HL Deb 16 August 1836 vol 35 cc1247-9

Viscount Melbourne moved, that the Commons' Amendments to the Amendments of the Lords to this Bill, be taken into consideration.

Lord Lyndhurst moved, that their Lordships do adhere to those amendments to the Bill, which the Commons had struck out. The Lords had struck out that part of the Bill, which would give to the counsel of the prisoner the last word. In supporting the general principle of the Bill, when it came up from the other House, he was anxious to get rid of the anomalies which existed in the trial of prisoners. The other House had, however, set up another anomaly. The usual practice in our civil courts was, that the accuser should prove the affirmative of his statement, that the accused should reply, and then that the accuser should set the matter to rights, as consistent with his original statement. The Commons had, however, given to the accused, the right to have the last word in every case, except cases of treason, or misprision of treason. Now, this was an anomaly as great as any they sought to correct, for if there were any case in which the prisoner ought to have greater latitude extended to him than another, it was that of treason, yet that was the only case in which the accused was deprived of the advantage of the last word in addressing the jury. Another anomaly was this:—In the case of an assault, a man might proceed by indictment, or by civil action. In the former case, the defendant's counsel would have the last word to the jury; but in the civil action, arising out of the same case, the last word would he not for the defendant, but the plaintiff. For these anomalies, and for the reasons which he had stated, when the measure was formerly under discussion, he hoped their Lordships would adhere to the amendments they had made.

The Lord Chancellor

regretted, that his noble and learned Friend should feel disposed to persevere in the amendments which he had moved, for, from what he had heard, he believed it would cause the loss of the Bill in the other House, and he should he sorry to see a measure defeated the principle of which had been so generally approved of. He, himself, could have wished that the clause in the Bill, as it came from the Commons, had been somewhat differently framed, but he did most fully approve of the principle of the prisoner's counsel having the last word in addressing the jury. The practice in civil cases, where the defendant's counsel was obliged to forego the examination of witnesses, and thus keep the means of ascertaining the whole truth from the jury, in order to deprive the plaintiff's counsel of a reply, was a very bad one. He was opposed to any practice which would keep a knowledge of the whole truth from the jury. He did hope, that rather than risk the loss of the Bill, his noble and learned Friend would give way.

Lord Wynford

said, he should be sorry to lose the Bill; for, on consideration, he gave his cordial assent to its principle; but, whatever the consequence might be to the Bill, he thought their Lordships ought to adhere to their amendments, which he considered of vital importance.

Lord Wharncliffe

would vote for the Lords adhering to their amendments.

Lord Lyndhurst

thought it was not regular in any noble Lord, and still less so in the noble and learned Lord on the Woolsack, to suggest the course which might be taken by the other House as a ground for influencing their Lordships' opinions. Their Lordships could not know prospectively what course the other House might take in consequence of any act or proceeding in their Lordships' House, and therefore should not be in any way influenced by it.

Lord Holland

said, it was not irregular to speculate on what the other House might do in any particular case, but there was an irregularity which was regularly committed every day amongst their Lordships, which passed without notice. It was that of alluding to what the Commons might do in case of their Lordships interfering with money Bills. This was certainly irregular, for though he admitted that it was prudent in their Lordships to abstain from doing so, yet he must add, that their Lordships' right to do so was one which they never had conceded. If the noble and learned Lord persevered, he supposed this Bill must be lost, but it did not surprise him. The noble and learned Lord was now quite used to the practice of throwing out Bills. He began by throwing out those of others, and he was now ending by throwing out one of his own.

Lord Lyndhurst

Not my own, I do not object to the Bill, but to the incrustation which it got elsewhere.

Commons amendments disagreed to and a Committee appointed to draw up reasons to be communicated to the Commons at a conference for not agreeing to their amendments.