The Sun.
London, England, 1835-06-18 00:00:00

PRISONERS' COUNSEL BILL.

Mr. EWART moved the Order of the Day for the House
going into Committee on the Prisoners' Counsel Bill.
The question being put,
The ATTORNEY-GENERAL expressed his approbation
of the Bill. It was his opinion that in cases of felony, mis-
demeanor, and high treason, prisoners should be allowed coun-
sel. All were now agreed that the time had come when this
experiment must be tried. The scandal of refusing Counsel
to prisoners could no longer be suffered to remain. __ _

An Hon. MEMBER-opposed the Bill, and contended that
the objects proposed would not be attained by it. From his
experience of many years on circuit, he could say that in
ninety-nine cases out of a hundred, no speech was made by
the Counsel for the prosecution in cases of minor felony. It
was seldom or never done, except in cases of arson, rape, or
murder. He considered that it was the duty of the Judge to
look after the interests of the prisoner, and to see that justice
was done him. The present Bill would be the cause of hav-
ing great injustice done towards prisoners. The remarks he
had just made were intended for the benefit of prisoners. If
Courts were multiplied, the present Bill might be introduced,
but until they were, and until Judges had more time, the Bill
would be totally inoperative. The present Bill would tend to
double the expenses attendant on the administration of jus-
tice, and the whole of the time of the Courts would be oc-
cupied with the speeches of Counsel. The title of the Bill
ought to be altered, and it ought to be called a " Bill to give
Prisoners to Counsel."—( A laugh.)
Mr. C. FE RG US SON had never heard any thing in the
shape of argument to prove that prisoners ought not to have
Counsel except in cases of life and death. He had seen pri-
soners suffer because their cases were not properly explained
to the Jury, and it was time that the present system should be
put an end, to, and that prisoners should be allowed Counsel
in cases of felony.
Mr. BL A CKB UR NE said that in the northern circuit he
had always seen Counsel open the case for the prisoner, and if
the practice was different in the midland circuit, it should be
altered and made the same. It ought not to be left to the
prosecutor to say whether the prisoner was to be defended or
not. He contended that the little time of the Courts would
bo taken up if the Bill were permitted to pass. More time
was lost now through the necessity of the Counsel putting
questions to give the Jury a better Idea of the circumstances of
cases, and the present Bill, in nine cases out of ten, would be
the cause of a saving of time. In the course of his practice he
always found that misdemeanours occupied less time than felo-
nies. In burglaries, for instance, many minute circumstances
might arise that it would be necessary for Counsel to explain
to the Jury, and in which the prisoner required to have Counsel
more than in cases of assault, in which punishment might not
amount to more than a fine of five shillings. He would give
his most cordial assent to the Bill.

Mr. POULTER wished that the prosecutor and the pri-
soner should be placed on an equal footing. The chief ques-
tion was, which was the best method of doing so. What he
would propose was that the prisoner's Counsel should address
the Jury in all cases in which the prosecutor's Counsel had
exercised such a right. In civil cases much injustice was now
down, and a great part of the time at Westminster Hall was
taken up on questions being raised as to whether judgments
were right or wrong. He had not known any case of hard-
ship, or of any one being innocently convicted from want of
Counsel.

Mr. 0' C 0 NNE L L—l recollect one though, and I mean to
state it to the House.

Mr. POUL TE R--There might have been, but that arose
rather from the infirmity in judgment to which all human
beings are liable, than from want of Counsel. Speeches would
not save prisoners, and he begged to exclude cases in Ireland
from being adduced to prove that they would; neither would
he take, in the present instance, the Hon. and Learned Mem-
ber for Dublin as a witness. There were errors in the Bill,
and he hoped the House would agree to the amendment of the
Hon. Member for Somersetshire.

Mr. SHAW said that the question was not whether pri-
soners were to have Counsel, but whether Counsel were to
make speeches for them. No one advantage was now denied
to prisoners that would be given to them by the proposed
Bill. His practical objection to the principle of the Bill arose
from his feeling that it would call into existence an inferior
class of legal practitioners, who would do prisoners more mis-
chief than good. The practice in Ireland was similar to what
it was in this country, and the law there showed the same
anxiety to do justice to prisoners that it did in England. He
objected to the Bill, because in practice it would not be so be-
neficial to prisoners as the present law. Speeches of Counsel
in ten cases out of eleven would not do any good to the cases
of prisoners. He wished the prosecutor and the prisoner to be
placed on the same footing. If the proposed measure tended
to create respectable and intelligent Counsel his objections to
it would be diminished.
Mr. C. BULLER thought that his Hon. Friend (Mr.
Poulter) had not brought all his recollection to bear on the
case when he said that he knew of no modern Jury that had
convicted prisoners innocently. He would not go back to an-
cient times, but he would mention a case that came within tke
recollection of every one at all connected with the metropolis.
Mr. Sheriff Wylde, during his shrievalty, had saved no less
than five persons under conviction, and who had been inno-
cently convicted for want of Counsel.—(Hear, hear.) He
was of opinion that prisoners would not lose if they were
allowed to have professional men to defend them.—( Hear.)
Speaking from his experience on the Western Circuit, he
could state that Counsel fer the prosecution made speeches
only in the most complicated cases. But it was in those very
cases that the speeches told most against the prisoner, for
while every little fact was put together and given to the Jury
in a certain light by the prosecutor's Counsel, he had no right
to rebut those inferences and conclusions by a similar state-
ment on the part of his advocate. He was convinced that
the real objection entertained by Judges and Chairmen of
Quarter Sessions against the removal of this legal anomaly
was their anticipation of a great waste of time by the
speeches of the Counsel. It was, however, his opinion that
by permitting those speeches much less time would be
consumed, and such was the opinion of the Honourable
and Learned Mamber for Huntingdon (Mr. Pollock.)_
( Hear, hear.) Counsel now endeavoured to address the Jury by
the medium of cross-examination. He recollected one case
in which a Counsel was for a quarter of an hour engaged in
cross-examining a witness as to the point whether or not he
had seen a dog run out of a house before the prisoner was said
to have stolen a watch from the parlour. A friend said to him
(Mr. Buller) in surprise, " Surely he is not going to charge
the dog with the robbery." His (Mr. Buller's) impression
was that the attempted defence was that the man had gone
into the house to drive out the dog, and that by some accident
the watch fell into his pocket.—( A laugh.) If the prisoner's
Counsel had had to make a speech he would not possibly have
set up so absurd a defence, and consequently have wasted so
much time by cross-examination.
Mr. O'C ONN EL L said that he had frequently been obliged
to explain, by the medium of a long cross-examination, a point
which could have been stated to the Jury in three sentences.
The Learned Recorder opposite had declared it was not for
the interest of prisoners that their Counsel should be allowed
to address the Jury, for they might by chance employ unskilful
barristers ; but might not the prosecutor employ incompetent
men, and was it likely that the prisoner and his friends would
fail in their exertions to seek out the most talented and expe-
rienced advocates ? At one time the admission of evidence
for prisoners was objected-against on the ground that a Jury

never convicted but on demonstration of guilt, and that the
balancing of evidence by the Judge would frequently be derl4
mental to the prisoner's case. That objection was put on one
side, and was now as justly ridiculed as he hoped would speel
be the objections to giving prisoners' Counsel the proPes
liberty.
An HON. MEMBER said he had no objection to prisoners'
Counsel addressing the Jury in capital cases, but in petty hit''
ceny trials he thought it would be most inexpedient.
Mr. GOULBURN considered the grand objection to tbe,
proposition to be this. It would not be denied that in criminl?,
cases the attainment of truth was the chief object ; but
Counsel were allowed to argue every point, and to make their
own statements of the case, the display of legal ingenuity
rather than the development of truth would be the cons&
quence. This was known to be the fact in cases of tnigle;
meanor, in which prisoners' Counsel frequently kept back
their evidence, and trusted the acquittal of their client to the
power of their eloquence. As to the right at present
sessed by the prosecuting Counsel, be had seldom bear
controverted that it was the practice of the profession never to
exceed a simple unvarnished statement of the facts they in'
tended to prove.
Dr. L USHINGTON said that the hardship indicted ten
prisoners by den3ing their Counsel a right of addressing W.:
Jury had attracted considerable attention so long back
el
1805. He remembered that on one occasion thirty-one P.;
soners were convicted upon certain evidence, and sentence",
e
execution. A few days after other prisoners were, upon
very same evidence, found not guilty—the consequence;
which was, of course, a pardon to the thirty-one. At be
Admiralty Sessions he laboured for three hours to make t.,h
Jury acquainted, through his mode of cross-examination, rig_
certain indispensable points, which they were wholly unable we
comprehend. His efforts were vain, and the prisoners Wet
acquitted only on a point of law.
Mr. SINCL AIR thought that prisoners and prosecute
1
should at least be put on an equal footing.
Mr. S. TA LFOURD observed that the candour and sr
parent artlessness of a statement made by a prosecurl
Counsel was more insidious and more powerfully affected r
minds of a Jury than a set speech, in which the skill and ille;
genuity of the Barrister might be readily discerned. In OA
proved by circumstantial evidence, the prosecuting Coull,
made his own statement of the facts, and drew upon the null
of the Jury a well grouped picture, the effect of which 11
unconnected facts elicited by the prisoner's Counsel in cressi:
examination could destroy or weaken. How was it poss'bf,-
to make known to a Jury the prisoner's case, and the in
rences which he drew, except by the address of Counsel? be
• An Hon. MEMBER would undertake to say that if
proposition were agreed to, the business at the West Rid"
Sessions would never be got through.
Mr. JACKSON was satisfied that, in circumstantial case:!
the prisoners' Counsel ought to be allowed to address the
The SPEAKER then left the Chair, and the House went
in
Committee.
Mr. A. SANDFORD moved that the end of the first clB_,Luse
the following provision be added, " Provided, neverthel7,
that in cases of felony, unless the Counsel against the prisneroe
shall have made a speech in the prosecution, the Counsel !,;,
the prisoner shall not address the Jury in defence of such P''
Boner."
After a few words from the Attorney-General, 1g,51,
O'Connell, C. Fergusson, and Trevor, the House des'
The numbers were—

For the amendment
Against it
Majority for the clause
On the next clause being read, to the effect that " del6/sel
before Magistrates prisoners should not be allowed Co A 0
unless by the Magistrates' permission," an amendme?Lte
moved in these words :—" Except in cases where ?defieo
have summary jurisdiction," the Committee divided, w
there appeared—
For the amendment
Against it
The Chairman gave a casting vote against the mow'
and the original clause was agreed to. air
The House resumed, the other orders of the day
posed of, and the House adjourned at a Quarter-past
o' Clock.