HL Deb 23 June 1836 vol 34 cc760-78
Lord Lyndhurst

rose to move the second reading of the Prisoners' Counsel Bill. This Bill bad been a lung time before the House; and as no member of the Government bad intimated an intention of moving the second reading, and his noble and learned Friends in that Mouse were too much engaged by other important business to do so, he thought it his duty to make this motion. Before doing so, it might not be amiss to trouble their Lord ships with a very brief history of the mea sure. In the year 1834, a Bill similar in principle to the present passed the House of Commons, and was sent up to that House, where it was read a first time, after which no further proceedings took place. Last year the Bill was again renewed, and passed the House of Commons on the second reading without a division, and came up to that House and was referred to a Select Committee. It was so late in the session, however, that it was impossible for the Committee to make any satisfactory report, and, beyond the printing of the evidence taken before them, nothing was done. At the commencement of the present Session, this Bill, founded upon the principle of the former measures, was again introduced into the other House of Parliament; a Select Committee was appointed, and they reported in favour of the Bill; it passed the other House by a considerable majority, and was now on their Lordships' table. During the period to which he had adverted, the Secretary of State for the Home Department direct ed a Commission, which had been appointed for some time, to investigate the state of the criminal law in this kingdom, and to direct their attention to this subject. They had done so, they had taken evidence, they had examined all the reports on the subject, and had made a most elaborate and learned report, recommending that the principle of the Bill should be adopted. Under these circum stances, and with this sanction, it was that the measure was now submitted to their Lordships. The first thing that struck any one who considered the subject was the strange inconsistency that pervaded the English law in this respect. A person litigating any right of property, however small, was allowed the assistance of counsel; but in a case affecting his character, his liberty, perhaps even his life, he was by the present state of the law deprived of that assistance. This was at first view not only a most inconsistent, but if he might apply so strong an expression to the English law, a most absurd regulation. Again, in cases of crimes of the deepest dye, which were visited with the severest of all punishments—he meant those which came under the denomination of high treason—prisoners were allowed the benefit of counsel; and in the lowest grade of cases, which came under the head of misdemeanour, they were allowed the same assistance. Thus the two extremes were put on the same footing; while in the intermediate cases of felony, the prisoner was wholly deprived of the benefit of counsel. Very extraordinary consequences resulted from this state of the law. There were offences connected with coining, which upon the first com mission, were simply misdemeanours, but which, when repeated, became felonies. A man put upon his trial for the first would have the full benefit of counsel; were he indicted for a second offence, the same wit nesses would be examined, precisely the same description of evidence would be gone through, and his counsel would only be allowed to put questions to the witnesses, and to argue points of law; he would have no right to address a single word to the jury. Again, in a case of extreme violence upon a female. This would be a case of felony, and the prisoner's counsel would have no right to conduct the defence or address the jury. If, however, the prisoner was acquitted because the offence was not completely established, and another indictment was preferred against him for an assault with intent to commit the offence, the same witnesses would be examined, the same facts gone through, and the counsel would be at liberty to conduct the defence, and to address the jury. Surely these were in congruities and absurdities that ought to be removed, unless some good cause were shown for the continuance of the present system. He should be enabled to show their Lordships that these were remnants of a barbarous code of laws relating to felons, which had been all got rid of with the single exception of the anomaly which it was the object of the Bill to remove. Formerly, in cases of felony, the counsel were not allowed to cross-examine the witnesses, or to suggest objections on points of law. The unhappy and ignorant prisoner at the bar had the liberty of suggesting a legal objection, but he must do so of himself, without any consultation with counsel; it was taken into consideration by the judge, and if he thought fit, the question was argued by counsel appointed for the purpose. In cases of felony, no witnesses were examined on the part of the prisoner until Queen Mary sent down directions to the Chief Justice of the Court of Common Pleas to take evidence on the part of the accused. The law, however, remained imperfect, because, though witnesses were examined, they were not examined upon oath. Lawyers were sometimes very astute at finding out reasons to support every existing institution, and they assigned a very singular reason for this practice. They said that it originated in lenity towards the prisoner, because the witness, not being bound by an oath, would speak largely and beneficially for him. This was rather a singular doctine, the object of a court of justice being to elicit the truth; but let their Lordships mark its practical effect as exhibited in numerous instances in the "State Trials." The moment the judge began to sum up the evidence to the jury, and to contrast the evidence for the prosecution with that given on the part of the prisoner, he always took care to in form the jury that, in estimating the degree of weight which was to be attached to the testimony on each side, they must not lose sight of the important fact that the witnesses for the prosecution were examined on oath, while those for the defence were free from that obligation. He could state to their Lordships, that the opinion of the legal profession was daily growing more and more favourable to the measure he now proposed. Some ten or twelve years ago it was strongly against the change, but from all the inquiries he had made, he could undertake to say that a great majority of the profession were now decidedly favourable to the principle he contended for, To con firm this statement he need only refer their Lordships to certain passages in the Commissioners' Report. It appeared that the current of ancient authority was strongly in favour of the change. The first authority was that of Sir William Blackstone, a man who, from his considerate and cautious mind, was well worthy to give an opinion. Sir William Black stone said, that he was of opinion that in cases of felony there could be no reason why the defence of the prisoner should not be intrusted to counsel, as well as in cases of misdemeanour. The next authority was that of Lord Coke, who stated very shortly what he considered to be the ground of the rule by which counsel were disallowed in cases of felony. "No counsel (said Lord Coke) is allowed in cases of felony, because the evidence ought to be so clear that it cannot be contradicted." And this passage of Lord Coke's was adopted by Lord Nottingham, on the trial of Lord Cornwallis for the murder of Robert Carr. He said, when acting as Lord High Steward on that trial," No other good reason can be given why the law refuseth to allow the prisoner at the bar counsel on matters of fact, in the result of which his life may be concerned, but only this, because the evidence by which he is condemned ought to be so very evident, and so plain, that all the counsel in the world should not be able to answer it." The premises of this argument appeared to him entirely to fail. He knew that in a great many cases in which he had himself been concerned as counsel, or had been sitting as judge, the evidence had been of so extensive and so complicated a character, directed against the life of man, that it was ridiculous and absurd to state that it could not be contradicted; and that the observations of counsel upon it might not have been of the greatest service, not only as far as the conclusion of the jury, and the interests of the prisoner, and the enlightenment of the mind of the judges was concerned. If their Lordships, then, were satisfied that the premises on which the reasoning of those learned persons was founded, failed, and those premises being stated was the only good reason, and that turning out to be no reason at all, then he had Lord Coke and Lord Nottingham as authorities in his favour. But this was not all, The current of authorities set most strongly in his favour upon this subject. He could quote the authority of Whitlock, who was one of the Commissioners of the Great Seal, and also of Judge Jefferies, as being in favour of the principle of this Bill. On the other side, there was certainly the respected and revered name of Sir Michael Foster; but he did not ex press himself very strongly upon the subject. His observation was this:—" I am far from disputing the propriety of this rule. In all these cases we must be guided by a balance of evils and inconveniences." He (Lord Lyndhurst) admitted the authority and even the doubts of that Learned Judge to be entitled to great attention; and it was in consequence partly of those doubts, and in consequence, after an examination of the subject of what occurred to him would be the evil and inconvenience of departing from the present system, that he formerly op posed a Bill similar to the present in the other House of Parliament. He had reason since to observe the progress of opinion upon this subject, and to make inquiry respecting it while he was at the bar, and since he had been on the bench, to see the working of the system; and the result had been, that he was satisfied that the evils and inconveniences of allowing counsel to prisoners had been greatly exaggerated, and that being exaggerated, he thought they ought not to be put in com- petition with that which the obvious justice of the case appeared to require. It was said that the prisoner might himself address the jury; and a lawyer of considerable eminence, Mr. Sergeant Hawkins, had said, that an address by the accuser was likely to be attended with a more beneficial effect than when made by counsel. With all submission to that authority, this appeared to him to be a mere mockery. How few persons were there, even of education, who were accustomed to public speaking; and even if they were, how few were there who, for the first time in their lives, being called upon to exercise that power or gift with reference to a subject of this kind, could go into an examination of a complicated case, and point out the improbabilities and inconsistences of the evidence, so as to do justice to himself. That observation applied to persons of education; but how few persons of education were there put upon their trial for felony. The great mass of persons who were thus circumstanced were the uninformed and uninstructed, and when their Lordships took into consideration the condition of such persons, the novelty of their situation, and the anxiety of mind which it must create, and looked at the fatal consequences which might result to them from a mere slip or phrase of speech, how absurd and extravagant was it to say that it was better for the party accused to defend him self, and that he would do it with more effect than if his defence were conducted by counsel. But he begged their Lordships to look at the injustice and partiality of the principle. You allow counsel for the prosecution to address the jury upon matters of fact; but you won't allow the party accused to do so. Could any injustice be greater than that? What was the answer to this? Why it was said that the speech made by the counsel for the prosecution was of infinite importance to justice being done between the parties; it detailed the facts in a cold and unimpressive manner merely in order to introduce the evidence, and that it was beneficial even to the party accused. If that were so now, it was not so formerly; and he believed the alteration which had taken place in the system had arisen mainly from the discussions to which this Bill had originally given rise when introduced in 1825. But what was the kind of speech which counsel for the prosecution made in cases of this description? One likely to have the most fatal effect against the accused. He would take the case of a party indicted for a capital offence, where the case depended upon a great mass of circumstantial evidence. What was the kind of speech likely to have the most fatal effect? It would be the speech of an ingenious counsel, who would collect all the little facts of the case, and arrange them in such order and manner, interspersing them with occasional observations, as to lead the minds of the jury to the conclusion that the accused was guilty of the offence with which he stood charged. Such a speech as he had described, introduced as it would be with the expression of great mercy towards the prisoner, and of a hope that he would be able to extricate himself from the toils in which he had entangled himself, was likely to produce a much more powerful effect on the jury, unfavourable to the prisoner, than any speech delivered with zeal and passion, which, by creating a revolting impression, would be likely to produce no effect at all in his favour. But this was precisely the description of speech which counsel now, under the restrictions they were supposed to be subjected to, ad dressed to the jury in that class of cases. It was monstrous to say that the counsel for the prosecution should be entitled to make observations in order to show the coherence of the several parts of the evidence, and that the prisoner should not have counsel for the purpose of exposing the inconsistencies, contradictions, and improbabilities of the evidence directed against him. It was quite impossible, if the object were to administer justice, that reasonable men could sanction a system so partial. But there was another consideration of importance— what did the experience of the world say as to this? What was the practice of the other countries in civilised Europe? We boasted of the tender ness of our laws, at least of the administration of them. We thought that we stood, in that respect, above all the civilised nations of Europe. But there was not a country in Europe where a party accused had not a right to defend himself by counsel, both upon matters of fact and law, except in this country and in Ireland. In Scotland that was the practice. Were their Lordships justified, then, in permitting it in one part of the country, and denying it in another? What were the grounds for that distinction? It was said that the law was different, but there was nothing in the difference of the law upon which they could build a reason why a system should exist in the northern part of the island, and should not exist in the southern part of it. What also was the case in the British colonies, where the criminal law of England prevailed. Mr. Dwarris told them, in his Report, that it was the practice to allow prisoners to defend themselves by counsel upon questions of fact as well as law, and that no inconvenience resulted from it. In the United States, likewise, where the common law of England was the law of the country, it had long been the practice to allow counsel to prisoners, and no inconvenience or complaint had resulted from it; nor was it followed by the existence of those evils which it was supposed would result from the practice if it were adopted in this country. Then what was another objection? It was one which no person would venture to state openly, and yet it operated very powerfully against this Bill. It was one which was hinted at, but which no one would avow—it was an objection of time. It was said that it would extend the duration of the assizes and sessions be yond measure, and entail great expense upon the country. But this was stated always with a protest by those who used it, that it was not intended to rest their case upon the argument of time. And justly so, because if their Lordships were satisfied, that in a matter which might result in the forfeiture of a man's life, it was necessary to the ends of justice that further time should be allowed, he was confident that their Lordships would not say that they would not allow that time, because it was inconvenient, and would be attended with expense. They would not, upon such grounds, deprive a party of that full and fair trial which they in their judgments and consciences felt to be necessary for a due investigation of the truth. But then another objection which he believed was nearly obsolete, was this, that the judge was counsel for the prisoner. But he was not the advocate of the prisoner. That was not his situation; and if it were, he had no means of discharging his duty. He had no opportunity of intercourse with the prisoner; he had no knowledge of the facts which could be communicated by the party accused. What was the meaning then of the expression, "the judge is counsel for the prisoner?" It meant, that he would take care to see the law duly administered —that evidence should not be admitted which ought not to be so—and that he would see that the trial was regularly, fairly, properly, and impartially conducted. The expression could not have any other meaning. But another great argument was this—that the adoption of the proposed system would change the tone, temper, and character of our judicial proceedings in criminal matters. It was said, that under the present system everything was conducted orderly and quietly; that there was no zeal, no passion embarked in the case; that the witnesses on the part of the prosecution were temperately examined, and the witnesses for the defence patiently and impartially heard; that the judge dissected the whole of the evidence, and then impartially submitted it to the consideration of the jury. He admitted all that. He admitted also, that in some degree some thing like warmth and zeal would make its appearance in the courts of criminal justice, were counsel on the one side and on the other permitted to argue a criminal case. But he still believed that the evils in this respect were greatly exaggerated. And he would tell their Lordships why he said so. The most important and exciting cases were very often misdemeanours involving matters of grave accusation, and in which parties contended one against the other much more than they could be supposed to do in cases of prosecution for felony; and yet in cases of misdemeanour counsel were allowed. In the Court of King's Bench he had heard many misdemeanours tried under the superintendence of the Chief Justice, and also at the as sizes, and yet he never found that there was any want of order, or decorum, or of that degree of tranquillity which should always prevail in the court of justice, and which was necessary to enable the parties called upon to decide the case to come to a correct judgment. In those cases he had heard some most animated speeches addressed by counsel to the jury, who sat as calm spectators all the while, the Judge also being equally calm, both parties feeling that the decision to be arrived at must be formed upon the facts presented to them. Again, it was a great circumstance in an argument of this kind that the objections made were merely speculative. Let them look at what was the practical result of the principle for which he was contending. Did they find that in Scotland the courts of criminal judicature were not capable of investigating the facts, because counsel on each side made ani- mated speeches? The evidence led to a contrary conclusion. The Lord Advocate stated, that from experience he was satisfied if counsel had not been allowed to address the jury in many instances great injustice would have been done. There was another point, and which after all was the principal point to be attended to, namely, the best mode of investigating the truth? It was said that an argument between counsel would not assist the investigation; that it would embarrass it, and render it more difficult, because passion would be substituted for cool and calm inquiry. He had considered that particular objection, but what was the fact? In nine cases out of ten it was of no consequence whether counsel had the privilege or not. The facts would be so clear that it would be quite unnecessary to make any observations on one side or the other. But there was a class of cases of the utmost importance, in which the lives and liberties of men were involved. Take the case, for instance, of murder de pending upon circumstantial evidence. There was not a case of that kind in which any man could say it was not of the utmost importance to the ends of justice that counsel should have the opportunity of making observations on the evidence. What was the course of a trial in a case of that description? Witnesses were examined from an early hour in the morning till late at night; the Judge took down the evidence, and the instant that was concluded, he summed up to the jury, commenting on the evidence as he proceeded. If there were a plurality of prisoners, the Judge pointed out the evidence which applied to each prisoner—reconciling apparent contradictions, or exposing real contradictions—showing the probabilities or improbabilities of the statements of the different witnesses, and contrasting the evidence of one witness with that of another. There was no individual (and he had sat in the situation himself), there was no judge who could say at the close of such a case that he was quite satisfied with the manner in which he had executed his duty. It was impossible for him not to be guilty of some omission, either as to the facts, or as to the making of some important observation which might have been suggested to him if counsel had been allowed to address the jury. The counsel, through the attorney, communicated with the prisoner, and all the circumstances were made known to him as to the character of the witnesses, and as to the prisoner's own position. These were the clues by which counsel were enabled to wander through that which was very often a labyrinth to a person who had not known anything of the case before. Could any one say that a counsel, under such circumstances, was not in a situation to make observations of importance, not only to the prisoner and the jury, but of infinite importance for guiding the mind and assisting the observations of the judge. It appeared to him that their Lordships had only to look at that class of cases to be convinced that the assistance of counsel was essential to the due administration of justice, and the full investigation of truth. There was one more observation which he thought it necessary to make. It was said that the judge was now considered counsel for the prisoner; but if a speech should be allowed to be made by a counsel for the prisoner, the judge would be compelled to reply upon that speech, and would thus appear to take part against the prisoner. He denied that conclusion. The judge stood high and independent, and was look ed up to by the jury. They had a reliance on his wisdom and experience; and above all they had a reliance on his impartiality. It was not necessary for the judge to embark with zeal in the case. If he dealt in a mild manner with the sophistries of the counsel for the prisoner, and felt it necessary to expose his inconsistencies in argument, and to correct his errors as to facts, by drawing the attention of the jury to his notes of the trial, that would be abundantly sufficient for the purposes of justice. What did experience teach on these points? In trials for misdemeanours the judge was placed precisely in the same situation; but they did not find such a consequence result. He appeared as an arbitrator and a mediator, acting evenly between the parties; presenting- the case fairly and impartially to the consideration of the jury. He had no apprehension of that result which had always been insisted upon in the discussion of this question. He had felt it necessary to trouble their Lordships at greater length than he could have wished, from the peculiar situation in which he was placed; he having in the year l826 taken another view of this question. But he was satisfied that his former conclusions as to the evils and inconvenicncies that would arise from the proposed change, were exaggerations; and he was now persuaded that those evils would be of no great magnitude, and would be more than counterbalanced by that great rule of justice on which the change was founded — impartiality. The conclusion then to which he had come upon this question was, that the present system was a remnant of a barbarous practice; that the continuance of it was against the great current of authorities; that if they continued it they would act partially between the accuser and the accused; that it was contrary to the practice of all civilised countries; and in the last place—which perhaps was the most important consideration—an alteration was required, because it was essential to the due investigation of truth in the most important cases that could come before a court of criminal justice.

Lord Wynford

said, his noble and learned Friend had adverted to the objection that the proposed change would necessarily involve the consumption of much longer time in criminal trials than was required at present. There was no doubt that the change would greatly pro tract such trials. He understood that one week was occupied in Scotland in the trial of forty criminals. He had at one assizes to try 240. Now in what time could those trials have been concluded, if counsel had to address the jury for the prisoner in each case? He did not, however, urge this as a permanent objection to the Bill, but he did not think that the country was yet ripe for such a measure. If it were to be adopted, it would be necessary to make a large addition to the present number of the judges. Three would be necessary to preside in some counties and four in others, and twelve at least would be required to try the prisoners in London. This, of course, would entail a very considerable expense on the country; but he did not rest on that, for he thought that no expense of time or money could be considered too large, if it had the effect of bringing about an improved system in the administration of justice, or afforded greater protection to the innocent man than he enjoyed at present. He himself did not object to the principle of employing counsel to address the jury for prisoners accused of felony; on the contrary, he had not heard any argument against that pro position which might not with equal force be applied against the employment of counsel in any case. For his own part, when presiding as a judge, he had often wished to have the aid of the opinion of counsel on the case before summing it up to the jury. It was not always possible for a judge, who was occupied in hearing a case for perhaps ten or twelve hours to be able in his summing-up to direct his attention to every minute point of the case, so as to bring them fully before the jury as they bore for or against the accused. He remembered a case which was tried before him at Leicester, and which he believed was in the recollection of his noble and learned Friends (Lords Denman and Lyndhurst). In that case a man was charged with having committed a murder at Mel ton Mowbray, which it was alleged, he had come from Barnsley, in Yorkshire, to commit. Amongst other circumstances, there was the evidence of a woman, who proved that the prisoner had left Barnsley on a particular day, at such an hour as would give him just time to be at Melton Mowbray at the time the murder was committed. That, of course, was not the only circumstance in the case; but, connected with others, it was, in his opinion, an important link and made an impression on his mind. The man was convicted and sentenced to death. He (Lord Wynford) had just retired to his chamber, when the attorney for the prisoner came to him, and informed him that the old woman who had deposed to the prisoner's leaving Barnsley, was right as to the day but had mistaken the week. In proof of this, the books of his employers were afterwards produced which showed that the prisoner was at his work at Barnsley on the day which the woman had described as that of his leaving. Under those circumstances, all he could do was to respite the prisoner, and recommend him to his Majesty for an unconditional pardon. Now, that was a case in which the aid of counsel would have been of great importance in addressing the jury for a prisoner, and cases in many respects similar were of frequent occurrence. In the evidence to which the noble and learned Lord had referred, there was a very extraordinary fact stated, namely, that during the shrievalty of a gentleman of the name of Wilde, no less than five persons were saved from being executed upon their several convictions by that gentleman, whose active researches proved that they were innocent of the crimes of which they had been found guilty. And could it be said, that justice was done, when in the course of one year five innocent persons were condemned in the city of Lon- don alone? He therefore, for one, was of opinion, that a full defence ought to be permitted to be made by counsel; but at the same time he must say, that additional means for ad ministering justice ought at once to be re sorted to. His noble and learned Friend, however, seemed to be of opinion that the present was a very good time to commence the experiment, and perhaps it was, for the calendars throughout the whole country were, he was happy to say, extremely light. Nevertheless he should have been very glad that additional Judges had been appointed, and still more glad if the other House of Legislature would consent to pro vide money to enable poor prisoners to employ and have Counsel for their defence. Lord Denman said, it must be quite clear to their Lordships that his noble and learned Friend had merely been arguing in favour of the principle of the Bill; every part of which would be subject to examination in Committee, provided that principle was adopted by their Lordships. He was anxious to take an early opportunity of offering his humble thanks to his noble and learned Friend for the very able and completely satisfactory manner in which he had argued this important question. He agreed also with his second noble and learned Friend, that it was essential to carry this principle into practical execution, for the honour of the laws, for the due ad ministration of justice, for the realization of truth, and for the protection of innocence. His Majesty's Government had always taken a strong interest in behalf of this measure, and in the course of this Session it might have fallen to him (Lord Denham) to propose this great alteration in the law, if he had not felt that it would have been very inconvenient for a person in his situation to propose such a change without being confident that it would be adopted by the Legislature. This case was placed upon a true and triumphant principle, when it was said that it was essentially necessary for the advancement and establishment of truth. It was perfectly obvious that no one reason could be given for denying this privilege to an accused man, which would not apply with much greater force to parties in civil cases. He was tempted on this occasion to refer their Lordships to one of their standing orders, in which the principle of this mea sure was stated in the best and most authoritative manner. By that order their Lordships would perceive that this House, being the highest Court in the Kingdom, and ready to set an example of justice to all other Courts, had ordered, for the due and more impartial administration of justice, that not only copies should be given to all the parties accused before it of all documents and papers connected with the accusation, but also that counsel should be assigned to defend such parties if they desire it. The standing orders 147 said:—" This the Lords do, because they wish that justice shall be done in all cases that come before them, criminal as well as civil, and because they think that no legal help can protect the guilty, and God defend that the innocent should suffer from the want of it." That was the opinion of the Lords in an order made 200 years ago. Their Lordships would remember what took place at the trial of Lord Lovat, who was accused of high treason in the year 1745, at which time counsel were denied to those impeached by the Commons. The words of Lord Lovat must, he thought, carry conviction to every mind capable of it. It was a most remarkable expression —the expression of a man of eighty years of age. He thus appealed to the House of Lords—" If you do not allow me counsel it is impossible for me to make any defence by reason of my infirmity. I do not see; I do not hear. I come up to the bar at the hazard of my life. I have fainted several times. I, therefore, ask assistance, and if you do not allow me counsel, and such aid as is necessary, it will be impossible for me to make any defence at all." This description of that infirm old Lord might be the description of every prisoner called upon to answer for his life. In addition to the authorities quoted by his noble and learned friend, he would refer to that of Sir Robert Shower, who, in reference to some arguments on the other side of the question, said, "In the name of God, what harm can accrue to the public in general, or to any person in particular, if in cases of state treason counsel should be allowed to the accused? What rule of justice can warrant the denial of counsel in that case, when, in the case of his stealing a halfpenny, he is able to plead by himself or an advocate." But it was not necessary for him to dwell upon authorities. The difficulty which he always felt upon the subject was, that he could never meet with any serious argument against the principle of allowing counsel to prisoners. He had had frequent com- munications and conversations with many learned persons who differed from him upon the subject, but he had never found any one who did not admit that principle justified a contrary practice to that which existed. Then was it to be allowed that the law of so great a country as this should be administered with such an admission, that there was something hanging about it which the most ingenious men were not able to justify upon principle? As to the difficulty that would attend the adoption of the principle, there was no state of things so bad from which something good might not result; nor was it possible to avoid incur ring some inconvenience, even by a bad state of things being set right. But the question, and the only question, was this—what did the principle require—what was it that justice and truth demanded at the hands of the Legislature? Before he quitted the subject he hoped he might be allowed to refer to the authority of his late lamented friend Sir James Mackintosh, who in 1824 brought the matter under the consideration of the House of Commons and made a most convincing speech in favour of the principle contained in the present measure. He wished also to be allowed to state that his noble and learned friend Lord Brougham, who last year thought it right to institute a full inquiry into the matter before a Committee of the House, in deference to the scruples which were entertained by some high authorities, had authorised him to state that he was of opinion that the principle of the Bill now proposed ought to be adopted. Lord Brougham became a convert to the opinion that counsel ought to be heard in the de fence of prisoners in the year 1826. Previous to that time he had entertained doubts upon the point, but further inquiry and more mature consideration operated to remove those doubts, and in 1826 he spoke in favour of. a measure of this description in the other House of Parliament. He was not disposed to attach much weight or importance, as far as regarded the discussion of this question, to any evidence that might have been given of improper convictions, ft was quite enough for the principle of this Bill that the proper administration of justice required it. At the same time it must not be for gotten that two weighty authorities, Sir Frederick Pollock and Mr. Alderman Harmer, in their evidence before the Lords' Committee, both stated that they had known instances where innocent men had been convicted, and actually executed; and similar evidence was given by Mr. Wilde, and also by his hon. and learned Friend Mr. Hill, before their Lordships' Committee last year. Of the various assertions he had heard urged against the principle of the Bill, he thought none were entitled to weight. In the first place it was said that the aid of counsel would rather do harm than good to prisoners. Now, the object of the Bill was not to do good to prisoners, generally speaking; but to take care that the innocent man should not be punished as the guilty, and that he should not run the risk of being so punished. The persons to be benefited by the Bill were those who were accused without being guilty. He entirely differed from those who thought that it would afford additional facilities of escape to the guilty. He did not think the guilty man more likely to escape in consequence of a full light being thrown upon all the facts and all the circumstances of the case. He denied also, that the permission to prisoner's counsel to speak, would prevent any case from being fully, calmly, and dispassionately heard, considered and determined. On the other hand, he thought that the existing system was far more calculated to excite warm and irritated feelings, and to interfere with that calmness which ought to prevail in every court of justice; for he had seen many instances where counsel were pinioned by the existing practice, where great excitement prevailed at the bar, and many disagreeable personal contentions arose, which could never take place if the counsel were al lowed to speak in the defence of the prisoner. With respect to the assertion of time, he believed that the proposed alteration of the law would not lead to any thing like the great consumption of time that was supposed. In one particular, indeed, he thought it would lead to a general saving of time, namely, in the cross-examination of witnesses, out of which the prisoner's counsel were now compelled to make their whole defence. This cross-examination would be greatly shortened if the counsel were at liberty to speak. Another argument which had been much pressed, and was thought to be entitled to great weight, was the supposed incompetency of the chairman of quarter sessions to take trials when they had to make observations to the jury on what had taken place, and to distinguish between the sophistical and the just and true arguments advanced by counsel. He felt convinced that there could be no difficulty upon that head. There might, perhaps, be some question as to the propriety of putting the judge always in the situation of replying to the counsel for the prisoner. That, however, appeared to him to be a matter of detail, which would most properly be considered in Committee. It could not affect the principle of the Bill. In circumstantial cases, which almost always lasted a long time—where much prejudice existed—where the judge was placed in possession of all the evidence before the trial commenced, in such cases he could not conceive that any one fit to fill the situation of judge, would deny that he was desirous of hearing what an able and ingenious counsel could say on the side of the prisoner. The situation of the judge on such occasions, was one in which no man ought to be placed. The task of at tending to the circumstances as detailed in the indictment, the duty of attending to the evidence and taking notes of it as it was adduced before him at the trial, and at the same time forming an opinion which he was to carry through the whole case, of how the evidence in all its bearings affected the guilt or innocence of the prisoner—this was more than any man ought to be called upon to do. The judges were not anxious to express any opinion whatever with respect to the pre sent Bill, but it had naturally been a topic of conversation amongst then), and without presuming to intimate in the most distant manner what their feeling upon the subject was, he could not refrain from stating what fell from one of his learned Brothers on a late occasion. "It is probable," said he, "that the fate of the man who is now before me depends upon the view I take of the case and upon the manner in which I submit it to the jury. It may be a long, contradictory, and difficult case. Yet I have no time to form an opinion or to reason upon the matter at all, except during the short interval whilst witnesses are undergoing the ceremony of taking the oath." The position of a judge so situated is most painful. After alluding to the mockery of calling upon an ignorant man at the close of a long trial to defend himself, the noble and learned Lord concluded by stating that to the principle of the Bill, as far as it went to take away the existing prohibition on counsel to address the jury on behalf of prisoners, he was decidedly favourable. All beyond that appeared to him to be matter of de tail, and demand further consideration before it were determined.

Lord Abinger

had great doubts as to the policy of the measure, and was afraid of their Lordships becoming too much in love with theory. He was therefore, unwilling to give an opinion, lest it should be a hasty one, respecting the Bill. But on the best consideration which he had been able to give it, he must admit the principle of the proposition;—at the same time he thought their Lordships ought to make it as an experiment, rather than as a permanent measure. Entertaining these opinions, he did not offer any objection to the second reading of the Bill; but there were parts of it in which he did not concur—for instance, he did not think that in all cases the prisoner should have the right of reply by Counsel. These, how ever, were matters which could be gone into only in the Committee.

The Lord Chancellor, feeling that he could add nothing to what had already been so well and so ably said by his noble and learned Friends upon the subject, rose merely to express his entire ac quiescence, in the principle of the Bill, as expressed in the first clause. He hoped that the stigma which had so long attached to the practice of our criminal courts would now be removed, and that in those cases in which it was most important that the truth should be ascertained, the ordinary means of obtaining it would be sup plied. His noble and learned Friend (Lyndhurst) had stated, that he had felt it his duty to bring the subject under the consideration of the House, because no Member of the King's Government appeared disposed to do so. He begged to assure their Lordships that he should not have failed to bring the matter forward; though he now rejoiced that he had not done so sooner, inasmuch as that the delay had obtained for the measure the powerful aid of his noble and learned Friend.

Bill read a second time.

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