THE DARK BRIGADE.

Otago Witness, Issue 3314, 19 September 1917, Page 58

THE DARK BRIGADE.

By Jessie Mackat. (Concluded.) In his indictment of the accretions of mouldy and vicious precedent which have been encouraged to grow round the law, Mr Ambrose Bierce elaborates the parallel between "judicialism as she is judged' and the sacerdotalism which has do.:. < the free growth of religion. We are all responsible in pernon and property, he cays, not so much to the laws themselves as to "the incompatible additions made to them by laywers." Furthermore, he roundly blames a supine public for allowing tho lawyers thus to dominate common sense and popular opinion :' " They only create and thrust this mass of disastrous rubbish down our throats. We are guilty of contributory negligence in not biting the spoon." In his interpretation of the whole forensic position in this piling up of appeals, decisions, writs of error, reversals., etc., Mr Bierce sees, only the gloomy faot that the lawyers have f got us " and mean to keep us. Obviously, seeing the failure of civilisation to protect itself, he yearns for the rough and readier methods of the wild Western frontier. • "I do not believe," he says, "that there is a lawyer in heaven; but by a bath of tar and a coating of hens' down they can be made to resemble angels more nearly than by any other process." The sins of the Dark Brigade, euphemistically called in tho aggregate "professional procedure," fall under several heads. They put machinery in motion which secures in certain cases the condemnation of the absolutely innocent, as well as the only technically guilty, who have to suffer like common criminals. They put the same machinery in motion to let loose needless peril on society by acquittal of the obviously guilty. A most cruel privilege, too, is exacted in the browbeating and insulting of witnesses that they may entangle themselves in admissions that may prejudice their side with the jury. Particularly Hunnish is the procedure that pounces on the wo;man witness, already terrified to death by a publicity foreign to the whole tanor of her life, and doubly oppressed by the conscientiousness that feels itself under -solemn oath, and the faithfulness that feels a friend's or loved one's cause committed to her charge. How many an innocent cheek has burned with indignant shame at the constructions forced upon her honest admissions by some clever. limb of ..the law, who would win a case for : a "Bill; Sykes or a Quilp by confounding the Angel Gabriel if that were possible! If we were a civilised community," would a reputable witness not be assured of at least as much civility as the mute and personally unassailed criminal in the dock? A woman, a youth. a humanist, a clergyman, may be insulted with impunity before the bar of justice, and though the court might be filled with chivalrous sympathisers, not one, were it the King himself, could stand between that harried victim and the " sworne tormentor'' of the modern law court. Though far from endorsing a reversion to the antiquated tortures of the Third Pegree or even the self-incrimination a public examination, there is some point in this sentence:

" To a visiting Lunarian it would sesm strange indeed that :in a terrestrial court of justice it is not deemed desirable for an accused person to incriminate himself, and that it is. deemed desirable for a subpoena to be more dreaded than a warrant."

But there is a safety for witnesses—a safety, strange to say., only to be achieved by rascality; an d no cover whatever to meekness and integrity. This is the right of a witness to refuse to teEtify when his testimony would tend to convict him of crime—a principle which, according to the writer, has been strongly and inequitably reaffirmed quite recently in the United States, with the inevitable result of miscarriage of iustice in many cases. Mr Bierce, with almost Shavian conversity, to give the milder prefix, asserts "the right and expediency of crossexamining attorneys i:a court with a View to testing their credibility." He does not suggest who is. to " bell the cat" in such a case. Not the judge, apparently, ■ for he has, ,if anything, less time for the judges than for the lawyers. Anyway, "judge" is only' "lawyer" writ large, and we have ancient authority for the statement that " hawks w.inna pick oot hawks' e'en." Granted, however, that that obstacle is removed, the suggested line of examination here following has both piquancy and point. The modern Archibald Bell-the-Cat is instructed to question the man of law after this fashion:

" Did you ever defend a client, knowing him to be guilty?" "What was your motive in doing so?" " But in addition to your love of fair play, had you not also the hope and assurance of a fee?"

" In" defending your guilty client did you declare your belief in his innocence?" " Yes, I understand; but necessary as it may have been (in that it helped to defeat justice and earn your fee); was not your declaration a lie?" " Do you believe it right to lie for the purpose of circumventing justice? Yes or no?"

" Do you believe it right to lie for personal gain? Yes or no?" "Then why did you do both?" "A man who lies to beat the laws and fill his purse is—what?" There is no doubt that a legal pillar of society would be deeply and genuinely affronted by so flagrant a perversion of the privilege of heckling. A privilege soon crystallises into a Tight. There is no doubt, either, that the said pillar of society would, feel hugely offended to have his professional charter placed on all fours with the armourer's creed in " Major Barbara"—the "death-dealer" who sells his arms to any who have the money to buy. What Hercules of the nations is ready to turn the river of sense and. equity

through the Augean stable of tho law? In tho matters of which we have spoken can a medium course be steered bciween 'penalising innocence and letting rascality triumph? Will the elusive principle of State control, beggared completely on its own ground by history and current example, revive itself in'a more hopeful form, as eliminating private gain from the frequent deflections of Tc.stice under prevnt conditions? Already the State proMaes counsel where the defendant cannut. Is the better way we are beginning to seek going to be found in a calm, impersonal system of Stato pleading under fixed salary, under which rascality and integrity would stand their chance alike? Who knows?