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sense of what is written in another his defence, cannot be permitted to address

tongue, may go into the study of the language as deeply and as extensively as he pleases. The old system aims at beginning with a depth and accuracy which many men never will want, which disgusts many from arriving even at moderate attainments, and is a less easy, and not more certain road to a profound skill in languages, than if attention to grammar had been deferred to a later period.

In fine, we are strongly persuaded, that the time being given, this system will make better scholars; and the degree of scholarship being given, a much shorter time will be needed. If there be any truth in this, it will make Mr. Hamilton one of the most useful men of his age; for if there be anything which fills reflecting men with melancholy and regret, it is the waste of mortal time, parental money, and puerile happiness, in the present method of pursuing Latin and Greek.

COUNSEL FOR PRISONERS.

(E. REVIEW, 1826.)

Stockton on the Practice of not allowing
Counsel for Prisoners accused of Felony.

Svo. London. 1826.

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 pri soner'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 unintentionally 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. 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

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 On the sixth of April, 1824, Mr. George a wise, honest, and high-principled Lamb (a gentleman who is always the man-as he appears to us, without advocate of whatever is honest and wishing for innovation, or having any liberal) presented the following peti-itch for it, not to be afraid of innovation from several jurymen in the habit tion*, when it is gradual and well conof serving on juries at the Old Bailey:-sidered. He is, indeed, almost the only "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 counsel, which, they humbly conceive, have strong claims to a legislative remedy. With

every disposition to decide justly, the peti

tioners 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

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 soli

*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 ther, and some of the parson's notions have chaplain! They have been travelling togebeen put up in Mr. Peel's head by mistake. We yet hope he will return them to their rightful owner.

citation- 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 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 can not give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against

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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 themselves 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 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 the condemned person completely estasuch employ made richer by six-and-blished. In Elizabeth Caning's case, eightpence, would have had the two two women were capitally convicted, witnesses ready, and at rack and man- ordered for execution-and at last ger, from the first day of the assize; found innocent, and respited. Such, and the innocence of the prisoner too, was the case of the men who would have been established: but by were sentenced, ten years ago, for the what possible means is the destitute robbery of Lord Cowper's steward. ignorant wretch himself to find or to "I have myself (says Mr. Scarlett) produce such witnesses? or how can often seen persons I thought innocent the most humane jury, and the most convicted, and the guilty escape, for acute judge, refuse to consider him as want of some acute and intelligent guilty, till his witnesses are produced? counsel to show the bearings of the We have not the slightest disposition different circumstances on the conduct to exaggerate, and on the contrary, and situation of the prisoner."—(House should be extremely pleased to be con- of Commons Debates, April 25th, 1826.) vinced that our apprehensions were We are delighted to see, in this last unfounded: but we have often felt ex- debate, both Mr. Brougham and Mr. treme pain at the hopeless and unpro- Scarlett profess themselves friendly to tected state of prisoners; and we can- Mr. Lamb's motion. not 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 for 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

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 treadmill; 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 pri- | 1684, Judge Jeffries, in summing up, soner accused of felony ought to have confessed to the jury, "that he thought the same power of selecting counsel to it a hard case, that a man should have speak for him as he has in cases of counsel to defend himself for a twotreason and misdemeanour, and as de- penny trespass, and his witnesses be fendants have in all civil actions. examined upon oath; but if he stole, Nothing can be done in any discus- committed murder or felony, nay, high sion upon any point of law in Eng-treason, where life, estate, honour, and land, without quoting Mr. Justice all were concerned, that he should Blackstone. Mr. Justice Blackstone, neither have counsel, nor have his we believe, generally wrote his Com-witnesses examined upon oath."mentaries late in the evening, with a (Howell's State Trials, vol. x. p. 207.) bottle of wine before him; and little There have been two capital errors did he think, as each sentence fell from in the criminal codes of feudal Europe, the glass and pen, of the immense in- from which a great variety of mistake fluence it might hereafter exercise and injustice have proceeded: the one, upon the laws and usages of his coun- a disposition to confound accusation try. "It is," says this favourite with guilt; the other, to mistake a dewriter, "not at all of a piece with the fence of prisoners accused by the rest of the humane treatment of pri- Crown, for disloyalty and disaffection soners by the English law; for upon to the Crown; and from these errors what face of reason can that assist- our own code has been slowly and ance be denied to save the life of a gradually recovering, by all those man, which yet is allowed him in pro- struggles and exertions which it secutions for every petty trespass?" always costs to remove folly sanctioned Nor, indeed, strictly speaking, is it a by antiquity. In the early periods of part of our ancient law; for the Mir- our history, the accused person could ror, having observed the necessity of call no evidence :- then for a long counsel in civil suits, who know how time, his evidence against the King to forward and defend the cause by the could not be examined upon oath; rules of law and customs of the realm, consequently, he might as well have immediately subjoins, "and more ne- produced none, as all the evidence cessary are they for defence upon in- against him was upon oath. Till the dictment and appeals of felony, than reign of Anne, no one accused of upon any other venial crimes." To felony could produce witnesses upon the authority of Blackstone may be oath; and the old practice was vindiadded that of Sir John Hall, in Hollis's cated, in opposition to the new one, case; of Sir Robert Atkyns, in Lord introduced under the statute of that Russell's case; and of Sir Bartholomew day, on the grounds of humanity and Shower, in the arguments for a New tenderness to the prisoner! because, Bill of Rights, in 1682. "In the name as his witnesses were not restricted by of God," says this judge, "what harm an oath, they were at liberty to indulge can accrue to the public in general, or in simple falsehood as much as they to any man in particular, that, in cases pleased;-so argued the blessed deof State-treason, counsel should not be fenders of nonsense in those days. allowed to the accused? What rule Then it was ruled to be indecent and of justice is there to warrant its de- improper that counsel should be emnial, when, in a civil case of a half-ployed against the Crown; and, therepenny 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

fore, 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 the jury, which would have insured point of law; but if the prisoner your acquittal; but do you forget that (likely to be a weak unlettered man) gentlemen of their eminence must be could himself suggest any doubt in recompensed by large fees, and that, matter of law, the Court determined if your life had been saved, you would first if the question of law should be actually have been out of pocket above entertained, and then assigned counsel 201.? You will now die with the to argue it. In those times, too, the consciousness of having obeyed the jury were punishable if they gave a dictates of a wise economy; and with false verdict against the King, but were a grateful reverence for the laws of not punishable if they gave a false your country, which prevents you from verdict against the prisoner. The pre-running into such unbounded expense amble of the Act of 1696 runs thus: -so let us now go to prayers." "Whereas it is expedient that per- It is ludicrous enough to recollect, sons charged with high treason should when the employment of counsel is make a full and sufficient defence." objected to on account of the expense Might it not be altered to persons to the prisoner, that the same merciful charged with any species or degree of law, which, to save the prisoner's crime? All these errors have given money, has denied him counsel, and way to the force of truth, and to the produced his conviction, seizes upon power of common sense and common all his savings the moment he is conhumanity-the Attorney and Solicitor victed. General, for the time being, always Of all false and foolish dicta, the protesting against each alteration, and most trite and the most absurd is that regularly and officially prophesying the which asserts that the Judge is counutter destruction of the whole jurispru-sel for the prisoner. We do not hesidence of Great Britain. There is no tate to say that this is merely an man now alive perhaps, so utterly unmeaning phrase, invented to defend foolish, as to propose, that prisoners a pernicious abuse. The Judge cannot should be prevented from producing be counsel for the prisoner, ought not to evidence upon oath, and being heard be counsel for the prisoner, never is by their counsel in cases of high trea- counsel for the prisoner. To force an son; and yet it cost a struggle for seven | ignorant man into a court of justice, sessions to get this measure through and to tell him that the Judge is his the two houses of Parliament. But counsel, appears to us quite as foolish mankind are much like the children as to set a hungry man down to his they begetthey always make wry meals, and to tell him that the table faces at what is to do them good; and was his dinner. In the first place, a it is necessary sometimes to hold the counsel should always have private and nose, and force the medicine down the previous communication with the prithroat. They enjoy the health and soner, which the Judge, of course, vigour consequent upon the medicine; cannot have. The prisoner reveals to but cuff the doctor, and sputter at his his counsel how far he is guilty, or he stuff! is not; states to him all the circumA most absurd argument was ad-stances of his case-and might often vanced in the honourable House, that enable his advocate, if his advocate the practice of employing counsel were allowed to speak, to explain a would be such an expense to the pri-long string of circumstantial evidence soner!-just as if anything 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

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

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