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crimes, out of the great number tried for them, that an encouragement was held out for their commission. Ano- . ther consequence was, that with respect to those who were found guilty, the crown exchanged its prerogative of extending mercy for the painful task of selecting those who were to suffer as an example. The judges, to whom this authority was delegated in every county but Middlesex, found the exercise of it the most interesting part of their duty.
To what uncertainty also did it not lead, both with respect to the circumstances by which the judge was influenced in his decision, and also with respect to his own opinion on the necessity of severity! On this subject he was anxious to proceed slowly; to do too little rather than too much ; to alter, not to innovate. He should therefore content himself, in the first instance, with proposing the repeal of that most objectionable statute of the 8th of queen Elizabeth, chap. 4, the absurdity of which was as surprising as its severity. He read the preamble to this statute, and exposed its inconsistency. There was another circumstance to which he was desirous of calling the attention of the house. It was the case of the persons, who, being accused of crimes, suffered imprisonnent, took their trial, and then proved their innocence. As the law now stood, there was no compensation for such persons, unless the prosecution could be shewn to be malicious. He allowed ibat under the best system of criminal law, suspicion must sometimes light on the innocent man, and that the good of the public might require his confinement until that innocence could be ascertained; but when ascertained, he contended that the sufferer should be compensated as far as it was practicable to compensate him. In all parts of the kingdom, except Middlesex, a man might be confined eight months before his trial; and in the four northern counties above a twelvemonth. The imprisonment, therefore, of a poor or labouring man, under such circumstances, was ruinous to himself and to his family ; it was the duty of the legislature to avert such ruin. Perhaps such extreme cases might not often occur, but they ought to be provided against. He admitted that a difficulty might here be started, and that it might be said it would be highly improper to compensate all persons who were acquitted, because that acquittal frequently arose not. from the innocence of the party, but from some insufficiency in the evidence, or informality in the proceedings. This certainly was a difficulty, but it might be obviated., The merits of the person acquitted, and his right to indemnity, might be determinable by the judge before whom he was tried. Such a regulation would proceed on simia lar principles to that of 1802, relative to the prosecutions, by which the judge was empowered, taking all the circumstances of the case under his consideration, to order the treasurer of the county to make such compensation as justice demanded. He would introduce, therefore, a similar proposition in the bill which he intended to propose on the subject. In the first place, however, he would move for leave to bring in a bill to repeal so much of the act of the 8th of Elizabeth, chap. 4, as related to taking away the benefit of clergy from persons stealing privately from the persons of others.
Mr. Hibbert did not approve of innovation either in the civil or in the criminal code of the country. But if any individual could be put on his trial, a majority of twenty-three persons must decide on his presumptive guilt. He conceived that the proposal made by the honourable and learned baronet to compensate acquitted persons would be productive of more inconvenience than advantage.
Mr.Wilberforcediffered so completely from the gentleman who had just sat down, that hedeclared he had experienced the most unmixed satisfaction at what had fallen from the honourable and learned baronet opposite. He well remembered that a great and lamented public character (Mr. Pitt), at an early period of his life, bad intended to have a digest made of the whole of our criminal code, with a view of lessening, in a great degree, the number of capital punishments which it contained, and the objections to which it was impossible to confute. He congratulated the house and the country that an individual so well qualified for the task by bis ability and experience as the honourable and learned baronet, bad turned his attention to this most important subject.
Sir John Newport agreed entirely in opinion with the honourable and learned baronet, and stated some cases of extreme hardship that had occurred in Ireland.
Sir G. Fill contended, that in Ireland, and particularly in the province of Ulster, there was as much humanity on these subjects as in England.
Sir J. Newport explained.
The Sclicitor General declared that every one must feel bow highly indebted the public was to his honourable and learned friend, who amidst the severe duties of his profession, had turned his enlightened mind to the consideration of such subjects as those on which he had that evening addressed the house. Whether the attempt to grant compensation to persons acquitted of offences imputed to them, might not be productive of greater evil than good, was not now the question. He was certainly inclined to think, that however plausible the theory, the practice would be very injurious.
Sir Francis Burdett thought the question of extreme importanee. · He was ready to pay every respect to the motives and abilities of the honourable and learned baronet, but he must at the same time say, that his proposition for giving to the judge the power of declaring, whether a person who had been acquitted by a jury, ought to be considered innocent or not, appeared to him so contrary to the constitutional principles of the law of the country, that he could not allow it to pass unobserved. It would be a most grievous circumstance in the administration of justice, that the verdict of a jury should be deemed ambiguous, and that it should remain in the breast of the judge to determine whether the personi acquitted by that jury had or bad not been honourably acquitted. Before the subject should be again brought before the house, he should turn his mind to it with all possible attention.
After a few words from Mr. D. Giddy, leave was granted to bring in the bill.
Sir Samual Romilly then again rose. He was sorry that he had been so much misunderstood by the honourable baronet, who seemed to conceive that, in the motion which he was about to submit to the house, any thing was included but the general question, whether persons accused, tried, and acquitted, should or should not be en. titled to compensation for the injury which they sustained. The mode of deciding to whom this compensation should be awarded, or whether it should be given to all indiscriminately (which he should prefer to withholding it from all), would be open for discussion when the bill was brought in. He moved for leave to bring in a bill to provide in certain cases compensation to persons tried and acquitted in a criminal court, for the damages sustained by them, in consequence of having been detained in cusa tody and brought to trial.
The Solicitor General repeated, that in the view which he had of the subject, the evil would preponderate over the good. If the ju:dge refused to give compensation, it would be indicative of the unfavourable opinion which he entertained of the innocence of the person by whom it was demanded ; and he would thus be placed in a very invidious situation. Besides, suppose a person were acquitted on an error in the indictment before the merits of his case were investigated, how could the judge then decide on a claim of compensation ? As a novelty, this pro. position ought to be watched with jealousy. It appeared to him to be impracticable to execute it, without much mischief. If the compensation were to be made out of the county rate, it might prove a great discouragement to prosecutions, or in the event of a trial, that circumstance might operate on some minds against the accused. He should vote against the bringing in of the bill.
Sir Samuel Romilly declared his surprise that his honourable friend should resist the introduction of a bill, of the provisions of which he must necessarily be ignorant. With respect to the proposition being a novelty, it was to be regretted that there have not been more novelties of a similar description.
Mr. Leycester said a few words, in the course of which he expressed a wish, that his honourable and learned friend would withdraw his opposition to the introduction of the bill.
The Solicitor General acquicsced.
Mr. Croker entered his protest agairist being thought favourable to the principle of the bill, because he did not oppose its introduction. Mr. Curwen approved of the measure.
Sir F. Burdett would certainly not oppose the bringing in of the bill.
The Chancellor of the Exchequer also declared that he would not resist the introduction of the bill, although he wished that the honourable and learned baronet had stated more fully the grounds op which he proposed it, and the provisions which he meant that it should com. prise.
Sir Samuel Romilly observed, that the right honourable gentleinan had not been in the house when he opened the subject. He shortly recapitulated the motives by which he had been induced to bring this subject under the consideration of parliament.
The Chancellor of the Exchequer was of opinion, that the remedy proposed would be more injurious than the evil complained of.
Mr. Fuller was afraid that by the introduction of such complicated arrangements, people would be so puzzled that they would not understand the law at all.
Mr. Shaw Lefevre applauded the humanity, of the honourable and learned baronet, but hoped he would pardon him for stating that county stock ought not to be touched except in extreme cases.
Mr. W. Smith defended his honourable and learned friend from the charge of innovation. As to the measure being a novelty, every improvement was a novelty. Leave was then given to bring in the bill.
COURTS MARTIAL. Mr. Littleton gave notice, that on Friday he should move for leave to bring in a bill, to assimilate, in certain respects, the practice of naval and military courts martial, His design was to propose, that their sentence should be final, and not subject to reversal.
LORD ELLENBOROUGH. Mr. Leycester, adverting to the statement made on a. recent evening by an honourable baronet (sir Francis Burdett) when he was not present, hoped the bouse would allow him to make some observations upon that statement. He trusted that they would more readily agree to this, when they considered how much the character of the noble lord and of the country at large was implicated in that statement. He understood that the honourable baronet had been advised by the chair to postpone any further agitation of the subject, until the judgment of which he corplained should be followed up by some legal proceeding. He was disposed to think that ihe house would hear no more of this business from the honourable baronet, in wbich case the imputations that had been cast on the VOL. III.-1808