sworn interpreters. Under these circumstances the counsel for the Rajah made the very reasonable request that he should be permitted to address the court in his behalf, but this was refused; and in charging the jury, the chief justice, Sir Elijah Impey, said, " By the laws of England, the counsel for prisoners charged with felony are not allowed to observe on the evidence to the jury, but are to confine themselves to matters of law." He felt, however, what a grievous hardship was thereby inflicted upon a prisoner, in the position of the Maha Rajah, tried by a jury of foreigners, who were ignorant of the language in which he must have spoken if he had addressed them, and he, therefore, added, “But I told them (the counsel) that if they would deliver to me any observations they wished to be made to the jury, I would submit them to you and give them their full force, by which means they will have the same advantage as they would have had in a civil case." But what a mockery was this! A few meager notes, embracing the chief points of defense, such as an advocate would put down on paper to assist his memory while speaking, had been handed to the court, and these were read verbatim to the jury by the chief justice, accompanied by a running commentary of his own. And this he called giving the prisoner the same advantage which he would have had if his counsel had been allowed to make an eloquent appeal in his behalf. The result of the trial is well known. Nundocomar was convicted and hanged.

A humane but unsatisfactory view of the subject was taken by Lord Chancellor Nottingham, when addressing the Peers as High Steward, on the trial of Lord Cornwallis: "No other good reason can be given why the law refuses to allow the prisoner at the bar counsel in matters of fact, where life is concerned, excepting this, that the evidence by which he is condemned ought to be so very evident, and so plain, that all the counsel in the world should not be able to answer it" (State Tr., vii. 149).

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And Sir John Davys, in the preface to his Reports which has been already quoted, with egregious fallacy, abets the practice on the ground that our law doth abhor the defense and maintenance of bad causes more than any other law in the world. And this is one cause," he says, "among others, why our law doth not allow counsel unto such as are indicted of treason, murder, rape, or other capital crimes; so as never any professor of the law of England hath been known to defend (for the matter of fact) any traitor, murderer, ravisher, or thief, being indicted and prosecuted at the suit of the king.

'Turpe reos emptâ miseros defendere linguâ'

saith the poet; and therefore it is an honor unto our law that it doth not suffer the professors thereof to dishonor themselves (as the advocates and orators in other countries do) by defending such offenders." As if the guilt or innocence of the accused could depend upon the enormity of the charge! and as if the maxim of our law were to be reversed, and every man upon his trial were to be presumed guilty until he could prove himself to be innocent!

In a book of great authority on all matters relating to our criminal jurisprudence, it is asserted that where a party accused of a crime is innocent, it is better that he should conduct his own defense. “If it be considered that generally every one of common understanding may as properly speak to a matter of fact as if he were the best lawyer, and that it requires no manner of skill to make a plain and honest defense, which in cases of this kind is always the best, the simplicity and innocence, artless and ingenuous behavior of one whose conscience acquits him, having something in it more moving and convincing than the highest eloquence of persons speaking in a cause not their own."

But this is not true. For though sometimes the simple language of innocence has more effect than the most

elaborate oration, how often must the awful circumstances of a trial for life and death incapacitate a prisoner for the task of addressing the tribunal which is to pronounce his doom! If mere appeals to the compassion of the judge or jury were likely to prevail, then, indeed, the tears and misery of the accused might plead more eloquently and more successfully than all the efforts of the most skillful advocate. But hard facts must be grappled with-decrepancies in testimony pointed out-circumstantial evidence explained away, which, however guiltless the prisoner may be, often throw such a dark cloud of suspicion over him, that nothing but the most strenuous exertions of a calm and piercing intellect can remove it. How often, in our state trials, must the heart of the accused have sunk within him, his tongue have cloven to his mouth, and words have failed him, when he saw before him the fatal axe which he knew was ready, as the swift instrument of death, if he failed to secure a verdict of acquittal!'

But even under the iniquitous system which confined the exertions of advocates in cases of treason or felony to arguments on points of law, opportunities were sometimes given where they could show their independent and fearless spirit. Thus when Hale appeared as counsel for Lord Craven, and the attorney-general of the day threatened him for daring to take the side against the government, he nobly answered, "I am pleading in defense of laws which you are bound to maintain: I am doing justice to my client, and am not to be intimidated."

The attempt to remedy this crying evil by a legislative enactment was long and obstinately resisted, and it was not until 1695, that a statute was passed, 7 Will. III. c. 3, entitled "An Act for regulating of Trials in Cases of Treason and Misprison of Treason," which provided,

1 The axe was always placed beside or before the prisoner at his trial, when the charge was one of high treason.

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among other things, that any person accused and indicted, arraigned or tried for high treason, whereby any corruption of blood may be made to any such offender or his heirs, or for misprision of such treason, "shall be received and admitted to make his full defense by counsel learned in the law; and in case any person so accused or indicted shall desire counsel, the court before whom he shall be tried, or some judge of that court, shall immediately, upon his request, assign to him such and so many counsel, not exceeding two, as he shall desire, to whom such counsel shall have free access at all seasonable hours;" but it was expressly declared by section 12 that the statute should not extend to any impeachment or other proceedings in parliament, nor to any indictment of high treason for counterfeiting the great or privy seal, or coin of the realm. It was during the debate that arose upon this bill that Lord Ashley, afterwards Earl of Shaftesbury, rose to speak in its behalf, but was so embarrassed as to be unable to proceed, and he became suddenly silent. With admirable presence of mind, however, he recovered himself, and converted his confusion into one of the strongest arguments in favor of the bill. "If, sir," said he, addressing the Speaker, "I, who rise only to give my opinion on the bill now depending, am so confounded that I am unable to express the least of what I proposed to say, what must the condition of that man be, who, without any assistance, is pleading for his life, and under apprehension of being deprived of it?"

The act was appointed to take effect from the 25th of March, 1696; and, monstrous as it may seem, it is nevertheless a fact, that when Sir William Parkyn was tried for high treason, on the 24th of that month, after the statute had been passed, and the very day before it was to come into operation, he in vain prayed that counsel might be allowed him, on the ground that the preamble of the act was declaratory of the common law, inasmuch as it said

that there was nothing more just or reasonable. "My Lord,” said he, addressing Lord Chief Justice Holt, "it wants but one day."-HOLTt. "That is as much as if it were a much longer time, for we are to proceed according to what the law is, and not what it will be." He then asked that his trial might be put off for a single day, in which case he would have been entitled, as of right, to that which he now prayed for as a favor; but his application was refused.' When we read of such things our feelings ought to be those of deep thankfulness that the judges of the present day are, in point of humanity, so very different from their predecessors.

The first instance on record in which we find counsel assigned under this act, is on the trial of Rookwood and others, on which occasion Sir Bartholomew Shower and Mr. Phipps defended the prisoners; and it is curious to see in what deprecatory terms they separated themselves from their clients. "My Lord," said Sir Bartholomew, addressing Chief Justice Holt, "we are assigned of counsel in pursuance of an act of parliament, and we hope that nothing which we shall say in defense of our clients shall be imputed to ourselves. I thought it would have been a reflection upon the government and your lordship's justice, if, being assigned, we should have refused to appear: it would have been a publication to the world that we distrusted your candor towards us in our future practice upon other occasions.

We

1 State Tr., xiii. 72. Formerly if a bill was brought into parliament at the close of the session, and passed on the last day, which made an act previously innocent criminal and even capital, and if no day was fixed for the commencement of its operation, it was considered to have been passed on the first day of the session; and the consequence was, that all who had in the meantime been doing what at the time was perfectly legal, were liable to suffer the punishment created by the statute.- Coke's 4th Inst. 25 ; 4 Term Rep. 66o. The flagrant injustice of this caused the passing of an act, the 33 Geo. III., c. 13, whereby it was provided that when no time is specified in any particular act of parliament for its commencement, the clerk of the parliament shall indorse upon it the day on which it receives the royal assent, and that day shall be the date of its commencement.