Barreau

“ I inquired next morning of a brother barrister on entering the court.
"Rather light for a March assize," replied the impatient counsel as he bustled onward. "There's Cartwright's case—highway robbery—in which I am for the prosecution. He'll swing for it, and perhaps four or five others."
"A good hanging judge is A ——," said the under-sheriff, who at this moment joined us, rubbing his hands, as if pleased with the prospect of a few executions. ”

“ Proceedings before a magistrate to commit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offense which the magistrate has no jurisdiction himself to try, before the court in which he may be prosecuted and tried, are but preliminary to the prosecution, and are no more a commencement of the prosecution than is an arrest by an officer without a warrant, for a felony committed in his presence. ”

“ Up and down a passage which leads to the jury-room and to the private entrances into the court, one may see the attorneys in their Sunday shabby-genteel, and in great bustle and importance, running backwards and forwards, now halting to confab with gentlemen who are relations of the prisoners, or are subpœnaed witnesses—​now with the barristers who wear stereotyped smiles upon their faces, as if law life was a pleasant dream. ”

“ First, it is an ordinary criminal court, with all the vulgar characteristics of such places: swarms of loud policemen, crowds of chattering witnesses, prison-warders bent on recognising old offenders, ushers who look soured by long familiarity with crime, clerks who gabble over indictments with the voice and manner of a town-crier, barristers in and out of work, some caressing a brief and some awaiting one; and a large sprinkling of idle persons, curious after a fresh sensation and eager to gratify a morbid appetite for the horrible. ”

“ And the Court of Queen's Bench will grant a criminal information against the magistrate who improperly refuses bail in a case in which it ought to have been received. It is obviously of great importance, in order to ensure the appearance of the accused at the time and place of trial, that the sureties should be men of substance; reasonable notice of bail, in general twenty-four or forty-eight hours, may be ordered to be given to the prosecutor, in order that he may have time to examine into their sufficiency and responsibility. ”

“ We have brought them back with us, and other people are [Pg 303] munching food, too, in the dust, the heat, the squalor of this room from which the majesty of justice has departed with the red robed tribunal, the jury, and the prisoner. There is a hubbub of excited talk and much discussion. Municipal guards forget to keep order and chat with us and with the barristers of the probabilities and possibilities of the verdict. Every now and then there is a hubbub of excitement and a sudden deathly stillness. The little door, beyond which we can see those red and grey carpeted stairs, has opened. ”

“ I think it'll be no end of fun," was the merry reply. "One of us could be the prisoner, and the other the barrister who defends him. I'd better be the barrister, because I know more about English law than Selwyn does. And the furniture'll have to be the other counsel and the gentlemen of the jury. Sit over there, Charlie, near that railing, and we'll make believe it's the bar. The only trouble is the barrister will have no gown and wig. ”

“ The benchers appear to take cognizance of any kind of misconduct, whether professional or not, which they may deem unworthy of the rank of barrister. The grade of barrister comprehends the attorney-general and solicitor-general (appointed by and holding office solely at the will of the government of the day) , who rank as the heads of the profession, king’s counsel and ordinary practitioners, sometimes technically known as “utter barristers.”
The peculiar business of barristers is the advocacy of causes in open court, but in England a great deal of other business falls into their hands. ”

“ The statutes as to bail upon arrest and before trial provide that 'bail may be admitted' upon all arrests in capital cases, and 'shall be admitted' upon all arrests in other criminal cases; and may be taken in capital cases by this court, or by a justice thereof, or by a circuit court, a circuit judge or a district judge, and in other criminal cases by any justice or judge of the United States or other magistrate named. ”

“ The rules of the bar forbid its members to do any act belonging to the guild of attorneys. It is very rare that a barrister puts his foot in an attorney's office; the two classes meet in the law-courts. In society, there is no barrier between them, and some barristers, those in la Peyrade's situation particularly, demean themselves by calling occasionally on attorneys, though even these cases are rare, and are usually excused by some special urgency. ”

“ A recognizance of bail, in a criminal case, is taken to secure the due attendance of the party accused, to answer the indictment, and to submit to a trial, and the judgment of the court thereon. It is not designed as a satisfaction for the offence, when it is forfeited and paid ”

“ The decision of the jury is supposed to be final, but when a prisoner is found guilty and the court is convinced that the jury is entirely in error, it may set the judgment aside and postpone the case to another session. Against the sentence of the court, appeal may be made to the Cour de Cassation. The Cour d'Assises exercises full jurisdiction in all cases criminal, correctionnelle, or of the Simple Police, excepting in the case of some special law. ”

“ The prisoner and the prisoner’s lawyer, even the prisoner’s friends, are encouraged also to give the names of any people from whom they wish the examining magistrate to collect evidence. Practically therefore in a French criminal case the criminal is tried twice over, once by the examining magistrate, and a second time in the court of assizes before a jury. And the first trial is the more important of the two, because of the influence of the examining magistrate’s report on the minds of the judge and of the jury, at the assize court trial. ”

“ Nothing is more simple than an American court of justice. Four walls innocent of decoration of any kind, a few plain chairs or benches. No uniforms, no robes, no wigs, no trumpets, no liveried ushers. The judge and the barristers are in black frock-coats. The ushers are not quite so well dressed as the barristers, and that is all.
As in England, the accused is not allowed speech. If he has questions to put, his counsel is at his side, and speaks for him. It is the counsel who examine and cross-examine the witnesses, and plead before the jury. The judge presides, and does nothing more. ”

“ At last, however, the clerk of arraigns was made to realise what stage had been reached, and he called the bailiff of the court and gave the jury over to his charge, with the following form of words:
‘You shall take this jury to some convenient place, where you shall lock them up without meat, fire, or light; you shall suffer no man to speak to them, neither shall you speak to them yourself, except to ask them if they have agreed upon their verdict ”

“ For juries in cases of felony the names of twenty persons residing at a distance from the place where the crime or offence is said to have been committed are taken from a list furnished by the circuit or the corporation court. Those twenty are summoned to attend the court, and from them a jury panel of sixteen is selected. The accused person may, without giving any reason, object to, or strike off, any four of the sixteen, and the remaining twelve will be the jury to try the case. ”

“ Crewe. A lawyer will prove that black is white if he is paid for it. In fact, I understand that, according to the etiquette of the bar, they have got to do it. A barrister has to abide by his brief and leave his personal feelings out of account."
"That's so. Theoretically he is an officer of the Court, and his services are supposed to be at the call of any man who is in want of him and can afford to pay for them. ”

“ The Quarter Sessions in the provinces are usually attended by a numerous Bar, chiefly composed of the younger men on each circuit, together with a few more experienced barristers who have never emerged from criminal work. A prisoner unable to employ a solicitor to instruct counsel is entitled to secure the services of a barrister by handing a guinea over the dock, and many young advocates do a brisk trade in what are termed "dockers." ”

“ A class of men has therefore been set apart to keep the people from direct approach to the bench, except when they may desire to argue their own cases, which rarely occurs.
In England there are two such barriers, the class of barristers and the class of attorneys. The attorneys keep the people from access to the barristers; the barristers keep the attorneys from access to the court. The attorney prepares the case, represents his client in the proceedings preliminary to the trial, and assists the barrister whom he may retain at the trial, but cannot examine a witness or argue the cause. ”

“ The officer who convenes the court-martial also has final authority to determine whether charges will be brought in the first place, and to pick the board of inquiry, the prosecutor, the defense counsel, and the law officer who serves as legal adviser to the court-martial. ”

“ A person to be qualified for the post of public prosecutor must be a barrister or solicitor of not less than ten years' standing, and an assistant public prosecutor, who may be appointed under the act of 1908 and who is empowered to do any act or thing which the public prosecutor is required or authorized to do, must be a barrister or solicitor of not less than seven years' standing. ”

“ Suppose a criminal case is tried by a justice of this court while holding the circuit court, can it be that the circuit judge, exercising the power given to him by the first paragraph of this rule, can allow a writ of error, and couple with it a command to the circuit justice to approve a bail bond against his judgment of the propriety of letting to bail, and such command be enforced by a writ of mandamus from this court? ”

“ And be it further enacted, Prisoners under indictment, &c., to be discharged on bail.That in case any of such prisoners shall be under indictment or presentment for any offence against the laws of the United States, and by existing laws bail or a recognizance may be taken for the appearance for trial of such person, it shall be the duty of said judge at once to discharge such person upon bail or recognizance for trial as aforesaid. ”

“ The obligation or bond given by a prosecutor and witnesses for their appearance at court, is sometimes called a recognizance. They bind themselves, with sureties, to forfeit and pay a certain sum of money in case of their non-appearance. A similar bond or recognizance is given in case of bail. The person accused binds himself, with sureties, in such sum as the justice requires, which is to be paid if he shall not appear for trial. The word bail is from a French word meaning to deliver, or to release. Hence, the justice bails, sets free, or delivers to his sureties, the party arrested. ”

“ It is not unheard of to see a prisoner actually at the bar awaiting sentence while the judge [Pg 191] upon the bench holds a sort of open levee, free to all comers, in which the prisoner's lawyer, his wife, the officer who made the arrest, the complainant, and the district attorney (and sometimes others who have far less claim to be heard) endeavor to bring the judge to their own particular way of thinking, and harangue him and each other in tones by no means always either deferential or amicable. ”

“ When the bail appear, evidence may be heard on oath, and they may themselves be examined on oath upon this point; if they do not appear to possess property to the amount required by the magistrates, they may be rejected, and others must be procured, or the defender must go to prison. Excessive bail must not be required; and, on the other hand, the magistrate, if he take insufficient bail, is liable to be fined, if the criminal do not appear to take his trial. ”

“ At the judge's right are the jury, seated in a box of either two rows of six or three rows of four, the back row being nearly on a level with the judge. In front of the judge, but so much lower as to oblige him to stand on his chair when whispering to his lordship, sits his "associate," a barrister in wig and gown, whom we should designate as the clerk of the court.
Facing the associate is the "solicitors' well," at the floor level, where, on the front row of benches, sit the solicitors in ordinary street dress. ”

“ Every three months an assize is held in each department, usually at the chief town, by a conseiller, appointed ad hoc, of the court of appeal upon which the department depends. The cour d’assises occupies itself entirely with offences of the most serious type, classified under the penal code as crimes, in accordance with the severity of the penalties attached. The president is assisted in his duties by two other magistrates, who may be chosen either from among the conseillers of the court of appeal or the presidents or judges of the local court of first instance. ”