ePub 版

himself mistaken. The crime has been committed: and in his thirst for vengeance, he has got hold of the wrong man. The wheat was stolen out of the barn; and, amidst many other collateral circumstances, the witnesses (paid and brought up by a wealthy prosecutor, who is repaid by the county) swear that they saw a man, very like the prisoner, with a sack of corn upon his shoulder, at an early hour of the morning, going from the barn in the direction of the prisoner's cottage! Here is one link, and a very material link, of a long chain of circumstantial evidence. Judge and Jury must give it weight, till it is contradicted. In fact, the prisoner did not steal the corn; he was, to be sure, out of his cottage at the same hour - and that also is proved - but travelling in a totally different direction,—and was seen to be so travelling by a stage coachman passing by, and by a market gardener. An attorney with money in his pocket, whom every moment of such employ made richer by six-and-eightpence, would have had the two witnesses ready, and at rack and manger, from the first day of the assize; and the innocence of the prisoner would have been established : But by what possible means is the destitute ignorant wretch himself to find or to produce such witnesses? or how can the most humane Jury, and the most acute Judge, refuse to consider him as guilty, till his witnesses are produced ? We have not the slightest disposition to exaggerate, and, on the contrary, should be extremely pleased to be convinced that our apprehensions were unfounded : But we have often felt extreme pain at the hopeless and unprotected state of prisoners; and we cannot find any answer to our suspicions, or discover any means by which this perversion of justice, under the present state of the law, can be prevented from taking place.' Against the prisoner are arrayed all the resources of an angry prosecutor, who has certainly (let who will be the culprit) suifered a serious injury. He has his hand, too, in the publie purse; for he prosecutes at the expense of the county. He cannot even relent; for the magistrate has bound him over to indict. His witnesses cannot fail him ; for they are all bound over by the same magistrate to give evidence. He is out of prison too, and can exert himself.

The prisoner, on the other hand, comes into Court, squalid and depressed from long confinement—utterly unable to tell bis own story from want of words and want of confidence, and as unable to produce evidence from want of money. His fate accordingly is obvious ;—and that there are many innocent men punished every year, for crimes they have not committed, apo pears to us to be extremely probable. It is indeed scarcely possible it should be otherwise: And, as it to prove the fact, every now and then, a case of this kind is detected.

Some circumstances come to light between sentence and execution, immense exertions are made by humane men; time is gained, and the innocence of the condemned person completely established. In Elizabeth Caning's case, two women were capitally convicted, ordered for execution-and at last found innocent, and respited. Such, too, was the case of the men who were sentenced ten years ago, for the robbery of Lord Cowper’s steward. “I • have myself (says Mr Scarlett) often seen persons I thought

innocent convicted, and the guilty escape, for want of some * acute and intelligent Counsel to show the bearings of the dif« ferent circumstances on the conduct and situation of the pri• soner.'- House of Commons Debates, April 25th, 1826. We were delighted to see, in this last debate, both Mr Brougham and Mr Scarlett profess themselves friendly to Mr Lamb's motion.

But in how many cases has the injustice proceeded without any suspicion being excited ? and even if we could reckon upon men being watchful in capital cases, where life is concerned, we are afraid it is in such cases alone that they ever besiege the Secretary of State, and compel his attention. We never remember any such interference to save a man unjustly condemned to the hulks or the tread-mill; and yet there are certainly more condemnations to these minor punishments than to the gallows: But then it is all one-who knows or cares about it? If Harrison or Johnson has been condemned, after regular trial by Jury, to six months tread-mill, because Harrison and Johnson were without a penny to procure evidencewho knows or cares about Harrison or Johnson ? how can they make themselves heard ? or in what way can they obtain redress? It worries rich and comfortable people to hear the Humanity of our penal laws called in question. There is talk of a Society for employing discharged prisoners : might not something he effected by a Society instituted for the purpose of providing to poor prisoners a proper defence, and a due attendance of witnesses ? But we must hasten on from this disgraceful neglect of poor prisoners, to the particular subject of complaint we have proposed to ourselves.

The proposition is, That the prisoner accused of felony ought to have the same power of selecting Counsel to speak for him as he has in cases of treason and misdemeanor, and as defendants have in all ciril actions.

Nothing can be done in any discussion upon any point of law in England, without quoting Nr Justice Blackstone. Mr Justice Blackstone, we believe, generally wrote his Commentaries late in the evening, with a bottle of wine before him; and little did he

think, as each sentence fell from the glass and pen, of the immense influence it might hereafter exercise upon the laws and usages of his country. It is ’ (says this favourite writer) • not • at all of a piece with the rest of the humane treatment of prió soners by the English law; for upon what face of reason can • that assistance be denied to save the Life of a man, which yet • is allowed him in prosecutions for every petty trespass ?' Nor indeed, strictly speaking, is it a part of our antient law; for the Mirror, having observed the necessity of Counsel in civil suits, who know how to forward and defend the cause by the rules of law and customs of the realm, immediately subjoins, • and more necessary are they for defence upon indictment and

appeals of felony, than upon any other venial crimes.' To the authority of Blackstone may be added that of Sir John Hall, in Hollis's case; of Sir Robert Atkyns, in Lord Russels case; and of Sir Bartholomew Shower, in the arguments for a New Bill of Rights, in 1682. - In the name of God,' says this Judge, what harm can accrue to the public in general,

or to any man in particular, that, in cases of State-treason, • Counsel should not be allowed to the accused ? What rule

of justice is there to warrant its denial, when, in a civil case • of an halfpenny cake, he may plead either by himself or by • his advocate ?' That the Court is Counsel for the prisoner

can be no effectual reason; for so they are for each party, that right may be done.' Somers' Tracts, vol. ii. p. 568.In the trial of Thomas Rosewell, a dissenting clergyman, for high treason in 1681, Judyje Jeffries, in summing up, confessed to the Jury, 'that he thought it an hard case, that a man should • have Counsel to defend himself for a twopenny trespass, and • his witnesses be examined upon oath ; but if he stole, com(mitted murder or felony, nay, high treason, where life, estate, • bonour, and all were concerned, that he should neither have · Counsel, nor have his witnesses examined upon oath.' Houel's State Trials, vol. x. p. 207.

There have been two capital errors in the criminal codes of feudal Europe, from which a great variety of mistake and injustice have proceeded; the one, a disposition to confound accusation with guilt; the other, to mistake a defence of prisoners accused by the Crown, for disloyalty and disaffection to the Crown; and from these errors our own code has been slowly and gradually recovering, by all those struggles and exertions which it always costs to remove fully sanctioned by antiopity. In the early periods of our history, the accused person could call no evidence:-Then, for a long time, his evidence against the King could not be examined upon oath; consequently, he

might as well have produced none, as all the evidence against him was upon

outh. Till the reign of Anne, no one accused of felony could produce witnesses upon oath; and the old practice was vindicated, in opposition to the new one, introduced under the Statute of that day, on the grounds of humanity and tenderness to the prisoner ! because, as his witnesses were not restricted by an oath, they were at liberty to indulge in simple falsehood as much as they pleased ;-so argued the blessed defenders of nonsense in those days. Then it was ruled to be indecent and improper that Counsel should be employed against the Crown; and therefore, the prisoner accused of treason could have no Counsel. In like manner, a party accused of felony could have no Counsel to assist him in the trial. Counsel might indeed stay in the Court, but apart from the prisoner, with whom they could have no communication. They were not allowed to put any question, or to suggest any doubtful point of law; but if ihe prisoner (likely to be a weak unlettered mar.) could himself suggest any doubt in matter of law, the Court determined first if the question of law should be entertained, and then assigned Counsel to argue it. In those times, too, the Jury were punishable if they gave a false verdict against the King, but were not punishable if they gave a false verdict against the prisoner. The preamble of the Act of 1696 runs thus— Whereas it is • expedient that Persons charged with high treason should • make a full and sufficient defence.' Might it not be altered to Persons charged with any species or degree of crime? All these errors have given way to the force of truth, and to the power of common sense and common humanity, the Attorney and Solicitor-General for the time being, always protesting against each alteration, and regularly and officially prophecying the utter destruction of the whole jurisprudence of Great Britain. There is no man now alive perhaps so utterly foolish, as to propose that prisoners should be prevented from producing evidence upon oath, and being heard by their Counsel in cases of Iligh Treason; and yet it cost a struggle for seven Sessions to get this measure through the two llouses of Parliament. But mankind are much like the children they beget—they always make wry faces at what is to do them good; and it is necessary sometimes to hold the nose, and force the medicine down the throat. They enjoy the health and vigour consequent upon the medicine; but cuff the Doctor, and sputter at his stuf!

A most absurd argument was advanced in the Honourable House, that the practice of employing Counsel would be such an expense to the prisoner !-just as if any thing was so expen

[ocr errors]


sive as being hanged! What a fine topic for the Ordinary ! . You are going (says that exquisite Divine) to be hanged

to-morrow, it is true, but consider what a sum you have

saved! Mr Scarlett or Mr Brougham might certainly have ' presented arguments to the Jury, which would have insured

your acquittal; but do you forget that gentlemen of their eminence must be recompensed by large fees, and that, if your life

had been saved, you would actually have been out of pocket • above 201.? You will now die with the consciousness of hav

ing obeyed the dictates of a wise economy; and with a grateful reverence for the laws of your country, which prevents you from running into such unbounded expense-so let us now go to prayers.'

It is ludicrous enough to recollect, when the employment of counsel is objected to on account of the expense to the prisoner, that the same merciful law, which, to save the prisoner's money, has denied him counsel, and produced his conviction, seizes upon all his savings the moment he is convicted.

Of all false and foolish dicta, the most trite and the most absurd, is that which asserts that the Judge is counsel for the prisoner. We do not hesitate to say that this is merely an unmeaning phrase, invented to defend a pernicious abuse. The Judge cannot be counsel for the prisoner, onght not to be counsel for the prisoner, never is counsel for the prisoner. To force an ignorant man into a court of justice, and to tell him that the Judge is his counsel, appears to us quite as foolish, as to set an hungry man down to his meals, and to tell him that the table was his dimer. In the first place, a counsel should always have private and previous communication with the prisoner, which the Judge, of course, cannot have. The prisoner reveals to his counsel how far he is guilty, or he is not; states to him all the circumstances of his case-and might often enable his advocate, if his advocate were allowed to speak, to explain a long string of circumstantial evidence, in a manner favourable to the innocence of his client. Of all these advantages, the Judge, if he had every disposition to befriend the prisoner, is of course deprived. Something occurs to a prisoner in the course of the cause; he suggests it in a whisper to his counsel, doubtful if it is a wise point to urge or not. His counsel thinks it of importance, and would urge it, if his mouth were not shut. Can a prisoner have this secret communication with a Judge, and take his advice, whether or not he, the Judge, shall mention it to the jury? The counsel has (after all the evidence has been given) a bad opinion of his client's case; but he suppresses that opinion; and it is his duty to do so. He is not to decide; that is the priVOL. XLV. NO. 89.


« 上一頁繼續 »