Sitting of 29 April 1840

MINUTES.
Petitions presented. By Sir Walter James, from the Covent Garden Society, in favour of the Copyright Bill.—By Sir R. Currie, from Northampton, against the War with China.—By Sir E. Wilmot, from Bury St. Edmund's, in favour of the Grammar Schools Bill,—By Sir G, Grey, from Glasgow, and Ayr, in favour of the Claims of the Scotch Church to partake of the Clergy Reserves (Canada).—By Mr. V. Smith, Mr. Ewart, Mr. C Lushington, and Mr. J. Parker, from several places, against, and by Sir W. James, Lord Cantilupe, General Lygon, Colonel T. Wood, and Mr. Gladstone, from a number of places, for, Church Extension.—By Mr. Pryme, from Sutton, for the Abolition of Ecclesiastical Courts, and of Church Rates, and the Release of John

1133
Thorogood.—By Mr. Sanford, from one place, in favour of the Grammar Schools Bill.—By Mr. Sergeant Talfourd, from several places, in favour of the Copyright Bill.—By Colonel Conolly, from a Board of Guardians, against the Power of the Poor-law Commissioners of Ireland—By Mr. F. Maule, from Elgin, and other places, in favour of Non-Intrusion; and from one place, against permitting Foreign Fishermen to Fish within nine leagues of our Coast.

CAMBRIDGE ELECTION.
Sir C. Lemonreported from the Cambridge election committee,
"That the Hon. J. E. T. Manners Sutton is not duly elected a burgess to serve in the present Parliament for the borough of Cambridge; that the last election of a burgess to serve in Parliament for the said borough is a void election; that the petition of Ebenezer Foster and others did not appear to this committee to be frivolous or vexatious; that the opposition to the said petition did not appear to the committee to be frivolous or vexatious."
The hon. Member said he was further instructed to report that the committee had also agreed to the following resolutions:—
"That the Hon. J. E. T. Manners Sutton was, by his agents, guilty of bribery and treating at the last election for the borough of Cambridge; that it appears from the evidence taken before the committee that an extensive and corrupt system of treating prevailed on the part of many influential members of the constituency at the last election for the borough of Cambridge."
Report to be entered on the journals, and the evidence to be printed.

POWER OF THE SUPERINTENDENT AT CANTON.
Mr. Gladstonehad a question to put to the Under-Secretary for the Home Department with respect to the accuracy of a statement which appeared in the morning papers. It was stated that certain English seamen had, in July last, been tried and sentenced by Captain Elliot, at Canton, to a certain term of imprisonment in England, on account of having been engaged in a riot which terminated in the death of a native Chinese. It further stated that the opinion of the law officers of the Crown was taken by order of the Home Office, as to whether these persons could be lawfully detained in custody or not. That opinion was in the negative, and an order was sent from the Home Office for their discharge. He wished to know whether that statement was correct in all its parts.
Mr. F. Maulesaid, the statement to which the hon. Member referred was not
1134
correct in all its parts. It was true that these five men were tried in China by a court constituted by Captain Elliot, and sentenced to a certain period of imprisonment in England. On that being reported to the Secretary of State, the opinion of the law officers of the Crown was taken, and they gave it as their opinion that, as the matter was not quite clear as to whether Captain Elliot could sentence these persons to imprisonment in England, on the whole, they recommended that on the arrival of these individuals in England they should be liberated. The seamen arrived in the Leander two days ago, and they were accordingly liberated.

JUVENILE OFFENDERS.
Sir EardleyWilmot moved that the Juvenile Offenders' Bill be re-committed.
Mr. Barnebysaid, he had received the strongest expressions of disapprobation of the bill, and should therefore move the House should go into committee on it that day six months. He objected to the bill because, by its provisions, crimes of the heaviest nature, if committed by juvenile offenders, were left to the decision of two magistrates; and also on account of the heavy expenditure which would be entailed upon the country in order to carry its provisions into effect. The magistrates had power given them to order the payment of all expenses out of the county rates; and it was also enacted that places should be provided for the holding of petty sessions, which, by one of the clauses of the bill, were prohibited from being held at public-houses. This would entail an enormous expense upon the counties. These he felt to be insurmountable objections to the proposed measure, and he should therefore move that the House do go into committee that day six months.
Sir E. Wilmotsaid, the bill had already been before the House three months; it had been read a first and second time, and had been referred to a select committee, and it was rather hard that the hon. Member should come forward at the eleventh hour with an amendment, such as the one which had been just proposed to the House, more especially as the arguments urged in support of it had been over and over again refuted. The bill was not one of punishment but of mercy, its object being to give prisoners a chance of avoiding the contamination of a gaol. If the measure had been one for the ag-

1135
gravation of punishment, he would admit it might be conferring too great a power on the magistrate; but, looking upon the measure as one of mercy, he thought the arguments of the hon. Gentleman not tenable. He thought that alterations might be made in the bill which would render it a very useful measure. From every part of England he had received communications suggesting amendments in the details of the bill, but approving of its principle; and he, therefore, hoped that the House would not refuse to go into committee on the subject.
Mr. J. Jonessaid, that there were certainly several provisions of the bill which he could not approve of, but he thought that the time had come for taking some step in the matter. Another point worthy of consideration was, whether there should be an option given to the prisoner to have his case decided by the magistrates or before a jury.
Mr. Prymesaid, his chief objection to the bill was the power of summary conviction. There might be inconvenience from sending persons to prison before trial, but this bill sent them there after trial— and where was the difference? True, the prisoner had the option of having one whipping and being discharged, but might not that be done as well without this summary—not to say arbitrary conviction? Might there not be a jury of six or eight— or a jury at petty sessions. It was said, that three magistrates would be an approach to a jury, but his objection was, the magistrates were not at all of the same class of society as the prisoner; whereas, when a magistrate presided before a jury, the case was decided upon by two classes of persons. He had rather have the responsibility divided among a smaller number of magistrates than a larger. It might be difficult in some cases to get three magistrates to attend. Allusion had been made to the proposal he had made, but what connection was there between abolishing the grand jury, which did not decide upon the guilt or innocence of the prisoner, but was a secret tribunal, and doing away with the petty jury, which did decide upon the fate of the prisoner?
Mr. Darbyobjected to the bill, for several reasons, which he had stated on other occasions, and with which he would not now trouble the House. One insuperable objection, amongst the many which presented themselves against the details
1136
was, that the offences in respect to which the magistrate was to have summary jurisdiction were not defined or distinguished from those cases which were to be tried before a jury. He thought the bill would not operate fairly, and he would vote for the amendment.
The House divided on the original motion:—Ayes 70; Noes 20—Majority 50.

List of the AYES.

Baring, rt. hon. F. T.

Maunsell, T. P.

Barnard, E. G.

Morris, D.

Blackburne, I.

Murray, A.

Blake, W. J.

Muskett, G. A.

Boldero, H. G.

O'Connell, M. J.

Bowes, J.

O'Ferrall, R. M.

Bryan, G.

Packe, C. W.

Childers, J. W.

Paget, F.

Chute, W. L. W.

Parker, J.

Courtenay, P.

Pattison, J.

Duncombe, T.

Philips, G. R.

Ewart, W.

Polhill, F.

Fort, J.

Ponsonby, C. F. A. C.

French, F.

Richards, R.

Goddard, A.

Rose, Sir G.

Goring, H. D.

Round, J.

Grey, Sir G.

Russell, Lord J.

Hawes, B.

Rutherfurd, A.

Hawkins, J. H.

Sandon, Lord Visc.

Hindley, C.

Sanford, E. A.

Hobhouse, Sir J.

Sheil, rt. hon. R. L.

Holmes, W. A'C.

Staunton, Sir G. T.

Hume, J.

Stock, Dr.

Hutchins, E. J.

Strutt, E.

Hutt, W.

Talfourd, Mr. Serg.

Hutton, R.

Teignmouth, Lord

Inglis, Sir R. H.

Thornely, T.

Irving, J.

Vigors, N. A.

Jones, J.

Vivian, Sir R. H.

Lambton, H.

Warburton, H.

Lemon, Sir C.

White, A.

Lennox, Lord G.

Wood, Col. T.

Lushington, C.

Yates, J. A.

Lushington, S.

Lygon, hon. General

TELLERS.

Mackenzie, T.

Wilmot, Sir E.

Maule, hon. F.

Douglas, Sir C.

List of the NOES.

Buller, E.

Lowther, hon. Col.

Conolly, E.

Mahon, Lord Vis.

Darby, G.

Milnes, R. M.

Dennistoun, J.

Nicholl, J.

De Horsey, S. H.

Norreys, Lord

Egerton, W. T.

Somerset, Lord G.

Estcourt, T.

Wakley, T.

Freshfield, J. W.

Williams, W.

Gladstone, W. E.

Greene, T.

TELLERS.

Heathcote, Sir W.

Barneby, J.

Hope, G. W.

Pryme, G.

House in Committee on the first clause.
Lord G. Somersetobserved, that he had

1137
not opposed the bill in its former stages, because he had understood it was to be referred to a Select Committee, where many of the objections that at present existed to the bill might be removed. He wished to draw the attention of the House to one point particularly, namely, in what way the magistrates were to ascertain the age of the parties brought before them. He did not find anything in the bill to meet that difficulty.
Sir E. Wilmotsaid, the reputed age of the parties must be acted on, as was the case at present.
Mr. Joneswould suggest that the culprit should have the option of being tried either by a jury or by the magistrates, as he might elect; there could then be no question raised as to the age of the party. He moved that three magistrates form the petty sessions in place of two.
Mr. Humehad no doubt the hon. Baronet's only object was, to save innocent parties from a long imprisonment, and to save the young culprit from being locked up and contaminated by a hardened offender; but he (Mr. Hume) did not think he was going the proper way to work. The only remedy would be to have courts sitting in every county in England and Wales, so that the gaols might be delivered at least once in every month. He objected to summary punishment. Magistrates had frequently oppressed the poor, and might do so again. The courts in counties were objected to on account of the expense they would create. But what was all the expense compared with the punishment of the innocent, and the delay of justice? Besides, he did not think the expense would be much increased, for there would be a great saving in the keep of so many prisoners. Magistrates had now enough of power in their hands, and he was unwilling to increase it. The present proposition did not go to the root of the evil, and he thought it would be an act of clemency to the poor and of economy to counties to establish those permanent courts. He entreated the House not to lose time in such paltry trifling, but to take the whole question of the administration of justice into its consideration.
Mr. Fox Maulethought the speech of the hon. Gentleman would have been better addressed to the House on the second reading of the bill than now when they were in committee. Although he agreed with much of what had fallen from
1138
the hon. Member, yet he considered the present bill a decided step in the amendment of their criminal jurisdiction. He did not see any great advantage in the substitution of three for two magistrates; on the contrary, he thought it would occasion some chance of the failure of justice, and great delay, and he should therefore decidedly oppose it.
Mr. Darbydid not think the amendment any improvement. With respect to the suggestion of the hon. Member to have the prisoners tried every month, there were at the present moment in East Sussex eight quarter sessions held in the year. The object of the bill was much more extensive than merely to increase the times of trial.
Mr. J. Jonessaid, if the hon. Under Secretary of State proposed to give the prisoner the option of being tried by a jury his objection would be done away with.
Mr. Wakleysaid, there was nothing like reducing responsibility into the smallest possible compass, in order more speedily to discover a wrong-doer, and therefore he considered the appointing of three justices, as proposed by the hon. Member, an evil. If three were appointed and a wrong decision come to, the excuse would be, "Oh! I was urged on by my colleagues?" or if two were appointed it would be, "Oh! I deferred to the opinion of one superior in judgment and age to myself." Therefore, if they were to have this summary power, he would rather it should be confided to one magistrate only. It would be a good thing for the country if three justices were never to assemble together again. He had seen a great deal of justices, and he would say that a more incompetent body of men could no where be found. A body of men more characterised by ill-temper, faction, and the most besotted ignorance, could not be found than the justices of the peace of this country. Within these few days an instance had come under his notice in the metropolitan courts, where, if anywhere, it might be presumed magistrates would be found who knew their duty. By an Act of Parliament, every pauper sent to a county lunatic asylum must be seen by the justices, before he was so sent, and they must have before them some disinterested surgeon to testify to the lunacy of the said person; but the magistrates, in the instance to which he alluded, had

1139
neither seen the person nor examined a disinterested surgeon. The common practice was for somebody to say to the magistrates that somebody was mad, and to ask the magistrate to sign a certificate committing somebody to a lunatic asylum; and if somebody was troublesome in the workhouse he was carted off at once to the lunatic asylum. Seeing the errors the magistrates committed, he was averse to trusting them with any further authority. He would say that a person under fourteen years of age was as much entitled to trial by jury as a person of double that age, and in all cases trial by jury should be had recourse to, and not that cases should be disposed of in a summary manner. The Government ought to take this question up, and, to obviate the evil complained of, grant more frequent gaol deliveries. He hoped and trusted that, instead of bringing in some measure such as that before them, the Government would propose one of a more general nature, and which would be better adapted to meet the views of the hon. Baronet the Member for Warwickshire.
Mr. Estcourtwished to make a few observations on an opinion expressed by the hon. Member for Finsbury. That hon. Member had perhaps founded his opinion of the magistrates of the country from those with whom he had himself come in contact. And he did not know how the case might be in Middlesex, but he could say that in distant parts of the country the picture which the hon. Gentleman had drawn of the magistracy was as different as light from darkness. He believed that the case which the hon. Member said had occurred in Middlesex could not have taken place in any other part of the country, and he was confident that no magistrate with whom he was acquainted would commit a party to a lunatic asylum with-out the strongest testimony on the subject. The matter was so improbable that he could not believe it unless it had been stated by a Member of that House. However, he agreed with the hon. Member in doubting whether the bill would have the effect of contributing to the highly humane object of the hon. Baronet who brought it forward—namely, the prevention of that moral contamination which resulted from the confinement of juvenile prisoners previous to conviction. He looked in vain for that power of appeal which might have obviated the evils arising from too summary conviction. He believed the
1140
bill to be an infringement on the constitutional principle of trial by jury, and thought that if magistrates were to decide on the cases, the responsibility should be limited, not divided among several.
Mr. Wakleytrusted, after the remarks that had fallen from the right hon. Gentleman, he might be permitted to mention the names of the parties and of the places.
Mr. Greenerose to order. The parties were not there to defend themselves; and the hon. Gentleman had, therefore, better not mention names.
Mr. Wakleysaid, that was the very reason he had not mentioned the names before; but, if it was the desire of the House, he would name the places. He was glad to hear what the hon. Gentleman had said, because he thought it was a practice that could not be too severely reprobated.
Amendment withdrawn.
Several other amendments agreed to.
Mr. Prymerose to move that in certain cases the magistrates should try the charges with the aid of a jury of six persons.
House counted out.