HC Deb 15 June 1864 vol 175 cc1800-11

Order for Second Reading read.


said, that he regretted the subject of forfeiture on conviction of crime had not been dealt with at the time of the passing of the Criminal Acts Amendment Bill. The law of forfeiture was unjust in principle, inconvenient in practice, and was unworthy of modern civilization. It had its origin in remote times. It was the worst feature of the prosecutions of Sylla and Marius in Rome, and in the feudal times the rich adopted it as a means of robbing the poor. The law on the subject now in force in the country was substantially that which was defined by the Statute of Edward II. That statute conferred upon the Sovereign the goods of all persons convicted of felony. He did not apprehend there would be any difficulty if the Bill became law in the matter of compensation to certain corporations who had claims to the goods of convicted felons. There was one class of cases which he did not propose to include in the Bill—namely, attainders. He did not think it right to punish the innocent for the guilty; yet, as the law of treason was of very rare occurrence, he proposed to confine his measure to ordinary cases of felony. At present the law made an anomalous distinction between felonies and misdemeanours. The smallest larceny was a felony, and conviction was followed by forfeiture. On the other hand, forfeiture was not a consequence of misdemeanour, though misdemeanour comprehended offences of a more injurious nature than the large majority of cases of felony that came before the Courts. In the mineral districts a man was sometimes sentenced to a day's imprisonment for stealing a lump of coal, and was told that all his goods and chattels were forfeited to the Crown. On the other hand, the bankers who a few years ago were tried at the Central Criminal Court for one of the greatest frauds that could be committed against society, and who were sentenced to lengthened terms of imprisonment, did not as misdemeanants incur any forfeiture whatever. The principle for which he contended was, that the punishment inflicted by the Court ought to be adequate to the offence, without superadding a punishment that fell upon the innocent. It might be said that the Crown was always ready on a proper representation of the facts to remit the penalty of forfeiture. Why, however, should they retain on the statute-book a law which was a blot upon the jurisprudence of the country? The operation of the law was shown in the case of an artist named Kirwan, who was tried and convicted in 1852 for the murder of his wife in Ireland's Eye. The capital punishment was in his case commuted, but all the convict's furniture and effects were sold by auction and the proceeds paid into the Treasury, to the exclusion of those who had the strongest claims upon the property. The Returns showed that a partial remission by the Crown of its rights was usually conceded, but this remission proceeded on no well-defined principle. A convict in Middlesex with £400 a year incurred the forfeiture of his property. His daughter applied to the Treasury, but she could only get £200 a year. The amounts that found their way to the Treasury from this source were very inconsiderable. The Crown usually exercised its rights, and left the convict's friends to make representations, in consequence of which the property, or a portion of it, was sometimes given hack. If that were the operation of the law in the case of the guilty, the House would see how vast an amount of oppression was exercised in the case of the innocent. Under the existing law, they could only protect themselves by conveying their property to some third party before trial. Not long ago a gentleman of position in Staffordshire became the subject of a prosecution for stealing timber. He was acquitted, but he had to go through the process of conveying all his property to others. There were not wanting, however, cases in which the parties to whom property had been thus conveyed had asserted their ab- solute right to it after a, verdict of "Not Guilty," Another class, of eases were those of coroner's verdicts. A coroner's jury in Staffordshire returned a verdict of "Manslaughter" against an opulent and highly respectable ironmaster in consequence of an accident. The verdict was quashed, or that gentleman might have been subjected to the humiliating process of conveying all his property to somebody else. The ironmaster actually retired from business rather than have the law of forfeiture hanging over his head. Take another case, brought before the House recently by his hon. Friend the Member for Bristol (Mr. H. Berkeley). Mr. Bewicke had been convicted of felony. Every article of his furniture had been sold, and he had no resource but to accept the miserable sum offered to him. A Committee was sitting to inquire into his case, and, whatever the result of their deliberations might be, Wife case itself would be remembered as a lasting monument of suffering innocence and grievous oppression. The cause of humanity and justice was deeply indebted to the exertions of his hon. Friend the Member for Dumfries, who had been mainly instrumental in divesting our Criminal Code of much of its former Draconian character. Considering the many just and humane modifications which had been of late years made in our Criminal Law, he could not but entertain the most sanguine anticipations that the British Parliament Would not refuse to abolish the last law of a barbarous age, and to place our criminal jurisprudence upon a footing more consonant and in harmony with that humane and enlightened legislation which had of recent years characterized its proceedings. He moved that the Bill be read a second time.


seconded the Motion.

Motion made, and Question proposed, "That the Bill be now read a second time." —(Mr. Charles Forster.)


said, that the Bill had the merit of being a short one, the enacting part of it consisting of three lines and a word. It was a measure intended to abrogate a law which had existed for a great many centuries. Now, before he consented to abolish anything that had the sanction of antiquity he should certainly require the most excellent and substantial reasons. He was generally inclined to believe that a law which had existed for a great many hundred years, had good reasons to sustain it. The hon. Gentleman said that the law had its origin in the worst times of the Roman empire, and that it had found its way into this country upon the introduction of the feudal system. Now Blackstone was at issue with the hon. Gentleman as to the pedigree of this law. It did not owe its origin to the feudal system. [Mr. CHARLES FORSTER explained.] He would beg the hon. Gentleman's pardon, but he would take leave to refer him to the second volume of Blackstone (Chitty's edition), who stated that the forfeiture of lands and the other property of a criminal was a doctrine of the old Saxon law, and that it did not belong to the feudal system. This, then, was a vestige of the old Saxon law. It appeared that it did not escape the attention of those who took part in the framing of Magna Charta, for it had a provision in favour of those who were unjustly convicted, and the law so modified by Magna Charta remained unchanged up to the present time. Now the law was not without its advantages as regarded the interests of society generally. The law of forfeiture placed the rich man on a par with the poor as regarded the administration of justice. The rich man had an enormous advantage over the poor in escaping justice. There was a tradition—he did not know whether it was true or not—that some time back a rich man tried for murder escaped by promising the judge the possession of his lands at his death. Whether the bargain was made or not it was certain that he escaped; it was agreed that the murder was committed, and the Judge's family eventually inherited the rich man's lands. Cases had recently occurred in which rich offenders had been enabled to clued justice by bribing witnesses essential to their conviction to keep out of the way. Ought there not, then, to be some ceuntervailing disadvantage? Was not the prospect of losing lands and goods to a large amount a strong inducement to wealthy persons to abstain from committing crime? He admitted there was an anomalous distinction between felonies and misdemeanours, many of which were graver offences than trivial felonies. The hon. Member for Walsall proposed to remove the anomaly by relieving the felon, but he should rather be disposed to go in the other direction and make the misdemeanant in certain cases forfeit his land and goods as well as the felon: Take the case of those who accumulated stolen property. The premises of such persons were sometimes found full of goods which they had acquired by dishonest practices, and it was only right that the law should lay hold of property acquired in that way. The hon. Gentleman said that law was evaded by the property being conveyed before trial to other parties; but he imagined that in cases of conviction the conveyance was invalid, and that the forfeiture related back to the commission of the offence. Then, again, they were told that the innocent wife and children suffered from the cruelty of the law. But they must remember that one inducement to a man to observe the law was the consideration that if he broke it, not only himself but his family would be involved in the evil consequence; and that consideration was also an inducement to the man's family to keep him within the law. The case of Mr. Bewicke, referred to by the hon. Gentleman, was still under consideration; but he, as a Member of the Select Committee, would only say to the hon. Member, that if he knew as much of the facts as the Committee he would not have used the strong expressions which had just fallen from him. He was far from saying that the law was perfect. There were many points upon which the law might be altered in the sense which the hon. Gentleman wished; but, on the other hand, he (Mr. Hunt) would like to see the made applicable to many classes of misdemeanour. If the hon. Member had proposed a Select Committee to consider what alteration of the law was necessary, he would have voted with him; but the Bill as it stood was a crude piece of legislation, incapable of being put into a satisfactory shape, and he therefore moved that it be read a second time that day three months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. Hunt.)

Question proposed, "That the word 'now' stand part of the Question."


said, that if in voting for the second reading they were called upon at once to commit themselves to the full length to which the preamble of the Bill, literally interpreted, would carry them, he should be unable to bind himself to that extent. He understood, however, that his hon. Friend was only desirous of having the principle affirmed, that the present law of forfeiture of lands and goods was one which ought not to be maintained, and required mitigation; not that it was absolutely necessary in nil cases to abolish the forfeiture of land and goods, but that the present law was not suited to the times, and required at least a large alteration. In that sense he would prefer that the House should assent to the second reading of the Bill, on the understanding, however, that hon. Members did not pledge themselves to the manner in which the desired mitigation was to be carried into effect. If it was thought more desirable (as indeed he thought it was) that the matter should be taken up by the Government, who could collect from all their sources of information materials upon which to found a complete judgment, then he was prepared to promise that the subject should receive attention before the next meeting of Parliament. He would admit that if they had to choose between maintaining the present law of forfeiture and its total abolition, the latter would be, on the whole, preferable; but there was a course that was better than either. The very classification of crimes as felonies was singularly imperfect. As had been stated by his hon. Friend, there were many grave misdemeanours which were infinitely worse than slight felonies. Here, then, they came across an anomaly involving a practical injustice. On the other hand, the effect of the measure now before the House was such that, if it passed in its present form, a man convicted of a capital felony would escape the forfeiture of his property. The law at present showed so much tenderness for human life, that the heaviest punishment not capital could not be thought too great for some offences, for which death was not inflicted. Of this class of cases were murders and attempts to murder, where the capital sentence was commuted, and other crimes of violence, with some cases of forgery and fraud. In these cases, civil death seemed to be a most reasonable consequence of crime; but, if the present Bill were adopted simply as it stood, an offender, convicted of any of these crimes, might, notwithstanding, remain in the possession and enjoyment of the whole of his property. Such a money power might be capable of being inconveniently used against the law, even for the purposes of escape. If a mitigation in cases such as these were thought desirable at all, the law should still take from the individual the title to property, leaving the succession to the innocent members of the family. That was practically the case now, for where the family seemed unde- servedly to suffer, and memorialized the Crown, all the circumstances were usually taken into account, had the benefit of the family was not lost sight of. The hon. Member for Northamptonshire (Mr. Hunt) had alluded to another class of offenders, which made it most important that the Crown should retain some hold over the property of felons. He meant those who had accumulated, by robbery or fraud, a quantity of other people's property. The present law enabled the Crown, without litigation, to make such restitution to those who had been despoiled as was desirable arid possible. Without going further into details, he would merely mention one other subject involved in the Bill, which would require full consideration. One inconvenient relic of feudal times was what were called manorial rights. In many manors and royalties, amongst other rights of the Crown granted to individuals, were felons' goods. The Bill would abolish that right, and this might possibly be considered by some to involve a question of compensation. He expressed no opinion on that subject, he merely mentioned it as one which would require careful consideration. In assenting to the principle of the Bill, therefore, he did not pledge himself to details, and on that understanding he should support the Motion for the second reading.


said, when he was Attorney General for Ireland it became part of his duty to look into the subject, and he came to the conclusion to which Sir Samuel Romilly had come—that it was not possible for the wit of man to suggest an argument to justify the forfeiture of goods and lands. The matter was laid before his colleagues, and they were called before the Cabinet of which his right hon. Friend near him (Sir John Pakington) was a. member to explain the proposal which they had agreed to recommend. The result was that a Bill was brought in which was afterwards withdrawn, and referred to the Committee which was then sitting on the subject of the Consolidation of the Criminal Law. That Committee was of opinion that they could not do more than consolidate the statute law of the two countries, and the subject, therefore, was not taken up by them. He was not quite sure that he had correctly followed the shadowy distinctions of the Attorney General, but ho was willing to proceed upon this broad principle—that if they took away a man's life they ought to be satisfied, and not to inflict a punishment undeservedly upon his posterity. He never had a more painful duty to discharge than when, as Law Officer of the Crown, he had to decide what should be done with the property of-a wretched man who had been executed. Upon his advice the property was given, as it ought to be both by the law of reason and humanity, to the family of the man who had committed no crime, and therefore 6nght not to be punished. He had had occasion to defend persons charged with high treason, and he knew what was done in such cases-was that the property was conveyed away before the trial. There was a memorable instance of a person in Ireland, who, being accused of treason, took poison, and then, leaning over the dock, whispered to Curran, "We have deceived the Senate," and died. If the direct question were to go to a division, he should support it.


said, he should support the Bill, on the ground that cruelty in the punishment of crime was a great mistake. In the reign of Henry VIII. the cook of the Bishop of Rochester poisoned two of his fellow-servants, and in order to show abhorrence for a crime which had been perpetrated in a Bishop's palace it was enacted that he should be boiled to death. The cook was literally boiled, but what became of him afterwards he could not say. But the second section of the Act said that the lands of the offenders against it should escheat to the lord of the fee. He should like to know whether the Act of Henry VIII. was repealed last year? What injustice would be done by depriving the lord of the fee of such rights as he possessed under that Act? Another offence, once common in Lancashire, was witchcraft. Witchcraft was a felony. A case was on record of ten or twelve witches being tried for murder by incantation, and several of them were executed, and their land was forfeited. The offence and the forfeiture were abolished, and the crime being no longer cognizable by law it had ceased. He trusted that Parliament would do away with the barbarous law of forfeiture. Was there a man more to be pitied than one who had fallen into crime? Were he poor or were he wealthy, his1 reputation was gone for ever. He could never show firs face in society again. And where was his property? It was taken from his family; and if the man came back: from his punishment, 'where was he to live and how was he to live; and what became of his family? The late Governor of the Wake- field House of Correction had given an opinion that cruelty in the punishment of crime had been a great mistake; and that; it was not the excessive vindictiveness of; the law that prevented the commission of crime, but moral instruction and teaching.; The House and the country were indebted-to the hon. Member for bringing in this Bill. The property gained by the Crown by forfeiture was infinitesimal; its loss was ruinous to innocent families; and the system was unbecoming the dignity of a great nation.


said, he had been struck by the curious language which had been used by almost every hon. Gentleman who had spoken on the subject. The hon. Gentleman who had brought in the Bill; and had supported his views with great candour and great power, spoke of the right principle upon which all punishment ought to be inflicted, and said that the present state of the law was unjust to the children. But he should like to know what punishment inflicted upon the father did not fall upon the children, and whether there was not high authority for visiting the children for the crimes of their parents? The hon. Gentleman who moved the Amendment said he had a great love foe anything that was ancient.


explained that what he did say was, when a law had existed for centuries he always presumed there was good reason for it, and therefore he required good reasons for its abolition.


said, that the law against witches had existed for centuries, and therefore recommended itself to the hon. Gentleman. The Attorney General had spoken of the enormity of the of the offence. But what had the enormity of the offence to do with the punishment? Punishment ought to be inflicted only for' two purposes —first for reformation and then for prevention. He thought it was Bentham who said that if a crime could be prevented by a fine of a penny, then any infliction of pain beyond what such a fine would cause was wrong. Now, it was supposed-that the forfeiture of lands and goods was a means of preventing crime. But was that mode of prevention equivalent in the one scale to the pain and misery inflicted upon the family in the other? It was not a matter of sentiment, but of inquiry; The greater part of the crimes of society were committed by poor people. He did not state that for the purpose of showing that there was inherent vice in the poor, but simply as at matter of fact. The punishment in question had no existence for the peer, nor would any one, believe that the rich were prevented from committing crimes by the fear of the loss of their property. In Scotland the penalty of forfeiture for the crime of treason was made void by an arrangement by which the succession should be in one person, but the actual enjoyment in another, and the father went on one side and the son on the other, so that, whatever turned up, the family always kept the estate. But it could not be said that England wag less famous for its treasons than Scotland, and therefore the loss of property was no prevention of crime. He could come to the same conclusion as his hon. Friend (Mr. Charles Forster), though upon different grounds; and he maintained that all that was done by the present state of the law was unmitigated mischief, because it produced pain without any corresponding advantage. He quite agreed with the Attorney General that it was a grave matter, and ought to be dealt with by the Government. He was sure from the character of his hon. Friend he would be glad to see the matter in the hands of the Government, but the Government must not trifle with it. They must understand that the opinion of society demanded that an exceedingly mischievous provision should be struck out of the law, and that the time had arrived for doing so. If, therefore, his hon. Friend would take his advice, he would place the matter in the hands of the Attorney General.


said, he should support the Bill. It was an ancient principle of English law laid down by Blackstone, that no man should be fined beyond his means, but in this case a man was not only fined beyond his means, but was, deprived of tin: whole of his means.


said, there seemed to be a general concurrence of opinion in the House in favour of the Bill, and he had no hesitation in giving it the support. He ventured to say that from the beginning of the world no one had been deterred from the commission of crime by the fear that he would lose his property and goods. Besides, the law as it stood was practically inoperative, as, because when an accusation was brought against a man, the first thing that was done was to make an assignment of his property to trustees for the benefit of his family. He knew himself of a case in which A man had in this way transferred property worth £30,000, and though he was afterwards acquitted the trustees refused to give up the property, and, as far as he knew, he was now destitute and entirely dependent on the bounty of his family for support. He approved the language of the Bill, which was simple and effectual for its purpose. If the measure was committed to the Attorney General, it would not pass this Session, and therefore he hoped the House would support the second reading of the Bill.


said, he hoped they would not have a division, for, substantially, they were all agreed upon the subject, and if the right hon. Baronet the Secretary of State would intimate that the matter would be taken up by the Government, the hon. Gentleman would do well to leave it in their hands. It was net desirable to pledge the House, as the Bill proposed to do, that it was expedient to abolish the forfeiture of lands and goods. All that ought to be done was to restrain the forfeiture. If forced to ft division, ho should be obliged to vote against the second reading, though he should be sorry not to meet the views of the hon. Mover.


said, he had not the slightest difficulty in giving the assurance required by the hon. Baronet, though he thought it unnecessary after what had been stated by the Attorney General. His hon. and learned Friend had agreed in the principle of the Bill, that the goods of persons convicted of felony should not in all cases be forfeited, though there were certain cases in which he thought further inquiry necessary, with a view to ascertain whether the principle of total abolition should not be modified. The Attorney General thought it necessary to get information with respect to the working of the law in foreign countries. In France ho believed power was given to the Court in certain cases to impound the property either for the purposes of paying the expenses of the prosecution, or of giving compensation to persons who had suffered by the crime. His hon. and learned Friend had undertaken to look fully into the matter.


said, the House was generally in favour of the Bill, but when he found that the alteration of the law was contained in three lines, he could not understand how the measure could be amended in Committee to suit the views of the Government. The wise course would be to withdraw the Bill, and leave the matter in the hands of the Government.


said, he should shear with great regret that any course was adopted which-would have the effect of postponing the Bill. There were too many uncertainties attending every measure of law reform to allow him to view with satisfaction any step which might load to delay. The measure itself had his most cordial concurrence, and there was but one point with respect to which he entertained any doubt. During the time the late Government was in office, and while they were engaged in the consolidation of the statutes and the assimilation of the criminal law of England and Ireland, very attentive and mature consideration was given to the question, and the unanimous opinion of all concerned was that the law should undergo the alteration which it was the object of the present Bill to effect. The matter was submitted to the Cabinet, and but for the change of Government a measure similar to that before the House would have become law some five or six years previously. He thought the only doubtful question was, whether the abolition of the whole system of forfeiture should apply to oases of high treason? He hoped his hon. Friend would persist with the Motion.


said, if the hon. Gentleman would consent to withdraw the Bill and leave the matter in the hands of the Government, he would not press his Amendment.

Question, "That the word ' now' stand part of the Question," put, and agreed to.

Main Question put, and agreed to.

Bill read 2°, and committed for Monday, next.

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