constitution for South Carolina has this provision: "Every jury shall consist of twelve men; and it shall not be necessary they should all agree, but the verdict shall be according to the consent of the majority." It is besides a well-known fact that our number of twelve jurymen, and the principle of their unanimity, arose out of the fact that in ancient times at least twelve of the compurgators were obliged to agree before a verdict could be given, and that compurgators were added until twelve of them agreed one way or the other." I conclude here my remarks on the institution of the jury, and pass over to the last element of the independence of the law—the independent position of the advocate. 42. Where the inquisitorial trial exists, where the judiciary in general is not independent, and where the judges more or less feel themselves, and are universally considered, as government officers, it is in vain to look for independent advocates, as a class of men. Their whole position, especially where the trial is not public, prevents the development of this independence, and the consideration they have to take of their future career would soon check it where it might occasionally happen to spring forth. 7 Forsyth, History of the Trial by Jury. 8 Feuerbach, in his Manual of the Common German Penal Law, 10th edition, 623, says that in the inquisitorial proceeding we have to represent the judge to our minds as the representative of the offended state, inasmuch as it is his duty to see justice done for it according to the penal law; as representative of the accused, inasmuch as he is bound at the same time to find out everything on which the innocence or a less degree of criminality can be founded; The independence of the advocate is important in many respects. The prisoner, in penal trials, ought to have counsel. Even lord Jeffrey, who, among judges, is what Alexander the Sixth was among popes, declared it, as far back as the seventeenth century, a cruel anomaly that counsel were permitted in a case of a few shillings, but not in a case of life and death. But counsel of the prisoner can be of no avail, if they do not feel themselves independent in a very high degree. This independence is necessary for the daily protection of the citizen's rights. It is important for a proper and sound development of the law; for it is not only the decisions of the judges. which frequently settle the most weighty points and and finally, as judge, inasmuch as he must decide upon the given facts. Why not add to this fearful triad, the jailer, the executioner? Although a "defensor" is appointed, it is difficult for him to do his work properly; for in the German inquisitorial process the defence begins when the inquiring judge has finished, or the "acta" are closed, that, is when the report of the judge is made. Now, a lawyer does not feel very free to attack the writing of a judge, upon whom his advancement probably depends, even if any latitude were given to the advocate. Mr. Mittermaier, note d, & 14, of his Art of Defending, 2d edition, speaks openly of the great difficulty encountered by the "defensor," in unveiling the imperfections of the acta which have been sent him, because he thereby offends his superior, upon whom his whole career may depend; and Mr. Voget, the defensor of the woman Gottfried, in Bremen, who had poisoned some thirty persons, fully indorses these remarks of Mr. Mittermaier, in his work, The Poisoner, G. M. Gottfried, Bremen, 1830 (first division, pp. 17 and 18). He concludes his remarks with these words: "Who does not occasionally think of the passage 1 Sam. 29: 6-Non inveni in te quidquam mali, sed satrapis non places," (or, as our version of the bible has it: Nevertheless, the lords favor thee not.) rights, but also the masterly arguments of the advocates; and lastly it is important in all so-called political trials. May we never have reason to wish it otherwise! The limits of the advocate, especially as counsel in criminal cases, and which doubtless form a subject connected with liberty itself, nevertheless belong more properly to political and especially to legal ethics. As such I have treated of them in the Political Ethics. I own, however, that, when writing the work, the subject had not acquired in my mind all the importance and distinctness which its farther pursuit, and the perusal of works on this important chapter of practical ethics, have produced. I am sorry to say that very few of these works or essays seem manfully to grapple with it, and to put it upon solid ground. It is desirable that this should be done thoroughly and philosophically. This is the more necessary, as the loosest and vaguest notions on the rights of the advocate are entertained by many respectable men, and the most untenable opinions have been uttered by high authorities. In this work, however, all that I am permitted to do is to indicate the true position of the advocate in our Anglican system of justice, and to allude to the duties flowing from it. Most writers discuss "the time-honored usage of 9 For instance, lord Brougham's well-known dictum uttered at the trial of queen Caroline-cften commented upon, but never taken back or modified by the speaker; p. 91, Legal and Political Hermeneutics. See also an article on License of Counsel in the January number 1841 of Westminster Review. the profession in advocating one side," and of saying all that can be said in defence of the prisoner. No one at all conversant with the subject has ever had any doubt upon this subject. It is a necessary effect of the accusatorial procedure. Indeed, it forms an essential part of it. But the writers go on maintaining that therefore the advocate may, and indeed must, do and say for his client all that he himself would do and say for himself, had he the requisite talent and knowledge. And here lies the error, moral as well as legal. No man is allowed to do wrong, for instance to tell an untruth, or to asperse the character of an innocent person, either in his own behalf or for another. The prisoner would do wrong in lying, and no one has a right to do it for him. The lawyer is no more freed from the moral law or the obligation of truth than any other mortal, nor can he divest himself of his individuality any more than other men. If, as lord Brougham stated it, the only object of counsel is to free the prisoner, at whatever risk, why, then, not also do certain things for the prisoner which he would do, were he free? Many an indicted murderer would make away with a dangerous witness, if the prison did not prevent him. Why, then, ought not the lawyer to do this for him? Because it would be murder? And why not? If the advocate is to say and do all the prisoner would do and say for himself, irrespective of morality, the supposed case is more glaring, indeed, but in principle the same with many actual ones. The fact is, the rights of the advocate, or the defence of their speaking on one side, cannot be put on a worse foundation than by thus making him a part of the prisoner's individuality, or a substitute. Nor would there be a more degrading position than that of letting one's talent or knowledge for hire, no matter whether for just or unjust, moral or immoral purposes. Indeed, why should this knowledge for hire begin its appropriate operation during the trial only, if escape is the only object? Why not try to foil the endeavors of the detective police? Is it only because the retaining fee has not yet been paid, and that, so soon as it is in his hand, he has a right to say with the ancient poet: I deem no speaking evil that results in gain?10 This cannot be. All of us have learned to venerate Socrates, whom lord Mansfield calls the greatest of lawyers, for having made victorious war on the sophists, and established ethics on pure and dignified principles; and now we are called upon to sanction everything, without reference to morality and truth, in an entire and highly privileged class, and in the performance of the most sacred business of which political man has any knowledge. If lawyers insist upon this revolting exemption from the eternal laws of truth and rectitude, they ought to consider that this will serve in the end as a suggestion to the people of returning to the Athenian court of the people. The true position of the advocate in the Anglican accusatorial trial, and in a free and orderly country, is not one which would almost assimilate him to the "receiver." It is a far different one. Nearly in all 10 Δοκῶ μὲν οὐδεν ρῆμα σὺν κερδει κάκον. |