ALTERATION OF THE CRIMINAL CODE.
At this period Mr. Peel applied the powers of his clear and dispassionate mind to the simplification and improvement of our criminal code. On the 9th of March he introduced a bill to consolidate the various acts which related to offences against property. He explained the nature of these acts at great length; but the bill was not carried through the commons during this session, Mr. Peel stating, that from the multiplicity of its details, it was necessary to proceed in it with the most cautious deliberation. Another bill, which was introduced by him, and which passed into a law, had for its object the removal of inconveniences belonging to the administration of the criminal law generally, and in particular the amendment of the existing regulations relative to admitting bail in cases of felony. One clause, which Mr. Lamb endeavoured to introduce into the bill, was contested with great vigour on both sides of the house. This was a proposal, which had already frequently been rejected, for allowing counsel to prisoners. This clause was supported by Messrs. Williams, Twiss, Scarlett, Brougham, and Denman; and opposed by the attorney and solicitor-generals, and by Messrs. Peel and Canning. The attorney-general allowed that in regard to its merits the opinion of the bar was divided; but he expressed his conviction that it would be injurious to the prisoner as well as to justice. 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 further, and the evidence was heard dispassionately. 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 the case, he argued, would be different 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. Besides, he continued, the counsel for the prosecution would always have the benefit of a reply whenever the accused called a witness, which might more than counterbalance any favourable effect of evidence. The functions of the judge, also, would assume a character disadvantageous to the prisoner; for if the address of the counsel of the prisoner threatened to be efficient, the judge in many cases would have to interfere: In doing this, it was urged, he might unconsciously pass the exact boundary that ought to circumscribe his remarks; the impression then would probably go forth that the verdict of the jury had been elicited by those remarks; and the judge, instead of being, as he was now, counsel for the prisoner, would be almost compelled to become an advocate against him. On the other side Mr. H. Twiss set forth in a strong light the absurdity of permitting counsel to start and multiply the most frivolous and visionary objections to the form and phraseology of an indictment, with the merits and evidences of their client’s case. He also set forth the hardships under which a prisoner lay, who, wishing to address the jury of the facts of a case, must do it with his own lips, under all the disadvantages of natural disability, physical impediments, or accidents of his situation, while the very incompetency to do himself justice would be aggravated by a knowledge of the serious consequences attendant on his failure. As to the fiction of the judge being counsel for the prisoner, he said, it would in most cases be much more true to say, that he was counsel against the prisoner, and for the prosecutor. Whence, he asked, came the only instructions which the judge received in any of these cases? 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.” 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 fitting itself, he would not oppose to it merely the antiquity of the law which it was intended to change. His own experience, however, and the knowledge acquired from his official situation, led him to think that justice was most satisfactorily administered under the present system: he felt unwilling to risk any change. The clause was lost on a division by one hundred and five against thirty-six.