1 DECEMBER 1849, Page 13


ABSOLUTE truth may be beyond the reach of the best tribunal; proximate truth is the very object of any judicial tribunal, and to that end the different parties engaged should cooperate ac- cording to the set division of employments. It follows, that a barrister engaged on one side is not bound to labour for the full truth, as he may leave "the other side" to deal with one half of the data, he doing the best he can for the other half; but also it follows' that he should not strive to establish falsehood. Worked out, that proposition alone would settle the revived question re- specting the conduct of Mr. Phillips at the trial of Courvoisier. But we touch upon the controversy with some distaste, because we do not believe that the class most generally concerned, that of the bar lawyers, is resolutely bent on doing what is right. We say it with regret, and should rejoice to encounter satisfactory disproof. But the charge which has been made against Mr. Phillips is one that might, in its material substance, be made against the bar generally—one that has been made against it for years ; and we do not observe that the profession has set itself to correct the abuse.

The Judge decided that Mr. Phillips was bound to continue the defence after he had heard the confession of the prisoner : the Examiner convicts him of endeavouring, after be had heard that defence, to suggest a suspicion of guilt against others that he knew to be innocent. The practical question then is, how a counsel can comply with his duty to set forth the case on one side, and yet not commit an outrage on truth and justice? The appropriate canon, in our view of the subject, has been laid down, and has recently been expounded by the Examiner: the counsel is bound, not to establish the innocence of his client, but to see that the trial is conducted according to law—that his client is not con- victed through some violation of the law. In the cane of Cour- voisier, for instance, it was the part of the counsel to show in what the evidence failed ; but not to suggest, to originate and create, suspicions against an innocent person. The rule for a barrister in such a position would seem to be to conceive his arguments as if they were addressed to the Judge rather than to the Jury.

Here, then, rises a second question—that of manner. In the case now discussed, much of the offence against propriety be- longed to the manner—the style of rhetoric—what the Examiner calls the "acting" of the advocate. The suggestio falsi was en- forced by an appeal to the Supreme Being—the Almighty was called on by name to back the counsel in bearing false witness against his neighbour! But this is the "eloquence" of the crimi- nal bar—a thing which barristers applaud and attornies pay. Hence we say that there is no real wish in those most interested to reform these abuses : barristers do not care to have their "ho- nourable profession" cleared of the charge that it will support falsehood as readily, as truth, and desecrate the most exalted subjects by using them in the service of any client who has duly retained his wigged and gowned servant. " Nec Deus intersit," says the critical poet : but the attempt to get off a known murderer is thought worthy occasion for dragging in the Deity as the champion of the guilty. Mr. Charles Phil- lips used to be praised for eloquence, even more than Mr.

i Charles Wilkins s now ; and it is the profession that upholds such eloquence. Nor say that it is only "Old Baily" rhetoric ; for if life and death do not hang upon similar arts in civil courts, / truth and justice often do. The principle of the canon cited above / holds equally good in civil as in criminal courts: it enables the , counsel to do his duty by a client without disgracing his own honour and dignity by subserving falsehood—or rather it mould / enable him, if the canon really regulated the practice of the court