the strong prejudice thus created, detects in the features and manner of the accused unmistakable evidence of a murderer. In the light of what we have said, what is the attitude of an honest lawyer toward that man? Presuming, in common with all the rest of the community, that the prisoner is guilty of the crime for which he stands charged, is the lawyer right or wrong, in the highest moral sense and in the strict line of professional duty, dignity and propriety, in stepping to the side of that man and saying: "Sir, I will defend you." I say he is right in so doing. I say, further, that if the attorney in so doing does it with any hesitation as to his duty, or with any question as to its propriety in the light of profes sional integrity, he has never had a clear conception as to what constitutes true morality or the true nature of his calling. What is the legal friend of the prisoner in his professional capacity required to do while standing thus between the jury and the accused? The prisoner being entitled under the constitution and laws, and by every principle of justice, to a fair, impartial trial, is entitled to be tried by a fair and impartial jury. This can only be done by the skill and experience of counsel. The prisoner is entitled to know from every man who goes into the jury box what prejudices may be existing in his mind against the man whose life is at stake, whether the opinions he has formed from all outside sources and the impression made by any means on his mind will require legal proof to overcome. If they do, then an injustice would be done at the outset, for the law justly presumes every man innocent till he is proven guilty, and this juryman already has his opinion that the prisoner is guilty, and having that opinion, he may be said to have made up his mind. He has therefore, in his own mind, found the man guilty, while the law presumes him innocent, so that without the aid of counsel the prisoner has not an even and fair chance at the outset.

In the laborious task of selecting a fair and impartial jury, all must admit that the attorney is acting entirely within the line of professional honor and good morals. In order that the greatest good may be done to the greatest number and that the innocent may not be made to suffer, all civilized countries

in their legal tribunals have adopted certain rules known as rules of evidence, well understood in their full scope and force by the bench and bar; their objects being to require the case to stand on certain and reliable proof, on facts, statements and circumstances well known and established, and coming from a direct and reliable source, to the end that they may establish the truth and not a lie. In doing this, the skill of counsel is indispensable to ascertain the motives of witnesses, their relations to the parties, their sources of information and credibility. While enforcing these rules, certainly the lawyer has no occasion to blush.

In furtherance of the ends of justice and in its administration, numerous statutes have been enacted, and our courts of last resort have rendered important legal decisions as numerous and diversified as the leaves of the forest. These statutes and adjucated cases are practically the law of the land, while they stand unrepealed and unreversed.

While standing at the bar of the court, invoking for the prisoner the protection which these laws applicable to his case give him and in the presentation of the facts and circumstances given in evidence, the attorney is doing a plain duty, right in itself and in furtherance of justice.

The attorney has now done his whole duty. What is the difference in point of ethics or professional honor whether the man was guilty or innocent? None.

Suppose he is clearly proven guilty, and the full and just penalty of the law is meted out to him at the end of a rope, is it not a satisfaction to know that the fact of his guilt was clearly established beyond all question of doubt by positive, direct, legal and unimpeachable evidence? That he has had a fair and impartial trial, has brought into requisition all of the machinery of the court, has been ably defended, and at last convicted, sentenced and executed, not on suspicion, prejudice and passion, but by holding the mirror of fact, incident and circumstance up to the sunlight of truth, revealing to the black hearted and red handed murderer his true self. Does this revolting picture of the man of blood throw any dark shadow across the face of the man who, in his professional capacity,

has bravely and fearlessly defended the doomed wretch? No.

Suppose, on the other hand, by the cool, critical and searching processes known to the law, it is demonstrated to a moral certainty that the man is entirely innocent of the foul crime of which the entire community and the public press have pronounced him guilty, what then? The shackles are torn from the trembling limbs of a man pronounced guiltless and clean, with his good name and honor vindicated. The loving wife, helpless children, the aged mother, the friends of his youth and manhood, with tears of gratitude gather about him and lift their hearts in grateful thanksgiving to God that one man had the courage to stand by the side of their brother, protector and friend when the winds howled and the night was dark. The advocate whose skill and eloquence have torn away the driftwood of falsehood and opened up the floodgates of truth, is lauded to the skies. He is the hero, the chieftain of a vanquished foe. The reward of victory, and that in a just cause, is grandly his, and yet he has only stood in his place and done his part, performed his duty, and in so doing, his feet, 'tis true, press roses instead of thorns. What matter, as a question of abstract right and professional honor, whether bare or shod his feet the path of duty trod? In both cases his efforts and accomplishments have been honestly directed in channels leading to the common fountain of truth and justice, and each are equally commendable, though unequally rewarded.

We do not claim that an attorney is always bound to take every case in which his services are desired. Circumstances may justify his declining.

Cicero said that where life was at stake, it was more honorable to defend than to prosecute.

The popular fallacy which imputes want of moral tone to lawyers who are willing to defend those apparently guilty of crime, has been exposed by Dr. Johnson and Rev. Sydney Smith (see Boswell's Life of Johnson, Vol. 3, Ch. 2; Ch. 9, Vol. 4; Ch. 1, Edinburg Review, 1826). Erskine denies the right of counsel to withhold their services.

The practical working of the machinery of the courts is not without serious defects, and its results are often unsatisfactory.

We are bound to admit that in many instances unscrupulous men, holding licenses to practice law, by virtue of their advantageous position, impose upon the public, and use the courts and juries as a means for perpetrating fraud, rather than promoting justice. This is the result of human depravity, rather than serious defects in the organization of legal tribunals. Impostors are found in all other professions and walks of life, quite as frequently as in practitioners at the bar. These being only exceptional cases, tend to prove integrity and fair dealing as the rule.

We make here a sharp distinction between the attorney who craftily creates disturbances, manufactures testimony, cheats his clients, takes advantage of his "little learning" to ensnare the ignorant and unsuspecting, indulging in practices unwarranted and denounced by courts, and the man who, in all his professional duties, strictly adheres to the rules, requirements and regularities of the profession. This we deem to be the distinction between an honest and dishonest lawyer; one is a pestiferous, pettifogging pirate; the other, an indispensable adjunct of the court, a promoter of truth and a friend to mankind. The world is better because he has been in it, and on her imperishable tablet he may leave his own initials carved in letters of living beauty.

Pursuing the unmistakable pathway of high professional honor, now through quagmires of doubt and defeat, then upward to summits of cloudless truth and splendid victory, his attitude, whether on the wrong side or on the right, in victory or defeat, is that of the patient, fearless, sleepless sentinel at the golden gateway of truth.

Edgar L. Jayne.

THE REFRACTION OF EVIDENCE..

"As long as a ray of light moves through the same medium, it moves in straight lines; but in passing from one medium to another, one part of the light is reflected, or thrown back, and another part enters the medium, but in a different direction from that which it previously pursued; this bending of the ray is termed refraction." So writes a well-known author on physics. He is dealing with the subject of light, when he uses these words, very far away from anything so abstract as evidence. Yet any one who is acquainted with "the secret history" of the administration of justice by our complex and highly artificial machine, will, from the definition quoted, see the full force of the phrase which heads this paper. To be behind the scenes from time to time-to listen, that is to say, in open court; but to do more-also to have seen the precognitions, so to speak, and to have been even behind the precognitions-to have seen the stream of evidence both as it leaves its fountain source and as it reaches its final output,-these things involve the deepened conviction that a judge's "facts" are far more often mere faint resemblances than realities. It is not suggested that in the long run substantial justice is not generally done. Perhaps, in the majority of cases, it is. But in an action of any considerable amount of complexity such a result would seem to flow rather from chance or some blind instinct than from a reasoning from facts seen in a full clear light. And one acquainted with the facts in their pristine purity, who listens to discussion and decision in the case, must come

* Republished from "The Journal of Jurisprudence and Scottish Law Magazine."