§ Mr. George Lamb presented a petition from certain Jurymen, setting forth,
§ "That the petitioners, fully sensible of the invaluable privilege of Jury Trials, and desirous of seeing them as complete as human institutions will admit, feel it their duty to draw the attention of the House to the restrictions imposed on the prisoner's counsel, which they humbly conceive have strong claims to a legislative remedy; with every disposition to decide justly, the petitioners, have found by experience, in the course of their attendances as Jurymen, at the Old Bailey; that the opening statement for the prosecution too frequently leaves an impres- 181 sion more unfavourable to the prisoner at the bar than the evidence of itself could have produced; and it has always sounded harsh to the petitioners to hear it announced from the bench, that the counsel, to whom the prisoner has committed his defence, cannot be permitted to address the jury in his behalf, nor reply to the charges which have, or have not, been substantiated by the witnesses; the petitioners have felt their situation peculiarly painful and embarrassing when the prisoner's faculties, perhaps surprised by such an intimation, are too much absorbed in the difficulties of his unhappy circumstances to admit of an effort towards his own justification against the statements of the prosecutor's counsel, often unintentionally aggravated through zeal or misconception; and it is purely with a view to the attainment of impartial justice, that the petitioners humbly submit to the serious consideration of the House, the expediency of allowing every accused person the full benefit of counsel, as in cases of Misdemeanor, and according to the practice of the Civil Courts."
§ After the petition had been read, and ordered to be printed,
§ Mr. George Lamb
rose to call the attention of the House to the motion of which he had given notice. The bill which he now meant to move for leave to introduce, although not a novelty in that House, yet did not entirely resemble that which had been introduced at different times by the hon. member for Galway. However, it was not on account of any difference of opinion with his hon. friend, that he now stood in his shoes. On the contrary, it was entirely with his concurrence; indeed at his particular request, that he now came forward with the present measure. His hon. friend had so dexterous a method of getting bills through the House, that he had, perhaps, done wrong in taking this bill out of his hands; but, as he had undertaken the office of piloting it through the House, he would shortly explain the points in which it differed from the bill formerly introduced by his hon. friend The principal points of difference were these. His hon. friend confined the allowance of counsel to such prisoners as were indicted for capital crimes: he extended it to all prisoners whatsoever. His hon. friend had in his printed bill inserted a clause, authorising the judge to assign counsel to the prisoner as in cases of treason. He (Mr. L.) made no assignment of counsel 182 by the judge necessary, but gave the prisoner the same liberty to select counsel to speak for him, as he now possessed in cases of misdemeanor and of civil action. He was well aware, that, in proposing these alterations in our criminal system, he was running counter to all the prejudices of the profession to which he had formerly the honour to belong; but he proposed them for the consideration of the House, because he thought that the ends of criminal justice could not well be attained without them. He knew, that though the profession of the law were in general hostile to the change which he wished to make, there were many strong opinions in favour of it, given by those who had long belonged to it. Every unlearned person who attended our criminal courts was struck by the unfairness of our present practice. The first comment which they made upon it was—"Why do you not give the prisoner the same liberty to address the jury by counsel that you give to his prosecutor?" And, in all the discussions which he had heard between learned and unlearned persons on this point, it some how or other happened, that the unlearned person always obtained the better of the argument.
Having now state what made against his proposition, he would proceed to state what made for it. In the first place, he had the opinion of Mr. Justice Blackstone in his favour, and, in the next, he had the ancient practice of the constitution itself. He should dwell shortly on this branch of the subject; for though it was dry, it was too important to be passed over entirely in silence. Mr. Justice Blackstone, in commenting upon the rule, that no counsel shall be allowed a prisoner upon his trial upon the general issue in any capital crime, observes that it is not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass? Nor, indeed, is it, strictly speaking, a part of our ancient law, for the Mirrour, having observed the necessity of counsel in civil suits, 'who knew how to forward and defend the cause by the rules of law and customs of the realm,' immediately subjoins, and more necessary are they for defence upon indictments and appeals of felony, than upon other venial causes.'" He then contended that, till the reign of Edward 1st., 183 counsel were allowed to speak in behalf of the prisoner on all cases of private wrong.—The hon. gentleman then proceeded to observe, that, until a late period, the right of employing, counsel, and other privileges, in cases of high treason, belonged only to the Crown: but, since the passing of the treason acts, the Crown gave up that particular right, which it had previously retained for its protection, and the accused was allowed to have the benefit of counsel. Still, however, in cases of felony, the private prosecutor only had the right to call in counsel to his aid: that advantage was denied to the party prosecuted. This was a strange anomaly, when the Crown had given up a similar right. What he called upon the House to do at present was, to fill up a gap between the proceedings in cases of high treason and of felony, and to allow generally the employment of counsel. Looking to those sages of the law who advocated the existing system, he found them, in his opinion, more in favour of its abolition, in consequence of the absurd reasons which they adduced in its behalf, than those who actually opposed the practice. The reason given by lord Coke in support of the withholding the aid of counsel in cases of high treason, and which was afterwards defended by other lawyers, was clearly laid down by the earl of Nottingham in the case of lord Cornwallis. The argument was, "that the fouler the crime is, the clearer and plainer the proof ought to be. No other good reason can be given for the law's refusing counsel where life is concerned, than that the evidence on which the individual is sought to be condemned must be so perfectly decisive that all the counsel in the world cannot gainsay it." This undoubtedly was the best reason that could be assigned for the practice. Still, however, he would say, let counsel be employed on each side: let them advance all that they could for and against the accused: let the testimony be sifted and examined thoroughly; and, after all this, if the evidence be strong and clear—if it were of the description alluded to by lord Nottingham, the result would just be the same as if no counsel had been employed, and the public satisfaction would be much greater. The doctrine laid down on the trial of Cooke, the regicide, was similar to that which he had just adverted to. The Judge there observed—"That which I have to say is this, that the evidence is so clear that every one who hears it under- 184 stands it. It is called evidence, because it is evident. It is one reason why counsel shall not be employed in matters of fact, that the matter is so plain that every one, both jury and commissioners, who hear it, must be convinced that the prisoner is justly convicted." However specious and feasible such a doctrine might be, it was undoubtedly fraught with hardship.
But, it was said, that the judge was always counsel for the defendant. He thought it was most unfortunate, that lord Coke, or any other sage of the law, should have pronounced such a doctrine. The Court could not be counsel for the prisoner; it was the duty of the Court to act equally and impartially for all parties brought before it. On this point he would refer to a speech made by Mr. Whitiocke, during the time of the Commonwealth, in the course of a debate which took place on a motion to exclude lawyers from sitting in that House in all time to come. The name of the person who brought forward that most horrible motion, if he might be allowed so to term it was not given; but it appeared that many observations had been made in reprobation of the practice of not allowing counsel to speak for prisoners, and Mr. Whitlocke thus expressed himself; "the worthy gentleman was pleased to say one thing with some weight, that lawyers were permitted to counsel and plead for men, in matters touching their estates and liberties; but, in the greatest matters of all others concerning a man's life and posterity, lawyers were not permitted to plead for their clients I confess I cannot answer this objection, that, for a trespass of a sixpence value, a man may have a counsellor to plead for him, but where his life and posterity are concerned, he is not admitted this privilege and help of lawyers. A law to reform this, I think, would be just, and give right to the people. What is said in defence or excuse of this custom is, that the judges are of counsel for the prisoners, and are to see that they have no wrong. And, are they not to take the same care of all causes that shall be tried before them?" What was there, if the principle of allowing counsel in other cases was allowed, which made felony a special exception? He should wish to see the maxim excluded from all our law books, which considered* See Parl. History, vol. 3. p. 1343.185 the judge as counsel for prisoners. The adoption of such a principle, our criminal records had proved to be productive of great mischief. It led also to a diversity of practice, according to the individual leanings or views of judges. Our criminal records contained illustrations of these effects. There was reported in the books, a case of a woman charged with child murder. The counsel for the prosecution had forgotten, until after the case was closed, to put the question as to the sex of the child; the judge, acting upon the maxim, that he was counsel for the prisoner, would not allow the question to be subsequently put, and as the sex of the child was stated in the indictment, the prisoner was acquitted, though there was no doubt of her guilt. There was another case on record, where the judge, disregarding the maxim, had put a question for the further elucidation of evidence, when the prisoner immediately told the judge, "That if he had been, as the law contemplated, his counsel, he would not have put such a question." In both instances the situation of the judge was a most painful one. In Dyer's reports it was laid down, "that the Court are to be counsel for the prisoner, so far as to see that all things, on all sides, are conducted with impartiality." It was the duty of the judge to take care that nothing but-public justice was administered; and, in his opinion, the judge who showed all the anxiety and astuteness which became a hired counsel, was not performing his duty properly. If, however, the judge actually wished to become the prisoner's counsel, he had not the means. What information had the judge to guide him, except the depositions of the prosecutor? Many circumstances, known only to the prisoner, might be most material to his defence, if counsel were employed for him, of which the judge must be entirely ignorant. The judge would receive no information out of court, and he must be entirely unacquainted with various points which, in cross-examination, might be of great importance to the accused party. How, then, could the judge be counsel for the prisoner? He would admit, for the sake of argument, that an impartial judge might be of more benefit to the prisoner than a retained counsel; but they ought not to forget, that the impartiality of the judge might also militate against the prisoner. In the case of Udall, a puritan Minister, which occurred in the reign of 186 Elizabeth, the prisoner asked "How many of the jury am I, by law, permitted to challenge?" The answer of the judge was "ay, I am not to tell you that; I sit to judge, and not to give you counsel."* In sir John Perrot's case, which happened in the same reign, a similar answer was given. Therefore, if he admitted for a moment, that there were times when the judge was preferable to a counsel, he must also observe that there had been times—very different indeed from the present, but which might return—when prisoners were obliged to depend on the tender mercies of such men as chief justice Jeffries, judge Page, or Mr. justice Alybone. He had hitherto only applied himself to answer such statements as he found in books in defence of this practice.
He would now come to the immediate question itself. His learned friends no doubt would observe, "All you have stated is very well; but what practical evilhas resulted from the present system?" Here he begged to say, that there was one point which appeared to him to be of no little importance. He did not consider it enough that a system of criminal law should be really just and impartial; it ought to be fully impressed on the minds of the people that it was so. [Hear]. In coming to this part of the question, he felt himself a little embarrassed, because if he referred to recent cases, it might be supposed that he intended to throw some slur on the administration of criminal justice; which, however, he would say, notwithstanding this defect was, as it ought to be, the admiration of the world. The cases, however, which he would select, were those in which the prisoner laboured under difficulties, and was exposed to injustice, of the most palpable nature. What was the object of allowing persons to defend themselves? Was it not that, as far as possible, their interests should be protected? But was that the case, when men of inferior mind and talent were opposed to skilful and able advocates? At the time of the passing of the treason bills, the attorney-general admitted that they were prepared to give the accused an opportunity, so far as was possible, of being defended by men equal in ability to those by whom they were prosecuted. This could not formerly be done, under the common circumstances, of every-day occurrence, of mere age infirmity, idiocy, insanity or ignor-* Howell's State Trials, vol. 1, p. 1278.187 ance of the prisoner on trial. Provision was now made on that point in cases of high treason; but, with regard to felony, the defect still remained. What did lord Lovatt say on this very point? "If you do not allow me counsel, my lords, it is impossible for me to make any defence, by reason of my infirmity. I do not see, I do not hear. I came up to the bar at the hazard of my life. I have fainted several times, I have been up so early, ever since four o'clock this morning. I therefore ask for assistance, and if you do not allow me counsel, or such aid as is necessary, it will be impossible for me to make any defence at all." He alluded particularly to this case because, though lord Lovatt's guilt was evident, yet the managers of the impeachment felt so strongly the injustice which was done, that, by the hands of sir W. Young, the chief manager, a bill was brought into parliament to allow counsel to plead for persons impeached by that House; which was not previously the case. After that, he found it said by writers of some note, that the proceedings against the old, the double traitor, lord Lovatt, clearly as his guilt was manifested, were rather harsh. In cases where offence was committed under circumstances of insanity, was it fitting to call on the individual to state how it originated, and how it acted on him, with respect to the immediate matter of charge? But it was scarcely so bad to refuse the aid of counsel where there was actual insanity, as where that species of infirmity existed which, though it impaired his faculties, did not prevent the accused from pleading. This situation was well described by Mr. Peere Williams, after the trial of lord Winton, when he observed, "I have nothing else to say of this unhappy lord, who is not insane enough to be exempt from the operation of the law, nor sane enough to do himself service in any respect whatever." The ill effects of compelling individuals to construct and deliver their own defence were observable, on many occasions. The efforts of a man, under an accusation which drew the public attention towards him, if at all ingenious, had a fearful effect on the weak and uninformed. However guilty the individual might be, his boldness became the theme of gratulation amongst those who mistook a hardened carriage for true bravery. One case of this kind, and a case of much celebrity, had recently occurred. He alluded to the conduct of the ruffian, Thurtell, who had disgra- 188 ced the county of Hertford by the murder of his friend, and who had caused so many people to disgrace themselves by the stupid admiration they had bestowed on his defence [Hear, hear]. He would ask whether that culprit, pending his trial, was not very much buoyed up, not with the hope of an acquittal, but with the idea that the silly tirade which he had written would be heard with interest and would live when he had paid the penalty of his crime. He hoped to die with some degree of éclat; and he set off against the crime of murder, the reflection that his exit would be talked of throughout the country. This was, therefore, to institute a criterion for the appreciation of criminal conduct, different from that which ought to exist. It was to cause the measure of guilt to be estimated, not according to the quantum of proof, but according to the ability of the prisoner. There was one question which he did not think would be urged substantially and by itself on this occasion; and yet he believed, from conversations which he had on this subject, that it weighed considerably with some persons in their view of the law. He alluded to the effect which an alteration in the law would have as to the occupation of the time of the judges. He believed the line of Pope, that "Hungry judges soon their sentence sign," never was justified by any occurrence. But if he were told that a saving of time of the judges was the only reason why this practice should be continued, those who held such a doctrine might be accused of favouring such an opinion. It was said, that the observations of a counsel, in defence of a prisoner capitally charged, would go for nothing. That might be: but he could safely say, that while he practised at the bar, he had known many cases, in which, if the aid of counsel had been allowed, the verdict would have been much more satisfactory to the public. He had laid on their table a petition, in which several persons who were frequently engaged as jurors in criminal cases, staled, that they would feel much more confident in giving their verdicts if prisoners were allowed the full benefit of counsel, instead of restricting the employment of learning, ingenuity, and talent, to the prosecuting parties. Could any counsel however candid, when stating a case avoid stretching the matter a little too far, or refrain entirely from drawing any unfair inference? Let it be recollected that, in cases of circumstantial 189 evidence, there always remained a bare possibility that the individual might be innocent. That circumstance had always a great effect on the public mind, and he would, by the employment of' counsel for the accused—by giving him the greatest latitude of defence—reduce that possibility to the smallest point. As the custom now was, justice he repeated could not be done satisfactorily. The public in general, and those who witnessed criminal trials, would not be satisfied, unless the accused party had the privilege of defending himself by his counsel. Much might be said about the danger of stirring and exciting the passions by the force of eloquence; but, he asked, was not the danger the same in cases of misdemeanor? Many charges of misdemeanor consigned a man to infamy, and cast a blot on his posterity. In cases of that kind did not the witnesses, the counsel, and the judges, feel as much as they possibly could do if the charge were one affecting life and death? But it appeared that, in such cases, the judges, counsel, and witnesses, restrained their feelings and passions. If it were so, why should they not act with equal discretion when the charge was capital? He could not see any evil that was likely to result from allowing counsel to plead for persons charged with felony. On the contrary, he conceived it would be an improvement in the administration of justice which would be most satisfactory to the public; and therefore he should conclude with moving, "That leave be given to bring in a bill to allow persons prosecuted for felony to defend by counsel, as in cases of misdemeanor."
§ Mr. North
said, that he always felt the administration of criminal justice in this country to be one of its noblest and proudest boasts; and if there was any particular department in that code which pre-eminently attracted admiration, it was the department to which the hon. and learned gentleman who introduced the subject had referred. Had he to discuss that subject with any enlightened foreigner, he should have felt it necessary to advert to topics which were unnecessary in addressing himself to the hon. and learned gentleman and to that House. He should have dwelt upon that guarded caution to obtain an impartial and indifferent tribunal; he should have proved to him the anxious care which characterised the law, to exclude, by the severest scrutiny, the possible operation, of any undue or pre-con- 190 ceived impressions. Above all, he would call upon him to observe that presiding spirit of humanity, as active as it was benevolent, which from the bench itself, when the life of the accused was risked, so frequently tended to rebuke the severity of the law. The question, in order to be properly discussed, ought to have been put on the right ground. It should be recollected, that first, by law made sacred by usage, the counsel for the prisoner had now the power not alone of speaking on all legal questions that might arise, but of examining and cross-examining witnesses. It was also the duty—a duty never over-looked—of the judge to take care, that no evidence, not bearing on the case, but which from its tendency might prove prejudicial to the prisoner, should be received—that every part of the evidence was noted down, and that strict vigilance was observed to treasure up every thing that operated in favour of the accused. He should also remind the hon. and learned gentleman, that it was besides, the duty of the judge to sum up the whole evidence most impartially, and to tell the jury, that if one amongst them, even the most scrupulous, felt any doubt, the benefit of that doubt they were bound to give to the prisoner. But, said the hon. and learned mover, there was something more due to humanity. Counsel should be allowed to make a speech on evidence for the prisoner. He doubted whether the hon. and learned gentleman had fully and fairly considered the proposition. It was defended on the practice of such a privilege being allowed to the prosecutor. But, he felt justified in stating, that as the law now stood, no abuse was the result of such a practice. The counsel for the prosecution felt himself bound by an obligation stronger than law itself—the obligation of honour and mercy—a deference to the court, and a regard to the opinions of his brother barristers, to offer a plain, colourless statement of the case, without a single attempt to aggravate. He knew it was presumed, that the counsel for the prisoner would feel an equal restraint. It might be so, but he apprehended the result would be different. He did believe, that under such a permission, an ingenious counsel would feel it his duty to exert every faculty for his client—that he would make an animated appeal to the passions of the jury; and, where he could, not persuade, he would endeavour to affect. To suppose that 191 counsel would feel restraint was possible. It might be a question of minor morals, or of larger morals. That, however, was a point of casuistry which he should not then discuss; but his impression was, that the contrary would be the case. Let the House for a moment anticipate what would be the case if the hon. and learned gentleman's proposition were converted into law. Was it to be supposed, if the counsel for the prosecution had made the simplest and least prejudiced address conceivable to the jury, that his learned brother, who would tread closely upon the heels of the other in his address, would abstain from urging every consideration, whether justly or not, that might tell for his unfortunate client? Was it to be supposed, that because the former had confined himself to a plain and uncoloured statement of facts, the latter would not decorate his speech with every ornament of fancy that was calculated to bewilder the jury and lead them away from the real merits of the case. It was impossible that such should not be the case. He might be told that it ought not to be the case; but he was predicating what would be, and not what ought to be. He was asserting that which the infirmity of human nature rendered inevitable. The proposition, therefore, of the hon. and learned gentleman was this—to change the sober floor of a court of justice into as arena for two ingenious combatants to display their strength and agility in; the stake for which they played being nothing less than the life of man.
But, a still further consequence would follow from the adoption of the hon. and learned gentleman's proposition. It was this—that: if the legislature gave to the prisoner the benefit of counsel, they might run a great risk of diminishing the vigilance of the judge. There could be but one opinion as to the integrity and watchfulness with which all the learned judges at present presided over the administration of the criminal law in this country. But, if the judge, who according to the present mode of criminal trial, felt it his duty to attend to every thing that could make an impression favourable to the prisoner, found that that duty had devolved to others, was there not some risk, that whatever his sense of the responsibility that would still rest upon him, and however that sense might struggle with the indolence of human nature, there would exist numerous cases in which his vigi- 192 lance would relax, in which he would shrink from the burthen which at present he bore with alacrity; and in which therefore the person charged with a criminal offence, instead of having for his counsel (as according to the present practice) the judge on the bench, would have for his counsel merely a paid advocate?—But, it was contended by the hon. and learned mover, that, under such circumstances, the advocate would of course do justice to the prisoner. No doubt he would, to the full extent of his powers. But, might not those powers be much inferior in quality and extent to the powers of the judge on the bench? And, would what would fall from such an advocate go to the jury-box with the weight that must invariably accompany every observation proceeding from the judge on the bench? However sound the advocate's arguments, however undeniable his inferences, yet every thing that he uttered would be listened to by the jury with doubt and hesitation; because they would know that he was a paid advocate, speaking from his brief.
But that was not all. It was not merely that what came from a counsel for the prisoner would not have equal weight in the jury-box with what might come from the judge; the proposed alteration would be attended with other results. In nine cases out of ten, the judge would feel himself called upon, after an able and powerful advocate had been heard on behalf of the prisoner, to task his faculties to the uttermost, in order to remove the prejudices which the address of that advocate was calculated to make on the minds of the jury. In doing this, it was possible that the judge might insensibly become the advocate for the prosecution. If the false impression which the prisoner's counsel had endeavoured to create was a strong one, the, judge would, to counteract it, naturally argue strenuously. Now, it was difficult to argue strenuously without being led to argue warmly. The judge would press his argument further, perhaps, than strict justice demanded; and thus the jury would leave the box with an impression made upon their minds by the judge, exactly the reverse of that which, in the present state of the administration of the criminal law, they would receive from him The proposed alteration would, therefore turn out to be completely opposite in its tendency to that which was hoped from it, as far as it regarded the prisoner's claims to humanity and due attention to his interests.
193 But, there were other and still more important considerations connected with the equal administration of justice, which must have great weight on every reasonable mind, in inducing a resistance to the proposed alteration. He had already adverted to that rule in the English law, which required that the jury should be unanimous in their verdict. There might be many objections to that rule. He was not then called upon to defend it. He had a right to assume, that its expediency was unquestioned. He had a right to argue upon the rule as a settled principle of law. The hon. and learned gentleman did not propose to make any change in that rule. Now, the judge was required to state to the jury, that if they had any reasonable ground of doubt as to the guilt of the prisoner, the latter was entitled to the benefit of that doubt in their verdict. It was probable, that there never was a jury, in the number of which might not be found some one individual of tender and scrupulous conscience; some one individual probably of feebler intellect than his associates. We had seen the plainest cases submitted to the consideration of juries, the circumstances of which, nevertheless, made an impression on the mind of some individual of the jury, such as he had described, which impression that individual was pleased to call doubt. Now, was it desirable in the practice of our criminal courts to add to that original evil—to add to the doubt frequently felt by some weaker-minded member of the jury, the additional doubt that would be generated by a skilful advocate, employing one, two, or three hours to enlarge the little speck on the disk of understanding of such a person, until it eclipsed the whole of his reason? Was that to be wished for? Would it be calculated to advance the interests of justice? He should be told, perhaps, that such a triumph would serve to show the professional skill of the man by whom it was achieved. True, it would be the victory of the advocate; but it would be a victory gained at the expense of every consideration of justice and national benefit.
But, there was an argument still behind, which appeared to him to be of infinitely greater importance than any which he had hitherto advanced in hostility to the hon. and learned gentleman's proposition. It was an argument, the force of which he thought it was impossible for the hon. and learned gentleman himself to deny. The 194 proposed change was not called for by the voice of the people. He would not then stop to inquire, whether the passage which the hon. and learned gentleman had quoted from Mr. Justice Blackstone, bore the exact meaning which the hon. and learned gentleman imputed to it. He rather thought that that passage had reference to what might be considered a strict rule of law, rather than to the practice in the administration of criminal justice. But, supposing that that passage ought really to be interpreted as the hon, and learned gentleman interpreted it, what was the natural inference? Mr. Justice Blackstone's book had, for many years, been in every body's hands. It did not merely lie on the shelves of lawyers, it was in the hands of all country gentlemen, and indeed of individuals of every class and description; and yet, notwithstanding the work containing the passage in question had been so long under the eyes of every member of the community, it was only now discovered, that the innovation proposed to be introduced by the hon. and learned gentleman ought to be made. The voice of the people had been altogether silent. This silence proved, that the measure was unnecessary, for it was wholly uncalled for. He begged the hon. and learned gentleman's pardon. He had brought to the House a test of the opinion of the people of England on this subject. He had presented to the House a petition upon it. A single petition! Were the people of England in the habit of expressing their opinions or wishes upon a great public question by a single petition? The people of England, at the present moment interested themselves deeply in the question of ameliorating the condition of slaves in the West-Indies. Did they express that interest in a single petition? Why the table of that House would have been loaded—they would have been overwhelmed with petitions on this subject, if the opinion of the people of England had been in accordance with that of the hon. and learned gentleman. Their silence was the best testimony that could be adduced against the proposition. To that silence he confidently appealed in support of his opposition to the motion. It was true that two or three dilettanti lawyers, and two or three dilettanti philosophers might wish for such a change as that proposed; but the question was, whether the sense of the people at large was in its favour? Whenever a grievance was prov- 195 ed really to exist, he trusted that he should be as ready as any man to concur in taking that grievance into consideration; but he must first be assured, that it was considered a grievance; and the only way in which he could receive that assurance would be by a general complaint of it. He was not one of those who would go seeking for grievances, mining into the earth, and making a geological survey, for the purpose of bringing them to light, when at the very time he might walk securely and firmly on the surface, and breathe and enjoy the fresh air unmolestedly.
As to the cases which the hon. and learned gentleman had cited, they were all impeachments for high treason; in which this defect, as the hon. and learned gentleman termed it, had been remedied, and respecting which, therefore, the interference of the legislature was unnecessary. The hon. and learned gentleman had not quoted a single case of a capital felony, in which alone the complaint of the present state of the law could fairly be made. But, the hon, and learned gentleman said, that there were cases in which there might be so perfect a balance between innocence and guilt, and so much difficulty in ascertaining which scale preponderated, that it was actually essential to the due administration of justice, that the prisoner should have counsel; and he had instanced the case of Patch, in confirmation of that opinion. It was very true. It was perfectly true. There were cases in which the most acute understanding would find it extremely difficult, after the strictest survey of all the circumstances adduced in evidence, to determine on the question of guilt or innocence. In such cases the hon. and learned gentleman maintained, that the prisoner ought to receive the aid of counsel; and he asked how any one could answer his argument in support of that proposition? The way in which he (Mr. North) would answer it was, by telling the hon. and learned gentleman—what, however, that hon. and learned gentleman knew perfectly well—that in all such cases of extreme difficulty, the law gave the prisoner a shield, more extensive and powerful, than any counsel could throw over him. It told the jury, that they must not trifle with the life of a prisoner; that they must weigh all the circumstances adduced, both against him and in his favour; and that if they entertained any reasonable doubt with respect to his guilt, they were bound to acquit him. So that in the only cases in which, according 196 to the argument of the hon. and learned gentleman, the aid of a counsel would be useful to a prisoner, that aid was rendered useless by his receiving the much more efficient aid of the law. It was singular that the hon. and learned gentleman should have resorted in his argument to a recent case, which had unfortunately excited so much public attention, as a case which strongly manifested the benefit which a prisoner would derive from counsel. The circumstances of that case must be fresh in the recollection of the House. No man could deny, the hon. and learned gentleman admitted, the great talents of Thurtell on that occasion. Did he (Mr. N.) say too much when he said, that that prisoner would be very fortunate who should meet with a counsel possessing as much talent as was evinced by the prisoner in the case to which he alluded? As to information respecting the merits of the case, who could have shown more information than that individual? Was it possible that any difference could have resulted, if the speech made by the prisoner at the bar on that occasion had been made by a counsel? The hon. and learned gentleman, however, by an inversion of reasoning which he (Mr. N.) could not comprehend, maintained, that that was the very reason why the prisoner's case ought to have been in the hands of counsel.
He would now beg leave to say a few words on the general question of the expediency of making such alterations as that now proposed, where they were not called for by general opinion. The forms of the administration of justice, which they were all in the habit of loving and admiring, were certain positive institutions. If a question were put to him in his closet, or by a stranger, whether in his opinion there were no better forms of administering justice, he was not prepared to say that, however good the English forms, there might not be others equally good, or perhaps better. But, was he for that reason suddenly to abandon a system so long endeared to his affections, that admiration of it had become by habit what some would perhaps call a prejudice, or a passion? He might be told, for instance, that it would be better if a Jury were composed of ten persons, for that there was magic in decimal arithmetic; or that there was magic in an odd number, and therefore that a Jury should be composed of thirteen persons. But was he therefore 197 to consent to change the present number of an English Jury? By no means. For then a Jury would cease to be that to which Englishmen had long looked with veneration, and on which they were accustomed to rely for the protection of their lives and property. "Oh but," the hon. and learned gentleman would exclaim, "your argument is applicable only to a general change in the administration of the law. What I want to get rid of is an anomaly; and all that I call on the House to do is, to transfer to the criminal law the rule that at present prevails in the civil law." But he begged to observe, that the cases were exceedingly different. Was the hon. and learned gentleman prepared to go the whole length of his argument, and transfer all the usages of the civil or the criminal law? But he was sure the good sense of the hon. and learned gentleman would never admit that it was advisable to assimilate the criminal and the civil codes of jurisprudence. If he did what would be the consequence? The rights of property were frequently for twenty or thirty years the subject of litigation in the court of Chancery: they were then, perhaps, transferred to other jurisdictions; to a court of appeal, or perhaps to a trial by jury. Was it desirable that an inquiry into the guilt or innocence of a prisoner should last equally long and go through as many stages? He was sure the hon. and learned gentleman would not go this length; and he was therefore bound to acknowledge, that there was no fair analogy between the two cases. It was not the importance of the stake, but the nature of the inquiry, which required a difference of proceeding. As with regard to civil cases, their complexity frequently rendered it necessary to subject them to a long course of legal investigation, so with regard to criminal cases, it was the fairest plan to decide questions affecting even the lives of human beings in a few hours.
These were some of the considerations which induced him to oppose the hon. and learned gentleman's proposition, even at so early a period as the motion for leave to bring in a bill. He repeated, that if any real grievance existed, he would be as forward as any man to propose a remedy for it, or to join with any one in devising such a remedy. But this grievance had been detected only within the last year or two. To show that a remedy for it was generally desired, the hon. and learned 198 gentleman had produced only one petition; and that was a petition from a few gentlemen accustomed to sit as jurors at the Old Bailey. Under these circumstances, be (Mr. N.) had a right to say, that the grievance was not felt, as it had not been proclaimed by the voice of the people. Of this also he was perfectly convinced, that the proposed alteration would cause much greater evils than it would remove; that it. would be injurious to the prisoner and detrimental to the cause of justice generally.
§ Sir James Mackintosh
said, he had listened with great pleasure to the hon. and learned gentleman who had just stood in that House the severe test of his previous reputation. If he wished for a general vindication of the administration of criminal justice in this country, he would desire no more able and eloquent vindicator than the hon. and learned gentleman. But that was not the question which had been brought under the consideration of the House by his hon. and learned friend, the member for Dungarvon. No man could more highly praise the general administration of the criminal law than his hon. and learned friend had done. He wished the hon. and learned gentleman had favoured them by stating a little more forcibly the argument with the imaginury foreigner with whom he had held his imaginary dialogue on the English laws. The hon. and learned gentleman's dialogue was not like those masterly dialogues of old, in which each of the speakers maintained his opinions with all the force of which they weresusccptible. It was rather like those dialogues between A. and B. in which B. was evidently introduced for the purpose of giving an easy and inglorious victory to it. If he (sir J. M.) were to put into the mouth of an intelligent foreigner any objections, not to the administration of our criminal laws generally, for in praise of that no one would join more cordially than himself but to this particular branch of that administration, he would make him appeal to the natural principles of equity, he would make him appeal to the codes of all civilized nations, codes comprising the moral feelings and judgment of the human race. He boldly asked the hon. and learned gentleman to point out a single nation, ancient or modern, in which a prisoner brought to trial was refused the privilege of defending himself, either in person or by counsel, as he might seem to think fit? This pri- 199 vilege was granted in Scotland, an instance of different laws from those of England, although under the same government; it was granted in the United States, an instance of similar laws to those of England, although under a different government. But, was that all? Let the rest of the criminal law of England be looked at. The hon. and learned gentleman had gone very unnecessarily for his analogy to the court of Chancery; He had forgotten a much nearer analogy. It was this—that in all criminal cases, except for felony, counsel were allowed to speak for the prisoner. That analogy the hon. and learned gentleman had forgotten; and had gone to the court of Chancery, which had no relation to the subject; judiciously overlooking the laws in the immediate neighbourhood of his subject, respecting treason and misdemeanor. A well-informed foreigner would, as he had already observed, adduce the natural sense of equity in mankind generally, the state of the law in every other civilized nation, and the state of every other part of the law of England, in support of his objections to the anomaly complained of. Such a foreigner would throw on the shoulders of the hon. and learned gentleman the office—and it was one which would require the utmost exertion of his talents—of removing the objections to the destruction of that anomaly. If he (sir J. M.) had to speak to an enlightened foreigner on the subject, although he could not vindicate, he would extenuate the existing practice. In the first place, he would say, that it was not an invention of modern times; and, on the other hand, that it did not belong to the ancient and venerable frame of our laws. It had been declared by sir John Hawles, who was solicitor-general to William 3rd, that the origin of the practice was the poverty of the persons tried; but that the usage thus originating had put on the colour of law. It might be said, that sir John Hawles was a weak lawyer; but if, to the authority of this weak solicitor-general, he was able to add the authority of a chief justice who could not be accused of being a dilettanti lawyer, or a dilettanti philosopher, enthusiastic in the defence of philanthropy or humanity, his argument would, he thought, be pretty strongly established. That chief justice was Jefferies. On the trial of Thomas Rosewell, a Dissenting clergyman, for high treason, in 1684, which was one of the most atrocious cases on record, judge 200 Jefferies, on summing up, confessed to the jury, that "he thought it a hard case that a man should have counsel to defend himself for a twopenny trespass, and his witnesses be examined upon oath? but if he stole, committed murder or felony—nay, high treason; where life, estate, honour, and all were concerned, that he should neither have counsel, nor have his witnesses examined upon oath."* This assertion by judge Jefferies was a very sound one in support of his hon. and learned friend's proposition; for, in quickness of understanding, and at times when he was neither insane, intoxicated, nor influenced by party, no man could excel this," the most atrocious and infamous judge, "as Roger North called him," that ever presided in a court. "This person, of vigorous understanding, not likely to be favourable to a person accused, especially to a Non-conformist minister, on a trial for high treason, when it was not his usage to sprinkle rose-water on the party charged, allowed that to be a hardship, which the hon. and learned gentleman declared had been found to be one only two or three years ago by a few dilettanti lawyers and philosophers. He perfectly concurred with the hon. and learned gentleman in his general praise of the administration of the criminal law. But it had not always been what it was at present. It had stains resulting from the practices of barbarous times, which, one by one, had been gradually washed away. On every instance of the removal of a stain, however, arguments had been used, as specious as those which had been urged by the hon. and learned gentleman. And let him remind that hon. and learned gentleman (for he was sure that the hon. and learned gentleman was well aware of the fact), that at the time when some of the practical improvements were introduced into the administration of the criminal law, witnesses on behalf of the prisoner were not sworn; the consequences of which were, that they could not be prosecuted for perjury, and that no adequate reliance could be placed upon their testimony. In fact, it was a complete mockery, under such circumstances, to allow the prisoner to bring witnesses at all; the more especially as they attended spontaneously, and could not be compelled to attend. Such was the practice which was coeval with that which his hon.* Howell's State Trials, vol. 10, p. 267.201 and learned friend now wished to abolish. The one had been removed; and now the only great remaining blot was that which his hon. and learned friend, in his ingenious, temperate, and candid speech—and a more ingenious, temperate, and candid speech had never been made—proposed to get rid of. It was wonderful that the slow progress of reform had been so operative as to leave so little to do; but that was no argument for leaving that little undone. There were several other absurdities at the period to which he had been alluding. The jury were punishable if they gave a false verdict against the king; but were not punishable if they gave a false verdict against the prisoner. This was another of the usages coeval with that which it was now proposed to abolish. Did the recollection of it add any value or dignity to the actual grievance?In the year 1696, an act of parliament assigned counsel to persons charged with high treason. Now, whoever would take the trouble of reading the debates on that question, would find every material objection which had just been urged by the hon. and learned gentleman, urged against that proposition; as far as the rude and unadorned outline of the discussion contained in the imperfect reports of that period could convey it. The preamble of the act of 1696 ran—"Whereas it is expedient that persons charged with high treason should have the means of making a full and sufficient defence," &c. Now, the same preamble, with the substitution of one word, would do for the bill for leave to bring in which his hon. and learned friend had moved; and it was, in his opinion, a good test to try the argument against the proposition. That preamble would then run thus:—'* Whereas it is expedient that persons charged with felony should have the means of making a full and sufficient defence. "&c. The permission to prisoners charged with high treason to be defended by counsel was granted by parliament after the subject had been agitated for six or seven sessions, but without the voice of the people having been raised in its favour; for not a single petition had been presented respecting it from Berwick to the Land's End. He should be glad if the hon. and learned gentleman would tell him what difference there was between the merit of that measure and of the present proposition. The privilege of being defended by counsel was not more necessary in the one case than in the other; but the 202 denial of that privilege was equally unjust in both cases. It was said, that to give the aid of counsel to the prisoner would be injurious to him. But, if injurious to the prisoner in the case of felony, why would it not be injurious in cases of high treason? He was inclined to think that., in many respects, the aid of counsel was more necessary in cases of felony than in cases of high treason. In cases of high treason the prisoners were, generally speaking, persons in a certain rank of life—enlightened men who were capable of entering into their own defence—but, in matters of felony, the cases were different; there the prisoners generally were low, ignorant, humble persons, persons altogether ignorant of the rules of evidence and of the principles of law, and who, if they took upon themselves the burthen of their own defence, were sure to involve themselves in utter ruin and destruction. And here he could not help stopping to express his surprise at a misconception of the hon. and learned gentleman with respect to the late trial at Hertford. He agreed entirely with the hon. and learned gentleman in condemnation of the ill-founded sympathy which was expressed in the cause of the guilty ruffian who was the object of that trial. The hon. and learned member did not seem to observe the purpose for which his hon. and learned friend quoted that case. He (sir J. M.) would say, that if he before had any doubt as to the guilt of that prisoner, his defence would satisfy him of that guilt; the defence of the prisoner seemed to have been made for theatrical display, and out of that love of effect which clung to that unfortunate man to the last moment of his life, which overcame all solicitude for safety, and all terrors of death. The object of calling for the aid of counsel was to obtain a fair balance of talents on the side of the prosecution and of the defence. That was an object essential to the safety of parties, and to the' administration of justice; and in those cases where the parties have the aid of counsel to plead their cause, that balance of talent was pretty evenly made. But it was not so in cases of felony. There the chance of an acquittal depended upon the degree of talent which the prisoner possessed; there an innocent man, without talents, without address, without so much ability as would enable him to make that innocence clear and manifest to a jury, might be convicted; whilst the plausible, crafty, clever delin- 203 quent, by the force of his ingenuity and his talents, might hope to escape the punishment clue to his crime. With respect to the principle of the measure, the statute of William, which repealed the exclusion of counsel in cases of high treason, recognized the principle. It was said, that to extend that principle to cases of felony would be injurious. He begged to know how? How could it be injurious to the cause of justice to give an advocate to the prisoner? How could a practice be injurious in cases of felony, which was allowed, admired, and valued in cases of high treason? If it were injurious in one case, it surely would be injurious in the other. The hon. and learned member had said, that if counsel, in cases of felony, were allowed to address the jury on behalf of the prisoner, it would lead to a deviation from the calm, temperate, and dignified character of the courts; that the counsel for the prosecution would have the cold and sober tone of impartiality, which at present he held, inflamed in the heat of dispute; and, roused by the feelings of professional rivalship and hope, he would address the jury in his turn, and deal in unmeasured language; and that thus the court would be turned into an arena for animated and angry discussion. Now, he would suppose that, in some degree, that effect would follow the admission of counsel to plead for the prisoner: it was, he confessed, the first time that he had heard it contended for, that the full exercise of learning and talent was not the best mode of reaching the truth. The hon. and learned gentleman seemed to think, that if this latitude were given—if the prisoner had the full benefit of an able advocate in a case where he wanted him most—in a case where he stood on trial for his life—that then the vigilance of the judge would be roused, and that to the injury of the prisoner. Now, if the hon, and learned gentleman were sound on this point, it followed as a consequence, that the more narrow, the more tyrannical the law, the more secure would be the prisoner, the more mild and considerate the judge. The hon. and learned gentleman, however, should recollect, that the spirit of the English constitution—the genius of the English law—ran in a different direction- that the safety of the prisoner (in cases different from those under consideration) was not left to the casual feelings of a judge, but was supported by the established maxims of the British law 204 —founded upon the principles of reason and of justice. It was that spirit of the law of England that gave to the prisoner the right of challenge—that, in cases of treason, gave him a copy of the indictment—that in so many cases gave to him advantages and protection. The hon. and learned gentleman seemed to think that his hon. and learned friend had said, that the opinion of the people was against the measure. His hon. and learned friend did not say so. He said, that the opinion of the majority of that profession, to which, until that night, be thought his hon. and learned friend had still belonged, was not in favour of the measure. But, whatever was the real opinion of the people on the subject—if, indeed, they had formed any opinion at all upon it—he did not think it ought solely to influence the House. He always expressed, as he felt, respect for the opinion of the people. He always inclined to give to their opinions the force they deserved; but, of all subjects upon which public opinion was expressed, he thought that, with respect to the rules and forms of law, the people were not exactly the most competent tribunal to decide upon those nice distinctions: there was one broad principle, however, which, if fairly put before the people of England, their sense of justice, their tender regard for the safety of an accused man would incline them to sanction; namely, that a person standing on trial for his life, should have a full opportunity of making his defence; should have the liberty of retaining an advocate to plead for him, when he found himself not able to plead for himself. As to the bar, it might, perhaps, be said, with truth, that the majority of that learned profession were opposed to the measure which was now under the consideration of the House. He would not even mention the idea, that any feeling of personal interest, one way or the other, was likely to influence the opinion of that body on the subject: he dismissed that notion as altogether foolish and unworthy: but there was a feeling which he feared might have powerfully influenced the members of the profession—the strong effect of habit—the repugnance to changelong established rules—the partiality they naturally felt for those forms of practice which they followed from the earliest days of their professional lives, and for that system under which they had so long acted, and under which they had earned both fortune and character—the 205 hon. and learned gentleman concluded by observing, that his hon. and learned friend, in bringing forward this measure, deserved the thanks and the gratitude of the public. It was a measure which, if carried into effect, would be productive of great public good; but his hon. and learned friend, in pressing that measure, was sure to meet with the powerful opposition of one party, without being sure of the support, or even the thanks of any one else. Still, as sir Edward Coke had observed, whoever sees any thing which requires correction, and points it out for the examination of the government or the legislature, does but pay the debt which every man owes, not to the profession of the law only, but to his country.
admitted, that this was indeed no light and trivial question, but one of the deepest and gravest importance; but he, nevertheless, could not concur in the opinions delivered by his hon. and learned friends, on the other side. He could not support a proposition which had for its object an alteration of the established practice on trials for felony; because it was his opinion, that that alteration would not be serviceable, but injurious. The observations of his hon. and learned friend, the member for Knares-borough, with respect to the effects of professional habit, had put him on his guard; and he doubted his own opinions, from a fear that they were tinctured with that prejudice. His hon. and learned friend had gone back to the early history of the law, and had shown the defective state in which it once stood; and yet the House would do well to observe, that, great as those defects were, the then state of the law had its supporters against any innovation, the same as it had at this day. It should be recollected that, until the reign of queen Anne, no party accused of felony could call witnesses to be examined for the defence on oath; and, strange as it might appear, the old practice was vindicated in opposition to the new one introduced under the statute, on the grounds of humanity and tenderness to the prisoner. It was said then, that the accused had a great advantage in not being able to examine sworn witnesses, because the witnesses, not being bound by oath, could give their evidence more at large than the witnesses for the prosecution, whose oaths restrained their testimony. But the better opinion prevailed, that as the witnesses for the prosecution deposed 206 under the responsibility of an oath, the judge in his charge was obliged to give more consideration to their testimony, than to the statements of unsworn and irresponsible witnesses on the other side. The hon. and learned member was not so happy in his authorities as he seemed to suppose, because there was none of all which he had cited which bore immediately upon the question. The remarks of judge Jefferies were not founded on the state of the law as it now existed, but upon the state of the law at that period; and with respect to lord Nottingham, to whose authority his hon. and learned friend had also referred, he would oppose the same objection. At that time, a party accused of felony could have no counsel to assist him in the trial. Counsel might stay in the court, but apart from the prisoner, with whom they could have no communication. They were not allowed to put any question, or to suggest any doubtful point of law: but if the prisoner, likely to be a weak unlettered man, could suggest any doubt in matter of law, the court determined first if the question of law should be entertained, and then assigned counsel to argue it. But, if his hon. and learned friend would depend upon authorities, he would call to his recollection one of the very highest which could be named by any lawyer in criminal jurisdiction, a judge, who, by a very singular phrase, had been, styled the Magna Charta of criminal law—he alluded to judge Foster, who stated, that he had heard all the arguments upon this very subject—and admitted that they were very plausible, but had come to a decision the opposite to that of the hon. and learned member—He would invite the attention of the House to the state of the law as it now stood. Nothing could be conceived more impartial, cool, and considerate than the proceedings in courts of criminal justice. There could be no course more entirely favourable to the development of the truth. The greatest order, no extraordinary excitement, temperate, candid inquiry, by parties almost wholly disinterested- these were the aspects which were presented in a criminal trial. They should pause before they hastily undertook to subvert so excellent an order of things—before they consented to put to hazard the excellence of a long-tried system, for the sake of pursuing a chimerical good. But, was it the advantage of the prisoner which his hon. and learned friend sought? At present, the judge was 207 of counsel for the accused in trials for felony. But, if the counsel for the defence were to make a speech full of inflammation and exaggeration, which must inevitably happen, then it would be replied upon by the judge in his charge, and he would thus become of counsel against the prisoner. Was this the advantage which they would give the prisoner? But, this was not all. If a speech were allowed for the defence, there must be another in reply; not perhaps in all cases, but generally—at any rate too frequently not to be considered in the argument. The case would then stand as in Nisi Prius practice, where the odds were always in favour of the plaintiff. His counsel had the first speech and the last; and the effects of the last impressions were such, that he had seen cases in which they could not be erased, even by the charge of the judge directed to that very object. Was it to be desired, then, that the defect of our civil, should be introduced into our criminal system? If the counsel for the prisoner spoke, the reply would probably be fatal to his client: if his counsel did not speak, he would by his silence pronounce a verdict of guilty. As to the investigation of truth, he admitted that the arguments on the other side were specious and plausible; it was difficult to meet them; and, in order to do so, it was necessary to see how the system would work. At present, the prosecutor detailed his whole evidence fairly and plainly before the court: the prisoner then called his witnesses, and the whole was calmly and dispassionately commented upon by the judge: but, the moment a counsel for the prisoner was allowed to make a speech, this question would be introduced: a barrister must ask himself "shall I call witnesses? if I do, I must run the risk of the effect of a reply." Counsel in civil cases had often on this point to exercise a most painful discretion; they had to decide the nice point, whether the weight of the testimony they could adduce would be equal to the weight of the reply which it would occasion? In a great variety of cases, he himself had felt it his duty, in the exercise of that discretion, to refuse to call witnesses, even in opposition to the earnest wishes of his client, because he was well aware of the extreme value of having the last word, and of avoiding an able reply from the opposite side. What, then, was proposed by the hon. mover? To adopt a system, in fact, inconsistent with, and opposing 208 a strong barrier to the discovery of truth. At present, the counsel for prisoners called witnesses without danger of the kind to which he had referred; but, change the course of proceeding—admit the speeches of counsel, and immediately a painful discretion was introduced, and counsel must refrain from calling or bringing forward even important testimony, lest it should be followed by a reply, and a result fatal to the prisoner.—Another point deserved consideration.—The counsel of the greatest knowledge, experience, and talent Were retained in the first instance by the prosecutor; so that the prisoner would be obliged to make his choice from younger men, perhapsofequal ability, but not of equal skill and experience. Thus, the trial of truth would be converted into a war of wit, ingenuity and eloquence, and the balance, as far as knowledge, habit, and self-possession were concerned, would be decidedly against the prisoner. Reference had been made to the change in the law of treason, where a copy of the indictment must be sent to the prisoner so many days before trial, and a list of witnesses furnished, out of which the prosecuting counsel could not travel. If one part of this system were to be adopted, why not the whole? Did the hon. mover wish to see a trial for felony conducted like a trial for treason? Did he wish to see the same eagerness, energy, and even passion displayed? He did not want a stronger argument against the motion than that adduced in its favour founded upon the statute of William the third. In trials for treason popular feelings were commonly excited; and, to overcome those feelings on the one side or on the other, the counsel were obliged to make extraordinary exertions. When this motion had been made two or three years ago by the hon. member for Galway, he (the attorney-general) had been captivated by the proposition in the first instance; but, upon reflection, and knowing that whatever was done upon this subject could not be undone, that the House could never retrace its steps, he had found reason to change his opinion, and to arrive at the conclusion, that the proposal would be injurious to the administration of criminal justice. If he could be convinced by any arguments, that the cause of truth and justice would be advanced, he would abandon at once all opposition on the score of inconvenience. Inconvenience and delay were at all times minor considerations, 209 where the investigation of truth, and the general administration of justice were involved. Although it was not usual to oppose the introduction of bills in the first instance, yet, as that now proposed was a measure of principle, and not of detail, he felt justified in resisting it in this early stage.
said, he was not surprised at the line of argument pursued by the hon. and learned attorney-general, who had commented at large on the excellence of the present system, and had contended, that justice was now administered in a manner so satisfactory, that no change could be an improvement. In this respect, the hon. and learned gentleman had pursued a prudent course, and he had with equal judgment abandoned all arguments founded upon general principles; because he well knew, that all these general principles were against him; when a prisoner was allowed counsel incases of misdemeanor, he had still greater need of his assistance in cases where his life was at hazard. The real and only question was this:—how shall the criminal law be so administered as best to secure justice to all the parties concerned? The question was not, how a criminal on his trial shall most easily escape; but how innocence can be most certain of acquittal, and how guilt can be most sure of conviction. The attorney-general, in the course of his speech, had depreciated the law as it stood in one respect for the sake of shewing that the change suggested would be productive of inconvenience. He had taught the House to believe that, in misdemeanors, much disadvantage arose from the allowance of counsel, and that so far from the interests of justice being promoted by it, its ends were impeded. But was not this statement contrary to all experience? Did not every body know and feel, that the opportunity of defence was of the utmost importance; and did it not always meet with the full approbation of the by-stand-ders? Was it not a constant complaint, on the part of those who witnessed the proceedings of our criminal courts, that the same opportunity was not given in felony? Did not impartial people, in such cases, always exclaim, "We have heard the speech on one side of the question; but who can tell what a counsel in his favour could have made out, if he had been permitted to speak?" Such, too, was not merely the feeling of the ignorant and vulgar, but of the well educated and en- 210 lightened. The hon. and learned attorney-general having dwelt solely upon the practical benefits of the existing methods, it became important to look a little closer into those practical benefits. It was said, in the first place, that the judge was the counsel for the prisoner. In point of fact, was he so? Could he be so? It was impossible. It might be his duty to point out a flaw in the indictment, or to resist the introduction of improper evidence; but it was not the duty of the judge to exercise his talents and ingenuity in putting the case in a point of view favourable to the criminal. Take the case of Patch, which had been already referred to. He well remembered that celebrated trial, and he also remembered that, when the leading counsel for the prosecution had concluded his address, the observation made upon it was, "that is one of his hanging speeches. Not that he had tried to rouse and play upon the passions of the jury—that would not have been permitted; on the contrary it was a most cool and connected statement of facts. It was a case of circumstantial evidence merely, and the proof of the guilt of the prisoner depended upon the skilful dove-tailing of the various circumstances, so as to render the case a whole and consistent piece of ingenuity. The jury were led step by step to a persuasion of the guilt of the party accused; hence it was called a" hanging speech, "and the result confirmed the opinion. On the other hand, the prisoner, whose life was at stake, who had never addressed a court before, was called upon to meet this able statement without the slightest preparation; he was to follow an ingenious counsel through an address of an hour and twenty minutes, to point out its inconsistencies, to unravel the web, to avail himself of doubts, and to convince the jury of his innocence. Not one prisoner in five thousand could be competent to such an undertaking. Now, he maintained that this was manifest injustice. Equal justice was not dealt out to the accused and to the accuser; the whole weight of experience, talents, eloquence, was against him, and he was left to defend his life by his own miserable resources. This was neither justice in theory, nor justice in practice, and he believed that it often happened, that persons accused, but innocent, were convicted on account of the absence of counsel to state their cases. On the other hand, he was persuaded that not a few of the guilty were acquitted merely 211 from the compassion of the jury; who felt that if he had been allowed counsel, he might have been able to offer at least a plausible defence. At the moment they delivered their verdict, the jurymen were well persuaded of the guilt of the prisoner. He was for the conviction of the guilty and for the acquittal of the innocent, and for that system of law and practice which would best secure those ends. Much had been said about the injury that would be done the unfortunate prisoner, if he were permitted to have counsel to speak in his behalf; and, among other things, it was said, that all the heat and irritation of a Nisi Prius trial would be introduced into our courts of criminal jurisprudence; but, the hon. and learned gentleman had totally failed in shewing, or rather he had not ventured to attempt to shew, in opposition to what had been said by his hon, and learned friend, the member for Knares-borough, that the display of talent and ingenuity was less favourable to the development of truth than the present course, with the bare meagre statement of an advocate upon one side only. At the Old Bailey and at the Assizes, he had often viewed with indignation a poor trembling untutored wretch called upon for his defence, whose reply was—"My lord I leave it to my counsel." The judge then proceeded to inform him, that counsel could not be suffered to speak for him, and that it was therefore the proper time for him to address the court and jury. This intelligence was, perhaps, followed by a few unintelligible unconnected sentences, or perhaps by some miserable written statement, which was not of the slightest utility to the accused. If what the hon. and learned attorney-general had advanced were correct—if the evil of counsel in cases of misdemeanor were so great, the hon. and learned gentleman was bound to bring in a bill to remedy it; the employment of counsel for prisoners under any charge, if he was consistent, ought to be prevented.—He would now bring the cases of misdemeanor and felony into juxtaposition, that the contrast might be properly understood. An hon. and learned gentleman had referred to the explanations he should be able to afford an enlightened foreigner on the criminal law; and he (Dr. L.) would like this enlightened foreigner to be taken to the Middlesex Sessions, and to the Old Bailey Sessions, that he might gain a little practical knowledge. First, at the Middlesex 212 Sessions he would shew him a man under trial for a misdemeanor—say; for an attempt to commit a rape. The enlightened foreigner would there hear long and able speeches on both sides, but especially, he might note the speech for the defence, which, however, he (Dr. L.) would suppose not to avail, and that the man was convicted, and sentenced to fourteen years' transportation. Next he would walk with the same enlightened foreigner to the Old Bailey, that he might witness the trial of a man for his life who had actually committed a rape. What would that enlightened foreigner say, upon being informed, that the man, if found guilty, would be hanged, but that no counsel was allowed him, although a speech was heard on the part of the prosecution? "Why was the prisoner allowed no counsel" he might reasonably ask, and the reply must be, "Because he will be executed if the verdict be against him." With such information, in what way could the enlightened foreigner sufficiently express his admiration of English jurisprudence? The only remark he could make might be, that as rape was a very horrid crime, he supposed the judge and jury were anxious to hang the offender out of the way as little delay as possible.—The hon. and learned gentleman had cautioned the House to beware how it interfered with the practical administration of justice. It might be dangerous; but he was convinced that there was nothing true in theory that was false in practice. In France (though he hardly liked, on this question, to refer to the administration of justice in France) the great Editor, if he might so call him, of the Code Napoleon, had provided, not only that counsel should be allowed to the prisoner, but that that counsel should have the last word; for, if the counsel for the prosecution replied, the adverse counsel had the right to answer him. He mentioned, this fact, not so much in the way of contrast, as to shew the value that was put upon the last word in criminal cases. He did not enter into the question of the difference of expense—for however great it might be, he did not think it ought to be any impediment to the attainment of soim-portant an advantage. He believed that there was no country in the world where the administration of justice was conducted upon so parsimonious a principle as in Great Britain. There were only twelve judges, a recorder, and a common ser- 213 jeant, to clear all the jails of the country year after year. He maintained, that they were paid with a niggardly hand—that the judges were comparatively starved; and that their offices were not worth having [hear, hear]. They were not promoted until they were far advanced in life; and to gain the miserable pittance of a pension, they were compelled to serve until their infirmities rendered the duty of the station too burthen some for their strength. He hoped, ere long, to see a spirit of greater liberality displayed, when the chief justiceship of the court of Common Pleas would be rendered so profitable, that his hon. and learned friend opposite need no longer refuse accepting it. He complimented his hon. and learned friend, the member for Knaresborough, upon the great efforts which he had made for reforming and humanizing the criminal code, and concluded with saying, that he should give his cordial support to the motion.
said, it was strange that the question should be now started for the first time; for there was no proposal of this alteration in the report of the committee on Criminal laws, though that report had been got up under the inspection of the hon. and learned member for Knaresborough. If the change were so desirable, it was extremely remarkable that not a syllable was said upon the subject in any report ever made to that House. The legal authorities, too, were all decidedly against the employment of counsel by prisoners in cases of felony. Sir M. Hale, sir M. Foster, and sir W. Blackstone were all in opposition to the course; at least in none of them was there any complaint that counsel were excluded. With regard to counsel for the prosecution, they never made any attempt to excite the passions of the jury, or if they did, it was, of course, reprobated by the presiding judge; so that, in truth, counsel on the other side could reply to nothing. For his own part, he would rather do away with the employment of counsel altogether, even for the prosecution, than consent to the change proposed in the bill, which the hon. member wished to introduce. After the best consideration he had been able to give the subject, he felt convinced, that no good would result from the extension of the practice of allowing counsel to plead for defendants. On the contrary, he believed that much mischief would ensue. He was 214 therefore desirous, that the rule should be left in its present state; and the grounds upon which he framed the conscientious and impartial opinion he had now expressed were—that neither did he know any practical injustice that it occasioned, nor had any writer upon the criminal law of England, with whose works he was acquainted, treated the present system as a defect in that law.
§ Mr. Denman
regretted, that he had not been in the House at an earlier period of the debate, and that he had consequently been prevented from hearing the speeches which had been delivered in the course of it. And more particularly was he sorry, that he had not heard the speech of that learned gentleman who had brought so much reputation with him into the House, a reputation the growth of which during that learned gentleman's practice at the Irish bar, he had watched with great pleasure, and upon no occasion had he been more gratified at its increase, than when, about a year ago, he had gained so much honour by his successful exertions in behalf of the liberty of the subject upon a state prosecution. It was somewhat singular that the learned gentleman should have been followed in his argument by his two learned friends (the Attorney and Solicitor General), both of whom were probably indebted for the honours they now enjoyed to the ability they had displayed in defending persons who were the objects of prosecution for high treason. He had thought, that his learned friends would, in their speeches, have furnished convincing arguments in favour of the proposed measure; but he could not regret that they had not done so, since their own examples gave a much more powerful proof of the efficacy and the necessity of the aid of counsel being extended to prisoners, than even their arguments could have afforded. It seemed, however, that, as cases of treason were excepted from the general practice, this was held to be a reason why counsel should not be allowed in other criminal cases. He thought that, besides the weakness of the reasoning, such a system was far from respectful to the judges by whom those other cases were to be tried. It had been said by one of his learned friends, that persons charged with felony should not be allowed to defend themselves by counsel, because this would have the effect of getting rid of that tranquillity and composure with which such 215 trials were now conducted. He thought his learned friend had forgotten a little the practice that prevailed in the courts where such trials were held when he was in the habit of attending them. He (Mr. D.), on the contrary, found, that a very considerable degree of warmth was excited by those very difficulties which the present system occasioned. The counsel for a prisoner being now debarred from any opportunity of stating directly to the jury such facts and arguments as the course of the investigation suggested, were compelled to do so by means of raising objections and disputing points, in which they introduced the observations they had to make to the jury, by addressing them to the court. An instance of this occurred at the Irish bar, where the counsel for the prisoner was pursuing this course, but in so pointed a manner, that the judge said to him—"Sir, are you addressing the court or the jury?" to which the counsel replied—"I am addressing the court, my lord, but I hope the jury will hear me." Although, therefore, counsel had no other than this circuitous mode of discharging what they must think was their duty to their clients, he believed they did so with no less warmth than if they were permitted to address themselves directly to the jury. The object on both sides was always to obtain a verdict. In opening a case, it was true that the counsel for the prosecution seldom, if ever, sought to state any thing more unfavourable to the prisoner than was absolutely necessary; there seemed, generally, to be about them an air of reluctance to make out the case against him; but he denied that this forbearance and composure continued beyond the opening. He had often seen great warmth displayed by counsel in trials for life and death, upon points which, to mere by-standers, would seem almost indifferent. The preservation of the client on the one hand, and their professional reputation on the other, excited them to efforts which were totally incompatible with the composure they maintained in the earlier stage of the trial, and which had been so much insisted on. The question, therefore, seemed to be, whether the inconveniences and the obvious injustice of the present system should continue, or whether the discovery of the truth should be allowed to take its chance in a contest of equal talent, by which the discussion would be carried on Upon 216 both sides. He denied the supposition which had been ventured upon, that all the talent would be on the side of the Crown. He believed that it would be always found equally divided; and he was sure that the bar would be materially improved, if the privilege of addressing the jury on the behalf of prisoners were granted.—With respect to the objection on the ground of the waste of time which it would occasion to the judges, which had not been put very strongly, he should not, and he thought he ought not to give any other answer, than that if there was time for execution, there ought also to be "time for investigating fully the guilt of the parties accused. All minor considerations should be sacrificed to the larger and more important question of the best mode of coming at the truth. [The hon. and learned gentleman here hesitated a few moments, and apologized to the House, by saying, that he had been in town only a few hours, and was altogether unprepared for the discussion. He had risen, rather from his anxiety to bear testimony as a witness on this subject, than to address to the House the arguments which might be urged upon it.] Presiding, as it was often his duty to do, in one of his majesty's courts of criminal justice, he could state from personal experience, that it would, in all cases, be a great relief to the judge to be addressed by counsel on both sides. As to the judge being counsel for the prisoner, although if he were to be counsel at all it was better that he should be so on that side, yet it was manifestly incompatible with the duties of the judge, and particularly with that laborious one of taking down the evidence, and seeing that the facts alleged were duly proved. The matters which it would be the province of a counsel to state, would be rather for the consideration of the jury than of the judge, who would have to leave the consideration to them. It was therefore impossible for a judge to act as counsel for the prisoner, unless he should take such a view of the case, as an able advocate retained for the prisoner would take; and this it was obviously impossible for a judge to do.—Nothing was more common than to meet propositions like that now before the House with an assertion, that the existing practice was found to go on well: but, in the present instance, to say this was to say nothing; for the course recommended to be adopted had not yet 217 been tried. There had been no experience of its usefulness; but the principle was undeniable. Nothing could be a greater injustice than to call upon a defendant at the bar, in a season of great agitation and alarm, for his defence, when it was clear, that all the preparations he could have been enabled to make for that defence must have been made before he was aware of the exact nature of the facts which would be proved against him. Any man must be less able to set forth his defence (if he were at all competent to the task) at such a moment than at any other; and he (Mr. D.) was at a loss to guess upon what ground it could be argued, that, under such disadvantages, a man ought in fairness to be deprived of the aid of counsel, while it was possessed by the prosecutor, who stood so much less in need of it. Suppose a prisoner, capitally indicted, should be mute, or lunatic, or an idiot, upon what grounds ought he to be deprived of that aid which was afforded to persons charged with much smaller offences? Was it not more fair that a man should not be called upon to cope with the difficulties of his situation, under all the agitation which must attend the knowledge that his life was at stake? Was it not more reasonable that the task of meeting such difficulties should be intrusted to one who was animated with the consciousness that he was in the performance of a useful and honourable duty? He knew it was the practice to indulge very much in common-place eulogiums on the tenderness and humanity of the laws of England towards prisoners; but, he did not see that they applied to this part of the jurisprudence. A few years ago prisoners were not allowed counsel at all, and were compelled to cross-examine witnesses, if they were cross-examined at all, by themselves. They could not even have the assistance of counsel to argue a point of law, unless they first took the objection, ignorant as they must necessarily be of such subjects, and the judge saw fit to order an argument upon it. Let them not, then, be told of the tenderness of the law, nor that the certainty of the prisoner's guilt was such, that the assistance of an advocate would lessen the chances they at present had of escaping. It would be easy to quote cases in which innocent persons had been convicted. Perhaps that of Elizabeth Canning was the most remarkable. She accused a gipsy, and 218 another woman of having carried her away and confined and ill treated her. They were tried for the offence; they had no counsel; were capitally convicted and ordered for execution, but were afterwards respited. A great degree of popular feeling was excited on both sides. Elizabeth Canning was afterwards tried for perjury; she had counsel, but she was found guilty and transported; Here, then, was an instance in which an innocent party, having no defender, was found guilty, and where, notwithstanding the aid of counsel for the defence, the guilty party was convicted. He might appeal to honourable gentlemen present for the particulars of cases which had occurred within the last two years, in which persons had been convicted whose innocence had afterwards been made apparent. In October last, two men were convicted of a highway robbery, who were proved afterwards to have been wholly unconnected with the crime they were charged to have committed. In that case, the right hon. the secretary of state ordered, not merely a commutation of their sentence, but had relieved them from all the consequences of their conviction, and granted them a free pardon. How often similar circumstances might have occurred which had not terminated so fortunately, no man could say. The questions to be tried, it should be remembered, were not always merely of ay or no; but frequently some of the nicest speculations (temporary derangement for example) were presented to the consideration of the jury. It had been said by his learned friend, the attorney-general, that if any exaggeration should be made by counsel, the judge never failed to rectify it to the jury. Why, for what other purpose did the judge sit? To suppose that he would hear any such statements without carefully pointing out their inaccuracy, would be to libel the judges, and to cast upon them an imputation which the whole of their demeanour contradicted. He concluded by declaring it to be his firm conviction, that every honest magistrate, every righteous judge, would be glad to hear counsel on both sides state to the jury the facts upon which they were called on to pronounce; and, for this reason it was, that he should give the motion his most cordial support.
§ Mr. R. Martin
said, that if one case could be quoted of an innocent man having been condemned, wanting a counsel, 219 who would have been acquitted had he had a counsel, he thought that case would be sufficient to justify the House in now allowing prisoners to have counsel. It was of the last importance that no innocent man should suffer. The hon. member then referred to the well-known case of the two Perreaus, and contended that the repeated visits Perreau made to the banker, whom he asked to lend him money on Mr. Adair's bond, as well as the assertion of Mrs. Rudd, that she had given him the bond, were proofs of his innocence; and that an acute counsel would have known how to explain the circumstance of his saying he knew it was Mr. Adair's signature, so much to his advantage, that he would have been acquitted. Here, then, was a case, in which, if the prisoner had had a counsel he would have been acquitted. He had the whole particulars of this case in a magazine which he had in his pocket by chance, and which was as good authority as any law book whatever. Then, as to the judge being counsel for the prisoner, he would remind the House of the man who had committed a murder in the lobby of that House. He meant Bellingham. Affidavits were made, that this man had been insane for a long time; and evidence was offered to prove it if the trial were only postponed to some later day, but a day before the commission expired; and this delay was refused. Here was a case, then, in which, having only the judge as his counsel, the murderer was murdered. He remembered a case, in which sir W. Garrow having to try a man this man asked to have his trial postponed for a few hours till he could have a witness from London. The judge asked him, why he wanted his trial postponed? The man replied, that "the witness would give him a good character." The judge said, "I will give you credit for a good character, and proceed to try you." He did so, charged the jury to find the man guilty, and they acquitted him. He (Mr. M.) had afterwards seen the man who was to come from London, and he did give the accused person an excellent character. The hon. member then contended, that he had brought forward cases of innocent persons who might have been acquitted, had they been allowed to have counsel; and he had shewn that the judge could not be considered as, in fact, the counsel for the prisoner. These were the reasons why he should give his vote for bringing in the bill; and he hoped the 220 gentlemen opposite would allow the bill to be brought in, that it might receive a full and fair discussion.
§ The House then divided on the question for leave to bring in the bill, when there appeared: Ayes 50; Noes 80; Majority 30.
|List of the Minority.|
|Allen, J. H.||Maberly, W. L.|
|Althorp, vis.||Macdonald, J.|
|Bennet, hon. H. G.||Mackintosh, sir J.|
|Bernal, R.||Martin, J.|
|Birch, J.||Martin, H.|
|Buxton, T. F.||Monck, J. B.|
|Calcraft, J.||Mildmay, P. St. John|
|Calvert, C.||Normanby, visc.|
|Cradock, S.||Palmer, C. F.|
|Davies, T. H.||Parnell, sir H.|
|Denman, T.||Powlett, hon. W.|
|Downie, R.||Portman, E. B.|
|Dundas, hon. T.||Pryse, P.|
|Evans, W.||Rice, T. S.|
|Fleming, J. S.||Ridley, sir M. W.|
|Forbes, sir C.||Robinson, sir G.|
|Grenfell, P.||Rumbold, C. E.|
|Haldimand, W.||Sefton, earl of|
|Hobhouse, J. C.||Wharton, J.|
|Honywood, W. P.||Whitbread, S. C.|
|Hume, J.||Wilson, sir R.|
|James, W.||Wilson T.|
|Jervoise, G. P.||Wood, M.|
|Kennedy, T. F.|
|Lennard, T. B.||Lamb, hon. G.|
|Maberly, J.||Lushington, S.|