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or neither or only one. The first method is the best; the second is preferable to the last; and the last, which is our present system, is the worst possible. If counsel were denied to either of the parties, if it be necessary that any system of jurisprudence should be disgraced by such an act of injustice, they should rather be denied to the prosecutor than to the prisoner.
But the most singular caprice of the law is, that counsel are permitted in very high crimes, and in very small crimes, and denied in crimes of a sort of medium description. In high treason, where you mean to murder Lord Liverpool, and to levy war against the people, and to blow up the two Houses of Parliament, all the lawyers of Westminster-Hall may talk themselves dry, and the Jury deaf. Lord Eldon, when at the Bar, has been heard for nine hours on such subjects. If, instead of producing the destruction of five thousand people, you are indicted for the murder of one person, here human faculties, from the diminution of guilt, are supposed to be so clear and so unclouded, that the prisoner is quite adequate to make his own defence, and no counsel are allowed. Take it then upon that principle; and let the rule, and the reason of it, pass as sufficient. But if, instead of murdering the man, you have only libelled him, then, for some reason or another, though utterly unknown to us, the original imbecility of faculties in accused persons is respected, and counsel are allowed.
Was ever such nonsense defended by public men in grave assemblies ? The prosecutor too, (as Mr Horace Twiss justly observes), can either allow or disallow counsel, by selecting his form of prosecution ;-as where a mob had assembled to repeal, by riot and force, some unpopular statute, and certain persons had continued in that assembly for more than an hour after proclamation to disperse. That might be treated as levying war against the King, and then the prisoner would be entitled to receive (as Lord George Gordon did receive) the benefit of counsel. It might also be treated as a seditious riot; then it would be a misdemeanour, and counsel would still be allowed. But if Government had a mind to destroy the prisoner effectually, they have only to abstain from the charge of treason, and to introduce into the indictment the aggravation, that the prisoner had continued with the mob for an hour after proclamation to disperse; this is a felony, the prisoner's life is in jeopardy, and counsel are effectually excluded. It produces, in many other cases disconnected with treason, the most scandalous injustice. A receiver of stolen goods, who employs a young girl to rob her master, may be tried for the misdemeanour; the young girl taken afterwards would be tried for the felony. The receiver would be punishable only with fine,
imprisonment, or whipping, and he could have counsel to defend him. The girl indicted for felony, and liable to death, would enjoy no such advantage.
In the comparison between felony and treason, there are certainly some arguments why counsel should be allowed in felony rather than in treason. Persons accused of treason are generally persons of education and rank, accustomed to assemblies, and to public speaking, while men accused of felony are commonly of the lowest of the people. If it be true, that Judges, in cases of high treason, are more liable to be influenced by the Crown, and to lean against the prisoner, this cannot apply to cases of misdemeanour, or to the defendants in civil cases; But if it be necessary, that Judges should be watched in political cases, how often are cases of felony connected with political disaffection ? Every Judge too has his idiosyncrasies, which require to be watched. Some hate Dissenters—some mobs ; some have one weakness, some another; and the ultimate truth is, that no court of justice is safe, unless there is some one present whose occupation and interest it is to watch the safety of the prisoner. Till then, no man of right feeling can be easy at the administration of justice, and the punishment of death.
Two men are accused of one offence; the one dexterous, bold, subtile, gifted with speech, and remarkable for presence of mind; the other timid, hesitating, and confused, -is there any reason why the chances of these two men for acquittal should be, as they are, so very different? Inequalities there will be in the means of defence under the best system, but there is no occasion the law should make these greater than they are left by chance or nature.
But it is asked) what practical injustice is done—what practical evil is there in the present system? The great object of all law is, that the guilty should be punished, and that the innocent should be acquitted. A very great majority of prisoners, we admit, are guilty-and so clearly guilty, that we believe they would be found guilty under any system; but among the number of those who are tried, some are innocent, and the chance of establishing their innocence is very much diminished by the privation of counsel. In the course of twenty or thirty years, among the whole mass of English prisoners, we believe many are found guilty who are innocent, and who would not have been found guilty, if an able and intelligent man had watched over their interest, and represented their case. If this happen only to two or three every year, it is quite a sufficient reason why the law should be altered. That such cases exist, we firmly believe; and this is the practical evil-perceptible to men of sense and reflection; but not likely to become the subject of general petition. To ask why there are not petitions—why the evil is not more noticed, is mere parliamentary froth and ministerial juggling. Gentlemen are rarely hung. If they were so, there would be petitions without end for counsel. The creatures exposed to the cruelties and injustice of the law are dumb creatures, who feel the evil without being able to express their feeling. Besides, the question is not, whether the evil is found out, but whether the evil exist. Whoever thinks it is an evil, should vote against it, whether the sufferer from the injustice discovers it to be an injustice, or whether he suffer in ignorant silence. When the bill was enacted, which allowed counsel for treason, there was not a petition from one end of England to the other. Can there be a more shocking answer from the Ministerial Bench, than to say, for real evil we care nothing-only for detected evil? We will set about curing any wrong which affects our popularity and power: But as to any other evil, we wait till the people find it out; and, in the mean time, commit such evils to the care of Mr George Lamb, and of Sir James Mackintosh. We are sure so good a man as Mr Peel can never feel in this manner.
Howard devoted himself to his country. It was a noble example. Let two gentlemen on the Ministerial side of the House (we only ask for two) commit some crimes, which will render their execution a matter of painful necessity. Let them feel, and report to the House, all the injustice and inconvenience of having neither a copy of the indictment, nor a list of witnesses, nor counsel to defend them. We will venture to say, that the evidence of two such persons would do more for the improvement of the criminal law, than all the orations of Mr Lamb, or the lucubrations of Beccaria. Such evidence would save time, and bring the question to an issue. It is a great duty, and ought to be fulfilled,-and, in ancient Rome, would have been fulfilled.
The opponents always forget that Mr Lamb's plan is not to compel prisoners to have counsel, but to allow them to have counsel, if they choose to do so. Depend upon it, as Dr Johnson says, when a man is going to be hanged, his faculties are wonderfully concentrated. If it be really true, as the defenders of Mumpsimus observe, that the Judge is the best counsel for the prisoner, the prisoner will soon learn to employ him, especially as his Lordship works without fees. All that we want is an option given to the prisoner-that a man, left to adopt his own means of defence in every trifling civil right, may have the same power of selecting his own auxiliaries for higher interests.
But nothing can be more unjust than to speak of Judges, as if they were of one standard, and one heart and head pattern. The great majority of Judges, we have no doubt, are upright and pure; but some have been selected for flexible politics - some are passionate—some in a hurry-some are violent churchmen-some resemble ancient females-some have the gout-some are eighty years old-some are blind, deaf, and have lost the power of smelling. All one to the unhappy prisoner- he has no choice.
It is impossible to put sogross an insult upon Judges, Jurymen, Grand Jurymen, or any person connected with the administration of justice, as to suppose that the longer time to be taken up by the speeches of counsel, constitutes the grand bar to the proposed alteration. If three hours would acquit a man, and he is hanged because he is only allowed two hours for his defence, the poor man is as much murdered as if his throat had been cut before he came into Court. If twelve Judges cannot do the most perfect justice, other twelve must be appointed. Strange administration of criminal law, to adhere obstinately to an inadequate number of Judges, and to refuse any improvement which is incompatible with this arbitrary and capricious enactment. Neither is it quite certain that the proposed alteration would create a greater demand upon the time of the Court. At present the counsel makes a defence by long crossexaminations, and examinations in chief of the witnesses, and the Judge allows a greater latitude than he would do, if the counsel of the prisoner were permitted to speak. The counsel by these oblique methods, and by stating false points of law for the express purpose of introducing facts, endeavours to obviate the injustice of the law, and takes up more time by this oblique, than he would do by a direct defence. But the best answer to this objection of time (which, if true, is no objection at all) is, that as many misdemeanors as felonies are tried in a given time, though counsel are allowed in the former, and not in the latter case. Oneexcuse for the absence of counsel is, that the evidence upon
1 which the prisoner is convicted is always so clear, that the counsel cannot gainsay it. This is mere absurdity. There is not, and cannot be, any such rule. Many a man has been hung upon a string of circumstantial evidence, which not only very ingenious men, but very candid and judicious men, might criticize and call in question. If no one were found guilty but upon such evidence as would not admit of a doubt, half the crimes in the world would be unpunished. This dictum, by which the present practice has often been defended, was adopted by Lord Chancellor Nottingham. To the lot of this Chancellor, how
ever, it fell to pass sentence of death upon Lord Stafford, whom (as Mr Denman justly observes), no court of justice, not even the House of Lords (constituted as it was in those days), could bave put to death, if he had had counsel to defend him.
To improve the criminal law of England, and to make it really deserving of the incessant eulogium which is lavished upon it, we would assimilate trials for felony to trials for high treason. The prisoner should not only have Counsel, but a copy of the indictment and a list of the witnesses, many days antecedent to the trial. It is in the highest degree unjust that I should not see and study the description of the crime with which I am charged, if the most scrupulous exactness be required in that instrument which charges me with crime. If the place where, the time when, and the manner how, and the persons by whom, must all be specified with the most perfect accuracy, if any deviation from this accuracy is fatal, the prisoner, or his legal advisers, should have a full opportunity of judging whether the scruples of the law have been attended to in the formation of the indictment; and they ought not to be confined to the hasty and imperfect consideration which can be given to an indictment exhibited for the first time in Court. Neither is it possible for the prisoner to repel accusation till he knows who is to be brought against him. He may see suddenly, stuck up in the witness's box, a man who has been writing him letters, to extort money from the threat of evidence he could produce. The character of such a witness would be destroyed in a moment, if the letters were produced; and the letters would have been produced, of course, if the prisoner had imagined such a person would have been brought forward by the prosecutor. It is utterly impossible for a prisoner to know in what way he may be assailed, and against what species of attacks he is to guard. Conversations may be brought against him which he has forgotten, and to which he could (upon notice) have given another colour and complexion. Actions are made to bear upon his case, which, (if he had known they would have been referred to), might have been explained in the most satisfactory manner. All these modes of attack are pointed out by the list of witnesses transmitted to the prisoner, and he has time to prepare his answer, as it is perfectly just he should have. This is justice, when a prisoner has ample means of compelling the attendance of his witnesses; when his written accusation is put into his hand, and he has time to study it--when he knows in what manner his guilt is to be proved, and when he has a man of practised understanding to