To a clause which enacted that all accessories before the fact should be liable to the same punishment as the principal felons, Mr. Scarlett objected, that, instead of ameliorating the law, it went to increase the number of capital felonies. But it was answered, that the provision was merely an application of the general principle of the law of England. In every case in which the subject was mentioned, the accessory was punishable to the same extent as the principal; and the inference was, that where the subject was not mentioned, the omission was accidental. In all cases of murder, burglary, stealing in houses, horse-stealing, arson, forgery, &c., the accessory before the fact was subjected to the same punishment as the principal. Why not, then, in all other cases? The proposal for allowing the counsel of prisoners upon their trial for felony to address the jury upon the evidence, which had been so frequently unsuccessful already, was again brought forward by Mr. Lamb, but with no better fortune. The measure was supported by Mr. Williams, Mr. Twiss, Mr. Scarlett, Mr. Brougham, and Mr. Denman, and opposed by Mr. Peel and Mr. Canning, in addition to the Attorney and Solicitor general, and Mr. Tindal. The Attorney-general al lowed, that, in regard to its merits, the opinion of the bar was very much divided; but looking at it merely in a practical light, without being misled by theory or authority, he was convinced that its effects would be injurious to prisoners. As criminal proceedings were now conducted, the prosecutor's case was opened by a simple statement of facts, and the judge always took care that his counsel should not go farther, and the evidence was dispassionately heard. After this, the prisoner's case was gone through in the same way, except that there was no previous statement of facts, because the general nature of the case was already understood. There was finally the charge of the judge, carefully sifting the evidence, and calmly applying the law. But how very different would all this be, if counsel were heard on both sides. There would then be all the zeal, the animation, and the struggle for victory, which were usually seen in civil cases. This was no exaggeration; for it was witnessed in the Court of King'sbench, where criminal offences of certain kinds, such as charges of perjury, were tried under these circumstances, and were usually carried on in the same spirit as where merely the civil rights of the party were at issue... If counsel were heard for the prisoner in felonies, they must be heard with the same limitations as in other cases. One of these was, that the counsel for the prosecution would have the benefit of a reply, whenever the prisoner's counsel called any witnesses. So that there would always be a very difficult and embarrassing question for him to decide; namely, whether he should call a witness who might be material for the defence of his 1 satisfactorily administered. He client, but by doing which he would expose him to the danger of a reply which might more than counterbalance the favourable effect of the testimony. The functions of the judge, too, w would unwit tingly assume a character disadvantageous to the prisoner. If the address of the prisoner's counsel threatened to be efficient, the judge would, in many cases, be compelled to animadvert on that address. In doing this he might unconsciously pass the exact boundary which disprove them; but in no instance ought to circumscribe his remarks; and then the impression would, in all probability, frequently go forth among the persons in the court, that the verdict of the jury had sprung from the remarks of the judge. This, surely, would not be a desirable state of things; for the judge, instead of being, as now considered, counsel for the prisoner, would go forth as counsel against him. Mr. Peel admitted that the arguments which might be raised on both sides of this question were very equally poised; that the legal opinions upon it were nearly equiponderant; and that, if he were convinced of the alteration being useful and fitting in itself, he would not oppose to it merely the antiquity of the law which it was intended to change. If the allow ance of counsel would lead to the better explication of the truth, or if there existed any general impression that, from counsel not being allowed, the law was not duly administered, there would be an end of the question; but he had, from his official situation, as ample means as any member of that House, of learning the feel ings of the country on such a topic; and his experience led him to the conclusion that justice was most did he recollect of any hardship Mr. H. Twiss said, it was an inconceivable absurdity that counsel should be allowed to start, and multiply, the most frivolous and visionary objections to the form and phraseology of an indictment, which were almost always inconsistent with real justice, and should be prohibited from intermeddling with the very substance, the merits and evidence of their client's case. If a prisoner wished to address the jury upon the facts of his case, he must do it with his own lips. But suppose that either from natural disability, or physical impediments, or the accidents of his situation, the prisoner should be unable to do so; suppose he should happen to be dull of capacity, and illiterate, deaf or dumb, or overwhelmed by fear, and incapable of speaking from the very consciousness that, upon the manner and effect of his speaking, depended nothing less than his own existence;-no matter; still the rule was general and the exceptions not provided for. But if disability of this kind on the part of prisoners were a general one,would not parliament be disposed to relax such a rule? Undoubtedly it would.-But in point of fact that general disability did exist. And if the prisoner was overwhelmed, stunned, incapable of reflection,-what mattered it whether his silence or imbecility, fatal as it might be even to his life, arose from any general defect of all those organs which should have served him in the hour of his necessity, or was a consequence produced by the situation in which he found himself at the bar?-It was a proverbial saying, that "he who is his own counsel has a fool for his client." Of course, the converse of this proposition was true, and he who was his own client had a fool for his advocate. Why? Because the all-engrossing, all-absorbing care of a man for his own interest, was the very principle which incapacitated him for its due protection. And yet to this very defective advocacy did the law at present intrust the case of a prisoner, whose incompetency to do justice to his own case was of necessity aggravated by a knowledge of the serious consequences attendant upon his failure. As to the fiction of the judge being counsel for the prisoner, it would, in most cases, be much more true to say, that he was counsel against the prisoner, and for the prosecutor. Where did the only instructions which the judge received in any of these cases, come from? From the depositions of the witnesses for the prosecution. Sir Robert Atkyns, in his notes upon lord Russell's trial, had truly said, "I well know by experience what sort of counsel judges usually be for the prisoner." Usually the jury understood the charge of the judge to be intended with the view that the prisoner should suffer no wrong; but in that respect the judge was surely as much counsel for the prosecution. Fair play, barely, was not enough for the prisoner, where his antagonist was a skilful and practised advocate. There were particular cases in which the slightest variation of proof established the broadest distinction of crime; as in the common instance of a sudden fray, wherein one man has stabbed another. There the question would be whether he had done so with malice aforethought? whether the fact was that he had done so with malice prepense, wasprecisely theconsideration that would make all the difference in the crime of the survivor, manslaughter," or "murder." Why, therefore, should not counsel be allowed to address the jury upon the nature of the proof adduced to so important a point? In treason, which was the highest species of offence known to the law, and in misdemeanour, which was the lowest, counsel were allowed to prisoners and why should the same liberty in felony, an offence intermediate between those two, excite so many apprehensions? Mr. Tindal said, the first consequence of the proposed alteration would be, that the counsel for the prosecution would change his character. He would no longer continue to be what he was at present, the minister of justice; but would be converted into the advocate of a party. Feeling conscious that he was to be opposed by opposite counsel, it was not likely that he would, as now, confine himself to a simple statement of facts. In civil cases, the advocate, knowing the right possessed by the counsel for the defendant, omits no argument, and has recourse to every expedient which he thinks calculated to prepossess the jury in his favour. Now, if trials for felony should be placed upon exactly the same footing as civil cases, was it not likely that the same exertions would be made, and the same advantages taken, to secure a conviction? It was not very difficult to perceive that the prisoner must undergo very serious inconveniencies, if the privilege should be granted of allowing counsel to make a speech for him. Gentlemen employed in the criminal courts were generally juniors in the profession. Whatever their talents might be in other respects, they were not so adroit as some of his learned friends in making out the best cases, and drawing up the most able defence. Men of the first talent in the profession could not, except in very few instances, be retained by the prisoner, because he could not af ford the expense; but would they not be retained by the prosecutor, knowing the advantage the prisoner would derive from this alteration in the law? So that though a strong arm would thus be placed at the disposal of the prisoner, a stronger still would be brought to the assistance of the prosecutor. Suppose the counsel for the prisoner were to make a powerful address to the jury, he appealed to his learned friends round him, who were well acquainted with the practice in civil cases, whether, in criminal cases also, if this practice were permitted, the counsel for the prosecution would not naturally exert all his talents to do away, if possible, the effect thus produced: and whether, however powerful might be the address to the jury in favour of the defendant, an able advocate might not render it inoperative on their minds, by skilful and dexterous management? In nine-tenths of the cases tried in one of their criminal courts before his learned friend (Mr. Denman), there was no prosecuting counsel at all. In many there was no counsel employed on either side, and yet he heard no complaints of the manner in which the law was administered. It had been argued, that to concede the privilege in offences so high as treason, and so low as misdemeanors, and refuse it in cases of felony, was an anomaly which could not be justified or explained. Even if it were an anomaly, yet rather than alter it, because it was an anomaly, they should adhere to a practice, which, having existed for so many ages, it was rational to conclude had been found productive of advantages. What greater anomaly, to all appearance, could there be, than a jury, composed of twelve men, drawn together from different parts of a county, to decide unanimously on questions of which they were, perhaps, before utterly ignorant, and compelled to become unanimous by hunger and thirst? might be said also that appeals to the House of Lords were an It anomaly. One would think that, after a case had been disposed of in the other courts, by men learned in the law, to refer for a final decision to those whos habits did not fit them for the administration of justice, was as great an anomaly as could well be conceived. It was found, however, that justice was thus satisfactorily and effectually administered. It was said that the practice was allowed in all foreign countries. Wherever it prevailed, however, there was a strong counterpoise against it. In France, for instance, and in Scotland, there was a public prosecutor, by whom the prisoner was examined before his trial; and the result of the examination was communicated to the plaintiff, who might thus be prepared with an answer to any defence the prisoner should instruct his counsel to make. He doubted whether those, who were favourable to the measure, would be willing to carry it into effect, on the condition of connecting it with the existence of such an officer as a public prosecutor. He had fully made up his mind on the question, and the conclusion to which he came was, that it would not be beneficial to the prisoner. Mr. Scarlett thought that cases of circumstantial evidence were the only cases in which the assistance of counsel would be found useful; and, although he was still in very great doubt, he would support at least the introduction of the bill, because he was convinced it would increase the number of convictions of the guilty, many of whom now escaped from the tenderness of the judge, and it could be productive of no prejudice to any innocent man. On a division 36 members voted for the motion, and 105 against it. " " An act (7 Geo. 4. c. 57) was likewise passed, consolidating in one statute the different enact ments in regard to insolvent debtors, and making some changes in several of al of their provisions. During the early part of the session, the attention of the House was occupied with a charge which Mr. Denman had preferred the preceding year against Mr. Kenrick, a magistrate of the county of Surrey, and one of the Welch judges. This gentleman had lodged an information against a man named Franks for stealing a piece of wood, which certainly turned out to be of very trivial value. Franks had been committed to prison; and a bill having been found against him by thei grand jury, he was tried, and ac-d quitted. Upon this Mr. Denman brought the matter before parlia ment, charging Mr. Kenrick with, having made a false and malicious accusation for purposes of oppres sion, and justifying the interfe rence of the House of Commons, to punish him, by the fact of that gentleman being a judge, as well as a county magistrate. Those members who thought that the case deserved not the interference) of the House, argued that, although Mr. Kenrick ck was a judge, yet even allowing what was im puted to him to be true, it had no connection with his judicial functions. He had not acted as a magistrate in lodging the information; there was no malversation in office; there was no abuse or prostitution of judicial powers. All that he had done, he had done as a private individual. There might indeed be cases of private misconduct amounting to such infamy as would render the individual guilty of it unworthy of sitting upon any bench, |