Star.
London, England, 1822-11-16 00:00:00

FAIR EMI4IA.

BY S. BIOCKETT.

The gStering tears which trembling
Fair rummies magic eyes,
Like pearly drops of dew distil rd
By blushing morning skies;
As vernal show'rs on roses spread,
Revive their drooping leaves,
So woman's tears, by beauty shed,
A balmy solace gives!
Heav'n protect my Henry's life,
Fair Emma gently sigh'd,
0! shield him in the battle's strife,
Where flows the purple tide ;
But should ha fall like some gay !lover, -
Untimely snapt by fate,
Alt me ! my heart, that heavy hour,
With keen distress would break !
Wheie valets their soft hues display,
And simple flow'rets bloom,
Fair Emma oft would wand'ring stray,
Amid the sunless gloom;
Hope then would whisper to her breast,
And check the rising tear,
Hush ev'ry vagrant fear to rest,
And banish dark Despair!
The battle won, the conflict past,
The Hero sought his home,
Where blest in Ernma's arms at last,
No more shall Henry roam ;
Thus many a black and frowning night,
Portentous and unkind,
Precedes a cloudless morning bright,
A lesson for the mind!

COURT OF KING'S BENCH, NOVEMBER 15

At the full sitting of the Court, the Judges en-
tered on the consideration of cases in the special paper,
NIGHT OF PARTIES ACCUSED OF CRIME TO PRO-
FESSIONAL ASSISTANCE ON EXAMINATION BEFORE
MAGISTRATES.
COX V. COLERIDGE AND ANOTHER.
Mr. COLERIDGE rose to. argue this case on behalf
of the defendants. The declaration contained two
counts : the first stating that the plaintiff entered a
common inn, whence he was forcibly expelled by the
defendants ; and the second, charging a common as-
sault. To this there were two pleas: the first setting
forth that the defendants were two Magistrates of the
County of Devon, and were lawfully assembled in
the public-house alluded to, for the examination of
the prosecutor and witnesses against a man called
Geroge Brown, charged with felony ; that the plain-
tiff intruded himself into the roans, which he was ci-
villy requested to leave, and that he refused to leave
it, on which necessary force was employed to expel
him : the second plea, alleging that he so improperly
conducted himself in the public-house as to render
his expulsion requi,ite. To the first of these pleas the
plaintiff replied, that he was an attorney of the Court
of King's Bench, and well skilled in the laws and
customs of the realm ; that George Brown had been
previously examined, and had alleged that there were
witnesses who could prove his innocence; that Brown
was set at liberty, to give him an opportunity to pro-
cure them ; that this second examination was ap-
pointed further to investigate the charge ; that Brown
retaned the plaintiff to assist him in his defence ; that
the plaintiff accordingly entered the room for the
purpose, and made known his professional character
and retainer, but was forcibly expelled Li the maimer
stated in the declaration.. To this replication the de-
fendants demurred, and thus the validity of the re-
plication was submitted to the judgment of the Court.
On these pleadings two questions arose : first, whe-
ther a person in the situation of Brown had a right to
insist on being permitted t,4 introduce an attorney on
his behalf; and second, whether, admitting such
right, these was a privity between the client and at-
torney, sufficient to entitle the latter to insist on the
right as his own. The first of those questions was the
most important, and on this only did he (Mr. Cole-
ridge) propose to occupy the time of the Court.—
There were two modern decisions which is would be
proper to mention, though not exactly in point—
" The King v. the Justices of Staffordshire," 1 Chitty's
Repot ts, 218 ; and " The King v. Borron," 3 Dame-
wall and Alderson, it 39. In the first of these, where
a piny was charged with an offence against the
Game Laws, an attorney appeared for him, and was
ordered to retire by the-Magistrates; and the Court
refused to grant a criminal information against them.
In the second, the Court also rejected a similar ap-
plication against Magistrates who had refused to per-
mit an attorney to be present and comment on the
evidence to be given on a charge of felony. These
were, indeed, cases of criminal information, where
the legal right was not strictly in issue, but still the
opinion of the Court was evidently that the attorney
in each instance had no right to intei tele. But if all
cases were put out of the question, and the point
were regarded with reference to principle alone, it
would be clearly found that neither the situation in
which the prisoner stood, nor the duty which the
Magistrates had to perform, admitted of the doctrine
that he had a tight to demand of them liberty for
his attorney to assist him. He was not on trial, but
examination, and they were bound to commit him,
not only if they were perfectly satisfied of his guilt,
but unless they were assured that the accusation was
groundless. The ancient authorities, indeed, carried
this doctrine farther, fir it was laid down by Dalton,
in his Justice, c. 1G 1, p. 107, that even if Magistrates
believed the party to be innocent, it was the safer
course for them not to discharge, but to commit
or bail him.
Mr. Justice BAYLEY.—That is hardly lax► now,
Mr. Coleridge. Is not that an authority which
proves too much ?
Mr. COLERIDGE replied, that his argument did not
require that this doctrine should be sustained to its
full extent. In another passage the same writer re-
commended Magistrates to receive the testimony
eien of infamous and incompetent witnesses, and to
submit their evidence to the Judges of Assize, rather
than to take on themselves altogether to refuie hi--
Lord Hale, whose zeal for the liberty of the subject
often exposed him to the censure of the party in
power, laid down that Justices ought not to discharge
a prisoner accused of felony, unless it should appear
either that no felony had been committed, or that
the charge did not amount to felony in law. And
Mr. Serjeant Hawkins, in his Pleas of the Crown,
b. 2. e. 15. s.l. directed Magistrates not to discharge
unless they should be satisfied that the accusation was
totally unfounded. The Statite 1 and 2 Philip and
.Slary enacted, that Justices should " take the exa-

.

titillation of the prisoner, aid the information of those
who bring him,' and certify the result to the Judges
of Assize—expressions not certainly conveying any
idea that the prisoner should have •the aid of an ad-
vocate. At the period when that Act was passed.,
could an Attorney have claimed admission as a right?
Then there was no process to summon witnesses for
the prisoner ; then those witnesses could not he exa-
mined on oath, if at all; then their testimony,X taken,
could never have been certified at the Assizes. If an
Attorney had no right then, by 'what Statute, by
what authority had he acquired id sinew? There was
no Statute giving theright or recogskibing it, although
the attention of the Legislature was called to the sub-
ject on several occasions ; as, when it was enacted
that witnesses should be sworn on behalf of the pri-
soner, and when provision was made for the exami-
nation of witnesses in Scotland. In all the commend
caries upon these Statutes there was no word on the
subject of this right. What was the analogy of the
law in other cases? Before a Grand Jurty the pri-
soner was allowed neither witnesses, nor Attorney,
nor Counsel : and why should he be allowed an At-
torney before the Magistrates ? If the prisoner might
insist on employing an Attorney, the prosecutor might
demand the same privilege, and the result would not
on the whole be favourable to the accused, while it
would tend to great inconvenience. In many cases, a
private examination was necessary ; where, for ex-
ample, the detection of a gang of offenders was ex-
pected, and where the presence of a person claiming
to act as Attorney for one of them in custody would.
be the means of conveying information which might
ensure impunity to the rest. So treason, the highest
of offences, might be shielded from discovery
.by a
measure so easily taken. if sometimes a party, who
might otherwise be discharged, was remanded from
the want of professional assistance, this Was only one
of those inconveniences to which all men in society
must consent to be liable; and this evil, of rare oc-
currence, would be more than balanced by the pre-
judice which would arise to the prisoner himself by
raising a preliminary examination to a species of trial,
the decision of • which might seem almost decisive
against him. Some consideration, also, was due to
the feelings of Magistrates, who might be harassed
with petty actions through the interference of Attar-
nies watching their proceedings with a captious eye;
and thus a class of men would be harassed to whose
unbought services the country was deeply indebted.
When it was considered bow intricate the criminal
law was now become, the Curt would not expose
those who were honestly desirous of fulfilling their
duties to the criticism of any practitioners who might
desire to observe them; nor thus drive the gentry of
the land from an office which it was so desirable that
they should continue to fill.
Mr. CONINION SERJEANT, for the plaintiff, said that
he trusted he should be able to convince the Court
that every man who had the misfortune to be ac-
cused, had, by the law of ,England, a right to the as-
sistance of some skilful person to advise and assist
him. As to the old law cited by his Learned Friend,
he should feel ashamed if he could condescend to an-
swer it ; he trusted that the mere statement of the
monstrous propositions of Dalton ',rad consigned them
to rerrObation for ever, and that they never would
be cited more. To the two later cases quoted, he
was ine.ated to pay all due respect ; but these were
cases of criminal information, where it was not ne-
cessary to the point of law, because the Court would
never visit Magistrates with punishment for mete il-
legal conduct, if they had acted with no corrupt or
malignant design. When it was considered what tre-
mendous powers were now intrusted to Magistrates'
—how much of misery might be inflicted even by a
single Magistrate, on the oath of a single witness—
that there were cases in which penalties of 1001.
might be adjudged by Magistrates—others in which
persofis liable to imprisonment might be sent.to serve
in the navy for five years—and cases under the Exci,e
laws in which penalties to the amount of thousands
might be intlicted—he trusted the Court would pause
betore they decided that a man, oppressed in his feel-
inp,'s by his situation, should have none to advise or
assist him ! If a distinction between Attornies and
Counsel was to be set up, it must be answered that,
in distant parts of the country, Counsel were not to
be obtained, and the prisoner must receive the aid of.
anon:les or be entirely bereft of assistance. lie had
a right, surely, in common justice, to an effectual
cross-examination of the witnesses against him, to
sift their story, and, out of their own mouths, to prove
its falsehood. To the assertion that, before the statute
of Anne, the witnesses for the prisoner could not be
examined on oath, he would oppose the high autho-
rity of Lord Coke, who spoke of the doctiine with
the indignation which it merited, and denied that it
ever was the law of England. There was no such
thing as secret examination in the sense contended
for ; witnesses might he questioned apart for the pur-
poses of detection, but. the judicial examination must,
by the very statute of Philip and Mary, be taken in
the presence of the prisoner. When the Court recol-
lected that the e....minations so taken might, in case
of death, be read in evidence against the accused on
his trial—when they called to mind the distress and
ruin to which be might be subjected by a mistaken
commitment, when he ought to have received his
discharge—when they considered how important it
was to his dearest interests that he should have a real
and effectual cross-examination of the witnesses ; they
would, he trusted, determine that, in a season when
his own energies might well be paralyzed, he should
be entitled to that assistance which, in the open Courts
of Justice, he might so. openly employ.
The LORD CHIEF. Josrrez said, that if he enter-
tained any apprehensions that the opinion he had
formed on this question could produce inconvenience
in the administration of. justice, and especially if it
could affect the liberty of the subject, which was the
most important end of such administration, he should
pause before he expressed it. But, convinced that on
an enlarged view of the question it would appear
that no such inconvenience could arise, and that the
tights of the subject would be best guarded by his
decision, he should proceed at once to givojudg-
ment. In order to sustain his replication, the plain-
tiff must be prepared to contend, that every man ac-
cused of crime had the right to employ any person
skilful in the law, whether an 'attorney or not an at-.
torney, to assist him in his defence ; for it was no
part of the duty of an attorney, as such, to attend
with his client : he was properly a person put in the
stead of another to act for hi*, not an assistant to
act with him. For such a position, there iris "no.