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.
CASE OF MR. KENRICK.
In the early part of this session the house considered a charge brought by Mr. Denman against Mr. Kenrick, a magistrate of the county of Surrey, and one of the Welsh judges. Evidence on the charge was entered into; and Mr. Denman moved, that as Mr. Kenrick had shown himself an unfit person to exercise the judicial functions, an address be presented to his majesty, praying him to remove that gentleman from the office of judge of the great session of Wales. The motion, however, was negatived without a division; and this fact became a powerful argument in favour of parliamentary reform.
STATE OF THE COLONIES.
During this session cases of great cruelty and injustice, exercised by owners, magistrates, and judicial courts, against the slaves in our colonies, were brought before the parliament, and eloquently exposed. At the close of 1823, and the early part of 1824, a plan of an insurrection among the slaves on certain plantations in Jamaica had been discovered; and eight negroes had been executed as implicated in the conspiracy. The papers connected with these trials had been laid on the table of the house in 1825; and Mr. Denman now brought the legality and justice of these proceedings under discussion, by moving a resolution to the effect, that the house having taken into consideration the trials which took place at Jamaica for rebellion, conspiracy, and other offences, in the years 1823 and 1824, deem it their duty to express their sorrow and regret at the violation of law which took place upon the said trials; that they lament the manner in which the sentence of death was passed and executed; and recommend some alteration in the mode of administering the code of criminal justice affecting the slaves in the said colony. This motion was prefaced by a speech of great eloquence, analyzing the evidence upon which the accused had been convicted, demonstrating its contradictions, its insufficiency, its absurdity, and arriving at the conclusion that such atrocities, perpetrated under the mask of justice, and the law of evidence which permitted them, required the abolition of the system which placed a negro for trial before interested masters for his judges and jury; and in giving him an appeal to the council, merely gave him an appeal to another body of masters equally prejudiced. Having detailed the trials at length, Mr. Denman said he proposed the above resolutions, that the commons of England might have an opportunity of raising their voice against such acts of crying injustice and barbarity. He was ably seconded by Mr. Brougham, who, in the course of his speech, declared that if the circumstances of undefended justice passed unreproved, it would go out to the West Indies that the same error, injustice, or cruelty might be committed again and again with impunity, so long as the present system continued; and if the house negatived the motion, it would set the seal of its sanction on a great and crying injustice, and do more than it would be able speedily to undo towards perpetuating the existing system in our colonies. On the other hand, it was maintained by Mr. Wilmot Horton that the courts had only applied the law which they were bound to apply; and that they had applied it according to the forms required by that law, and in circumstances which fairly called for the interference of the legal authorities. He moved an amendment, that the house sees in the proceedings brought under their consideration a further proof of the evils attendant upon slavery, and derives from them an increased conviction of the propriety of resorting to the measures recommended by government in the order of council; but does not deem it necessary, however desirable a change of the law may be, to impeach the sentences passed according to law by a competent trial, and convicted by a jury sworn to give a verdict according to the evidence. This amendment was supported by the attorney-general and solicitor-general, both of whom, however, frankly admitted the vices of the system of law under which the proceedings in question had taken place. It was impossible, said the attorney-general, to look at the case, arising as it did out of the vice of the system, without wishing for a change. If the white man upon his trial had an opportunity afforded him of knowing the charge, and thereby preparing his defence, why should not the black slave have the same advantage? An act of the legislature had lately passed to compel the charge to be delivered in writing. This act was brought into the colonial legislature of Jamaica; but it was accompanied by a proviso that no objection should ever be made on a point of form. Men were prone to confound substance and form to be permitted this latitude. An instance of this was supplied in the present case. The prisoners were accused of being guilty of a rebellious conspiracy, and other charges; thus the prosecutor could adduce whatever evidence he chose under a charge so very broad. Here was a conspiracy charged; but with whom? No individuals were mentioned. Any overt act specified? Time? No time certified. Place? No circumstance or place. When the Slave Evidence Bill was introduced into the colonial assembly of Jamaica, it was rejected on the ground that the slave was too low in the scale of moral beings; that he had no character, no distinct notion of morality, no notion of religion, or of the distinction between truth and falsehood. But when the slave was to be tried, other slaves were admitted as witnesses; and that, too, on their bare word, and an exhortation from the judge not to speak falsely. It was a known rule in this country—and the common law of England was in force in the West Indies—that hearsay evidence should not be received; yet the whole course of these proceedings showed manifold departures from this important rule: while it was an acknowledged law in regard to the whites, it had no application in regard to the blacks. But while the law was acknowledged to be bad, it was argued, that it was another thing to pass a vote of censure for the observance of it, however defective it might be. The house ought, it was said, to separate the defects-of the law from the alleged delinquency of the parties, and reject a motion which went, not to denounce the system of slavery or to censure the law, but to condemn individuals who had no power to alter the one, or to abolish the other. On a division the amendment was carried by one hundred and three against sixty-three. During this session, however, delay and remedial measures were suggested by Lord Liverpool in the upper house, and by Mr. Canning in the commons, for the extinction of slavery. Mr. Canning declared that if immediate and hasty steps were not taken, our West Indian possessions would be abandoned to a state of savage desolation, of which wild speculators had not the slightest notion. At the same time he was obliged to confess that in most of our colonies the exhortations sent by government, for the amelioration of the condition of their slaves, had been treated with intolerable neglect and contempt. In the lords the resolutions were objected to, on the ground that they were too feeble for the nature of the subject; that though adopted they would produce no practical effect; and that the three years which had elapsed since they were voted by the house of commons—for they had been adopted in May, 1823—had furnished irrefragable evidence of their futility. Lord Calthorpe expressed his deep regret that the commons had not passed resolutions more conformable to the light in which slavery ought to be regarded by a Christian community, and that their lordships were now called upon to concur in opinions better suited to their own dignity. There were not ‘wanting members in the commons who were equally desirous of legislating in the spirit of Christianity, equally with his lordship. It was maintained there with great eloquence that slavery was inconsistent with Christianity and the constitution. Occasion was given for the expression of these sentiments in the commons, by a motion made by Mr. Brougham on the 19th of May, to the effect that “the house has observed with extreme regret that nothing had been effected by the colonial legislature, in compliance with the declared wishes of government and the resolutions of the house of the 15th of May, 1823, for ameliorating the condition of the slaves in the West Indian colonies; and that this house, therefore, pledges itself, early in the next session of parliament, to take into its most serious consideration such measures as may be best calculated to carry into effect the recommendation of the government and the house.” This motion was supported by Dr. Lushington and Mr. Denman; but opposed by Messrs. Canning, Ellis, and Horton. Mr. Canning, however, asserted that government only wished to retard a little the attainment of the object, in order that they might arrive at it with greater security. Sir T. Ackland said, that he did not wish directly to negative the motion; but as he thought the adoption of it would retard the good effects to be looked for from the resolutions of 1823, he moved the previous question, which was carried by a large majority. In the upper house, on the 17th of April, Lord Suffield brought forward a motion to prohibit persons in official situations in the West Indies from being proprietors of slaves; a motion which, he said, had no connexion with the emancipation of the negroes; and was directed not so much to the conceding of civil rights, as to the preventing of criminal wrong. The same topic was brought before the commons by Mr. W. Smith on the 20th of April; but the resolutions thereon were negatived in both houses. At the close of the session, indeed, the colonial legislatures were allowed further opportunity of showing how far they were inclined by timely concessions and purposes of good faith to avert the direct interference of the mother country in their internal regulations.
MODE FOR AMENDING THE REPRESENTATION OF EDINBURGH, ETC.
During this session Mr. Abercromby moved leave to bring in a bill to alter and amend the representation of the city of Edinburgh, which, he said, contained a population of more than 100,000 inhabitants, while the elective franchise was in the hands of a town-council of thirty-three members, self-elected, and what were called the vested rights of that body were generally the principal obstacles thrown in the way of a better system. This motion was strongly opposed by the members for the town and county of Edinburgh, on the ground that no corruption had been charged against the corporation of Edinburgh; and by Mr. Canning, who considered it was intended to undermine the barriers which resisted the inroads of a more wide and sweeping innovation. Mr. Canning also brought forward the unexampled prosperity of Edinburgh, and the contentment which pervaded its population, as a convincing proof of the excellence of the old system. After expatiating on the advantages connected with the Scotch representation, he remarked that his objection to the present motion was its application, as a single instance of reform in a borough, to the general question. It was not unusual, he said, to bring forward an attack on a single borough by an allegation of the prevalence of abuses; but it was quite new to institute a charge against it because its elective was not in proportion to its actual population. This principle, if once admitted, would let in the general question of reform, which would lead to endless squabbles. At the same time he expressed a hope, that the motion might be repeated annually; but it was to this end, for the innocent gratification of Lord John Russell and those who advocated reform! On a division the motion was lost. About the same time that this question was discussed, Sir John Newport moved for leave to bring in a bill for the repeal of the Irish act, 21 Geo. 2nd., c. 10, relating to the elective franchise. By that statute it had been enacted, that, in consequence of the difficulty of finding a sufficient number of resident Protestant freemen, sufficiently wealthy and sufficiently educated to exercise the elective franchise, non-resident freemen should be entitled to vote. Sir J. Newport argued that the cause which produced these enactments had ceased to operate, and that therefore the act itself ought to be removed from the statute-book. On the other hand it was argued by Mr. Plunkett that the country had gone on for seventy years with the principle of non-residence applied to boroughs and corporate towns, and that the effect of the measure would be to affect vested rights, and disturb persons actually in possession. If that act were repealed, he said, the election of every officer of a corporation would be impeachable. The house should especially pause before it assented to such a proposition on the eve of a general election, a proposition, the effects of which upon existing rights, could not be measured. The motion was negatived by seventy-six against thirty-eight.