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enactment, although the courts of quarter sessions there did not exercise their jurisdiction to the same extent as they now do in this country. By the 5 & 6 Vic. c. 38, after reciting that it was desirable to define the limits of the jurisdiction of courts of quarter sessions, and excepting from the operation of the statute, the Recorder's courts of some of the principal towns, it was enacted, that courts of quarter sessions should not inquire into cases of misprision of treason, perjury, forgery, malicious burning, bigamy, abduction, concealing child birth, offences against the bankruptcy laws, a number of other cases unnecessary to give or detail, as those which I have named will be sufficient to shew the scope and policy of the Act. Our local authorities, that is the latest who interfered in the matter (1840,) have thought proper to encourage the exercise of the widest jurisdiction of these courts while the English legislature has been reducing them to reasonable and proper limits.
Permit me now to say a few words with regard to the tribunal to which this fearful power is entrusted.
It is far from my intention to make any observations of an injurious character upon the Assistant Barristers of this country. As a body they are competent and honorable men, upon whose conscientious and correct discharge of their duties reliance may be placed; many of them are men of commanding abilities and great legal attainments, who would adorn the bench. It seems to me however, that the two great, I might say the only safe guards for protection from abuse are wanting in those courts the presence of a bar, and the influence of public opinion. Such enormous power for good or evil wielded even by an honest and capable man, when subject to no proper control, must be looked upon with the gravest apprehension. If in addition we bear in mind, that the magistracy of the county have a right to take their seat upon the bench with the Assisiant Barrister, to take part in the conduct of the criminal business and form part of the court, to talk over the case with the presiding judge of the court, to make impressions favorable, or otherwise upon his mind with regard to the prisoner upon trial, it would be a rash thing to assert that such a tribunal is the most satisfactory, is even a fair one, espe cially when having to deal with cases of the magnitude of those which they are in the habit of disposing of. I mean to convey no imputation on either Assistant Barristers or magistracy. Country gentlemen who are in the commission know not of the necessity for a perfectly unprejudiced and dispassionate frame of mind, in entering upon an enquiry as to guilt or innocence. They know not of the jealous care which the constitution requires to be observed when questions regarding the liberty of the subject are entertained, and although the Assistant Barrister may try to disabuse his mind of any impressions made by the observations of his brother magistrates, he must insensibly and to a greater or less extent be influenced. I do not lay so much stress on the fact that the accused has not the assistance of counsel, as the judge in the discharge of his high duties when perfectly unbiassed, and it may be with a bar before him, to remind him of those duties, will give the prisoner every proper assistance, deeply impressed as he must be with the presumption of innocence, until guilt be established. If a man of any rank or means be brought into the Court of Quarter Sessions to take his trial upon a criminal charge, he has it in his power to furnish himself with a certain amount of protection; he can bring down special counsel for his defence, and pay reporters for a special report of the case, and thus if there has been any undue interference or any misconduct, he can through the medium of the press, bring public opinion to bear on the abuse. When the accused person has something of social position superior to the
peasantry, he is generally, though not always, sent to the assizes to take his trial, when the poor man under similar circumstances, or on a similar charge, would be sent to the Court of Quarter Sessions. The Peasant, although by a conviction he does not lose so much as those above him in the social scale, who in addition to the punishment directed by the Court, forfeit character and position, should be as amply cared for, as the other members of the community; and to a reflecting mind it must be grievous to think that an unsatisfactory tribunal has to enquire into the charge brought against an humble man, and still worse, that an unsatisfactory tribunal has to mete out the punishment, with, in most cases, a fearfully large discretion entrusted to it, as for instance, as regards transportation a range of from seven to fifteen years and upwards, and from imprisonment for a few months to two years, together with the full discretion given to the judge at assizes, in all those cases in which penal servitude is substituted for transportation. I care not how upright or conscientious the Assistant Barrister may be, the constitution of his court tends to make him the irresponsible despot of that court; and though it may be for the public interest that the numerous paltry cases of stealing fowl or linen by vagrants, or of squabbles in pot houses should be disposed of with reasonable celerity and at a small cost at Quarter Sessions, it must be deprecated that the wide and extensively exercised purisdiction of these inferior courts should not be very considerably limited. A return of the number and class of cases tried at Quarter Sessions, together with the convictions and nature and amount of the punishments, has I understand been ordered by the proper authorities to be made, and until that return appears, one cannot enter fully or satisfactorily upon the question; even without the light, however, which this return will throw upon the subject, one can come to a conclusion by looking to the constitution of these courts, their large jurisdiction, the extent to which that jurisdiction is exercised, and the vast discretion as to punishments, confided to the judge, or if the magistrates think well to interfere to the majority of the court, and the gross defects and objections, which I have rather glanced at than fully discussed.
I have considered the objections to the present system solely as they effect the accused. There is however, another, though not quite so important, a view in which the wide jurisdiction of the Court of Quarter Sessions will appear objectionable, viz., as regards prosecutions. The gentlemen, who appear at Quarter Sessions to conduct the crown business, although they are generally of very considerable capacity and astuteness, are chosen from the solicitors who practise at the Assistant Barrister's court, and without entering upon such dangerous ground, as discussing the relative merits of barristers and solicitors as advocates, I may observe that I can see no reason why a case which at Quarter Sessions would be conducted for the Crown by a solicitor, if it is brought on in the Court of Assize, requires two or three Counsel, for an effective prosecution. Justice to the accused on one hand, and a due regard to the public peace and security, on the other, seem to demand that in serious cases, the most competent tribunal should alone be entrusted with a task which is now frequently assumed by Courts of Quarter Sessions, and I am so confident that the evil requires only to be pointed out, to be remedied, that I shall for the present rest content with having thus glanced at this evil practice.
Before parting with this subject there is a matter which has recently caused a good deal of discussion in legal circles, as materially affecting the administration of the law, upon which I should wish to make a few
observations. A gentleman of whose qualifications for the office there can be no controversy, has recently been removed by the Attorney General, from the post of crown prosecutor ou the Connaught circuit, on the ground of his declining to act upon the instructions, that permanent crown counsel should not hold civil briefs in the towns in which they were to conduct the prosecutions for the crown. Such a proceeding is one disagreeable to all concerned, and unless the removal were on clearly sufficient gronnds would establish a most unfair and improper precedent. Looking however to all the circumstances of the case, one must conclude the Attorney General acted rightly, and that odious as the task must have been to him, that he must be considered as merely discharg ing a high duty which he owed to the public. It is a matter of notoriety, that when there has not been some stipulation of this kind, that the interests of the crown, or rather, the public business, was shamefully neglected, and that crown prosecutors, who held as it were a patent office, whenever the interests of their private clients in the record court clashed with the discharge of their public duty, have entirely neglected the latter. That public opinion is with the Attorney General is beyond all doubt. Amongst his brethren however, there is some controversy on the propriety of his conduct, as it is said by the few who think him wrong, that this is but a step to degrade the bar, and to place on them a restraint previously unknown, and which should not be tolerated. If this were so, we do not think that Mr. Keogh was right, as a paramount care must be taken for the privileges of those whose integrity, high character, and freedom from control is s0 essential to the preservation of public and private rights, that anything which should trench upon their privileges, must eventually be a public calamity. Considering however, what is urged by those who object to Mr. Robinson's forced retirement, I cannot think that any privilege of the bar has been trenched upon. The principal objection to the Attorney General's instructions, is that it is unusual and improper to attempt to impose any conditions on counsel when giving him a brief, and that the conduct of the Attorney General is the same as that of a private individual, who should send a brief to counsel, requiring an undertaking that while the case was on he should not leave court. The latter, no barrister would tolerate. If he be not a man in the most extensive practice, likely to be called elsewhere, his own honor as well as his own interests are involved in attending to his client's case. If he be a man in large practice, the client knows this before hand, and is ready to pay his fee for the chance of his attendance during the whole or the greater part of the case, and is forced to have, perhaps, an additional leading counsel, when these gentlemen will make as is usual such arrangements amongst themselves as to provide for the proper conduct of their client's case. There seems, however, to be an essential difference between the Attorney General requiring the constant presence of the crown counsel in the crown court, and that of a private client, or an attorney making the same request. The Attorney General appoints to an office, and the crown solicitor is bound to send the brief in every case to his appointee. There is an obligation imposed upon the crown solicitor, which is not and could not be imposed on an attorney. The appointment to a crown prosecutorship, rather resembles that to the chairmanship of a county, with this difference, that now the chairman is paid by a fixed salary, while the crown prosecutor is paid by fees. The Assistant Barrister is bound by Act of Parliament to sit at certain periods for the discharge of the public duty, and I need hardly say that this is quite inconsistent with his being engaged as counsel at the same time, and
yet I have never heard it objected, that there was any unfair condition imposed on those gentlemen who are appointed to preside at the different Courts of Quarter Sessions. Some of our Assistant Barristers are men in considerable practice, and yet no person ever heard them complain that they were bound to sit at certain periods, to the loss of their practice in the superior courts, that the restriction or whatever it may be called, was an unfair one, or that they were badly treated, in not being allowed to choose their own time for holding their courts, and in not having the entire discharge of their public duty left to their own discretion. We should be jealous of the slightest infringement on the privileges of the bar, but at the same time before an outcry is raised, we ought to examine carefully and ascertain whether or not those privileges have been invaded. I know as a matter of fact, that the senior crown prosecutor on one of the northern circuits, who was appointed many years ago, was requested to give his undivided attention to the criminal business, and on that account declined taking civil briefs, and has continued to do so. The result is, that the gentleman of whom we speak, is one of the best informed criminal lawyers in this country, and discharges his duty in the most efficacious and satisfactory manner. He has suffered considerably it is true, in completely losing his circuit practice, but then he has had his choice. If a gentleman who is offered one of those posts, thinks that the crown business will not give those opportunities for displaying either great learning or great abilities, of which he may be the conscious possessor, he may decline the office and thus play a more ambi. tious game, and take a course which would in his opinion be more for his benefit. It must be, and is a very considerable injury to men in extensive practice, to take the chairmanship of a county, and they may feel that it is irksome to have any duty to discharge, which can interfere with their private practice. It is for them however, to balance the advantages and the disadvantages of accepting the post, and until we hear that assistant barristers have made out a case of undue hardship or interference with their privileges as counsel, one cannot allow that such a stipulation as the Attorney General imposes on the permanent crown prosecu. tors can be fairly objected to, neither can one help thinking that the course adopted by Mr. Robinson, knowing, as we all do, his connection with a party who hesitate at nothing which could damage or discredit the present ministry, was mainly intended to put the Attorney General into a false position, and force upon him the odious and unpopular task of dismissing a brother barrister, and nursing a grievance to be made use of whenever the opportunity should present itself.
Although from the scanty materials attainable I have been unable to do more than make a few crude observations on the present system of sending serious cases for trial to Quarter Sessions, I have no doubt that calling attention to the subject, and awakening public interest will help to remedy the evil, and that even with the scanty information we possess, that every person who gives the matter a thought will perceive the necessity for some amendment in the existing law, and I should be anx. ious to learn why it is, that an enactment such as the 5 & 6 Vic., c. 38, to which I have already adverted, should be considered advisable in England, and not in this country.
I am, Sir, etc.,
AN APPRENTICE TO THE LAW.
[We have inserted the foregoing letter, not as a defence of the Attorney General's proceedings, but because we consider its arguments and suggestions of very considerable importance. In fact, we know that in most circuits the Crown business has been frequently neglected, when a due attention to his duties interfered with the private practice of the Prosecutor. It would be desirable to retain, if possible, lawyers of standing as Prosecutors and as Assistants, but if for the public service gentlemen of standing and ability cannot be secured, it is in our mind a matter of paramount necessity, that these gentlemen should be permitted to retain their private practice, and that in their places as public Prosecutors, gentlemen of equal ability and honor, though perhaps not of equal standing, should be appointed as their successors. We are not of that class who believe that a lawyer's knowledge is to be estimated by the date of his call, and we believe that a Crown prosecutorship should be the mark of Government appreciation of learning and aptitude, not as a thing obtained through judicial connexion, family influence, or political time-serving.—ED. I. Q. R.]