not, that two understandings should be put in opposition to each other, and that a third should decide between them. Does this open every view which can bear upon the question? Does it in the most effectual manner watch the Judge, detect perjury, and sift evidence? If not, why is it suffered to disgrace our civil institutions? If it effect all these objects, why is it not incorporated into our criminal law? Of what importance is a little disgust at professional tricks, if the solid advantage gained is a nearer approximation to truth? Can any thing be more preposterous than this preference of taste to justice, and of solemnity to truth? What an eulogium of a trial to say, 'I am by no means satisfied that the Jury were right in finding the prisoner guilty; but every thing was carried on with the utmost decorum. The verdict was wrong; but there was the most perfect propriety and order in the proceedings. The man will be unfairly hanged; but all was 'genteel!' If solemnity is what is principally wanted in a court of justice, we had better study the manners of the old Spanish Inquisition; but if battles with the Judge, and battles among the counsel are the best method, as they certainly are, of getting at the truth, better tolerate this philosophical Billingsgate, than persevere, because the life of a man is at stake, in solemn and polished injustice.

Why would it not be just as wise and equitable to leave the defendant without counsel in civil cases-and to tell him that the Judge was his counsel? And if the reply is to produce such injurious effects as are anticipated upon the minds of the Jury in criminal cases, why not in civil cases also? In twentyeight cases out of thirty, the verdict in civil cases is correct; in the two remaining cases, the error may proceed from other causes than the right of reply; and yet the right of reply has existed in all. In a vast majority of cases, the verdict is for the plaintiff, not because there is a right of reply, but because he who has it in his power to decide whether he will go to law or not, and resolves to expose himself to the expense and trouble of a lawsuit, has probably a good foundation for his claim. Nobody, of course, can intend to say that the majority of verdicts in favour of plaintiffs are against justice, and merely attributable to the advantage of a last speech. If this were the case, the sooner advocates are turned out of court the betterand then the improvement of both civil and criminal law would be an abolition of all speeches; for those who dread the effect of the last word upon the fate of the prisoner, must remember that there is at present always a last speech against the pr.

soner; for, as the counsel for the prosecution cannot be replied to, his is the last speech.

There is certainly this difference between a civil and a criminal case-that in one a new trial can be granted, in the other not. But you must first make up your mind whether this system of contentious investigation by opposite advocates is or is not the best method of getting at truth: if it be, the more irremediable the decision, the more powerful and perfect should be the means of deciding; and then it would be a less oppression if the civil defendant were deprived of counsel than the criminal prisoner. When an error has been committed, the advantage is greater to the latter of these persons than to the former;-the criminal is not tried again, but pardoned; while the civil defendant must run the chance of another Jury.

If the effect of reply, and the contention of counsel, have all these baneful consequences in felony, why not also in misdemeanour and high-treason? Half the cases at Sessions are cases of misdemeanour, where counsel are employed, and halfinformed Justices preside instead of learned Judges. There are no complaints of the unfairness of verdicts, though there are every now and then of the severity of punishments. Now, if the reasoning of Mr Lamb's opponents were true, the disturbing force of the prisoner's counsel must fling every thing into confusion. The Court for misdemeanours must be a scene of riot and perplexity; and the detection and punishment of crime must be utterly impossible: and yet in the very teeth of these objections, such courts of justice are just as orderly in one set of offences as the other; and the conviction of a guilty person just as certain and as easy.

The prosecutor (if this system were altered) would have the choice of counsel; so he has now-with this difference, that, at present, his counsel cannot be answered nor opposed. It would be better, in all cases, if two men of exactly equal talent could be opposed to each other; but as this is impossible, the system must be taken with this inconvenience; but there can be no inequality between counsel so great as that between any counsel and the prisoner pleading for himself.

• It

has been lately my lot,' says Mr Denman, to try two prisoners who were deaf and dumb, and who could only be made to understand what was passing by the signs of their friends. The cases were clear and simple; but if they had been circumstantial cases, in what a situation would the Judge and Jury be placed, when the prisoner could have no counsel to plead for him.'-Debates of the House of Commons, April

25. 1826.

The folly of being counsel for yourself is so notorious in civil cases, that it is grown into a proverb. But the cruelty of the law compels a man, in criminal cases, to be guilty of a much greater act of folly, and to trust his life to an advocate who, by the common sense of mankind, is pronounced to be inadequate to defend the possession of an acre of land.

In all cases it must be supposed, that reasonably convenient instruments are selected to effect the purpose in view. A Judge may be commonly presumed to understand his profession, and a Jury to have a fair allowance of common sense; But the objectors to the improvement we recommend, appear to make no such suppositions. Counsel are always to make flashy addresses to the passions. Juries are to be so much struck with them, that they are always to acquit or to condemn, contrary to justice; and Judges are always to be so biassed, that they are to fling themselves rashly into the opposite scale against the prisoner. Many cases of misdemeanor consign a man to infamy, and cast a blot upon his posterity. Judge and Juries must feel these cases as strongly as any cases of felony; and yet, in spite of this, and in spite of the free permission of counsel to speak, they preserve their judgment, and command their feelings surprisingly. Generally speaking, we believe none of these evils would take place. Trumpery declamation would be considered as discreditable to the counsel, and would be disregarded by the Jury. The Judge and Jury (as in civil cases) would gain the habit of looking to the facts, selecting the arguments, and coming to reasonable conclusions. It is so in all other countries-and it would be so in this. But the vigilance of the Judge is to relax, if there is counsel for the prisoner. Is, then, the relaxed vigilance of the Judges complained of, in high treason, in misdemeanour, or in civil cases? This appears to us really to shut up the debate, and to preclude reply. Why is the practice so good in all other cases, and so pernicious in felony alone? This question has never received even the shadow of an anThere is no one objection against the allowance of counsel to prisoners in felony, which does not apply to them in all cases. If the vigilance of Judges depend upon this injustice to the prisoner, then, the greater injustice to the prisoner, the more vigilance; and so the true method of perfecting the Bench would be, to deny the prisoner the power of calling witnesses, and to increase as much as possible the disparity between the accuser and the accused. We hope men are selected for the Judges of Israel, whose vigilance depends upon better and higher principles.

swer.

There are three methods of arranging a trial, as to the mode of employing counsel-that both parties should have counsel,

or neither-or only one. The first method is the best; the second is preferable to the last; and the last, which is our present system, is the worst possible. If counsel were denied to either of the parties, if it be necessary that any system of jurisprudence should be disgraced by such an act of injustice, they should rather be denied to the prosecutor than to the prisoner. But the most singular caprice of the law is, that counsel are permitted in very high crimes, and in very small crimes, and denied in crimes of a sort of medium description. In high treason, where you mean to murder Lord Liverpool, and to levy war against the people, and to blow up the two Houses of Parliament, all the lawyers of Westminster-Hall may talk themselves dry, and the Jury deaf. Lord Eldon, when at the Bar, has been heard for nine hours on such subjects. If, instead of producing the destruction of five thousand people, you are indicted for the murder of one person, here human faculties, from the diminution of guilt, are supposed to be so clear and so unclouded, that the prisoner is quite adequate to make his own defence, and no counsel are allowed. Take it then upon that principle; and let the rule, and the reason of it, pass as sufficient. But if, instead of murdering the man, you have only libelled him, then, for some reason or another, though utterly unknown to us, the original imbecility of faculties in accused persons is respected, and counsel are allowed. Was ever such nonsense defended by public men in grave assemblies? The prosecutor too, (as Mr Horace Twiss justly observes), can either allow or disallow counsel, by selecting his form of prosecution;-as where a mob had assembled to repeal, by riot and force, some unpopular statute, and certain persons had continued in that assembly for more than an hour after proclamation to disperse. That might be treated as levying war against the King, and then the prisoner would be entitled to receive (as Lord George Gordon did receive) the benefit of counsel. It might also be treated as a seditious riot; then it would be a misdemeanour, and counsel would still be allowed. But if Government had a mind to destroy the prisoner effectually, they have only to abstain from the charge of treason, and to introduce into the indictment the aggravation, that the prisoner had continued with the mob for an hour after proclamation to disperse; this is a felony, the prisoner's life is in jeopardy, and counsel are effectually excluded. It produces, in many other cases disconnected with treason, the most scandalous injustice. A receiver of stolen goods, who employs a young girl to rob her master, may be tried for the misdemeanour; the young girl taken afterwards would be tried for the felony. The receiver would be punishable only with fine,

imprisonment, or whipping, and he could have counsel to defend him. The girl indicted for felony, and liable to death, would enjoy no such advantage.

In the comparison between felony and treason, there are certainly some arguments why counsel should be allowed in felony rather than in treason. Persons accused of treason are generally persons of education and rank, accustomed to assemblies, and to public speaking, while men accused of felony are commonly of the lowest of the people. If it be true, that Judges, in cases of high treason, are more liable to be influenced by the Crown, and to lean against the prisoner, this cannot apply to cases of misdemeanour, or to the defendants in civil cases; But if it be necessary, that Judges should be watched in political cases, how often are cases of felony connected with political disaffection? Every Judge too has his idiosyncrasies, which require to be watched. Some hate Dissenters-some mobs; some have one weakness, some another; and the ultimate truth is, that no court of justice is safe, unless there is some one present whose occupation and interest it is to watch the safety of the prisoner. Till then, no man of right feeling can be easy at the administration of justice, and the punishment of death.

Two men are accused of one offence; the one dexterous, bold, subtile, gifted with speech, and remarkable for presence of mind; the other timid, hesitating, and confused,-is there any reason why the chances of these two men for acquittal should be, as they are, so very different? Inequalities there will be in the means of defence under the best system, but there is no occasion the law should make these greater than they are left by chance or nature.

But (it is asked) what practical injustice is done-what practical evil is there in the present system? The great object of all law is, that the guilty should be punished, and that the innocent should be acquitted. A very great majority of prisoners, we admit, are guilty-and so clearly guilty, that we believe they would be found guilty under any system; but among the number of those who are tried, some are innocent, and the chance of establishing their innocence is very much diminished by the privation of counsel. In the course of twenty or thirty years, among the whole mass of English prisoners, we believe many are found guilty who are innocent, and who would not have been found guilty, if an able and intelligent man had watched over their interest, and represented their case. this happen only to two or three every year, it is quite a sufficient reason why the law should be altered. That such cases exist, we firmly believe; and this is the practical evil-perceptible to men of sense and reflection; but not likely to become

If