§ Colonel Perceval
said, he should enter his protest against this Bill, as he considered it most mischievous in its tendency. Indeed he could not see that it would be 356 in the slightest degree advantageous to the unfortunate prisoners; and he was convinced that it would only benefit pettifogging attorneys, while it would double and even treble the county rates all over England.
§ Sir Eardley Wilmot
said, he would not propose the postponement of the Bill until that day six months, nor did he think that the Bill would only benefit pettifogging attorneys, though he admitted that it might have the effect of increasing the county rates; but that was not his objection to it. He objected to it because he thought, except in capital offences, it would be an injury, and not a benefit to the prisoner, notwithstanding all that had been urged to the contrary. When he recollected that more than one-half of our prisoners for trial were mere children, and that there were very few capital cases, he could not see what advantage would arise from having four speeches on every trial. He had just come from a Quarter Sessions, at which one hundred prisoners were tried, two-thirds of them being under age, some under twelve, and others nine years old. He was perfectly certain that the Bill would be impracticable, if the Judge had to sift the chaff from the corn, and unmystify the speeches of the Counsel, by directing the Jury to the common sound sense of each case. Counsel would do their best to get an acquittal without reference to truth or justice, and no Judge in the country possessed physical and mental power equal to the task. Make the Bill to apply to capital cases only, and increase the number of Local Courts; and he thought it might be beneficial, but not else. He, therefore, protested against the Bill in its present shape; because it would be productive of serious injury to prisoners, and those hon. Gentlemen who supported it would be the first to make the discovery.
§ Mr. Goring
reminded the House, that this Bill appeared again before them in the shape in which they rejected it last Session; and, therefore, without trespassing further on the time of the House, having stated last Session his reasons for the course he took, and was now about to take, he would move that the Bill be read a third time this day six months.
§ Mr. Cripps
thought that the House ought to pay very great attention to the observation of the hon. Baronet (Sir E. Wilmot), after the experience he had 357 had on this subject at the Quarter Sessions of Warwickshire. He (Mr. C.) was precisely of the same opinion as the hon. Baronet. It was said, that Judges who tried prisoners did not really act as Counsel for them. Now he could state, that he had never seen an instance in which the person presiding in a Court of Justice, whether he were a Judge of the land or a Chairman of the Sessions, that did not consider himself Counsel for the prisoner, and who did not consider it incumbent to enter into every point that tended to exculpate the prisoner. This had always been his practice. In point of expense, also, this Bill would operate exceedingly hard upon the counties. The hon. Baronet had referred to the number of juvenile offenders; and he could assure the House, that the number was astonishing, and was increasing in a formidable degree.
Sir George Strickland
supported the Bill. It was an act of tardy justice and mercy; for he considered it nothing more. If the Bill went to do justice in the capital case, why not extend it to all inferior cases? But then came a most formidable argument that this Bill would occupy so much of the time of the Courts of Justice. They were, therefore, to inflict imprisonment, perhaps transportation, because it would occupy too much of the time of the Judges and Magistrates at Quarter Sessions to inquire into the cases brought before them. He did not believe that such an argument could be sincerely stated by any Member of the House. It was always a matter of astonishment to him that they should have gone on so long with the present system. Every person who attended Courts of Justice in England—there were many Counsel present—he appealed to them, he appealed to the late Attorney-General, the Member for Northampton (Sir F. Pollock), who, in a speech full of argument and good feeling, supported this Bill, every person who attended our Courts of Justice, like the hon. and learned Gentleman (Sir F. Pollock) felt shame at the exhibition he witnessed. The hon. and learned Gentleman had stated that opinion, and he had only expressed the general opinion coming from such an authority, which he hoped the House would agree with him was a high one; he would say that he would take no shame to himself for supporting this Bill, which he hailed as an act of tardy justice, to enable prisoners to make a defence in a Court of Justice.
Sir E. Wilmot
explained—During twenty-nine years that he had attended the Sessions, he had known hardly a case in which any statement whatever was made against the prisoner by Counsel. The practice always was, the instant the Jury was sworn, to call witnesses. If a speech were made on the part of the prosecution, he would allow a speech to be made for the prisoner. He did not use the loss of time as an argument—he did not care whether he sat a week or twelve months; but his opinion being that it would make against the prisoners, he used the argument of taking tip the time of the Court as auxiliary to his other argument.
§ Mr. Lennard
said, that, with all respect for the opinions of those who thought that to allow prisoners to have Counsel would do them no good, he begged to say that their opinions were more than balanced by opinions equally worthy of attention on the other side. Mr. Justice Blackstone had stated, that it was a most cruel thing to deprive prisoners of Counsel, especially in cases affecting their lives, and that statement had been borne out by what had since taken place. He knew an instance—he spoke on the representation of the late Attorney-General (Sir F. Pollock) where two persons were ordered for execution, one was reprieved and the other executed, and Sir F. Pollock stated that he had no hesitation in saying that if the person executed had had Counsel he would have been reprieved also. It was said that benefits resulted to the prisoner from the present system; that argument to him was incomprehensible. It had been said, that the Judges were the Counsel for the prisoner; in his opinion, no fallacy was more glaring. How could the Judge be the prisoner's Counsel? He had no access to him; and how, therefore, could he ascertain what were the answers the prisoner made to the statements against him? There had been a return laid before the House of the number of cases that had been brought before his Majesty in Council; from that return it appeared that out of forty cases, there were fifteen in which the sentence of death had been remitted. It was only in London that cases were submitted to the King in Council; and what would have been the effect had not those cases been carried before the King in Council? Why the prisoners would very probably have been executed. In cases of murder, it was the common practice to exe- 359 cute the prisoner forty-eight hours after his sentence; and, therefore, as regarded country cases in particular, the prisoner would be executed before the circumstances of his case could be represented in the proper quarter. In the country, prisoners accused of murder were generally tried on Friday. The facts and circumstances of their case could not, therefore, generally be represented in the provincial papers, by which some facts might be elicited and others explained so as to influence the mind of his Judge and alter his sentence. A prisoner being deprived of that advantage, he ought to be allowed to have persons of talent and experience to advocate his cause. He gave his hearty and cordial support to the Bill.
§ Mr. Mackinnon
must complain that the hon. Member had omitted, in the observations which he had made, to state, that in cases where the prisoner had no Counsel, the Judge was to act as his Counsel. His objection to the Bill was, that it gave the rich man an advantage over the poor man. With regard to the fourth Clause, which provided that persons accused before Justices should be assisted by Attorney or Counsel, he considered it most injudicious. He would put the case of a person brought before a country gentleman not very well versed in the law. If the accused were a rich man he could employ able Counsel; and he appealed to that House, if he would not have, in such a case, a decided advantage over a poor man, brought before a Magistrate under the same circumstances, and who was unable to fee Counsel. He gave the hon. Member due credit for the humane motives which had prompted him to bring in this Bill.
§ Mr. Poulter
said, that instead of the present Bill, he had hoped that the hon. Member for Liverpool would have introduced one for allowing prisoner's Counsel to reply in cases where Counsel addressed the Jury. He thought the present Bill was likely to be injurious to the cause of justice. He had spoken to the late Attorney-General relative to the case of a man who had been executed for murder, heretofore alluded to as a case of doubt. The man was last seen in company with an elderly person whose skull had been fractured. The late Attorney-General had said that his impression was, that the fracture had been accidental, but this was 360 not an authenticated case of innocence; it was merely a surmise that such had been the case, and there was no proof that any arguments that could be used by Counsel could have saved the prisoner. He believed that if any circumstances came out after the trial, which would warrant the interference of the Crown, his Majesty would be advised to grant pardon. Such was the humanity of the principle upon which the criminal law was based; and although, in the lapse of ages, and in the infirmities of our natures, some mistakes might occur, he thought the present Bill did not provide an adequate remedy for any defects that might exist. This was not to be treated as a common Parliamentary discussion—it was a philosophical discussion of a very important nature, and which he believed was not very well understood by the country generally. He conceived that the Bill would prove to be very disadvantageous to the ends of justice, and therefore he would oppose it.
§ Mr. Hardy
said, that he could not agree in what had fallen from the hon. and learned Member (Mr. Poulter.) He had had much experience in criminal cases, and in many, very many of them, he would have been exceedingly glad to hear the opinions of Counsel upon them. The Judge was considered, and was in fact, Counsel for the prisoner; but that was only so far as to see that the proceedings against him were all conducted, including the verdict found, according to law. Of what use, then, would Counsel be to a prisoner, if he were not allowed to do more than the Judge was now obliged to do? He should like very well to know upon what grounds the hon. Member opposed this Bill. Was it because there would be a greater waste of time than at present? If so, that ground of opposition would extend to all cases of misdemeanor, some of which were of a very aggravated nature, much more so than many cases of felony. He contended that, by allowing Counsel to prisoners, they would actually save a great deal of time, for then there would be no occasion for long cross-examinations, which were entered into for the mere purpose of affording, in the shape of the questions, an opportunity to Counsel to open as much of a case as they were allowed to do by the Judge. Nor would there be many of those objections taken, which were 361 now taken for the purpose of addressing the Jury, through the appearance of arguing a point of law. He thought it a most humiliating thing that a prisoner should be told that his Counsel could not speak for him in his defence; thus tantalizing a poor man who perhaps never before had to express himself before any body of men. The poor man might as well save himself the expense of Counsel. He hoped that this House would agree that this anomaly in the law of England should be destroyed.
§ Mr. Charles Buller
admitted the force of some of the arguments directed against the details of the Bill, but he thought the principle of the Bill remained undisturbed. Indeed, there were some Clauses—that for allowing four speeches on each trial, and another for allowing Counsel to appear before Magistrates—that would, in his opinion, prevent the working of the Bill, and it would, therefore, be better to omit them. The present Lord Chief Justice (Lord Denman) who had had as much experience, as a lawyer, an advocate, and a judge, as any other legal authority, had declared himself in favour of it. The last to whom he should refer was one who, from his greatness as a lawyer, and from the circumstances under which his opinion was given, was deserving of attention, and he was, also, one of the greatest ornaments of the English Bar; he alluded to the present Lord Abinger, who came clown to the House and said that he had hitherto opposed the Bill; but he was convinced, upon mature deliberation, that it ought to pass, and, upon that occasion, he gave it his hearty support. He did not wish to enter into the merits of the Bill, but he thought it really too hard that hon Members should describe this Bill as injurious to prisoners because it would allow Counsel to defend them in a proper manner. He thought it was one of the great merits of this Bill that Counsel, instead of bothering the witnesses, and insinuating the greatest absurdities in cross-examination, would be obliged to make a plain, straightforward address to the Jury upon the clear facts of the case.
§ Mr. Edward Buller
thought that if the Counsel on both sides were allowed to make speeches, the mischief would far outweigh the benefit. It appeared to him that, upon the whole, prisoners, at present, were under no unfair disadvantage. The speech against them was generally 362 confined to a plain statement of facts. The Judge found it his duty to point out to the Jury any doubts that might arise, and the prisoner had the benefit of those doubts. Thus the prisoner, at present, had the advantage of every doubt construed in his favour. He much doubted whether Counsel would be of any advantage to the prisoner. Feeling as he did that the advantages that might arise from this Bill would not adequately compensate for the great increase of expense it would occasion, he felt bound to oppose it.
§ Sir Charles Burrell
admitted that the hon. and learned Members of that House, generally speaking, supported this Bill; but he was well informed by members of the profession out of the House, that the generality of them entertained a very different opinion—that they were hostile to the alteration as proposed by this Bill. At the Courts of Quarter Sessions, he had invariably seen the Chairman direct the prisoner to put any questions he pleased to the witnesses as soon as his testimony was given; and where, from want of capacity or indisposition, prisoners did not avail themselves of this power, the Chairman himself and the Magistrates questioned witnesses. He could state many instances in which prisoners were disposed to plead guilty; on those occasions the chairman invariably cautioned the prisoner against so doing, and induced him to withdraw his plea, and to put himself upon his trial; and this sometimes with advantage to the prisoner. He was of opinion that this Bill would operate unfairly between rich and poor. On every occasion the rich would be sure to have Counsel, whilst the poor would have Counsel against them, and would thus labour under greater disadvantage. Another point was, that where there was a doubt fairly entertained in a case of felony, the Judge invariably applied to his Majesty to alter the sentence, and such applications were invariably attended with success. To say, therefore, that the prisoner had not the benefit of the Judge, or Chairman of the Quarter Sessions, as Counsel, was to say that which was not founded in fact. If, through human error, a person were found guilty who was not so, it must be remembered that hundreds of felons had escaped who were really guilty. He thought the Bill unnecessary, and should therefore oppose it.
supported the Bill, think- 363 ing that, in all cases where accused of crime, the parties ought to have the best means of defence. It was said that the Judges were Counsel for the prisoners; that might be so, but they were Counsel for the Crown also. It was impossible that a Judge could be a good Counsel in all cases that came before him; and the object of the present Bill was to furnish a better, and to give to every man accused of crime the best mode of defending himself, and without that it was impossible he could have a fair trial.
§ Mr. Nicholas Fitzsimon
thought that it would be extremely injudicious to allow prisoners brought before Magistrates Counsel and Attorneys to defend them.
§ Mr. Ewart
regretted that the hon. Member would not withdraw his Amendment. He had been called upon to show ground for this Bill by facts; but they had been stated in very considerable number by the late Attorney-General (Sir F. Pollock), by the hon. and learned Member for Dublin, and by the late Member for Hull. The Amendments suggested now had already been proposed in the Committee, and upon a division they had been rejected. Under these circumstances he hoped the House would now permit this Bill to be read a third time.
§ The House divided:—Ayes 43; Noes 36; Majority 7.
|List of the Ayes.|
|Baines, E.||Mangles, J.|
|Beauclerk, Major||O'Loghlen, Sergeant|
|Blamire, W.||Parrot, J.|
|Bridgman, H.||Pease, J.|
|Buller, C.||Pechell, Captain|
|Cave, O.||Pelham, Hon. C.|
|Curteis, Captain||Potter, R.|
|Dobbin, L.||Power, J.|
|Duncombe, Hon. W.||Ruthven, E. S.|
|Dykes, F. L. B.||Strickland, Sir G.|
|East, J.||Sullivan, R.|
|Elphinstone, H.||Talbot, J. H.|
|Etwall, R.||Thornley, T.|
|Finn, W. F.||Trelawney, Sir W.|
|Fitzsimon, N.||Trevor, Hon. A.|
|Fleetwood, H.||Wakley, T.|
|Grote, G.||Warburton, H.|
|Hardy, J.||Williams, W.|
|Harland, W.||Wrightson, W. B.|
|Heathcote, J.||Wyse, T.|
|Lennard, H. B.||Ewart, W.|
|Macnamara, Major||Talfourd, Sergeant|
|List of the NOES.|
|Barneby, J.||Bethell, R.|
|Bramston, T. W.||Buller, Sir J. Y.|
|Buller, E.||Lincoln, Earl of|
|Burrell, Sir C.||Lowther, Viscount|
|Cripps, J.||Lowther, Hon. Col.|
|Dilwyn, L. W.||Matthew, Captain|
|Duffield, T.||Perceval, Colonel|
|East, J. B.||Pelham, C.|
|Egerton, T. W.||Patten, W.|
|Egerton, Sir P.||Ross, C.|
|Elwes, J. P.||Sheldon, E.|
|Fleetwood, Hesketh||Somerset, Lord G.|
|Forster, Hon. G.||Turner, W.|
|Goring, H. D.||Williams, Sir J.|
|Grimston, Hon. E. H.||TELLERS.|
|Hodges, T.||Wilmot, Sir E.|
|Kearsley, J. H,||Mackinnon, W. A.|
§ Bill read a third time.
§ A second division on an Amendment to give the Counsel for the accused the right of reply, if the Counsel for the prosecution reply, the numbers were
§ Ayes 39; Noes 38; Majority 1.
|List of the AYES.|
|Baines, E.||Mangles, J.|
|Baldwin, Dr.||O'Loghlen, Sergeant|
|Beauclerk, Major||Parrot, J.|
|Blamire, W.||Pease, J.|
|Bridgman, H.||Pechell, Captain|
|Cave, O.||Pelham, A.|
|Dobbin, L.||Potter, R.|
|Dykes, F. L. B.||Power, J.|
|Elphinstone, H.||Ruthven, E. S.|
|Etwall, R.||Strickland, Sir G.|
|Finn, W. F.||Sullivan, R.|
|Fitzsimon, R.||Talbot, J. H.|
|Fleetwood, H.||Talfourd, Sergeant|
|Grote, G.||Thornely, T.|
|Guest, J. J.||Wakley, T.|
|Harland, W.||Williams, W. A.|
|Heathcote, J.||Warburton, H.|
|Lennox, Lord G.||Ewart, W.|
|Macnamara, Major||Lennard, B.|
§ Amendment agreed to.
§ A third division took place on the Amendment giving persons when charged with offences, in all cases where the Magistrates have a summary jurisdiction, the right to employ Counsel or Attorneys to defend them.
§ Ayes 43; Noes 42; Majority 1.
|List of the AYES.|
|Baines, E.||Etwall, H. G.|
|Baldwin, Dr.||Finn, W. F.|
|Beauclerk, Major||Fleetwood, H.|
|Blamire, W.||Gordon, R.|
|Bridgman, H.||Grote, G.|
|Cave, O.||Harland, W. C.|
|Dobbin, L.||Hindley, C.|
|Dykes, F. L.||Jephson, C. D. O.|
|Elphinstone, H.||Lennard, B.|
|Macnamara, Major||Thorneley, T.|
|Mangles, J.||Wakley, T.|
|O'Loghlen, Sergeant||Warburton, H.|
|Parrot, J.||Ward, H. G.|
|Pease, J.||Williams, W. A.|
|Pelham, Hon. A.||Williams, Sir J.|
|Potter, R.||Wyse, T.|
|Ruthven, E. S.||Ewart, W.|
|Sullivan, R.||Strickland, G.|
|Talbot, J. H.||PAIRED OFF.|
|Talfourd, Sergeant||Maule, Hon. F.|
§ Amendment agreed to.
§ The Bill was passed.