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his guilt, though it might be such lowed, that, in regard to its merits, as to require judicial investigation, the opinion of the bar was very they should be empowered to ad- much divided; but looking at it mit him to bail. It was well merely in a practical light, without known that even at present the being misled by theory or authority, Court of King's-bench was author- he was convinced that its effects ized to admit to bail under the would be injurious to prisoners. circumstances contemplated by this As criminal proceedings were now act ;, but the expense was so great, conducted, the prosecutor's case and particularly in remote parts of was opened by a simple statement the country, that relief from that of facts, and the judge always took court could hardly be said to be care that his counsel should not go within the reach of the poor.
farther, and the evidence was dist To a clause which enacted that passionately heard. After this, the all accessories before the fact should prisoner's case was gone through be liable to the same punishment in the same way, except that there as the principal felons, Mr. Scarlett was no previous statement of facts, objected, that, instead of ameliorat- because the general nature of the ing the law, it went to increase case was already understood. There the number of capital felonies. was finally the charge of the judge, But it was answered, that the carefully sifting the evidence, and provision was merely an application calmly applying the law. But of the general principle of the law how very different would all this of England. In every case in be, if counsel were heard both which the subject was mentioned, sides. There would then be all the accessory was punishable to the the zeal, the animation, and the same extent as the principal; and struggle for victory, which were the inference was, that where the usually seen in civil cases. This subject was not mentioned, the was no exaggeration; for it was omission was accidental. In all witnessed in the Court of King's cases of murder, burglary, stealing bench, where criminal offences of in houses, horse-stealing, arson, certain kinds, such as charges of forgery, &c., the accessory before perjury, were tried under these the fact was subjected to the same circumstances, and were usually punishment as the principal. Why carried on in the same spirit as not, then, in all other cases ? where merely the civil rights of
The proposal for allowing the the party were at issue. If counci counsel of prisoners upon their trial sel were heard for the prisoner in for felony to address the jury upon felonies, they must be heard with the evidence, which had been so the same limitations as in other frequently unsuccessful already, cases. One of these was, that the was again brought forward by Mr. counsel for the prosecution would Lamb, but with no better fortune. have the benefit of a reply, whenThe measure was supported by Mr. ever the prisoner's counsel called Williams, Mr. Twiss, Mr. Scarlett, any witnesses. So that there Mr. Brougham, and Mr. Denman, would always be a very difficult and opposed by Mr. Peel and Mr. and embarrassing question for him Canning, in addition to the Attor- to decide ; namely, whether he: ney and Solicitor general, and Mr. should call a witness who might Tindal, The Attorney-general al- be material for the defence of hiş
client,' but' by doing which he satisfactorily "'administered. He would expose him to the danger had no recollection that, in any of a reply which might more than petition presented to him on behalf counterbalance the favourable effect of a convict, the grounds taken up of the testimony. The functions were his not having been allowed of the judge, too, would unwita counsel. Prisoners frequently comtingly y assume a character disad- plained that their solicitors had vantageous to the prisoner. If the omitted to call proper evidence, or address of the prisoner's counsel that the witnesses on whom they threatened to be efficient, the judge had relied were not forthcoming, would, in many cases, be compelled or that they had not had sufficient to animadvert on that address. In notice of the facts with which they doing this he might'unconsciously had been charged, to be enabled to pass the exact boundary which disprove them; but in no instance ought to circumscribe his remarks ; did he recollect of any hardship and then the impression would, in being imputed to the want of all probability, frequently go forth counsel. The common law of the among the persons in the court, country required an unanimous that the verdict of the jury had verdict of the jury to convict a sprung from the remarks of the prisoner. This necessity of unajudge. This, surely, would not nimity was an immense protection be a desirable state of things; for and security to the accused ; and the judge, instead of being, as now it destroyed, at the same time, the considered, counsel for the
prisoner, argument drawn from the example would go forth as counsel against of Scotland. There, unanimity in him.
the jury was not required : 'their Mr. Peel admitted that the ar- verdict was decided by a majority; guments which might be raised on so that a single voice might deboth sides of this question were termine on the life of the party very equally poised ; that the legal charged. Thinking that justice opinions upon it were nearly equi- was properly and fairly adminisponderant; and that, if he were tered, and very mainly, as respected convinced of the alteration being prisoners charged with felonies, by useful and fitting in itself, he reason of this peculiar feature in would not oppose to it merely the the constitution of jurieshe, for antiquity of the law which it was one, was very unwilling to risk a intended to change. If the allow- change of the system. ance of counsel would lead to the Mr. H. Twiss said, it was an better explication of the truth, or inconceivable absurdity that counif there existed any general im- sel should be allowed to start, and pression that, from counsel not multiply, the most frivolous und being allowed, the law was not visionary objections to the form duly administered, there would be and phraseology of an indictment, an end of the question ; but he which were almost always inconhad, from his official situation, assistent with real justice, and should amiple means as any member of be prohibited from intermeddling that House, of learning the feel- with the very substance, the merits ings of the country on such a topic; and evidence of their client's case. and his experience led him to the If a prisoner wished to address the conclusion that justice was most jury upon the facts of his case, he must do it with his own lips. But the fiction of the judge being suppose that either from natural counsel for the prisoner, it would, disability, or physical impediments, in most cases, be much more true or the accidents of his situation, to say, that he was counsel against the prisoner should be unable to the prisoner, and for the prosedo so; suppose he should happen cutor. Where did the only into be dull of capacity, and illiterate, structions which the judge received deaf or dumb, or overwhelmed by in any of these cases, come from? fear, and incapable of speaking from From the depositions of the witthe very consciousness that, upon nesses for the prosecution. Sir the manner and effect of his speake Robert Atkyns, in his notes upon ing, depended nothing less than his lord Russell's trial, had truly said, own existence ;- no matter ; still “I well know by experience what the rule was general and the ex- sort of counsel judges usually be ceptions not provided for. But if for the prisoner.” Usually the disability of this kind on the part jury understood the charge of the of prisoners were a general one, – judge to be intended with the view would not parliament be disposed that the prisoner should suffer no to relax such a rule? Undoubt- wrong; but in that respect the edly it would. But in point of judge was surely as much counsel fact that general disability did for the prosecution. Fair play, exist.-And if the prisoner was barely, was not enough for the prioverwhelmed, stunned, incapable soner, where his antagonist was a of reflection, what mattered it skilful and practised advocate. whether his silence or imbecility, There were particular cases in fatal as it might be even to his life, which the slightest variation of arose from any general defect of all proof established the broadest disthose organs which should have tinction of crime, as in the comserved him in the hour of his ne- on instance of a sudden fray, cessity, or was a consequence pro
wherein one man has stabbed anoduced by the situation in which ther. There the question would be he found himself at the bar ?-It whether he had done so with malice was a proverbial saying, that “he aforethought? whether the fact who is his own counsel has a fool was that he had done so with malice for his client." Of course, the prepense, waspreciselytheconsideraconverse of this proposition was tion that would make all the differtrue, and he who was his own ence in the crime of the survivor, client had a fool for his advocate. manslaughter,” or “murder.” Why? Because the all-engrossing, Why, therefore, should not counsel all-absorbing care of a man for his be allowed to address the jury upon own interest, was the very prin- the nature of the proof adduced to ciple which incapacitated him for so important a point? In treason, its due protection. And yet to which was the highest species of this very defective advocacy did offence known to the law, and in the law at present intrust the case misdemeanour, which was the lowof a prisoner, whose incompetency est, counsel were allowed to prito do justice to his own case was soners : and why should the same of necessity aggravated by a know- liberty in felony, óan offence interledge of the serious consequences mediate between those two, excite attendant upon his failure. As to so many apprehensions ?
Mr. Tindal said, the first conse- the assistance of the prosecutor. quence of the proposed alteration Suppose the counsel for the priwould be, that the counsel for the soner were to make a powerful prosecution would change his cha- address to the jury, he appealed to racter. He would no longer con- his learned friends round him, who tinue to be what he was at pre- were well acquainted with the sent, the minister of justice; but practice in civil cases, whether, in would be converted into the adyo- criminal cases also, if this practice cate of a party. - Feeling conscious were permitted, the counsel for the that he was to be opposed by oppo- prosecution would not naturally site counsel, it was not likely that exert all his talents to do away, if he would, as now, confine himself possible, the effect thus produced : to a simple statement of facts. In and whether, however powerful civil cases, the advocate, knowing might be the address to the jury the right possessed by the counsel in favour of the defendant, an able for the defendant, omits no argu- advocate might not render it inment, and has recourse to every ex- operative on their minds, by skilful pedient which he thinks calculated and dexterous management? In to prepossess the jury in his favour. nine-tenths of the cases tried in Now, if trials for felony should be one of their criminal courts before placed upon exactly the same foot- his learned friend (Mr. Denman), ing'as civil cases, was it not likely there was no prosecuting counsel that the same exertions would be at all. In many there was no made, and the same advantages counsel employed on eitherside, and
taken, to secure a conviction? It yet he heard no complaints of the 2. was not very difficult to perceive manner in which the law was ad
that the prisoner must undergo ministered. It had been argued, very serious inconveniencies, if the that to concede the privilege in ofprivilege should be granted of al- fences so high as treason, and so lowing counsel to make a speech low as misdemeanors, and refuse it for him. Gentlemen employed in in cases of felony, was an anothe criminal courts were generally maly which could not be justified juniors in the profession. What- or explained. Even if it were an ever their talents might be in anomaly, yet rather than alter it, other respects, they were not so because it was an anomaly, they adroit as some of his learned friends should adhere to a practice, which, in making out the best cases, and having existed for so many ages, drawing up the most able defence. it was rational to conclude had been Men of the first talent in the pro- found productive of advantages. fession could not, except in very What greater anomaly, to all apfew instances, be retained by the pearance, could there be, than a prisoner, because he could not af- jury, composed of twelve men, ford the expense; but would they drawn together from different parts not be retained by the prosecutor, of a county, to decide unanimously knowing the advantage the prisoner on questions of which they were, would derive from this alteration perhaps, before utterly ignorant, in the law ? So that though a and compelled to become unanistrong arm would thus be placed mous by hunger and thirst? It at the disposal of the prisoner, a might be said also that appeals stronger still would be brought to to the House of Lords were an
anomaly. One would think that, An act (7 Geo. 4. c. 57) was after a case had been disposed of likewise passed, consolidating in in the other courts, by men learned one statute the different, enactin the law, to refer it for a final ments in regard to insolvent decision to those whose habits did debtors, and making some changes not fit them for the administration in several of their provisions. , of justice, was as great an anomaly During the early part of the as could well be conceived. It session, the attention of the House was found, however, that justice was occupied with a charge which was thus satisfactorily and effect. Mr. Denman had preferred the ually administered. It was said preceding year against Mr. Kent that the practice was allowed in all rick, a magistrate of the county of foreign countries. Wherever it Surrey, and one of the Welch prevailed, however, there was a judges. This gentleman had strong counterpoise against it. In lodged an information against a France, for instance, and in Scot- man named Franks for stealing a'; land, there was a public prosecutor, piece of wood, which certainly by whom the prisoner was exam- turned out to be of very trivial ined before his trial; and the result value. Franks had been comas, of the 'examination was communi- mitted to prison; and a bill having cated to the plaintiff, who might been found against him by the thus be prepared with an answer grand jury, he was tried, and acel to any defence the prisoner should quitted. Upon this Mr. Denman instruct his counsel to make. He brought the matter before parlia-, doubted whether those, who were ment, charging Mr. Kenrick with, favourable to the measure, would having made a false, and malicious be willing to carry it into effect, on accusation for purposes of oppress the condition of connecting it with sion, and justifying the interfethe existence of such an officer as rence of the House of Commons, a public prosecutor. He had fully to punish him, by the fact of that , made up his mind on the question, gentleman being a judge, as well and the conclusion to which he a county magistrate. Those came was, that it would not be be. members who thought that the neficial to the prisoner.
case deserved not the interference) Mr. Scarlett thought that cases of the House, argued that, alof circumstantial evidence were the though Mr. Kenrick was a judge, only cases in which the assistance yet even allowing what was im of counsel would be found useful; puted to him to be true, it had no and, although he was still in very connection with his judicial funcgreat doubt, he would support at tions. He had not acted as a maleast the introduction of the bill, gistrate in lodging the information; because he was convinced it would there was no malversation in office; increase the number of convictioris there was no abuse or prostitution of the guilty, many of whom now of judicial powers. All that he had escaped from the tenderness of the done, he had done as a private in judge, and it could be productive dividual. There might indeed be of no prejudice to any innocent cases of private misconduct amount
ing to such infamy as would renOn a division 36 members voted der the individual guilty of it unfor the motion, and 105 against it. worthy of sitting upon any bench,