§ Order for Second Reading read.
§ MR. I. BUTTmoved the Second Reading of this Bill. In doing so, it was necessary for him to explain to the House the principles of the measure, and the reasons upon which it was founded. He might venture to remind the House, that at a very early period of the Session he had given notice of this Bill. Circumstances which he could not control had prevented his being able to bring the subject before the House, and he had been obliged to introduce the Bill without any statement of its objects. This imposed upon him now the necessity of asking the attention of the House while he briefly stated its provisions, although he felt the disadvantage under which he would be placed. Usually, the person having the carriage of a Bill, had, on the second reading, the opportunity of waiting to hear objections, and to reply to them. It was not easy to exaggerate the importance of the question he had undertaken to bring before the House in relation to the administration of the criminal law. He felt the responsibility which attached to any proposal to alter established practices, and no one could be more sensible 965 of the caution and diffidence with which such alterations should be proposed. He would, in the first place, ask the attention of the House to the present state of the law—one involving anomalies which it was impossible to deny, and he thought impossible to defend. In civil cases there was the right of appeal. If any Member of that House were sued for a sum of 20l., he would have the right—the uncontrolled right—of questioning the law that was ruled by the judge; he might, in spite of the judge, appeal against his decision, and, if he thought fit, carry that appeal to the highest tribunal in the land. He might do this if he questioned the decision of the judge as to his liability, or if that judge admitted against him evidence which he thought ought not to be received. Again, he had a right of appealing against the finding of the jury on the matter of fact. If dissatisfied with the verdict, he might apply the Court for a new trial, and if he could show that the verdict was not warranted by the evidence, or that it was obtained by evidence which came upon him by surprise, or even that since the trial he had discovered testimony which he could not reasonably have known before—in any of these cases he could have a reinvestigation, when nothing more was at issue than a pecuniary demand. But let him be tried for his life before the very same judge and the same jury, and he had no redress whatever against the error of the judge in point of law, or the mistake of the jury in fact. He could only question the ruling of the judge, if the judge thought proper to permit it; against the finding of the jury he had no redress. If it were right that a man should have this power of appealing before a court of justice could adjudge him to pay a sum of money, what pretence was there for saying he ought not to have it before he was condemned to death?
But this was not the only anomaly in the administration of the law. The right of new trial at present existed in some criminal cases. He earnestly asked the attention of the House to this—if criminal proceedings were instituted in the Court of Queen's Bench, the right of obtaining a new trial existed. It had long been the ordinary practice of that Court to grant new trials in cases of misdemeanour depending before itself. The general opinion had been, that this practice had been limited to accusations of misdemeanour, and that the right of applying for a new trial did not belong to a person charged with 966 felony. This was the settled opinion of the legal profession. Of course, it made the anomaly more glaring if the right depended on the name of the offence. But, as if still more to illustrate the unsatisfactory state of the law upon the subject, about two years ago the Court of Queen's Bench in England granted a new trial in a case of felony. No observation was made, which showed that the attention of the Judges had been directed to the point. The precedent was established sub silentio, certainly contrary to all previous impressions. It was not easy to say whether they were to regard this as establishing the right. If it did, it established the strongest argument for his proposal, by proving that judges had seen the necessity of extending the exercise of their power to all cases. But be this as it may, let the House see the absurdity of the present state of things. In criminal proceedings depending in the Court of Queen's Bench, there was the right of appeal—in those depending in Quarter Sessions or a Recorder's Court there was none. So that if any man were tried for an offence before the Chief Justice of England, and a special jury of Middlesex or London, he had the right, upon an application for a new trial, to question the law of the Chief Justice, and the verdict of the jury—to appeal from the first tribunal in the world—from the chief judge of criminal judicature in England, and the best jury that could be empanelled; and it was every term a practice that verdicts of guilty found by such a tribunal were set aside. But if it happened that the very same trial had taken place—as it might have done—before the Chairman of the Quarter Sessions of the most remote county, with all his sense of the value of this local administration of justice, it was no disparagement to a Chairman of Sessions to say his decision might need correction as much as that of the Chief Justice. Let the offence be tried, not before the Chief Justice and a special jury, but before the Recorder of the pettiest borough—before the least intelligent and worst educated jury that could be empanelled in an English or in a Welsh court—and then the ruling of the judge and the finding of the jury were conclusive, and the appeal which the law gave him from the Chief Justice of England and a London special jury, is denied him from a tribunal such as this. Was it possible to maintain or defend anomalies like these?
Even this was not all—the law and the constitution invested the Court of Queen's 967 Bench with the superintendence and control of all inferior criminal jurisdictions; that is, of all Courts except the House of Lords, or the Court of the High Steward for trial of a Peer. This was the principle of the law. The Court of Queen's Bench had the power to correct the erroneous judgments of all other Courts. But how was this limited, and made a nullity in practice? Only by this—that the Court of Queen's Bench could only know what passed in the other Court by that which was called the record—that is, the formal entry of the proceedings on parchment. The record, however, conveyed about as much information of the proceedings as the Votes published each morning did of the debates in that House; it showed the charge, the finding of the jury, and the sentence, but it did not show one particle of the evidence, or the rulings of the judge. What, then, was the result? That the power of supervision in the Court of Queen's Bench was limited to errors which in technical language appeared on the record. No matter whether the error was important or minute, if it found its way into the formal entry of the proceedings, then it became matter of the correction of an appellate tribunal, even were it only the misprision of a clerk. The gravest errors that did not so find their way, the Court, which the law nominally invested with complete control, had no power either to remedy or correct.
He might venture to illustrate this by a reference to what occurred at the Irish high treason trials of 1848. A writ of error was brought first to the Queen's Bench, and afterwards to the House of Lords. The impeachment of the proceedings was confined to matters on the record. Among these, it was alleged that it was a mistake that when the prisoner appeared, to have been asked the question, "what he had to say why sentence should not be passed upon him?" without the words "sentence of death." It so happened that this was a point of the proceedings which must be entered on the formal proceedings, and therefore the prisoner had an opportunity of appealing to the highest tribunal in the realm. Far more so was this objection: the House of Lords heard it argued and decided it; they decided it against the prisoners. This did not alter the illustration. If the judge had happened to pass sentence without the question being put at all, or even if the clerk had omitted to record it, the court of error must, for this omission, have reversed the judgment of the Court below.
968 Upon a like question, the convicted person could now obtain the opinion of a court of appeal. But let him suppose that, instead of a mistake such as this, the judges in that trial had wholly misinterpreted the law of high treason—had told the jury that facts constituted high treason which did not in law amount to that crime—had received evidence which the law would not tolerate to affect a man upon his life: no matter how grave or how serious their errors, the Court, which could and would reverse the sentence if the judges had omitted to put a formal question, had no power to examine into these errors at all. The appeal which the accused party would have upon the most trivial point of form, was denied to him upon the subjects upon which the legality of his conviction must depend.
This would not only illlustrate the anomalies of their present system, but it would show that he (Mr. Butt) proposed no novel principle in the law or constitution of the country. He proposed, in truth, to carry out their old principles; to give to the accused party the protection which he would have if the record were not a mere formal entry, but disclosed the actual proceedings of the court; to make the supervision which the constitution vested in the Court of Queen's Bench over other criminal tribunals a reality, and not a mere name; and to give to that court the power of correcting, not merely mistakes in point of form, but those errors that actually affected the substantial justice of the proceedings.
He must now ask the attention of the House to the efforts that had been already made to alter the Jaw on the subject to which the Bill now before the House related. From the earliest times the judges had themselves attempted to supply the place, in some respects, of an appellate tribunal, by reserving questions of law for the consideration of the twelve—or, afterwards, the fifteen—judges. If, in any case of a conviction, the judge entertained a doubt upon any point which he had decided against the prisoner, he reserved it for the other judges: but this was nothing more than taking their opinion in private whether he had been right. The objections to this course were many. In the first place, the reservation of the question depended entirely on the discretion of the judge. In addition to this, the case was not necessarily argued by counsel. There was no public hearing of the appeal; no reasons were given for the decision; and the result 969 of an opinion favourable to the prisoner, and which ought to have entitled him to an acquittal, was a recommendation to the Secretary of State to grant him a free pardon, that he might obtain from the mercy of the Crown that to which it appeared by law he had a right from the justice of the tribunal by which he was tried.
Imperfect and unsatisfactory as was this mode of appeal in every respect, in three it was pre-eminently so:—it was at the discretion of the judge; it did not exist as to matter of fact; and, lastly, if a mistake had been committed in point of law, however little it might affect the merits of the case, instead of sending back the accused to a new trial, it obtained for him an absolute discharge.
Attempts had been made by legislators to remedy these obvious defects. He (Mr. Butt) was strongly under the impression that Sir Samuel Romilly had brought into that House a Bill similar to that of which he now had charge. He (Mr. Butt) had made a note, he presumed upon some sufficient authority, that he had. Unfortunately, he had omitted to note, at the same time, the authority on which he relied; and, with all his efforts, he was not now able either to remember or to trace it. He would not venture positively to state it as a fact, but he had certainly a very strong impression that, for a Bill giving the right of new trials in criminal cases, he had the authority of that great man.
In 1844 a Bill with the same object was introduced by his hon. and learned Friend the Member for the county of Suffolk (Sir Fitzroy Kelly). He would ask of any one doubtful upon this question to read the masterly speech in which his hon. and learned Friend had introduced that Motion, and he ventured to say it would bring conviction to his mind. The Bill then introduced was never rejected by the House. The late period of the Session at which it was brought in precluded the possibility of its passing; and the second reading was withdrawn, on a promise that Government would take up the subject in the next Session—a promise which led to the usual result of such promises.
In 1848 a Bill was brought in for the same purpose by his hon. Friend opposite (Mr. Ewart), whose name he was proud to have associated with him on this Bill. This Bill, again, was not defeated, but postponed, and postponed on the ground that a Bill had been then introduced by Lord Campbell in the other House, which might 970 probably in its progress embrace the object in view.
This brought him to the change effected by that Act of Lord Campbell's, which was passed in 1848, and which instituted a court of criminal appeal. This Act only substituted for the old and irregular mode of taking the opinion of the judges, the decision of a regularly-constituted court. The cases were now in every instance argued by counsel; the judges pronounced their decision in open court, and assigned their reasons for it; and, instead of the recommendation to the Secretary of State for a free pardon, the Court judicially reversed the sentence if it were wrong. But in other respects the new tribunal had the defect of the old reservation for the judges. The right of appeal in point of law was only granted at the discretion of the judge from whose decision you appealed: there was no opportunity of reviewing the finding of the jury as to matter of fact, and there was no power of directing a new trial. The effect of this was, that if a judge improperly received evidence, without which, very likely, a prisoner might have been convicted, yet the Court of Appeal could not send back the case to a reinvestigation without the objectionable evidence, but must absolutely discharge the accused.
The Bill which he (Mr. Butt) had introduced, while it permitted new trials, went beyond Lord Campbell's Bill in giving the absolute right of appeal without asking the consent of the judge, while it established, also, the power of setting aside verdicts upon the same grounds upon which 'the courts set them aside in civil cases. The House would perceive that two questions were thus raised—one as to the expediency of giving an absolute appeal in point of law, where now it was only permitted at the discretion of the judge: the other, and a very different question, as to the prudence or the practicability of establishing a tribunal which would review the finding of juries as to facts. He (Mr. Butt) did not overlook or forget the fact, that during the progress of Lord Campbell's Bill through the Lords, evidence had been taken as to the prudence of establishing an appeal as to matter of fact. It had been supported by some distinguished testimony; but it had been, he admitted, opposed by the opinion of most of the Judges. The proposal to give an absolute right of appeal on questions of law did not meet with the same opposition. But let him say, no person respected the authority of 971 judges more than he did; but he would not accept that authority as conclusive in legislation. If Parliaments had been controlled by the opinion of judges, they would have had very little reform of the criminal law. When his hon. Friend (Mr. Ewart) at last succeeded in carrying his great measure for permitting prisoners full defence by counsel, just the same judicial opposition was offered to it—just the same predictions were made of the utter confusion which it would introduce into the conduct of public business. Who now would wish to see it repealed, even deprived as it had been of one half its value by striking out the clause which he (Mr. Butt) trusted would yet become law—the clause which gave in every instance the last word to the accused?
Upon principle he thought that the right of appeal against the decision of the judge ought to be absolute—that it never ought to rest on the discretion of the man against whose judgment you appealed. This was imposing upon the judge a duty which never ought to be east upon him—that of determining when his own decision should be the subject of review. By what was he to be regulated? If he did not believe his own decision right, he would not make it. Was he then to grant an appeal or not, as he was confident, or the reverse? Men, even judges, were generally most positive when they were most wrong. The appeal was made to depend upon the temper of the judge. A strong-minded judge would refuse it whenever he was confident he was in the right; a weak-minded judge would only refuse it whenever he half suspected he was in the wrong. It was in human nature that feebleness of decision was generally atoned for by obstinacy in resolve. Why, he asked again, in civil cases should the appeal be independent of the will of the judge, and only dependent upon it when far higher consequences than those which could attend the result of any civil actions were involved?
The subject was a delicate one; but he would venture to say, that there was no Gentleman in the House in the habit of practising in criminal cases before judges, who would lay his band on his heart and say that his experience would lead him to the conclusion that the appeal ought to depend upon the discretion of the judge. Instances might easily be multiplied: he would refer to but two. When his hon. and learned Friend (Sir Fitzroy Kelly) introduced his Bill in 1844, he stated the case of a conviction before a very eminent 972 Judge. Sir Fitzroy Kelly was counsel for the accused. The prisoner was convicted, and sentenced to death. A point of law had arisen, which the Judge ruled against the prisoner, and which he obstinately refused to reserve. His hon. Friend was not to be baffled; he pressed the Judge until he was angrily repulsed. The man was left for execution, and on the very morning fixed for it, a reprieve was sent down. His hon. Friend had been able to engage the attention of Lord Eldon to the case. Lord Eldon had induced the Judge to reserve the case. What was the result? The fifteen Judges, including the very Judge who so pertinaciously refused the appeal, decided that the conviction was wrong, and the culprit was recommended to a free pardon.
This was the case of a man illegally convicted. What would have been his fate if his advocate had been one less determined, or even less influential than his hon. and learned Friend? He saw now below him his right hon. Friend the late Attorney General for Ireland (Mr. Napier). He regretted to know that, very contrary to his expectations, he was now to encounter the opposition of that right hon. Gentleman. But he would not the less confidently appeal to him on a matter of fact. Some years since the right hon. Gentleman had been associated with him (Mr. Butt) in the defence of a gentleman accused of embezzlement. He was tried before a Judge, justly regarded as one of the most eminent of the Irish Judges. He (Mr. Butt) submitted to the Judge that the accused party had been, on the true construction of the statute, guilty of no legal offence. His right hon. Friend most ably sustained that view. He could not forget the determined manner in which they were told that to attempt to argue that point was only wasting the time of the court. Their client was convicted. Fortunately it was a trial in the Queen's Bench. They had the right of appeal, and did not rest in the discretion of the Judge. There was a motion before the full court, and on that motion the very Judge who had said that to argue the point was a waste of time, pronounced the unanimous decision of the Queen's Bench, that no offence against the law had been committed. And this occurred in a trial before one of the ablest of the occupants of the Irish Bench, one upon whose love of justice, upon whose judicial integrity and impartiality, the shadow of a suspicion had never been, and could not be, cast.
He (Mr. Butt) did not hesitate to say 973 that a measure which would give an absolute right of appeal against the ruling of a judge in point of law, would effect a reform in the administration of their criminal justice, as great and as valuable as any that had ever been introduced. The question as to appeal in matters of fact, was a different one. But why was the verdict of a jury in a criminal case, held to be infallible in a civil case, liable to correction? Did juries in criminal cases never find perverse verdicts, which it might need the calm discretion of the judges to control? Was innocence never discovered after a criminal was tried, which might materially alter the entire bearing of the case? Why, he asked, were verdicts set aside in civil cases upon grounds that were not admitted to invalidate them in criminal courts? The object of all trials was the same—the ascertainment of the truth. Surely it was not possible to contend that one mode of investigation was calculated to elicit truth in one class of cases, and not equally useful to attain the same end in another.
No one, he apprehended, would deny that there were cases—cases, he feared, of not very rare occurrence—in which persons were erroneously found guilty by the verdicts of juries. In the eighth report of the Commissioners of Criminal Law, it was stated that during nine months of one shrievalty of London, that of Mr. Wilde, "no less than six persons had been capitally convicted at the Old Bailey, and left for execution, who were saved from death in consequence of investigations showing that they had been improperly convicted." In that admirable speech to which he had already referred, the speech of his hon. and learned Friend (Sir F. Kelly) in 1844, more than one instance was adduced in which verdicts in capital cases had been proved to be erroneous—one in which, after the execution of the supposed murderer, the real culprit had returned home from India, and confessed his crime. But these cases, which most clearly established the necessity of an appellate tribunal, were those in which, under the present system, verdicts of juries had been reinvestigated and proved erroneous when the fact of the reinvestigation had been obtained by the accidental interference of some one impressed with the belief that the verdict was unjust—cases like those six cases which occurred in the shrievalty of Mr. Wilde. These were the cases which, to his mind, conclusively established the ne- 974 cessity of an appellate tribunal—the access to which was not to depend upon the chance of any interference—where the proceedings would be judicially conducted, and of the existence of which, and his right to appeal to it, every convicted prisoner would be aware.
One such instance the House would permit him to mention, as it was deeply impressed on his memory: he had heard it many years ago from the lips of one whose name would be held in honour as long as the discoveries of science were appreciated—one of the best and the greatest men that ever shed lustre on the episcopal bench—Dr. Brinkly, the late and the last Bishop of Cloyne. Many years ago a man was tried at Monaghan, in Ireland, for murder: he was convicted and sentenced to death. In vain he most solemnly protested his innocence. The Judge who tried him entertained not the slightest doubt of his guilt; and, in reply to his appeal, he told him that so sure as the sun rose on the next Monday morning he should suffer the penalty of his supposed crime. This was at a period when, in cases of murder, but a short interval was permitted between the sentence and the execution. The trial had closed late on Friday evening. Fortunately he had lived in the parish of which Dr. Brinkly was then the rector. That day circumstances came to the knowledge of Dr. Brinkly, which induced him to believe that the verdict might possibly be wrong. He started instantly off for Dublin, travelling all night. He (Mr. Butt) believed the right hon. Gentleman the Member for the University of Cambridge (Mr. Goulburn) was then Chief Secretary for Ireland. With some difficulty, and by earnest persuasion, Dr. Brinkly obtained on the Sunday a reprieve from the Lord Lieutenant. He travelled back with it on Sunday night, and it reached the Sheriff just in time to stay the execution. The circumstances were then investigated—the innocence of the accused man was conclusively established, and he (Mr. Butt) himself knew that man afterwards following his ordinary avocations, without the slightest imputation resting on him of a participation in the crime for which he had been condemned to death.
Was it to accidents like these that they should leave the review of verdicts upon which human life was taken away? It was not in every case, or in every parish, that a Dr. Brinkly was to be found. If he had not been there, this man would have been 975 executed for a murder of which he was innocent, and one would have never heard of it except, perhaps, as a case in which a criminal, whose guilt was clearly proved, persisted in asserting his innocence to the last. He would not pass from this subject without an allusion to a trial which had recently taken place in the city of Dublin, and which had excited public attention in no ordinary degree. In that case a gentleman had been convicted of the murder of his wife. Upon the subject of that conviction he would not say one word; but let the House observe what had occurred. If ever there was a case in which a crime ought to have been followed by the extreme penalty of the law, it was in this. The murder, if committed, was one of the blackest dye. The sentence had been commuted to transportation for life. Representations had been made to the Lord Lieutenant, which he presumed must have created some doubt of his guilt, or the capital sentence would have been carried out. Was this compromise a satisfactory mode of administering justice? Would it not have been infinitely better to have submitted all the facts which created the doubt to the ordeal of a second investigation in public, when either these facts might have resulted in an acquittal, or terminated in establishing the guilt of the accused? Had the right of applying for a new trial existed, that prisoner, instead of suffering a punishment, which, if he be innocent, is a grievous wrong to him; if he be guilty, a wrong to society; would now be either discharged from guilt, or have before this paid the penalty which, if guilty, he richly deserved.
This very case supplied a striking illustration of the anomaly of the distinctions between civil and criminal cases. The question was, whether the prisoner had murdered his wife: that question was to be ascertained on the trial of an indictment affecting his life; and, therefore, it was not possible for him to apply for a new trial. No matter how much the evidence adduced against him may have been a surprise—no matter how effectually he could meet that evidence now—no matter what grounds he might now adduce for impeaching it—no matter what new evidence he might now be able to offer—there was no power to lay these facts before a court of justice and ask for a new trial. But the very same fact might have been tried in a civil action. A paper might have libelled that man by accusing him of the murder of his wife. If he had brought 976 an action for that libel, a plea might have been put in that the libel was true. The issue in the civil and criminal proceeding would have been precisely the same. The matter of fact to be ascertained would be identical—the rules that regulated the investigation precisely the same. But if the finding of the jury had been in a civil case—when its only effect would be to deprive him of a right to pecuniary damages—then, indeed, he might appeal against that verdict; and if be satisfied a court that there were grounds for reinvestigation, succeed in obtaining a new trial. But because the very same jury, under the same circumstances, found that verdict, when the forfeiture of his life was the consequence, then he was not permitted the opportunity of showing that it was wrong.
He felt how imperfectly he had submitted to the House the arguments upon which, with confidence, he asked the House to give this Bill a second reading. He had trespassed so long upon the attention of the House, and knowing that there was an anxiety to dispose of another question at that sitting, that he would not occupy their time by any detail of the provisions of the measure. The course which he meant to propose would perhaps make this unnecessary. If the House consented to the second reading of the Bill, he would move that it be referred to a Select Committee, where all its provisions and the whole subject would be deliberately canvassed. He believed that no one was disposed to deny that it was desirable to permit these appeals in criminal cases—if it were possible to frame a machinery by which the object could be attained without introducing into the administration of justice insuperable difficulties. It was not for him to say whether he had been able to effect this or not. He asked of the House to refer that to a Select Committee. In reading the Bill a second time, the House would only affirm that upon which he believed there was a general agreement of opinion that it was desirable to permit new trials in criminal cases if means could be devised by which they could be so grounded as not to interfere with the execution of justice. This was all that would be affirmed by the second reading of the Bill.
He ought to mention, that the Bill, as be had framed it, applied only to Ireland. He felt, however, that they must now decide on it as an Imperial question. He felt that the measure could not be passed for 977 Ireland alone; but he had limited the Bill as he had drawn it, solely because he did not feel himself sufficiently conversant with the state of the English courts to be confident that the machinery he proposed would be practicable in this country. He was able to say that it would be easy of application in Ireland. If, however, the House affirmed the second reading, then in Committee clauses might be prepared by those practically acquainted with the English courts, for the extension of the Bill to England, with such variations as might be necessary, if it appeared that the same provisions could be enacted for both countries: a single line could make it a general measure. He would only say, as to the details of the Bill, that in framing it, he had endeavoured to adhere to two leading principles. He had followed the principle of the law which gave the Court of Queen's Bench the control over all criminal judicatures. In the next place, he proposed that in no case should the mere fact of an appeal prevent the carrying out the sentence. The sentence of every court was to be treated as in full force, unless and until it was reversed. In cases where the punishment was imprisonment, this, no doubt, still left the person convicted to suffer a portion of his sentence before he had the opportunity of appealing; but he believed, upon the whole, that greater inconvenience would attend the effort to remedy this. In capital cases, he provided that, if necessary, a special tribunal should immediately hear the appeal. He had endeavoured to frame these provisions so as to prevent the possibility of appeals being prosecuted for the purpose of delaying the punishment, whatever it might be. He was confident he would best consult the feelings of the House by not going more at large into the details of the measure he proposed; and with these observations, and with the intention of referring it to a Select Committee, he now begged leave to move the second reading of the Bill.
§ MR. EWARTsaid, he seconded the Motion, because he approved the principles of the Bill. He also approved its being referred to a Select Committee, and would suggest that the Committee should be instructed to hear evidence on the application of the powers of the Bill to England. The whole subject was full of difficulty; but it was of the utmost importance that the principle of the measure should be recognised by that House.
§ Motion made, and Question proposed, "That the Bill be now read a Second Time."
§ MR. J. PHILLIMOREsaid, he thought that the adoption of this Bill would render the administration of criminal justice a matter of impossibility, because in every case of felony, where a convicted criminal had the power, an appeal would be sure to be lodged, and the time of the public would be wasted in trying over and over again cases about which no rational doubt existed, and the greatest encouragement would be given to the lowest class of practitioners. If we once appointed persons to the high and awful situation of criminal Judges, we must be content to rely upon it that they would not be disposed to treat lightly the grave responsibility which weighed upon them. The hon. and learned Gentleman (Mr. Butt) said that they allowed an appeal in civil cases with regard to property of a trifling amount, and asked why then they should refuse an appeal in cases where a man's life or his honour was at stake? Now, that was very much of an ad captandum argument, because it was well known that many nice and delicate questions of law often arose upon matters of property, which were entirely absent from criminal trials. He thought the law as it stood was sufficient for these cases, because under it the Judge, whenever he was dissatisfied with the evidence, always explained his doubts to the jury, and almost invariably the jury were guided by his recommendations. It would, therefore, in his opinion, be inexpedient to adopt the plan of the hon. and learned Gentleman the Member for Youghal (Mr. Butt). To say that juries sometimes might make a mistake, was only saying that they were human beings; and so long as the feeling of the country was in favour of the maintenance of capital punishments, he hoped the Legislature would adhere to the present system of criminal administration, under which substantial justice was secured. The proposition of the hon. and learned Gentleman would go far also to diminish the responsibility of Judges and juries, by accustoming them to think that their decisions would not be final, and would thereby relieve them from that anxious attention which disposed them to take every circumstance of the case into full consideration. For these reasons he could not concur in the Motion.
§ VISCOUNT PALMERSTONSir, if I felt that the principle of the Bill which the 979 hon. and learned Gentleman proposes was one deserving of the consent of Parliament, and that the only question that could arise touched the details of the measure, I should willingly consent to the arrangement he proposes, namely, that this Bill should be read a second time, and referred to a Select Committee. But as the objection which I feel to his measure applies to its very principle and foundation, it is not in my power to assent to the second reading. Sir, my objections to the Bill are many. In the first place, even supposing that the measure was in principle right, I say that it ought certainly to apply to the whole of the United Kingdom. I object entirely to this piecemeal legislation, applying one law to England and another to Ireland, and one law to Ireland and another to England. In matter of such grave and universal application as this, it is a proof that the hon. and learned Member is doubtful as to the soundness of his own. principle, that he should have proposed to make this experiment in Ireland, instead of applying it broadly to the whole United Kingdom. However, I have a strong objection to the principle he wishes to establish. Sir, punishments are not intended as a vengeance inflicted upon persons who have committed crimes, but for the protection of society, as a means of deterring others from the commission of acts which have unfortunately rendered particular individuals amenable to the law; and there can be no greater advantage in the administration of the criminal law than that it should be as certain and as rapid in its operation as is consistent with the aims of justice. Lingering prosecutions may be harmless upon questions of property and civil rights; but in criminal cases they are detrimental to the interests of society. The hon. and learned Gentleman, it appears to me, has founded his proposal mainly upon the ground of the insufficiency of the present state of things for procuring just decisions; and he instances cases in which the verdicts of juries and the sentences of Judges have ultimately been found not to be consistent with right. But if he had been able to. show that there had been cases in which condemnation had been followed by the infliction of the penalty, and the discovery had been made too late to save an innocent man from the punishment he did not deserve, then I think the instances he adduced would have had more bearing in support of his proposal than those which he has cited to the House. Because the only instances 980 which I happened to hear him state as examples in favour of his proposition were cases in which the existing arrangements had been found sufficient to rescue innocent men from punishment—
§ MR. I. BUTTI did state one instance that was mentioned to me by the hon. and learned Member for East Suffolk (Sir F. Kelly), where an actual execution took place, and the real murderer afterwards returned from India.
§ VISCOUNT PALMERSTONThe hon. and learned Gentleman adduces an instance which is one of no unfrequent occurrence, namely, that of a man who was a soldier in India, and who, being tired of the climate, and home-sick, and desiring to get out of the service, probably accused himself of a crime which he had never committed, in order to be sent home from a distant and foreign station. The hon. and learned Gentleman may not be conversant with matters of military detail; but if he will appeal to his friends in the Army, he will find that it is by no means an uncommon thing for a soldier to accuse himself of a crime of which he was never guilty, for the purpose of being removed from the station where he happened to be. My opinion is that the present state of the law does afford to an innocent man every possible security which human institutions can afford for freedom from unjust punishment. In the first place, the error may arise as to the facts of the case, or as to the law. If it arises as to the law of the case, the Judge, if he has any doubt on the subject, has it in his power to reserve the point of law for the decision of the Judges at large. Therefore, as regards the law of the case, there exists already that very power of appeal which this Bill proposes to give. Then, as to the facts of the case, it is the greatest mistake to suppose that when persons have been convicted of criminal offences there is not ample opportunity for them to resort to that quarter with which pardon or commutation by the constitution of the country, rests, namely, the Crown, through its constitutional advisers. Anybody who fills the office which I have the honour to hold, very well knows that there is no case in which there is—I do not say any probable ground for supposing the verdict or sentence to be erroneous, but no case in which there is the slightest pretence for so representing it, in which application is not made for a revision or commutation of the sentence. In the case of such an application, what 981 then is the course pursued? The Secretary of State consults the Judge who presided at the trial—he examines with great deliberation all statements made in favour of the offender—he is assisted and guided by the opinion of the Judge, and he then exercises his own discretion in the matter. And, looking back at the course of official experience, I must say that the cases are more frequent in which punishment has been remitted where the strong probability was that it would have been well deserved, than the cases in which the sentence has been maintained where there has been any possible ground to suppose that the sentence was not deserved. I think that the point which was placed before us by the hon. and learned Gentleman who spoke last, is one of very great importance. Judges and jurymen now feel in criminal cases that a very grave responsibility is imposed upon them. They give the utmost and most conscientious attention to the case; they weigh everything, and they feel that upon the conclusion at which they arrive depends the life or the liberty of the person who stands before them. But if the Judge and the jury knew that their verdict was only a preliminary ceremony, and that whether they were right or wrong their sentence would be subjected to a subsequent examination, why, it would make, if not the Judge, at least the jury far more indifferent than they at present are to the case before them, and would lead to great laxity of practice in the administration in the first instance of criminal justice in this country; and I think it would be a very great evil if any change of the law were to bring that about. But, in the next place, only just see how the thing would work out. When cases arise with regard to right or to property, men have a great scruple of conscience as to making any deposition or statement not consistent with truth; and yet, even in these cases, we frequently see evidence brought before a Court which is found not to be based upon fact. But in matters which concern life or liberty, I am sorry to say that benevolent persons have very little conscience indeed; and I have seen in the ordinary routine of my office, too many examples of the truth of what I now state, because I have received applications, signed by a great number of respectable individuals, in favour of criminals with regard to whose guilt there could be no possible doubt, and who had committed the most atrocious primes. That is a 982 matter of every-day occurrence; and not long ago a member of a most respectable community—the Society of Friends—actually endeavoured to induce a witness to absent himself from a trial in order to screen a man from punishment who had committed a serious crime, and whose guilt no human being could doubt. And I say that if you were to allow these second trials, you would have these "pious frauds" multiplied to an extent little contemplated by the advocates of this measure. Only suppose the case of a man who has been sentenced to capital punishment or transportation; he immediately appeals, his friends set to work, and go round the country asking people to sign papers, for the truth of which they declare they will be answerable, and then they send up to the Home Office representations totally unfounded in fact. Well, but if second trials were permitted, I venture to say that you would have perjury much beyond what the supporters of the Bill can possibly conceive. And what would be the position of the person condemned? Delay in the execution of a serious punishment is a great cruelty—delay beyond what is absolutely necessary for the ends of truth and justice is, in fact, a barbarity to the unfortunate prisoner. But you would keep the man waiting the result of a second trial, and he might have to be executed after all, and he would be kept in all the agony of such suspense for a very long period of time. Then I say that the law provides in truth and in practice that very appeal which the hon. and learned Gentleman would wish to establish—it provides it free from the objections to which the measure he proposes would be liable. But, further, I beg to ask if this House would agree to one-sided legislation on this subject? Why, what are criminal cases? The hon. and learned Gentleman spoke of them as if they were simply cases where the Crown prosecutes a criminal for murder, or some offence against the State. But criminal cases, I apprehend, will embrace cases of offences against individuals, such as assaults, or maiming, or wounding, or other cases in which injury is done to individuals as well as to society. Would the hon. and learned Gentleman, then, preclude the prosecutor from having a new trial as well as the defendant? Would that be just? A man was grievously wounded by an assailant, and almost killed by a bloody attack; the assailant was prosecuted, and convicted, and the hon. and learned Gentleman would give him a new 983 trial. But suppose he was acquitted, why should not the prosecutor have a right to a new trial? Why, if you come to a question between man and man, what would be the justice of denying to a prosecutor the redress which he thinks, by a new trial, he would obtain? But would not this lead to inextricable confusion and endless delay? I object, therefore, to this proceeding altogether. I humbly submit to the House that the principle of the hon. and learned Gentleman's Bill is one that is objectionable in itself; that the present law provides a security where the Judge entertains doubts as to the law of the case; that the practice by which the prerogative of the Crown is administered provides a security where any doubt arises as to the facts of the case; that the examples which have been quoted are examples to show that the present system does protect accused persons from the unjust infliction of a sentence, because most of the cases so quoted were instances in which the sentences have been remitted: therefore I think that, while on the one hand the proposal is objectionable in principle; on the other hand, the hon. and learned Gentleman has failed to show that any injustice has been committed under the present state of the law, that calls for the alteration which he recommends. But, more than that, if these objections did not apply, the hon. and learned Gentleman is aware that there is a Commission now employed in revising the whole of our criminal code; and of course if this matter appears to them in the same light as it does to the hon. and learned Gentleman, this point is not likely to escape the researches or the consideration of that Commission. For all these reasons, therefore, I propose that this Bill be read a second time this day six months.
§ Amendment proposed, "To leave out the word 'now,' and at the end of the Question to add the words 'upon this day six months.'"
§ The Question having been put,
§ MR. PHINNsaid, that after listening to what had fallen from the noble Lord, one would suppose that the public were entirely satisfied with the administration of the criminal law as it at present existed, and that an appeal to the Home Office was sufficient for all purposes. But there were men in high judicial office who took a very different view of the subject. Chief Baron Pollock, in his evidence before the Commission, referred to the fact that in 1827, in the course of five months, no less than 984 seven cases of improper convictions were discovered by the father and brother of the present Lord Truro, and were, by their exertions, saved from the penalties of the law. It would be more satisfactory to individuals in a case of life and death to have the power of appeal, than to depend on a reference to the Home Department. As to the argument that the prosecutor ought to have a power of appeal in the case of what he might consider an unjust acquittal, that was quite a new view of the case. The prosecutor was no more than a witness; he was incidentally the person who brought the case before the Court, but he had no more interest in the prosecution than any other person in the country. All that was proposed by this Bill was to give the same remedy to the poor as was now enjoyed by the rich in cases of misdemeanour. Such a measure was absolutely necessary when they considered what manner of men constituted the common juries on the circuits. They were chiefly farmers and men of a class wholly unaccustomed to balance evidence; and yet these men were often called upon to decide on the most difficult questions, involving matters of the highest consideration to the parties concerned. This would not be the case if the law were fairly enforced, and if the country gentlemen and men of rank were made to take their place on the common juries of this country, as they ought to do. If the noble Lord would bring about that reform, the difficulty which this Bill was intended to meet, would be very much obviated. As the matter now stood, the verdict, in nine cases out of ten, was that of the Judge, and not of the jury. With regard to appeals on questions of law, the noble Lord appeared satisfied with the power now reserved to the Judges upon that point; but he (Mr. Phinn) differed from the noble Lord in that respect. A case occurred at Exeter where eight or nine men were tried for piracy. The general opinion of the bar was, that the Court had not jurisdiction to try them. The men were convicted; the Judge refused to reserve the question for the consideration of the superior tribunal; and if it had not been for the hon. and learned Member, who defended the prisoners, they might have been all executed without the slightest power of appeal. The case, however, was argued before the Judges, and thirteen out of the fifteen held that the Judge who presided at the trial was wrong, and that the objection to the jurisdiction 985 made by counsel was right. Persons were constantly convicted for committing rapes, and, when the cases were afterwards inquired into, the whole stories were discovered to be so many fabrications. It was true, after months of imprisonment, the Home Office pardoned the parties; but, instead of returning to their homes liberated as an act of justice done them by the law of the country, they received their liberation as an act of clemency, and had that as a favour which they ought to have had as a right. He would remind the noble Lord of the trial and conviction, some time ago, of an attorney named Barber, for forgery. It was the conviction of many who heard the trial that he was innocent; but he was transported, and subjected to the most degrading labour and restraint for years. His friends appealed to the Home Office without effect, until at last the noble Lord's predecessor in that office (Mr. Walpole) went carefully through the whole details of the transaction, and granted Mr. Barber a pardon, first upon condition that he would not return to this country, and afterwards extended it to a free and unconditional pardon. If Mr. Barber could have appealed to a Judge, he would have been acquitted as a matter of right; his character would have been retrieved, and he would have been restored to the exercise of his profession. But what had been the consequence? Mr. Barber had been thrown out of his business as an attorney; he appealed to the Court of Queen's Bench; that Court differed from the Secretary of State, and thought the facts were inconsistent with the man's innocence; and thus they had the anomaly of a man enjoying the Queen's free pardon, as though he were innocent, and yet labouring under all the civil disadvantages of a man who was guilty. Such a state of things surely called for a remedy. This Bill would furnish such a remedy, and would relieve the Home Secretary from the numerous applications that were now made to him, because his answer to the parties would then be, "Apply to the Court of Appeal." He (Mr. Phinn) regretted that the Bill was not general in its application; but some of its provisions could be revised. It was, therefore, desirable that it should be sent before a Select Committee, which should be directed to examine into the whole subject, especially as the Report of the Commissioners on the Criminal Law was favourable to the proposal. At present every other nation of Europe, as well as the 986 United States, had adopted an analogous measure to this; and he did feel that, until some such mode of affording redress to injured and innocent persons was provided, the administration of our system of criminal justice could never be satisfactory.
§ MR. NAPIERsaid, that after the most careful consideration he was perfectly convinced that it would be prejudicial to give an appeal for a second trial in criminal cases. The question turned upon the balance of convenience and inconvenience. Of course the whole proceedings, one way or the other, must be attended with some imperfections and some disadvantages. It was, therefore, not enough to show that certain advantages might follow any particular alteration of the law; but it must appear on which side the balance of justice and convenience preponderated. The power on the part of the Judge to reserve points of law for the consideration of the Superior Courts was to be retained by this Bill; and the question was, whether it should not be obligatory on the Judge to reserve whatever points were insisted upon by the counsel of the prisoner. He had for a great many years had a considerable practical acquaintance with the administration of criminal justice, and he never knew an instance in which, ultimately, any point that counsel thought to be favourable to his client was not reserved by the Judge. It had always been considered that a second trial would be attended with many circumstances unfavourable to the prisoner, owing to the chances there would be of a defectiveness of evidence, and also owing to the prejudice likely to arise from the certificate that was to be given by the Judge who had presided at the former trial as to his being satisfied or not with the evidence adduced on that trial. The admission of written testimony in case of a second trial would be a most dangerous innovation, as the value of evidence depended, in a great measure, on cross-examination, for which there would be no opportunity. But then it was suggested that a second trial might follow an acquittal; but his humble opinion was, that, when the public prosecutor had once brought a man to trial, and there was any miscarriage in the criminal proceedings, that man should never be put upon his trial again. Mansfield, Hale, Denman, the present Lord Chief Justice of England, the Chief Baron of the Exchequer, the late Lord Chancellor of Ireland, and all the Judges in Ireland to whom he had spoken on the subject, were unfavour- 987 able to a second trial in criminal cases; and both in and out of the House judicial opinions were always entitled to the greatest weight from the character of mind of those eminent persons. Finality was the great element of the petty jury, and for the purpose of obtaining it the procedure in criminal cases was surrounded with the greatest formalities before trial. There were the sworn information, the proceedings before the magistrates, the investigations before the grand jury, and all the other incidents of a criminal prosecution, in order to give every opportunity to the accused to know the evidence against him, and then to refer the question of his guilt finally to the petty jury. None of these proceedings took place in a civil suit, because they were not necessary, The Bill of the hon. and learned Member, if objectionable in England, would be singularly inapplicable to Ireland, because there the Attorney General acted as public prosecutor, and sifted the evidence in every criminal case, and the only object he had was to obtain truth and justice, and not make the Crown, as it were, a litigant party acting against the accused. Where the Judge felt that the verdict was—if there had been a conviction—wrong, he would feel bound to notify this to the Secretary of State, who would, of course, issue a free pardon; whereas the proposal in this measure was, that in such cases the prisoner should be put to the peril of a second trial. Instances might be found in olden times illustrating the danger of such a measure. In the reign of Elizabeth a man was tried for murder, and the foreman delivered a verdict of manslaughter, which the rest of the jury disclaimed. The Court asked the prisoner if he would elect to discharge the jury from giving a verdict on that trial, which he agreed to do; no verdict but a unanimous one being a verdict according to the English law, and a trial not being completed until the verdict, the prisoner was accordingly arraigned again and convicted of murder and executed. The jury were thus constituted judges of questions of fact, and it would be most injurious to encourage the Judge to set up his opinion against them. He (Mr. Napier) had, in all his experience, never heard of more than one verdict which he believed wrong, and that was on the question of identity—a case in which the jury made a mistake, and it was remedied the very next day. Those clauses of the Bill which related to the Court of Queen's Bench conferred no pow- 988 ers not already in existence; and it would be most inconvenient to give to the Lord Chancellor a discretionary power, in cases of life and death, to issue Commissions of review—
§ MR. I. BUTTsaid, he must explain that the provision referred to only regulated the form of procedure by which a Commission would issue under the Great Seal.
§ MR. NAPIERsaid, the Bill certainly gave the Lord Chancellor power to issue Commissions of review in criminal cases; Commissions which might, perhaps, be directed to young and inexperienced barristers, who might order an acquittal to be entered on the record without any verdict at all. They were to have five gentlemen nominated as Commissioners, and three of these could set aside the finding of twelve men on their oaths, without knowing the facts and the evidence of the case. He never would consent to such a step, which would, in fact, revolutionise the law. The hon. and learned Member had referred to the case of Kirwan, which was certainly a very remarkable one, and he had adverted to the change in the sentence, and to certain new evidence after trial which could not be made available. He might be permitted to say he never could forget the anxiety in which he passed day after day while that case was pending. If this Bill had been law, he admitted he might have been saved much of it—Kirwan might have had another trial, and what the result of it might have been he would not pretend to say; but this he would say, that every care had been taken in examining the evidence, and the utmost vigilance exercised by those who were intrusted with it. He had been very sorry to see the reports in the public press here, which were very inaccurate, and he could assure the House that the greatest care was taken in examining the evidence of every witness. With respect to the new evidence which had been referred too, that too had been examined with the greatest particularity. Why were not those persons sent before the grand jury? Because when they appeared before the Crown solicitors, and were examined in the office, they had no evidence to offer. After the trial these persons said they bad evidence to offer; but, if so, why had it not been given at first? When sentence had been passed, and doubts were suggested as to the evidence by which the prisoner was found guilty, the Judges communicated with the Lord Lieutenant, and, on their recommendation, Kirwan was sentenced to transportation for life. That charge was open to 989 a good deal of comment; but he knew that one of the English Judges, after having examined the whole case, agreed in the propriety of the recommendation. To show the care which had been taken with the evidence, he might mention that he had obtained tables of the tide from some of the fellows of Trinity College, and that the height of the tide at the time could have been ascertained to one half of an inch. So anxious had he felt on the question of Kirwan's sentence that he kept away, having his doubts of the propriety of the recommendation, lest the Government should ask his opinion respecting it. He did not interfere, however, and if a mistake was made it was on the side of mercy. He considered there was no case for the Bill, though he admitted he should like to see amendments in the preliminary procedure, and that the jury system was capable of great amendment, He hoped he should Jive to sec the appointment of a Minister of Justice; but he trusted he should never see a change in the criminal law of this country by which the verdict of a jury could be set aside by men who had never heard the evidence, and he would exercise every privilege and every opportunity which he possessed to resist it.
§ MR. M'MAHONsaid, he had not yet heard a single argument against the principle of the Bill. Judges, like all other men, were fond of irresponsible authority, and if their authority had been always regarded as decisive, men could now be hanged for stealing to the value of 13d., pleadings would still be in Latin, and not one of the great reforms in the law would ever have taken place. Lord Denman had well declared that it was against all principle to leave it in the breast of the Judge who had committed a mistake, to say whether it should be revised or not. In the case of the pirates tried at Exeter, twelve of the thirteen Judges, who heard the case argued in the Exchequer Chamber, were against the Judge who tried the men at the assizes. He thought the man who was accused of a capital crime or a felony, should have the same rights and privileges as the man who was sued for the worth of 6d. The noble Lord (Viscount Palmerston) said, that punishments ought to be certain and immediate. For this latter object we had been, in modern times, in the habit of hanging men forty-eight hours after sentence; and Lord Coke had observed, that this baste was contrary to the principles and practice of antiquity, whose maxim was, De morte 990 hominis nulla cunclatio longa est. In the olden times the law was more humane. Between arrest and trial the prisoner had fifteen days; and after conviction he had thirty or forty days to arrest judgment; but now a man might be arrested, bills; might be sent up to the grand jury, and trial and sentence take place in five or six hours, without any delay or remedy whatever. He objected to the mode of discharging prisoners after sentence by statements laid before the Secretary of State, who could not examine a witness on oath, who held his inquiry ex parte in secret, and who frequently ordered the release of the convict before the prosecutor knew even of the inquiry. Why should the Secretary of State be substituted for a jury? What did he know of the facts adduced before the jury? Let the noble Lord consider there were two parties in all these cases. In cases of rape, for instance, a young woman might suffer the greatest possible injustice by the interference of a Secretary of State, if, when she went back to her native place, the man who had wronged her was set free, for it would be at once said, that, though a jury had believed her story, the Secretary of State was satisfied there was no ground for the charge she had made, and that she was, in fact, both unchaste and perjured. The noble Lord had referred to a case of endeavouring to induce a witness to absent himself, for the purpose of frustrating justice by withholding evidence. Why had he failed in his duty, and not directed the person who attempted this to be prosecuted? Not having heard a single valid argument urged against the principle of this Bill, and believing that a man, when tried for his life, ought to have the same protection as when sued for money, he should give his decided support to this measure.
§ SIR GEORGE GREYsaid, that after the strong and conclusive arguments which had been urged against the principle of the Bill, he should not have thought it necessary to occupy the time of the House with any further observations with respect to it, had not reference been made to two cases which occurred when he was Secretary of State for the Home Department. He believed that this Bill would lead to delays in the administration of criminal justice, tending to impair its efficiency; while at the same time it would not provide a remedy in such cases as had been adduced as a ground for its proposition. And so far from tending to facilitate the 991 acquittal of accused persons, its tendency would, he thought, be to increase convictions. The hon. and learned Gentleman (Mr. Butt) proposed to give the prisoner an absolute right of appeal on points of law, to be followed by a new trial if the decision of the Judges was in his favour. Now he (Sir G. Grey) could not see why there should be a new trial when the only doubt with respect to the validity of the conviction arose on a point of law. But the hon. and learned Gentleman also proposed to give the prisoner a right to go to the Superior Courts and ask for a new trial, in case the Judge who tried the case should certify that the conviction was based on defective evidence. On this point he referred to the case in which a prisoner, having been capitally convicted, to the satisfaction of the Judge, and left for execution, the exercise of the Royal prerogative was interposed in consequence of the exertions of some persons who had brought facts together tending to shake the verdict. But how would that case be provided for by the Bill before the House, since the Judge would not have certified for a new trial? Precisely the same might be said with respect to the instance which had been adduced of certain prisoners who were undergoing sentence of transportation; when, several years after their conviction, facts were discovered which so satisfied the Secretary of State of their innocence that he advised the grant of a free pardon. It was quite clear that this case would not have been met by this Bill, because the Judge would not have granted a certificate here; and while the right to apply for a new trial must necessarily be limited to a few days after the beginning of the next term after the trial, the new circumstances which induced the Secretary of State to grant a pardon were not discovered until some years afterwards. In like manner, in the case of Barber the attorney, the facts which ultimately induced the Secretary of State to grant a pardon did not come to light until some years after his conviction, which commanded the entire assent of the presiding Judge. It was said, indeed, that the Home Office was a secret tribunal, and was a most unsatisfactory medium for the administration of the criminal law. It was, however, clearly impossible that it could be relieved from the responsibility which at present attached to it on this head, in cases where new circumstances came to light after the expiration of the time for applications for 992 a new trial. He believed that with the legal advice which the Secretary of State had at his command, the present system answered the ends of justice, and that when any reasonable doubt existed as to the propriety of a verdict of conviction, the prisoner obtained the benefit of that doubt. As Secretary of State for the Home Department, he should frequently have been glad to be relieved from the responsibility which attached to the exercise of this power. He believed—without speaking particularly of the cases in which he had been personally interested—that the present system did answer the ends of justice, and secure a favourable administration of the law as respected prisoners. He did not think this Bill would favour the acquittal of innocent persons, because juries would, if it were passed, be much less likely than they were at present to give a prisoner the benefit of any doubt. The hon. and learned Member for Bath (Mr. Phinn) supported the Bill because he said that the verdicts of juries were generally wrong. But if that were so, what remedy would be given by the present Bill, which proposed to give an appeal from the verdict of one jury merely to that of another? There was, he thought, a clear distinction between civil and criminal cases, because in the former case the verdict of a jury vested property in one of two parties, who could not be divested of it by any exercise of the Royal prerogative, and therefore here a new trial was absolutely necessary, unless injustice was to be perpetuated. On these grounds he must most decidedly oppose the second reading of the Bill.
§ MR. GEORGEsaid, he opposed the Bill on the ground that it would put every party concerned in a criminal trial in a false position, and must inevitably lead to an accumulation of false testimony. The law had now made twelve men on their oaths the arbiters of the life or death of a prisoner. Now could it be supposed that if this Bill passed, any Judge to whom an appeal was made on the part of a prisoner to interpose between him and the final sentence of the law, would take upon himself the responsibility of refusing to do so? A new trial would, therefore, be granted in every case where it was asked for, and a door would thus be opened to the greatest possible evil—that of subsequently making good testimony which had been defective on the first trial.
§ MR. I. BUTT,in reply, said, that after 993 what had fallen from the right hon. Baronet (Sir G. Grey), he thought he should best consult the object he had in view by not pressing the second reading to a division. He would reserve to himself, however, the right of moving for such an inquiry as had been hinted at by the hon. Baronet. There was one point on which he desired to correct the right hon. and learned Member for the University of Dublin (Mr. Napier). By his Bill he had had no intention to give a discretion to the Lord Chancellor in the way supposed by the right hon. and learned Gentleman. He regarded the admission as to the right of appeal in a prisoner in case of difference as to law an important one, and one, which if carried out, would create a great improvement in the present code.
§ Question, "That the word 'now' stand part of the Question," put, and negatived.
§ Words added; Main Question, as amended, put, and agreed to.
§ Second Reading put off for six months.