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enjoyed an immense advantage. In considering what bears against the prisoner, the judge has heard, not only the suggestions of his own understanding, but he has been exposed to the able and artful reasoning of a practised advocate, who has been previously instructed in the case of which the judge never heard a syllable before he came into court. Suppose it to be a case depending upon circumstantial evidence; in how many new points of view may a man of genius have placed those circumstances, which would not have occurred to the judge himself! How many inferences may he have drawn, which would have been unnoticed, but for the efforts of a man whose bread and fame depend upon his exertions and who has purposely, and on contract, flung the whole force of his understanding into one scale ! In the mean time, the prisoner can say nothing, for he has not the gift of learned speech ; his counsel can say nothing, though he has communicated with the prisoner, and could place the whole circumstances, perhaps, in the fairest and clearest point of view for the accused party. Bythecourtesy of England this is called justice— we in the north cannot admit of the correctness of the appellation.
It seems utterly to be forgotten, in estimating this practice, that two understandings are better than one. The judge must inevitably receive many new views against the prisoner by the speech of one counsel, and lose many views in favour of the prisoner by the silence of the other.
We are not to suppose (like ladies going into court in an assize town) that the judge would have thought of every thing which the counsel against the prisoner has said, and which the counsel for the prisoner would have said. The judge, wigged and robed as he is is often very inferior in acuteness to either of the persons who are pleading under him—a cold, slow, parchment and precedent man, without passions or præcordia, perhaps a sturdy brawler for church and king, quiet man of ordinary abilities, steadily, though perhaps conscientiously, following those in power through thick and thin— through right and wrong. Whence comes it that the method of getting at truth, which is so ex
cellent on all common occasions, should be considered as so improper on the greatest of all occasions, where the life of a man is concerned ? If an acre of land is to be lost or won, one man says all that can be said on one side of the question—another on the other; and the jury, aided by the impartiality of the judge, decide. The wit of man can devise no better method of disentangling difficulty, exposing falsehood, and detecting truth. *Teil me why I am hurried away to a premature death, and no man suffered to speak in my defence, when at this very moment, and in my hearing, all the eloquence of the bar, on the other side of your justice-hall, is employed in defending a path or a hedge? Is a foot of land dearer to any man than my life is to me? The civil plaintiff has not trusted the smallest part of his fate or fortune to his own efforts ; and will you grant me no assistance of superior wisdom, who have suffered a long famine to purchase it—who am broken by prison—broken by chains—and so shamed by this dress of guilt
, and abashed by the presence of my superiors, that I have no words which you could hear without derision — that I could not give way for a moment to the fulness and agitation of my rude heart without moving your contempt?' So spoke a wretched creature to a judge in our hearing ! and what answer could be given, but Jailer, take him away
?' We are well aware that a great decency of language is observed by the counsel employed against the prisoner, in consequence of the silence imposed upon the opposite counsel; but then, though there is a decency, as far as concerns impassioned declamation, yet there is no restraint, and there can be no restraint, upon the reasoning powers of a counsellor. He may put together the circumstances of an imputed crime in the most able, artful, and ingenious manner, without the slightest vehemence or passion. We have no objection to this, if any counter statement were permitted. We want only fair play. Speech for both sides, or speech for none. The first would be the wiser system; but the second would be clear from the intolerable cruelty of the present. We see no harm that would ensue, if both advocates were to follow their own plan without restraint. But, if the feelings are to be excluded in all causes of this nature (which seems very absurd), then let the same restraint be exacted from both sides. It might very soon be established as the etiquette of the bar, that the pleadings on both sides were expected to be calm, and to consist of reasoning upon the facts. In high treason, where the partiality of the judge and power of the court are suspected, this absurd incapacity of being heard by counsel is removed. Nobody pretends to say, in such cases, that the judge would be counsel for the prisoner; and yet, how many thousand cases are there in a free country which have nothing to do with high treason, and where the spirit of party, unknown to himself, may get possession of a judge ? Suppose any trial for murder to have taken place in the Manchester riots, — will any man say that the conduct of many judges on such a question ought not to have been watched with the most jealous circumspection ? Would any prisoner- would any
fair mediator between the prisoner and the public - be satisfied at such a period with the axiom that the judge is counsel for the prisoner? We are not saying that there is no judge who might not be so trusted, but that all judges are not, at all times, to be so intrusted. not saying that any judge would wilfully do wrong; but that many might be led to do wrong by passions and prejudices of which they were unconscious; and that the real safeguard to the prisoner, the best, the only safeguard, is full liberty of speech for the counsel he has employed.
What would be the discipline of that hospital, where medical assistance was allowed in all trifling complaints, and withheld in every case of real danger ? where Bailey and Halford were lavished upon stomach-aches and refused in typhus fever ? where the dying patient beheld the greatest skill employed upon triếing evils of others, and was told, because his was a case of life and death, that the cook or the nurse was to be his physician ?
Suppose so intolerable an abuse (as the Attorney and Solicitor General would term it) had been established,
and that a law for its correction was now first proposed, entitled an Act to prevent the Counsel for Prisoners from being heard in their Defence ! ! !
What evil would result from allowing counsel to be heard in defence of prisoners ? Would too many people be hung from losing that valuable counsellor, the judge ? or would too few people be hung ? or would things remain much as they are at present? We never could get the admirers of this practice to inform us what the results would be of deviating from it; and we are the more particularly curious upon this point, because our practice is decidedly the reverse, and we find no other results from it than a fair administration of criminal justice. In all criminal cases that require the intervention of a jury in Scotland, a prisoner must have, 1st, a copy of the indictment, which must contain a minute specification of the offence charged; 2dly, a list of witnesses; 3dly, a list of the assize; and, 4thly, in every question that occurs, and in all addresses to the jury, the prisoner's counsel has the last word. Where is the boasted mercy of the English law after this?
The truth is, it proceeds from the error which, in all dark ages, pervades all codes of laws, of confounding the accused with the guilty. In the early part of our state trials, the prisoners were not allowed to bring evidence against the witnesses of the crown. For a long period after this, the witnesses of the prisoner were not suffered to be examined upon oath. One piece of cruelty and folly has given way after another. Each has been defended by the Attorney and Solicitor General for the time, as absolutely necessary to the existence of the state, and the most perfect performance of our illustrious ancestors. The last grand hope of is the silence of the prisoner's counsel. In the defence of this, it will be seen what stupidity driven to despair can achieve. We beg pardon for this digression; but flesh and blood cannot endure the nonsense of lawyers upon this subject.
The Society have some very proper remarks upon the religious instructions of the chaplain - an appointment
of vast importance and utility ; unfortunately very ill paid, and devolving entirely upon the lower clergy. It is said that the present Bishop of Gloucester, Dr. Ryder, goes into jails, and busies himself with the temporal wretchedness and the eternal welfare of the prisoners. If this be so, it does him great honour, and is a noble example to all ranks of clergy who are subject to him. Above all, do not let us omit the following beautiful anecdote, while we are talking of good and pious men.
• The Committee cannot refrain from extracting from the Report of the Paris Society, the interesting anecdote of the excellent Père Joussony, who being sent, by the Consul at Algiers, to minister to the slaves, fixed his residence in their prison; and, during a period of thirty years, never quitted his post. Being compelled to repair to France, for a short period, he returned again to the prison, and at length resigned his breath in the midst of those for whose interests he had laboured, and who were dearer to him than life.'. - Report, p.
30. It seems to be a very necessary part of the prison system, that any poor person, when acquitted, should be passed to his parish ; and that all who are acquitted should be immediately liberated. At present, a prisoner, after acquittal, is not liberated till the Grand Jury are dismissed *, in case (as it is said) any more bills should be preferred against him. This is really a considerable hardship; and we do not see, upon the same principle, why the prisoner may not be detained for another assize. To justify such a practice, notice should, at all events, be given to the jailer of intention to prefer other charges against him. To detain a man who is acquitted of all of which he has been accused, and who is accused of nothing more, merely because he may be accused of somethiny more, seems to be a great perversion of justice. The greatest of all prison improvements, however, would be, the delivery of jails four times in the year. It would save expense; render justice more terrible, by rendering it more prompt; facilitate classification, by lessening
* This has since been done away with.