THE ADVOCATE'S LICENSE.

Lyttelton Times, Volume VI, Issue 414, 22 October 1856, Page 4

THE ADVOCATE'S LICENSE.

(From the '• Examiner,' Slay 24.)

Lord Campbell has expressed the hope that journals will abstain from any cornnjsnt upon the evidence given! oir the trial-of-William Palmer till the delivery of the verdict. So be it; but there is a point out of the domain of evidence, and not touching in any way on the question of the prisoner's guilt or i'Uiocence, which we feel free and provoked to d':scuss. It is the conduct of counsel. The question we would raise has nothing to do with what Palmer has done or has not done, and we would request our readers to suppose any other prisoner in his place in considering the fitness or unfitness of his advoc ite's conduct, bothwith reference to public interest and professional character. The rule of professional conduct ought to be unifonn,the same in|all circumstances; but it is observable that in cases strongly engas^h'g" the public attention the advocate's zeal moves him to positions which he does not hold on ordinary occasions, bince the trial of Tuurteii there has hardly been a remarkable case in which the counsel for the prisoner has not wept for his client, or protested his solemn belief in his innocence. Now if this were the rule in all cases, we sioujd see no more objection to it than to any other mere form to which no significanca is attached-; but the advocate of the man charged with sheep-stealing, or any nndramatic offence, does not deal in protestations of innocence. He uses his best endeavour to show that the man is not guilty according to the evidence, but he does not introduce his own belief as an unsworn witness in his favour. Why is this? Is it the thing at stake that makes the difference? Hardiv so for

character is not less precious than life, and between cases of lift; and death the difference is observable, for the prisoner who does not engage the public interest never obtains the benefit of the advocate's solemn or passionate assurances of innocence. Is it, then, when the co;trt becomes dramatic that belief of innocence becomes a stage property of the advocate ; or is it that in these great cases the proportionahly lanre fee retains the beliwf in question, together with the other services? However that may be, does the protestallj!! tarry weight or not? Has it, or has it not, weight on the minds of the jury? If the sins-.ver is iv ih« affirmative, wh;it n'iui*t'be thtt effect when the advocate dues not deal in these Hssnranc^s ? suid how b'ts;w'vh pivjtadic« nm4 be the abstinence. How differently, then, inu*t fare the prisoner with a counsel with a be'.i-f in his innocence aud without a belief! Aud who that could

afford it would not engage a true believer ? It is the advocate's part and duty to deal with evidence, to deal with argument on the facts, to deal with law ; but not to intrude his own belief upon.the court before the stage for belief in any one has arrived, namely, the completion of the case. Mr. Sergeant Shee is not the first by several who has"tunie<? voucher for his client; but he has perhaps more strongly than any of his predecessors exemplified the vice ot the practice.

•' I am moved by the task that is before me, hut lam not dismayed. I have this further cause for not being altogether overcome in discussing the mass of evidence which has been laid before you. When thepapers in the case came into myhands I had formed no opinion as to the guilt or innocence of the prisoner. My mind was perfectly free to form what I trust will prove to be a right judgment upon the ease, and—T say it in aH sincerity —having read these papers, I commenced his defence with an entire conviction of his innocence. I believe that truer words were never pronounced than the words he uttered when he snid ' Nor Guilty' to thischartre, and if I fail in establishing his {innocence to your satisfaction, I sbaU have very great misgivings that my failure is attributable only to my own inability to do justice to his case, and not to any weak&ess in the case itself."

Here is ji pretence to a judicial function and authority. He. the advocate, professes exparfe to have formed a right judgment, and to have come to the conclusion to which no one else certainly had a right to arrive, of the verdict warranted by unheard evidence. Now let us suppose for a moment that the case had been of another character, and tha;t Mr.Serjeant Shee had been as much prejudiced asrainst as he was in this instai.ce prepossessed in favour of his client, would he have thought himself at liberty to intimate his belief ? No, assuredly not. But, after this specimen of his zeal, the absence of his assurance of innocence must always be supposed to argue his conviction of the guilt of his client. The tendency, therefore, is to raise fees to such an amount as may enaure belief in innocence, and the, effect-of this on the : character of the profession cannot, but he debasinsr. Tt is the hiring of a false pretence. In the honourable services of the advocate none of them exceed the province of truth. He may, defend the worst cause asrainst a conclusion not borne out by the facts proved, or by the rule of law ; but he cannot invent or put forth what is false. Do we impute such conduct to Mr. Serjeant Shee? No, we have no ritrht to dispute the truth of his protestation, but we have the right and we do dispute the propnetv of his giving utterance to a judgment in anticipation of the judgment of the Court, and tending to bias the jury unduly. We maintain I hat the counsel for a prisoner has no right jto turn himself into a witness for the prisoner, a voucher or sponsor for the prisoner. He is free to employ all his argnmenfs. his learning, his technical skill, in his client's; behalf, but not his worcl-of-mouth belief in his innocence. In another passage of his speech Mr, Sergeant Shee thus endeavoured to intimidate the jury : —

" You have been told this was done 1o rover appearances • Done to cover appearances ! No— ,io—no ! You cannot believe if. You cannot find him guilty—you d;sre not find him jnvlty on the supposition of its truth. The country will not stand by you if you believe it to be true. You will be impeached hefore the world if yon sny that it is true. I believe in niv conscience that it is false, and that consistently with therules that <rovern human nature it cannot possibly be true —(sensation and murmurs of applause)." Murmurs of applause ! The actor with his rant had succeeded in turning', the court into a theatre. So llie jury were not to dare to believe one way. the country 'would not stand by them if they believed certain statements true, they wen: to be impeached if they believed in the truth. Mr. Senrennt Siiee alone was free to believe in his conscience, and his belief was to over-rule and suppress all other belief. The jury, if they tlioughfotherwisejwere not to give a verdict

according to their oaths! So blusters Mr. Sergeant Shee. But why use the words, on his conscience ? Would it not be more to the purpose to £ay, " 1 believe on my fee that it is false?" That is a protestation thoroughly intelligible, and measuring the extent lo which it merits credit. It is for the interests of justice, and for the honour of the profession, that it should be considered and determined whether or not Mr. Sergeant" Shee has exceeded the advocate's license in the passages of his speech we.have quott-d. The judges did not stop him, for a good reason; hut rule should stop such practices for the future, and the members of the bar, aided by the judge, should draw the border line to what takes to itself the name of the advocate's zeal passing the bounds of his fair license.