There may be great civil commotions, there may be strong political feelings, and your Lordships will remember that these trials for treason have always had a political side to them.
That is going too far; I think that would not be true, but at any rate the ones of which we are thinking at this moment have a political side to them, and the question is really whether your Lordships are willing to abandon the old form of procedure in respect of a great State trial exciting intense political feeling at the time. It might be, for instance, that the political action of your Lordships was very unpopular, and a charge of treason might even be brought—I am thinking, of course, not of the present time but of the future—against noble Lords for the attitude which they had thought it their duty to take as members of your Lordships' House. These things cannot be excluded. These would be great State trials, and no argument against maintaining this procedure, on the ground that we are applying the solemnity and difficulty of arrangement of a great trial by the whole of your Lordships' House, applies to anything like the same degree when you are speaking of a State trial as it does in the case of the petty offences to which I have called attention.
Of course I speak of the House of Lords as it is. I am one of those who look forward to some change in the membership of your Lordships' House. I am not going into the merits of the question, I assure your Lordships, nor into the difficulties which attach to it; but whatever reform of the House of Lords does take place, it will certainly include a great reduction in its numbers. I suppose every reformer on this question is agreed upon 806 that point. Therefore, in the sort of days I am contemplating we may anticipate that the difficulty of numbers, at any rate, will not present itself in anything like the same degree as was mentioned by the noble and learned Lord who has just sat down. For my part 1 doubt greatly whether the panel procedure ought to be applied to these great State trials which I am contemplating. I know my noble friend proposes it in his second or third Amendment, but I am rather doubtful whether that should be so. I saw the force of the argument addressed by the noble and learned Lord—the difficulty of picking a panel—and therefore on the Second Reading I felt it so strongly as to vote in favour of the Bill. I do not feel that a panel would be a necessity in the case of great State trials Such as I have mentioned. That is the argument that had great weight with me. I should be very sorry, as I said on the Second Reading, to touch these ancient forms which have great value in themselves, except so far as it can be shown to be absolutely necessary. I did think on the Second Reading that you could not defend this procedure as applied generally, but I do not think it in the case of these special cases of treason, and I hope your Lordships will agree to the Amendment.
§ THE LORD CHANCELLOR
My Lords, whatever the noble Marquess says by way of advice to this House is always listened to with the greatest attention, and generally, in my experience, he manages to convince the majority of the House.
§ THE LORD CHANCELLOR
Perhaps not invariably but generally, and I hope generally that it will remain so in the future as it has been in the past. I share a great deal of the views of the noble Marquess. I share with him the feeling that one ought not to get rid of an old tradition, however it may have outlived its original usefulness, merely on the ground that it has become rather an anachronism, unless it can be shown that there is a serious practical inconvenience in its maintenance. I share, as he knows, his desire to see a reform in the constitution of this House. But, although I approach the subject to that extent from exactly the same point of view as my noble friend has laid before your Lordships, and although I am always 807 apt to accept what he says with respect—not only with the respect that is due to him for his long membership and wise counsel, but also from the fact that I had the privilege of serving under his leadership for a considerable time—I do not quite take the same view as he does on this topic, and since it is not in any way a Party or even a Government matter I feel bound to explain the reasons why I do not reach the same conclusion as he does.
Lord Rankeillour, when he introduced his Amendment, pointed out that one of the reasons that operated with your Lordships in carrying the Second Reading of the Bill was the inconvenience and cumbersome method involved in trying comparatively slight offences, and he said of course that a charge of treason was as grave a matter as could possibly be conceived, and therefore that argument no longer weighed. I do not think it is true to say that that argument, although it was one of several, was the main or dominant argument, and indeed my noble friend Lord Salisbury said so, and I do not think it was the main argument with him.
§ THE LORD CHANCELLOR
It was an important argument with him, but he pointed out two arguments which he thought were of particular importance. One was the difficulty of distinguishing between felony and misdemeanour, and the other was the inconvenience and difficulty of asking large numbers of persons to try a comparatively small issue. He said, with regard to the former argument, that no such considerations were involved in cases of treason. I do not think I can quite agree with my noble friend. It is true we are not dealing in cases of treason with any difficulty of distinguishing between felony and misdemeanour, but it is equally true that treason and felony, if they be separate offences—for which my noble friend cited high authority—are very much intermingled, and indeed in more modern days treason felony, which is undoubtedly felony, is the offence for which usually the indictment is brought. The actual charge of treason I think—I am speaking without research—ever since the beginning of the reign of Queen 808 Victoria has been reserved for persons taken in arms, in time of war against the State. Apart from that, treason and felony might very easily overlap and be difficult to distinguish.
With regard to the difficulty of having large numbers of persons to try a small issue, it seems to mo that the greater the issue is the more likely is it, as Lord Salisbury said, to be a matter of political controversy and high political passion, and the more unfortunate it is that the decision should be left not to an impartial jury of twelve persons, which has to be unanimous, but to the majority of a wholly innominate tribunal, which even to-day may extend to 600 or 700 people, and which if the Executive were ever so wicked as to bring a prosecution from some Party political standpoint, they could easily alter by creating fresh Peers. Your Lordships will appreciate that to-day, if there were a Government so lost to all sense of propriety as to launch a charge of political treason against members of this House, whereas under this Bill they would have to prove their case before three Judges of the King's Bench Division, with a jury acting under the directions of the Judges as to the law, and bound to reach a unanimous verdict before finding the accused guilty, under the existing procedure they could pack this tribunal by creating new Peers, and they would only have to produce a majority in order to obtain a conviction against the accused. It seems to me that if it be true, as I think it is, that an amorphous body, the constitution of which cannot be given with any certainty, and the numbers of which nobody can tell, is an unsuitable body to try a political issue such as has been envisaged, surely it is a mistake, when your Lordships have decided, as you have on the Second Reading of this Bill, to get rid of this so-called privilege, this difference between Peers and the rest of the community in the mode of trial, that you should limit it to exclude those cases of treason which, it seems to me, are pre-eminently the ones in which it is of the greatest value that we should have trial by a jury and King's Bench Judges.
With regard to the suggestion of a panel to be chosen in the same sort of way as a Select Committee—I think that is the proposal—and to consist ultimately 809 of about fifteen people, we all know that Select Committees are chosen from the representatives of each Party in the House, nominated generally, I think, by the Party Whips.
§ THE LORD CHANCELLOR
It is the only procedure which the noble Lord mentioned, and I think it is difficult to provide an alternative. Who is going to select? Is it to be the Government? Is it to be the Whips? Are you going to draw lots? How are you going to decide? Who are to be the fifteen people? And when you have decided, remember still under this constitution, unless you are setting up something quite different and new which cannot claim any antiquity or tradition to recommend it, a majority is going to decide. It is a decision of eight out of fifteen, who may be actuated by political passion, and who may be quite unsuitable to act as judges or to treat the matter impartially. It seems to me that the panel system would be, if possible, worse than the one that we might have to work under to-day.
In fact, of course, it is highly improbable that a trial of a Peer for treason will ever take place. We are dealing not with probabilities, but with possibilities; but when we are dealing with possibilities it seems to me a pity that, if that sort of trial ever happens, there might easily arise the very unfortunate situation that a Peer should have to stand this method of trial, which seems to me to give him every disadvantage and no advantages. And I am bound to say that what was said by my noble and learned friend Lord Atkin, who spoke with some personal experience of what treason trials really are, seemed to be quite unanswerable and almost conclusive on the merits. It is on those grounds that I hope that, in spite of what my noble friend has said, the Amendment will not be successful.
Of course, the noble Lord, Lord Strickland, says he wishes to sabotage the Kill. He quite consistently opposed it on Second Reading, and he supports any Amendment which will be likely to have that effect. I hope he exaggerates the effect of my noble friend's Amendment. But at any rate that is not an argument which would commend itself to anybody 810 who thinks that the Second Reading ought properly to have been passed. He said further that the democracy loves display, and if it is impossible to defend this mode of trial on any other ground it seems to me to be an extraordinary proposition to say that your Lordships' House is to preserve this mode of trial in order that some member of your Lordships' House in the future may be made a kind of public spectacle for the newspaper Press and for the proletariat to make fun of. To think that we should preserve this system in order that some of our successors may be butchered to make a public holiday seems to me to be very remarkable indeed.
Then, finally, there is this consideration, which I confess weighs with me a good deal. If there were such a trial as we are now considering, in which political passions run high and public opinion is widely aroused, whichever way the decision of your Lordships' House were to go with regard to the guilt or innocence of the prisoner, to the ordinary citizen it would be regarded as a political and a Party decision. At present if a Peer or a commoner be tried by a jury and found guilty or not guilty the public accepts that as having been a just trial, and an honest attempt at any rate to reach the truth. But if your Lordships imagine that a trial of this kind in a time of acute political passion, in which a majority has to decide one way or the other, is going to be accepted by the public as an impartial decision I think your Lordships are making a great mistake. I remember myself a Select Committee some twenty-five years ago in which my noble friend Lord Cecil took an active part, and the decisions that were reached, in which political matters were involved, were reached every time by the Party majority of six to four, I think it was.
§ THE LORD CHANCELLOR
I think I can remember—and I am sure my noble friend will confirm my recollection—how the decision of that Committee was accepted by nobody as being a just and impartial decision, or as anything but a travesty of any attempt at justice. I think it would be very unfortunate from the point of view of this House if we should ever be exposed to the kind of attack 811 which undoubtedly will be levelled against it in any sort of trial such as we are now considering. For all these reasons, while I hope and believe that it is very unlikely that any member of your Lordships' House will within any measurable space of time ever be charged with treason, if that unfortunate event should ever happen, I think it would be far better for him and for the House that he should be tried by a special jury and three Judges, as is normally the case in any high treason trial to-day, rather than that he should be left to the mercy of a majority decision in this House.
THE EAEL OF HALSBURY
My Lords, there have been two speeches that struck me as being rather strong against the Amendment, one by the noble and learned Lord, Lord Atkin, and the other by the noble and learned Viscount who has just spoken. They both seemed to be frightened lest, if political interests were at stake, feeling would be running high, and I think Lord Atkin went so far as to say that in those circumstances your Lordships' House would not be a proper tribunal to try the case. Why it should be more swayed politically than a jury I do not know. The noble and learned Viscount was following rather a different line. He was not suggesting that your Lordships could not try the case properly, but he was frightened of what the public might say of the result. Are your Lordships going to be frightened, if you have done your duty, of what the public will say about you? I should have thought not.
The other remark that fell from the noble and learned Viscount on the Woolsack that struck me as being very odd was this. He said, supposing you had in fact got a Government in power who for political reasons wanted either an acquittal or a conviction, all they had to do would be to make new Peers, who would come down—and do what? He suggested, to vote as they were told. Is it really suggested that you would have 400 or 500 people being made Peers, and that, having had to take their oath, they would then deliberately come here under orders, apart from the evidence, to vote "Guilty" or "Not guilty" as they were told? I do not believe there is any possibility of such a thing happening. If that is the only argument advanced to frighten us off this Amendment, I hope your Lordships will agree to it.
§ LORD CARNOCK
What has never been made clear to me is that there are other forms of trial which can be used besides the trial of a Peer by his peers. There is still an Act of Attainder, there is still a Bill of Impeachment, there is still a Bill of Pains and Penalties. So far as I know these are still on the Statute Book and could still be employed. For instance, the noble and learned Lord who spoke about the trial of Stafford, an infamous trial I think it was, based on the evidence of Titus Oates. Surely, he was tried on a Bill of Impeachment, and it was not a question of a trial of a Peer by his peers but quite a different procedure.
§ LORD ATKIN
I beg the noble Lord's pardon. Stafford was tried on indictment. There was an impeachment pending, but he was in fact tried on an indictment.
§ LORD CARNOCK
Naturally, I bow to what the noble and learned Lord says, but I am afraid I was under the impression that it was a Bill of Impeachment. But there are these other modes of procedure, and I only suggest, in considering this Bill, that those other modes of procedure should also be considered, because they do exist.
I was going to raise a similar point and did mention it to the noble and learned Viscount. The question is this: Does he consider the proposals in this Bill will affect the procedure by which a member of your Lordships' House is tried by this House on impeachment by the House of Commons?
§ VISCOUNT SANKEY
If I may answer the noble Viscount, No. And of course impeachment applies to commoners as well as to Lords.
§ VISCOUNT SANKEY
Yes. I hope this Amendment will not be carried. The noble Lord's proposal is that your Lordships should retain in your own hands the trial of any one of your Lordships' House who is accused of treason. The noble Lord evidently feels the force of the many objections there are to this mode of trial, because he has put down two Amendments to save, if possible, some of the objections from applying, and I rather gather that the noble 813 Marquess, Lord Salisbury, does not agree with the proposed Amendments as to procedure.
§ THE MARQUESS OF SALISBURY
I was only speaking of the last of the three Amendments. There was an intermediate Amendment giving the option. I should have thought that was a very good Amendment.
§ VISCOUNT SANKEY
I am much obliged to the noble Marquess. The argument therefore divides itself into two parts. First of all, will your Lordships permit me to give you the reasons why the trial of a member of this House by his brother Peers for treason is undesirable, and why the Amendments as to the procedure are not practicable? If some power had insisted that the House of Lords should try any offence committed by any one of its members, but that they might excuse themselves from trying any one particular offence, I should have thought that the one offence that this House did not want to try, and did not want to meddle with, was the offence of treason. Why? The House of Lords is a political Assembly, and treason is a political offence. Surely it is undesirable that a political Assembly should be entrusted with the task of trying a, political offence?
Consider for a moment. Let us suppose a trial for treason ten years hence. One thing you may be sure of is that feeling will be running high. It is the one class of offence concerning which the feeling of all of us runs high. There may be many in this House who will sympathise with the accused. There may be many in this House whose passions will be inflamed against him, because this House does not differ from any other body of our fellow countrymen. We are all Britishers. We share the feelings of our fellow countrymen, and we know perfectly well that in a case of treason feelings will run high and people will take strong views, one side or the other. Could there be a more unfortunate tribunal for a political trial than a political Assembly? What would be the effect of that trial on public opinion? What would be the effect of that trial on this House? Whichever way this House decided, it would not escape criticism. Would it not therefore be advisable that in the case of treason, above all others, this House 814 should not meddle with a political trial of that character? Would it not be far better to let such a charge go before the ordinary tribunal of the realm, before a Judge—I will not say above suspicion, because nobody suspects your Lordships of desiring to do the wrong thing, but feeling does run high and the Judge is detached? He has been trained to give up all idea of politics, and surely a Judge in that detached position, with a jury chosen by lot, will not only give much more satisfaction, but will come probably to a more correct result. It is not only important in this country that justice should be done but that justice should seem to be done.
May I endeavour to give some analogies and see whether we have had some sort of experience of entrusting political matters to political assemblies? It will be in the memory of some of your Lordships that before 1868 election petitions were tried by the House of Commons; and they never gave any satisfaction. I believe—but I cannot speak of this accurately, because I have not looked it up—an endeavour was made to meet that by trying to have members from both Parties to hear election petitions, and even then it was found that a political subject like an election petition was not satisfactorily tried by a political body. My second example has been already referred to. Every one of your Lordships remembers the Marconi case, and everyone of us would like to forget it. There was another example of a political assembly trying a political offence.
What did your Lordships do yesterday afternoon? You agreed with another place that in some question of a possible leakage concerning the Budget you would set up a Tribunal with a High Court Judge at the top of it. Let me put the point that the noble Lord, Lord Atkin, put. Supposing in one of these treason trials, which may very likely happen, there is more than one person involved, and supposing they are a Peer and a commoner. The Peer will be tried here, if this Amendment is carried, and the commoner will be tried at the Central Criminal Courts. Supposing your Lordships, quite rightly, acquit the Peer, and supposing the Central Criminal Court, quite rightly, convicts the commoner, what is the public going to say? You cannot 815 separate these trials in that sort of way. I repeat that there is no more unfortunate thing left to be tried by the House of Lords than a charge of treason.
I do not know whether the noble Duke, the Duke of Atholl, is in his place. He asked me to say something about the Act of Union. Really this will not affect Scottish Peers any more than it will affect English Peers. As a matter of fact the Act of Union has been altered time after time, and generally Scotland has gained by it. By the Act of Union there were forty-five Scottish members in the House of Commons. By the Act of 1832, there was a repeal which raised the number to fifty-three, and then the Representation of the People (Scotland) Act raised them to sixty. Next came the Redistribution of Seats Act, 1885, which raised the number to seventy-two; then a later Representation of the People Act which raised them to seventy-four. I am sure the noble Duke would acquit me of any desire to be discourteous if I say I really need not go into that matter any further. But one final thing I will mention. The Union of Scotland Act enacted that the Privy Council in Scotland was to be continued, and this provision was amended by the Union of Scotland (Amendment) Act, which enacted that there should be one Privy Council for Great Britain.
Let me now come to the next point—the question of some alteration in the procedure, because, if the noble Lord is logical, he is bound to have Amendments in regard to procedure if he is to induce your Lordships to adopt his Amendment in regard to treason. The noble Marquess, Lord Salisbury, intervened to say he was in favour of the first Amendment. That would put a very embarrassing choice upon the Peer. The Amendment is that a Peer may, if he likes, waive his privilege and not be tried by this House. That is to say he can be tried by the ordinary Courts of the realm. Most unjust things took place in the public Press with regard to Lord de Clifford, and the noble and learned Viscount, the Lord Chancellor, referred to anonymous letters that had been received. It was said: "This is a scandalous thing of Lord de Clifford. Why did not he waive his right to be tried by his Peers, and take his trial like an Englishman with ordinary Englishmen?" Of course the answer was that 816 he had no right to do so. See the position into which you put an accused Peer. People will say: "Here is this Peer; why did he not waive his privilege and save all this time and all this expense?" I submit that the Amendment is putting an undue burden upon the Peer.
Now let me endeavour to indicate to your Lordships, if I can, some of the difficulties with regard to reducing the numbers. You will observe that the noble Lord's Amendment is permissive. It says that the House may depute to some of its members the trial of a Peer. Who is to move? It will be, as was pointed out, a Government prosecution. Supposing the Government think it is a proper thing that there should be a smaller tribunal, and supposing the Government move to that effect and they are defeated? On the other hand, how are you to select the panel? Is there to be Amendment after Amendment as to who is to sit upon it? So you get the same difficulty that there is in the United States of America, where it may take weeks and weeks to constitute a jury. Again, is a noble Lord to have a right of challenge? Is he to be entitled to object to anybody on the Committee? Again, as has already been asked, with a panel of fifteen or twenty are they to be unanimous or is a bare majority of the panel to decide the fate of one of your Lordships? Surely, in whatever way you look at the proposed panel, the difficulties of constituting it—who is to constitute it, how it is to be constituted, its numbers and its functions—are overwhelming, and it does not get rid of one of the chief objections to this procedure, the waste of judicial time. It was the waste of judicial time on the last occasion which was one of the most striking objections to this form of procedure. I ask your Lordships to say that it is far better, as you have decided that you will abolish the privilege so far as felony is concerned, to make a clean sweep while you are about it. That is the only logical and practical way of doing it, and I hope very much the noble Lord's Amendment will not be carried.
§ LORD RANKEILLOUR
The noble and learned Viscount who has just spoken gave considerable attention to the subsequent Amendments. They are no part of my present proposal, and I will say very little about them, but with 817 regard to the option, your Lordships will remember how it was urged with the greatest strength on the Second Reading that the present procedure was unjust to the Peer himself. Well, I seek to remove that. But it is not part of this Amendment. Then with regard to the panel, I look at it in this way. Cannot you take the membership of this House as a jury list as it were, and is it beyond the wit of your Lordships, by something analogous but not exactly like the present process in regard to jury lists, to get a panel and then exercise the usual rights of challenge upon it? I cannot believe that this bogey of debates going on day after day and week after week really has any validity in it. I do not flatter your Lordships by saying that we are a superior intellectual order, but I do say that a sufficient jury with a sufficient sense of responsibility can be selected out of the body of your Lordships' House, as out of any other 700 citizens.
However, I wish to turn for a moment to the more general considerations. The noble and learned Viscount who has just spoken made a very strong point that your Lordships ought to be detached from political issues. Would he support the abolition of the present appellate jurisdiction of this House because it often involves political issues which are twisted for political purposes—as the legal decision in Allen and Flood and the Taff Vale Railway? They were decisions of the Judges alone, but as long as the appellate jurisdiction remains in your Lordships' House you cannot avoid the kind of criticisms upon the judgments of your Lordships' House which were then passed. I come to a later case, that is the case with regard to the Scottish Rent Law. It is notorious that the Election of 1922 was fought in Scottish urban districts on a decision of your Lordships, which immediately became a political issue, and the usual misrepresentation of your Lordships' actions took place. Apart from that, I suggest that your Lordships should not think too much of public opinion in this matter. We should do our duty, and I am sure your Lordships would do your duty without fear and without favour if the task of judging one of our own number on this gravest of charges were put upon you.
Then the noble and learned Viscount, and the learned Lord Chancellor also, made some reference to the Marconi 818 Committee, which, I am happy to say, the Government have taken care shall not be reincarnated on the present occasion. But what is the objection to the Select Committee for a judicial purpose? The objection is that they have no judicial machinery, there is no Judge present to guide them, the laws of evidence are not followed, they are constituted, in another place at all events, on Party lines, and there is no check whatever against abuses such as must always exist when a tribunal is not constituted upon the judicial system. The noble and learned Lord began to speak as if this Amendment were inconsistent with the two decisions on the Resolution and on the Second Reading of the Bill to which your Lordships came. May I say that on the first of those occasions, I did not press this matter at all, for the very simple reason that there would have been amongst your Lordships some who would have voted against it on the ground that it admitted felonies as a matter to be transferred from your Lordships, and others because it did not go far enough. Therefore this specific issue was not before your Lordships then. Neither was it before your Lordships on Second Reading. Second Reading, following Parliamentary tradition, merely means that at any rate some part of the Bill should pass into law. To make this particular exception cannot go back on anything your Lordships then decided.
With regard to Party feeling, of course that will arise whether the case is tried by this House or a common jury or a special jury in times of great excitement. I know one prosecution undertaken during the War which I am morally certain would not have resulted in a conviction in time of peace. That was before a Judge and a common jury. These possibilities cannot be helped, but I do suggest that a jury chosen from your Lordships, or even consisting of your Lordships as a whole, would have as high a standard of conduct and, guided by judicial opinion, as good an appreciation of the laws of evidence as any other tribunal that could be constituted. The noble and learned Viscount the Lord Chancellor spoke of the difficulties of treason felonies running into treason and the difficulty of distinction. Surely, the distinction would be on what the Peer is committed for trial. It will be clear on 819 the charge. Of course the distinction is that treason involves the death penalty and treason felony does not. Lastly, may I say that I think everybody has ignored the point that any person may have to go before a common jury and a single Judge? More than one noble and learned Lord has spoken as if trial at Bar is a matter of right. It is not. It depends on the
§ Resolved in the negative and Amendment disagreed to accordingly.
§ Clause 1 agreed to.
§ LORD RANKEILLOUR had given Notice of Amendments to insert new clauses after Clause 1, giving any Peer committed for trial on a charge of treason the right to claim trial at Bar, and empowering the House to depute its powers and duties at the trial of a Peer to such of their number as might be signified by Resolution. The noble Lord said: I do not propose to move these further Amendments, as they are merely bound up with the last proposal, but I do propose on Report to move an Amendment assuring to any Peer the right to trial at Bar for treason.
§ Amendment, by leave, withdrawn.820
§ wishes of the Government of the day. I submit that in this rare and grave class of offence a case has not been made out for a change, and I trust your Lordships will vote accordingly.
§ On Question, Whether the proposed words shall be there inserted?
§ Their Lordships divided:—Contents, 30; Not-Contents, 47.819
|Salisbury, M.||Exmouth, V.||Fairfax of Cameron, L.|
|FitzAlan of Derwent, V.||Forester, L.|
|Effingham, E.||Glenravel, L.|
|Halsbury, E.||Abinger, L.||Hastings, L.|
|Iddesleigh, E.||Brocket, L.||Jessel, L.|
|Macclesfield, E.||Carnock, L.||Middleton, L. [Teller.]|
|Malmesbury, E.||Clanwilliam, L. (E. Clanwilliam.)||Phillimore, L.|
|Peel, E.||Rankeillour, L. [Teller.]|
|Cornwallis, L.||Shute, L. (V. Barrington.)|
|Bertie of Thame, V.||Dunleath, L.||Strickland, L.|
|Esher, V.||Ellenborough, L.||Sudeley, L.|
|Hailsham, V. (L. Chancellor.)||Sankey, V. [Teller.]||Hutchison of Montrose, L.|
|Halifax, V. (L. Privy Seal.)||Kinnaird, L.|
|Addington, L.||Newton, L.|
|Bath, M.||Amulree, L.||O'Hagan, L.|
|Arnold, L.||Palmer, L.|
|Hardwicke, E.||Askwith, L.||Ponsonby, L. (E. Bess-borough.)|
|Lucan, E.||Atkin, L.|
|Midleton, E.||Balfour of Burleigh, L.||Rennell, L.|
|Munster, E.||Bayford, L.||Sanderson, L.|
|Onslow, E.||Boyle, L. (E. Cork and Orrery.)||Snell, L.|
|Plymouth, E.||Stanmore, L.|
|Stanhope, E.||Clwyd, L.||Strabolgi, L.|
|Gage, L. (V. Gage.)||Strathcarron, L.|
|Cecil of Chelwood, V.||Hampton, L.||Strathcona and Mount Royal, L.|
|Elibank, V.||Hardinge of Penshurst, L.|
|Falmouth, V.||Hare, L. (E. Listowel.)||Templemore, L.|
|Goschen, V.||Heneage, L.||Wigan, L. (E. Crawford.)|
|Mersey, V.||Howard of Glossop, L.||Wright, L. [Teller.]|
THE EARL OF HALSBURY had the following Amendment on the Paper: After Clause 1 insert the following new clause:
. Any Peer committed for trial on any of the following charges:
the setting on fire of a King's ship whether completed or in construction and all material therefor in any dock, the King's arsenals and all offences under the Dockyard Protection Act of 1772, penalty for which is death;
piracy with violence, the penalty for which is death under the Piracy Act of 1837;
may by notice in writing to the Clerk of the Parliaments within fourteen days of the date of committal claim that his privilege
be waived in respect of the charge; whereupon the trial shall follow at Bar in the King's Bench Division before those of His Majesty's Judges and a special jury.
§ The noble Earl said: I have put down here six other offences that I want your Lordships to retain. With four of them—treason, misprision of treason, treason felony and præmunire—I do not think I ought to trouble your Lordships. Having expressed your views about the last Amendment, I do not think it would be right and proper to ask you again to express your views about this, because misprision of treason, treason felony and præmunire are very much bound up with treason. As you have stated that you will not deal with treason, I do not propose to say anything about these. Regarding the other offences I have put down, I took the trouble to find out exactly what were the offences for which the punishment was the capital punishment of death, as I thought they ought to be retained by your Lordships. If a man is being tried for his life he will naturally want to be tried by the best tribunal. We have all been brought up to believe that this House is the best tribunal to try Peers for serious offences. Therefore what I am suggesting to your Lordships is that you should retain for trial here those offences for which the punishment on conviction is death. They are, in fact, murder, the setting on fire of a King's ship in docks and various other matters connected with this offence, the punishment for which is death; and piracy with violence, the punishment for which is death. Those, as far as I have been able to find—I am leaving out treason—are the only offences which are punishable by death in this realm. For that reason my Amendment is that your Lordships should retain here the trial of those, the most serious offences one can have apart from treason.
§ I do not suppose there is any crime for which the noble and learned Lord opposite, or the noble and learned Viscount who introduced this Bill, or even the noble and learned Viscount upon the Woolsack could not find circumstances that might turn it into a political offence, if political feeling were running high or there were some factor of that kind. The offences I have put down here are not what one would normally call offences in which political feeling would be expected to run high. I do not say that you could not 822 find an instance in which these offences could become political crimes, because it would be difficult to think of any crime which could not be turned into a political offence. These, however, are not crimes in which you would expect to find a political complexion, as you would in the case of treason. I therefore beg your Lordships to say that you will retain the trial of Peers for the most serious crimes. On the Second Reading of the Rill a great deal was made of the fact that it was very inadvisable to call all your Lordships together to try some trivial offence. I quite agree, but that does not apply to the three offences that I have put down. I might have put down many more, but I did not; I confined myself to those alone which carried with them the penalty of death.
§ Amendment moved—
§ After Clause 1 insert the following new clause:
(". Any Peer committed for trial on any of the following charges:
murder; the setting on fire of a King's ship whether completed or in construction and all material therefor in any dock, the King's arsenals and all offences under the Dockyard Protection Act of 1772, penalty for which is death;
piracy with violence, the penalty for which is death under the Piracy Act of 1837;
may by notice in writing to the Clerk of the Parliaments within fourteen days of the date of committal claim that his privilege be waived in respect of the charge; whereupon the trial shall follow at Bar in the King's Bench Division before those of His Majesty's Judges and a special jury.")—(The Earl of Halsbury.)
§ LORD ATKIN
I venture to think that there is a really serious objection to this Amendment. Your Lordships have now accepted the view that this House is not to try what I venture to call the most serious offences which a subject can commit—namely, high treason, the punishment for which is death. But you are now asked to reserve to your Lordships, of all the cases that can be tried, the cases in which capital punishment is the only punishment that can be inflicted. Why your Lordships should now depart from your former decision and reserve to your Lordships the cases in which you have imposed upon you the most terrible burden that falls upon man—namely, the decision in cases of life and death, both in law and in fact—I cannot imagine. There is one, I venture to think, quite insuperable 823 objection, if the noble Lord will allow me to say so: it is quite impossible to try a case of murder unless you have jurisdiction to find a verdict of manslaughter, because the defence to a great many cases of murder is manslaughter. If you were to alter this decision and put manslaughter into the Amendment, you would be putting back again Lord de Clifford's case! In these circumstances I venture to submit to your Lordships that when once we have decided the question of high treason, it ought to follow as a matter of course that we will not take it upon ourselves to decide any further question.
§ THE EARL OF HALSBURY
I have only one word to say about the criticism that has been made. It would be perfectly simple to alter the law, bringing a trial by your Lordships' House into line with a trial elsewhere—namely, that when a person is indicted for murder you would be allowed to convict of manslaughter. That would not bring in the de Clifford case, where the defendant was only indicted for manslaughter.
§ THE EARL OF HALSBURY
I was saying that the law could be altered to get over that difficulty. I say quite frankly that it startles me that the objection is made the whole time that your Lordships ought not to have the courage to give a decision because it is a difficult decision to give. I should have thought that your Lordships were perfectly capable of giving a decision and of taking upon yourselves the duty to give it, which at the present moment is still yours, and not of surrendering the duty. I certainly do not for a moment propose to withdraw the Amendment.
§ On Question, Amendment negatived.
§ Remaining clause agreed to.
§ Schedule agreed to.
§ Bill reported without amendment.