est cunctatio longa (t)." The best answer to it however is that since counsel have been allowed in treason and felony no such consequence has followed. 4. That counsel were unnecessary, it being the duty of the court to be counsel for the prisoner (u): a wretched misapplication of a noble constitutional maxim, namely, that if an accused person has no counsel it is the duty of the court to see that he does not suffer for want of counseli. e. to give him the benefit of any point of law in his favour, though through ignorance he cannot himself take advantage of it, to see that he is not oppressed by the legal ingenuity of the opposing advocates, and generally to secure him a fair trial (r). But it is not possible, and would be indecorous if it were, for the court to act as counsel in the ordinary sense of the term-for the accused or any one else-in other words, to combine the incompatible functions of judge and advocate. Besides, although counsel were always allowed in cases of misdemeanor, we are not aware that when a person accused of a misdemeanor is undefended by counsel, the court is exonerated from the duty of seeing that he is convicted according to law. 5. That if the party defend himself, his conscience will perhaps sting him to utter the truth, or at least his gesture or countenance shew some signs of it, and if they do not, still his speech may be so simple that the truth shall be thereby discovered sooner than by the artificial speech of learned men (y). When a prisoner's conscience stings him to utter the truth, the natural course for him is to plead guilty, and not reserve the disburdening of it for the jury; and for one man who in a case of anything like (t) See Co. Litt. 134 b. (u) 3 Inst. 29 and 137; Dr. and Stud. Dial. 2, ch. 48. (x) That this is the true meaning of the maxim that the judge is the prisoner's counsel, see 5 Ho. St. Tr. 466, note; 6 Id. 516, note. (y) Staundf. Pl. Cor. lib. 2, c. 63; Finch, Law, 386; 2 Hawk. P. C. 400. Alterations effected in more recent times. 7 & 8 Will. III. c. 3. difficulty has sufficient sense and nerve to defend himself with clearness and effect, twenty would injure even a good cause by their ignorance and confusion. § 604. It is not worth while to discuss the origin of this practice-whether it formed part of the antient common law, or, like many other abuses, crept in gradually (z). We certainly find the practice clearly stated as above so early as the reign of Edward the Fourth (a); and from thence down to the alteration of the law after the Revolution of 1688, the prayer of counsel by the prisoner and the refusal of it by the court formed the regular prologue to every state trial (b). At that period a serious blow was aimed at it by the stat. 7 & 8 Will. III. c. 3, which after reciting that "nothing is more just and reasonable than that persons prosecuted for high treason and misprision of treason, whereby the liberties, lives, honour, estates, blood, and posterity of the subjects, may be lost and destroyed, should be justly and equally tried, and that persons accused as offenders therein should not be debarred of all just and equal means for defence of their innocencies in such cases;" enacts that every person so accused and indicted, arraigned, or tried for any treason, whereby any corruption of blood may ensue, &c., or misprision of such treason, shall be received and admitted to make their full defence by counsel learned in the law. A like law was extended to parliamentary impeachments by 20 Geo. II. c. 30. By 39 & 40 Geo. III. c. 93, and 5 & 6 Vict. c. 51, s. 1, treasons where the overt act charged is the actual assassination of the sovereign, or other offence against his person, are taken out of the protec (z) Vide Mirrour of Justices chap. 3, sect. 1; and Dr. and Stud. Dial. 2, c. 48. (a) 9 Edw. IV. 2, pl. 4. also per Gascoigne, C. J., See Hen. IV. 35 b, pl. 4. (b) See the State Trials pas sim. Several of these cases are collected, 5 Ho. St. Tr. 466, et seq. (note). tion of that statute and left to be tried as in case of murder. tice in cases of IV. c. 114. § 605. Although the 7 & 8 Will. III. c. 3, did not Modern pracextend to cases of felony, yet a practice gradually grew felony. up during the last century, which continued until the reign of William the Fourth; by which the counsel for a prisoner were allowed to advise him during his trial, take points of law in his favour, examine and crossexamine witnesses on his behalf; in short, do everything except address the jury in his defence. But by the 6 & 7 Will. IV. c. 114, the whole anomaly is removed. 6 & 7 Will. By that statute, after reciting that "it is just and reasonable that persons accused of offences against the law should be enabled to make their full answer and defence to all that is alleged against them," enacts in its first section that "all persons tried for felonies shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto, by counsel learned in the law, or by attorney in courts where attorneys practise as counsel." The second section contains somewhat similar provisions with respect to summary convictions. § 606. After the passing of this statute several of the Construction of judges ruled that, when an accused person defends him- this statute. self he may state in his defence what facts he thinks proper, and although he adduce no evidence to prove them the jury may weigh the credit due to his statement; but that counsel who defend prisoners are bound by the rule of practice in civil cases, viz. only to state such facts as they are in a condition to establish by evidence (c). According to this dogma, when a prisoner's defence rests, as it often necessarily must rest, on an explanation of apparently criminating circum (c) R. v. Beard, 8 C. & P. Rob. 229; R. v. Burrows, Id. 142; R. v. Butcher, 2 M. & 124. 2o. Principal incidents of a trial. 1. Ordering witnesses out of court. stances, his employing counsel causes his defence to be suppressed a state of things hardly contemplated by the framers of the statute, and certainly at variance with the principles of natural justice. It is sought to defend this anomalous proceeding on the ground that the counsel for the accused may put his client's defence before the jury in a hypothetical form; but how feebly does this tell in comparison with a straightforward explanation! Some judges have sought to qualify the rule by allowing the accused to make a statement of the facts he deems essential, leaving it to be commented on by his counsel (d); but this course has not been followed by other judges, and the practice on the subject is unsettled. It is worthy observation that in cases of treason the prisoner is not only allowed, but invited by the court, to address the jury after his counsel have spoken for him (e). 607. Proceeding to the second part of our subject: the first incident connected with a trial requiring particular notice is the practice of ordering witnesses out of court. When concert or collusion among witnesses is suspected, or there is reason to apprehend that any of them will be influenced by the statements of counsel or the evidence delivered by others, the ends of justice require that they be examined apart; and the court will proprio motu, or on the application of either party, order all the witnesses, except the one under examination, to leave court. This practice is probably coeval with judicature. "Si necessitas exegerit," says Fortescue (f), "dividantur testes, donec ipsi deposuerint quic (d) R. v. Malings, 8 C. & P. 242; R. v. Walkling, Id. 243; R. v. Clifford, 2 Car. & K. 206. (e) See R. v. Watson, 32 Ho. St. Tr. 538; R. v. Thistlewood, 33 Id. 894; R. v. Ings, Id. 1107; R. v. Collins, 5 C. & P. 311; R. v. Frost, 9 Id. 161, &c. &c. (f) Fortescue de Laud. c. 26. quid velint, ita quod dictum unius non docebit, aut concitabit eorum alium ad consimiliter testificandum.” The better opinion, however, seems to be that this is not demandable ex debito justitiæ (g); and there may possibly be cases where it would be judicious to refuse it. The rule does not, it seems, extend to the parties in the cause (h), nor, at least in general, to the attornies engaged in it (i). A witness who disobeys such an order is guilty of contempt, but the judge cannot refuse to hear his evidence on that account (k), although the circumstance is matter of remark to the jury. In revenue cases in the Exchequer, indeed, it is said his evidence is imperatively excluded (1). And in order to prevent communication in such cases, between witnesses who have been examined and those awaiting examination, it is a rule that the former must remain in court, or at least be watched until the latter are examined. Where the first witness examined was a respectable female, and some indelicate evidence was expected to be given by the others, it was arranged that she should be taken out of court and kept under surveillance in a separate apartment (m). Begin. § 608. Next, with respect to the Ordo Incipiendi, or 2. Ordo incipiOrder of Beginning. This is known in practice as the end, or Right to Right to Begin:" not a very accurate expressionfor it assumes that beginning is always an advantage, whereas it is often quite the reverse. There are few (g) See the cases collected 1 Greenl. Ev. § 432, 4th Ed.; Tayl. Ev. § 1025. (h) Charnock v. Dewings, 3 Car. & K. 378. (i) Pomeroy v. Baddeley, Ry. & M. 430; Everett v. Lownham, 5 Car. & P. 91. (k) Chandler v. Horne, 2 Moo. & R. 423; Cook v. Nethercote, 6 C. & P. 743, and the cases there referred to; and per Lord Camp- (1) Rosc. Cr. Ev. 163, 3rd Ev.; (m) Streeten v. Black, Guildf. Sum. Ass. 1836, cor. Lord Abinger, C. B., MS. A Judge has no right to exclude the parkes bacause may comment however. nows? a witness leave in obed? to the coder inc Co. in. Bane will not grant a new Trial, as he sho? hair shop on his right. Constance & Brain 2 Sur: Nis 1145. |