ready understood. There was, finally, the charge of the
judge, carefully sifting the evidence, and calmly applying the law. But
the case, he argued, would be different if counsel were heard on both
sides. There would then be all the zeal, the animation, and the
struggle for victory which were usually seen in civil cases. Besides, he
continued, the counsel for the prosecution would always have the benefit
of a reply whenever the accused called a witness, which might more than
counterbalance any favourable effect of evidence. The functions of the
judge, also, would assume a character disadvantageous to the prisoner;
for if the address of the counsel of the prisoner threatened to be
efficient, the judge in many cases would have to interfere: In doing
this, it was urged, he might unconsciously pass the exact boundary that
ought to circumscribe his remarks; the impression then would probably go
forth that the verdict of the jury had been elicited by those remarks;
and the judge, instead of being, as he was now, counsel for the
prisoner, would be almost compelled to become an advocate against him.
On the other side Mr. H. Twiss set forth in a strong light the absurdity
of permitting counsel to start and multiply the most frivolous and
visionary objections to the form and phraseology of an indictment, with
the merits and evidences of their client's case. He also set forth the
hardships under which a prisoner lay, who, wishing to address the jury
of the facts of a case, must do it with his own lips, under all the
disadvantages of natural disability, physical impediments, or accidents
of his situation, while the very incompetency to do himself justice would
be aggravated by a knowledge of the serious consequences attendant
on his failure. As to the fiction of the judge being counsel for the
prisoner, he said, it would in most cases be much more true to say, that
he was counsel against the prisoner, and for the prosecutor. Whence,
he asked, came the only instructions which the judge received in any of
these cases? From the depositions of the witnesses for the prosecution.
Sir Robert Atkyns, in his notes upon Lord Russell's trial, had truly
said, "I well know by experience what sort of counsel judges usually be
for the prisoner." Mr. Peel admitted that the arguments which might be
raised on both sides of this question were very equally poised; that the
legal opinions upon it were nearly equiponderant; and that if he were
convinced o