Pigot contributed to the assimilation of the law of England and Ireland in these bills, as he and I met alone day after day, and considered the bills sentence by

sentence.

In these bills the punishments were again placed at the end of the clauses in pursuance of directions given to me.

Before Mr. Pigot arrived, Mr. J. Keating (then S.-G.) had gone over some of the bills with me, and after his elevation to the Bench the present Attorney-General (Atherton) went over them all with me, and they were afterwards introduced in the House of Lords by Lord Campbell, C., and referred to a Select Committee, consisting of Lord Campbell, C., Lords Cranworth, Wensleydale, Chelmsford, Kingsdown, Overstone, Carnarvon, Belper, Eversley, and some other noble Lords, and very carefully examined by them on four days. They afterwards passed the House of Lords as amended in Committee, and were read a first time in the Commons, but owing to the late period of the session they were afterwards withdrawn.

The same bills were again introduced in the House of Commons in the beginning of the last session, and referred to a Select Committee, who sat six mornings, and went through all the bills, and made numerous alterations in them. The present Attorney-General was Chairman of that Committee, and exhibited in that office such a combination of courtesy and firmness, as very much contributed to the passing of the bills through the Committee. The bills afterwards passed the House of Commons; bnt very unfortunately, just at this time Lord Campbell, C., suddenly died, and this unavoidably created so much delay, that the present Lord Chancellor was necessarily obliged to pass the bills through the House of Lords in the same state in which they had passed the House of Commons. This is a matter much to be regretted, because it was to be hoped that several of the alterations made by the Commons would have been reconsidered and

amended in the House of Lords. I had intended to have called attention to all the alterations which appeared to be really objectionable, and I shall here refer to such as appeared to be particularly so, in the hopes that at some future time they may be amended.

The first is the striking out of s. 26, of the Offences against the Person Act, post, the provisions it contained for the protection of children and insane persons from the culpable neglect or violence of those whose duty it might be to maintain and protect them. I shall only add to what I have said in the note to that section, that in the case of servants and apprentices, who are protected by it, there is merely a legal obligation to maintain them, and they are generally quite able to complain of any ill-treatment to which they may be subjected; whilst in the case of children and lunatics there is not only a legal obligation, but they are incapable of complaining, and in the case of children there is a moral obligation also. Whether, therefore, the duties to children or lunatics or their helpless condition be considered, they certainly seem to be fully as much entitled to protection as servants or apprentices.

By s. 42 of the Offences against the Persons Act, post, when introduced into the House of Commons, in cases of common assault and battery, two justices might either commit the offender for any term not exceeding two months without hard labour, or impose a fine on him not exceeding 57.; and if the fine were not paid might commit the offender for any term not exceeding two months without hard labour, unless the fine and costs were sooner paid; but the Select Committee of the Commons added the power to give hard labour in addition to the imprisonment awarded for the offence, and also in addition to the imprisonment awarded for non-payment of the fine. Grave doubts may well be entertained whether the power to give hard labour in all cases of summary conviction for mere common assaults be not too great an

extension of the law: especially considering the provision for aggravated assaults in the next section, post; but there can be no doubt that the power to award hard labour for non-payment of the fine ought not to have been given. As the clause stands it creates three punishments, varying in degree. The highest is imprisonment with hard labour; the second mere imprisonment; and the lowest a fine; and wherever justices convict under this clause it is their duty to, and no doubt they do, award such one of these punishments as they deem appropriate to the offence; and, if they award a fine, it is equivalent to an adjudication that the offender is deserving of the lowest punishment, and that he is not deserving of imprisonment, and still less of imprisonment with hard labour, and it is manifestly erroneous to give the power to award hard labour for the non-payment of the fine, which in nine cases out of ten arises from the poverty of the offender; it is indeed in effect almost warranting a conviction contradictory on the face of it; for, in a case where imprisonment with hard labour or a fine may be awarded, to adjudge a man to pay a fine and to be imprisoned with hard labour if he do not pay it, is nearly equivalent to adjudging him deserving and not deserving of hard labour at the same time.

It is true that in Peel's Larceny and Malicious Injuries Acts, there are general clauses authorising imprisonment with or without hard labour in default of payment of fines, but the clauses, under which the fines may be imposed, generally, if not invariably, only authorise the justice to award a fine, and consequently there is no inconsistency in his awarding a fine for the offence, and imprisonment with hard labour for non-payment of it; for he may well think the offender deserving of imprisonment with hard labour, though he may have no power to award it in the first instance, and he may in such a case well award imprisonment with hard labour if the fine be not paid.

There can be no doubt, therefore, that s. 42 is wrong in this respect, if not also in giving power to award hard labour in any case within it. Nor is this all; by the alterations made by the Select Committee of the Commons in this section, it would almost seem as if the next section is rendered inoperative, so far as relates to the fine of not exacting 207.; for that section only applies to cases which cannot in the opinion of the justices be sufficiently punished under the preceding section. Now it seems very difficult to suppose that any justices should be of opinion that an assault, or battery, which would be sufficiently punished by a fine of 201., would not be at least as sufficiently punished by imprisonment with hard labour for two months. In other words, two months' imprisonment with hard labour seems manifestly to be a more severe punishment than a fine not exceeding 207. If that be so, the 43d section will be practically operative only in cases where the justices are of opinion that the defendant deserves more than two months' imprisonment with hard labour.

By several of the repealed Acts the Court might adjudge the offender to be once, twice, or thrice whipped; the Select Committee of the Commons not only reduced this to a single whipping, but made it incumbent on the Court to specify the number of strokes, and the instrument with which they are to be inflicted. Many may reasonably doubt whether the reduction of the number of whippings in the case of juvenile offenders be expedient; but, at all events, to require the Court to specify the instrument and the number of strokes seems very inexpedient, and the probable effect of this provision will be that the Courts will forbear to award whipping in cases where it is highly expedient. Under the former law it is believed that it was the practice for the medical officer of the prison to be present and regulate the number of strokes inflicted, which his previous knowledge of the prisoner, and his observation of the manner in which he

was affected by the punishment, well enabled him to do; but the Court can have no such means of knowledge to enable it to fix the punishment, and can only fix a certain number of strokes beforehand; and though, no doubt, the gaoler would not only be justified in abstaining, but would be bound to abstain, from inflicting the whole punishment awarded whenever it appeared likely to produce dangerous consequences, yet it is not clear that there may not sometimes be an over-anxiety to carry the sentence into full effect, and that sentence would always, to a great extent, afford a justification for so doing.

Much inconvenience had been experienced in consequence of the power to order restitution of stolen property being confined under the former enactments to cases where the offender was convicted, as it very often happened that there was no doubt whatever that the property belonged to the prosecutor and had been taken away, though the prisoner was acquitted, and pawnbrokers not unfrequently refused to deliver it up, and put the prosecutor to bring an action to recover it; and therefore in s. 100 of the Larceny Act, post, a clause was inserted giving the Court a discretionary power to order restitution of the property, although the prisoner were acquitted, if the Court were satisfied that the property belonged to the prosecutor, and this clause was approved of by the Select Committee of the House of Lords, but rejected by the Select Committee of the Commons.

The power to arrest persons suspected of having committed a felony or misdemeanor is in a most unsatisfactory state, as I have shown in the note to s. 103 of the Larceny Act, post, and in my Report on Criminal Procedure, and frequently leads to the escape of offenders. The distinction between obtaining goods by false pretences and larceny is often so fine that even the prosecutor mistakes the one for the other, and it is impossible for strangers, who can generally only judge from the suspicious conduct of persons in possession of property, to