THE PRACTICES OF THE BAR. [From the "Times,"]

New Zealander, Volume 7, Issue 577, 25 October 1851, Page 4

THE PRACTICES OF THE BAR. [From the "Times,"]

The oWrvi'ions v,hich y e -n-vle last wocli upou the reprcben=iblu- tipntmrnt \\bieh \utne-si»s 100 f\' quern ly received fiom counsel when undi'i eioss-fxainm ition, had scarce!)' me. the eje- of our i<\ul"is when wnothei instance of he unwnirantahlo l'c nse assumed by the barocctuiedintlieCpntr.il Court. Th. 1 case was one in which i» servant »as i>ro-.eeui<-d bv Mi. Bietile his master, for having robbed him. The defence set up W)S that the articles .stolen had been given (o the prisoner in older tint ceitiin ma'tcrs which had occured prior to tiC mainage of the prosecutor might not be disclosed hy (he piisonei.— -Mr. Mew, who defended the pri-onc-r, conducted his oross-einmmarion in a manner lhat called forth the condemnation of the Judcre (Uaroi. Mnr(in) .nd (he Jury. Not only was the name of a 1 'dy ment'oned with whom it was understood that the prostcutoi, pnor to l)is marriage, had had a 'liason.'but a number of questions were put to Mr. Biet'Je which must have distressed and am oyed him, without tending m thu shghJ^st degiee to elicit ihe truth of the v .inaction. This was permitted to proceed until Mr Mew demanded to see th" prosecutor's cheque-books, when flic .Tiny intci posed, and the foreman observed irwis their opinion th.it the course of cross-examination wa-> a most, impiopei one. Mr. Baron Mailm said he had long enteitnined tho same opinion, but Uey mus-t give credit to the learned counsel for having some object m yew ; and if in his discretion he thought it light to pn severe the Couit could not picvenl him. Mr. Mew assured his loidship that he was acting from his instructions, and that it w.ib important to (he interests of the prisoner th >t these questions should be answered. The Foreman of the Jury (with wairnth): 'I can only say I would much rather be robbed by my '-ervntit to any amount, and say nothing about it, ih vi };et into that box as a witness, if I am u> he subjeoUd to an examination into all my pnvate a flairs by the counsel for the prisoner.' Mr Mew however continued to insist upon seeing the counlerfoi sand chcq"e-books until Mi. Baton M<'inn repeated his opinion upon the couise of eioss e\amina tion, when he at length desisted. The pusoner was eventually found guilty, the ibieinan adding, that the jury had come to the unanimous resolution of expressing their extieme disapprobation of the manner in which the defence had been conducted by the counsel of the prisoner, and also that they considered Mich a line of defence was calculated to defeat the ends ol justice, by deterring persons ficm coming foiwaui to g.ve evidence against seivanls who had robbed them. Mr. Mew endeavoured to justify himself by Siting that he only held the brief for a friend, and that in the line of defence he had taken he had only acted up to the ins ructions given him by the solicitor for the piisoncr, and if there was any blame, the blame rested upon (hat person and not upon him ; for in all the questions he hud put he had not in any way exceeded his> instructions. Wheieupon Bnron Martin observed he had intimated during {he trial that the course which was taken was an improper one, and he&till enteitamed the same opinion. He added the following lemark, which we hope may not be lost upon ihose gentlemen of the bar who think that an opposing witness may be attacked with impunity. "Counsel were not bound," said the learned judge, " to act upon instructions where it was then duty to exercise a discretion in such matieis, and if they failed to do so a great deal of that confidence which subsisted between the judges and counsel would be destroyed. He would only add, that if he had been concerned in such a case, whether for a friend or on his own account, he should certainly have it.lt it his du'y to reirain from acting upon such instructions, or of muking use of such materials as had been furnished for the defence of the prisoner in this case." We need add little to this dignified opinion of Baron Martin. The proper exereisr of the hbeify unavoidably given to counsel in the cross-exammaton of witnesses must, in a great degree, depend upon the gentlemanly feelings of the cioss examining counsel. A wholesome check may, however, be kept upon ihe licentiousness of the bar while we have Gueh judges as Baion Platt and Mr. Baron Mai tin to remind bair steis when they overatep their doty, and intelligent and independent jurors to in'erlere foi the protection of witnesses. But it is not the counsel u,jcn whom tl'<> blame bhould only rest; in many institn< ls, the solicitor who diaws up a brief containing malignant calumnies is, peihaps, moie to be censu ed than the counsel who publishes them in Court. The latter leccive them upon the faith of the solicitor, who should theicloie be [ leparcd to justify any allegations in hi& instructions to counsel, 'J he only means of repressing he evil would be by enabling the Judge to impound any bnet containing libellous matter against any person, so that it might be bi ought as evidence of the publication of the libel in an action for damages against the solicitor by whom the biief had been piepared. It is tune that tome measure should be taken to secure the just administration of the law, by protecting witnesses from the impiopcr treatment to which they are now expobed in a couit of law.