the same privilege extended to persons accused of other felonies.1 my lot," said Mr. Denman, on the same occasion, " to try two prisoners who were deaf and dumb, and who could only be made to understand what was passing by the signs of their friends. The cases were clear and simple; but if they had been circumstantial cases, in what a situation would the judge and jury be placed, when the prisoner could have no counsel to plead for him." The cases looked clear and simple, to Mr. Denman; but how could he know they would not have looked otherwise, had the coloring of the prosecution been relieved by a counterpresentation for the defence? See Sidney Smith's article on Counsel for Prisoners, 45 Edinb. Rev. p. 74; Works, vol. 2, p. 353. The plausible objection to extending the right was, that the judge would be counsel for the prisoner, — a pure fallacy at the best, and, with some judges, a frightful mockery. Baron Garrow, in a charge to a grand-jury, said, " It has been truly said that, in criminal cases, judges were counsel for the prisoners. So, undoubtedly, they were, as far as they could be, to prevent undue prejudice, to guard against improper influence being excited against prisoners; but it was impossible for them to go further than this, for they could not suggest the course of defence prisoners ought to pursue; for judges only saw the depositions so short a time before the accused appeared at the bar of their country, that it was quite impossible for them to act fully in that capacity." If one would see how easily, and yet in what a shocking manner, a judge might pervert the law and the evidence, and act the part of both prosecutor and king's counsel, while assuming to be counsel for the prisoner, he need not go further back than the early trials in our own country, and he is referred for a specimen to the trials of Robert Tucker and others for piracy, before Chief Justice Trott, at Charleston, S. C., in 1718, as reported in 6 Hargrave's State Trials, 156 et seq. Especially may he there see how the statement of prisoners in one case, to which no credit was given for their exculpation, was used as hearsay evidence to condemn a prisoner in another case. All these abuses would have been checked, perhaps altogether prevented, had the prisoners had able and fearless counsel. But without counsel for the defence, and under such a judge, ⚫the witnesses were not free to testify, the prisoners could not safely make even the most honest explanation, and the jury, when they retired, could only feel that returning a verdict in accordance with the opinion of the judge was only matter of form. Sidney Smith's lecture on "The judge that smites contrary to the law" is worthy of being carefully pondered in this connection. "If ever a nation was happy, if ever a nation was visibly blessed by God, if ever a nation was honored abroad, and left at home under a government (which we can now conscientiously call a liberal government) to the full career of talent, industry, and vigor, we are at this moment that people, and this is our happy lot.. First, the Gospel has done it, and then justice has done it; and he who thinks it his duty that this happy condition of existence may remain must guard the piety of these times, and he must watch over the spirit of justice which exists in these times. First, he must take care that the altars of God are not polluted, that the 1 With us it is a universal principle of constitutional law, that the prisoner shall be allowed a defence by counsel. The humanity of the law has generally provided that, when the prisoner is unable to employ counsel, the court may designate some one to defend him, who shall be paid by the government; but when no such provision is made, it is a duty which counsel so designated owes to his profession, to the court engaged in the trial, and to the cause of justice, not to withhold his best exertions in the defence of one who has the double misfortune to be stricken by poverty and accused of crime. No one is at liberty to decline such an appointment, and it is to be hoped that few would be disposed to do so. When the Constitution secures this right, it secures it with all its accustomed privileges and protections. Among these is a shield of protection that is thrown around the confidence the relation of counsel and client requires, and that does not permit the disclosure by the former, even in the courts of justice, of whatever may have been communicated to him by the latter with a view to pending or anticipated litigation. This is the client's privilege; the counsel cannot waive it; and the court would not permit the disclosure, even if the client were not present to take the objection.2 Christian faith is retained in purity and in perfection; and then, turning to human affairs, let him strive for spotless, incorruptible justice; praising, honoring, and loving the just judge, and abhorring as the worst enemy of mankind him who is placed there to judge after the law, and who smites contrary to the law.'" 1 Vise v. Hamilton County, 19 Ill. 18. It has been held that, in the absence of express statutory provisions, counties were not liable to compensate counsel assigned by the court to defend poor prisoners. Bacon v. Wayne Co., 1 Mich.. 461; but there are several cases to the contrary. Webb v. Baird, 6 Ind. 13; Hall v. Washington Co., 2 Greene (Iowa), 473; Carpenter v. Dane Co., 9 Wis. 277. But we think a court has a right to require the service, whether compensation is made or not; and that counsel who should decline to perform it, for no other reason than that the law does not provide pecuniary compensation, is unfit to be an officer of a court of justice. Said Chief Justice Hale, in one case : Although sergeants have a monopoly of practice in the Common Pleas, they have a right to practise, and do practise, at this bar; and if we were to assign one of them as counsel, and he was to refuse to act, we should make bold to commit him to prison." Life of Chief Justice Hale, in Campbell's Lives of the Chief Justices, vol. 2. 66 2 For a very good case, giving the history and the reason of the exemption of counsel from disclosing professional communications, see Whiting v. Barney, 30 N. Y. 330. The privilege would not cover communications made, not with a view Once engaged in a cause, the counsel is not afterwards at liberty to withdraw from it, without consent of his client and of the court; and even though he may believe his client guilty, he should endeavor to protect him against a conviction contrary to the law. The cause of public justice will suffer far more through the conviction of a guilty person by means of a perversion of the law, than by his escaping punishment altogether.1 But how far the counsel may go in pressing for the acquittal of his client, and to what extent he may be justified in throwing his own personal character as a weight in the scale of justice, are questions of ethics rather than of law. No man is justifiable who defends even a just cause with the weapons of fraud and falsehood, and no man can excuse himself for accepting the confidence of the accused, and then betraying it by a feeble and heartless defence. And in these cases we think the court may sometimes have a duty to perform in seeing that the prisoner suffers nothing to professional assistance, but in order to induce the attorney to aid in a criminal act. People v. Blakeley, 4 Park, Cr. R. 176; Bank of Utica v. Mersereau, 3 Barb. Ch. R. 598. It has been intimated, in New York, that the statute making parties witnesses, had done away this rule. Mitchell's case, 12 Abb. Pr. Rep. 249. Sed quære. If this be so, the protection would still be the same, in criminal cases; for a party accused of crime cannot be compelled to give evidence against himself, and the reason for protecting professional confidence is the same as formerly. 1 It may even become necessary sometimes for the lawyer to interpose himself between the court and the accused, and to fearlessly brave all consequences, when in no other mode can the law be vindicated and justice done; but the cases are so rare, that doubtless they will always stand out, in judicial history, as prominent exceptions to the ready obedience which the bar should yield to the commands of the court. The famous scene between Mr. Justice Buller and Mr. Erskine, on the trial of the Dean of St. Asaphs, for libel, — 5 Campbell's Lives of Chancellors, ch. 158,—will readily occur to the reader as one of these exceptional cases. Lord Campbell says of Erskine's conduct: "This noble stand, for the independence of the bar, would alone have entitled Erskine to the statue which the profession affectionately erected, to his memory, in Lincoln's Inn Hall. We are to admire the decency and propriety of his demeanor, during the struggle, no less than its spirit, and the felicitous precision with which he meted out the requisite and justifiable portion of defiance. His example has had a salutary effect, in illustrating and establishing the relative duties of judge and advocate in England." And again, in speaking of Mr. Fox's libel bill: "I have said, and I still think, that this great constitutional triumph is mainly to be ascribed to Lord Camden, who had been fighting in the cause for half a century, and uttered his last words in the House of Lords in its support; but had he not received the invaluable assistance of Erskine, as counsel for the Dean of St. Asaphs, the Star Chamber might have been re-established in this country." from inattention or haste on the part of his counsel, or impatience on the part of the prosecuting officer, or of the court itself. Time may be precious to the court, but it is vastly more so to him whose life or whose liberty may depend upon the careful and patient consideration of the evidence, when the counsel for the defence is endeavoring to submit it to logical analysis, and to show that, how suspicious soever it may be, it is still consistent with innocence. Often, indeed, it must happen that the impression of the prisoner's guilt which the judge and the jury unavoidably receive when the case is first opened to them by the prosecuting officer will, insensibly to themselves, color all the evidence in the case, and only a sense of duty will make them give due attention to the summing up for the prisoner, which after all may prove unexpectedly convincing. Doubtless the privilege of counsel is sometimes abused in these cases; we cannot think an advocate of high standing and character has a right to endeavor to rob the jury of their opinion by asseverating his own belief in the innocence of his client; and there will be cases where the court will feel compelled to impose some reasonable restraints upon the address to the jury; but it is better in these cases to err on the side of liberality, and restrictions that do not leave to counsel, who were apparently acting in good faith, such reasonable time and opportunity as they deemed necessary for presenting their client's case fully, might be regarded as legally so far erroneous as to warrant setting aside a verdict of guilty.2 Whether counsel are to address the jury on questions of law, in criminal cases, is a question not free from difficulty. If the jury in the particular case, by the constitution or laws of the State, are judges of the law, it would seem that counsel should be at liberty to address them fully upon it; though the contrary seems to have been held in Maryland; while in Massachusetts, where it is 3 1 Murphy v. State, 6 Ind. 590; Lynch v. State, 9 Ind. 541. 2 In People v. Keenan, 13 Cal. 581, a verdict, in a capital case, was set aside on this ground. 3 Lynch v. State, 9 Ind. 541; Murphy v. State, 6 Ind. 590. Franklin v. State, 12 Md. 236. What was held in this case was, that counsel should not be allowed to argue the constitutionality of a statute to the jury; and that the constitution, making the jury judges of the law as well as of the facts, would not empower them to decide a statute invalid. This ruling corresponds with that of Judge Chase in United States v. Callendar, Whart. State Trials, . expected that the jury will receive the law from the court, it is nevertheless held that counsel has a right to argue the law to them.1 It is unquestionably more decorous and more respectful to the bench, that argument upon the law should always be addressed to the court; and such we believe is the general practice. The jury hear the argument, and they have a right to give it such weight as it seems to them properly to be entitled to. For misconduct in their profession, the members of the bar are more directly and summarily amenable to the courts, who will not fail, in all proper cases, to use their power to protect clients or the public, or to preserve the profession from the contamination and disgrace of a vicious associate.2 A man of bad reputation may be expelled for that alone; and a counsel who has once taken part in litigation, and become the adviser or intrusted with the secrets of one party, will not afterwards be suffered to engage for an opposing party, notwithstanding the original employment has ceased, and he is not chargeable with intentional wrong. And, on the 3 1 Commonwealth v. Porter, 10 Met. 263; Commonwealth v. Austin, 7 Gray, 51. 2 "As a class, attorneys are supposed to be, and in fact have always been, the vindicators of individual rights, and the fearless asserters of the principles of civil liberty, existing where alone they can exist, in a government, not of parties nor of men, but of laws. On the other hand, to declare them irresponsible to any power but public opinion and their consciences, would be incompatible with free government. Individuals of the class may, and sometimes do, forfeit their professional franchise by abusing it; and a power to exact the forfeiture must be lodged somewhere. Such a power is indispensable to protect the court, the administration of justice, and themselves. Abuses must necessarily creep in; and having a deep stake in the character of their profession, they are vitally concerned in preventing it from being sullied by the misconduct of unworthy members of it. No class of community is more dependent on its reputation for honor and integrity. It is indispensable to the purposes of its creation to assign it a high and honorable standing; but to put it above the judiciary, whose official tenure is good behavior, and whose members are removable from office by the legislature, would render it intractable; and it is therefore necessary to assign it but an equal share of independence. In the absence of specific provision to the contrary, the power of removal is, from its nature, commensurate with the power of appointment, and it is consequently the business of the judges to deal with delinquent members of the bar, and withdraw their faculties when they are incorrigible." Gibson, Ch. J., in re Austin et al. 5 Rawle, 203. * For example, one whose reputation for truth and veracity is so bad that his neighbors would not believe him on oath. Matter of Mills, 1 Mich. 393. In Gaulden v. State, 11 Geo. 47, it was held that the late solicitor-general, who had instituted a prosecution with which he was no longer connected, could not be suffered to assist in the defence. |