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vince of the jury: and, in spite of his own opinion, his client may be innocent. He is brought there (or would be brought there if the privilege of speech were allowed) for the express purpose of saying all that could be said on one side of the question. He is a weight in one scale, and some one else holds the balance. This is the way in which truth is elicited in civil, and would be in criminal cases. But does the Judge ever assume the appearance of believing a prisoner to be innocent whom he thinks to be guilty? If the prisoner advances inconclusive or weak arguments, does not the Judge say they are weak and inconclusive, and does he not often sum up against his own client? How then is he counsel for the prisoner? If the counsel for the prisoner were to see a strong point, which the counsel for the prosecution had missed, would he supply the deficiency of his antagonist, and urge what had been neglected to be urged? But is it not the imperious duty of the Judge to do so? How then can these two functionaries stand in the same relation to the prisoner? In fact the only meaning of the phrase is this, that the Judge will not suffer any undue advantage to be taken of the ignorance and helplessness of the prisoner-that he will point out any evidence or circumstance in his favour—and see that equal justice is done to both parties. But in this sense he is as much the counsel of the prosecutor as of the prisoner. This is all the Judge can do, or even pretends to do; but he can have no previous communication with the prisoner-he can have no confidential communication in court with the prisoner before he sums up; he cannot fling the whole weight of his understanding into the opposite scale against the counsel for the / prosecution, and produce that collision of faculties, which, in all other cases but those of felony, is supposed to be the happiest method of arriving at truth. Baron Garrow, in his charge to the Grand Jury at Exeter, on the 16th August 1824, thus expressed his opinion of a Judge being counsel for the prisoner. It has been said, and truly said, that in criminal courts, Judges were counsel for the prisoners. So undoubtedly they were, as far as they could to prevent undue prejudice, to guard against improper influence being excited against prisoners; but it was impossible for them to go farther than this; for they could not suggest the course of defence prisoners ought to 'pursue; for Judges only saw the depositions so short a time before the accused appeared at the Bar of their country, that it was quite impossible for them to act fully in that capacity. The learned Baron might have added, that it would be more correct to call the Judge counsel for the prosecution: For his only previous instructions were the depositions for the prosecution,

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from which, in the absence of counsel, he examined the evidence against the prisoner. On the prisoner's behalf he had no instructions at all.

Can any thing then be more flagrantly and scandalously unjust, than, in a long case of circumstantial evidence, to refuse to a prisoner the benefit of counsel? A foot-mark, a word, a sound, a tool dropped, all give birth to the most ingenious inferences; and the counsel for the prosecution is so far from being blameable for entering into all these things, that they are all essential to the detection of guilt, and they are all links of a long and intricate chain: But if a close examination into, and a logical statement of all these circumstances be necessary for the establishment of guilt, is not the same closeness of reasoning and the same logical statement necessary for the establishment of innocence? If justice cannot be done to society without the intervention of a practised and ingenious mind, who may connect all these links together, and make them clear to the apprehension of a Jury, can justice be done to the prisoner, unless similar practice and similar ingenuity are employed to detect the flaws of the chain, and to point out the disconnection of the circumstances?

Is there any one gentleman in the House of Commons, who, in yielding his vote to this paltry and perilous fallacy of the Judge being counsel for the prisoner, does not feel, that, were he himself a criminal, he would prefer almost any counsel at the bar, to the tender mercies of the Judge? How strange that any man who could make his election would eagerly and diligently surrender this exquisite privilege, and addict himself to the perilous practice of giving fees to counsel? Nor let us forget, in considering Judges as counsel for the prisoner, that there have been such men as Chief-Justice Jeffries, Mr Justice Page, and Mr Justice Alybone, and that, in bad times, such men may re-appear. If you do not allow me counsel, my Lords, (says 'Lord Lovat), it is impossible for me to make any defence, by reason of my infirmity. I do not see, I do not hear. I come up to the bar at the hazard of my life. I have fainted several ' times, I have been up so early, ever since four o'clock this morning. I therefore ask for assistance; and if you do not al'low me counsel, or such aid as is necessary, it will be impossible for me to make any defence at all.' Though Lord Lovat's guilt was evident, yet the managers of the impeachment felt so strongly the injustice which was done, that, by the hands of Sir W. Young the chief manager, a bill was brought into Parliament, to allow counsel to persons impeached by that House, which was not previously the case; so that the evil is al

ready done away with in a great measure to persons of rank: it so happens in legislation, when a Gentleman suffers, public attention is awakened to the evil of laws. Every man who makes laws, says,This may be my case:' but it requires the repeated efforts of humane men, or, as Mr North calls them, dilettanti philosophers, to awaken the attention of lawmakers to evils from which they are themselves exempt. We do not say this to make the leaders of mankind unpopular, but to rouse their earnest attention in cases where the poor only are concerned, and where neither good nor evil can happen to themselves.

A great stress is laid upon the moderation of the opening counsel; that is, he does not conjure the farmers in the Jurybox, by the love which they bear to their children-he does not declaim upon blood guiltiness-he does not describe the death of Abel by Cain, the first murderer-he does not describe scattered brains, ghastly wounds, pale features, and hair clotted with gore-he does not do a thousand things which are not in English taste, and which it would be very foolish, and very vulgar to do. We readily allow all this. But yet, if it be a cause of importance, it is essentially necessary to our counsellor's reputation that his man should be hung! And accordingly, with a very calm voice, and composed manner, and with many expressions of candour, he sets himself to comment astutely upon the circumstances. Distant events are immediately connected; meaning is given to insignificant facts; new motives are ascribed to innocent actions; farmer gives way after farmer in the Jury-box; and a rope of eloquence is woven round the prisoner's neck! Every one is delighted with the talents of the advocate; and because there has been no noise, no violent action, and no consequent perspiration, he is praised for his candour and forbearance, and the lenity of our laws is the theme of universal approbation. In the mean time, the speech-maker and the prisoner know better.

We should be glad to know of any one nation in the world, taxed by kings, or even imagined by poets (except the English), who have refused to prisoners the benefit of counsel. Why is the voice of humanity heard every where else, and disregarded here? In Scotland, the accused have not only counsel to speak for them, but a copy of the indictment, and a list of the witnesses. In France, in the Netherlands, in the whole of Europe, counsel are allotted as a matter of course. Every where else but here, accusation is considered as unfavourable to the exercise of human faculties. It is admitted to be that crisis in which, above all others, an unhappy man

wants the aid of eloquence, wisdom, and coolness. In France, the Napoleon Code has provided not only that counsel should be allowed to the prisoner, but that, as with us in Scotland, his counsel should have the last word.

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It is a most affecting moment in a court of justice, when the evidence has all been heard, and the Judge asks the prisoner what he has to say in his defence. The prisoner, who has (by great exertions, perhaps of his friends) saved up money enough to procure counsel, says to the Judge, that he leaves his defence to his counsel.' We have often blushed for English humanity to hear the reply. Your counsel cannot speak for you, you must speak for yourself;' and this is the reply given to a poor girl of eighteen-to a foreigner -to a deaf man-to a stammerer-to the sick-to the feeble -to the old-to the most abject and ignorant of human beings! It is a reply, we must say, at which common sense and common feeling revolt:-For it is full of brutal cruelty, and of base inattention of those who make laws, to the happiness of those for whom laws were made. We wonder that any Juryman can convict, under such a shocking violation of all natural justice. The iron age of Clovis and Clottaire can produce no more atrocious violation of every good feeling, and every good principle. Can a sick man find strength and nerves to speak before a large assembly?-can an ignorant man find words?-can a low man find confidence? Is not he afraid of becoming an object of ridicule?-can he believe that his expressions will be understood? How often have we seen a poor wretch, struggling against the agonies of his spirit, and the rudeness of his conceptions, and his awe of better dressed men and better taught men, and the shame which the accusation has brought upon his head, and the sight of his parents and children gazing at him in the Court, for the last time, perhaps, and after a long absence? The mariner sinking in the wave does not want a helping hand more than does this poor wretch. But help is denied to all! Age cannot have it, nor ignorance, nor the modesty of women! One hard uncharitable rule silences the defenders of the wretched, in the worst of human evils; and, at the bitterest of human moments, mercy is blotted out from the ways of men!

Suppose a crime to have been committed under the influence of insanity; is the insane man, now convalescent, to plead his own insanity?-to offer arguments to show that he must have been mad?--and, by the glimmerings of his returning reason, to prove that, at a former period, that same reason was utterly extinct? These are the cruel situations into which

Judges and Courts of Justice are thrown by the present state of the law.

There is a Judge now upon the Bench, who never took away the life of a fellow-creature, without shutting himself up alone, and giving the most profound attention to every circumstance of the case! and this solemn act he always premises with his own beautiful prayer to God, that he will enlighten him with his Divine spirit in the exercise of this terrible privilege! Now would it not be an immense satisfaction to this feeling and honourable magistrate, to be sure that every witness on the side of the prisoner had been heard, and that every argument which could be urged in his favour had been brought forward, by a man whose duty it was to see only on one side of the question, and whose interest and reputation were thoroughly embarked in this partial exertion? If a Judge fails to get at the truth, after these instruments of investigation are used, his failure must be attributed to the limited powers of man-not to the want of good inclination, or wise institutions. We are surprised that such a measure does not come into Parliament, with the strong recommendation of the Judges. It is surely better to be a day longer on the Circuit, than to murder rapidly in ermine.

It is argued, that, among the various pleas for mercy that are offered, no prisoner has ever urged to the Secretary of State the disadvantage of having no counsel to plead for him; But a prisoner who dislikes to undergo his sentence, naturally addresses to those who can reverse it, such arguments only as will produce, in the opinion of the referee, a pleasing effect. He does not therefore find fault with the established system of jurisprudence, but brings forward facts and arguments to prove his own innocence. Besides, how few people there are who can elevate themselves from the acquiescence in what is, to the consideration of what ought to be; and if they could do so, the way to get rid of a punishment is not (as we have just observed) to say, You have no right to punish me in this manner,' (but to say), I am innocent of the offence.' The fraudulent baker at Constantinople, who is about to be baked to death in his own oven, does not complain of the severity of baking bakers, but promises to use more flour and less fraud.

Whence comes it (we should like to ask Sir John Singleton Copley, who seems to dread so much the conflicts of talent in criminal cases) that a method of getting at truth which is found. so serviceable in civil cases, should be so much objected to in criminal cases? Would you have all this wrangling and bickering, it is asked, and contentious eloquence, when the life of a man is concerned? Why not, as well as when his property is concerned? It is either a good means of doing justice, or it is

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