Lords Sitting of 14 July 1836

MINUTES.
Bills. Received the Royal Assent:—Murderers' Execution; Petty Sessions' (Ireland); Chapels of Ease (Ireland); Sasine (Scotland); Benefit Societies.—Read a second time:—Tolls of Steam Carriages; Excise Licenses' (Ireland); Punishment of Offences (Cape of Good Hope).
Petitions presented. By Lord FEVERSHAM, from Wesleyan Methodists of various Places, for Better Observance of the Sabbath.—By the Duke of SUTHERLAND, from Tongue, against Universities' (Scotland) Bill.—By the Earl of STRADBROKE, from Stradbroke, against Poor-Law Amendment Act.—By Lord ASHBURTON, from various Places, against Oyster Fisheries' Bill.

PRISONERS' COUNSEL BILL.
On the Order of the Day for receiving the Report of the Committee on this Bill
Lord Wharncliffesaid, that he conceived this Bill was entirely uncalled for. It was not an alteration of the law, but an alteration of the practice of the courts of justice, and his candid opinion respecting it was, that under its operation the verdicts of juries would be more frequently wrong than they were at present, especially in cases of life and death. The duties of a judge in criminal cases, should be confined to his keeping the evidence within legal bounds, and giving his
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direction to the jury. At present trials were conducted in a very solemn manner, but he believed that this measure, by permitting counsel to address juries on behalf of the party accused, would have the effect of increasing that uncertainty upon which professed rogues were accustomed to calculate; while it was an admitted fact that the uncertainty of convictions led to an increase of crime. One of the advantages which it was alleged would accrue from this Bill was, that the criminal would with more certainty be found guilty; but he did not think such an effect likely to be produced by the skill and eloquence of counsel directed to influence the jury in favour of the prisoner. It had been said that in other countries such a practice had worked beneficially, but in looking to those countries they should consider all the circumstances connected with the different modes of trial; and see whether the same advantages were given to the prisoner as under the existing law in this country. In France the party accused was subject to a personal examination, as might be observed by a late trial in Paris. On that occasion, as was the custom, endeavours were made to extricate from the prisoner a confession of his guilt. Now, under such circumstances as that, he was certainly an advocate, not only for one, but for two or three counsel on behalf of the accused. In Scotland, where the prisoner was allowed counsel, it was only necessary there should be the verdict of a majority, not of the whole jury; but this remarkable difference between the practice in the two countries had been entirely overlooked by the Commissioners. In the evidence given by Sir F. Pollock, he found it stated, "that any idea of affording counsel to defendants would be mischievous unless they had the last word; otherwise he would prefer the present system, with all its defects in principle and inconvenience in practice, and he contended, if the provisions of this Bill were made law, new alterations would be introduced until counsel were allowed in cases of felony even greater latitude than at Nisi Prius." But between the two cases there existed no analogy whatever, because, at Nisi Prius, the assistance of counsel was necessary, not merely, nor even principally, to ascertain the truth of the facts alleged in evidence, but to estimate the amount of damages which should be awarded by the jury. The case of treason was next

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adduced, but to any one at all acquainted with the history of the country and the usual course of procedure, the reason of allowing the prisoner a copy of the indictment, the names of those to be examined as witnesses against him, and the additional assistance of counsel, must be at once apparent; because charges of treason could so easily be converted into oppression from political motives; and, therefore, the policy had been wisely to surround the accused with every possible facility for making out a complete defence. The opinion of the Commissioners in favour of the principle of this Bill was founded on two or three alleged improper verdicts having been returned in cases of murder, where it was stated, if counsel had been allowed, no conviction would have taken place. He entirely objected, however, to vague statements of this description, and he very much questioned whether there would be greater probability of a proper verdict under the change which was proposed should now take place. Before he came to notice the cases of misdemeanors, he was desirous of saying a word or two upon the opinions given by Sir F. Pollock and Mr. Sergeant Wilde in favour of prisoners having the benefit of counsel on charges of felony. They had stated that they had had personal experience of verdicts being given contrary to the evidence. Sir F. Pollock stated two cases, and Mr. Sergeant Wilde had mentioned five. In one of the cases cited by the last named hon. and learned Gentleman, it was obvious from what afterwards took place, that there was an after fact of which no one knew when the trial took place. Now it was obvious that had counsel been permitted to address the Jury, he could not have produced a favourable effect, inasmuch as he could not have been acquainted with the fact upon which the Secretary of State afterwards acted. It was true that wrong verdicts might be given, but would allowing counsel to be heard for prisoners diminish the number, he begged to inquire? Was it shown that those cases would be fewer? Were wrong verdicts fewer in cases of misdemeanour, where counsel were permitted to address a Jury? He would venture to affirm that in such cases of misdemeanor where Counsel did address a Jury, it would be found on investigation, that as many wrong verdicts in proportion were given, as in cases of felony, in which counsel were not allowed. Amongst other topics which had been
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urged on former occasions relative to the present Bill, was one which had reference to the duties of the presiding Judge in Criminal Courts. It was said that the present duties of a Judge were already sufficiently heavy in having, often after many hours of strict and severe attention in taking notes of the evidence, to sum up that evidence, and to state its general effect to the Jury. Now he might very fairly be allowed to ask whether these duties would be lessened by the Judge having to listen to the defending counsel's arguments, and also by his having to strip a speech which was made in defence of a prisoner of his highly coloured effects, and to state the naked facts to the Jury, in order that their judgments might not be led astray by the meretricious arguments used by counsel? How often would the Judge's feelings be excited and wounded by having this painful task to perform, in addition to his present duties, oftentimes also performed by him with the knowledge that he was, by so doing, sending the prisoner at the bar to death? Having taken, all along, considerable interest in this question—having had some slight experience in the administration of justice as chairman at quarter sessions, and having given evidence before the Commissioners on the subject, he had thought it his duty thus shortly to state his opinions to their Lordships; and he trusted, although out of doors it had been stated that it would be most discreditable to that House if they refused to pass this Bill at the present moment, their Lordships would not be intimidated from rejecting a measure which would, in his opinion, prove detrimental to those institutions of the country in which the lives and liberties of their fellow subjects were most intimately involved. The noble Lord concluded by moving that the Report be received that day three months.
Lord Lyndhurstthought he had some reason to complain of the course which had been pursued by his noble Friend. On the second reading of the Bill, when its principle was to be discussed, every law Lord in the House expressed a strong opinion in its favour; his noble Friend, also a law Lord, was present upon that occasion, and remained perfectly silent; but after the expiration of several days, on another stage of the Bill, he came down with a long, an able, and eloquent speech for the purpose of attacking the principle of the measure.

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This unsteadiness of purpose on the part of his noble Friend—this halting between two opinions, was productive of this inconvenience, that his able speech must either remain unanswered, or those on the other side of the question must trouble their Lordships by repeating the arguments urged on a former occasion, which then appeared to be satisfactory to the mind of his noble Friend, and which were favourably received by their Lordships. Notwithstanding this, however, he was disposed to rely on their Lordships' recollection of what had passed on the former discussion of this subject; it was not his intention, therefore, to go through the whole of the speech, although he could not avoid making some observations on part of what had just fallen from his noble and learned Friend. His noble Friend had stated that eloquence, and passion, and zeal, would be introduced into our Courts of Criminal Justice, and that was suggested as an argument against the Bill. It did appear a most extraordinary proposition to maintain, that the only cases in which zeal, in which eloquence, in which powerful reasoning should not be made use of, were those where the liberties and lives of our fellow-creatures were at stake. His noble Friend stated in addition to this, that he was quite satisfied the effect of this Bill would be, that able and eloquent advocates would produce acquittals where there ought to be convictions, and that the course of criminal justice would thereby be perverted. That was one of the arguments pressed by his noble Friend against the measure. If the rule laid down by Lord Coke were correct, which he (Lord Lyndhurst) took the liberty of stating on a former occasion—a rule which had been confirmed and adopted by another noble and learned Lord, he meant Lord Nottingham on the trial of Lord Cornwallis—if it were the true rule that "in cases of felony no man shall be found guilty but on evidence so clear as to admit of no answer," or, as Lord Nottingham expressed it, "evidence so manifest that all the counsel in the world could not gainsay it"—if that were the rule, he for one should not feel apprehensive of any effects that could be produced by the eloquence or impassioned zeal of counsel in the due administration of justice. But if another rule were to be adopted which he had sometimes seen attempted to be enforced, that parties on trial for their lives were to be found guilty on a bare
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balance of evidence, on plausible subtleties, on slight presumptions as to facts, or minute details of evidence, depending on the character of those who gave it, he did hope the eloquence and arguments of counsel in cases of that description would prevail, because in such cases every man must feel they ought to prevail. But laying speculation aside, let them look to evidence. His noble Friend said, they should not draw their conclusions from the practice in states where the law and administration of justice varied so essentially from what had obtained in this country. He (Lord Lyndhurst) was ready to admit that principle. He would not take up their time in attempting to prove the fallacy of the reasoning of his noble Friend, founded on the practice in Scotland; he was prepared to rest the case on the practice established, and operating without inconvenience, where the law was the same, and administered on the same principle, as in England. With respect to the United States, he had, since he last addressed the House, had an opportunity of making the necessary inquiries, and he found that the system had worked well, and without being productive of the slightest inconvenience. He had armed himself with other authorities upon the subject. The first general authority to which he would refer, was one which showed that the practice in Jamaica admitted of counsel in criminal cases, whilst the law administered was the common law of England. The Report contained the following passages relating to that practice. A witness is asked whether counsel were allowed to address the Jury in defence of a prisoner accused of felony. The answer was, yes, He is next asked whether any inconvenience resulted from that practice; he answers none whatever. And who is this witness? No other than a gentleman who signs himself "W. A. Scarlett," brother to a noble and learned Lord, the Chief Baron of the Exchequer (Lord Abinger), who had attended in that House during the discussion of the Bill, and who had given it his full concurrence. Could anything be more conclusive than such evidence? He might cite another testimony, and more than one, but he would only refer to the Report, which stated that in the colonies counsel were allowed to address the Jury in all criminal cases, and that no inconvenience ever resulted from the practice. These facts were better than all the refined arguments and inge-

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nious speculations of his noble and learned Friend. In all cases of misdemeanours, as well as in the graver cases of treason, counsel were permitted to plead in England, and no inconveniences resulted. In felonies such aid was not permitted here; whilst in the colonies it was, and no inconvenience followed; whilst, on the other hand, all the best authorities, men whose experience qualified them most eminently to judge of the effects of such an alteration in the law, were of opinion that it was absolutely essential to justice that the principle of the Bill should no longer be disregarded, or denied its proper applications to the practice of the Courts. Amongst these authorities were Sir F. Pollock, Mr. Alderman Harmer, and the Lord Advocate of Scotland. The noble and learned Lord had observed, that the effect of the Bill as it now stood would be to deprive the prisoner of the benefit of having the last word, which was material, in fact of the highest value to him. Now he had by no means made up his mind as to this circumstance, or whether he would deprive the prisoner of this advantage; but he had certainly advised the striking out all the clauses relating to that subject, in order to try the experiment; and he would now state that if hereafter it should be found advisable for the prisoner to be allowed to have the last word, there was nothing in the Bill by which that principle would be prevented from being admitted; and the noble Lord had quite misapprehended him when he supposed that he meant permanently to deprive the prisoner of that privilege. In his opinion the evils of the present system could not well be exaggerated. Let their Lordships picture to themselves a man placed at a criminal bar charged with a grave offence, bowed down with age, by infirmity, by disease, his senses not perfect—he neither hears nor sees well—his physical powers are all but completely exhausted, and yet no assistance of counsel afforded him— could anything be more barbarous and cruel? Yet such was the case of Lord Lovat. Let them take another case, that of a foreigner just arrived in the country ignorant of the language and whole form of procedure, obliged to conduct his own defence, and not allowed the assistance of counsel; he was entangled at once in a maze of perplexity and confusion, utterly unable to say a single word, or perform a single act, contributing to his
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justification. He would put still another case—the case of a man born deaf and dumb; he might not have the use even of the faculty of sight, but placed at the bar charged with felony, the case having been gone through, the judge was heard to say, "You have heard the evidence; if you have any thing to say to the jury in your own defence, now is the time; your counsel cannot speak for you." Could any thing be more monstrous and cruel? This case might appear extravagant and absurd in terms, but he had seen instances substantially to bear out the description. Yet such was the system which his noble Friend eulogised, and which must revolt every man of plain and ordinary understanding who for a moment contemplated it. Counsel were allowed to write a defence for the prisoner to read, but that of course must be prospective, depending hypothetically on the evidence which might be adduced; why not allow a defence to be addressed to the jury, founded on the actual facts placed before the jury? What was the first principle of justice? That no man should be condemned without being heard in his own defence. How were they to interpret that? Narrowly, according to the letter, or largely, and liberally, as every proposition in morals ought to be expounded? Did it mean that after a trial of ten hours, consisting of most complicated evidence, an ignorant man should be allowed to stand up and submit his comments to the attention of the jury? Would that be hearing him in his defence? No, that would not satisfy the rule of justice. The rule of justice meant this—that for every thing which could fairly and properly be urged in the prisoner's defence there should be the opportunity of urging it on the attention of the jury before he was pronounced guilty of the crime laid to his charge. He called, therefore, upon their Lordships, as the hereditary judges of the land, to interpose their authority on this subject, he called upon the right rev. Prelates, whom he greatly respected and revered, and whose minds must be deeply imbued with the principles of justice, to wipe out this stain—the relict of a barbarous age; and he could not do better than read in conclusion a short extract from an essay lately published by a member and dignitary of the Church of England, embodying in the most striking and forcible manner, his own opinions and feelings on this

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subject, and which he was sure would produce a deep impression on their Lordships. He said—"We have often blushed for English humanity when we have heard the reply—'Your counsel cannot speak for you, you must speak for yourself.' And this is the reply given to a poor girl of fifteen—to a foreigner — to a deaf man — to a stammerer — to the feeble — to the blind — to the old — to the most abject and ignorant of human beings! How often have we seen a poor wretch struggling against the agonies of his spirit, and the rudeness of his conceptions and his awe, speaking in the presence of learned men, and the shame of the accusation brought against him, in the sight of his parents, or his children gazing at him in court, perhaps for the last time? The mariner sinking in the waves does not want a helping hand more than this poor wretch. But the rule is alike applied to all, to the old and young, the feeble and the strong. Age cannot have if, nor ignorance, nor the modesty of youth; one hard uncharitable rule silences all defence of those wretched beings, and at the bitterest of human moments mercy is blotted out from the ways of man."
The Earl of Radnorhad heard with much pleasure the able, eloquent, and fascinating speech of the noble and Learned Lord, although he could not help thinking the course he now pursued rather extraordinary after the opinions he had formerly stated upon this subject. In fact, he must have changed his opinions very decidedly within the last two months; for he (Lord Radnor), within that period, in a conversation had heard the noble and learned Lord state that he intended to oppose this Bill. At all events, when the noble and learned Lord was Attorney-General, there could be no doubt he supported the present system, insisting that the question depended not upon authorities but on experience. Althrough he quite agreed with the noble and learned Lord as to the anomaly of the present system, he must complain that the noble and learned Lord had delayed so long in bringing forward this Bill. He would vote for this measure, though he was not certain that, limited as it now was, it would not be mischievous. If carried in its present shape, he was convinced that it must of necessity produce further alterations, and on that account he should give it his support.
Lord Lyndhurstsaid, that as the noble Earl who had just sat down had introduced into his speech so much of matter personal to himself, he trusted that, though it was not strictly regular, their lordships would indulge him with their patient attention whilst he said a few words in reply. As to the private conversation which the noble Earl said had taken place between them on the subject of this Bill, he had only to observe that he had no recollection of it. He had had many private conversations upon it with his noble and learned Friend, (Lord Brougham) in the last Session of Parliament, and in those conversations he had intimated that he felt inclined to support it. He had not, however, at that time examined the subject, either so minutely or so carefully as to be able to come to any fixed decision upon it. As to the course which he had pursued upon it in that House last Session, their Lordships had already indulged him with an opportunity of explanation, and to what he had said then he had nothing to add now. He had taken Sir Michael Foster as his guide, but had not then entered into an examination of the reasons which that learned judge produced in confirmation of the opinion which he bad formed. After examining into those reasons, and after some practical experience which he had himself obtained as a judge, he had become convinced that the objections which Sir M. Foster had urged against making this alteration in our present system were much exaggerated; and upon discovering that exaggeration, and upon contrasting the objections of Sir M. Foster, when stripped of their exaggeration, with the reasons advanced in its favour by others, he had come to the conclusion which he had already stated to their Lordships. The noble Earl had also objected to him for bringing this Bill before their Lordships at so late a period of the Session. Now, he wished to remind their Lordships of one simple circumstance, in reply to the objection of the noble Earl. The Bill came to their Lordships from the other House of Parliament. The noble Earl was quite as competent to take charge of it as he was; and yet the noble Earl had allowed it to remain four weeks on the table without taking the slightest step regarding it. He had had a conversation on this Bill with his noble and learned Friend, the Lord Chief Justice of the King's Bench; and in consequence of that conversation, and at the express

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desire of his noble and learned Friend, he had taken charge of this Bill. His noble and learned Friend had, however, requested him not to proceed with the Bill immediately, inasmuch as the Report of the Committee was not upon the Table. His noble and learned Friend thought, that it was necessary that the Report should be on the Table, and should be printed before he proceeded with the Bill. It was out of deference to his noble and learned Friend that he did not move the Bill sooner. He had not caused the slightest delay to the Bill; indeed, it was for the accommodation of certain noble Lords who could not have attended when the second reading of it was first appointed, that he had postponed for some time the discussion upon it. He was glad that he should have the support of the noble Earl to this measure, even though the noble Earl was not certain that it would not be mischievous, now that the clause granting the prisoner the depositions was struck out. That clause was not struck out at his suggestion; it was struck out at the suggestion of his noble and learned Friend, the Lord Chief Justice of the King's Bench, a criminal judge of great experience, and at the suggestion of another noble and learned Friend of his, the Lord Chief Baron of the Exchequer, a criminal judge of quite as great experience, he fancied, as the noble Earl himself. He had assented to their suggestion, but with this reserve, that he would not pledge himself not to bring it forward again, in case it were struck out now. In conclusion, he said that the attack of the noble Earl upon him was most uncalled for, and most unfounded.
The Earl of Radnoradmitted, that it was quite as competent for him to have taken charge of this Bill as it was for the noble and learned Lord. There was, however, one advantage gained to the Bill, by letting the noble and learned Lord have the charge of it. The noble and learned Lord was in the habit of speaking in a majority, while he was in the habit of speaking in a minority, in that House. With regard to one remark which had fallen from the noble and learned Lord, he had to observe, that his noble and learned Friend, the Lord Chief Justice of the King's Bench, had told him (Lord Radnor) that the clause relating to the granting the depositions should be left in the Bill. The noble and learned Lord
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opposite had moved that that clause be struck out. He had opposed that motion; but the noble and learned Lord had insisted upon it, and it was in consequence struck out. The noble and learned Lord said that he had then followed the authority of Sir M. Foster, as laid down in Blackstone; but according to a record of the noble and learned Lord's opinions which he held in his hands, and to which the noble and learned Lord was fond of referring, the noble and learned Lord had then said, "However much I may respect the opinion of Sir M. Foster, this is a question on which practical experience was of much greater weight than any authority whatsoever."
Lord Lyndhurst: I never could have said so then; it must be some mistake, it would be quite contrary to the general tenour of my argument.
Lord Plunketwould give his cordial support to this Bill, although he should have been better pleased had it gone further. He should not have troubled their Lordships at all upon the present occasion, were it not to express his satisfaction at hearing his noble and learned Friend declare that, although certain clauses had been withdrawn, he did not mean to say that he would not, at some future period, introduce a clause giving the prisoner's counsel the last word. The Bill would be left in an imperfect state, without some such clause. He considered that it was a reproach to our law, that a prisoner could not be heard by counsel, and on that account he gave his hearty support to this Bill.
Lord Abingerregretted that a Bill of this description had been made matter of personal discussion between two of their Lordships. Though he had originally had some doubts on the subject, the discussion which took place on it two years ago in the House of Commons, had satisfied him that criminal charges should be put on the same footing as civil charges. It was then stated, that allowing prisoners to defend themselves by counsel would not tend to facilitate convictions. To that statement it was replied, that when it was considered that the counsel who defended the prisoners were generally young men not of much experience, the tendency of the Bill would, in all probability, be to facilitate convictions. It was likewise stated, that the object of the Bill was, not that the prisoner should be acquitted, but that the truth should be

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investigated. That argument had produced a powerful effect on his mind; for he thought that truth would be better investigated, and that justice would be done more efficiently between the prisoner and the country, if a free discussion of the charge were had on both sides. If any one were to ask him what he, judging from no inconsiderable experience at the Manchester Sessions, and in the Criminal Courts of the Northern Circuit, considered the practical effect of the present system to be, he should say that it was favourable to the acquittal of the prisoner. Supporting the Bill as it now came amended from the Committee, he felt obliged to add, that if it had contained the clause giving to the prisoner's counsel the right of replying to the reply of the counsel for the prosecution, he could not have given his support to it. Such a proceeding would not be consistent with the investigation of truth, and was inconsistent with our practice in civil cases and in cases of misdemeanour. He did not expect that, if this Bill passed, it would greatly lengthen the time of our assizes and sessions. Many prisoners would still remain without counsel to defend them, for they would not have funds to procure such assistance; and in cases where the prisoner's guilt was clearly proved, no counsel of the least discretion would think of addressing the jury to assert his innocence. In difficult cases he must say that, as a judge, he was desirous of having the aid of counsel in elucidating the facts applicable to the guilt or innocence of the prisoner, for such aid was necessary to the proper performance of the duties of the judge himself. He knew that it was the practice on some circuits for the counsel not even to open the case against the prisoner, but to proceed at once to the examination of witnesses. That was, in his opinion, a very inconvenient practice, for the opening of counsel helped the judge to a right understanding of the case, and enabled him to know beforehand what were the facts in it essential to be proved. The judge felt the same difficulty from having no opening statement made to him of the points on which the prisoner, when he called his evidence, intended to rest his defence. The witnesses were called one after another, and for want of some explanation of the points which they were called on to prove, their examination consumed much longer time than it would do, and the defence lost much of its force and efficacy. He had no hesitation in declaring
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it to be his opinion, that in a majority of cases in which counsel were employed for the prisoner, they would be of the greatest utility both to the judge and to the jury. He again repeated, that if the clause giving the prisoner the last word had remained on the Bill, he should have given it altogether his most decided opposition.
The Earl of Devonsaid, that, in spite of all the authority which was arrayed against him, he felt bound to express his opinion that the measure could produce no good practical effect. There were many objections taken to the Bill, as that the new proceedings would occupy more time, to which he attached no weight; for their consideration should be solely this—whether the present practice did not lead to the calm and fair investigation of the truth. Now he apprehended that it did. As to the clauses of the Bill, there was great difference of opinion between the learned Judges of the Court of King's Bench and Exchequer, but upon those points he should not enter. In any cases, it was to be remembered, in which counsel having the power of addressing the Court for a prisoner, declined to avail himself of that privilege, the possession of it could only act in condemnation of his client. He had felt it to be due to himself, and due to that House, to come forward, and state shortly his own view of the matter.
The Duke of Richmondthought, that if they could rely upon the juries of Jamaica and the colonies for just discrimination, they might at least trust the juries before whom this Bill would operate, and that at any rate it would be much better that some guilty persons should escape, than that a single innocent one should suffer. As to the clause respecting the "last word," for the sake of uniformity of practice alone, which was highly desirable, he thought that clause must be readmitted. The next clause, as to the depositions, was one of considerable importance; but the question came to this— if the attorney for the prisoner were a sensible man, he would take notes, and that was the constant practice, of every word of evidence against his client; and therefore the man who was able to pay an attorney, would have a copy of the depositions; but the man who could not employ one would have no such copy, and they refused to allow him one. Again, as the law at present stood, many magistrates, upon application, were in the habit of

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giving the depositions to the prisoners— many not. It was the duty of Parliament to decide which was the proper course to pursue. The House of Commons, and, he presumed by their votes, Sir William Follett, the Solicitor and Attorney General, together with the Commissioners, had already declared that the prisoner was entitled to have the depositions, but the House of Lords appeared about to express a contrary opinion. By striking out that clause, did they mean to say, that the magistrates ought not to allow a copy of the depositions to be given to the prisoner? All he wished for was, that the magistrates might not be left in doubt and uncertainty upon the subject.
Lord Lyndhursthad no objection to insert a declaratory clause in the bill, to the effect desired by the noble duke. As some of the magistrates newly-appointed might have a doubt on the point none others he thought could, he had no objection to insert a clause declaratory of the law.
The Duke of Richmondreturned his thanks to the noble and learned Lord for this concession. At the same time he must remind the noble and learned Lord that in the last fifteen years, some of the judges of the land had doubted whether the prisoner had any right to a copy of the depositions.
The Lord Chancellorthought it was of importance to have the clause restored, for he thought that the prisoner was entitled to a copy of the depositions. There had been another clause struck out of the Bill, which he much wished to see restored to it. His noble and learned Friend had, however, objected to it, saying that he could not see any reason why the prisoner's counsel should have the last word. Now it appeared to him that the reason was obvious. The defendant might have evidence to produce; but he would keep it back, not because it was unessential to his case, but because in calculating the chances he was bound to consider whether his chance was better without calling that evidence, than it would be supposing him to call that evidence, and so give his prosecutor an opportunity of replying upon it. The fear of a reply might induce him to keep out evidence necessary to his exculpation. This fear would be obviated in case the prisoner's counsel were entitled to comment on the reply of the prosecutor. It ought not to be forgotten, that by the clause itself the counsel for the prisoner was only to have this power of
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making a rejoinder where the counsel for the prosecution had replied upon the defence. If the prosecutor made no reply to the defence urged by the prisoner's counsel, then the case was to go immediately to the jury. Whether it was to be done by this Bill now, or by some other bill at a future period, he thought that in all criminal proceedings the prisoner's counsel ought to have the last word, when the counsel for the prosecution availed himself of his power of reply. He was glad that in the course of this debate they had at last got rid of the fiction so contrary to the fact, "that the judge was counsel for the prisoner"—counsel for the prisoner, without having any communication with his client, and without having the slightest previous knowledge of what it was for the interest of his client to prove. He would not enter into any details to prove the propriety of their Lordships assenting to this Bill. He would merely remind them of the fact which struck even the most unobservant with surprise. In cases which involved a man's property the courts of law heard both sides; but in cases which involved a man's life, they heard only one side. Moreover, the present law was singularly inconsistent with itself. If a man wrested a gun from another for the purpose of levying war against the king, that was an act of high treason, and for such a taking of a gun you not only allowed, but in case of poverty assigned, him counsel to plead his defence. If a man stole a gun from another, it was an act of felony, and for such a taking you denied to him the right of being heard by counsel in his defence. If, again, in the course of a struggle between a poacher and a gamekeeper, the poacher wrested the gun from the gamekeeper, that was a misdemeanour, and for such a taking you again restored to him the right of employing counsel to conduct his defence. Thus in the first case you granted the prisoner counsel, in the second you denied him counsel, and in the third you restored him counsel, the act being in all three instances the same, and the sole object of the variation of the law being, as admitted, the investigation of truth. He was convinced that the result of this Bill would be, that a less number of innocent, and that a greater number of guilty persons would be convicted, and feeling that truth would be ascertained by this Bill better than by the existing system, he should give it his cordial support.
Amendment negatived.
Report agreed to.