§ Mr. Ewart moved that the Bill for allowing Counsel to Prisoners in Criminal Cases be read a second time.
§ Mr. Poulterthought it was very unusual to move the second reading of the Bill, without entering into the details of it, and he wished to hear what the hon. and learned Member had to say in support of it.
§ The Solicitor Generalsaid, if it was the wish of the House that this Bill should advance a stage, he should offer no opposition at present to the second reading.
§ Sir Robert Peelobjected to the Bill in principle; and, therefore, he should object to the advancement of the Bill a single step. He was against the House agreeing to the second reading of any measure which it was not prepared to carry to a conclusion.
Mr. O'Connelldesignated the present practice as altogether monstrous. It was productive in many instances of the most frightful injustice, he would say, in some cases to the extent of murder, particularly when conviction depended on circumstantial evidence. It was the grand object of an ingenious Counsel to predispose the Jury for a conviction, and thus circumstances immaterial in themselves appeared before them in fatal magnitude, and the counsel for the prisoner was prevented from giving those explanations which would have turned the circumstances very much in favour of, instead of being against the prisoner. He hoped the Bill would be allowed to pass a second reading, and then be referred to a Committee up-stairs, with a view of having some change effected in the present system during this Session.
§ Mr. Shawstated, that he had the day before received a letter from a gentleman 608 in Dublin, who was writing a work on the Criminal Law, who begged for information on the subject of the proposed changes, by the various Acts on the subject then before the House—and he certainly felt it very difficult to inform that gentleman what the law was likely to be before the Session ended. He deprecated this mania for legislation on questions involving the administration of the law, and would suggest that in the present times it would be full as necessary that a standing order should exist, as well in regard of alterations in the administration of the law, as in the cases of religion and taxation, requiring that no measure should be introduced without the previous consideration of a Committee of the whole House. With respect to this particular Bill, allowing Counsel for the prisoner, both in statement and reply, he could only say that, as far as regarded Ireland, he feared its effect would be to turn all Criminal Courts into arenas for speech-making.
§ Sir James Scarlettwould give no opinion then on the subject; but he could not help complaining that the practice had crept into the House of late of passing the most important questions without due discussion. Important measures were brought forward—they were read a first and a second time without discussion—the third reading was brought forward at two o'clock in the morning, and the Bills passed without discussion. They were then sent to the other House, without the public obtaining any information about them. He hoped that the present important alteration in the Criminal Law would not be made lightly, and that the proposed measure would not be added to the number of Bills that had already been passed without any debate having taken place upon them.
Mr. Prymewas opposed to the suggestion of moving for a Committee on the question. He had reasons for not attaching much importance to the Reports of Committees; and he considered the principles of the propsed Bill of such importance, that it ought to be openly discussed in that House
§ The Solicitor Generalsaid, that he had proposed that the subject, and not the Bill, should be referred to a Committee; and he still considered that the object of the hon. member for Liverpool would be better obtained by doing so than by then forcibly pressing it forward.
§ The House divided: Ayes 61; Noes 88—Majority 27.
| List of the AYES. | |
| Abercromby, Right Hon. J. | Jervis, John |
| Langdale, Hon. Chas. | |
| Aglionby, H. A. | Lennard, T. B. |
| Agnew, Sir A. | Lynch, Andrew |
| Andover, Viscount | Molesworth, Sir W. |
| Bainbridge, E. T. | Murray, J. A. |
| Baldwin, Dr. H. | Nagle, Sir R. |
| Barnard, E. G. | O'Callaghan, Hon. C. |
| Barnett, C. J. | O'Connell, Daniel |
| Barry, G. S. | O'Connell, Morgan |
| Blake, M. S. | O'Connell, John |
| Bouverie, D. P. | O'Connor, Don |
| Brotherton, James | Penlease, J. S. |
| Buller, Charles | Pryme, Geo. |
| Butler, P. | Ronayne, D. |
| Chapman, M. L. | Ruthven, E. S. |
| Dalrymple, Sir J. H. | Scholefield, Jos. |
| Ferguson, Robert | Sinclair, George |
| Finn, W. F. | Stawell, Col. |
| Fitzgerald, T. | Stewart, Robert |
| Fitzsimon, C. | Strickland, G. |
| Fitzsimon, N. | Talbot, J. H. |
| Fleming, Admiral | Talbot, Jas. |
| Godson, R. | Todd, J. R. |
| Grattan, Henry | Tynte, C. J. K. |
| Handley, Major B. | Wallace, Robert |
| Hardy, John | Wallace, Thomas |
| Harland, W. C. | Walker, C. A. |
| Hay, Sir J. | TEILERS. |
| Heathcote, John | Ewart, William |
| Heathcote, G. J. | Wason, Rigby |
| Hill, M. D. |
§ Mr. Poulterrose to move, that the Bill be read a second time that day six months. He had been very desirous of expressing his sentiments on the subject of this innovation upon the good old principles of our Criminal-law. He viewed the change proposed with great apprehension, because he thought it would prove, instead of an advantage, highly detrimental to persons arraigned for felony. The practice, as to evidence, would be materially altered in these cases. As the rule in this respect now stood, in all civil cases, the slightest proof very frequently decided the verdict. In cases of misdemeanour, a strong probability, accompanied by corroborative facts, would often suffice. And these were the only cases in which Counsel were allowed to address the Jury for the prisoner, with the exception of treason, in which the practice was, to allow two Counsel the privilege of addressing the Jury. This was, however, the exception to the general rule that Counsel were not allowed to address the Jury for persons arraigned of felony. It was, perhaps, unnecessary to observe, that the evidence of truth, rather 610 than truth itself was the object of judicial inquiry. The first object of a Criminal Judge ought to be to prevent the conviction of the innocent, rather than secure the conviction of the guilty. He hoped that no one would question the position, that in cases of felony it was not desirable that Advocates should be tempted to make a display, or that appeals should be wade to the passions of the Jury. The effect of appeals of this nature in cases of treason, which was too often mixed up with political considerations and feelings, were often impediments to justice, and rather made the means of defeating justice. He anticipated that the same results would follow were the present practice altered in the mode of proceeding in cases of felony. He apprehended, that passion would be excited, calm judgment disturbed, and the justice biased and impaired, by introducing speeches of Counsel in favour of persons accused of felony. It was for that House not to flatter popular prejudices, but to legislate wisely and for general and permanent good. He would conclude, therefore, by moving that the Bill be read a second time that day six months.
§ Mr. Ewartproposed, as an amendment, and to meet the wishes of those who required time to consider the propriety of the change, that the Rill be read a second lime this day week.
§ Mr. Lambhad been officially drawn to the contemplation of the reasons for and against a change of this importance in our law. He would say from experience, that from day to day, he was the more convinced that justice was not always done in criminal cases. He had not anticipated any objection, he assured the House, to the Bill in this stage of it, or else he should have come down more prepared to enter into the examination of the arguments that might be advanced, for and against the change. He confessed, he was prepared to support the principle, that any person arraigned of felony, should be permitted equal advantages as to the assistance of Counsel as the prosecutor possessed at present. Unless that principle were recognised by our criminal enactments, he felt the law would be open to be impeached, and strict justice would not be done. If the question now were, whether they should postpone the second reading for a week, or till that day six months, be certainly should be for the shorter Period. He had not heard the debate, it was true, but he would say, that 611 he never had, from healing a debate on any subject, a more triumphant conviction left upon his own mind, that the side he advocated was the right one, than he had in this case.
Mr. Hillheard with great pleasure the sentiments expressed by the last speaker. He could not agree with his hon. and learned' friend (Mr. Poulter), that the instances were few, in which the innocent were convicted. The subject demanded their immediate attention. Nothing could be a more imperative duty on that House, than to protect the innocent when arraigned of crime. In his own experience, he had known instances where the innocent had been convicted, sentenced, and, he regretted to say, executed.
§ The Solicitor Generalsaid, that when the subject was first brought before the House, he had not hesitated to confess, that his impression was, that the state of the law was far from satisfactory to the profession and to the public. It was not proper or just that the prosecutor's Counsel should be allowed to address the Jury, and the prisoner's Counsel's mouth should be closed. Still he felt, that the Bill of the hon. member for Liverpool, proposed that which was not practicable. If every prisoner tried at the Old Bailey, and at all the Sessions and Assizes throughout the kingdom, were to be supported on his trial by a speech from his Counsel, (and that was the object of the Bill,) he would say, it was impossible to accomplish the trial of prisoners within the times limited for holding them; and let it be observed, that as the Assizes came on between Hilary and Easter Terms, the difficulty would then be increased insuperably. He believed, that granting to Counsel a right to address the Jury, would not have the effect of shortening cross examination. In difficult cases, too, he had no doubt that recourse would be had by Counsel to long and declamatory speeches for prisoners. He had a great respect for the profession; he would stick by his order. Yet he would acknowledge, numbers were bent on seizing opportunities to distinguish themselves, and those thus presented, he suspected would not be lost—promoting so far, in his humble apprehension, a delay, and a perversion, in some cases, of justice. With this view of the merits of the hon. member's Bill, he should be disposed to oppose it; but he would have no such objection to a bill, which had for its object, the establishing a lair ad- 612 justment of the advantages of Counsel's assistance to the parties; so that the prosecutor should not avail himself of an address, unless the traverser was entitled to the same advantage; including the proviso, that in case the prosecutor's Counsel did not address the Jury, neither should the prisoner's.
Mr. O'Connellobserved, they had witnessed rather an extraordinary mode of sticking by his order, in the case of the hon. the Solicitor-General, who had accused his brothers of the Bar, of unnecessarily procrastinating the administration of justice, for selfish purposes of aggrandisement. As to time, why try men at all, if they had not time to try them justly? Was the prosecutor to have all the advantages, and the prisoner to be debarred of equal rights with his accuser? Look at the absurdity of the distinction drawn between cases of felony and cases of treason. In the latter case, Counsel were allowed, where the greatest field was afforded for excitement and passion. But Jeremy Bentham had perhaps furnished the real reason why Counsel was not heard in such cases—namely, that the Judges did not like to wait for the truth, or to be detained to hear Counsel. As to the antiquity of the practice of the present system, let any Gentleman beware how he plumed himself upon supporting the ancient practice. Did he know that recently it was not the practice, and even lately it was vehemently questioned, whether a prisoner's Counsel had a right to examine witnesses in his defence on a charge of felony. The argument then was: "Do not, for humanity's sake, allow the defendant to call witnesses in his defence." The argument now was: "Do not, for humanity's sake allow the prisoner's Counsel the right to address the Jury." It was folly to say, that long speeches for prisoners would occasion their conviction. It was an evil, which, if it existed, would soon be its own remedy. Would prisoners continue to employ long twaddling speakers as their Counsel, whose endeavours only ensured their conviction? Were suitors in civil cases so blind to their own interests? Would the man accused of felony, not be as much alive to his interest, to the preservation of his property, liberty, or life, as the plaintiff in a civil action? He would say, he felt great satisfaction in the assurance just given by the hon. Secretary (Mr. Lamb), of his desire to improve the law in this respect. It displayed one 613 gratifying instance, that as a Member of the Administration, he at least had not abandoned or forgotten the sentiments he professed, when not in office. He hoped they might be enabled to make some progress, if it were to move further, only one stage further, towards an improvement so highly desirable.
§ Mr. Godsoncontended they were bound to afford to prisoners by law an equal privilege, as to assistance of Counsel, with the prosecution, and that, in addition to this, they were also bound to grant every prisoner a copy of the depositions on which he was arraigned, or else it amounted to a partial administration of justice in criminal matters.
§ The Bill to be read a second time that Day se'nnight.