§ The House went into a Committee on the Prisoner's Counsel Bill, on the first Clause being read,
§ Mr. Wakleycalled attention to a discrepancy existing between the first clause, which states that "after the passing of this Act all persons tried for felonies shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto by Counsel learned in the law;" and the third clause, which enacts, "that all persons accused before any Justice or Justices of the Peace, of any offence against the law, shall be admitted to make their answer and defence to such accusation, and to have any witnesses examined or cross-examined by Counsel, or by Attorney, attending on his behalf." Independently of the incongruity of the clauses, he thought that the limitation of a prisoner's defence to Counsel or Attorneys, or both, exhibited a narrow and exclusive feeling, which had better be done away with in the reformation effected by the present Bill. They both belonged to self-constituted and arbitrary societies, who really were not themselves amenable to law in their regulations, as his hon. Friend near him (Mr. Harvey) had experienced and he thought 1143 to too much to leave prisoners or the public exclusively depending on their aid. Why not allow a prisoner to choose whom he pleased for his defence? Unless he received some satisfactory answer on this point, he should certainly move the insertion of a proviso that prisoners should have the benefit of defence by Counsel or Attorneys, or any person they might be desirous to employ.
§ Mr. Ewartwould support the hon. Gentleman if he moved such a proviso. He had abstained from inserting it in the Bill, not because he objected to the principle, but because he thought any attempt to establish it would be a hopeless one.
§ Mr. Rigby Wasonsaid, that only a few days since, the hon. Member had made a very strong speech against medical quacks, and he hoped he was not now going to show more favour to legal quacks and pettifoggers.
§ The Attorney-Generalobserved, the hon. Member was not perhaps aware of the direct tendency of his suggestion. The principle of the Bill should be adhered to—it was, that prisoners should have the advantage of being permitted to have Counsel, so as to secure to them the benefit of a full defence on their trials. He would ask the hon. Member, was the present a desirable opportunity to introduce a discussion whether any other persons than those called to the Bar should be admitted to act as Counsel for Prisoners? There could be no doubt of the extreme propriety of the persons so intrusted with the defence of prisoners so circum stanced being subject to the control of some respectable body of men, as the Bar undoubtedly was. It tended to the security of those whose advocacy they undertook, and the maintenance of the dignity of the profession itself. If the proposition of the hon. Member were adopted, it would be open to any returned transport from Botany Bay to put on a wig and a gown and appear as the advocate of a prisoner on his trial. He begged the hon. Member and others who were friendly to the great and important object of this Bill—namely, providing the prisoner with ample means of defence—to reflect upon the possible consequence of adopting such a proposition. He would warn the friends of the measure to abstain from any proposition, which, like the present, was perhaps well calculated to injure the principle of the Bill.
§ Mr. Williams Wynnsaw no reason why attorneys should be suffered to supersede Counsel in Courts where there was a regular attendance of that branch of professional men. The case was different when those Courts where attorneys were admitted to plead came under consideration; and as far as this alteration or amendment went, he for one would not be disposed to offer any objection, but would gladly concede to prisoners the privilege of employing attorneys to plead on their behalf in those Courts where they now practised as Counsel. The House could not act too cautiously in entertaining or assenting to innovations upon the present mode of conducting criminal trials in the English Courts of Law, as the most dangerous results might happen, quite unforeseen even by those whose benevolence prompted them to make those alterations.
The Attorney Generaladmitted the expediency of making an amendment to the extent just mentioned by the right hon. Gentleman opposite—namely, that wherever attorneys were now suffered to practise, there prisoners should be permitted to take advantage of their assistance. The words, however, proposed to be added for the purpose of effecting this object, were not, he conceived, solely directed towards that end; they had a different and a far deeper intention, and would produce an effect widely opposite from that which the Committee were led to believe; for if they were added to the clause, the immediate consequence would be, that any person whatsoever, be his station, conduct, character, or pursuits, what they might, would be entitled to act as Counsel for prisoners, and it was no unlikely or impossible circumstance, in case the amendment was agreed to, that an accused person might select for his Counsel the most accomplished thief or swindler, with the view of evading the law and not of fairly meeting the evidence.
§ Mr. Humeobserved, that the hon. and learned Gentleman who had just sat down had drawn an inference and pictured a case in the very extreme of what was possible to happen, even if the amendment as it now stood were agreed to—no such circumstance as that of one thief, however accomplished he might be, being brought into Court to defend another. The real question before the Committee was whether the person standing accused 1145 upon a criminal charge should or should not be allowed to select his own legal defender, and be the judge of his own Counsel's ability? He begged, therefore, to say, as he was disposed to think the whole measure might be endangered in another place by the insertion of the words proposed to be added, that he would recommend it to his hon. Friend, the Member for Finsbury, whether it was not advisable to withdraw his amendment and to suffer the words proposed to be substituted to be inserted instead,' upon the principle that it was better to get what he could in the way of reform, than to risk it altogether by insisting upon too much.
Mr. O'Connellhoped that his hon. Friend would not press his amendment. He had as great an objection to monopoly as his hon. Friend, and ha hoped soon to see it cease altogether, but the enemies of this Bill would find enough to cavil at without the introduction of any extraneous matter. Common sense, humanity, and the feeling of the country, however, called for the measure and he hoped, therefore, that his hon. Friend would withdraw his amendment, rather than let it stand as the least impediment in the way of success. He wished it, however, to be understood that he had not the least objection to attorneys practising in the manner that was desired.
§ Mr. Wakleyexpressed his readiness to withdraw his amendment, provided the suggestion which had proceeded from the right hon. Gentleman opposite was acted upon. In fact, his only object in proposing the alteration was to assimilate the second clause of the Bill with the third clause, which latter, he believed, contained a provision for the purpose of permitting Attorneys to practise as Counsel for prisoners, restricting them, however, to certain cases.
§ Sir Frederick Pollockbegged to ask whether the object of the amendment was to admit attorneys to practise in Courts where at present members of the Inns of Courts alone were entitled to plead; because, if so, he must say he was not disposed to agree to it. It was the opinion of the most eminent men in the profession that the House ought to pass a Bill similar to this, for the purpose of giving prisoners Counsel, and there was a strong disposition on the part of the whole Bar to give this particular measure 1146 a fair trial. The question was one of practical good sense—namely, whether a prisoner should be allowed to" make a full defence when put upon his trial, or not; and if this act of justice was denied him now, it must at some not very distant period be conceded. He hoped the hon. Member for Finsbury would be contented with the suggestion which had proceeded from his right hon. Friend near him. (Mr. Williams Wynn), namely, to confine the admission of attorneys to those Courts where they were already in the habit of pleading.
§ Mr. Bernalhoped the hon. Member for Finsbury would withdraw his amendment, in favour of that suggested on the other side. If such an innovation upon, the practice of the Criminal Courts were once to be admitted, the same by a parity of reasoning, might be claimed in civil cases, and the inconvenience, to say nothing of the injustice or folly of such a proceeding, would be intolerable, and would reduce the Courts of Law to a condition utterly useless. Should the amendment be even agreed to; of which he saw no chance, the Bill, when it was sent to another place, would not stand the slightest chance of passing, no more than if the hon. Member were to propose to pass an Act declaring the empire of China to be part and parcel of the British dominions. He must confess he was both astonished and sorry to hear his hon. and learned Friend, the Member for Liverpool, express his consent to and approbation of the amendment. It was on his part little less than an act of suicide, and the only advice he could give him, if the Committee acceded to it, was to give himself no further trouble about the Bill, as there was not the most remote chance of its passing.
§ The Solicitor- Generalsaid, that he did not think the amendment was necessary to entitle attorneys to practise, because they would clearly have the right to do so under the original clause. Was it not the every-day practice at Quarter Sessions, as the law now stood, for attorneys to plead as Counsel, pro hac vice, and they would not be deprived of the right by this Bill? He only opposed the words because he thought them unnecessary.
§ Sir Frederick Pollocksaid, that if the hon. Member for Finsbury would allow him he would propose an amendment in the following words, which he thought 1147 would obviate all difficulty: "By Counsel learned in the law, or by attorney in Courts where attorneys practise as Counsel."
§ Mr. Wakleywas willing to take, as an instalment of his own amendment, that proposed by the hon. and learned Member, and he should, therefore, not press his own proposition.
§ The amendment of Sir Frederick Pollock was then agreed to.
§ On clause 2,
§ The Attorney-Generalobjected to that part of the clause which took from Counsel for the prosecution the right of last reply, and gave it to the prisoner's Counsel. The statute giving this privilege to the Counsel for the Crown was passed under the auspices of an enlightened statesman in the reign of Elizabeth, and from that time to be present he had heard of no grievance that had arisen out of it or complaint against it, except in cases of high treason, where the law had been already altered. During the State trials in which Lord Erskine had gained for himself such immortal fame there was no complaint made of the Crown Counsel having the last word. "Was it not notorious that in all revenue cases the Counsel for the prosecution had the last reply, and who ever heard any complaint of that as a grievance? There was no ground, therefore, for altering the law in this respect. There might, perhaps, be particular cases where it would be an injustice; but let those special cases be provided for, and not a sweeping clause of this nature introduced, which he had no doubt would have the effect, if passed, of endangering the success of the Bill.
§ Sir Frederick Pollocksaid, that there were no words strong enough in which he could declare his sincere opinion, that if this provision were taken out of the clause it would be much better to put the Bill altogether into the fire, for, thus, mutilated, it would act only as a snare for the prisoner. Unless the great principle of allowing to prisoners a full defence, their Counsel having the last word, were carried out to its utmost extent, it would be far better that the Bill had never been introduced. So long as a man was brought into Court by the King, and not allowed to defend himself fully by Counsel, the country would never believe that be had justice done to him. Why should prisoners charged with high treason, the greatest crime known to the State, have 1148 an advantage in their defence over any other class of prisoners? This was an anomaly that ought to be corrected. It was impossible that justice could be done unless the prisoner was allowed the last word. When he had this privilege he would have no motive for keeping back any part of his defence, which was done now every day by prisoners, under the direction of Counsel, rather than give a reply to the Counsel for the prosecution. What the Attorney-General had said as to cases of smuggling was undoubtedly true; but it must be recollected that in all cases of this nature there was an opinion in the public mind, and of course amongst Jurors, that there was no real guilt on the part of the prisoner, owing to the relative situation of the parties. At one period there was no chance of a fair trial in some classes of cases, but he rejoiced that he had lived to see the mischief of such a state of things greatly reduced by the superior intelligence, and the strong-sense of justice, by which Juries were now guided. He was persuaded that any evil that could arise from granting this privilege to Counsel for prisoners would gradually correct itself, and that in the result fair and impartial justice would be done. He considered that a gross injustice was done by giving to the prosecuting Counsel the last word. It had been objected to by a very enlightened member of the Bar, of great experience, who had given evidence elsewhere, that three speeches would be the number made by Counsel on all occasions of criminal prosecution; but he (Sir F. Pollock) differed from this opinion; for his opinion was that the number of speeches would not be three but four. If there were not four there would only be two, because if the Counsel for the prosecution did not insist on a reply, of course the Counsel for the prisoner would have no occasion to reply, as he had already made the last impression on the Jury. He believed that, generally speaking, the Bill would be in operation in nineteen cases out of twenty; for in about that proportion of cases prisoners did not employ Counsel at all. It was, however, quite essential that this clause should be carried in all its integrity, and the House, he thought, might safely look to Juries to Correct any evil that arose out of it.
Mr. O'Connellperfectly agreed with the hon. and learned Gentleman who had just sat down, that it would be better to re- 1149 linquish the Bill altogether than pass it without this clause in all its parts. There was no country in the world where law was known that the prisoner had not the last word except in this. In Scotland it was the case; and in France, not only had the prisoner's Counsel the last word, but the prisoner himself had a right to add anything he pleased after. When a man's life or character were at stake surely it was not justice to deny him every opportunity of explaining, not only everything that had been sworn against him, but everything that had been said against him. False inferences ought to be explained, and the Jury should not be suffered to be swayed by the talent of the prosecuting Counsel, rather than by facts, as was often the case. It had been said that in revenue cases it was never complained of that the Counsel for the Crown had the last word. He did not know if such were the case in this country, but he knew that it was constantly complained of in Ireland. He had often complained of it himself. He considered that in giving the prosecuting Counsel the right of two speeches an unfair advantage would be taken of the prisoner because he had called witnesses. This was making the law vexatious and oppressive. If this clause was rejected the Bill would be of little or no value. He had not seen the evidence of the hon. and learned Gentleman who spoke last, and therefore he begged to retract any observations he might have made upon it. The evidence in the source from which he drew his information, was misrepresented.
§ The Attorney-Generalsaid, that he had no intention of dividing the House upon this clause, now that he Found the majority of hon. Members' entertained an opinion differing from his own, to which he should bow. He, however, still thought, that if the last speech was allowed to Prisoner's Counsel, the practice would throw upon the Judge the unpleasant duty of summing up the whole case, as it were as Counsel for the prosecution. It was not urged that any inconvenience had arisen or complaint (as had been admitted by the hon. and learned Member for Dublin) had been made of the present practice, and he thought it was unnecessary, therefore, to go abroad to foreign nations for an example by which to alter a practice which had hitherto worked well.
§ Colonel Percevalunderstood the hon. and learned Gentleman opposite (Mr. 1150 O'Connell) to say that he had not read the evidence of the Member for Huntingdon. Perhaps there were other parts of the evidence which he had not read, though he pronounced a very decided opinion upon it. He received a letter from a friend of his, Mr. Charles Phillips complaining of a most unwarranted attack made upon him by the hon. and learned Member for Dublin, in which that hon. and learned Member charged his learned Friend with having given false evidence before a Committee of the other House, with a view to the increase of his own emoluments as a Barrister. He would ask the hon. and learned Gentleman whether he had read the evidence of Mr. Phillips? If the hon. and learned Gentleman had not, he now called upon him to retract so gross and so unfounded an imputation upon an. honourable man who deserved better.
Mr. O'Connellsaid, that Mr. Charles Phillips had been as long his friend as the friend of the hon. and gallant Member. Upon the occasion alluded to be did not name Mr. Phillips. He said he would prove the evidence. He did not then know, except from public report, that it was the evidence of Mr. Phillips; but the gallant Colonel now very kindly introduced the name of Mr. Phillips to afford an opportunity of quarrel between two old friends. He was most ready to retract anything which bad fallen from him that could be considered as reflecting upon a most worthy man, whom he had the honour of knowing for many years.
§ Colonel Percevalwould read the letter he had received from Mr. Phillips, for the purpose of showing that the hon. Member for Dublin could have meant no other person than Mr. C. Phillips when he alluded to the evidence given by a learned gentleman.
§ Mr. Ewartappealed to the House whether they would sanction such a proceeding as this — a proceeding quite uncalled for, and which might lead to acrimonious disputes. The letter had no connexion with the business before the House; and, the charge against Mr. Phillips having been withdrawn by the hon. and learned Member for Dublin, there could be no reason for proceeding further.
§ Colonel Percevalsaid, the Member for Dublin cast an imputation upon him of endeavouring to produce a quarrel between two friends. He had, therefore, a right 1151 to read the letter in his own defence. A request was made to him personally by Mr. Phillips to read his letter. (The hon. Member commenced reading the letter.)
§ Mr. Ewartagain rose to order. So far as Mr. Phillips was concerned the charge was withdrawn. No retractation could be more honourable to both parties than that made by the Member for Dublin.
Mr. O'Connellsaid, Mr. Phillips must be now a very different man from what he had known him ever before to have been if the quarrel between them was not already made up.
§ Colonel Percevalsaid, he was informed by Mr. Phillips, that it was impossible the observations of the Member for Dublin could refer to any person but himself, he being the only Barrister who was examined upon that occasion, unless the Recorder of London could be alluded to under that denomination, which was not probable.
§
The gallant Colonel read the letter as follows:
49, Chancery-lane, Saturday evening.
My dear Sir,—The prompt and generous manner in which you repelled the attack which Mr. O'Connell dared to make upon my character, has imposed on me the pleasing duty of proving that I deserved your vindication. You have now perused ray evidence, and I ask of you whether I am not well warranted in declaring the imputation cast on me to be a base invention? It was a grievous imputation. No less than that of having, for my own emolument, and that of my brother Barristers, endeavoured to impede a useful public measure, and that, too, on my oath! That the Bill in question would have the very opposite effect, so far as I am concerned, every member of the profession knows. But I scorn so abject a vindication. If I had dared, before the high-minded and honourable Committee who examined me, to assign so vile a motive for my evidence, they would have driven me with well-deserved indignation from their presence. I was no voluntary witness. I was called upon unexpectedly, and by a compulsory process. To those noblemen I appeal, then, one and alt, whether there is the shadow of a pretence for this imputation? But no man knows better than Mr. O'Connell that sordid interest has never been my guide. He ought to remember that, in defiance of the powerful party to which you belong, which was then omnipotent in Ireland, and amongst whom you know my natural patrons were — I sacrificed, for what I considered his persecuted sect, every hope of emolument or promotion. I claim no merit for acting conscientiously; but surely the fact ought to have shielded me from such an accusation, and from such a quarter. How I have incurred his enmity I know not. Can it be by
1152
my always having been his friend? You will scarcely believe, that after two-and-twenty years of the most confidential intercourse, his last act was that of cordial recognition on the very threshold of the House into which he was entering to asperse me! Mr. O'Connell is fond of adverting to his home. A happy one I know it is, and long may it continue so but he ought not to have forgotten the helpless little ones of another home, whom he was depriving of their bread by depriving their parent of his character.
I am, my dear Sir,
Most gratefully your friend and townsman,
CHARLES PHILLIPS.
To Golonel Perceval, M. P.
§ Colonel Percevalwould not trespass further on the time of the House. He hoped he had said enough to show that there was no ground for the charge against his friend.
Mr. O'Connellhoped the hon. Member had now satisfied himself. He retracted before the letter was read, and, after its being read, he now retracted again.
§ Mr. Charles Bullersaid, a more useless controversy, interrupting the business of the House, he had never witnessed, and as it was over he would return to the Bill. He thought it would be better to have only two speeches, giving the accused the last word. This was the practice in Scotland.
§ Mr. Ewartsaid, the circumstances here and in Scotland were different. There all the facts against the accused were stated at length. Here scarcely any of the facts were given in the indictment. He saw no reason why the accused should not have the last word in all cases, as well as in felonies and high treason.
§ Mr. Hardythought it would be against the interest of the accused to have the last word. The prisoner must be well acquainted with the facts from previous examination. If four speeches were allowed, the Counsel must enter into a contest of sophistry and refinement, and the Judge become, in some measure, an advocate for the plaintiff.
§ The Lord Advocatesaid, the practice in Scotland greatly facilitated the administration of justice. The facts were all known to the accused. It was not so in England. In a charge of treason in this country, not one alone, but all sorts of treason, were charged in the indictment against the accused.
Sir George Stricklandthought it would be better to pass the Bill without the 1153 clause. He was always of opinion that the best course would be to have no opening speech; to state the real facts in the indictment, and then let there be a speech on each side. The accused would thus have the last word. The present mode of drawing up indictments seemed rather strange. It was, for instance, the practice to charge a fact as having occurred at Leeds, when, perhaps, it took place fifty miles distant from it.
§ Mr. Freshfieldcould not assent to the clause, but would not divide the House upon it. He doubted much if the House understood the present practice. The object proposed was, to assimilate the practice in criminal and civil proceedings.
§ Mr. Charles Bullermoved an amendment, to the effect that, according to the Scotch system, the speeches of Counsel should not begin until the whole of the witnesses had been examined, on the one side and on the other. He thought it would be time enough afterwards to consider the form of the indictment.
§ Mr. Jervisthought that if the clause was objectionable before, it would be ten times more so if the amendment of the hon. Member were adopted. This was an instance of the evils entailed on the House by long and unnecessary discussions; for, if the question had been allowed to rest where it was left by the Attorney-General, the House would not have had this proposition, which could not possibly take effect unless the mode and form of indictment were altered also. It would be impossible to have indictments so circumstantially framed as to afford all the information required for the purposes of the amendment.
§ Mr. Ewartwas surprised, having been associated with the hon. and learned Member for Liskeard, in the introduction of this measure, that he should not have been allowed to share his confidence with respect to the present amendment. This very proposition had been negatived by a Select Committee two years ago, and he could not concur in it now. He thought the hon. and learned Member would have done better to have altered the form of indictment first, and the mode of pleading afterwards, instead of pursuing the contrary plan, which his motion proposed to do. The proposition he considered most mischievous and one which he would not have expected from an enemy to the Bill, much less from one known to be a friend to it.
§ The Attorney-Generalbegged the hon. Member for Liskeard to withdraw his amendment, which he conceived would be more objectionable than the clause itself. The consequence of it would be, that at the close of the evidence the Jury would know very little or nothing at all about the matter before them.
§ Amendment withdrawn.
§ The original question was then put from the Chair.
§ [A discussion arose respecting the mode In which the division ought to be taken. A doubt being entertained as to whether the resolutions lately moved by the Member for St. Alban's, on February the 18th, applied to "Divisions in Committee," as well as to "Divisions in the House," it was resolved that the Chairman should report progress, and that the point should be decided by the House.]
§ The House resumed.