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? 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? how can they make themselves heard? 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? 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 prosecu

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tions 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? 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 carly periods of our history, the accused person

could call no evidence: - then, for a long time, his evidence against the King could not be examined upon oath; consequently, he might as well have produced none, as all the evidence against him was upon oath. Till the reign of Anne, no one accused of felony could produce witnesses upon oath; and the old practice was vindicated, in opposition to the new one, introduced under the statute of that day, on the grounds of humanity and tenderness to the prisoner! because, as his witnesses were not restricted by an oath, they were at liberty to indulge in simple falsehood as much as they pleased; so argued the blessed defenders of nonsense in those days. Then it was ruled to be indecent and improper that counsel should be employed against the Crown; and, therefore, the prisoner accused of treason could have no counsel. In like manner, a party accused of felony could have no counsel to assist him in the trial. Counsel might indeed stay in the court, but apart from the prisoner, with whom they could have no communication. They were not allowed to put any question, or to suggest any doubtful point of law; but if the prisoner (likely to be a weak unlettered man) could himself suggest any doubt in matter of law, the Court determined first if the question of law should be entertained, and then assigned counsel to argue it. In those times, too, the jury were punishable if they gave a false verdict against the King, but were not punishable if they gave a false verdict against the prisoner. The preamble of the Act of 1696 runs thus:- Whereas it is expedient that persons charged with high treason should make a full and sufficient defence.' Might it not be altered to persons charged with any species or degree of crime? All these errors have given way to the force of truth, and to the power of common sense and common humanity the Attorney and Solicitor General, for the time being, always protesting against each alteration, and regularly and officially prophesying the utter destruction of the whole jurisprudence of Great Britain. There is no man now alive perhaps, so utterly foolish, as to propose that prisoners should be prevented from producing evidence

upon oath, and being heard by their counsel in cases of high treason; and yet it cost a struggle for seven sessions to get this measure through the two houses of Parliament. But mankind are much like the children they begetthey always make wry faces at what is to do them good; and it is necessary sometimes to hold the nose, and force the medicine down the throat. They enjoy the health and vigour consequent upon the medicine; but cuff the doctor, and sputter at his stuff!

A most absurd argument was advanced in the honourable House, that the practice of employing counsel would be such an expense to the prisoner!-just as if any thing was so expensive as being hanged! What a fine topic for the ordinary! 'You are going' (says that exquisite divine) 'to be hanged to-morrow, it is true, but consider what a sum you have saved! Mr. Scarlett or Mr. Brougham might certainly have presented arguments to the jury, which would have insured your acquittal; but do you forget that gentlemen of their eminence must be recompensed by large fees, and that, if your life had been saved, you would actually have been out of pocket above 207.? You will now die with the consciousness of having obeyed the dictates of a wise economy; and with a grateful reverence for the laws of your country, which prevents you from running into such unbounded expense-so let us now go to prayers.'

It is ludicrous enough to recollect, when the employment of counsel is objected to on account of the expense to the prisoner, that the same merciful law, which, to save the prisoner's money, has denied him counsel, and produced his conviction, seizes upon all his savings the moment he is convicted.

Of all false and foolish dicta, the most trite and the most absurd is that which asserts that the Judge is counsel for the prisoner. We do not hesitate to say that this is merely an unmeaning phrase, invented to defend a pernicious abuse. The Judge cannot be counsel for the prisoner, ought not to be counsel for the prisoner, never is counsel for the prisoner. To force an