The Law and the Poor

by Sir Edward Abbott Parry

Anthony Knapp and William Baldwin:
Preface to “The Newgate Calendar,” 1824.

The progress we have made in the reform of criminal law in the last hundred years is really remarkable. In very recent days we have at last allowed the prisoner to give his evidence of the matter he is charged with if he desires to do so. We have, under certain restricted conditions, supplied him with legal assistance, and, best of all, there is at length a Court of Criminal Appeal.

It is interesting and encouraging when your mind has a bent towards legal reform to see how past reforms have come about. As recently as 1826 prisoners accused of felony were not allowed counsel, and the Rev. Sydney Smith, who had a winning way of stating the case of the Law and the Poor in his own day, was pleading in the Edinburgh Review for a reform of this matter. One would have thought then, as one often thinks now, that a mere statement of the issue would have been sufficient. This is a picture of things as they were. “There are seventy or eighty prisoners to be tried for various offences at the Assizes who have lain in prison for some months; and fifty of whom, perhaps, are of the lowest order of the people, without friends in any better condition than themselves, and without one single penny to employ in their defence. How are they to obtain witnesses? No attorney can be employed—no subpœna can be taken out; the witnesses are fifty miles off perhaps—totally uninstructed—living from hand to mouth—utterly unable to give up their daily occupation to pay for their journey, or for their support when arrived at the town of trial—and if they could get there, not knowing where to go or what to do. It is impossible but that a human being in such a helpless situation must be found guilty; for as he cannot give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against him must be taken for true (however false) since it is impossible for the poor wretch to contradict it.”

And yet, absurd as it seems to us to-day, the prisoner’s right to counsel was not obtained without a severe struggle. At the back of the mind of those who opposed the reform was the idea that as prisoners were accused by the Crown it was an act of disloyalty to defend them. Ridiculous as that idea is it still exists in a form that is interesting only as showing that the tradition was once a reality. A King’s counsel has to obtain leave from the authorities, and pay a small tribute therefore, before he can appear for a prisoner and against the Crown. Leave is never refused, but the existence of such a curious custom is only comprehensible by studying the folklore of the subject.

A hundred years ago this folly sanctioned by antiquity was a reality. The defenders of the position said it was really all done in the interests of the prisoner. His witnesses were not put on oath, and this allowed them to tell any falsehood they wished; he was saved the expense of his counsel—as though he preferred economy to hanging—and the judge, he was told, was his counsel—an arrangement that the prisoner cannot have been very grateful for when he heard his counsel on the bench summing up to the jury for a conviction. The nonsense that was talked and written on this subject is encouraging to those who want things done to-day. Against all reforms, arguments of this kind have to be listened to and laughed out of Court, but to-day we are in a better position than Sydney Smith was, for we often find in the official world a human being ready to help on a reform when the time is ripe for it. In his day common-sense and common humanity had not permeated into Government offices, “the Attorney-General and the Solicitor-General for the time being always protesting against each alteration and regularly and officially prophesying the utter destruction of the whole jurisprudence of Great Britain.” It was not until ten years after the Edinburgh Review article was written that Parliament in August, 1836, passed an Act to permit prisoners charged with felony the right to be defended by counsel. And yet there are many people who think we move too fast in necessary reforms.

Sydney Smith mentions as one of the injustices to the prisoner his inability to give evidence. This remained a disability until our own time and was only removed with great difficulty and against the advice of many learned lawyers. The folklore of the subject is quite entertaining. Our ancestors considered, from introspective knowledge of themselves and their neighbours, that no one with any interest in a dispute was likely to speak the truth about it, they therefore did not allow the parties to a suit to give any evidence at all. This was the old law in both civil and criminal cases. Thus you may remember that in the great case of Bardell v. Pickwick neither plaintiff nor defendant gives evidence, because in law at that date they were not competent witnesses. The inconveniences of this in civil matters was patent to everyone but the lawyers. Writing on the incompetency of witnesses to give evidence, Bentham said with some humour, “in the bosom of his family the lawyer by the force of good sense returns to the simple method from which he is led astray at the bar by the folly of his learning. No one is so deeply tainted with his judicial practice as to apply its rules to his domestic affairs. If you would represent madness—but a madness where all is melancholy and unintelligible—you have only to imagine an English barrister carrying into ordinary life the fictions, the rules, and the logic of the bar.” Certainly we cannot believe that when Sergeant Snubbin returned to his house and found a dispute raging between his cook and his butler that he tried to find out the truth about it without hearing what either of them had to say.

In 1846 when County Courts were established, the parties and their wives were allowed to give evidence, and so obvious were the advantages of this that in 1851 Lord Brougham passed the Evidence Amendment Act extending the system to other Courts. The only thing that surprises us to-day is that there could ever have been any question about the necessity of allowing parties to give evidence if it was really desired that they should have justice.

But we still clung to the right of the prisoner to keep his mouth shut, and in our insular way boasted of his privilege. Thackeray is horrified by the examination of the prisoner in the ordinary French way. “In England, thank heaven, the law is more wise and merciful!” He sees in the French Government advocate an official seeking in every way to draw confessions from the prisoner to perplex and confound him and to do away with any effect that his testimony might have on the jury, and he thanks heaven openly that we should “never have acted as these Frenchmen have done.” What really troubled Thackeray’s patriotic mind was the indecency of asking the prisoner any question at all. Victorian Englishmen of all grades were peculiarly proud of our criminal administration of justice and considered the privilege of the prisoner to keep his mouth shut was the keystone of the edifice.

Dickens approached the matter more hesitatingly: “I wonder,” he writes, “why I feel a glow of complacency in a court of justice, when I hear the learned judges taking uncommon pains to prevent the prisoner from letting out the truth. If the object of the trial be to discover the truth, perhaps it might be as edifying to hear it even from the prisoner, as to hear what is unquestionably not the truth from the prisoner’s advocate. I wonder why I say, in a flushed and rapturous manner, that it would be ‘un-English’ to examine the prisoner. I suppose that with common fairness it would be next to impossible to confuse him unless he lied; and if he did lie I suppose he could hardly be brought to confusion too soon.”

This being the Victorian attitude in the matter it was hardly to be wondered at that the reform was delayed until our own day. Yet I doubt if anyone conversant with the criminal Courts would doubt that although there are cases where it has been to the disadvantage of the guilty to go into the witness box, it has been of enormous value to the innocent that he can give his own account of things to the jury.