witnesses, or through the perversion or misapplication of the law by the court. Strangely enough, however, the aid of this profession was denied in the very cases in which it was needed most, and it has cost a long struggle, continuing even into the present century, to rid the English law of one of its most horrible features. In civil causes and on the trial of charges of misdemeanor, the parties were entitled to the aid of counsel in eliciting the facts, and in presenting both the facts and the law to the court and jury; but when the government charged a person with treason or felony, he was denied this privilege.1 Only [* 332] such legal questions as he could suggest was counsel allowed to argue for him; and this was but a poor privilege to one who was himself unlearned in the law, and who, as he could not fail to perceive the monstrous injustice of the whole proceeding, would be quite likely to accept any perversion of the law that might occur in the course of it as regular and proper, because quite in the spirit that denied him a defence. Only after the Revolution of 1688 was a full defence allowed on trials for treason, and not until 1836 was

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1 When an ignorant person, unaccustomed to public assemblies, and perhaps feeble in body or in intellect, was put upon trial on a charge which, whether true or false, might speedily consign him to an ignominious death, with able counsel arrayed against him, and all the machinery of the law ready to be employed in bringing forward the evidence of circumstances indicating guilt, it is painful to contemplate the barbarity which could deny him professional aid. Especially when in most cases he would be imprisoned immediately on being apprehended, and would thereby be prevented from making even the feeble preparations which might otherwise have been within his power. "trial" under such circumstances would be only a judicial murder in very many cases. The spirit in which the old law was administered may be judged of from the case of Sir William Parkins, tried for high treason before Lord Holt and his associates in 1695,

A

after the statute 7 William III. c. 3, allowing counsel to prisoners indicted for treason, had been passed, but one day before it was to take effect. He prayed to be allowed counsel, and quoted the preamble to the statute that such allowance was just and reasonable. His prayer was denied, Lord Holt declaring that he must administer the law as he found it, and could not anticipate the operation of an act of Parliament, even by a single day. The accused was convicted and executed. See Lieber's Hermeneutics, c. 4, § 15; Sedgwick on Stat. and Const. Law, 81. In proceedings by the Inquisition against suspected heretics the aid of counsel was expressly prohibited. Lea's Superstition and Force, 377.

2 See an account of the final passage of this bill in Macaulay's "England," Vol. IV. c. 21. It is surprising, that the effort to extend the same right to all persons accused of felony was so strenuously resisted

*the same privilege extended to persons accused of [* 333] other felonies.1

1 By statute 6 & 7 William IV. c. 114; 4 Cooley's Bl. Com. 355; May's Const. Hist. c. 18.

[* 334] * With us it is a universal principle of constitutional law, that the prisoner shall be allowed a defence by counsel. And generally it will be found that the humanity of the law has provided that, if 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 humanity and justice, not to withhold his assistance nor spare 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 few, it is to be hoped, would be disposed to do so.

In guaranteeing to parties accused of crime the right to the aid of counsel, the Constitution secures it with all its accustomed incidents. Among these is that shield of protection which is thrown around the confidence the relation of counsel and client

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 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 provi

sions, counties are not obliged to compensate counsel assigned by the court to defend poor prisoners. Bacon v. Wayne County, 1 Mich. 461. But there are several cases to the contrary.

Webb v. Baird, 6 Ind. 13; Hall v. Washington County, 2 Greene (Iowa), 473; Carpenter v. Dane County, 9 Wis. 277. But we think a court has a right to require the service whether compensation is to be 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 unworthy to hold his responsible office in the administration of justice. Said Chief Justice Hale in one case:

requires, and which does not permit the disclosure by the former, even in the courts of justice, of communications which may have been made 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.1

* Having once engaged in a cause, the counsel is not [* 335] afterwards at liberty to withdraw from it without the consent of his client and of the court; and even though he may be impressed with a belief in his client's guilt, it will nevertheless be his duty to see that a conviction is not secured contrary to the law. The worst criminal is entitled to be judged by the laws; and if his conviction is secured by means of a perversion of the law, the injury to the cause of public justice will be more serious and lasting in its results than his being allowed to escape altogether.3

1 The history and reason of the rule which exempts counsel from disclosing professional communications are well stated in Whiting v. Barney, 30 N. Y. 330. And see 1 Phil. Ev. by Cowen, Hill, and Edwards, 130 et seq.; Earle v. Grant, 46 Vt. 113; Machette v. Wanless, 2 Col. 169. The privilege would not cover communications made, not with a view to professional assistance, but in order to induce the attorney to aid in a criminal act. People v. Blakely, 1 Park. Cr. R. 176; Bank of Utica v. Mersereau, 3 Barb. Ch. 398. And see the analogous case of Hewitt v. Prince, 21 Wend. 79. Communications extraneous or impertinent to the subjectmatter of the professional consultation are not privileged. Dixon v. Parmelee, 2 Vt. 185. See Brandon v. Gowing, 7 Rich. 459.

It has been intimated in New York that the statute making parties witnesses has done away with the rule which protects professional communications. Mitchell's Case, 12 Abb. Pr. R. 249; note to 1 Phil. Ev. by Cowen, Hill, and Edwards, p. 159 (marg.). Supposing this to be so in

civil cases, the protection would still be the same in the case of persons charged with crime, for such persons cannot be compelled to give evidence against themselves, so that the reason for protecting professional confidence is the same as formerly.

2 If one would consider this duty and the limitations upon it fully, he should read the criticisms upon the conduct of Mr. Charles Phillips on the trial of Courvoisier for the murder of Lord William Russell. See Sharswood, Legal Ethics, 46; Littell, Living Age, Vol. XXIV. pp. 179, 230; Vol. XXV. pp. 289, 306; West. Rev. Vol. XXXV. p. 1.

3 There may be cases in which it will become the duty of counsel to interpose between the court and the accused, and fearlessly to brave all consequences personal to himself, where it appears to him that in no other mode can the law be vindicated and justice done to his client; but these cases are so rare, that doubtless they will stand out in judicial history as notable exceptions to the ready obedience which the bar should yield to the authority of the court. The

But how persistent counsel may be 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 counsel is justifiable who defends even a just cause with the weapons of fraud and falsehood, and no man on the other hand can excuse himself for accepting the confidence of the accused, and then betraying it by a feeble and heartless defence. And in criminal cases we think the court may sometimes have a duty to perform in seeing [* 336] that the prisoner suffers nothing 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 infinitely more so to him whose

famous scene between Mr. Justice Buller and Mr. Erskine, on the trial of the Dean of St. Asaph for libel,5 Campbell's Lives of the Chancellors, c. 158; Erskine's Speeches, by Jas. L. High, Vol. I. p. 242,—will readily occur to the reader as one of the 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 defi

ance.

His example has had a salutary effect in illustrating and establishing the relative duties of judge and advocate in England." And elsewhere, in speaking of Mr. Fox's Libel Act, he makes the following somewhat extravagant remark: "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

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St. Asaph, the Star Chamber might have been re-established in this country." And Lord Brougham says of Erskine : "He was an undaunted man; he was an undaunted advocate. To no court did he ever truckle, neither to the Court of the King, neither to the Court of the King's Judges. Their smiles and their frowns he disregarded alike in the fearless discharge of his duty. He upheld the liberty of the peers against the one; he defended the rights of the people against both combined to destroy them. there be yet amongst us the power of freely discussing the acts of our rulers; if there be yet the privilege of meeting for the promotion of needful reforms; if he who desires wholesome changes in our Constitution be still recognized as a patriot, and not doomed to die the death of a traitor,

If

let us acknowledge with gratitude that to this great man, under Heaven, we owe this felicity of the times." Sketches of Statesmen of the Time of George III. A similar instance of the independence of counsel is narrated of that eminent advocate, Mr. Samuel Dexter, in the reminiscences of his life by Sigma," published at Boston, 1857, p. 61. See Story on Const. (4th ed.) § 1064, note.