that the Judge is his counsel, appears to us quite as foolish as to set a hungry man down to his meals, and to tell him that the table was his dinner. 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 coun

He is

sel 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. not to decide; that is the province 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 of 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 further 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, 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 scan

evidence, to refuse to a prisoner the benefit of counsel? A foot-mark, a word, a sound, a tool dropped, all gave birth to the most ingenious inferences; and the counsel for the prosecution is so far from being blamable 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 reappear. 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 allow 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 mana

gers 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 already 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 law-makers 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.

gore

he

A great stress is laid upon the moderation of the opening counsel; that is, he does not conjure the farmers in the jury-box, 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 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 this 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

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.

6

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.