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New Statutes effecting Alterations in the Law.
that question be resolved in the affirmative, the existing trustees (if such there be) shall be the persons to execute the purposes of this act; but if there be no existing trustees, the owners shall proceed to appoint at that meeting, or at some adjournment thereof, not less than five nor more than eleven persons, being owners, to be "elected trustees for the purposes of this act, and the incumbent for the time being shall be ex officio an "elected trustee " in addition to the trustees so appointed.
5. A certificate under the hands of two justices (not being in themselves owners) having jurisdiction in the parish, township, district, or place within which the church or benefice in question is situate, certifying that the consent of the owners to a sale of the advowson has been duly obtained, and (in those cases where it is necessary that "elected trustees be appointed) containing the names, residences, and description of the "elected trustees," shall be sufficient evidence of such consent and of such appointment, and any two justices having jurisdiction as aforesaid are hereby authorised and required, on application to them made, and on being duly satisfied of the truth of the facts, to certify accordingly.
6. Immediately upon the grant of such certificate the advowson shall become absolutely vested in the trustees for the purpose of effecting such sales, freed from all the uses, trusts, and declarations for the benefit of or otherwise relating to the owners then affecting the same, but subject to the right, title, estate, or interest (if any) of every other person therein; and the trustees shall, as soon thereafter as conveniently may be, sell the advowson by public auction, or by private contract, and subject to any special conditions, as to them shall seem expedient, and may buy in the same at any auction, and re-sell the same by public auction or by private contract without being answerable for any loss which may happen by such re-sale, and shall have full discretion in the premises, and may execute and do all contracts, deeds, and other acts necessary for effecting such sale.
7. Any conveyance of an advowson in pursuance of this act shall be by deed (duly stamped) under the hands and seals of any three of the trustees, in which the consideration shall be truly stated.
8. The receipt in writing of three of the trustees for any money paid to them by a purchaser of the advowson shall be an effectual discharge to such purchaser for the sum which in such receipt shall be acknowledged to be received, and such purchaser shall not be obliged to see to the distribution of such money, or be otherwise answerable or accountable for the loss, misapplication, or nonapplication thereof.
9. The monies to be received by the trustees from or by means of such sale shall be applied by them in the following order :
First. In payment of the costs, charges, and expenses occasioned by any meeting of owners as aforesaid, and by the execution of the powers by this act conferred upon the trustees, or incident thereto, respectively:
Second. If there be no parsonage house attached
to the advowson so sold, or if the parsonage house attached thereto be dilapidated or insufficient, then in payment of the expense of erecting a parsonage house, and of providing a site for the same, or in the reconstruction or repair of the existing parsonage house, or in .making any requisite additions thereto, as the circumstances of the case may require :
Third. If the living be under the gross yearly value of one hundred and fifty pounds, then in investing a sum sufficient to produce an annual income which, together with the existing annual income, will raise the yearly value of the living (exclusive of the parsonage house) to not exceeding one hundred and fifty pounds
Fourth. If the fabric of the church be in such a state as to require immediate repair, then in the expenditure upon the fabric of a sum sufficient to place the same in sufficient repair:
Fifth. In the investment of a sum the annual income whereof wil, in the opinion of the trustees, be sufficient to maintain the fabric of the church in complete repair:
Sixth. In the erection of schools in connection with the church, or of a chapel of ease in the parish, township, ecclesiastical district, or place in which such church is situate, or of a parsonage house to a chapel of ease, or in providing a site for a chapel of ease or parsonage house, or in the endowment of a chapel of ease, or in contributing to such objects or any of them, as the trustees may in their discretion see fit:
Seventh. If there be no such purposes to which such moneys are applicable, or if there be a surplus of such moneys after answering such purposes, then such moneys, or the surplus thereof, as the case may be, shall be invested, and the annual income thereof shall be applied, in aid of the rates levied for the relief of the poor of the parish, township, or place in which the church is situate, or in aid of any improvement rate levied therein :
Provided always, that the owners at any meeting convened and held in manner herein provided, may determine that any one or more of the objects mentioned in the fifth, sixth, and seventh heads of application respectively shall have priority over any other object mentioned in those heads.
10. The trustees shall from time to time invest any moneys by this act directed to be invested by them in the purchase of any government or Bank of England or East India Company's Stock or securities, or on mortgage of freehold or copyhold lands in England or Wales, or in the mortgages or bonds of any company incorporated by special Act of Parliament, as they may deem fit.
11. The concurrence of two thirds at least of the whole number of trustees shall be necessary to give effect to any resolution of the trustees, and every resolution of the trustees in which that number shall concur shall be binding upon the other trustees and upon the owners on whose behalf such trustees are authorised to act.
12. If any of the trustees, before the complete execution of the trusts by this act devolved upon them, should become incapable or unwilling to act, or reside abroad, the vacancies may, in the case of existing trustees, be supplied in the manner provided by the Act of Parliament, deed, or instrument regulating their proceedings; and in the case of elected trustees the vacancies may be supplied by the owners at any meeting convened and held in manner herein-before provided with respect to the convening and holding of a meeting of owners for the purpose of consenting to the sale of an advowson; and a certificate of two such justices as aforesaid, and which such justices, on being satisfied of the truth of the facts, are hereby authorised and required to grant, that such vacancies have been
New Statutes.-Proposed Criminal Law Amendments.
supplied, and containing the names, residences, and descriptions of the new trustees, shall be conclusive evidence of the facts, and thereupon such new trustees shall have the same property, rights, and powers in and with respect to the advowson as the trustees in whose place they were appointed.
13. Trustees acting by virtue of this act shall not be answerable or accountable for the acts, neglects, or defaults of any co-trustee, or for any agent or banker appointed by the trustees, or for any loss, except such as shall happen through their own wilful act, negligence, or default.
14. In case of the death, cession, or resignation of any incumbent of a benefice after the owners shall have directed the advowson of such benefice to be sold, but before the sale shall have been effected,
aforesaid were exempted in like manner from the operation of the said amendment act, and the exemption so extended was continued until the first day of September, one thousand eight hundred and fiftysix: And whereas it is expedient that such exemption should be continued as herein-after mentioned: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. The said acts shall not, until the first day of September, one thousand eight hundred and fiftyseven, extend or be in any manner applied to the charities or institutions aforesaid.
then the persons in whom the right of presentation PROPOSED CRIMINAL LAW AMEND
and nomination would but for this act have been vested shall (under and subject to the conditions under which such right would but for this act have been exercised) present and nominate a person to such benefice as if this act had not been passed.
15. The owners of an advowson, at a meeting convened and held in manner herein-before provided with respect to the convening and holding of a meeting of owners for the purpose of consenting to the sale of an advowson, may consent to the borrowing of money from "the Governors of the Bounty of Queen Anne for the Augmentation of the maintenance of the Poor Clergy," or from any other society or persons, for the purposes authorised by the acts of the seventeenth year of King George the Third, chapter fifty-three, the twenty-first year of King George the Third, chapter sixty-six, the seventh year of King George the Fourth, chapter sixty-six, and the first and second years of Queen Victoria, chapter twenty-three, as fully and effectually as any patron absolutely entitled to an advowson not within the provisions of this act may lawfully do.
16. The certificate of two such justices as aforesaid, which they are hereby authorised and required to grant on being satisfied of the truth of the fact, that such consent has been duly given, shall be conclusive evidence of the fact, and such certificate shall, for all purposes whatever, be deemed the consent of the patron within the meaning of those acts.
17. This act shall extend only to England and Wales.
EXEMPTION OF ROMAN CATHOLIC CHARITIES.
16 & 17 Vic. c. 137; 18 & 19 Vic. c. 124; Exemption continued until 1st September, 1857.
The following are the title, preamble, and section of the act:
An Act to continue for a limited Time the Exemption of certain Charities from the Operation of the Charitable Trusts Acts. [29th July, 1856. WHEREAS by the Charitable Trusts Act, 1853, it was provided, that such act should not for the period of two years from the passing thereof extend or be in any manner applied to charities or institutions the funds or income of which were applicable exclusively for the benefit of persons of the Roman Catholic Persuasion, and which were under the superintendence or control of persons of that persuasion: And whereas by the Charitable Trusts Amendment Act, 1855, such charities or institutions as
EXTRACTS FROM THE REPORT OF MR. GREAVES, Q.C.*
1, Of imposing the Costs of the Prosecution, &c., upon Defendants.
As cases occur where defendants are possessed of property, it appears but reasonable that in the case of conviction such property should be made available for the purpose of recovering the expenses which have been occasioned by the prosecution of the offence of which the defendant has been convicted. Let it be made the duty of the clerk of arraigns or clerk of the peace, wherever he is informed that the defendant is possessed of property, to issue a writ of a similar form to that given in the schedule to the 3 Geo. 4, c. 46, where recognisances are forfeited, and let it be the duty of the sheriff to execute it. The amount of the costs of the prosecution, as ascertained by the proper officer, should be inserted in this writ, and to them might properly be added the expenses of the maintenance of the prisoner in gaol, which might be ascertained by the certificate of the gaoler. By the 3 J. 1, c. 10, s. 1, every person who is committed for any offence or misdemeanor, having means or ability thereunto, shall bear his own reasonable charges for conveying him to gaol, and the charges also of such as shall be appointed to guard him to such gaol, and shall guard him thither; and a warrant of distress may be issued to levy the This enactment may well form a precedent for the course proposed, and not the less so because it includes innocent as well as guilty persons.
Lord Denman, C.J. (Appendix, 8 Rep. R.C.C.L. p. 212), observed, "The propriety of an enactment fixing the costs of each prosecution on the party found guilty, though equally novel in this country, appears to me unquestionable; even on the conviction of the lowest and most abject it might have some operation, and no trivial one, in deterring men of substance."
Perhaps it might be well to give the power, not only to the court before which the prisoner was convicted, but to any subsequent court, as property might be discovered to belong, or might accrue, to the defendant at a subsequent period.
2, Of awarding Compensation to the Party injured by the Offence.
Wherever persons possessed of property are convicted of any offence productive of injury to individuals, there seems to be no doubt that the party in
*These suggestions, which relate to the costs of prosecutions and defences, and the property of prisoners, particularly deserve the attention of solicitors engaged in this department of practice.
Proposed Criminal Law Amendments.
jured may, in an action, recover the amount of injury sustained; and it has been suggested that the jury, who convict a prisoner, might beneficially be empowered to assess the amount the defendant ought to pay by way of compensation for the injury he has inflicted. There appear, however, considerable grounds for questioning the expediency of such a provision. The criminal courts are already fully occupied with the business they have to dispose of, and the assessment of compensation would increase their duties. The question of compensation conid hardly be left at the same time with the question of guilt to the jury, but must form an independent issue, to be determined after the prisoner had been found guilty; in truth, this proposal would engraft a civil cause upon the trial of an indictment; there must be an address for the prosecutor and prisoner, and the latter must be rendered competent as a witness, or in this proceeding he would be placed in a different position from that in a civil suit for the same injury. In many cases additional evidence would have to be produced as to the quantum of injury. If, however. it should be thought proper to give such a power, it would be advisable to vest a discretion in the court as to its exercise, otherwise at a heavy assize great inconvenience might arise.
At present the record of the conviction would not be admissible, in an action by the prosecutor against the defendant, to prove that the defendant committed the injury, as the parties to the proceedings would not be the same; and if it were proposed to make such record evidence for such purpose, the objection would be that it was unjust to admit it against the defendant, as he was incompetent to give evidence in that proceeding, though he was competent in any civil proceeding.
3. Of Conveyances and Sales of Property by Pri
Without entering into any discussion as to forfeiture, it is suggested that it may deserve consideration whether a person who has committed an offence, ought to be permitted to dispose of his property after he has been charged with such offence before a magistrate. If it were provided that the defendant's property should be liable to the costs and expenses which have been pointed out, there can be little doubt that in almost every case a conveyance of such property would be made after the charge before the justice and before the trial; in fact, such conveyances are very commonly made at present in order to prevent a forfeiture. It seems but reasonable that an offender should be prevented from alienating his property, and thereby defeating the claim of the public on that property for the costs incurred in the prosecution, and of the injured party for compensation for the wrong inflicted upou him; and if any conveyance after a charge before the magistrate was declared invalid as against such claims, it would secure the public and the party injured, and would not unfairly prejudice purchasers, as the charge before a magistrate is so notorious that it might well be taken for granted that a purchase made after it was made with notice of it.
4. Of the Costs of Prosecution.
Perhaps there is hardly any matter more deserving of being placed upon a proper footing than the costs of prosecutions. In theory, every prosecution is supposed to be carried on at the instance of the Crown, and nominally the Crown is the prosecutor in every case; and, whenever a case is brought before
the magistrates in which there is sufficient evidence to raise a fair presumption that the defendant has committed an indictable offence, they possess the power to compel the party injured to prosecute, and the witnesses to give evidence on the trial. power, which is thus vested in the magistrates, is given them for the public benefit, and not for the mere advantage of the prosecutor; and the object is that, by the prosecution of the particular offender, evil-minded persons should be deterred from the commission of the like offences. The whole procedure, in fact, has for its chief object the advantage of the public; and it is but reasonable that the public should bear all the expenses which are properly incurred in securing that object. The prosecutor, in many cases, has already received an injury, and it is to add injustice to that injury to compel him to undertake legal proceedings, if by so doing he is to be subjected to additional loss and inconvenience.
Lord Denman observed, (8 Rep. Rev. C. L. C. p. 212.) "That the injured man should bear any part of the expense of prosecuting, whether by so doing he recovers his lost property or not, is in the highest degree unjust."*
And with regard to the witnesses, they are generally obliged to attend and give evidence, against their inclination, and, not unfrequently, at great inconvenience; they therefore ought to be remunerated sufficiently for their trouble and loss of time. Nor does it seem any fallacy to say that both the prosecutor and the witnesses are in the nature of public officers, and ought to be treated with liberality and consideration. The 7 Geo. 4, c. 64, ss. 22 and 23, seems plainly to have have been framed with a view to the complete indemnification of the prosecutor and witnesses, for all their necessary expenses, trouble, and loss of time. It authorises the court to order payment to the prosecutor of "the costs and expenses which such prosecutor shall incur in preferring the indictment;" and also payment to the prosecutor and witnesses "of such sums of money as to the court shall seem reasonable and sufficient to reimburse such prosecutor and witnesses for the expenses they shall have severally incurred in attending before the examining magistrate and the grand jury, and in otherwise carrying on such prosecution, and also to compensate them for their trouble and loss of time therein." It is difficult for language to be found which could more plainly indicate that all reasonable and sufficient expenses should be allowed, and yet it should seem that the allowances have, in many cases, been very inadequate. Indeed, where a prosecutor has been a person of property, there is too much reason to believe that he has frequently had a considerable sum to pay, in addition to what he has been allowed.
Numerous are the instances which might be adduced in support of this observation, but two shall suffice. Mr. Griffin, of Shelton, Staffordshire, mentions ths following case (8 Rep. Rev. C. L. C. 312):—
"I undertook at the last assizes in this county to prosecute a man for a burglary committed in this place during the memorable riots here. The prosecutor was a grocer, and unless I agreed to conduct the prosecution for the county allowance he would not have proceeded with it, not being bound over to prosecute; but the prisoner being in gaol for a minor offence; the man was found guilty, and sentenced to ten years' transportation. The bill was found on the first day, and I had to wait with all the witnesses seven days for the trial to come on, for which I was allowed £1, and a similar
*His lordship indeed added, "and I think it equally so, that the public should be burthened by that expense," and suggested that the expenses should be fixed on the offender. His lordship did not, however, advert to the cases where the offender cannot be made to repay any expenses.
Proposed Criminal Law Amendments.
sum for a brief, comprised in five sheets, and pay my own expenses. The allowance to the prosecutor and witnesses would not pay their actual expenses."
Mr. Shepherd, a magistrate's clerk, in the Faversham division, Kent, states another case (8 Rep. Rev. C. and C. p. 354):
"A most atrocious murder took place in my division. The woman who was murdered was a poor labourer's wife, and had several children; the party who was suspected of having committed the murder was a vagabond living close in the neighbourhood, who had been connected with her, I have no doubt, improperly, and ultimately got jealous; he shot her and burnt her-she was a perfect skin and bone. The coroner sat upon the body, and one or two of the division magistrates came over to me, and said, 'We think this is a case requiring looking to; perhaps you will see to it.' Of course they had no power to tell me to do it. There was no person I could look to as the prosecutor, the parties were all poor. It was since the Poor Law Amendment Act, and I knew the parish could not pay. I took the hint, and went to work, and upon the exertions which I made the case was made out upon the evidence of, I think, six witnesses, sufficient to induce the coroner to commit. I saw the magistrates again afterwards, and they said, 'This is really a case which ought not to go unprosecuted; we do think the thing ought to be taken up.' Of course I understood what that meant; it was not anything which compelled me to do it, but still I felt I was in duty bound as, what I should like to see generally, the public prosecutor of the division to take the matter up. I did so. I had occasion to get witnesses from Manchester, where the party was apprehended. I subpoenaed twenty witnesses, independently of those whom the coroner had bound over. The case took from nine in the morning till eight at night. The party was convicted and executed, and I think a clearer case never went into court. I had the satisfaction of receiving the compliments of the judge and the bar, and of my brother clerks, who said the case was well got up; and I had the satisfaction of losing about forty pounds."
It will be observed, that both these cases were of a very serious character, and it is just in this class of cases that the limited allowance of costs is most likely to produce the most prejudicial effects. In such cases, it frequently happens that it is of very great importance that further investigations should take place after the case has been sent to trial, order to obtain additional evidence; and equally so, that the witnesses should be carefully examined again, and therefore, either the attorney must go to them, or they must come to him for that purpose. So also it sometimes happens that the case really requires the opinion of counsel as to the evidence to be adduced and the indictment to be preferred. It is very much doubted whether the costs of these and the like matters are generally allowed. The result is, that cases of a serious nature are sometimes not so well prepared as they ought to be.
Government, and accordingly the 14 & 15 Vic. c. 55, s. 4, repeals section 26 of the 7 Geo. 4, c. 64, and section 5 provides that one of her Majesty's principal Secretaries of State may revoke any regulations made under the repealed provision, and make regulations as to the rates or scales of payment of any costs, expenses, and compensations to be allowed to prosecutors and witnesses under any act of Parliament. It is obvious, however, that the exercise of this power necessarily requires an acquaintance with many details, with which it is not very likely that the Secretary of State should be in any great degree familiar; and as the correctness of any scale of costs must depend upon its being founded on an accurate knowledge of details, it is plain that recourse should be had to those who possess that knowledge. Now the persons most conversant with such matters are the clerks of assize and those attorneys who have been extensively engaged in criminal business. Let then the Secretary of State employ some of the most experienced clerks of assize, and some of such attorneys, to draw up a scale of costs, and let them be furnished with the different scales of costs at present in force in the different counties. They should be instructed to frame a general scale of costs, unless there should appear in any case some special reason for making a variation as to any particular county; and such scale should be framed upon a fair and liberal principle, so that it should afford adequate and sufficient remuneration, and on the one hand should not err on the side of extravagance, and on the other should not be illiberal and parsimonious.
Such a scale should form the general rule for the allowance of costs in all cases; but it is obvious that no amount of ingenuity or ability could devise one scale that could be properly applicable to every case, as contingencies will arise for which no foreinsight can provide. A fixed scale of so much a mile may in all ordinary cases be perfectly right; but it cannot apply to the case of a bedridden witness, who may safely be removed into court. models, experiments, &c., must on some occasions be made, and the costs of these must vary in each case. A discretion, therefore, must be left in order to meet the exigencies of particular cases; and this discretion may well be vested in the proper officer of the court, with the sanction of the court, and much assistance would be afforded in such cases by the district officer hereafter suggested, whose inquiries and knowledge of what had taken place would enable him to give most useful information.
Another consequence of the inadequate remuneration allowed is, that the more respectable attorneys are not desirous of being engaged in prosecutions; whilst on the other hand, disreputable practitioners, intent only on the amount that may be gained, sometimes obtain the conduct of prosecutions, and neglect to adopt the most obvious steps for securing a conviction, and, it is to be feared, sometimes are the means of improper compromises being effected.
By the 7 Geo. 4, c. 64, s. 26, the justices in quarter sessions assembled were empowered 66 to establish, and from time to time to alter, such regulations, as to "the rate of costs and expenses thereafter to be allowed, as to them shall seem just and reasonable." The consequence was, that the scale of costs established in the different counties has materially varied in the amounts allowed, and not only so, but the costs at the assizes and at the sessions in the same county have varied in some instances. For these and other reasons the legislature seems to have thought that it was expedient to take away this power from the magistrates, and vest in the
The Committee on Public Prosecutors in their report notice
"The great discrepancy which exists in the costs of prosecutions, both in counties and boroughs; and as the whole expense of these is now borne by the public income, they recommend that one set of fees be drawn up by the Secretary of State for the Home Department, applicable to all prosecution at assizes and sessions in all counties and boroughs." 2 Rep. p. xi.
5. Of poor Prisoners' Defences.
Cases sometimes occur, not only of a common but of a serious character, in which poor persons are erroneously accused; and in these instances it happens occasionally that the accused are too poor to obtain the assistance of an attorney to conduct their defence, or to procure the attendance of witnesses on their behalf. Even if they should happen to know, which they generally do not, that they can secure the attendauce of witnesses by subpoena, they are frequently too poor to cause a subpœna to
Proposed Criminal Law Amendments.
be obtained and served. It can hardly be considered consistent with justice that such persons should be left wholly defenceless, while every reasonable cost of preparing the case against them is borne by the public; and the court is sometimes placed in an embarrassing position in such cases, as in the course of a trial matters may be elicited, or the prisoner may make statements which satisfy the court that witnesses ought to have been present and examined on behalf of the defendant. Two remarkable cases occurred some years since before Mr Justice Patteson at Gloucester and Shrewsbury. In the former case two prisoners were indicted for a capital offence, and, at the close of the case for the prosecution no one in court probably entertained a doubt of their guilt; one of them, however, made so clear and lucid a speech, detailing where they had been at the time, and what they had done, and stating that witnesses had voluntarily come forward and remained as long at the assizes as they could afford to stay, that the learned judge was induced to inquire of the constable how far this statement was correct, and finding it was true as far as he could speak to the facts, the learned judge, after consideration, postponed the trial, and sent for the witnesses, who proved as clear an alibi as possible. In the other case the prisoner was tried for murder, and in his defence stated facts against the chief witness for the prosecution, and alleged that his son was detained in the workhouse to prevent his giving evidence of those facts in his behalf. In consequence of this the learned judge sent for the son, and he so far corroborated the father's statement, and contradicted the witness, that the jury acquitted the father. In these cases it so happened that the prisoners themselves were capable of explaining their defence, and the witnesses were near enough to be brought in the course of the day, and above all the learned judge most humanely postponed the trials; but it is obvious that it reflects no credit on the administration of criminal justice in England that innocent persons should ever stand in such a position by reason of poverty alone.
By the Code of New York, section 12, a defendant is entitled to be allowed counsel as in civil actions, or he may appear and defend in person and with counsel; and this provision is said to be taken from the constitution, art. 1, sec. 6. By the Code of Civil Procedure for the same state, sec. 511, art. 8, it is made the duty of an attorney and counsel "never to reject, for any consideration personal to himself, the cause of the defenceless or oppressed;" and by the Criminal Code, secs. 187, 188, the defendant is to be informed that he has a right to the aid of counsel in every stage of the proceedings, and the magistrate is to allow him time to send for counsel, and must require a peace officer to go for any counsel the defendant may name, and such officer is to perform that duty without fee; and by sec. 673, subpoenas must, at all times, upon the application of the defendant, and without charge, be issued; and by sec. 676, a peace officer must serve any subpoena on the part of the defendant. In addition to any punishment as for a contempt for disobedience to a subpoena issued on the part of a defendant, by sec. 682, the witness also forfeits to the defendant the sum of fifty dollars, which may be recovered in a civil action; but it does not appear that there is any express provision for assigning an attorney or counsel to a prisoner.
In our West Indian possessions it is believed that
counsel and attorney are assigned to prisoners in all
By the law of England, also, in cases of treason, the accused, by the 7 & 8 Will. 3, c. 3, s. 1, is entitled to have not exceeding two counsel assigned to him by the court; and this provision might well form a precedent for the assignment of counsel in all capital cases.
It does not, however, appear desirable that counsel or attorney should be provided in every case; on the contrary, such a provision would be giving an undeserved benefit to guilty persons. It is suggested that it would be the better course to authorise some competent persons, in their discretion, to investigate the case of any poor prisoner, and if they saw reasonable grounds for believing that such prisoner had a defence which ought to be presented to the court, to direct an attorney to prepare such defence, and the court might in such case be required to assign counsel for the prisoner. Under the existing law no persons more fitted for such a duty could be selected than the visiting justices of the gaol. gaoler generally becomes aware of the circumstances of a prisoner, and he might well be required to bring any such case to the notice of the visiting justices. Should, however, such a district officer be appointed as we have hereafter suggested, he would be a very fit person for making all necessary inquiries, and authorising a defence to be made for a poor prisoner.
Judges not uncommonly assign counsel in capital cases: unfortunately, however, this is usually done so late that there is hardly time for the counsel to master the details of the case for the prosecution, and no means of becoming acquainted with the facts of any defence the prisoner wishes to make, or being prepared with witnesses to support it.
With respect to the costs of any proceedings in court by poor prisoners, the courts are said to have a discretionary power at common law of allowing the accused to defend as a pauper (1 Ch. C. L. 412). But the authorities for this proposition are confined to proceedings in the Court of Queen's Bench. It would, therefore, be better to provide that where such a defence was directed, subpoenas and other proceedings should be gratuitously furnished by the proper officers.
6. Of the Costs of Defendants.
Wherever an innocent person has been subjected to a criminal prosecution, justice seems to require that he should receive adequate compensation for the injury he may have received from the proceeding, or at least that he should be repaid all the expenses he has incurred in his defence. It is for the benefit of the public that prosecutions take place, and the public ought to remunerate any one who has suffered from a prosecution instituted for their benefit, if he be innocent.
Lord Brougham's twelfth resolution is
"That the costs of every person tried and acquitted, or discharged for want of prosecution, should be paid out of the county rates, on a certificate of the court before whom he was tried or brought to trial, or of the magistrate by whom he was discharged."
A little consideration will show that this general provision would be highly inexpedient. It frequently happens that a prisoner is guilty, although he may not be convicted. Cases often fail through defects in the evidence, from the bad character of witnesses, and other causes, where no moral doubt can be entertained by any reasonable person of the guilt of a prisoner, although a jury, acting upon the principle