§ Mr. Ewart moved that the amendments be taken into consideration. The hon. Member proceeded to explain various amendments to which he did not recommend the Commons to offer any opposition; but there was another part of the Bill, and a very material part it was, which had been cut out of it—namely, that which established the principle that the accused person in the case of felony or misdemeanour should have the last word. That had been the very basis of the alteration of the law, and without that principle he thought that the ends of justice, and the dictates of reason and common sense would not be answered. The striking out this principle was to destroy the very essence of the measure; and, indeed, the circumstance of this alteration having been made, reminded him of the old saying of a thing being like the tragedy of Hamlet, with the part Hamlet omitted. The hon. and learned Member here read an extract from the Select Committee's Report, which declared, that the right of the prisoner's counsel to have the last word, and to give the concluding address, was one which was founded upon the principle of humanity. As the Bill now stood, however, it left the last word with the counsel for the prosecution; thus giving the counsel for the prosecution two speeches to the one for the defendant. The hon. and learned Gentleman here read the opinions of the then Attorney-General (Sir John Copley), now Lord Lyndhurst, as given in the year 1826, together with that of the Chief Justice of the Common Pleas (Sir Nicholas Tindal), both of which opinions were diametrically opposed to any such amendment as that which had been made by the House of Lords. Now he considered the principle of the Bill, if they sanctioned the amendment, would be so at variance with the dictates of common sense, that he felt it his duty to oppose it unless some proposition should nullify this amendment. He would move the rejection of the amendment which took away the right of the prisoner's counsel to have the last word.
§ Mr. C. Buller
was of opinion, that much credit was due to the Lords for agreeing 600 to the Bill in the shape in which it had been returned. He admitted, that the amendment, by omitting the second clause, was detrimental to the measure, and that the effect of it would be to throw great additional responsibility upon the counsel for a prisoner, as well as upon the judge. It was, however, in his view, easy to remedy the evil, by adopting the amendment of the Lords, and omitting the clause, still left in the Bill, regulating the mode of proceeding; thus leaving that matter to the discretion of the judge, provided that the counsel for a prisoner was to be allowed to address the jury last. The hon. Member suggested an amendment to that effect.
§ Sir Frederick Pollock
adverted to the length of time this question had occupied his attention, and gave it as his opinion, that it would be better to leave the law as it stood, giving a prisoner the benefit of the sympathy of the jury at the hardship of his case, than to pass the Bill as it had been amended by the Lords. He objected to any bill which, in the employment of counsel, did not put felony and misdemeanour on the same footing; for, as the present Attorney-General had well observed, the distinction was often so trifling, that the treatment of the accused party in both instances should be the same. He adverted to the heavy responsibility under which counsel now laboured, since they were frequently afraid to call witnesses, and thereby appeared to neglect the case of the client, lest they should give the prosecutor the advantage of a reply. In cases of civil right, injustice was sometimes done, because the counsel for the plaintiff had a privilege to answer the case of the defendant; there the reason was, that the plaintiff was interested in the verdict; but in prosecutions no party was so interested, and there was no ground for giving the prosecutor the last word. As to the objection that the Bill as it stood, before it was altered by the Lords, would occasion four speeches on every trial, he maintained, that in ninety-nine cases out of a hundred, not more than two speeches would be delivered; the prosecuting counsel would open the case, and the defending counsel would state the answer to it; but the prosecuting counsel would very seldom reply, knowing that thereby he should give the defending counsel the right of being heard again. It seemed to him that the Bill, as it now stood, was worse than nothing. He 601 trusted, therefore, that the Bill would not be adopted in its present shape, or that any amendment would be agreed to which, while it was meant to remove the defects of the law with regard to felonies, left those untouched which related to misdemeanours.
§ Mr. Poulter
was decidedly opposed to the Bill, and thought, that all the arguments which had been urged against it were unanswered. He still felt, however, that if the existing law were altered, that the prisoner ought to be allowed the last word.
fully and entirely concurred in the views of the hon. and learned Member for Huntingdon (Sir F. Pollock). This Bill contained a great deal of useful matter, even as it came down from the House of Lords, particularly as regarded that part of the United Kingdom with which he was connected, and his testimony to the fact, might be considered of some importance, as he had had more experience, he thought he might safely say, in the proceedings of the criminal law in Ireland, than any of those barristers who were of the same standing with him. There was one part of the Bill which would be of the greatest importance, namely, allowing the depositions to be inspected by the prisoner. That provision he would be glad to see passed into law; but if the amendment of the Lords which took away from the prisoner the last address to the jury, were insisted on, he owned that he could only make a selection, and determine to vote for the rejection of the Bill altogether. The present state of the law was anomalous and unjust; but the change which had been proposed would only aggravate the evil. He at once rejected, as untenable, the argument that the adoption of the principle of this Bill, as it had been originally introduced, would cause loss of time. If there were not a sufficient number of judges to perform the business, they ought to make more; but the plea of loss of time ought never to be heard 'of, when such a charge as that of felony and misdemeanour, were brought against any individual. He only rose for the purpose of expressing his decided conviction that the law, as proposed to be altered, would be worse than it stood at present; and unless they determined to give the last word to the prisoner, they ought not to give him any at all.
§ Mr. Maclean
said, that though he had opposed this Bill when before that House, his opinion had since been much shaken with 602 regard to it. He thought it was a debt which they owed to the House of Lords, and particularly to one of its Members, who was amongst the first legal authorities in the kingdom, that the Bill, as amended by them, should be allowed to have a fan-trial. He must declare it to be his opinion, however, that if they did not give the last word to the prisoner, they would not render him that effectual assistance, which the Bill proposed to give him.
hoped that some arrangement might be entered into between the two Houses of Parliament, for the purpose of securing the benefits which must result from the passing of such a Bill as the present.
§ Mr. Hardy
submitted, that if they left the prisoner the last word, they imposed upon the judge the necessity of pointing out the fallacies for doing away with the impression produced by any of the specious arguments conveyed in the speech of the counsel for the prisoner, and thereby subjected the judge to the imputation of acting with unfairness, or compelled him to express his views on the evidence in such a manner, as to induce the opinion in the minds of illiterate jurors of the prisoner's guilt. He trusted, that the amendment of the Lords would not be rejected.
§ Mr. Strutt
could not agree with the amendment which had been made in this part of the Bill by the House of Lords, but concurred in the opinion expressed by some hon. Member who had preceded him, that some opportunity might be taken of arranging the differences which existed between the two Houses with respect to this measure.
§ Sir Thomas Fremantle
thought that the question which had been raised on this clause was a new one, and ought not to be suffered to impede the progress of this Bill.
§ Lord John Russell
thought the preferable course would be to do that which had been done on many former occasions— namely, to send the amendments to a Select Committee, with the view of, if possible, devising some plan by which the differences between the two Houses may be reconciled, and the Bill eventually pass into a law. He begged to move accordingly.
§ The amendment of the noble Lord agreed to.
§ Committee appointed.