ARTICLES ORIGINALLY PUBLISHED IN THE EDINBURGH REVIEW. COUNSEL FOR PRISONERS. (E. REVIEW, 1826.) Stockton on the Practice of not allowing Counsel for Prisoners accused of Felony. 8vo. London, 1826. On the sixth of April, 1824, Mr. George Lamb (a gentleman who is always the advocate of whatever is honest and liberal) presented the following petition from several jurymen in the habit of serving on juries at the Old Bailey: That your petitioners, fully sensible of the invaluable privilege of Jury trials, and desirous of seeing them as complete as human institutions will admit, feel it their duty to draw the attention of the House to the restrictions imposed on the prisoner's consel, which, they humbly conceive, have strong claims to a legislative remedy. With every disposition to decide justly, the petitioners have found, by experience, in the course of their attendances as jurymen in the Old Bailey, that the opening statements for the prosecution too frequently leave an impression more unfavourable to the prisoner at the bar, than the evidence of itself could have produced; and it has always sounded harsh to the petitioners to hear it announced from the bench, that the counsel, to whom the prisoner has committed his defence, cannot be permitted to address the jury in his behalf, nor reply to the charges which have, or have not, been substantiated by the witnesses. The petitioners have felt their situation peculiarly painful and embarrassing when the prisoner's faculties, perhaps surprised by such an intimation, are too much absorbed in the difficulties of his unhappy circumstances to admit of an effort towards his own justification, against the statements of the prosecutor's counsel, often unin tentionally aggravated through zeal or misconception; and it is purely with a view to the attainment of impartial justice, that the petitioners humbly submit to the serious consideration of the House the expediency of allowing every accused person the full benefit of counsel, as in cases of misdemeanour, and according to the practice of the civil courts.' With the opinions so sensibly and properly expressed by these jurymen, we most cordially agree. We have before touched incidentally on this subject; but shall now give to it a more direct and fuller examination. We look upon it as a very great blot in our over-praised criminal code; and no effort of ours shall be wanting, from time to time, for its removal. We have now the benefit of discussing these subjects under the government of a Home Secretary of State, whom we may (we believe) fairly call a wise, honest, and high-principled man-as he appears to us, without wishing for innovation, or having any itch for it, not to be afraid of innovation*, when it is gradual and well considered. He is, indeed, almost the only person we remember in his station, who has not considered sound sense to consist in the rejection of every improvement, and loyalty to be proved by the defence of every accidental, imperfect, or superannuated institution. If this petition of jurymen be a real bonâ fide petition, not the result of solicitation-and we have no reason to doubt it—it is a warning which the Legislature cannot neglect, if it mean to avoid the disgrace of seeing the lower and middle orders of mankind making laws for themselves, which the Government is at length compelled to adopt as measures of their own, The Judges and the Parliament would have gone on to this day, hanging, by wholesale, for the forgeries of bank notes, if juries had not become weary of the continual butchery, and resolved to acquit. The proper execution of laws *We must always except the Catholic question. Mr. Peel's opinions on this subject (giving him credit for sincerity) have always been a subject of real surprise to us. It must surely be some mistake between the Right Honourable Gentleman and his chaplain! They have been travelling together, and some of the parson's notions have been put up in Mr. Peel's head by mistake. We yet hope he will return them to their rightful owner. must always depend, in great measure, upon public opinion; and it is undoubtedly most discreditable to any men intrusted with power, when the governed turn round upon their governors, and say, 'Your laws are so cruel, or so foolish, we can not, and will not, act upon them.' The particular improvement, of allowing counsel to those who are accused of felony, is so far from being unnecessary, from any extraordinary indulgence shown. to English prisoners, that we really cannot help suspecting, that not a year elapses in which many innocent persons are not found guilty. How is it possible, indeed, that it can be otherwise? There are seventy or eighty persons to be tried for various offences at the Assizes, who have lain in prison for some months; and fifty of whom, perhaps, are of the lowest order of the people, without friends in any better condition than themselves, and without one single penny to employ in their defence. How are they to obtain witnesses? No attorney can be employed-no subpoena can be taken out; the witnesses are fifty miles off, perhaps - totally uninstructed living from hand to mouth - utterly unable to give up their daily occupation to pay for their journey, or for their support when arrived at the town of trial and, if they could get there, not knowing where to go, or what to do. It is impossible but that a human being, in such a helpless situation, must be found guilty; for as he cannot give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against him must be taken for true (however false); since it is impossible for the poor wretch to contradict it. A brother or a sister may come -and support every suffering and privation themselves in coming; but the prisoner cannot often have such claims upon the persons who have witnessed the transaction, nor any other claims but those which an unjustly accused person has upon those whose testimony can exculpate him-and who probably must starve them. selves and their families to do it. It is true, a case of life and death will rouse the poorest persons, every now and then, to extraordinary exertions, and they may tramp through mud and dirt to the Assize town to save a life-though even this effort is precarious enough: but imprisonment, hard labour, or transportation, appeal less forcibly than death- and would often appeal for evidence in vain, to the feeble and limited resources of extreme poverty. It is not that a great proportion of those accused are not guilty-but that some are notand are utterly without means of establishing their innocence. We do not believe they are often accused from wilful and corrupt perjury; but the prosecutor is 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-eight-pence, 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 |