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the case throws it less into the power of counsel to serve their clients, and also far less to serve themselves. That promptness and adroitness which are only attained by long practice in public, the knowledge of human nature, both in its ordinary and intricate workings, which is not to be learned from books, and least of all from law-books, but which is the best part of his professional acquirements, for a lawyer practising in a commonlaw court have less field for their exercise, and are less regarded and developed. The profession is a studious one, learned out of and pursued according to the books. No bullying of witnesses, no tyrannizing over the court, and above all no cross-examination. This last consideration is one that must give us pause.
The best way to tell a story is such an art that not much approach to it is to be expected from the ordinary run of witnesses. But telling a story is what the witness has to do, and the examination is for the purpose of aiding and guiding him in it. That is the best method which helps him best to set out the circumstance or event described, so that the hearer may get the clearest idea of the facts as they occurred. In many cases no recital can do this so well as a picture, or series of pictures, would do; and the nearer it approaches to producing this effect, the better. In a picture the strong points with their qualifications, the lights and shadows, – that is to say, the main facts and the less important ones, — are brought before the eye and the mind at the same moment; and the impression produced is of a whole in which all the parts appear in their actual and proper relation. In our system of direct and cross examination, where the main facts which make for one side are put in first, and the qualifying circumstances are brought out afterwards, there is frequently such a distance of time between the two, and such a difference in the handling of the witness, that the proper connection is destroyed. The impression produced, where there is not an extraordinary power of recollection and combination, is disjointed and in piecemeal, and, even when nothing but the truth has been told, contradictory; and the decision, instead of being reached by a harmonious comprehension of the whole, is obtained by weighing two statements against each other. Add to this that certain facts may be and constantly are unduly dwelt on, and distorted out of their natural significance, even against the effort of the witness, by the art of the examiner. Still further
then is this the case when neither party caring or daring to present the whole truth, but only what is for his own interest, it happens that what would be main features are left out, or a witness who knows the most, but knows too much, is not examined (as in the Sickles case). Cross-examination is undoubtedly the most tremendous instrument ever invented for extracting the truth in difficult cases : it suits our independent and combative disposition so well, and has been so long in use, that nothing else could take its place. But the fact that it has not extended more widely indicates an artificial side. In hearing an examination as here conducted, it appeared to me that the jury got as fair an idea of the course of events as in our own courts. It was against all our rules, with abundant use of leading questions and expression of opinion ; but it finished up every branch of the subject as it went along, so as to leave a distinct and complete impression.
There is no question but that the public interest is sufficiently protected. But even on the part of the defendant it is not so poorly off as we are apt to suppose, or as it would be with the part assigned to the judge in our own courts. If he cannot, on the one hand, when he knows he has got the right counsel, enjoy the perfect confidence that he is going to be pulled through,
although they found the money in his .boots," on the other hand he is not such a victim when he has taken the wrong one. As things go, is not this quite as well ? It is a perversion of justice, and a blot on its administration, when the issue of a case can be made to depend upon the strength of counsel.
That this is notoriously the fact with us need not be urged. In this procedure the court sits to investigate the whole case; and the defendant may rely with reasonable confidence on the action of a court from which this is expected, and whose reputation is interested in its performance. As a matter of fact, the administration of justice stands in the very highest repute.
To enter on a still more general field, they are on the whole the best organization and procedure which most fitly perform the service required of them, and for which they were instituted. The objects for which courts are established may be said to be essentially the same in all civilized countries. They include not only the investigation of facts and discovery of truth, but also the exercise of powers conferred on them for the maintenance of
public order. But these powers will be found to vary in different countries according to their laws and customs, still more according to their traditions and that indefinable, intangible public opinion which sits as a tribunal over all authorities, and, further still, according to that national character and spirit whose organs they are. Strangers ought not to be too confident about their impressions; but one seems to see that what is expected in Germany of courts is that justice shall be done. In contradistinction to what is hereby meant to be understood, I should say that in our country the public demand is for fair-play, so that the parties may win it for themselves if they can. If the courts of the two countries exhibit themselves as discharging, and better qualified to discharge, these functions, each in its own place, they stand out as faithful creations and representations of different modes of thought, and of a different social and political life. No institutions are more dependent on the public confidence for successful working than courts of justice. This they may retain with even a moderate degree of desert, as long as they are in harmony with the rest, but would as certainly lose, if unsupported by them.
By which reasoning we are brought to the conclusion that, whatever its defects, neither system could be replaced by the other, or seriously modified. Even the institution of the jury, from which the whole common-law practice is supposed to have proceeded, has been introduced without producing any appreciable effect. It is obliged to submit to other influences instead of controlling them, and this indicates the natural result of such attempts. The great changes which have lately been made among us in the law of evidence and in the position of married women have been generally approved and successful, not so much because they were in successful operation in other countries as because we were prepared for them. There was a time, in a lower state of morals, when the old practice was safest and best. Valuable improvements are the slow result of national progress, and are to be looked for rather from internal development than importation from abroad.
A word on the character of crimes. Juvenile offences have increased with the concentration of population in cities, and crimes of violence for a period after the war. Most noticeable is the small proportion of the latter. Even murders and burg
laries have a secret and underhand character about them, often connected with adultery or some social derangement. Taken together, they indicate a less vigorous and sturdy life than is led in America. As an example: By the returns of police arrests in Dresden — 190,000 inhabitants — for September, 1874, the whole number is 1369, among which a great part are for violations of city ordinances and minor offences, which would not come before the higher courts. Of the crimes of violence the figures are as follows: burglary, 23; simple larceny, 261 ; simple assault and battery, 2; drunkenness, 20; and no others. There were in the same time five suicides.
DIGEST OF THE ENGLISH LAW REPORTS FOR NOVEM
BER, DECEMBER, AND JANUARY, 1875.
ACTION. - See COVENANT.
ADEMPTION. 1. For the purpose of raising the presumption that a legacy is ademed, it is not incumbent
person who alleges a satisfaction to show any thing more than that the testator, having given a legacy of a certain amount, afterwards in his lifetime gave the legatee a sum of money - the nature of the two gists not being so different as to rebut the presumption. — See Hall, V. C., in Leighton v. Leighton, L. R. 18 Eq. 458.
2. A testatrix bequeathed to M. “ the sum of three thousand pounds invested in Indian security.” At the date of ber will the testatrix held certain Indian securities, which were subsequently paid off, and the proceeds invested in other ways, so that at her death she had no Indian securities. Held, that the legacy was not ademed. — Mytton v. Mytton, L. R. 19 Eq. 30.
ADULTERY. See DIVORCE, 2.
ANCIENT LIGHT. Adding to the dimensions of ancient lights, or making new windows in close proximity to such lights, does not of itself deprive the owner of the easement of his right to an injunction restraining an obstruction to his ancient lights.
In considering an injury to an ancient light, the court will consider to what purpose a room in which is the light may thereafter be used, as well as the
purpose for which it is then being used.
Where an action could be sustained for obstruction to ancient lights and considerable damages recovered, the court will generally grant an injunction restraining such obstruction. See Aynsley v. Glover, L. R. 18 Eq. 544.
ANNUITY. 1. A testator charged two annuities upon the corpus of certain estates, but added a proviso that, if the surplus rents of said estates after paying certain charges should be insufficient to pay said annuities, then the first annuity should abate in favor of the second. Held, that said annuities were a charge upon the corpus of said estates, notwithstanding said proviso. — Pearson v. Helliwell, L. R. 18 Eq. 411.
2. A testator bequeathed to his wife an annuity of £1000 per year, and directed his executors to sell such a part of the principal, if the interest should be insufficient, as would make up, including interest on property she might inherit, an annuity of the above amount. The testator's father bequeathed said wife an annuity of £200, and declared that the same should be in addition to any income which she