The Sun.
London, England, 1841-03-13 00:00:00

LICENSE OF COUNSEL.

.An article upon the criminal procedure of the Eog
lisp and Scotch Courts, in the last number of the Wect.
minster Review, contains some arguments and state-
ments on this subject which ought to be generally circu-
lated. The occasion which gave rise to it was the r.-
va arkablc speech of Mr. Charles Phillips, in defence
Courvoisier, which shocked the public, on the supposi-
tion that the advocate had exceeded his line of duty.
The writer, however (Mr. Chadwick, we belieie), pro-
poses to show that the defence came within the rule of
duty hid down by the bar of England, and points out
this and a great many other absurd practices in the
English Itw which impede and often defeat the ends of
justice. Among some of these are the annoyances thrown
in the way of prosecutions, the browbeating of respect•
able witnesses, the apathy, not to say acquiescence of the
Judge, whea unjust imputations are made qn their charac-
ters or veracity, and the absurd practice so much praise.)
by Judges red Magistrates, of refusing to interrogate sus-
pected persons lest they should say anything to convict
themselves. In the subjoite I extract two remarkable
ind tnces are given of the workings of the two different.
systems in England and Scotland.
"'The practical superioritysof the Scotch law, though
capable of amendment, may be established by abunch
ant evidence. One result of the ca-e!'ul preliminary
examination is, that fewer doubtful cases are sent for
trial, and fewer persons tried escape conviction. Sas..
pected persons obtain ready discharge on accounting
for themse.v.s, and the pursuit of criminals is better
directed. Bet for the power of interrogating suspe:ted
persons,. which was exercised by Captain Stewart, chief
of the police at Edinburgh, in his capacity of pubte
prosecutor, Burke and Hare would both have escaped,
as Gould and Several murderers, of whose guilt no
rational doubt can be entertained, have (scraped in
England, to the greet injury of public justice. Tee
procedure being shorter, and private individuals being
relieved from the burthen of prosecution, parties come
forward with greater readiness, and fewer persons who
have once prosecuted will hesitate to go forward a
second time in aid of public justice ;" and it is
sta ed in another place that, but for the accidental
fining of the plate before t, e trial of Courvoisier was
co .eluded, the probabilities were the defence .vould
ha% e prevailed and that his case would have been added
to :hat of the murderer Gould, as an instance of the
mi-ehievous defect of our law in not permitting an in-
ter nediate verdict of not proven as in Scotland,
".idowing tl:e pari.y to be again tried on the di,covcry
of new evidence." The Writer labours under a mistake
in this instance. The-law of Scotland, we believe, is
precisely the sane :as that of England, regarding the
finality of a crirnieal trial. Tile verdict of not proven
Hy acquits tie prisoner but infers that the Jury
strong impressions of his guilt, though the evidcecc
Id not warrant them in convicting him. It punishes
in in a moral point of aiew by affixing a stign a to
s character for life. With these remarks, we make
no apology for giving the following copious extracts
from this excellent article on a subject so important to
evory civilized community :
The state of our penal procedure is such, that few
persons, of any respectability, who have once prosecuted
or giving evidence in any of our penal courts, could ever
Le induced voluntarily to prosecute or give evidence a
second time. Part, no doubt, of this reluctance is
ascribable to the trouble and loss of time imposed on
the prosecutor or witness by the mode of the procedure,
needlessly encumbered as it is with forms, which afford
no real protection to the innocent, and give only
chances of escape to the guilty; but a most serious part
of the reluctance is the dislike of persons of any sensi-
bility to expose themselves to the assaults of the pri-.
soners' counsel,—to their express or implied imputa-
tions of mendacity ;—to their imperious deportment
and to their efforts to confuse witnesses,—assaults
which modesty and timidity only s erve to invite, and
against which innocence or ordinary respectability af-
ords no protection.

had
wau

The following instance which came to our knowledge
may be given of the reluctance of persons to implicate
themselves in a matter which might bring them into
court as witnesses:—" As we were rowing on the
Thames, near Windsor, we saw near the banks the
body of a man floating ;" said a young gentleman, who
was one of a boating party. " Did you go near to
examine it No, we kept off and rowed an ay, for
we might have committed ourselves as witnesses, and
have made ourselves liable to be examined in Court if
we had gone near it." We apprehend that there are
few persons who have been engaged in making any
legal or other investigations in which the examination
of witnesses is involved, who Rave not exper'enced the
frequency with which persons of respectable character
will evade the disclosure of facts known to be in their
possession, when it is made apparent that they may be
called upon to give their testimony upon them in a •
court of justice. When an outcry, or sounds indica-
tive of violence, or distress, or suffering, is heard in the
Areas, it is generally only the young, or the labouring
ilisses, who are seen to yield assistance ; the educated
or the sensitive ride past or hurry from the spot, for fear
of being drown in as witnesses and forced on that re-
pulsive stage, a court of law;
Public attenti an is sometEmes roused by tie very
slight pecuniary penalties which are awarded in police
courts for even murderous assaults, and the newspapers
call down indignation against magistrates who impose
such inadequate punishments ;—yet it will in general be
band, notwithstanding the slight pecuniary penalty
which police magistrates arc able to impose, that sum-
mary conviction is the one earnestly preferred and sought
by the party injured, and tl.e punishmeet is inflicted by
the magistrate in the consciousness that to send the cri-
minal to trial before a jury is to inflict another and a
severe injury on the prosecutor.
The case of Courvoisier was extraordinary in the
circumstances of the crime, whilst the procedure of its
trial only prese%ted to the public an exhibition of the
common practice in our criminal courts, and has brought
tte barristers before the public to justify the description
given of them, as " indiscriminate defenders of. light
and wrong, by the indiscriminate utterance of truth or
falsehood"—as it may serve their cause. On the occa
sion of the presentation of a petition on this subject to
the House Of Lords, Lord Brougham said—
" I once before took leave to remind your Lordships,
which was unnecessary, but there are many whom it
may be needful to remind, that an advocate, by the sa-
cred duty of his connection with his client, knows in the
discharge of that office but one person in the world—
that client, and none other."
His Lordship might have been asked for a definition
of the sacred duty, and the authorities wherein that
duty is set forth. According to him, the counsel, who
has for a client a murderer or a robber, is to know that
murderer or robber, and "- none other."
" To serve that client," continues his Lordship, " by
all expedient means, to protect that client at all hazards
and costs to all others " [even the party already in-
jured]—" and amongst others to himself, is the highest
and most unquestioned of his duties."
His Lordship was assuredly mistaken when lie as-
serted that the duty was then unquestioned. It had
been powerfully questioned in the " Rationale of Judi-
cial Evidence ;" we hope it will be further questioned,
and that the Bar will be relieved from such a degrad-
ing duty, and elevated to a practice dictated by common
morality.
" And he must not regard the alarm, the sufferine,
the torment, destruction, which he may bring upon any
others."
The Legislature will, however, be called upon to re-
gard this alarm, this suffering, this torment, indiscrimi-
nately and wantonly inflicted by aspersions ou respect-
able witnesses in our Courts of Justice :

" Nay, separating even the duties of a patriot from
those of an advocate, he must go on, reckless of the
consequences, if his fate should unhappily be to involve
his country ii: confusion, for his client."
We venture to doubt the legal authority of this ex-
tragant pretension, and were it fully made out in law,
we conceive that it may be peremptorily challenged as
equally:pernicious to public justice and morality.
In the course of his speech on the subject of B u.k-
ruptcy Courts Bill, Lord Brougham stated, that—
" Any man who wishes to see talents beneficially ex-
ercised, would do well to go into a Court of Law."
In the course of his description of this the ttre, on
which his Lordship himself was so distinguished a per-
former, he says—
" The jury see the wane:s ; they have the opportu-
nity of watching his deme teour while giving his evi-
dence, and then they see him submitted to a cross•
examination ; after which comes his counsel, comforting
and restoring, as it were, the poor man, after the flagel-
lation he has undergone, and setting up the broken
credit of the witness, damaged by the cross-examination.
After the cross-examination of the adverse counsel,
which has impaired the credit of the witness for a mo-
ment, then comes the skilful counsel, who restores and
cordorts the poor man, and gives him a better oppor-
tunity of explaining the case and setting himself right
with the Jury, until at last the conflict being over on
both sides, the evidence of the witness is fairly before
the Court."
In all the self-laudation of their own skill and of the
value of their own talents, no perception appears to
exist as to the effects which must be produced by the
indiscriminate application of such skill to respectable
as :veil as to untrustworthy witnesses. What person
of r espectability, who is acquainted with the practice,
will volunta-ily come forward in aid of public jus-
tic if he be aware that no respectability or truthful-
ne23 will protect him from having his " credit
bra ken" by false imputations ; from undergoing
the flagalations of an unscrupulous tongue? Can
it be expeet.:d of any " poor man," of retiring
hi,bits' that he will be induced voluntarily to endure
th's infliction of pain from the forensic gladiator on a
public arena, by any assurances that he will have Lis
" broken credit set up," and that he will be " re-
stored" and "comforted" by the skill of the counsel
on the other side ?
Tl:e practice gis C 3 pre-eminence to the unscrupulous
' wtnesses w1;0 can withstand such z!ssaultt. Sir Roger
Noith, in his " Life of Sir Dudley North," relates,
t that the la :+ of Turkey, like our absurd law of evidence
in some cases, required tb.e testimony of two wit-

nesses. in . proof of each fact, and, that a practice
had, in consecinc nee arisen, - and had obtaine 1
the sanction of general opinion, of using false witness
in.proof of those facts which admitted only of one wit-
ness. Sir Dudley North, while in Turkey, „bad nu-
merous disputes which it became necessary to settle by
litigation, " and," says his biographer—
" Our merchants found by experience, that in'a direct
fact a fal:e 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 bath
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."
ALIN' exemplifications might be given 'of the " hand-
ling' which a bona fide witness will sOn;e.iale3 receive,'
in cases where there is no opportunity
of casting direct.
imputations upon him. We migl.t adduce such plai-
tedas that of the advocate turning his eyes away
from the witness-box whilst he 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, hesit stes, or does not answer. When
the witness has evidently lost his stlf-possessior, be
is asked, in a thundering tone, why he is 50 reluctant
to answer : or if that does not promise success,
he is plied with another question which leads him
is-Aray 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
ansxer, and had, for sinister purposes withheld it. The
follow:rig is an instance of the practice of Garrow, who,
was held up as a " masterly cross-examiner." The case
was that of a witsess who was deaf, and whose deaf-
ness it was this advocate's part to make appear pre-
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 hearing ?"—` Yes, sir,
very."—" Anti it was not till I raised my voice thus
(Loa ering it still more), that you, could hear what
I said at ?"—" No, sir." Tire Jury and the whole
of the auditory roared with laughter, and the witness
might as well have been utterly deaf and dumb too,
for the service of his testimony in the case of justice.
And yet any person of experience with individuals
hard of hearing, knows well (and no. one, knows
better than the counsel) that distinctness of enuncia-
tion will often, beaer than loudnesß, enable a' witness
to hear or comprehend what is addressed to him. In
this inst ince the enunciation of the advocate was
painfully distinct ; add it might be that the deaf
witness saw whst the cross-examiner said, rather than
heard it ; the counsel's voice looked loud, and the
witness believed it to be so.

It is not often that this noxious ingenuity, or any in-
genuity
whatever, is exercised fur such purpases at 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, awl 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 practif oners in
the Old Bailey once alleged in a brawl with allot} er,
gratifies the low and ignorant client and his associates.
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 shag recal to recollection some incidents which
occurred on the trial of Courvoisier, as illustrative
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
counse►, had received the confession of tie prisoner's
guilt. Tie rule which the bar has prescribed to kelt
in such cases is thus stated in an article in the
Edinburgh Review, said to have been written by an
eminent counsel, No. 79, March, 1824 :
" Even in the very few instances where the accused
has entrusted his defender with a full confession of his
crime, we held it to be clear that he may still be law.
fully defended."
That the prisoner should be defended, law-
fully defended, we do nut 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-
ecrly be bound to defend an accused person, it does
not fellow that he is bound to defend in any way, to
make an immoral defence—and still less does it foLow,
that when hired for defence of the accused, that he is
engaged to attack those who are not accused. We
hive quoted the doctrine in its common, aide, 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 is private life, a man of kindly feel-
tag ; and probably being uneasy at the duty which the
rule imposed upon him, it is stated that before he made
his defence he privately communicated the fact of the
confession to the judge, and obtain( d •his sanction to
the doctrine that he must " tlo 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 Piolans, the wife of the keeper of a foreign
tavern in Leiceiter- square, after having, without any
otl.er 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 restraint upon themselves
where they are proteetel, as in the cases of clergy-
men and old men. Thew, who have been present in
our common law courts, will ray whether the bar does
not avail itself of its authoritative protection to cast
off all restraints against all parties. To serve t'.e
client by "all expedient means, to protect that client
TA al 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
others, we have seen innocent and respectable 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 Cow voi-
sier) that they had committed perjury, as would make any
father or brother shudder at exposing daughter or sitter
to, and in such a manner as the counsel using the " ex-
pedient means" neither coul.l nor would use under any
circumstances in respectable private society. The most
demoralizing effect produced by these exhibitions ap-
peers to us to be the treatment given to persons of the
labouring classes, servants, or policemen. It good con-
duct is to be promoted in them, one means of doing so
is surely to increase their estimation 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 estitria'ion, than
that they are dead to them. We have frequeet'y
witnessed such treatment of witnesses as that displa)ed

in the case of Courvoisier, but we never happened to
witneis an attempt " 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_ justiv, by en-
deavouring to soothe the irritation, and at the same
time manifesting the feelings of a gentleman.
Obtuseness of feeling, and sympathy with the prac-
tices of the bar from which they have been taken, are
the chief reasons which suggest themselves for this
otherwise unaccountable apathy of the bench on this
subject. In more thart one instance the deportment
of the Judge has afforded the example of habitual im-
Feriousticss, and justifies the suggestion. In other
cases, from what is well known of the character and
superior practice of some of the Judges when ht the
bar, there can be litt'e doubt that they have a suffi-
persons, yet they fail to do so. rine want
ciently nice perception of the feelings of bona fide
properly
wit-
nesses to enable them, in the character of Judge, to
common benevolence is ascribable to the
of
protect
vary such
pusillanimity of men of keen sensibility, whose infirmity,
say, prevents them
wfroh
strong expressions, either in direct
reproof of those whom they have daily in their pre-
sence, or in protecting from assaults those whom they
may never see again.
Lonse givingeo wardic
paine ibvye might
The evil complained of is, it appears to us, impli-
cated in the rules that a prisoner shall he'protected
against being " compelled" to criminate himself, and in
the practice of the English courts, that the character of
the prisoner's defence shall not affect the sentence.
Ti.e practical rules of law which we should propose
for the abatement of the evil, in addition to the real ex
conflation of the accused, would bc to the following ef-

feet :
That no man, whether the accused or his agent, shall
be allowed to use 'alga accusations, or do that in Court
for his defence which he would be punishab!e for doing
out of Court, for any other purpose than for his defence.
That the counsel shall not assume a witness to he
untrustworthy, or be allowed 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 responsible for the excl..
eise of reasonable care in the preparation of instrue-
tuisoends,inthtahtendoegfernocuen.
It is said we abound in mercy, but we give. so muchdiess or wilfully false imputations be
of it to the guilty that we have none to spare for the
innocent. Criminal justice has been made to vacilllte
en this country between two sets of blind presump-
might be
tionF,—the ancient one, which presumed guilt in all
who were accused, and the modern one, which pre-
sumes tliPt.all who are accused are innocent, and which,
even after conviction, overlooks the party injured and
mitsreehaietifsse
of
acting
the tendency of the .crime, and bestows unbounded
written in onillutsthreaticr!
illustration of the
the A
mischiefs
on presumptions, when the facts of the particu-
lar case are developed and require none. Our

1 English practice, it appears to us, requires the
1( rtium quid of " not proven." The sympathies of the 1
Old Bailey bar are, we must say, on the same side with
their lucre, and with all the inmates of the gaol ; with
them, all policemen are what they were designated in
Courvoisier's case, bloodhounds,—and witnesses, per-
secutors of the innocent. Entire innocence is always in
peril in the dock, and has no other security than in the
aid of counsel. When an extension of summary punish-
ments in the case of juvenile delinquents was lately
proposed, the Old Bailey bar was in arms for the de-
fence of the right of Jury trials, and the legislature was
scared from much needed and highly beneficial reform
by their outcries of danger to the innocent.
The very rule for which the English practitioners
endeavour to maintain a superstitious ewe, the rule
forbidding the interrogation of the accused in an st age
of the procedure, either at what was originally intended
to be Iris exam:nation, or at the trial,—that rule which
shuts the mouth of the guilty for fear he may commit
ell; also shuts the mouth of the innocent man who
niay be accused, and prevents hire oiving the circum-
stantial explanations which he elane could give in
answer to any questions put to him. An innocent
person could really be in no more dangerous hands
than in those of a practitioner of the class belonging to
the criminal courts, who inveterately act on the latent
presumption that their client is guilty, and cannot open
his mote h without endasgering himself:
In the doubtful case where an accused person would,
by his explanations in answer to the interrogatories of
a judicious Magistrate, obtain an early liberation, bov-
ine h's tongue tied by the English procedtue, being
adrised, as he always is, by his attorney and counsel,
when he has one, " not to disclose his defence," but " to
reserve himself until his trial,"—he is committed and
endures a long term of imprisonment, then an anxious
trial, in itself a punishment, before he obtains his ac-
quittal. And here on the favourite legal ground for
the exclusion of testimony, viz., interest, we might
fairly challenge the competency of the practitioners of
the criminal courts to give an opinion on the subject.
If such a question were determined merely by dicta, we
believe the disinterested practitioners of other courts
would as,ient to the reform. An attoracy who resists
the committal of his client for trial, or who favours such
explanations as may have that effect at the first stage
of the procedure, favours a course in which some
five or ten guineas of costs are obtainable, in-
stead of a prolonged course of several hazardous
stages, from which twenty, thirty, fifty, or a hun-
dred guineas of emolument are obtained, or more,
according to
.the means of the accused ; who, inde-
pendently of any question of guilt or innocence, may -
always in this position be termed "a victim of the
law." The substitution of a pure procedure for the
present course in England, which gives to the ninety
per cent. of clear and undoubted cases- of guilt, de-
fences on such false assumptions of persecuted inno-
cence, and of malice and dishonesty of witnesses, as
were displayed in the defence of Courvoisier, would
present to the imagination of the practitioner the appa-
rent loss of ninety per cent. of his business—we say ap-
parent, because the professional aid of avocats de prison
would neverthi less be frequently required to submit ex-
tenuating circumstances. Summary convictions before
the professional Magistrate would, it must be confessed,
occasion a dire diminution of business and professional
emoluments in the superior Courts ; and we might put
it to the gentlemen who practise in them, whether they
arc competent to judge calmly of anything which may
so powerfully affect them.