moved the Second Reading of the Administration of Criminal Justice Bill. His noble and Learned Friend on the Woolsack, and all their Lordships, were aware of the great inconvenience which arose in the trial of prisoners in different counties, in consequence of the provision of the law which required that all prisoners should be tried in the same part of the country in which the offences they were charged with had been committed. Now, it had occurred to learned persons who had considered the subject, that if certain towns were fixed upon as assize towns, to be declared by the Queen in Council, and the prisoners in each of the counties within a certain ambit were taken to be tried in those towns, the same Judge could deliver them out of gaol. The only objection he had heard urged against the proposal was, that it would be hard for prisoners to be obliged to bring their witnesses from a distance. But the treasurer of the county might be required, on receiving the certificate of the Judge, to pay the expense of conveying the witnesses of prisoners. If this measure was not adopted, more Judges must be appointed, as the present number could not deliver the gaols, and no mortal man could go four circuits in the year. Could anything be more ridiculously absurd, than that those who had committed offences within the ambit of the Central Criminal Court should not be kept in prison before trial longer than eight or ten days, whilst those who had committed the same offences, or much lighter, in Hertfordshire, or Berks, or Surrey, should be kept eight months in prison?—and they might be innocent all the while, or, if guilty, their offence might be punishable with only six months' imprisonment. There was only one of two courses to be adopted—either to pass the Bill with such alterations as might be suggested, or to appoint a greater number of Judges, to which there was always this objection—it would not be easy to devise means of employing the additional Judges during the rest of the year, after the circuits were over. He considered that, by 65 two additional Judges, an improvement might be made in the mode of doing chamber business, which was now done in a way highly unsatisfactory to the suitor. The two Judges might sit permanently in a court, with the check and advice of a Bar. A single Judge now in chambers hardly could be said to have full possession of his faculties, during the hurry and heat of a mob of attorneys' clerks. He wished that chamber practice were brought more into public, and if the number of Judges were increased, one objection, as to the want of employment for them in some parts of the year, might thereby be obviated.
§ The Duke of Richmond
said, that one objection to the Bill was the increase it would cause to the county rates. Why, he would ask, were the charges required for the purposes of the Bill to be imposed on the county rates, and not to be paid out of the Consolidated Fund? He liked his noble and learned Friend's latter proposition much better.
was very far from being adverse to the principle of his noble and learned Friend's Bill. He was ready to agree that it might be found expedient to consolidate counties, and work on the principle of the Central Criminal Court Bill, which had been found most beneficial in its operation. He would, however, advise his noble and learned Friend to postpone the Bill for the present Session, because he doubted whether, as it now stood, it would work at all, and whether is could be framed during the present Session so as to be carried into effect. There were many parts of the present Bill—the apportionment of the expenses, the places whence the jury were to be summoned, and where the prisoner was to be tried, how the judgment was to be carried into execution—which would require the most careful consideration. He should say that the consolidation should be carried into effect rather by Act of Parliamnet than by the Sovereign in Council. If a power of removing the prisoner from one county to another for trial were to be granted, it was not difficult to see that it might prove one of a very dangerous nature in many cases, as, for instance, in Ireland, if a prisoner were removed from Cork to Monaghan; it would be well, therefore, that the boundaries of the districts to be created should be defined by Act of Parliament. He would suggest that another 66 Commission should be issued by the Crown, to consider the whole subject, and, as part of it, the distribution of England and Ireland into circuits, and the division of the year between term and vacation. What he (Lord Campbell) anxiously desired was, that there should be a joint consideration of what should be done in England, and what should be done in Ireland. His noble and learned Friend on the Woolsack would find no difficulty in selecting a number of Irish Judges and barristers to join with English Judges and barristers for this purpose. He had on a former occasion ventured to suggest to their Lordships, that most important measure which, in his humble opinion, would do more to consolidate the Union than anything that had been done since the Act of Parliament passed—that was, as his noble Friend on the cross bench (the Duke of Richmond) remarked, in a loud whisper (he hoped it was heard all over the House, for it would not increase the county rates)—that there should be an interchange of Judges between England and Ireland. The law was the same in both countries; there was not the smallest doubt that the Irish Judges were as learned and as competent in all respects as the English to administer the law, and the people of England would be perfectly satisfied with their decisions. The English Judges, again, going into Ireland, and carrying the authority that belonged to them, he believed that their decisions would be received without suspicion, and with the most implicit reverence. A great deal had been said about additional Judges. There were two spare Judges in Ireland, who might be brought over, and sent a circuit. In Ireland there were now six circuits, several of them so short that they might be got over in three weeks. The Irish circuits, therefore, might be consolidated, and reduced to five, so that ten Judges would be quite sufficient for the administration of justice in that country, and two spare Judges would be left, who might have an English circuit assigned to them. A joint Commission would examine this point among others, and see what could be effected by the whole of the judicial staff both in England and Ireland. He (Lord Campbell) had it from undoubted authority, that that most enlightened statesman and devoted friend of Ireland, the Marquess Wellesley, had a long-deliberated plan for the purpose of amalgamating the law, and 67 having Irishmen appointed to judicial situations in England, and Englishmen to judicial situations in Ireland. He knew from undoubted authority that that plan had occupied much of his thoughts, and that he was of opinion that it would be practicable and beneficial. If a Joint Commission of English and Irish lawyers, and intelligent country gentlemen, were appointed, he was sure the greatest benefit would be derived from their labours. The Bill was at present in an imperfect and crude state; to carry it into effect would be very difficult; the better plan would be, not to press it in the meantime, and for Government to issue such a Commission as he had suggested. With respect to the Commission lately issued to determine the circuits, it turned out that their powers were much more limited than was desirable with a view to their utility. He understood that they had consulted the right hon. Gentleman the Secretary for the Home Department, though it might have been supposed that they would act on their own view of their powers; and Sir James Graham then intimated to them that they had no power to do more than they had done. They laid all the blame at his door; but, however that was, it was agreed on all hands that the Commission had been a miscarriage. The Report was universally condemned. It could not be acted upon, and the right course would be to issue another Commission, with extensive powers, applying to Ireland as well as England; from which he thought the most beneficial consequences might be expected.
The Lord Chancellor
said, with regard to the suggestion of an interchange of Judges between England and Ireland, with which they had been favoured by his noble and learned Friend, perhaps he meant that it should also extend to an exchange of Chancellors, the judicial force of one country being substituted for the other, somewhat in the manner an exchange of militia was effected. It was a matter which would require a great deal of inquiry, examination, and reflection, before they acceded to that part of his noble and learned Friend's proposition. He was ready to admit that the Irish Judges were individuals who possessed a great knowledge of law, and who were in no respect inferior to those of this country; yet their acquaintance with the habits and manners of the persons to whom they 68 were to administer justice was a very important consideration. He agreed in that part of his noble and learned Friend's observations which referred to the Report of the Commissioners. He was bound to say, that he thought it an unsatisfactory document. He was not exactly acquainted with the circumstances of their reference to the right hon. Gentleman to whom his noble and learned Friend had alluded. Upon some points he (the Lord Chancellor) would have thought that they might more naturally have referred to himself; but having limited their inquiries within the narrow definition given to their powers, the result undoubtedly was, that their Report was entirely unsatisfactory. He might state, therefore, that he had felt it his duty to advise Her Majesty to issue a new Commission, with fresh and extensive powers, for the purpose of reporting on the ten questions which had been submitted for the opinion of those learned Commissioners, and also on others of very great magnitude connected with them, including the subjects brought under their Lordships' notice by this very Bill. With respect to the present measure, he did not see how it would satisfactorily meet the object which his noble and learned Friend had in view. Instead of going to four or five counties in succession to hold the assizes, the Judges were to assemble in one particular county, and the prisoners were to be brought from the surrounding counties to that central point. He did not know that the time now occupied by the Judges in travelling was very important; but the only time saved by the new arrangement would be that occupied in going from the one county to the other. He had always thought it better that the Judges should go to different districts in succession, than that the jurors, witnesses, prisoners, and all other persons obliged to attend the courts, should be brought from several counties round to one central point. The Bill did not provide as to the mode of summoning the juries, nor from what quarters they were to come, nor how they were to manage with respect to grand juries. Another point, of which they should not omit the consideration, was, how the prisoners on trial were to procure the attendance of their witnesses. It was a matter of very great importance to a man, generally a very poor man, on trial, perhaps, for his life. It would be 69 no satisfaction to them were the Bill to provide that they should have their expenses reimbursed, for they had not the means of advancing the money in the first instance; and the consequence would be, that these persons would find themselves at a distance from those acquainted with the circumstances of the case, helpless, and without defence or resources. He would suggest to his noble and learned Friend, that the best course would be to let the Bill stand over for further consideration, in order to see whether the Government could meet the difficulties to which his noble and learned Friend had adverted.
§ Lord Denman
feared their Lordships would have a long time to wait if they wailed till the Commission made a satisfactory Report on all the subjects to which their attention would be called, and more particularly if they included the proposal of any interchange of circuits between Ireland and England. With respect to that proposal of his noble and learned Friend, if the Government should think it right to call upon the Irish Judges to assist those of England in the performance of their duties, he was sure that no persons would receive a heartier welcome. But he thought that this Bill gave an opportunity of doing that with effect; and if they waited to see the Report of the Commission, no man could tell how few of their Lordships might live to see it. He entirely approved of his noble and learned Friend's measure: there was only one respect in which he would wish to see it amended, by following the example set in a Bill also introduced by his noble and learned Friend—that most useful and expedient measure, the Central Criminal Court Bill—and by giving power to form convenient districts for the trial of offences. That Bill offered a complete model by which this might be done in any part of England, and the machinery might fitly be borrowed, since it was capable of being brought into practice at the earliest possible period. He thought his noble and learned Friend, in preparing his Bill, made out a case which must find its way to every man's conviction. The time of imprisonment before trial, was already too long; it ought not to be extended in any case. In his opinion, even four months might be too long; and that not merely with a view to the feelings of the prisoners. Nothing could be more inconvenient 70 than to bring up a man for trial, and have him acquitted by the jury, from a misplaced feeling, no doubt, but still a very natural one, in consequence of his having been so long in prison, or have him sentenced to a shorter term of imprisonment than he would otherwise have received. His opinion was, that there ought to be very frequent deliveries of jails, but that there ought not to be a third circuit. In his opinion a third winter circuit, established as a regular part of the machinery of justice in the country, would be a most enormous evil. He quite agreed that it was much more reasonable that Judges should travel, than jurors, witnesses and others connected with the administration of justice. But deliveries of jails, beyond those now provided by the regular course of procedure, ought, in his view, to be occasional, and regulated by a regard to the pressure of the particular circumstances. Suppose there was an absolute necessity, from the state of the country, for sending a Commission to deliver the jails in the county of Leicester, there might be persons from Derby, Nottingham, Lincolnshire even, who were to be tried at the same time. Would it not be an immense convenience for all parties that a Central Criminal Court should dispose of that business? This travelling of Judges was not worth thinking of; but if the Commission had to be opened at several places, a great deal of time was occupied at each, and the witnesses generally came very much farther than they would have to do under the system he recommended. The last winter circuit, was, he believed, appointed with very little consideration by his noble and learned Friend on the Woolsack, and after very little consultation with the Judges. The effect was, to put a stop to some of the most important business of the country going on in Westminster Hall; the Courts of Error were obliged to suspend their business. The Court of Queen's Bench had acted on a Bill passed in the year 1838, which enabled them to dispose of their arrears, at that time amounting to considerably upwards of 400 cases. They had gone on for eight years, the Judges giving up their leisure for the purpose of getting rid of the arrears, and at the end of last year they had brought the list of arrears down to very little more than 100 cases. The whole of that was sacrificed, and the arrears had risen again. This, it 71 could not be denied, was a most serious evil; a great improvement was prevented, and the whole system was deranged by a winter circuit interfering, and taking three of the Judges. If the power of creating new districts were to be given, the Crown might exercise it according to its discretion, and the necessities of the case, in such a way as not to interfere with any important business proceedings; and so far from persons being put to increased expense, he thought a considerable saving would be effected. If their Lordships should be of opinion that the Bill was not at present in such a state that it could be brought satisfactorily into operation, if passed before the expiring of the present Session, then they must hope that the improved state of the country, and, he was very happy to add, the great diminution of crime in every part, might make it less necessary that any particular measure should be adopted. But he (Lord Denman) thought that some further measure ought to be taken, and thus the pressure—not on the Judges, who did not care where they were, provided they were serving the public, since, as they said, they must be somewhere — but on the public interested in the administration of justice, might be prevented. A single instance would show, better than anything, the waste of time and money under the present system. If a man, convicted of stealing a faggot worth one penny, in a parish where he was perfectly well known, was taken before a magistrate, and pleaded guilty, expressing his sorrow for what he had done, the result was, that he might be sent eighty or 100 miles, if in the county of York, to the assize town, to take his trial, the whole county being summoned to hear the statement he had made before the magistrate; while, perhaps, in the absolute mockery of justice, he might be acquitted after all, when he had been detained in prison for six months, and the whole county put to enormous expense. Even the quarter sessions might impose the same penalty on him. There ought to be a simpler process for cases of this description, and many minor matters might be suggested, by which a great deal of trouble and expense would be saved.
said, what his noble and learned Friend on the Woolsack had stated, determined him not to press the Bill beyond a second reading until the issue of the Commission, by which, no 72 doubt, much good would be effected. His noble and learned Friend's (Lord Denman's) opinion seemed to be to have consolidations of the counties, and that, besides the ordinary circuits, occasional Commissions should be sent, according to the exigencies of the case. He (Lord Brougham) was disposed rather in favour of permanent circuits. With respect to the Commission—he did not mean the last one, for that was deceased, and he would say nothing against the dead, it had gone the way of the Railway Board—he hoped it would be altogether a new one, for he did not like to see learned Judges employed on a Commission, and thought it much better that they should be employed in the administration of the law. As to the question of the circuits, he was decidedly against employing practising barristers who went the circuits; for he found by late Reports that all the practising barristers had voted one way, naturally enough voting according to their predilections and conscientious opinions; but he would take persons who would not have to decide upon matters affecting their own business. There could be no difficulty whatever in appointing other professional men on the Commission, not connected with the administration of justice in those districts with respect to which the questions arose. He concurred with all that had been said in praise of the manner in which the Irish Judges discharged their duties; and he must add, that what came under his own cognizance of their proceedings, confirmed his opinion as to their eminent ability. The only objection to their coming in aid of the English Judges, and the latter being occasionally transferred to Ireland, was the great apprehension with which any one must undertake the trial of a cause, when he was unacquainted with the habits, manners, and character of the people amongst whom it arose. If the Irish Judges did come, he agreed with his noble Friend (Lord Denman) that these virtuous, able men, would meet with a hearty welcome. As to the disposal of the arrear, he must say that he was not satisfied with the account given by his noble Friend (Lord Denman), of 700 cases being cleared off in seven years.
Well, this was very creditable to the Judges of the Queen's Bench: but he though the real rem- 73 edy for the evil of an excessive arrear would be the addition of two Judges. He hoped the Committee about to be appointed would turn its attention to this point, as well as to another which was really as absurd as the old notion of the choice of the jury from the vicinage—he meant depriving the plaintiff of the choice of his court. Why should not the plaintiff and defendant be exactly on the same footing in this respect, particularly as the nominal plaintiff was very often the real defendant, as in an action by the person in possession for an easement?
§ Bill read 2a.