and not more certain road to a profound skill in languages, than if attention to grammar had been deferred to a later period.

In fine, we are strongly persuaded, that the time being given, this system will make better scholars; and the degree of scholarship being given, a much shorter time will be needed. If there be any truth in this, it will make Mr. Hamilton one of the most useful men of his age; for if there be anything which fills reflecting men with melancholy and regret, it is the waste of mortal time, parental money, and puerile happiness, in the present method of pur suing Latin and Greek.

COUNSEL FOR PRISONERS. (E. REVIEW, December, 1826.) Stockton on the Practice of not allowing Counsel for Prisoners accused of Felony. 8vo, pp. 149. London. 1826.

ON the 6th of April, 1824, Mr. George Lamb, a gentleman who is always the advocate of whatever is honest and liberal, presented the following Petition from several Jurymen in the habit of serving on Juries at the Old Bailey :

"That your petitioners, fully sensible of the invaluable privilege of Jury trials, and desirous of seeing them as complete as human institutions will admit, feel it their duty to draw the attention of the House to the restrictions imposed on the prisoner's counsel, which, they humbly conceive, have strong claims to a legislative remedy. With every disposition to decide justly, the petitioners have found, by experience, in the course of their attendances as Jurymen in the Old Bailey, that the opening statements for the prosecution too frequently leave an impression more unfavourable to the prisoner at the bar, than the evidence of itself could have produced; and it has always sounded harsh to the petitioners, to hear it announced from the Bench, that the Counsel, to whom the prisoner has committed his defence, cannot be permitted to address the Jury in his behalf, nor reply to the charges which have, or have not, been substantiated by the witnesses. The petitioners have felt their situation peculiarly painful and embarrassing when the prisoner's faculties, perhaps surprised by such an inti mation, are too much absorbed in the difficulties of his unhappy circumstances to admit of an effort towards his own justification, against the statements of the Prosecutor's Counsel, often unintentionally aggravated through zeal or misconception; and it is purely with the view to the attainment of impartial justice, that the petitioners humbly submit to the serious consideration of the House the expediency of allowing every accused person the full benefit of Counsel, as in cases of misdemeanour, and according to the practice of the Civil Courts."

With the opinion so sensibly and properly expressed by these Jurymen, we most cordially agree. We have before touched incidentally on this subject; but shall now give to it a more direct and fuller examination. We look upon it as a very great blot in our over-praised Criminal Code; and no effort of ours shall be wanting, from time to time, for its removal.

We have now the benefit of discussing these subjects under the government of a Home Secretary of State whom we may, we believe, fairly call a wise, honest, and high-principled man-as he appears to us, without wishing for innovation, or having any bitch for it, not to be afraid of innovation,* when it is gradual and well considered. He is, indeed, almost the only person we remember in his station who has not considered sound sense to consist in the rejection of every improvement, and loyalty to be proved by the defence of every accidental, imperfect, or superannuated institution.

If this petition of Jurymen be a real bond fide petition, not the result of solicitation-and we have no reason to doubt it-it is a warning which the

We must always except the Catholic question. Mr. Peel's opinións on this subject (giving him credit for sincerity) have always been a subject of real surprise to us. It must surely be some mistake between the Right Honourable Gentleman and his Chaplain! They have been travelling together, and some of the Parson's notions have been put up in Mr. Peel's head by mistake. We yet hope he will return them to their righful owner.

Legislature cannot neglect, if it mean to avoid the disgrace of seeing the lower and middle orders of mankind making laws for themselves, which the Government is at length compelled to adopt as measures of their own. The Judges and the Parliament would have gone on to this day hanging by wholesale for the forgeries of bank notes, if Juries had not become weary of the continual butchery, and resolved to acquit. The proper execution of laws must always depend, in great measure, upon public opinion; and it is undoubtedly most discreditable to any men intrusted with power, when the governed turn round upon their governors and say, "Your laws are so cruel, or so foolish, we cannot, and will not, act upon them."

The particular improvement of allowing Counsel to those who are accused of felony is so far from being unnecessary, from any extraordinary indulgence shown to English prisoners, that we really cannot help suspecting that not a year elapses in which many innocent persons are not found guilty. How is it pos sible, indeed, that it can be otherwise? There are seventy or eighty persons to be tried for various offences, at the Assizes, who have lain in prison for some months, and fifty of whom, perhaps, are of the lowest order of the people, without friends in any better condition than themselves, and without one single penny to employ in their defence. How are they to obtain witnesses? No attorney can be employed; no subpoena can be taken out-the witnesses are fifty miles off, perhaps-totally uninstructed, living from hand to mouth, utterly unable to give up their daily occupation, to pay for their jour ney, or for their support when arrived at the town of trial-and, if they could get there, not knowing where to go, or what to do. It is impossible but that a human being, in such a helpless situation, must be found guilty; for, as he cannot give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against him must be taken for true, however false, since it is impossible for the poor wretch to contradict it. A brother or sister may come, and support every suffering and privation themselves in coming; but the prisoner cannot often have such claims upon the persons who have witnessed the transaction, nor any other claims but those which an unjustly accused person has upon those whose testimony can exculpate him, and who probably must starve themselves and their families to do it. It is true, a case of life and death will rouse the poorest persons, every now and then, to extraordinary exertions, and they may tramp through mud and dirt to the Assize town to save a life, though even this effort is precarious enough; but imprisonment, hard labour, or transportation, appeal less forcibly than death, and would often appeal for evidence in vain to the feeble and limited resources of extreme poverty. It is not that a great proportion of those accused are not guilty, but that some are not, and are utterly without means of establishing their innocence. We do not believe they are often accused from wilful and corrupt perjury; but the prosecutor is himself mistaken. The crime has been committed, and, in his thirst for vengeance, he has got hold of the wrong man. The wheat was stolen out of the barn; and, amidst many other collateral circumstances, the witnesses (paid and brought up by a wealthy prosecutor, who is repaid by the county) swear that they saw a man, very like the prisoner, with a sack of corn upon his shoulder, at an early hour of the morning, going from the barn in the direction of the prisoner's cottage! Here is one link, and a very material link, of a long chain of circumstantial evidence. Judge and Jury must give it weight, till it is contradicted. In fact, the prisoner did not steal the corn. He was, to be sure, out of his cottage at the same hour-and that also is proved -but travelling in a totally different direction-and was seen to be so travelling by a stage coachman passing by, and by a market gardener.

An attorney with money in his pocket, whom every moment of such employ made richer by six-and-eightpence, would have had the two witnesses ready, and at rack and manger, from the first day of the assize; and the innocence of the prisoner would have been established. But by what possible means is the destitute ignorant wretch himself to find or to produce such witnesses? or how can the most humane Jury, and the most acute Judge. refuse to consider him as guilty, till his witnesses are produced? We have not the slightest disposition to exaggerate, and, on the contrary, should be extremely pleased to be convinced that our apprehensions were unfounded. But we have often felt extreme pain at the hopeless and unprotected state of prisoners; and we cannot find any answer to our suspicions, or discover any means by which this perversion of justice, under the present state of the law, can be prevented from taking place. Against the prisoner are arrayed all the resources of an angry prosecutor, who has certainly (let who will be the culprit) suffered a serious injury. He has his hand, too, in the public purse; for he prosecutes at the expense of the county. He cannot even relent; for the magistrate has bound him over to indict. His witnesses cannot fail him; for they are all bound over by the same magistrate to give evidence. out of prison, too, and can exert himself.

He is

The prisoner, on the other hand, comes into Court, squalid and depressed from long confinement--utterly unable to tell his own story from want of words and want of confidence, and as unable to produce evidence for want of money. His fate accordingly is obvious;-and that there are many innocent men punished every year, for crimes they have not committed, appears to us to be extremely probable. It is, indeed, scarcely possible it should be otherwise. And, as if to prove the fact, every now and then, a case of this kind is detected. Some circumstances come to light between sentence and execution; immense exertions are made by humane men; time is gained; and the innocence of the condemned person completely established. In Elizabeth Canning's case, two women were capitally convicted, ordered for execution-and at last found innocent, and respited. Such, too, was the case of the men who were sentenced ten years ago, for the robbery of Lord Cowper's steward. "I have myself" (says Mr. Scarlett) "often seen persons I thought innocent convicted, and the guilty escape, for want of some acute and intelligent Counsel to show the bearings of the different circumstances on the conduct and situation of the prisoner."(House of Commons Debates, April 25th, 1826.) We are delighted to see, in this last debate, both Mr. Brougham and Mr. Scarlett profess themselves friendly to Mr. Lamb's motion.

But in how many cases has the injustice proceeded without any suspicion being excited? and even if we could reckon upon men being watchful in capital cases, where life is concerned, we are afraid it is in such cases alone that they ever besiege the Secretary of State, and compel his attention. We never remember any such interference to save a man unjustly condemned to the hulks or the tread-mill; and yet there are certainly more condemnations to these minor punishments than to the gallows. But then it is all one-who knows or cares about it? If Harrison or Johnson has been condemned, after regular trial by Jury, to six months' tread-mill, because Harrison and Johnson were without a penny to procure evidence-who knows or cares about Harrison or Johnson? how can they make themselves heard? or in what way can they obtain redress? It worries rich and comfortable people to hear the humanity of our penal laws called in question. There is a talk of a society for employing discharged prisoners; might not something be effected by a Society instituted for the purpose of providing to poor prisoners a proper defence, and a due attendance of witnesses? But we must hasten on from this

disgraceful neglect of poor prisoners, to the particular subject of complaint we have proposed to ourselves.

The proposition is, That the prisoner accused of felony ought to have the same power of selecting Counsel to speak for him as he has in cases of treason and misdemeanour, and as defendants have in all civil actions.

Nothing can be done in any discussion upon any point of law in England, without quoting Mr. Justice Blackstone. Mr. Justice Blackstone, we believe, generally wrote his Commentaries late in the evening, with a bottle of wine before him; and little did he think, as each sentence fell from the glass and pen, of the immense influence it might hereafter exercise upon the laws and usages of this country. "It is" (says this favourite writer) "not at all of a piece with the rest of the humane treatment of prisoners by the English law; for upon what face of reason can that assistance be denied to save the Life of a man, which yet is allowed him in prosecutions for every petty trespass?" Nor, indeed, strictly speaking, is it a part of our ancient law; for the Mirror, having observed the necessity of Counsel in civil suits, who know how to forward and defend the cause by the rules of law and customs of the realm, immediately subjoins, “and more necessary are they for defence upon indictment and appeals of felony, than upon any other venial crimes. Το the authority of Blackstone may be added that of Sir John Hall, in Hollis's case; of Sir Robert Atkyns, in Lord Russell's case; and of Sir Bartholomew Shower, in the arguments for a New Bill of Rights, in 1682. "In the name

of God," says this judge, "what harm can accrue to the public in general, or to any man in particular, that, in cases of State-treason, Counsel should not be allowed to the accused? What rule of justice is there to warrant its denial, when, in a civil case of a halfpenny cake, he may plead either by himself or by his advocate? That the Court is Counsel for the prisoner can be no effectual reason; for so they are for each party, that right may be done.". (Somers' Tracts, vol. ii. p. 568.) In the trial of Thomas Rosewell, a dissenting clergyman, for high treason, in 1684, Judge Jeffries, in summing up, confessed to the Jury, "that he thought it a hard case, that a man should have Counsel to defend himself for a twopenny trespass, and his witnesses be examined upon oath; but if he stole, committed murder, or felony, nay, high treason, where life, estate, honour, and all were concerned, that he should neither have Counsel, nor have his witnesses examined upon oath."-Howell's State Trials, vol. x. p. 207.

There have been two capital errors in the criminal codes of feudal Europe, from which a great variety of mistake and injustice have proceeded the one, a disposition to confound accusation with guilt; the other, to mistake a defence of prisoners accused by the Crown, for disloyalty and disaffection to the Crown; and from these errors our own code has been slowly and gradually recovering, by all those struggles and exertions which it always costs to remove folly sanctioned by antiquity. In the early periods of our history, the accused person could call no evidence. Then, for a long time, his evidence against the King could not be examined upon oath; consequently, he might as well have produced none, as all the evidence against him was upon oath. Till the reign of Anne, no one accused of felony could produce witnesses upon oath; and the old practice was vindicated, in opposition to the new one, introduced under the statute of that day, on the grounds of humanity and tenderness to the prisoner! because, as his witnesses were not restricted by an oath, they were at liberty to indulge in simple falsehood as much as they pleased;—so argued the blessed defenders of nonsense in those days. Then it was ruled to be indecent and improper that Counsel should be employed against the Crown; and, therefore, the prisoner accused of treason could have no counsel. In

like manner, a party accused of felony could have no Counsel to assist him in the trial. Counsel might indeed stay in the court, but apart from the prisoner, with whom they could have no communication. They were not allowed to put any question, or to suggest any doubtful point of law; but if the prisoner (likely to be a weak unlettered man) could himself suggest any doubt in matter of law, the Court determined first if the question of law should be entertained, and then assigned Counsel to argue for it. In those times, too, the Jury were punishable if they gave a false verdict against the King, but were not punishable if they gave a false verdict against the prisoner. The preamble of the Act of 1696 runs thus :-"Whereas it is expedient that Persons charged with high treason should make a full and sufficient defence." Might it not be altered to Persons charged with any species or degree of crime? All these errors have given way to the force of truth, and to the power of common sense and common humanity-the Attorney and Solicitor General, for the time being, always protesting against each alteration, and regularly and officially prophesying the utter destruction of the whole jurisprudence of Great Britain. There is no man now alive, perhaps, so utterly foolish as to propose that prisoners should be prevented from producing evidence upon oath, and being heard by their counsel in cases of High Treason; and yet it cost a struggle for seven Sessions to get this measnre through the two Houses of Parliament. But mankind are much like the children they beget -they always make wry faces at what is to do them good; and it is necessary sometimes to hold the nose, and force the medicine down the throat. They enjoy the health and vigour consequent upon the medicine; but cuff the doctor, and sputter at his stuff!

A most absurd argument was advanced in the Honourable House, that the practice of employing counsel would be such an expense to the prisoner! -just as if anything was so expensive as being hanged! What a fine topic for the Ordinary! "You are going" (says that exquisite divine) "to be hanged to-morrow, it is true; but consider what a sum you have saved! Mr. Scarlett or Mr. Brougham might certainly have presented arguments to the Jury, which would have insured your acquittal; but do you forget that gentlemen of their eminence must be recompensed by large fees, and that, if your life had been saved, you would actually have been out of pocket above £20? You will now die with the consciousness of having obeyed the dictates of a wise economy; and with a grateful reverence for the laws of your country, which prevents you from running into such unbounded expense-so let us now go to prayers.'

It is ludicrous enough to recollect, when the employment of counsel is objected to on account of the expense to the prisoner, that the same merciful law which, to save the prisoner's money, has denied him counsel, and produced his conviction, seizes upon all his savings the moment he is convicted.

Of all false and foolish dicta the most trite and the most absurd is that which asserts that the Judge is counsel for the prisoner. We do not hesitate to say that this is merely an unmeaning phrase, invented to defend a perni. cious abuse. The Judge cannot be counsel for the prisoner, ought not to be counsel for the prisoner, never is counsel for the prisoner. To force an ignorant man into a court of justice, and to tell him that the Judge is his counsel, appears to us quite as foolish as to set a hungry man down to his meals, and to tell him that the table was his dinner. In the first place, a counsel should always have private and previous communication with the prisoner, which the Judge, of course, cannot have. The prisoner reveals to his counsel how far he is guilty, or he is not; states to him all the circumstances of his case-and