Imagens das páginas

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 2 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

[ocr errors]

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 not — and 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 witmesses 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 2 or how can the most humane jury, and the most acute judge, refuse to consider him as guilty, till his witnesses are produced 2 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) suffered a serious injury. He has his hand, too, in the public 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 his own story from want of words and want of confidence, and as unable to produce evidence for want of money. His fate accordingly is obvious; — and that there are many innocent men punished every year, for crimes they have not committed, appears to us to be extremely probable. It is, indeed, scarcely possible it should be otherwise; and, as if 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 different circumstances on the conduct and situation of the prisoner.” (House of Commons Debates, April 25th, 1826.) We are 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 7 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 of 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 evidence — who knows or cares about Harrison or Johnson 2 how can they make themselves heard 2 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 a talk of a society for employing discharged prisoners: might not something be effected by a society instituted for the purpose of providing to poor prisoners a proper defence, and a due attendance of witnesses P 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 misdemeanour, and as defendants have in all civil actions. Nothing can be done in any discussion upon any point of law in England, without quoting Mr. 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 prisoners 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 ancient 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 Russell's 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 a halfpenny cake, he may plead either by himself or by his advocate 2 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 1684, Judge Jeffries, in summing up, confessed to the jury, “that he thought it a 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, committed murder or felony, nay, high treason, where life, estate, honour, and all were concerned, that he should neither have counsel, nor have his witnesses examined upon oath.’—Howell'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 folly sanctioned by antiquity. In the early periods of our history, the accused person

« AnteriorContinuar »