§ Mr. George Lamb,
in asking for leave to bring in a bill for the purpose of allowing persons prosecuted for Felony, to make their defence by Counsel, began by observing, that he could not consider the debate upon the motion of his hon. friend (Mr. R. Martin), on a former occasion, nor the division with which that debate was terminated, as shewing any conclusive sense of that House upon the question. It might, however, be thought necessary that he should explain why he had suffered two sessions to pass over without calling the attention of parliament to the subject; and why he pressed again upon an audience always reluctant to hear dry legal details, all the plain matter of fact of a twice-told tale. His reasons were to be found in his sense of the continued importance of his object, and his unchanged conviction that there was no good ground of defence, either from the practice of past times, or the inconveniences of the present, to be offered to the course which he intended to conclude by proposing. Every thing, indeed, since that time, had combined to corroborate the opinions he then expressed, and many individuals of weight and consequence had seconded those views—which, he contended, were founded on the principles of immutable justice. In alluding to the arguments which had been used on the former debate, he could not avoid expressing his surprise, that the Attorney-general, when he admitted the propriety of counsel speaking on behalf of persons accused of misdemeanours, had not thought it behoved him, from pure consistency, to extend the 590 same privilege to those accused of felony; for he could not conceive any dangers or inconveniences which might result from the one case that were not equally applicable to the oilier; and he did not think he should fulfil his duty as a member of that House, or of the community, if he did not again give it an opportunity of maturely weighing the probable consequences of such a privilege to a prisoner; and considering whether any thing could be urged against it which should operate to the extent of denying what humanity and justice both called upon them to afford him. He did not think it necessary now to go over the whole of the authorities, which he had mentioned on a former occasion, and which, he acknowledged, formed a very dry proemium to the proposal with which it terminated; but he could not allow it to be imagined for a moment, that he considered the old Common Law of the land, as was asserted, to have precluded a prisoner from employing counsel in his defence upon a charge of felony. In Magna Charta itself, it was expressly stated, that no man should be put upon his trial unless 'per judicium parium aut legem terræ' a proof, as he conceived, that from the very foundation of the Common Law, a man was intitled to full use of counsel and advice upon his defence; and that the limitations which had been introduced by various bills only related to those cases where the Crown sued in its own right, and not where it acted as the public prosecutor. That power had, however, been taken away from the Crown in cases of claim on its own right; and it appeared to him, that when, by the treason bills, they gave a prisoner the right to be heard by counsel, they only conferred on a private person, and on public crimes, what they had taken from the Crown, with respect to its private claims. He had quoted so many authorities upon this subject on a former occasion, that he would not trouble the House by going now into their arguments at length. Among them he might, however, mention the names of Blackstone, of Whitelock, and even of chief justice Jefferies; who, when he attempted to vindicate the denial of the copy of indictment, said, that the denial of counsel to prisoners was a bad practice, and not to be defended. He might, too, refer to the authority of chief justice Hale, and of sir R. Atkyns, in lord Russel's case, whose arguments upon the subject were afterwards recognised as law in the Act for 591 reversing the Attainder. He might allude, too, to the opinions of sir Bartholomew Shower, in the arguments for a new Bill of Rights in 1692. But the most remarkable, was that of sir Matthew Foster, in his Crown Law; and the more remarkable, because it seemed to have been relied upon, during the last debate, as an authority against the practice, which he contended to be agreeable to Common Law. It was, however, to be remembered, that there was nothing extraordinary in a judge from the bench (and in that light they must view sir M. Foster) defending the practice as he found it. It was the business of a judge, not to make the law, but to expound it in the best method he could, and support it; and they should not too rashly take decisions from the bench as the pure sentiments of those eminent persons as lawyers. Sir Matthew Foster said, however, and he conceived it told quite as much for his case as against it, that 'at Common Law, no counsel was allowed upon the issue of guilty or not guilty, in any capital case whatever, except upon questions of law; and then only in doubtful, not in plain cases. I am far from disputing the propriety of this rule, while it is confined to felony and the lower class of treasons, concerning the coin and the seal. I hear many things have been thrown out upon this subject; and inconveniences, some real, some imaginary, have been suggested by popular Writers, who seem to have attended only to their view of the question; but it is impossible, in a state of imperfection, to keep clear of all inconveniences, though wisdom Will always direct us to the course Which is subject to the fewest and the least; and this is the utmost human wisdom can do.' Any thing more absurd than such a declaration being taken as authority, could scarcely be conceived; and they would find, long after the treason bill, the same eminent judge, in a trial which took place at Bristol, of which place he was recorder, in the case of a captain Goodyer, for murder, refusing the prisoner a right to cross-examine the evidence. It was, therefore, not astonishing that a lawyer, who would refuse a prisoner to cross-examine a witness, should declare that he thought it unnecessary for the prisoner to have the benefit of counsel. The time was gone by, however, when they were in the habit of looking upon the wisdom of their ancestors as something infallible: it had ceased to carry 592 with it that cabalistic name which it formerly possessed; but he thought, as the great lord Bacon once said, in his advice to a young judge, that they should use the wisdom of other times as a light to open their eyes, but not as a guide to lead them by their noses. He was relieved, in this second time of bringing forward the present question, from being met by those panegyrics which they had heard so often upon their criminal proceedings, and by declarations of their being the very perfection of human wisdom; for they had at that moment before them a bill, which intimated, in pretty strong terms, that all the criminal laws were not thought entirely perfect. He looked at that bill with still greater satisfaction, because he considered it a precursor of still more extensive alterations; and, he trusted, that the sentiments which guided its authors would influence them to a more liberal consideration of those measures they had once rejected. In answering the cases made out for the prisoner upon this subject, it had been taken as a general axiom, that the judge was always counsel for the prisoner; but he begged to deny that most distinctly. The judge was counsel for public justice, and could not be considered more a counsel for the prisoner than for the accuser. He had said, that sir Bartholomew Shower was in favour of counsel for the prisoner; and he would now read an extract from his Reasons, in 1692, for a new bill of Rights, which, he thought, would bear him out in his assertion. It was to be found in the Somers' Tracts, vol. x. p. 568:—'Then, in the name of God, what harm can accrue to the public in general, or to any man in particular, that in cases of state treason counsel should be allowed the accused? What rule of justice is there to warrant its denial, when in a civil case of a halfpenny cake, he may plead either by himself or advocate? That the court is counsel for the prisoner, can be no effectual reason, for so they ought to be in every action, unto each party, that right may be done.' But the Frenchman's remark upon this phantom, for it is no more, hath sufficiently censured it: 'My counsel ask no questions for me, my counsel make no good sign for me, me no like my counsel.' And it hath too often proved, according to that poor fellow's observations, nothing but practice. No written law excludes from counsel in any case (says the great and 593 late lord Coke); and there is the same pretence for denying a copy of the indictment: though that has been granted in case of felony, in one Kitt's case, which is in a book called Mair's Reports."—In modern times he could produce an authority which must be allowed to possess some weight. Baron Garrow, in his charge to the grand jury at Exeter, on the 16th of August, 1824, thus expressed his opinion on the subject of a judge being counsel for a prisoner: "It had been said, and truly said, that, in criminal courts, judges were counsel for the prisoners; so undoubtedly they were, as far as they could, to prevent undue prejudice—to guard against improper influence being excited against prisoners; but it was impossible for them to go further than this—for they could not suggest the course of defence that prisoners ought to pursue, for judges only saw the depositions so short a time before the accused appeared at the bar of their country, that it was quite impossible for them to act fully in that capacity." He thought such sentences from the bench must go a good way towards answering the objection, that prisoners were always provided with counsel on the bench. Another objection frequently urged was, that if counsel for the prisoners made misrepresentations or mistakes, a judge must reply back upon him in his charge to the jury; and, perhaps, produce serious evils and inconveniences. But, he would ask, whether any such consequences had followed from allowing counsel in cases of treason; or, whether there had been any complaint against the charges of a judge, from that important privilege being conceded to persons charged with offences against the Crown? It was true, that something was done by making the judges independent of the Crown; but, he contended, that the experience derived from allowing counsel, in cases of treason, was a sufficient ground for maintaining that no disagreeable consequence could arise from it, in cases of misdemeanour. Would not any thing of that kind be preferable to what happened in the case of Mr. Spencer Cooper, afterwards on the bench himself, who, when put upon his trial for murder, was told repeatedly by the judge: "Come, now, Mr. Cooper—no more flourishes; speak to the point." Could such language have been used to any counsel, employed for Mr. Cooper, on such an occasion? He remembered 594 seeing a case in the newspapers, where two men were tried for a burglary; and one of them was reported to have cross-examined the watchmen, as to whether or not the deed was committed in the dark. The judge, upon that, observed, that he considered it a very bad sign when such men as they were seen so well versed in the knowledge of the intricate parts of cross-examination [a laugh]. It seemed somewhat like a decision pronounced by that summary legislator, Jack Cade, who is said to have told a man he would hang him, if it was only for pleading his life so well. The hon. gentleman then alluded to the case of Bellingham, who was permitted to pour forth slanders, in his defence, which no counsel would have dared to utter, and argued, both from it and other cases, that there was no danger of a judge turning himself against a prisoner, from the observations of his counsel; and that public justice would be purified and improved by prisoners being permitted to avail themselves of the assistance of counsel. Another advantage which, he calculated, would be derived from the bill it was his intention to introduce, was, that it would afford facility for the detection of perjuries in proving alibis, which were so frequent at present. It could not be denied, that there were many cases where convictions took place, which convictions, however, by no means brought home to the breast of the public, a satisfactory assurance of the guilt of the accused party. At the same time, he felt bound to admit, that wherever further inquiry was requisite after any conviction, and before the extremity of the law was put into execution, the right hon. gentleman at present filling the office of Secretary of State for the home department, was disposed to subject such a conviction to the fullest revision. Indeed, the anxiety he evinced to remove any doubt that might attend such a case, greatly reconciled the public to the exercise of that authority which was reposed in him. Yet, although this confidence was placed in the right hon. gentleman, from his high character, it would be desirable that another mode of proceeding in criminal trials were introduced, for the adoption of a better and more improved system in the dispensation of criminal justice. The labours of the right hon. gentleman, in cases of doubtful conviction, must be very great, from the difficulty of ascertaining, satisfactorily, that the conviction was an erroneous one. 595 This difficulty was chiefly attributable to the present mode of trial, and was found in cases where even an imputation of perjury did not attach to the evidence. Without enumerating many cases of this description, he would only advert to a recent one, where persons who were tried for a robbery of lord Cowper's steward, were reprieved, it might almost be said, at the foot of the gallows. Here the reprieve was granted, not on account of any imputation of perjury on any part of the evidence. Again, to mention another case: Catharine Ferrir was convicted of perjury, but was afterwards found innocent, and received the king's pardon. Since then, without the intermixture of perjury, a fertile and natural cause of erroneous convictions, wrongful convictions did occur, it shewed the greater necessity that existed for affording means of more full investigation and discussion in cases of criminal charge. As to the opinion of the bench upon the subject, he was aware that the existing judges thought indifferently upon the subject; but he might venture to say, that some of them were not opposed to the intended alteration, and felt the impropriety and unsatisfactoriness of the present course of proceeding. Gentlemen could not, in the course even of their own experience, fail to have experienced the unsatisfactory nature of such a trial, where, after a speech from the prosecuting counsel, and after the evidence on the part of the prosecution had been gone through, the prisoner was looking about to see if any person would say any thing for him, whilst the judge told him, that his counsel could not say anything for him, and desired the gaoler to take him away; and the multitude in the court were satisfied that any tiling but justice had been done in his regard. This was an exhibition which might often be witnessed. And what made the hardship of the prisoner the more flagrant was, that, in cases of misdemeanour, the accused had advantages in the aid of counsel, which they were denied on the more important occasion of trials for their life. Counsel, in the former cases, had opportunities afforded them of making an address, ad miserecordiam, in mitigation of punishment, and, on application to the King's bench, affidavits and additional evidence were entertained. It was unfair that that assistance should be permitted in cases of misdemeanour, which the subject was not allowed in cases of capital charge. The hon. 596 member proceeded to advert to several trials for felony in the House of Peers, where the counsel for the prosecution claimed the privilege of reply, and even in some cases where no evidence was given on the part of the defence. This privilege was claimed and exercised in the several successive trials of lord Ferrers, lord Byron, and the duchess of Kingston. Although it might not, perhaps, be the appropriate province of that House to legislate for the mode of trial in cases of felony in the House of Peers, it was its duty to prevent and correct any abuse that they might find in the dispensation of criminal justice in the courts of the country. In adverting to cases of treason, he wished to direct the attention of the House to a remarkable expression, given under the authority of sir Matthew Hale, which was, that "the king might dispense with the prosecution for treason, and, instead of it, institute a prosecution for felony." The effect of this would be to deprive the accused party of the benefit of counsel, and of advantages to which, in a prosecution for treason, he might be entitled. At the same time that they were abolishing all useless and absurd forms, it would be well to infuse the spirit of justice into all these legislative measures. Some time ago they had abolished the absurd custom of trial by battle. No inconvenience had resulted from that alteration. But there was a more absurd custom still, which it was incumbent on them to abolish; namely, that which subjected every person prosecuted for felony to undergo the conflict of superior intellect, of eloquent competition, without the means of fairly encountering it by the aid of counsel to speak in their defence. He was told by some, that the effect of this measure would be, to procure more acquittals than now took place; by others he was told it would multiply convictions. Whether it would be attended with either of these consequences he could not undertake to say; but he was satisfied it was a measure founded in justice, and that it would be productive of great public benefit. He therefore moved for leave to bring in a bill, "to allow persons prosecuted for Felony to make their Defence by Counsel."
said, that after the very full inquiry and ample discussion which this subject had undergone upon a former occasion, he trusted he should be excused if he declined to follow his bon. and learned friend through all the topics 597 to which he had adverted, or to travel over any of the wide and devious ground into which he had wandered. He felt sure that he and his right hon. colleagues, would at least obtain credit for being, upon all occasions, where the administration of criminal justice became a subject of discussion in that House, most anxious that it should obtain their fullest and most deliberate consideration. He was satisfied that all those with whom he had the honour to act, were most desirous to consider any question, having for its object an alteration in the administration of criminal justice, solely with a view to the practical advantage which was likely to result from such alteration. It was in this view that he was willing to consider the question of his hon. and learned friend, from whom, if he differed upon the present occasion, it was solely because he did not think his measure calculated to be productive of the advantage, which would alone counterbalance the evils which must inevitably result from the alteration of a long-established system. His hon. and learned friend had relied much upon authorities. He could not, however, consider that this was a question to be determined by authorities. He looked upon it as a practical question, resting upon its own merits, and to be judged of by the results of experience and of facts. By such tests he had tried it. He had brought to its consideration all the experience of his office, collecting that experience from the facts which had come daily before his eyes; and, after the most careful examination of the subject in all its bearings, he had come to a conclusion directly the reverse of that maintained by his hon. and learned friend. But, while he thus denied the validity of any argument drawn from mere authority, he had no hesitation in expressing his conviction, that the measure of his hon. and learned friend, were it even to be tried by that test, would fall to the ground. For, as far as he had an opportunity of collecting the opinions of members of his own profession, he believed that, though divided, they were almost universally unfavourable to any alteration of the existing system. He had not had the same opportunity of becoming acquainted with the sentiments of the learned persons upon the bench, but, as far as he had the means of judging, he believed they also coincided with his own. He must, however, repeat his opinion, that this was not a question to be decided by 598 authority alone. It was a practical question, and as such he had always considered it. Although he was willing to admit that some advantage might, by possibility, be derived from allowing counsel in cases of misdemeanour, he still thought that the House ought to hesitate before they admitted the principle in its full latitude; because, if counsel were once admitted, and the practice was found to be inconvenient, it would be next to impossible that they could retrace their steps, and place the system upon its former footing. In order, however, to come to a proper understanding of the question, it was necessary to consider the present mode of administering criminal justice in this country; and he would only ask the hon. members who heard him, and who must all be more or less conversant with the subject, to trace it with him, step by step, and say whether the advantage to be derived from the alteration proposed by his hon. and learned friend was such as would render it advisable to disturb a system from which so much good had already been derived. He appealed to any man who had ever been a spectator of the manner in which criminal proceedings were conducted in this country, to say, whether, under any circumstances, more coolness or collectedness, stricter impartiality, or a greater desire for justice, could be displayed. In criminal cases, the usual form was, that the counsel for the prosecution should open his case with a speech explanatory of the evidence which he was about to bring forward, confining himself to that sole object, and abstaining from all circumstances of aggravation and appeals to the passions. If, however, influenced by the zeal of the advocate, he should be induced to over-step the strict line of his duty, and indulge in any vituperative or extraneous observations, he was liable to be immediately checked by the judge, who would caution the jury not to be influenced by such remarks. He had known instances—they were, he was happy to add, few; but as there were exceptions to every general rule, such instances must now and then occur—where the judge had interposed his authority to protect the prisoner from the effects of the observations of an officious or over-zealous advocate. As a general rule, however, it was, he believed, understood, that the statements of counsel ought to have no influence upon the verdict of a jury. After the counsel for the prosecution had gone 599 through his dry statement, the evidence which he had to offer was brought forward. It was heard dispassionately and calmly, unaccompanied by any excitement or appeal to the feelings. The evidence for the prosecution having been gone through, the prisoner was called on for his defence, which was conducted precisely in the same way; with this exception, that the evidence which he had to produce, was not prefaced by a speech from his counsel. This, however, was unnecessary; as the speech of the counsel for the prosecution, addressed itself merely to facts, that for the defence would be a mere repetition of that which was already known. The evidence on both sides having been heard, the judge, not as counsel, as was erroneously supposed, for either the prisoner or the Crown, but placed where he was, impartially to administer justice, summed up, and taking a calm, dispassionate, and collected view of the case, and going regularly through the evidence, submitted it to the jury, who were bound to return an unbiassed verdict. Now, he would ask, whether it was likely, that a system like this, in dwelling upon the advantages of which he was fortified by the recollections of the House, would derive any benefit by the change proposed by his hon. and learned friend, and whether that which he proposed to substitute in lieu of it, would not be found detrimental and injurious, rather than advantageous or beneficial? Instead of the calm and deliberate justice with which criminal prosecutions were at present carried on, the effect of allowing counsel to speak for the defence would be to convert the court into an arena, where opposing advocates might meet in professional conflict, and where, instead of endeavouring to elicit the truth by a reference to plain facts, or the real merits of the case, the time of the public would be wasted by contests between the counsel on either side, animated, as they would be, by all the excitement, zeal, and pertinacity, which such contests usually inspired. He need only appeal to such of his hon. and learned friends as were conversant with the practice of the King's-bench, to bear witness to the zeal and desire of victory which uniformly animated counsel, when employed in criminal causes in that court, as contradistinguished from the comparatively calm and quiet manner in which cases which involved merely civil rights were conducted. Under such circumstances he 600 might be permitted to doubt, whether any advantage would be derived from adopting the suggestion of his hon. and learned friend. But, even admitting that some good might possibly result from it, he could not be convinced that the House would be justified, upon such grounds, to put to hazard a system sanctioned by experience, and to sacrifice a present advantage for a remote contingency. The measure of his hon. and learned friend was founded at best upon theory, and presented at least one evil, that if it should be found to be inefficient, there would be, as he had observed, the utmost difficulty in retracing our steps, and recurring to the system from which we had departed.—He had thus considered the subject with reference to its practical effects, for he could not help repeating, that such was the point of view in which it ought to be taken; and, however he might respect the authority of sir Michael Foster, or Mr. Justice Blackstone, upon other matters, this was a subject, to the consideration of which, the results of every day's experience ought alone to be brought, abstracted from the influence of any authority, however high. He declared that he was, with reference to the question, totally uninfluenced by any prejudice on one side or the other. His opinion was the result of calm consideration and deliberate inquiry; and he was ready to resign it as soon as it was proved to be erroneous. In examining the measure of his hon. and learned friend, with reference to its probable effects, it was necessary to consider what was the most essential requisite to the due administration of justice. That he conceived to be, that no obstruction should be opposed to the fullest inquiry and investigation. If, however, counsel were allowed to speak for the defence, and, having done so, to call evidence, the inevitable consequence would be, that the counsel for the prosecution, would be entitled to a speech in reply. Arguing from analogy, this very circumstance, instead of benefitting the prisoner, as was contended, would have the effect of injuring him, by throwing obstructions in the way of a clear elucidation of the truth. In civil cases, where the counsel for the defendant was allowed the liberty of reply, how frequently was the counsel for the plaintiff deterred from bringing forward witnesses material to his cause, from a fear of the impression which might be made upon the minds of the jury by 601 the opposing counsel's speech to evidence! He had often heard his hon. and learned friend, the member for Peterborough (Mr. Scarlett), complain of the painful situation in which this liberty of reply placed an advocate, anxious for the interest of his client, possessing evidence most material to his cause, but which he was afraid to bring forward, lest it might produce from the other side a powerful reply, by which its effects might be neutralized, and an unfavourable impression be made upon the minds of the jury. As far, therefore, as the investigation of truth was concerned, it would, in his opinion, be much better to leave the system as it was; namely, to let the evidence be fairly taken down on both sides, that no obstruction be offered upon the part of either counsel, and that the judge should afterwards impartially sum up the evidence, leaving it to the jury, upon a calm consideration of the facts of the case, to deliver their verdict.—Having said thus much, and having set out with observing that he would not follow his hon. and learned friend in all his devious wanderings, it might be, perhaps, unnecessary for him to say more. One observation, however, had suggested itself to him, which he would take the liberty of mentioning. He had before observed, that, although the judge was not to be considered as counsel for the prisoner, it was still his duty to act impartially between the Crown and the prisoner, and to give the latter the benefit of any suggestions which the circumstances of the case might seem to demand. If, however, counsel were allowed to speak for the prisoner, and if, in the course of his argument, he were to indulge in any extraneous observations, or adopt a course which called for the interference of the judge, it would then be the judge's duty to animadvert upon such line of argument or conduct; and, in so doing, he would not be unlikely, in the heat of his address (for judges were but human), to create, however unintentionally, an impression unfavourable to the prisoner in the minds of the jury. Thus, therefore, all the advantage which the prisoner had before, in the favourable disposition of the judge, might be taken from him, and his situation be made infinitely worse by the ill-directed zeal, or the indiscretion, of his advocate.—He was now brought back to the original question in this case—Was the present system so defective as impe- 602 riously to demand this alteration? His hon. and learned friend had said, that innocent men, under the existing mode of trial, were sometimes found guilty. He would admit that to be the fact, and would then ask his hon. and learned friend, whether he was prepared to say, that, under the proposed alteration, such an event would never again take place? Would it not, in all human probability, be constantly said, as it was now often said in civil cases, "Oh! that verdict was owing entirely to the admirable reply of the counsel for the prosecution?" What would be the result, then? That representations would be constantly made to the judge who tried the indictment, and also to his right hon. friend near hint (Mr. Peel), that the verdict was not gained by the weight of the evidence, but by the eloquence of the counsel for the prosecution. Unless his hon. and learned friend could show that this would not be so, there was no weight in the argument which he had founded upon the circumstance, that innocent men were sometimes unjustly found guilty.—Such was the short view of the question which he had to submit to the House. He would not say of the administration of criminal justice in this country that it was perfection; for what human institution was perfect? but he would say of it, that it was superior to that of any other nation in the world. He was unwilling, therefore, to introduce into it an alteration, which even its advocates admitted would be productive of important consequences one way or the other, and which he conceived would be productive of no real advantage, but of much practical mischief and inconvenience. He admitted that, as a lawyer, he might have many erroneous prejudices upon this subject, for he knew what systems had been defended by lawyers of former times, whose motives were free from all imputation. Formerly, accused persons laboured under greater difficulties than they did at present. In cases of felony they had originally no counsel. Their counsel were assigned to them under certain limitations. But, for what purpose? To argue points of law. They were not, however, allowed to suggest them. If the prisoner found them out himself, and the court thought them arguable, counsel were appointed by the court to argue them. Another difficulty with which a prisoner formerly had to contend was, that his witnesses 603 were not examined on oath; and an excellent reason was assigned for it. It was said, that they would thus have a greater latitude in which to speak on behalf of the prisoner; but when a conflict arose between their statements and the evidence for the prosecution, the judges always told the jury, that one party was sworn, and that the other was not. He mentioned these facts to show the House that he was aware that he might be under the influence of professional prejudices, and to prove to them that he had endeavoured to get rid of them in his consideration of this subject. He therefore conjured the House to pause before they consented to the proposition which had been made for altering the present system; because, if they should once adopt that proposition, it would be impossible ever again to revert to the practice which the experience of so many years had proved to be wholesome and useful. However it might be found, when the alteration should be made, that it was inconvenient to the administration of justice, and injurious to the prisoner, it would be impossible to repeal it. He hoped the House would excuse him for these observations, which he submitted in all candour; and he assured his hon. and learned friend, that he opposed him now, as he had done on a former occasion, upon the principle of his measure. The objections which he had raised were not connected with the details, but with the principle of the alteration which it was proposed to effect; and he therefore thought, that the present was as fitting as any future opportunity could be for the discussion.
§ Mr. John Williams
supported the motion. He said, that the objections which had been made to it had failed to convince him that it ought not to receive the sanction of the House. He was glad to hear his hon. and learned friend, the Attorney-general, renounce the authority of notions which had once been looked up to with unquestionable reverence, and which he did not now hesitate to pronounce antiquated. When he heard this, and reflected upon the slowness with which improvements had been effected in all those institutions which were considered the most valuable, he was still more convinced, that no sufficient reason existed for further postponing that amelioration in the mode of administering criminal justice which it was now sought 604 to bring about. His hon. and learned friend had very forcibly described the inconveniences which he fancied might result from the zeal and eloquence of counsel who might be employed on behalf of prisoners; but it must be remembered at the same time, that the want of such assistance left the prisoner in a most helpless situation. And, if counsel might sometimes be led by the warmth of their feelings, and the excitement of the subject on which they were engaged, into those flights of eloquence which his hon. and learned friend had spoken of, but which, he thought, was generally too highly rated, this was not the case only with the counsel of prisoners. On a recent trial at Manchester, his hon. friend, the member for Peterborough (Mr. Scarlett), was stopped by the judge in the course of his address to the jury, and, although it was neither a safe nor an easy thing to stop his hon. and learned friend, the judge had thought it necessary to do so, to prevent the impression which the speech was calculated to produce. He knew it was said, that the alteration was the less necessary, because, although prisoners were debarred from the help of counsel, they had the judges who tried them to act in that capacity. This sounded very well; but his own experience had taught him, that there was little practical advantage in it. If it should ever be his lot to be tried for a felony (and it was impossible to say how soon that might happen), he should, in the first place, take care not to be his own counsel, as, in that case, he knew, on the faith of the adage, what sort of person he should have for his client; and the person whom of all others he should next wish not to have for his counsel would be the judge. He should rely with much greater hope of success on the assistance of such an advocate as his hon. and learned friend who spoke last, or of any other person of his skill and experience. He thought, that in the course of his hon. and learned friend's observations he had viewed the subject too much in the light of a lawyer, and not as it would be likely to afford satisfaction to the people of England, on a matter of general importance. He had omitted altogether that inequality in the situations of the prisoner and prosecutor, which formed the chief ground of the present motion; and had overstated, as he thought, the inconvenience which, by pos- 605 sibility, could result from the change which it was now sought to effect. In his opinion, nothing could be more offensive and lamentable than the forlorn and derelict situation to which prisoners were sometimes reduced, and the desperate attempts which they made to save themselves, and which sometimes brought down upon them the fate they were endeavouring to avert. For these reasons he gave his cordial support to the motion.
Mr. Secretary Peel
commenced by expressing his dissent from the proposition which had been submitted to the House. Two years ago the same subject had been under discussion, when the deliberations upon it were conducted with so much ability and acuteness, that he must confess—although he was aware that in doing so he should incur the charge of weakness—his opinion had oscillated, and he had entertained some doubts on the question. He thought, in the then state of his mind, that it would be better and more safe to give the benefit of those doubts to the existing system, and he had accordingly voted against the motion. The subsequent reflection and examination which he had bestowed on the subject had convinced him that he was right. He regretted that he could not on this occasion associate himself with the hon. and learned mover in the labour of reforming the legal institutions of the country; but he felt at the same time that he should little deserve the flattering opinion which the hon. and learned gentleman had expressed of him, if he suffered himself to be influenced by that consideration alone, and without the sanction of his judgment. In stating the impression which he felt on this subject, he must claim for himself to be free from all professional prejudices. As far as his own interest was concerned, the alteration now proposed would be extremely satisfactory; because it would lighten some part of that which he now felt to be the most painful part of his duties. He meant the revision which he was often compelled to make of the sentence, between the period at which it had been pronounced and its execution, when he was compelled either to decide in a few hours, or to grant a respite which might give rise to hopes wholly without any reasonable foundation. He should not object to the alteration, because it was an innovation upon a practice which had been sanctioned by years; for that would come with an ill grace indeed from 606 one who had already more than once endeavoured to abolish customs which, if their antiquity alone could have recommended them, were entitled to the most absolute protection. Nor was it because numerous authorities were to be found in favour of the existing practice; for the same might be said of many others, of which he entirely disapproved. On both sides authorities might be adduced, the weight and respectability of which no one could doubt, and which placed the mind of any one who examined them, as lord Bacon said, "in confluentia aquarum." He was ready to admit, that whatever would tend to elucidate the truth, to procure the acquittal of the innocent, and the conviction of the guilty, recommended its immediate adoption, and the alteration of the system which prevailed; but it was because he believed the motion of the hon. and learned gentleman, if carried, would not tend to this, that he opposed it. One of the considerations on which his opposition was founded was, although not in itself a very important one, yet not to be lost sight of—he meant the expense to the prisoners in paying fees to counsel, and the delay which must be occasioned in the administration of justice. He did not mean to be understood, that any consideration of expense or delay ought of themselves to preclude an alteration like that now moved for, if it could be shown that justice was more fairly done in consequence; but he did not believe (and he had means as acute, perhaps, as any one, of knowing the fact if it were so) that any injustice, or even inconvenience, was felt by the prisoners themselves, under the actual practice. Every day almost petitions were presented to him on the behalf of prisoners, which contained various complaints; but he did not remember ever to have seen one like those mentioned by his hon. friend. Various grounds were alleged by the prisoners, but none of them complained that counsel had not been heard on their behalf. He had, therefore, reason to assert, that the administration of criminal justice was not unsatisfactory to the people of England. If counsel were allowed to address the jury in favour of the prisoner, the judges would feel and act on the trial differently from their present usual impartiality, and indulgence to the prisoner. The prisoner had, by the law as it now stood, the aid of counsel in all matters of advice, in argument on a point of law, in examining and cross-ex- 607 amining witnesses in every thing, but in the address to the jury, that was in all matters of real importance to him. And, if the prisoner's counsel had the privilege of speaking to evidence, the counsel for the prosecution could not be prevented from speaking in reply. But, the true way to consider the question was, not as it would serve the interest of the prisoner, but as it would promote the administration of public justice. If this measure were adopted, could it be expected that the judges, who, as an hon. member had said, had listened with for bearance to the defences made by Thurtell and Bellingham, would show the same indulgence to the counsel of such criminals? They all knew that, in the administration of criminal justice in France, where the judge was placed in such cases in a different situation from a judge in this country, there were instances in which the judge, from a desire to show his acuteness in detecting the fallacy of the arguments urged by the counsel for the prisoner, endeavoured to excite an undue influence in the minds of the jury. The cases which had been adduced by the learned member who supported the motion, seemed to him to make against it. One of the cases was that of a person named Evans, who was tried at Lancaster, where the Attorney-general for the county palatine appeared as counsel for the prosecution. That learned gentleman, with his acknowledged fairness, stated the case for the prosecution, but he also thought it right to make some observations, which, to that learned gentleman, seemed to be highly pertinent, but which were not generally indulged in by counsel for the prosecution. What did the learned judge do upon that occasion? Did he submit to the learned counsel? No. On the contrary, the learned judge interrupted the counsel, and said, "Is this fair—why state any thing in aggravation of the facts?—why state more to the jury than is consistent with fair and impartial justice?" In that case the prisoner was acquitted; and he begged to ask the hon. and learned gentleman, whether he was prepared to assert that, if the prisoner had had an advocate who was permitted to make a speech for the defence, and if the attorney-general for the county palatine, had been permitted to make a speech in reply, he would have been acquitted? He thought the hon. and learned gentleman did not feel quite satisfied that one of the conse- 608 quences of this bill would not be to ensure conviction in many cases, where acquittal would take place, when the case was left in the hands of the judge and the jury, and when the counsel for the prosecution was prevented from doing more than detailing the facts, of which he intended to offer evidence. He begged to call the attention of the House to another advantage possessed by the prisoner in this country—to an advantage, which appeared to him to afford an immense security that injustice would not be done—he meant the unanimous verdict of twelve men. When he considered that advantage, he felt satisfied that there could scarcely be an instance in which twelve men would declare unanimously that another had been guilty of an offence, for which he was subject to the penalty of death, unless the proof was so clear as not to leave a doubt of his guilt. He had been told that, in Scotland, a prisoner charged with felony was allowed the benefit of counsel; but he begged to remind those hon. gentlemen who urged that as an argument in support of this measure, that the situation of a prisoner in Scotland was different from that of a prisoner in England, inasmuch as in Scotland a majority of eight against a minority of seven was sufficient to consign a prisoner to capital punishment; and where such a majority was sufficient to award such a punishment, there might be no objection to permit counsel to urge ingenious arguments, although in England, where nothing less than the unanimous consent of twelve men could procure conviction, great objections to such a proceeding might very fairly exist. One of the strongest objections to such a proceeding arose from the fact, that the jury must be unanimous; because there was great probability that out of twelve men one might be found, upon whose mind an ingenious speech might make an undue impression. He had stated his reasons for resisting the motion, and again denied, that justice was partially administered under the present system. He was on-willing to agree to any change in a system which not only insured impartial justice, but which gave general satisfaction. He was unwilling, by agreeing to any change, to run the risk of the judge being induced to reply to the observations made by counsel. And he was also unwilling to run the risk of the jury being influenced by the concluding speech of counsel. He, at the same time, was willing to admit, 609 that there was a great deal of difficulty in this case; that the argument was with the hon. and learned gentleman opposite as to the theory; but, thinking that the proposition, if carried into effect, might be of general prejudice to the administration of justice in the country, he felt compelled to give a reluctant opposition to the motion, although recommended by its apparent connexion with the interests of humanity, by its statement upon theory, and still more by the very fair and temperate manner in which it had been introduced by the hon. and learned gentleman.
§ Mr. Horace Twiss
said, that in assenting to the motion, he was not influenced by any consideration of its probable effect upon the number of acquittals; the true object being, not to acquit the greatest number of prisoners, but to secure the greatest number of right verdicts. He should, therefore, instead of inquiring whether this change of the law would be a gain to prisoners, inquire only, whether it would be a gain to public justice? He doubted, whether the law, on which a general encomium had been passed by his hon. and learned friend, the Attorney-general, was a law that provided fairly for prisoners on trial. His right hon. friend who spoke last, had truly defined it, when he spoke of it as a law, that allowed counsel to the prisoner on every issue but the main one. While it gives to the accuser the right of stating his case to the jury by counsel, it denies the same right to the accused, and then compensates this injustice to the prisoner, by the still greater injustice to the country, of allowing unsubstantial objections to the indictment. Any statement on the merits must be made by the prisoner's own lips. But the prisoner might be disabled by illness, blindness, deafness, or some other such visitation. If there were such a disability in a majority of cases, the legislature would, no doubt relax the law. Why then, in the majority of cases, this ground of relaxation does already exist: for, if the prisoner be placed in a situation, the terrors whereof are such as would take away from any average man the common resources of the human mind and strength—if this be a condition to confound and stem the sight, and the hearing, and the speech of any ordinary man, what matters it, in that alarming moment, whether those needful organs and senses have been denied to him by nature, or 610 paralysed in him by the course of the law? Is he not, in either case, equally a defenceless man? It could not be said, that his guilt had made him dumb on his trial, for till his trial should be concluded, he was presumed to be not guilty. There was a homely saying, that "he who is his own advocate, has a fool for his client." To that incapable advocacy the law consigned every prisoner in a trial for felony, in the very crisis of his life or death. The prisoner seldom knew, till he was called on for his defence, that his counsel were not permitted to address the jury for him; so that he had to execute this difficult task upon a moment's notice. In such a state of things, what did he profit by the boasted benefits of the criminal law in general? Its excellencies might as well, so far as he was concerned, be contained in the Code Napoleon, or the Imperial Pandects. It had been said, that the judge is counsel for the prisoner. It would be more correct to call him counsel for the prosecution; for his only instructions are the depositions for the prosecution, from which, in the absence of counsel, he examines the evidence against the prisoner. On the prisoner's behalf he has no instructions at all; and, if he had, he has another task to perform, in taking a literal note of the depositions, and labouring to arrive at the truth of the case. The maxim, that he is counsel for the prisoner was untrue even in theory. The duties clashed. Did the judge take all advantages to defeat the prosecutor and acquit the prisoner? Then, as judge, he betrayed his oath of office. Did he decline to take those advantages? Then, as counsel for the prisoner, he deserted his client. The case was still worse for the prisoner, if the judge did not really wish his acquittal. Sir Robert Atkyns had observed, in his comments on lord Russell's trial, that he knew by experience what sort of counsel judges were to prisoners. That the hardship had not confined itself to political cases, nor to very early times Mr. Savage's trial was an instance; and though judge Page would have no imitators now, yet, modern judges might not be uninfluenced by other considerations, adverse to the prisoner, as his character, his demeanour, or the public consequences they might happen, in their own minds, to apprehend from his offence, A judge, summing up for an acquittal, may seem to be the prisoner's counsel; but, how if he sum up for a con- 611 viction? The prisoner's counsel, exhorting the jury to convict his own client? But the rule was then explained to mean, that he is counsel for the prisoner, only so far as to see that the prisoner suffer no wrong. Why, to that extent he was counsel for the prosecutor also, and for every suitor in every suit. The maxim was a fanciful one. No such principle, as that the judge was the prisoner's counsel, had ever been adopted in the ancient law; but the hardships arising from a want of some provision becoming afterwards apparent, some dealer in legal fictions had invented this afterthought, this humane prettiness, of treating the judge as the prisoner's counsel. And so the absurdity of refusing counsel in the extremity most requiring it, had been met by the greater absurdity still of treating, as an advocate for one of the parties, the only person in whom it would be a vice to have a bias for either. Lord Coke had assigned as a reason for leaving the prisoner without any other counsel than the judge, that "the evidence to convince him" to convict him "should be so manifest, as it could not be contradicted." Perhaps there was some cases thus clear; but there were many with circumstances more or less favourable to the prisoner. In these, there being more or less of doubt, the question on which the prisoner's life or death must turn, would be the degree of consideration, these doubts were entitled to; and yet on that question you refuse to hear his counsel. The doubt might be a reasonable one, and yet not so obvious as to suggest itself spontaneously to the court. The judge on the bench might well fail to see some points in the view, which the counsel at the prisoner's side would discriminate distinctly. The lights strike differently on the same objects, when seen from positions so different; but therefore the court should gladly adopt any indication for assisting it to catch and distinguish those points from the haze and shadow in which they rested. "I see no doubt," says the judge, "and to what end, therefore, should I hear your counsel?"—"Why, my lord, to this end—that you may see the doubt. Let the prisoner's case be stated equally with the prosecutor's, and you will see it; but do not refuse to counsel the privilege of shewing you the doubt, merely because you do not see it before it is shown you." There had been a notion, that the 612 doubts raised would be quibbles, or trifles to swell a speech. That might occasionally happen, but in general the privilege would be used for better purposes. There was a large class of cases where the slightest variation in the proof made the broadest distinction in the offence, as where manslaughter bordered on murder. There was the whole class of cases resting on circumstantial evidence, where the minutest and most argumentative statements were made by the prosecuting counsel. If all that reasoning and inference were useful for the prosecution, could it be altogether needless for the defence? or, if needful, could it be furnished by the defendant himself? It was feared by the right hon. Secretary, that appeals would be made to the fancy of jurors. Considering the class of persons, he himself had little fear of attacks upon their imagination. But the mischief existed already in another form. Speeches were made under colour of legal objections, and observations insinuated in the shape of questions to witnesses. These practices, bordering on irregularity, produced heats among the counsel; for where the lives of their clients, as well as their own reputations, were at stake, strong feelings would needs be roused; and the more bitterly on account of the prisoner's disadvantages. A contest of fair speaking, a legitimate vent, would prevent this violence—would prevent these feelings from exploding in that collateral and irregular direction. The argument of his hon. and learned friend, the Attorney-general, then took another turn; contending, that the prisoner would be a loser by the sharp reply the judge would be obliged to make upon the counsel's heated speech. There were cases at this moment where the prisoner had this disadvantage from the judge, without any counteraction from his own counsel. In all capital cases except treason, the prisoner was without counsel; but in treason counsel were allowed as a counterpoise to the influence of government. But, if his learned friend's opinion were a correct one—that the general effect of the speeches of counsel is rather to hurt than help the prisoner, by bringing down a destructive reply from the bench—treason must be the case where counsel would be most hurtful, because treason is the offence where the judge is generally most adverse to the accused. If counsel were not injurious in treason 613 they were much less so in offences against private society. But the privilege, though denied to felony, was not confined to treason; it had existed in all cases of misdemeanour for centuries, without even a suggestion of its being injurious, till the Attorney-general's speech of that evening. Thus, in treason, the highest offence, and, in misdemeanour, the lowest, you allowed the privilege; denying it only in felony, which was in neither extreme, but lay midway between both. Was there any thing in the actual nature of the offences called felonies to warrant a distinction? So far from it, that very often it was difficult to say, on the facts, whether the offence were felony or not; nay, it might sometimes be felony, misdemeanour, or treason, as the prosecutor pleased: as where a mob had assembled, to repeal by not and force some unpopular statute, and certain persons had continued in that assembly for more than an hour after proclamation to disperse. That might be treated as a levying of war against the king; and then the prisoner would be entitled to receive, as lord George Gordon did receive, the full and saving aid of counsel. It might be treated as a seditious riot; then it would be a misdemeanour, and counsel would still be allowed. But if government had a mind to destroy the prisoner effectually—to fire a deadly shot, yet make no report, and sound no alarm—let them introduce into the indictment the aggravation, that the prisoner had continued with the mob for an hour after reading the proclamation to disperse, and they would convert the charge into a felony assailing the prisoner's life, and at the same time exclude the address of the counsel, by whom, peradventure, that life might have been saved. Could an exclusion, thus resting on the form of proceeding selected by the prosecutor, be vindicated as a thing beneficial to the prisoner? If it were for his benefit to exclude counsel, they should be excluded in treason, they should be excluded in misdemeanour—the benefit intended should be made uniform and equal; but, if the exclusion was a disadvantage, the prosecutor should not he permitted to impose that disadvantage on the prisoner, by a mere variation in the form of his proceeding. Neither was it only in political cases that this distinction was unreal between felony and other divisions of crime. A receiver of stolen goods, who had employed a young girl to rob her 614 master, might be tried for the misdemeanour: the girl being taken afterwards would be tried for the felony. The receiver would be punishable only with fine, imprisonment, or whipping, and he could have counsel to defend him with the jury. The misguided girl being indicted for felony, would be forbidden this advantage; and yet to her, transportation or death would be the consequence of conviction. He was sorry to detain the House by thus enumerating cases; but was there any foundation in reason for these distinctions? or was not the felony, in very many cases, lighter in the scale of moral guilt than the misdemeanour? His hon. and learned friend, the Attorney-general, was afraid that the prisoner's counsel might be embarrassed by the consideration, whether he should call witnesses, and thus let in a reply, which, of course, must be allowed, if they allowed a speech for the defence. Even in civil cases, his hon. and learned friend had said, where the defendant's counsel did address the juries, this difficulty was often a painful one; and what could it be in criminal trials? He would ask his hon. and learned friend, whether defendants in civil cases would be willing to give up the right of addressing the jury by their counsel, for the sake of avoiding this embarrassment? If not, he was at a loss to understand why the right should be more injurious to defendants, in criminal proceedings? In truth, the only difficulty he found was, to understand how it happened, that the sanction of law should still be wanting to this common right. He could account for it only by the strength which custom lends to all old regulations—the vigour of mere inveteracy. How could any man state the nature of the doubt in graver language? if a native of Scotland—where this hardship is unknown—should meet any member of the House next day, and ask, what arduous problem in legislation had been occupying them this night, what account would he render of the disquisition? He would have to tell the inquirer, that the House had been considering the question—whether, in a court of criminal justice, it be fit to hear both sides equally; whether, though in civil cases, where only property is at issue, both sides should be equally heard, there ought not to be a difference where liberty and life were at stake? whether it might not be the best way of dealing with all prisoners who 615 could not defend themselves, being nine hundred and ninety-nine out of every thousand, to condemn them unheard? He was glad the right hon. Secretary had disposed of the discreditable argument about the consumption of time by the addresses of the counsel. What! could the country find time enough to accuse the prisoner, time enough to convict him, time enough to inflict the punishment of death upon him, and could not find time to hear the reasons for his acquittal? The right hon. Secretary had dealt with the argument in his usual manly tone, and he believed it would have no more effect on the House than he was sure it would have with the judges of the land, who would not grudge their time for the justice of their country. He trusted the House would decide on no arguments drawn from personal convenience, or the darkling fictions of the law, but on those grounds of broad reason and plain justice—opposed, indeed, but not yet shaken— which prescribe that we should give to the accused the same chances and means with his accuser [hear, hear!].
§ Mr. R. Martin
said, he could not but congratulate the House that this bill was now likely to pass into a law, though he could not help reminding them, that among the offences of "petty legislation" with which he had been charged, was an attempt of his to introduce this very principle into our laws. Three times had he tried to get it a hearing, and three times had he failed. Still, however, he could not refrain from congratulating the House and the country on its present introduction, and on the eloquence which had been displayed in its support. The exhibition of that eloquence proved that he was not unwise when he had requested the hon. member for Dungarvon to afford it his patronage, and the success of his recommendation would encourage him to submit some of the other bills which he wished to introduce to the care of that hon. member and of his friends. He trusted that by pursuing this system some of the bills, which had been so much reprobated as his, would, when he had left that House, or perchance the world, be introduced under the management of abler hands, and would sometime or other, the sooner the better, become the law of the land. When he had vainly attempted to introduce the principle of the present bill, he had adduced an instance of hardship upon the prisoner which could not have existed 616 but under the present system. That instance proved, that judges were not the advocates of the prisoner, who was sometimes pursued, even to conviction, by their means. The instance he alluded to was this:—when lord Kenyon was on the bench, he attended an assize at Croydon, and one of the prisoners requested leave to have his trial put off from eleven to four o'clock, on the ground that a witness whom he expected from London, and who would give him a good character, could not arrive till the latter hour. The reply of the judge was, "Oh, I'll give you credit for a good character, and now I'll try you; swear the jury." The jury were sworn, and the prisoner was convicted. This would not have occurred had the man been able to retain a counsel to enforce that application. Would any hon. gentleman say, that in that case the judge had acted as counsel for the prisoner? Another instance to which he had referred was that of Bellingham, in which an application was made for the postponement of the prisoner's trial, until a person travelling by the mail coach to Liverpool, could arrive there, and procure the attendance of witnesses to prove that Bellingham was insane. But there also the application was refused. He did not allude to these cases for the purpose of proving that justice had not been done to the accused, but to show that judges did not always act as counsel for the prisoner. A similar argument might be founded upon the case of Perreau; but he would not further trespass on the time of the House. He had risen to make these few observations in support of the hon. gentleman's motion, and at the same time to recommend to any hon. gentleman who had a bill he wished to carry, to place it in the hands of some of the hon. gentlemen on the opposite side of the House. He had been accused of petty legislation; but the measure in question, which had been taken under the protection of the hon. member for Dungarvon, was a proof that all his proposals did not come under the description of petty legislation. He just recollected another act which he had proposed, which was rejected, and subsequently when introduced by another hon. member, had passed; he meant that for amending the mode of serving processes in Ireland. Had that bill passed into a law when he originated it, lord Dillon would have been saved 8,000l.; for it cost that noble lord that sum to prosecute a> suit for a debt of only 300l.
§ Mr. Tindal
said, he could not suffer the important question then before the House, to pass to a division without expressing his opinion upon it. From all that he had heard or learned on the subject, he was led to consider—and in which opinion he was sure he should have the concurrence of the majority of the hon. gentlemen who heard him—that all the arguments that had been brought forward in support of the proposed measure were more specious and plausible than valid and substantial. He was of opinion, that the proposed bill would not only not be a benefit, but would be the greatest mischief to a prisoner. What was the state of the law at present? A prisoner had the right to have counsel assigned him, to argue any points of law that might arise in his favour. He was also entitled to their aid to cross-examine the witnesses against him—to select, to marshal, and to examine his own witnesses, and to make what comments were necessary on the evidence as it proceeded. All, therefore, that was wanting was, that the counsel should make a speech to the jury in behalf of the prisoner, in the same manner as the counsel for the prosecutor had already made one against him. Now, what was the nature of the speech of the prosecutor's counsel? It was nothing but a plain statement of facts, unadorned by any attempts at eloquence, and unaided by any appeals to the passions of the auditors. If it were otherwise, it would instantly be put down by the judge. The evidence was then adduced; and, after the points of law, if there were any, had been argued, the facts were summed up by the judge, who left them to the jury in the most unbiassed and unimpassioned manner. His summing up, too, was always accompanied by a direction that, if the circumstances were esteemed doubtful, the verdict, should be in favour of the prisoner. Could there be any method more favourable in its nature to the party accused? He thought not. Yet it was said, that the prisoner would stand in a better situation if his counsel was allowed to address the jury. Now, the first objection which struck him was this, that the immediate consequence of this must be, a change in the character of the counsel for the prosecution; who, instead of being, as now, a minister of justice, would become the advocate of a party. Feeling conscious that he was to be opposed by the opposite counsel, it was not likely that he 618 would, as now, confine himself to a simple statement of facts. He would naturally be induced to bring all his talents into play, for the purpose of ensuring a conviction. In civil cases, the advocate, knowing the right possessed by the counsel for the defendant, omitted no argument, had recourse to every expedient which he thought calculated to prepossess the jury in his favour. Now, if trials for felony were placed upon the same footing as civil cases, was it not likely that the same exertions would be made, and the same advantages taken, to secure a conviction? Were they sure, after such a change as that now proposed, that the same degree of condescension would be shown to the counsel for the prisoner, and the same opportunities afforded him of serving the cause of his client; or rather was it not probable, that, as in civil cases, the passions would be excited, and an eagerness for conviction be produced, ready to lay hold of every circumstance, and operating to the great disadvantage of the accused? It was not very difficult to perceive that the prisoner must undergo very serious inconveniences if the privilege should be granted of allowing counsel to make a speech for him. In the first place, gentlemen employed in the criminal courts were generally juniors in the profession. Whatever their talents might be in other respects, they were not so adroit as some of his learned friends, in making out the best cases, and drawing up the most able defence. Men of the first talent in the profession could not, except in very few instances, be retained by the prisoner; because he could not go to that expense; but, would they not be retained by the prosecutor, knowing the advantage the prisoner would derive from this alteration in the law? So that, though a strong arm would thus be placed at the disposal of the prisoner, a stronger still would be brought to the assistance of the prosecutor. Besides these objections, there were one or two which he would now urge, and which related more particularly to the judges. Suppose an able and experienced counsel had been retained for the prosecution, and had exhibited his talent in making an eloquent reply; that reply might be of the utmost disadvantage to the prisoner, if the judge should be unable to destroy its effect. And, that such might be the case, he was prepared to affirm, from the experience of civil causes, in which he had known instances where, 619 from the mere want of physical power, the judge had been unable to take off the effect of the reply of an eloquent advocate. Nor would that take place alone from the cause which he had mentioned. The judges were not required to make eloquent appeals to a jury. They were more often, and more properly, chosen on account of their knowledge of the law, than for any natural powers of eloquence. Another objection to the proposed alteration was to be found in the fact, that, according to the present system, there was often no counsel employed for the prosecution. On that point he might appeal with confidence to a learned member opposite (Mr. Denman), who presided in a court where more prisoners were tried than in any other court in the kingdom. In the presence of that hon. and learned member he would assert, that in nine-tenths of the cases tried in that court, no counsel were employed for the prosecution, while a great number of the prisoners did employ them; besides, the influence and opinion of the judge were often in favour of the prisoner. Now, suppose the system was changed, the reverse of this would be the fact. After a speech from the prisoner's counsel, strong, perhaps, in assertion, but modest and retiring in proof; unless the judge threw his weight into the scale of the prosecution, the balance would not be even; and, if he did, then the respect for the judge, and the influence of his opinion, would be directed the wrong way for the prisoner. He did not think this question was to be decided entirely on theory, but must be referred to experience. He could also call to his aid, if aid were necessary, the opinion of a foreigner, who had visited this country for the purpose of examining into her institutions; who had travelled the northern circuit for information; and who was, undoubtedly, one of the ablest and best informed men that had ever written on the subject. He referred to M. Cottu, in whose work there was an admirable description of the criminal jurisprudence of England. In that description the author had truly observed, that in England no advocate ever described a prisoner as a monster, from whose presence it was necessary to purify the earth; nor were the passions of the jury inflamed against him; nor were they threatened with the vengeance of heaven if they presumed to acquit him. The hon. and learned 620 member read the extract, which was loudly applauded. This account, he observed, was one given by a man who came from a country in which a system, exactly the opposite of our own, was practised; and his opinion, which was in favour of the English system, was, therefore, entitled to the greatest credit, as one free from the prejudices of education and habit, and founded on a close and impartial observation of the scenes which he described.—He should now refer to another line of argument, which had been adopted on this subject. It was said, that we ought to assimilate the practice in civil and criminal cases; for that, as truth was the object of the investigation, in both instances, the means of attaining that object ought to be the same. He thought, however, there was the most material distinction. A question of civil right might be surrounded with most intricate and difficult points of law; while the simple issue, whether a man did or did not break into a house, was a plain matter of fact, and could be best elucidated and determined by the production of evidence. There was another distinction, too, between civil and criminal cases. In the former, the plaintiff was complaining of some wrong for which he sought a remedy; or claimed some right which he endeavoured to enforce. In both these instances he would urge his claim with a degree of warmth, excited by his individual interest; while, in the criminal case, the prosecutor was divested, as far as possible, of individual feeling, and became a minister of public justice. Again, in a civil case, if the counsel on either side should succeed, by their eloquence, in inducing the jury to come to a wrong conclusion, the matter might be set right by having recourse to a new trial, which could never be done in criminal cases. One of the arguments brought forward in support of the present measure was, that the course now pursued was an anomaly. He trusted, that argument alone would never be found to have much weight with the House. Besides, if they were always to act on the argument of anomaly, what greater anomaly was there than our present jury system, in which unanimity was expected from twelve men assembled from different parts of a county, whose habits varied from each other, who then, perhaps, met for the first time, who were called on to deliberate on a subject which they had never before considered, 621 and who were required to be unanimous, or were to be brought to unanimity by hunger and thirst, and the deprivation of light, and all those comforts, the loss of which was least likely to render men unanimous? Yet such was the law of England; and no man, he believed, would be bold enough to say, that, merely because it was an anomaly, it ought to be altered. Another anomaly was to be found in the law which authorised appeals to the House of Lords. What could appear a greater anomaly, than to carry the decisions of a court, composed of the learned judges of the land, before noble persons, whose education and habits had not made them acquainted with the niceties of the law? And yet, in fact, the mode by which that high tribunal decided, by summoning to their assistance the twelve judges of England, and by adding to the learning of those eminent persons the weight of their own character and influence, was the best, both in theory and practice, that could have been devised, finally to settle long-litigated questions. The argument of mere anomaly, he should, therefore, treat as untenable. One other statement, made in favour of the measure was, that it was allowed in foreign countries. But, with respect to them, he begged to say, that a most material distinction existed. Both in France and Scotland there were public prosecutors, whose duty it was to conduct a prosecution, and who, in France, at least (for he could not speak with certainty as to Scotland), first examined a prisoner, and so became acquainted with his means of defence. Now, he wished to know, whether the supporters of this measure would clog their proposal with the condition of the creation of such an officer, armed with such a power, or whether they would not rather leave the prisoners as they now stood? On all these grounds, he should most strongly and firmly oppose the measure; believing, as he did, that it would not be a beneficial alteration to the parties accused, while he was convinced that it would effect such an alteration in the tone, the temper, and the character, of a criminal accusation, as could not fail to be mischievous to the prisoner [cheers].
§ Lord Althorp
supported the motion, and contended, that, however the measure might be condemned in theory, it would, in practice, prove advantageous to persons brought for trial before our courts of 622 criminal justice. Why had the right to be defended by counsel been conceded to persons charged with high treason? Because it was deemed an advantage; and yet the motion before the House had been resisted principally on the ground, that the bill would be productive of no advantage whatever to those accused of felony. He should vote in favour of the proposition, not on account of the present difference between our criminal and civil jurisprudence, and the necessity of assimilating them, but on account of the great difference created by the present system between an uneducated and an educated prisoner. His wish was, to destroy this difference, and to put all on the same level, as to their means of defence.
§ Mr. Scarlett
began by adverting to the opinions which he had formerly held upon the subject. He then thought, that a change in the administration of the law, in this particular, was not called for. He had, however, given the subject very mature deliberation; and, if that opinion which he now held was erroneous, he could safely say that the error did not arise from any want of attention to the subject, or insensibility to its importance. He would own, however, that he then felt inclined to distrust his own opinion, inasmuch as every one knew how prone the human mind was, to be overcome by prejudice, and to think that practice best to which it had been accustomed. The chief argument which had weighed with his mind, was, that the proposed change would tend more to the conviction of prisoners than the present, and in that respect be disadvantageous to them. He would own, however, that that was not a just reason; and in what he would now say upon the subject, he should be careful to build more upon practice than upon theory. His learned friend who spoke last, had very justly said, that the present practice was so conducted as to prevent the appearance of any of that passion or eagerness in the address of the prosecutor, which was likely to lead away the minds of the judge and jury from the real facts of the case; but, if this was a good ground for the present practice in criminal cases, why not apply it to civil cases also? The investigation of truth was the object in both; and, if the practice and the results were good in the one, they must also be good in the other. There could be no distinction made between the two. The 623 questions of law and fact were not more mixed up in the one than in the other. Why not, therefore, allow the prisoner in criminal cases to address the judge upon one, and the jury upon the other? The argument of his learned friend, if pursued in this way, would appear a reductio ad absurdum. He would next state the reasons which induced him to think that his hon. friend ought to be allowed to bring in his bill. The circumstance of a man being brought to trial, almost always amounted to a certainty of his guilt, and where the case against him was clearly proved, the counsel would have little more to do than to point out the circumstances which made for him. This was now done in civil suits; and were there advocates on both sides, it would also be done in criminal cases. Prosecutors had not stronger feelings than plaintiffs, and, in general, were less zealous in pursuing an offender than a party to a civil suit. He thought, therefore, that there could be no fear of passion mastering the advocates in criminal prosecution. It was in cases founded on circumstantial evidence, that he thought counsel for the prisoners were most required. He had himself often seen persons whom he thought innocent, convicted, and the guilty escape, for want of some acute and intelligent counsel to shew the bearings of the different circumstances on the conduct and situation of the prisoner. It was a natural disposition of the mind, that it should receive, with a readiness to believe, the well-connected chain of facts that was brought before it, and afterwards feel a disposition to explain the facts offered in defence, so as to shew the consistency of the first statement. The same was the case in civil suits. He thought the cases were few, in which counsel could be of important benefit to the prisoner; but in such cases they were of great importance. A case had occurred to himself at Manchester. The inhabitants came to him with a very modest request to present a statement of the facts to the judge, and to determine in wbat order the witnesses should be called. His intention was, to have stated the facts on both sides, and to have compared them together, so as to shew on which side the balance inclined, but he was prevented by the judge. The consequence was, that the prisoner was acquitted, whether right or wrong he would not say; but if he had been tried in the ordinary way, he would not have escaped. He was, by no means, 624 insensible to the benefit which the counsel for the prosecution would derive from having it in his power to reply; but he could not enter into the ideas of his learned friend, as to feelings of rivalry and anger and of passion being mixed up with it. He would appeal to his learned friend, whether, in a case of life and death, a counsel would not be for ever disgraced, who admitted into his reply any topics connected with personal feeling. He could not bring himself to believe that it would be any disadvantage to the country, if a greater number of those who were prosecuted, were also convicted. The vast number of acquittals was one of the greatest defects of our law; and in his opinion, it would be better that a greater proportion of the accused should be convicted than at present. This was frequently caused by the prosecutor's feeling for the unprotected state of the criminal, from which he allowed him to escape. Another cause of this, was the disproportion of the punishment to the crime; and, if that were removed, and he believed the right hon. Secretary opposite intended to remove it, the motives for prosecutors abstaining from prosecution would be done away, and one great argument against employing counsel for prisoners would fall to the ground. One objection was, that, the giving counsel to prisoners would waste time. He did not believe this. At present the counsel made the defence of the accused by cross-examining the witnesses, and the judge allowed greater latitude in such a cross-examination than he would if the prisoner's counsel could speak in his defence. If the counsel had the privilege of speaking, he would not waste the time of the court in cross-examinations. They would, in many cases, when they saw they could make no defence, allow a conviction. He agreed with his learned friend, that the administration of justice in this country was pure and unbiassed; and he knew no picture more sublime, than that of the chief baron Thompson, while engaged in unravelling the evidence, and stating the case to the jury. He agreed also, that it was much better that ten guilty persons should escape, than that one should perish innocently; but he would contend, that the introduction of counsel would have a tendency to produce more convictions, and more just and satisfactory convictions, than the present system. Such were his reasons for the vote he 625 intended to give. He did hot hold his opinion so strongly as that he might not again change it. The subject was one of great difficulty, and he would vote for the bill, in order that it might be more fully discussed.
opposed the introduction of the bill. From the discussion which had taken place on the subject, he was sure it would be evident, as well in the House as out of it, that the question had formerly been decided upon its own merits, and not with any reference to the quarter from whence it originated. The proposal to give counsel to prisoners involved an apparent advantage, which, when examined, would prove to be only apparent, whilst the practice was calculated to introduce many evils and inconveniences. For his own part, he had never heard of that dissatisfaction at the course of justice in the criminal courts, of which an hon. member had spoken. He was quite satisfied, and so he thought was the country, with the manner in which prisoners were tried and convicted under the present system of law; and rather than agree to give the prisoner counsel, he would prefer abridging the power of the prosecuting counsel to make a speech in opening the case to the jury. If counsel were given to prisoners in cases where innocence was a matter of doubt, conviction would, in his opinion, be more certain. Some gentlemen were for the measure, because it would give the prisoner a greater chance of escape; others took an opposite view, and supported it because it would lead to more convictions. They were antipodes to each other in argument, and yet both were found on the same side. If there were any disposition in the public to be discontented with our mode of proceeding in criminal trials—if the public called aloud for a change—he should think that a reason for taking the subject into consideration. But he had no reason whatever to suppose that the public were displeased with our criminal proceedings. The learned member for Knares borough, whom he did not then see in his place, had presided over an elaborate inquiry, by a committee of that House, into our criminal law; and in his report there was nothing stated that could induce him to believe that the public at large desired a change. He believed, with his learned friend, that if prisoners had counsel, our criminal courts would be degraded into arenas, where the 626 advocates contended for human life. He would not say any more, but declare his intention of voting against the motion.
§ Mr. Brougham
observed, that he, as well as his hon. and learned friend, the member for Peterborough, had not, strictly speaking, changed his opinion, but he had a stronger impression in favour of the measure than he entertained before. Formerly, he had an impression similar to that of the hon. and learned gentleman opposite, though not so strong as he had expressed it this night; but, after the fullest consideration, he had decided in favour of the bill. He complimented the right hon. Secretary of State for the candour which he had manifested towards this bill, allowing it to be one untinged with party. It had been stated that his hon. and learned friend, the member for Peterborough, entertained an opinion that the administration of criminal justice had not the confidence of the people. But he had understood his hon. and learned friend to refer to this particular point—that a prisoner was left unprotected when pressed by the eloquence of a counsel against him; that the people present in court, thinking that the prisoner had not been fairly treated, went away dissatisfied if he was convicted, and satisfied if he was acquitted, though he might be guilty. The hon. and learned gentleman opposite said that, notwithstanding the opportunities he had of hearing complaints from prisoners, he had never heard this alleged as a complaint. Of course the complaints urged were consistent with the existing system—such as that their counsel had not called certain witnesses, or that facts which made an impression upon the jury had not been explained. They were matters common to every system of law, not complaints against the system itself. This argument, therefore, went for nothing. There was no man, who visited our criminal courts, who did not see the fearful odds against a prisoner; a counsel speaking against him, and no one who could speak for him, and who could only get in a fact by that side-wind procedure, which had been so ably described by his hon. and learned friend. They were obvious to all those who attended our criminal courts, and they did leave an impression that justice was not administered to prisoners. His hon. and learned friend, the member for Peterborough, confirmed the statement of his hon. and learned friend who introduced this subject, and shewed that it was not 627 sufficient that the law should be purely administered, in regard both to those who did administer it, and to those who were its objects; but that it was necessary that the administration of it should be so framed as to give general satisfaction to the people. It had been said, that, instead of that calm method of investigation which at present prevailed in the criminal courts, the allowing of counsel to prisoners would introduce into the administration of criminal justice those scenes of wrangling between counsel which were exhibited in civil cases. But, judging rather from what he had heard than from his own experience, he must say, that on some of the circuits the same scenes of wrangling sometimes took place on the criminal, as on the civil side. Arguments were often addressed to the judge upon points that arose out of the cross-examinations; objections were frequently taken, and matters were keenly contested—a state of things which, he agreed with the hon. and learned member for Peterborough, would not prevail if counsel were permitted freely to speak for the prisoner. In point of fact, the arguments on law points were really intended, not for the judge, but for the jury; and were only pretended to be addressed to the judge, merely because they could not regularly, according to the present practice, be addressed to the jury. This was often a mere waste of temper and of time, and not at all conducive to the great end of criminal justice—the conviction of the guilty and the acquittal of the innocent. Then again, by this peculiarity, were they not adding to the undue chances of escape by the criminal? The laws against criminals were already too severe; and, from that circumstance, many criminals escaped altogether, who certainly deserved some punishment. In the same manner as the prisoner was placed on trial under great and evident disadvantage, there was often an undue leaning in his favour. Another point for consideration was this: they had often heard of counsel not pressing hard on prisoners, from imagining that the prisoners had no counsel to oppose them. Now, he knew, from his own experience on the northern circuit, that in this respect there was the greatest difference between counsel—some simply stating the facts, others making speeches in the mode of harangues. But was it fitting that a matter of this importance should depend upon the discretion of counsel? The judges, it was said, would interfere; but, 628 in reality, there was in this particular as great a difference between judges as between counsel. Some things were permitted by one judge, and on one circuit, which were not permitted by another judge, and upon another circuit, as to the latitude allowed to counsel. In the case referred to by the hon. and learned member for Wootton-Bassett (who bad so much distinguished himself by his speech of that night), the judges on the northern circuit would have interfered. It was one of the grounds of complaint formerly urged by an hon. and learned friend of his, (who, he regretted, was not alive to witness the adoption of some of his humane plans, and to aid an object to which he had devoted his talents, that as long as the law left so wide a discretion, it depended upon what particular judge went a circuit — whether one view or another would be taken, and whether there would be a greater or less chance of escape. There was a most important fallacy lurking in the argument respecting the speeches of the opening counsel. The hon. and learned gentleman opposite said, that the opening was a calm, dispassionate statement of facts. Let it be so. But, as his hon. and learned friend, the member for Peterborough, had observed, the cases where counsel were most necessary to a prisoner were those where the evidence was circumstantial; and, could any thing be harder than for a prisoner's counsel in such cases to be tied up (not from employing adjurations and obtestations of Heaven and earth, as represented by M. Cottu to be heard in our courts), but from saying a word in explanation r Suppose the counsel did confine himself to a dry statement of facts, no case could be harder than for the whole web to be, as it were, united together by the juxtaposition of all the circumstances, so as to make up such a picture of the prisoner's guilt as that a man could not rid his mind of it, and fancied he saw the prisoner committing the fact. To unravel all this, would require the acutest observations of a prisoner's counsel; for in such a case nothing could tell more strongly against a prisoner: than a simple detail of circumstances. The only other argument rested on the time which, in case the measure should be adopted, would be necessarily required for the trial of prisoners. The answer to that had been already given; and, supposing it to be true, that more time would be required, than was at present devoted to 629 such trials, the only conclusion to which that would lead, would be that more time ought to be bestowed upon them and more assizes held if necessary. So that, upon the whole, he was clearly of opinion, that permission ought to be given to bring in this bill; and he had only further to state, that he approved of its object.
Mr. Secretary Canning
said, that the lateness of the hour, and the full and able manner in which the subject had been already discussed, would be a security to the House that he would not occupy much of its time in stating the grounds upon which he would vote against the introduction of this bill. He had paid the greatest attention to what had been said on the subject, on one side and the other, and could not help applauding the very candid manner in which the discussion had been conducted. But if the hon. and learned member for Peterborough, and the hon. and learned gentleman who spoke last, had once entertained great doubts on the question, and if they came to the discussion of it with doubts only diminished, the doubts of the hon. and learned gentleman, who spoke last, being more diminished than those of the hon. and learned member for Peterborough; if such was the state of their minds, surely it might be permitted to an unlearned person, like himself, who came to the consideration of the question with a disposition favourable to the system at present prevailing, still to doubt whether the proposed change would be beneficial. It did appear to him that, with respect to such a measure as this, even in the state of doubt which had been admitted to exist, the natural course would be, to oppose the introduction of the bill, in order to prevent further discussions, which could lead to no useful result. The balance, even upon that view of the case, preponderated in favour of the present practice; but, although the balance had been equal, still he would have thought it right to oppose the change, because the present practice ought to be continued, unless the balance decidedly preponderated against it. He had heard no good arguments out of the House for the projected change, but had found, on the contrary, that the general opinion was against it. He did not mean to say, that this was conclusive, but he did say, that no change ought to take place, until those best competent to judge were clearly convinced of its expediency and propriety. Much the safer course was, to maintain 630 the existing practice inviolate, till it should be clearly ascertained that the balance preponderated against it. As to the chances of conviction or acquittal that might prevail under either of the systems, that was nothing to their purpose. Their object was, and ought to be, only the elucidation of truth, and the correctness of decision. But, looking at the proportion of convictions, as compared with acquittals, he believed he might truly say, that the present system certainly did not operate unfavourably against prisoners. The observations which had been made respecting the introduction of a contentious mode of conducting criminal trials, certainly did operate upon his mind against any alteration of the existing system. That, he had no hesitation in saying, had considerable weight with him, and rendered him exceedingly averse to the proposed alteration. His hon. and learned friend behind him (Mr. Twiss) had stated, and stated truly, as he believed, that the eftect of the present system was, to raise a presumption in favour of the prisoner; and that was unquestionably one reason against a change; but, on the other hand, although more convictions were to take place in proportion to the number of trials than actually did take place, he would not, on that account solely, be convinced that any change ought to be made in the present system. But, on the whole, he thought it the safest course not to make any alteration in the existing practice, until their minds were completely made up on the subject, and until the call for a change became much louder and more general.
§ Mr. Denman
said, that, after the arguments he had heard by gentlemen on both sides of the House, and having expressed his opinion two years ago upon this bill, he had little to offer to the House. He was happy to perceive that his former arguments had made two converts, and that since the last time when this question had been agitated, his learned friends, the member for Winchelsea and the member for Peterborough, had both come into his opinion. It had frequently occurred that counsel had declined to conduct a prisoner's case where no doubt existed as to his guilt. The course practised was, to leave him to the clemency of the judge, and the justice of the country. There was another case of a peculiar nature in which the assistance of counsel would be absolutely requisite—he meant in the case of a prisoner being deaf and dumb. 631 Two cases of this description had come before him, in his judicial capacity, in the course of the present year. Two persons, both of whom were deaf and dumb, were placed at the bar on criminal charges. They, of course, could not hear the indictment read, nor were they at all sensible of the situation in which they were placed. They were obliged to have their cases explained by interpreters. There was no doubt, however, as to their guilt, and they were both found guilty. But suppose the proof of their guilt had been less clear—suppose they were, in fact, guiltless of the crime imputed to them, and yet incapable of establishing their innocence—what, he would ask, would be the feelings of a judge and jury in whose hands their lives or liberties were placed, if these forlorn and disabled creatures were to have no counsel to plead for them—no voice to interpose in their behalf—when perhaps only a voice had been wanted to make their innocence manifest to all? There was another case not less strong,—be meant where foreigners, who were totally unacquainted with our language, were arraigned for felony. Were they not situated like those who were deprived of speech and hearing? Were they not virtually deaf and dumb? Were not insane persons similarly situated? What would be the feelings of the right hon. gentleman who had spoken against the introduction of the measure, were they upon a jury, if the assistance of counsel could not be afforded to any one of those unfortunate persons, if they had it not in their power to have a single doubt argued for them? The Utopian picture presented by the Attorney-general of the propriety and decorum of our courts, was contrary to that which daily experience presented. He had said, that the proceedings were conducted with calmness and decorum. Those who might by chance be led into one of those criminal courts would witness the reverse of this fanciful statement. The dictum of lord Coke had been referred to on this subject—that the case against a prisoner ought to be so clear before conviction, that no counsel could withstand it. This dictum had been adopted by lord chancellor Nottingham; and yet it was the unhappy lot of that judge to pass sentence of death upon a peer, who could never have been found guilty in such an assembly as the House of Lords, if he had been allowed counsel to plead for him. Nothing 632 could be so clear as that, if lord Stafford had been assisted in his defence by counsel, no court—not even the House of Lords, constituted as it was in those days—could have refused to acquit him. The right hon. Secretary had rested his chief argument against this bill on the ground that it was not publicly called for, and that there was no popular dissatisfaction felt from the want of such a measure as that which the bill contemplated. God forbid it should ever happen that the want of this bill should be so felt as to call forth the public dissatisfaction! It was to avoid the popular discontent that the measure was suggested. If we waited until the necessity for such a law should arrive, it was impossible to say what might follow. If the principle were just, it should be adopted at once without waiting for the season of misfortune to bring it forward. It was his fortune, as a criminal judge, to try a great number of prisoners in a year; a greater number, he might say, than any other judge in the kingdom; and the result of his experience told him, that two things were absolutely necessary in a court of justice—namely, that opposing parties should be placed on an equal footing, and that truth should be elicited, in order to bring the case to a just and equitable decision. Now he would ask, whether the practice adopted in our criminal courts was the way to render impartial justice between the parties? Instead of eliciting the truth by a fair and legitimate process, insinuations were thrown out in the cross-examination of a witness, and every stratagem was resorted to, in order to betray him into some admission which should tend either to shake the credit of his testimony, or otherwise to prejudice the case which he came to support. In almost every trial an ingenious counsel could seldom fail to advance his cause. His cross-examinations were the hinges on which the case might be said to rest, and the greater his tact and cleverness, the greater was the chance of his success. What would not be dared to be suggested out of court he fearlessly asserted within. There was no doubt whatever of the good effects which the bill would produce. It would serve to expedite and make certain the convictions of the guilty, and it would afford greater security than ever to the innocent. There was one point, on which, holding the situation which he filled, he was exceedingly anxious to be informed. He wished to 633 know whether a judge could call upon counsel to defend a prisoner charged with felony? If that were the case, and if it were lawful to do so, he should be glad to know if there was any one gentleman in that House who would wish to repeal that law, and deprive prisoners of the benefit which it offered them? He was certain there was not one. He should now detain the House no longer than to express his satisfaction at the manner in which this question had been treated by the other side, and, indeed, by every member who had expressed his sentiments upon it. He would just add, suppose any one of the hon. gentlemen present were put upon his trial—and it should be remembered that the chances against that event were not so utterly improbable as might be imagined, for human nature was frail, and the highest in station might yet be levelled with the lowest—if such an event should ever happen, would he not wish for counsel to defend him? and if he felt the necessity of having legal assistance in his own case, why should he withhold that advantage from another?
§ The House divided; for the motion 36: against it 105. Majority 69.
|List of the Minority.|
|Althorp, visct.||Lushington, S. Dr.|
|Bernal, R.||Langston, J. H.|
|Browne, Dom.||Maberly, W. L.|
|Brougham, H.||Monck, J. B.|
|Baring, sir T.||Martin, R.|
|Calthorpe, hon. F.||Newport, sir J.|
|Crompton, S.||Nugent, lord.|
|Duncannon, visct.||Parnell, sir H.|
|Denman, T.||Rumbold, C.|
|Drummond, H.||Ridley, sir M. W.|
|Ebrington, visct.||Rice, T. S.|
|Evans, Wm.||Robinson, sir G.|
|Grattan, J.||Scarlett, J.|
|Grant, J. P.||Twiss, H.|
|Honywood, W.||Tennyson, C.|
|Howard, Hy.||Wilson, sir R.|
|Hobhouse, J. C.||Tellers.|
|Jervoise, J. P.||Lamb, hon. G.|
|Keckwith, S. T.||Williams, John.|