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Old Bailey for the murder of Robert Castell, and acquitted, Mrs. Castell, the widow, sent out an " appeal of murder” against Bambridge and Corbett, the deputy warden of the Fleet, when the appellees put themselves upon the country and were tried before Lord Raymond, and a jury of London merchants. “The appellees were ably defended (says Lord Campbell) by Serjeant Darnell and Serjeant Eyre, who both addressed the jury in their favour in long and eloquent speeches, and, by calling witnesses, they made out a clear defence" (Life of Lord Raymond).
In the case, however, of prosecutions at the suit of the public or of the State, the relation of the parties was completely altered—it was no longer two private litigants pitted against each other in a lawsuit, but a solemn public enquiry in which everything, save the interests of the community, seemed to be ignored. And the accused was dealt with in a spirit strangely at variance with our modern notions of fairness.
The time was when the difficulties an accused person had to contend against were much greater than they are now; when the supposed common law right of every subject to appear by counsel, whenever that privilege was accorded to the other side, though always conceded in cases of misdemeanour (6 State Trials, 797), was long subject to exceptions in cases of treason and felony, in which he could neither have counsel to deal with, nor witnesses to depose to, facts on his behalf. On the trial of Sir Nicholas Throckmorton for treason in 1554 (I State Trials, 870), the prisoner proposed to call a witness on his behalf; and, having called him, this is what happened, in the words of the report :
" Then John Fitzwilliams drew near to the bar, and presented himself to depose his knowledge in the matter in open Court.
"Attorney-General : I pray you, my lords, suffer him not
be sworn, neither to speak; we have nothing to do with him.
“Throckmorton: Why should he not be suffered to tell truth? And why be ye not so well contented to hear truth for me, as untruth against me ?
“ Hare : Who called you hither, Fitzwilliams, or commanded you to speak ? You are a very busy officer.
“Throckmorton : I called him, and do humbly desire that he may speak, and be heard as well as Vaughan, or else I am not indifferently used; especially seeing Master Attorney doth so press this matter against me.
“Southwell: Go your ways, Fitzwilliams, the Court hath nothing to do with you; peradventure you would not be so ready in a good cause.
“ Then John Fitzwilliams departed the Court, and was not suffered to speak."
He might, indeed, have any point of law that arose argued by counsel if the Court thought proper to allow it; but as to facts, which it was alleged must be best known to himself, he was thought to have no need of aid (5 State Trials, 466). In 1377 on the prosecution of Latimer he craved "counsel and day," but William of Wykeham said it was not meet he should have counsel or day, "for no man knew his deeds so well as himself” (St. Alban's Chronicle, Appendix to Introduction, p. 72). So likewise at the trial of Don Pantaleon Sa, on a charge of murder, in 1654, he prayed that he might have the assistance of counsel in conducting his defence. Rolle, C.J., said, “By our rules of proceeding this may not be. On questions of law only, are prisoners tried for felony to have the assistance of counsel. With respect to facts they are supposed to be competent to conduct their own defence, and in this case you shall find that we the Judges stand equal between you and the Commonwealth" (5 State Trials, 460).
And although this “rule of proceeding” remained in
force for 182 years after this, its hardship was even then recognised. Lord Commissioner Whitelock writes :"I confess I cannot answer the objection that for a trepass of 6d. value a man may have a counsellor-at-law to plead for him, but when his life and posterity are concerned he is not admitted this privilege and help of lawyers. A law to reform this, I think, would be just, and give right to the people. What is said in defence, or excuse, of this custom is, “That the Judges are of counsel for the prisoners, and are to see that they shall have no wrong. And are they not to take the same care of all causes that shall be tried before them?” (Whitelock's Memorials, November, 1649).
Gradually, and with halting steps, the reform of these abuses has been effected, though their removal has, in some instances, been more owing to the vehemence of party spirit than concern for the liberty of the subject. To the Jacobites we owe the “ Bill for regulating trials in cases of treason and misprision of treason”-a bill strenuously resisted by the Whigs and vilified by Burnet, who didn't understand it---but ultimately carried in spite of obstinate opposition and after many failures. Sir William Parkyns was tried for high treason on the 24th March, 1695-6, after the above Act had passed, but one day before its provisions were to come into operation. He applied for a postponement of his trial--if only for a day-which would have entitled him to have the aid of counsel in his defence; but it was refused, and on his urging that counsel should be allowed him, the statute declaring that "it was always just and reasonable,” Holt, C.J., replied, “We are to proceed according to what the law is, and not what it will be.” This Act—the 7 & 8 Will. III. c. 3—allowed counsel in treasons; the 20 Geo. II. c. 30, conceded a similar right in Parliamentary impeachments; and in 1836 was passed the 6 & 7 Will. IV. c. 114, which enacted that “ from and after the first day of October next, all persons tried for felonies
shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto by counsel learned in the law, or by attorney in Courts where attorneys practice as counsel.” Indeed, so careful has the law grown of the liberty of the subject, and so great its anxiety to deal fairly with him, that in cases where no counsel is employed for the prosecution, the prosecutor is not allowed to address the jury, but the evidence is gone into at once.
Though the Queen is the “one visible magistrate ” to whom has been confided the conservation of the public peace—though every crime is, at common law, alleged to be against her peace, and she is bound to lend the sanction of her name to the prosecution of any indictment found by a Grand Jury—we have ventured to enumerate prosecutions at the suit of the Crown and of State, not in their representative capacity, but as the "parties aggrieved,” as forming a distinct branch of the prosecutions known to the criminal law of England. For the Queen's ordinary suits are of two kinds : either she acts upon the information or relation of other men as, for example, in indictments, which are found upon the oaths of a Jury, when the Queen appears as formal prosecutor, e.g., “ The Queen on the prosecution of A. B. ;” or she appears as the actual prosecutor in informations at her own suit, &c. . For this latter purpose she has her Attorney-General, whose duty it is to exhibit informations and to prosecute for the Crown in matters criminal. He proceeds as the actual prosecutor for the Crown, and enjoys as his prerogative the right of exhibiting and filing ex-officio informations in the name of the Sovereign in criminal cases. This officer, of whom Wilmot, C.J., says he finds no traces for centuries after the Conquest, was in Spelman's opinion the great officer for pleas of the Crown, who prosecuted by his own proper authority for the King. The Attorney-General, said Yates, J., in Rex v. Wilkes, 4 Burr. 2527, is the officer of the King.
Informations exhibited by the King's Attorney-General are considered as the King's own prosecutions, and are called “Declarations for the King," therefore no costs are paid upon them. In the other informations (i.e., those filed by the Master of the Crown Office at the suit of a subject), costs “are often payable.” And in the same case, Lord Mansfield observes:-"An information for a misdemeanour is the King's suit. The title of the cause is, "The King against the Defendant.'”
From an early period it seems to have been customary for the Attorney-General, when he appeared ex officio as the prosecutor for the King, in informations, treasons, &c., and what were emphatically State prosecutions, to claim the privilege or prerogative of having the last word under all circumstances. This claim seems to have been readily conceded in deference to the high authority on whose behalf it was demanded; and as the Sovereign was not bound by the ordinary rules as to the time within which he could pursue his remedy, there was, perhaps, nothing surprising in his conducting it in a different manner from that of oi molloi. On the trial at Bar of Dr. Hensey, for hightreason, 1578, 'although no evidence was called for the prisoner, York (Solicitor-General), as the second counsel in the case, was allowed to reply on behalf of the Crown. On the trial of Robert, Earl of Somerset, before the Lord High Steward, in 1616, after the evidence for the prosecution was closed, and the prisoner had made his defence, the AttorneyGeneral (Sir Francis Bacon) said : “ It hath, my Lord, formerly at arraignments been a custom, after the King's Counsel and the prisoner's defence hath been heard, briefly to sum up what hath been said ; but in this we have been so formal in the distribution, that I do not think it necessary."'* So on the trial in the King's Bench, on indictment
* Bacon seems to have been ready on all occasions to assert his prerogative, In the case of the Lords Presidents of Wales and York, 12 Coke, 53, " and for