The Sun.
London, England, 1841-03-16 00:00:00

aealsts in roof of each fact, and that a practice
had, in consequence atisco, and had obt lire]
the satiation df general .opinion, of using Wise witness
iii proof of those facts which admitted only of one wit-
near. Sir Dudley North, while in Turkey, hied nu-
merous disputes which it became necessary to settle by
" and," says his biographer—
" Our merchants found by experience, that in a direct
fact a false witness was a surer card than a true one ;
for if the judge has a mind to baffle a testimony, an
honest, harmless witness that doth not know his play
cannot so well stand his many captious questions as a
false witness used to the trade will do ; for he heath
been exercised, and is prepared for such handling, and
can clear himself, when the other will be confounded ;
therefore circumstances may be such as to make the
false one more eligible."
Many exemplifications might be given of the "hand-
ling'' which a bong fide witness will somerimes receive,
Iu cases where theta is no opportunity of casting direct
imputations upon him. We might adduce such prac-
tices as that of the advocate turning his eyes away
from the witness-box whilst ha asks the witness a ques-
tion. The simple witness, doubting whether the question
was addressed to him, or believing that it was addressed
to some one else, twit rtes, or &es not answer. When
the witness has evidently hat his silr-peasessior, he
is asked, in a thundering tone, why he is so reluctant
to answer : or if that does not promise success,
he is plied with another question which leads him
away from explanation, and thus an impression is pro-
bably made on the minds of the inexperienced jurymen,
that the witness had been fearful of the effect of his
answer, and had, for sinister purposes withheld it. The
following is an instance of the practice of Garrow, who,
was held up as a " masterly cross-examiner." The case
was that of a witless who was deaf, and whose deaf-
ness it was this advocate's part to make appear pro.
tended. He said to the witness, in a low tone, "So
you have the misfortune to be deaf ?"—" Yes, sir."—
You have great difficulty in hearine'?"—' Yes, sir,
very."—" And it was not till I raised my voice thus
(lowering it still more), that you could hear what
I said at all ?"—" No, sir." Tile Jury and the whole
of the auditory roared with laughter, and the a itness
might as well have been utterly deaf and dumb too,
for the service of his testimony in the case of justice.
Ana yet any person of experience with individuals
hard of hearing, knows well (and no one kno trs
better than the counsel) that disc nett.eis of enuncia.
tion will oft ma, bett.3r than Inudnes., enable a witness
to hear or comprehend what is addressed to him. Ia
this inst ince the enune'ation of the advocate was
painfully distinct ; and it might be that the deaf
witness sow what the cross-examiner said, rather than
heard it ; the counsel's voice looked loud, and tl:e
witness believed it to be so.
It is net often that this noxious ingenuity, or any in-
genuity what, ver, is exercised for such purposes et the
courts adverted to ; there the weapon of attack is
chiefly imperious and coarse deportment, in a word,
bullying. Tnis is often carried to an extent which
arouses the sympathy of jurors for the witness, and ex-
cites them against the cause in behalf of which it is
used (as is well known to those who use it), but no
matter ; the case being hopeless, it affords the appear-
ance of a defence ; and, as one of the practit oners in
the Old Bailey once alleged in a brawl with anotl er,
graffi2s the low and ignorant client and his associat
As they went out of court they may be overheard. in
the avenues using such language as this—" The jury
went against us, but how -- worked for us ! how he
did give it to that d—d witness."
We sh recal to recollection sonic incidents which
occurred on the trial of Courvoisier, as illuttrative
of the common style of usurpation of the functions of
the Judge by the counsel of our criminal courts. It is
to be borne in mind, that twenty-four hours before
the defence was made, Mr. Phillips, the prisoner's
counsel, had received the confession of the prisoner's
guilt. Toe rule which the bar has prescribed to itself
in such cases is thus stated in an article in the
Edinburgh Review, said to have been written by an
eminent counsel, No. 79, Masch, 1824 :
" even in the very few instances where the accused
has entrusted his defender with a full confession of his
crime, we hold it to be clear that he may still be law-
fully defended:'
That the prisoner should be defended, law-
fully defended, we do not deny ; we admit that it is
certainly a useful rule that the bar, having a privilege
of defending and accusing persons, should not be al-
lowed to refuse their services to any person who may
please to retain them. Though a counsel may pro-
perly be bound to defend an accused person, it does
not follow that he is bound to defend in aey way, to
make an immoral defence—and still less does it follow,
that when hired for defence of the accused, that lie is
engaged to attack those who arc not accused. We
have quoted the doctrice in its common, wide, and un-
restrained generality, to show that the rule of the bar
is with Mr. Phillips. But we are assured that Mr.
Phillips is-really a man of refined perceptions, and, like
Lord Brougham in private life, a man of kindly feel-
ing ; and probably being uneasy at the duty which the
rule imposed upon him, it is stared that before he made
his defence he privately communicated the fact of the
confession to the judge, and obtained his sanction to
the doctrine that be must '' do his beat" for the pri-
soner. With the knowledge of the fact of the pri-
soner's guilt, the counsel assailed one of the witnesses—
Madame nolans, the wife of the keeper of a foreign
tavern in Lcice.ter-square, after having, without any
other ground than that there was a billiard-table in the
house, charged her with being the keeper of a gam-
bling-house.—(The writer here quotes the attack on
Madame Piolans, and the " ruffians," "gang," " blood-
hounds,"" miscreants" of the police, with the remark-
able peroration of Mr. Phillips).
Whilst adverting to the rules of behaviour current
amongst the class of gentlemen, we must remark that it
is one rule to put a double restiaint upon themselves
where they are protected, as in the cases of clergy-
men and old men. Those who have been present in
our common law courts, will say whether the bar does
not avail itself of its authoritative protection to cast
off all restraints against all parties. To serve the
client by " elt expedient means, to protect that client
t ail hazards and costs to all others," or, according
to the Noble and Learned Lord who vindicates the
practice as a duty, to disregard the "alarm, the suffer-
ing, the torment, the destruction, he may bring upon any
ethers, we have seen innocent and respectabie females so
confused, and assailed with such imperious gestures and.
condemnatory tones, on the assumptions (as groundless
as the assumptions in the conspicuous case of Caurvoi-.
sier) thatthey hadcommittcd perjury, as would make any
father or brother shudder at exposing daughter or sister
to, and in such a manner as the counsel using the " ex-
ped'ent means" neither coed I nor would use under any
circumstances in respectable private society. The most
demoralizing effect produced by these exhibitions ap-
pears to us to be the treatment given to persons of the
labouring classes, servants, or policemen. If good con-
duct is to be promoted in them, ore means of doing so
is surely to increase their estipiation of the value of
, character ; one means of raising their moral perceptions
is rather to assume that they are keenly alive to the
pleasures and pains of self and social estimaiion, than
that they are dead to them.• We have frequeutly
witnessed such treatment of witnesses as that displayed
in the case of Ceurvoisier, but we never happened to
witness 'an att.rmpt " to comfort" the shattered wit-
ness of that class. Though the depraved state of the
bar permits the practice of such inflictions in pubic trials,
it does not prevent the Judge from doing justice, by en-
deavouring to soothe the irritation, and at the same;
time manifesting the feelings of a geetleman.
Obtuseness of feeling, and sympathy with the prac-
tices of ti.e bar from which they have been taken, are
the chief reasons which suggest themselves for this
otherwise unaccountable apathy of the bunch on this
subject. In more than one instance the deportment
of the Judge lass afforded the example of habitual im-
periousness, and justifies the suggestion. In other
cases, from what is well known oh the character and
superior practice of some of the Judges when at the
bar, there can be litt'e doubt that they have a suffi-
ciently nice peteeption of the feelings of bona fide wit-
nesses to enable them, in the character of Judge, to
protect such persons, yet they fail to do so. The want
of this very common benevolence is ascribable to the
pusillanimity of men of keen sensibility, whose infirmity,
whose cowardice we might properly say, pre; ents them
from giving pain by strong expressions, either in direct
reproof of those whom they have daily in their pre-
seace, or in protecting from assaults those whom they
may never see again.
The evil complained of is, it appears to us, impli-
cated in the rules that a prisoner shall be protected
against being " compelled" to criminate bin self, and in
the practice of the English courts, that the character of
the prisoner's defence shall not affeel the sentence.
The practical rules of law which we should propose
for the abatement of the evil, in addition to the real ex
amination of the accused, would be to the following ef-

fed.—

That no man, whether the accused or his agent, shall
be allowed to use fi.lio. accusations, or do that in Court
for his defence wh:ch he would be punislitae for doing
nut of Court, for any other purpose than for his defence.
That tl:e counsel shall not assume a witness to be
untrustworthy, or be allnwed to treat him as such, un-
less upon some fact set forth in his brief, which shall be
producib'e in Court.
That the attorney shall be res:plnsible for the exer•
eise of reasonable care in the preparation of instruc-
tions, that no groundless or wilfully false imputations be
used in the defence.
It is said we abound in mercy, but we give so much
of it to the gulty that we have none to spare for the
innocent. Criminal justice has been made to vacillate
to this eouttri betweea two stts of blind presump-
tions,—.the ancient one, which p:estuned guilt in all
who were accused„ and the modern one, which pre-
sumes thßt all who arc accused are innocent, and which,
even after conviction, overlooks the party injured and
the tendency of the crime, and bestows unbounded
sympathy on the criminal. A treatise might be
wvittNi in illustration of the' mischiefs of acting
on presumptions, when the facts of the particu-
lar eas© are developed and require none, Our