There are a few propositions, however, which appear to me to be sound in themselves, and calculated to solve this problem practically in the majority of cases; at least to assist the mind in coming to a safe conclusion in foro conscientiæ, in the discharge of professional duty.

There is a distinction to be made between the case of prosecution and defence for crimes; between appearing for a plaintiff in pursuit of an unjust claim, and for a defendant in resisting what appears to be a just one.

Every man, accused of an offence, has a constitutional right to a trial according to law; even if guilty, he ought not to be convicted and undergo punishment unless upon legal evidence; and with all the forms which have been devised for the security of life and liberty. These are the panoply of innocence, when unjustly arraigned; and guilt cannot be deprived of it, without removing it from innocence. He is entitled, therefore, to the benefit of counsel to conduct his defence, to cross-examine the witnesses for the State, to scan, with legal

knowledge, the forms of the proceeding against him, to present his defence in an intelligible shape, to suggest all those reasonable doubts which may arise from the evidence as to his guilt, and to see that if he is convicted, it is according to law. "A circumstance, which the author of The Characteristics, the grandson of the celebrated Lord Shaftesbury, once so finely turned to his purpose, must often happen to a prisoner at his trial. Attempting to speak on the bill for granting counsel to prisoners in cases of high treason, he was confounded, and for some time could not proceed, but recovering himself, he said, 'What now happened to him would serve to fortify the arguments for the bill. If he, innocent and pleading for others, was daunted at the augustness of such an assembly, what must a man be who should plead before them for his life?"" The courts are in the habit of assigning counsel to prisoners who are destitute, and who request it; and counsel thus named by the court cannot decline the office."

12 Wynne's Eunomus 557.

2 "Although Serjeants have a monopoly of practice in the Common Pleas, they have a right to practise, and

It is not to be termed screening the guilty from punishment, for the advocate to exert all his ability, learning, and ingenuity, in such a defence, even if he should be perfectly assured in his own mind of the actual guilt of the prisoner.1

do practise, at this bar; and if we were to assign one of them as counsel, and he were to refuse to act, we should make bold to commit him to prison." Per C. J. Hale: 3 Campbell's Lives of the Chief Justices 20; citing Freeman 389; 2 Lev. 129; 3 Keble 424, 439, 440.

1 Let the circumstances against a prisoner be ever so atrocious, it is still the duty of the advocate to see that his client is convicted according to those rules and forms which the wisdom of the legislature have established, as the best protection of the liberty and security of the subject. Professor Christian's note to 4 Blackst. Com. 356. "From the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the judge, nay, he assumes it before the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale

It is a different thing to engage as private counsel in a prosecution against a man whom he knows or believes to be innocent. Public prosecutions are carried on by a public officer, the Attorney-General, or those who act in his place, and it ought to be a clear case to induce gentlemen to engage on behalf of private interests or feelings, in such a prosecution. It ought never to be done against the counsel's own opinion of its merits. There is no call of professional duty to balance the scale, as there is in the case of a defendant. It is in every case but an act of courtesy in the AttorneyGeneral to allow private counsel to take part for the Commonwealth; such a favor ought not to be asked, unless in a cause believed to be manifestly just. The same remarks apply to mere assistance in preparing such a cause for trial out of court, by getting ready and arranging the evidence and other matters conagainst the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel:" Lord Erskine, 6 Campbell's Lives of the Chancellors

nected with it: as the Commonwealth has its own officers, it may well, in general, be left to them. There is no obligation on an attorney to minister to the bad passions of his client; it is but rarely that a criminal prosecution is pursued for a valuable private end, the restoration of goods, the maintenance of the good name of the prosecutor, or closing the mouth of a man who has perjured himself in a court of justice. The office of the Attorney-General is a public trust, which involves in the discharge of it, the exertion of an almost boundless discretion, by an officer who stands as impartial as a judge. "The professional assistant, with the regular deputy, exercises not his own discretion, but that of the Attorney-General, whose locum tenens at sufferance he is; and he consequently does so under the obligation of the official oath." On the other hand, if it were considered that a lawyer was bound, or even had a right, to refuse to undertake the defence of a man because he thought him guilty, if the

1 Per Gibson, C. J., in Rush v. Cavenaugh, 2 Barr