The Sun.
London, England, 1863-01-22 00:00:00

SPIRIT OF THE PUBLIC JOURNALS. I

Ttans.—" The law trusts the advocate with a
privilege, in respect of the liberty of speech, which
is in practice bounded only by his own sense of
duty ; and he may h ye to speak upon subjectscon
cerning the deepest interests of social life and the
innermost feelings of tha human soul. The law
also trusts him with a power of insisting on an-
swers to the most painful questioning; and this
power, again, is in practice only controlled by his
own view of the interests of truth." These are words
occurring in the judgment of Chief Justice Erie in
the recent case of Kennedy v. Braun. It is one of
the best judgments of contemporary days. It is an
exception to the common habit of these degenerate
times, when judges seem to have forgotten that
;English law once had pretensions to be a science,
and have even lost confidence in their own capacity
to exercise it as an art. It does not evade the ques-
tion instead of deciding it. It does not nibble at
the little accidents of the case instead of biting into
the core of it. It is more like those grand old judg-
ments which, in their different ways, Coke and Lord
Mansfield gave; men who in their affluence of
knowledge and their power of generalisation trod
confidently ; men who were not afraid to lay down
principles from any consciousness of incapacity to
foresee how they would work. Lord Chief Justice
Erie's judgment in this case deserves to be noted as
a work of judicial art, and apart from the interest
attaching to the case which occasioned it. Before
it passes away from the memory of the profession
and the public, we wish to ask for areconsideration
of the words we have above quoted. They are the
well-considered dicta of a very eminent judge, and
they define the privileges of a class of men with
whom, at some time or other, every one among us
is likely to come in contact. As witness, as party,
as juryman, or as client, the chances are very
much in favour of any named individual some
time finding himself in the hands of a barrister.
Chief Justice Erle says most truly that whenever
this happens the banister may say what he
pleases of the individual or any of his acts or
motives or domestic relations, even to stirring
up the innermost feelings of his soul. If he
be before him as a witness, the barrister may also
pry, with the most impertinent curiosity into the
most secret acts of his daily domestic life; he may
unveil all his weaknesses, and bring out every past
folly in its worst light ; he may revive the memory
of old misfortunes, and reopen old wounds long since
cicatrized. To this system of torture there is, as
the Chief Justice justly observes, no restraint but the
barrister's own sense of duty and his own view of
the interest of truth. If he be interrupted in his
speech, which is very seldom the case, we hear im-
mediately loud and lofty strains about the privileges
of the Bar; if in the cross-examination, then the
advocate is "testing the credit of the witness," or
" the pertinency of the question;will appear by and
by," or " his instructions make it his duty to ask
these questions," or, again, " the witness need not
answer, unless he pleases, and the jury will know
then what to believe." Surely these are tremendous
powers to put into the hands of any man ! While
we fence our liberty and our property round with
every possible protection, we thus leave ourselves
open to the infliction, by any careless or reckless
or malevolent member of the Bar, of amoral torture
worse than any physical punishment which our law
allows. The Chief Justice, when reminding the
Bar of these terrible powers, seeks to impress upon
them the responsibility which they assume in their
use of them. "The advocate entitled to permanent
success must unite high powers of intellect with
high principle of duty," and " the integrity and
dignity of advocates are in close relation with the
highest of human interests—namely, the adminis-
tration of justice." It might be very well if the
exhortations of our Judges were as powerful to re-
strain as their decisions are powerful to arm. Even
Chief Justice Erle, however, is compelled to admit
that " in the class of advocates there will be bad
men taking the wages of evil." As a matter of fact
we know that there is as much difference between
barristers as there is between attorneys,and we know
that of these latter Lord Hardwicke said that while
he confilently trusted some of them with his pro-
perty, his honour, and his life, he should be sorry to
be obliged to trust others of them with his greatcoat.
It is incontestable that these enormous powers are
daily abused, and now that they are once more so
solemnly declared from the judicial bench, it be-
comes us to ask ourselves whether they really are
necessary to " the highest of human interests—
namely, the administration of justice." In the first
place, we would remark that these powers are
scarcely ever used by the best and most successful
advocates. A " searching" cross-examination is
almost always a blunder or a fraud. It is a blunder
if the advocate knows no better ; it is a fraud if,
knowing better, he does it to "get his name
up." It is in the criminal courts we find these
powers most actively used, and there, so far from
being used in furtherance of the administration of
justice, they tend to the reverse. In these courts,
the privileges of the bar scarcely ever appear except
as aids to the criminal against the respectable
classes. They tend to frighten prosecutors out of
the courts. Let us put a very strong case. A foot-
man steals his master's plate, and is tried at the
Central Criminal Court. The barrister who defends
takes a line of cress-examination tendirg to show
that there was a familiarity between the footman
and his mistress, and that she may possibly have
given him the pitite. If the facts were true, they
would not justify an acquittal; but we will suppose
that the suggestion was utterly unfounded, that it
excited the indignation of all present, and that it
was resented by a heavy sentence upon the prisoner.
How does this illogical severity assuage the agony
of the prosecutor and his family P And is not such
a case, when reported, a warning which acts upon
twenty other persons to suffer any loss rather than
take part in the administration of justice? Tne
case we put is, as our readers may remember, not
quite imaginary ; but there are many gradations of
such cases, and they all tell against justice, and
not in its favour. We are very much inclined
to think that the "privileges of the bar" might
be curtailed without any danger to innocence,
and with great benefit to the suppression of crime.
We are by no means unmindful of the difficulties
of this subject. It would be impossible to allow
testimony to pass unsifted through the Courts. All,
however, that is necessary to be accomplished might
be done without any alteration of the present law.
We require only for thispuepose the action of public
opinion and a little energy in the Bench of Judges.
At present neither the Judges nor the public appear
to recognise the fact that a witness in a witness-boa
is a person in the exerc;se of a very painful but
most important public duty. He is for the moment
a public officer, as deserving of respectful treatment
and of protection against insult as is the Judge him-
self. The general notion, however, derived from
tradition, seems to be that a witness in a witness-
box is, like a bull in a ring or a badger in a cask,
put there to be baited, and that the
counsel are the
dogs who, by the instincts of their breed, are bound
to do it. We have got rid of the bull-baiting
the badger-baiting, and it is quite time that we and
got
rid of the witness-baiting. When the old feeling
is quite g which associates something like fair
play with these forensic fights people will know
better, and the Judges will, perhaps, be induced to
exercise more frequently their power of protecting
witnesses. Perhaps, also, witnesses themselves will
then more confidently claim the Judges' protection.
'These lest have plenty of power to abate this evil if
they would only use it. It is true they cannot stop
an advocate from pursuing a particular line of ex-
amination if he declare that this question is perti-
nent, or that he is justified by his instructions. But
if the event should show that the question was not
pertinent, or that there was no foundation for the
suggestion made, the Judge might then deal with
the advocate by silencing him for a certain specified
time—a penalty well known and often inflicted in
days of better discipline;
and the Judge might also
make call for the instructions, and the attorney re.
spensible for any malicious misstatements in them.
We would ask Chief Justice Erle and his brethren
on the bench to give a moment's consideration to
this matter, and to ask themselves whether it be
really true that the unrestricted use—which can
only mean the frequent abuse—of these enormous

powers is necessary, or even favourable, to the ad-
ministration of justice.
DAILY NEWS.—English politicians entertain few
political desires stronger than that of seeing the
countries andaGovernments of the Scandinavian race
in good understanding and alliance with each other.
They ferns altogether but seven millions, which are
not too many to impose upon ambitious powers in
their re:ghbourhood the necessity of respecting
their rights and independence. Many amongst
themselves, actuated by this conviction, have aimed
at a close political union of the three kingdoms
under the same sovereign. The obstacles in the way
of any such union are, however, so great, that it
may be considered impossible. Even close alliance
is difficult; but it is not unattainable. O_:3 of the
difficulties is the great divergence of the political
system and ideas which prevail, and have been con-
solidated in institutions. Thus Sweden and Nor-
way, though united under the
minglein a
same monarch,likceerfitarienanfadsivelioanteru.
is still the land of a feudal aristocracy, whilst Nor-
way has formally proscribed hereditary nobility
altogether. In Denmark a very liberal, and what
the aristocracy of Holstein call a radical, constitu-
tion prevails. And the grand cause of disagree-
ment of which we hear so much between Denmark
and Holstein is less that of Scandinavian and Ger-
man antagonism, than the horror of the gentry and
nobility who dominate in the Estates of Holstein,
finding themselves at the mercy of the Copenhagen
commonalty. Whilst institutions approaching to
democratic were thus established at Copenhagen, at
Stockholm there still subsisted and subsists the con-
stitutional system of the middle ages. The Diet of
Sweden consists of the Four Estates or Orders, each
of which meets separately. There are the nobles,
the clergy, the burgesses, and the peasants. As it is
necessary for any proposition to obtain a majority
in all before it can be adopted, it is little to be won-
dered at that motions for a reform of the constitution
hrve always been lost. They have, however, been re-
newed in every Diet since 1834—that assembly meet-
ing every three years—and have never at any time
been opposed by the monarch of the day. Bernadotte,
and his son Oscar, successively recommended their
adoption. And the present King, who ascended
the throne in 1859, has just opened the Diet with a
formal proposal, which it seems has a better
chance of adoption than any of the schemes brought
forward vainly for the last 30 years. The Minis-
terial plan does not, it seems, comprise an heredi-
tary or even noble Chamber. It is to be one rather
like the American Senate, elected by provincial as-
semblies, whilst the Lower Chamber is to be chosen
by wide and direct elections. It is difficult at this
distance to estimate the probable success or the con-
sequence of such a law. Hitherto the Swedish
nobles have met far more moderate reforms with a
determined resistance ; but whether there may not
be something in the present law or the present time
to induce them to be less obstinate remains to be
seen. The King and his Ministers have evidently
had their plan in view for a considerable time. Their
chief care and effort in the last two years have been
to perfect, pass, and bring to bear a law for the esta-
blishment of Provincial Diets. This being a law
for decentralisation was palatable to the noblesse,
and calculated rather to indulge than to restrict
their local influence. It, however compelled them
to share the honour with the burgesses of country
towns, and with the small proprietors or farmers,
the council being the result of election. One of the
evils most complained of in Sweden used to be the
interminable cot fiict between town and country,
between the Government or municipal authorities
on the one hand, and the feudal lords and gentry
dominant on the other. The new regulation of the
Provincial Estates abates this evil, if it does not
altogether put an end to it. Should the Swedish
monarch and his Government-succeed in the com-
plicated task of framing and establishing a new
constitution for Sweden, there will still remain the
equally difficult question of the relations between
Sweden and Norway. The latter country, it is
known, has of late years put forward pretentious
only galling to Sweden, but unacceptable to the
King. The diminution of the power of the nobility
in the Swedish Diet must, by assimilating so mewhat
the institutions of the two countries, render an agree-
ment between them more easy. Bat the relations
between Stockholm and Christiania, as well as those
between Stockholm and Copenhagen, require the
most delicate handling, attempts and proposals for
closer union having generally produced the reverse
effect.
HERALD.—There are various estimates current
as to the amount of the actual stock of cotton exist-
ing in the Confederate States. The highest esti-
mate to which any weight can be attached is that
of Mr. Bunch, our consul at Charleston, who places
the amount at 4,250,000 bales. But Mr. Bunch has
all along taken an extravagantly sanguine view.
He believes in the existence of a considerable rem-
nant of the crop of 1860. Southern gentlemen
assure us that this is altogether a mistake; and,
seeing that the blockade did not come into operation
till the end of April, 1861, while the probability of
war and consequent expediency of exporting cotton
was apparent at the beginning of February, we in-
cline to their opinion. Again, he seems disposed
to overrate the crops of the two last years, and
to disregard the great increase of consumption
which has taken place in the States themselves.
More credit seems to be due to the calculations of
Mr. Molyneux, consul at Savannah, who places
the crops of 1861 and 1862 at 4,500,000 bales,
the deduction to be mode for destruction and con-
sumption at 1,000,000 ; leaving not more than
3,500,000 bales. It is possible that even this
estimate may be somewhat too high. We should
not venture confidently to calculate on more than
3,000,000. And there is one point which should
not be overlooked. The blockade which has kept
in the cotton has kept out the materials requisite
fur making it into bales; its enormous bulk when
unpacked has made it impossible to shelter it pro-
perly on the plantations; prudential reasons have
prevented its transmission to the ports ; and it is
found safer to store it unpinned as it cannot be
packed. It is, therefore, exposed to damage from
the weather and to deterioration from the oil of the
seed ; and we may expect that a good deal will be
in this way rendered unfit for use or exportation.
There is not the least chance that the American
and Indian supply together would do more than
provide effectually for the wants of the present year.
The condition of Lancashire, then, for the next two
years, supposing the present stock to be liberated,
depends upon the prospect of this year's crop. And
we do not hesitate to say that these depend entirely
on the condition of affairs in the commencement of
April. If at that time the ports shall be open we may
I hope for a crop of some three and a half million bales,
inasmuch as, being thus assured of a market,
every Southern planter will, during the planting
season—which lasts from the middle of April
to the middle of May—use his utmost endeavours
to sow as great a breadth as possible of his most
profitable crop; and though we can hardly hope
for anything
from Tennessee, Arkansas, and Louis-
iana, the cotton states east of the Mississippi will
probably do even more than usual. If at that time
peace—if, for
there be only a fair prospect of speedy
•
instance, France and England have recognised the
South—we may hope, perhaps, to receive one half of
an ordinary crop. But if things stand then as they
do now—what must we expect ?
Our readers may
judge for themselves. Cotton has now in the
Southern States only a prospective value. It has,
so far ceased to be a popularinlosrufaivtoduoreis not appear
whereas in 1860 the
crop was estimated at four mil-
lions and a half of bales,tapptheaart
to have exceeded one million—and this though the
great cotton region of Georgia, Alabama, and Mis-
sissippi has been reached by the Federals only at
its western extremity along the banks of thegreat
river. Public opinion, too, is against the planting
of cotton while the war lasts. It is thought tempt-
ing to the enemy, and an unpatriotic
employment
of labour which might be better used. Then, too,
there must be a large diversion of labour from the
cotton-fields to other purposes—for instance the
production of grain. The grain-growing country
of Tennessee and Kentucky, Missouri, and parts of
Virginia, cannot be relied on to supply the South.
And further, the labour usually employed in
grain-growing in the cotton states—that of the
non-slaveholding whites—has been withdrawn
to a great extent by military necessities,

which, and the requirements growing out of the
blockade, must also constitute a drain on the black
labouring population. Finally, it must be borne
in mind that the cotton-fields generally lie in
those portions of the states which are most ex-
p )sed to invasion ; and that the capture of Mobile
or Savannah, or a Federal army landing on the
coast, would chive the planters to retire with their
negro pxoperty into the mountainous regions of the
interior. Under these circumstances it is not im-
probable that the crop of 1863 will fall far below
that of 1862, be, in fact, too small for consideration,
if the war should continue. How far does the Go-
vernment intend to carry its policy of forbearance ?
How long will it obstinately refuse to join with
France in a mediation which, let the Republicans
bluster as they will, would be hardly less welcome
to America than to Europe ? Is there no limit to
belligerent rights--no term to neutral endurance?
At first the Northern Government itself never pre-
tended to assert that we were bound to sabmit even
as long as we have submitted to the sufferings
entailed on us by its efforts to subjugate the South.
" Bear with us for 60 days, for 90 days, till the end
of the campaign, till the frosts, till the rains enable
ourgun boats to penetrate into the interior," was Mr.
Seward's demand. And we have borne with him ;
we have let our people starve while we waited for
the fulfilment of his boasts; and he is farther than
ever from fulfilling them. Is this to last for ever ?
If the Ministers are not willing to mediate—if they
distrust. France or tremble at the shadow of the
Emancipation Society—dare they not recognise the
Confe erate States ? If they had even the courage
and the common sense to do this the prospect of
peace would be clear and immediate.