Chapter XXXIV: Appendix: XIX

[_The Champion_, Sunday, July 3rd, 1814.]

THE PRETENSIONS OF THE LAWYERS, AND THE
SENTENCE ON LORD COCHRANE.

After referring to the pretension of lawyers to being held infallible,
the article continues: “It has, we believe, been urged by the lawyers
that, as the verdict of a jury is to be considered the voice of the
people, the latter can have no right to rejudge their own decisions,
but the idleness of the plea is evident. It most frequently happens
that the verdict of the jury is but a small part of the legal
proceedings in any particular case. A jury may be so trammelled by
technicalities, imposed upon them in peremptory language; they may be
so overpowered by a violent charge, or so confused by a subtle one,
that their decision cannot, in fairness, be regarded but as the result
of an overwhelming influence, leaving them, at least as they fancy,
without an alternative; so that, after all, what have we but an
emanation from an official quarter—tinctured with the interests, the
prejudices, the passions, and the corruptions of a ministerial
officer—in the natural existence of which the framers of our
constitution believed, and the effects of which they desired to check
by the healthy and unperverted sense of men who, being taken from
common conditions, were likely to be animated solely by feelings for
the common advantage. But when the verdict of the jury—however it may
be induced—is pronounced, can it be said that the most important part
of the business is over? No, certainly not. The sentence is to come,
which, in many of the most weighty cases, as affecting the welfare of
society and the safety of persons, is left entirely to the discretion
of the Judge, so that here there is unbounded room for the exercise of
his disposition, whatever it may be. If he be an ill-tempered and
vindictive savage, and be, from political or personal motives,
irritated against the unfortunate individual who is at his disposal,
he may sentence him to a punishment which, as applied to the offence,
shall outrage public feeling by its cruelty, and public justice by a
prostitution of its penalties to gratify private resentments. Has he
ambitious views, which lead him to seek the favour of the court? He
may, as the professed guardian of morals, do them the fatal injury, by
apologising, in the language of authority, and with all the imposing
adjuncts of a dignified and grave station, for those crimes, which, as
practised by persons of the highest rank, have the most extensive
influence in the way of example. These are mischiefs which, under the
cover of legal proceedings, _may_ be perpetrated on the country; and
it is evident, from their very nature, that we can have no security
against them but in the vigilance of the public’s observation of
whatever passes in the courts of law, and their firmness in expressing
their opinion on its propriety.

_Secondly._ Experience fully supports this reasoning. English history
shows that the worst enormities of abused power have been committed
through the medium of the Judges. To no other class of official
persons is half the execration owing, that is justly due to the
lawyers for their frequent perversions of both law and justice in a
base subserviency to the temporary feelings and purposes of guilty
rulers. And, be it remembered that the most abominable of their
proceedings have had the sanction of a jury’s verdict, procured by
such means as have already been suggested; either by direct
intimidation, or by drawing close an artificial network of legal
complications and restrictions, which leave to jurymen about as much
freedom of finding as he has of motion who is placed with his face
close to a wall, and told to jump backwards or forwards, which he
pleases.

_Thirdly._ But perhaps the character and conduct of those who are at
present Judges are calculated to inspire an unlimited confidence in
_them_, however distrustful of the profession, and anxious as to its
functions, we have reason to be. This is, in some respects, a delicate
inquiry, and, indeed, an almost unnecessary one, for the vigilance of
the people as to the discharge of public duties should never be
permitted to slumber through reposing on personal qualities. It is,
then, only the arrogant and dictatorial tone of pretension, held by
the satellites of Westminster Hall, that induces us to bestow a line
on those of any one of our present administrators of the laws. We are
told, in the most fulsome terms, that they are incorruptible,—that it
is the boast of British justice to be clean-handed, &c. &c. This
boast, as rested on a contempt of actual bribery, need be no singular
one in these days. Who now takes bribes from individuals? No one, we
venture to affirm, above the station of a Custom House officer.
Perhaps in no department of the public service could a pecuniary
consideration for infidelity be more conveniently given and received
than in the military: a military man, of inferior rank, and slender
hopes, has often an opportunity of giving the most decided advantage
to the enemy, by acting traitorously, and the reward would never be
wanting; yet who ever hears of such an act of baseness? When was there
ever an instance of it in the army? Why then should a Lord Chief
Justice, with an income of twenty thousand pounds a year, be highly
complimented on a virtuous self-denial, which he only shares with the
subaltern who starves on four and sixpence a day? His Lordship’s
claims to peculiar confidence and honour must be of a rare kind to be
valid. He must represent to us in his behaviour the exalted attribute
of justice—simple, impartial, purified from passion, partaking of the
nature of a heavenly presidency, rather than of power vested in a
frail and feverish being, liable to be misled by his interests and
habits, and every now and then to be carried away to the strangest
lengths by a storm of anger. If Lord Ellenborough aspires to deserve
this, the best praise that can be bestowed on one in his exalted
station, his ambition is of the proper kind; but without meaning to
convey any imputation against his integrity, we must even take the
liberty of telling him plainly what the public think—that as yet he
has by no means entitled himself to it. His boisterous vulgarisms in
the House of Lords; his impatient fretfulness with counsel,
particularly shown in cases where defendants may be supposed obnoxious
to the palace, or to himself personally; the extraordinary views he
takes of moral questions, so favourable to certain princely
profligacies; and the unqualified terms of his charges in those trials
that are calculated to rouse political feelings and partialities, are
circumstances that have made a strong impression on the public mind.
People, therefore, without indecently denying his honesty, are much
inclined to doubt his discretion; and it must be admitted, that his
Lordship’s temper is not precisely of that poised and regulated kind
which would be the best plea for an exemption in his favour from that
popular superintendence and judgment of his conduct, the exercise of
which he finds so irksome, and which his friends represent as so
indecorous.

Having thus vindicated the right of the people to express their
sentiments freely on the conduct of the Judges, as on that of any
other public men, we shall shortly exercise it by joining in the
general disapprobation which the sentence recently pronounced against
Lord Cochrane has excited. We never remember any sentiment to prevail
more universally than this now does: the firmest believers in his
Lordship’s guilt are loud in their reprobation of that part of his
punishment which includes the exposure of the person of a naval
officer, whose gallantry in the service of his country has been of the
most devoted kind, on a stage of infamy which is trodden by the
miscreant whose crime is not to be named. The public feeling has
received a shock by this unexpected award, from which it will not soon
recover; and surely it must be censured as highly indiscreet, to have
turned the horror that ought to have been engrossed by the crime,
entirely against the punishment with which it has been visited.

It is not our intention to enter at all on the question of Lord
Cochrane’s guilt or innocence; it would be very wrong in every point
of view to do this at present. His Lordship has signified his
intention of defending himself before the House of Commons, and of
explaining what he affirms are the misconceptions on which the verdict
of the jury was founded. The public will listen attentively to his
second appeal; but, in the meantime, we shall confine ourselves
strictly to those circumstances which are sufficient to justify the
general condemnation of the sentence passed on his Lordship, although
the decision of the jury be confirmed.

In the first place, admitting that the evidence may have been such as
to compel a conviction, yet there are evident features of extreme
hardship in Lord Cochrane’s situation when put on his trial, and when
brought up for judgment, which enlist sympathy in his behalf, and make
it possible that matters of alleviation, affecting _his case only_,
may have been concealed by the harsh formalities of the practice of
the Court. The law concerning conspiracy is enough to make every
individual tremble for his own safety. Through mistake or malice, an
innocent man may be included in one indictment with several guilty
ones—he is compelled to take his trial with them; the testimony that
proves their crime raises a prejudice against him; it is almost
conviction to him to have his name called over with theirs; the chain
of evidence becomes complicated, and where are jurymen to be found
sufficiently clear-headed to mark exactly the connection between the
facts sworn to and each of a dozen accused persons? If there is a
hostile disposition towards the innocent individual existing in the
breast of any in court, who may have an opportunity of influencing the
jury, how shall he escape being involved in the deserved fate of those
with whom he has been confounded? If, after his conviction, he
prepares himself with evidence suited to remove the misconceptions by
which his guilt has been presumed, he is granted or denied the
opportunity of bringing it forward, according to the conduct of
others, over whom he has no control, and who, in consequence of his
innocence, and their guilt, have an interest directly the reverse of
his. Should they abscond he is denied a new trial, although he
presents himself fearlessly to meet its result. These are rules which
Sir W. Garrow, the Attorney-General, calls the perfection of wisdom;
to common understandings they seem the perfection of hardship. But
what legal absurdity or cruelty, that has given way to the growing
intelligence of society, has not been so eulogised and pertinaciously
defended by the lawyers of the day!

Lord Cochrane, it is clear, has been thus placed in a situation
extremely disadvantageous to him as an accused person, and the public
sentiment is roused in indignant alarm at the condemnation of an
individual to the punishment of the pillory (a punishment more severe
than that of death to one in his Lordship’s situation of life), who
complains in touching terms of hardships, which, to common
understandings, involve palpable injustice, and which are of a nature
to render any innocent person unable to establish his innocence. It
would have been but prudent in the judge to have avoided raising this
popular feeling against the sentence of the Court, by keeping it more
within the bounds of moderation. Its odious severity sets every one on
scrutinising the soundness of the conviction, and the justice of the
legal rules applied to his Lordship’s case.

The further regards that influence the public to this strong
commiseration of Lord Cochrane, and disapprobation of his sentence,
are the unsuitableness of the latter for infliction on one of his
Lordship’s condition, and, we had almost said, its ingratitude, with
reference to his very distinguished past services. It is very certain
that justice may be as much violated by a disproportionate punishment,
as by the offence against which it is awarded; and when we consider
that Lord Cochrane is one of the most esteemed officers of the navy,
that his courage is of the true Nelsonic kind, that he is a member of
Parliament, and a man of rank, the disgrace of the pillory to him must
be deemed a thousand times worse than the mere infliction of death,
for with this latter his Lordship has been familiar. Now, without
meaning to extenuate the crime of spreading false news to raise the
public funds, we may say that the state of the general feeling and
practice in the country does not at present warrant that a punishment
worse than death shall be pronounced against him, who, after the long
forbearance of justice, is first convicted of this offence. Statesmen
of high name and station are shrewdly suspected to gamble in the
funds, and this practice also is illegal;—since such loose and
improper feelings as to what is honourable prevail, it would have been
but fair, at the first interference of the arm of the law, to have
permitted it to fall more lightly.

Lord Cochrane’s politics are of a kind to excite the displeasure of
the Court against him; one of his relations has STIRRED IN BEHALF OF
THE PRINCESS OF WALES, and, we believe, he has himself made, or
assisted, some little scrutiny into LORD ELLENBOROUGH’S PERQUISITES OF
OFFICE. These are considerations by which the Lord Chief-Justice will
indignantly disclaim being at all influenced; but we say that he ought
to have been influenced by them, inasmuch as they rendered his
situation towards the accused extremely delicate.

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