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in international law as are demanded by the advancing civilization of the times; third, to propose a scheme of arbitration for the settlement of national disputes; fourth, to take measures for the establishment of a permanent academy for the cultivation and improvement of international law,-- its members might as well perhaps become naturalized Belgians at once, for we can hardly foresee the end of its sessions. We are inclined to think with Mr. Montague Bernard, that “ the prospect of useful results would be greater if the association were to be content, in the first instance at least, with more modest aims," but we wish them every success in their labors.
Law REFORM. THE JUDICATURE BILL. — The passage of Lord Selborne's bill inaugurates by far the most sweeping reform that has ever been attempted in England, and the working of the new system will be watched with great interest from this side of the water. Opinion in England is very much divided upou the merits of the measure, and we shall do well, before adopting any part of it, to wait until it has been thoroughly tested in practice. That Lord Selborne, so long the head of the equity bar, should have been the author of a bill to combine the law and equity courts is somewhat surprising to many American lawyers, who have been in the habit of thinking the English system better than our own, in not requiring the same judge to understand both law and equity, to master either of which requires the study of a life. It is not, however, an original experiment in Great Britain, but has long been in successful operation in Scotland, whose system Lord Selborne took as the model for his bill.
The surrender, by the House of Lords, of its judicial functions puts an end to that antiquated tribunal.
THE JURIES BILL. — We have noticed the proposition for a change in the jury system which was brought forward in the constitutional convention of Ohio, and it is interesting to compare with it the bill which the Attorney-General endeavored in vain to pass through the House of Commons at the recent session. The English bill as it left the select committee reduced the number of jurors to seven in all cases but treason and murder, but the common-law judges having expressed themselves unanimously in favor of retaining the present number, that feature of the bill was abandoned. On the question whether unanimity on the part of the jurors should be required for a verdict, the same judges were divided, and here the Attorney-General expressed his opinion, in the debate on the bill, that “ the time for requiring absolute unanimity on the part of jurors had gone by, and that it would be more reasonable to accept the verdict of a certain definite majority. It was not right that some unreasonable or ill-conditioned juryman should have the power, by · standing out against his eleven colleagues, to cause the whole expense of a protracted trial to be thrown away, or to enable a notorious criminal to escape from justice."
It might be difficult to give any reason, however, for requiring unanimity a hundred years ago which would not have equal force to-day.
On the question of how the jury should be composed, he thought it exceedingly important that there should be on all juries some portion of intelligence, and also an infusion of classes, in order that the tribunal should be one which
would be most likely to do justice between persons of all classes, and engaged in every variety of business, who might appeal to juries in order to the settlement of questions at issue between them. It was generally agreed, he believed, that it would be desirable to have a mixture of classes in the ranks of jurors, and he wished to know, therefore, why the relative proportions of the different classes should not be definitely fixed so that there might be one regular standard, as far as that was possible of attainment. Mr. Lopes objected to the proposal, remarking that the Attorney-General stood alone in the select committee in support of his scheme, though the other members of the committee were almost all of them lawyers who had had much professional experience of the working of the law and its administration in courts of justice. He thought that, while in criminal cases the number of the jury should still be twelve, in civil cases the number might be safely reduced to seven. There would then be a saving of attendances by jurymen, and the tribunal would become a more responsible one. As to unanimity, he should be loath to see it abandoned, feeling convinced that the result would not give satisfaction. The present system did not amount to absolute unanimity, and it certainly insured a careful consideration of the case, which would not be given if unanimity were dispensed with.
Mr. Lopes also thought that a composite jury would be a great misfortune, and would give great dissatisfaction. Where the number of special jurymen was too small, and a tales was prayed, experience showed that there was often a disagreement, the common jurymen ranging themselves on one side and the special jurymen on the other. If in criminal cases a composite jury were always empanelled, there would very likely be antagonism between the two classes, especially in game cases, or else the common jurymen would act under the influence - perhaps the undue influence — of the special jurymen. The almost universal feeling of the profession, as far as he had tested it, was against composite juries. The whole debate on the bill was interesting, but we give these extracts, for which we are indebted to the Law Times, as illustrations of the opposing views.
Indeed, the atmosphere of reform, which seems quite as prevalent as the atmosphere of invention, extends to Germany, as appears by the following paragraph:
The jury system, which the Germans claim to have invented, is just now a subject of controversy in Germany. It is well known to students of law that two jury systems have long coexisted in German jurisprudence. Of one of these systems the peculiarity is that all questions of law, as well as of fact, are submitted to the jury which is composed of judges and jurors, generally three of the former to not more than six of the latter. The second system is that in use" in England and this country. In the new criminal code recently laid before the imperial parliament, preference is given to the mixed jury, which is distinctively Prussian in its origin, though in use in parts of Switzerland, and it is probable that it will prevail, and become a German institution. In practice it has been found to work well. — Albany Law Journal
REGINA v. MacDONNELL ET AL. — The bank forgers who startled the Bank of England from its fancied security have been arrested, tried, convicted, and sentenced to the heaviest punishment allowed by law. MacDonnell, their chief, preached a sermon to the merchants of England when called upon to defend himself. On coming to London, he said that he found such facility for discounting bills that he was at once tempted to commit the crime which so nearly succeeded. “In America,” he said, " when bills are presented at a bank for discount, when acceptances are presented, it is the custom to send the acceptances round to the persons accepting, to be what is technically called 'initialled,' in order that their validity and genuineness may be certified. I found this was not the case here, and the result of that discovery is that I am standing before you to-day.”
Breach OF PROMISE OF MARRIAGE. — Smith v. Jenkins. — In an action for breach of promise of marriage the defendant proposed to plead with six other pleas a plea of accord and satisfaction by a new agreement to marry. This plea was disallowed at chambers as being vexatious. Upon appeal, however, to the court, it was allowed, upon the defendant or her attorney filing an affidavit that there was reasonable and probable cause for pleading it. - The Law Times.
RICHARD BETHELL, LORD WESTBURY. — In the death of Lord Westbury, England has lost one of the ablest in the long line of her chancellors, - one who has been called the greatest lawyer of his generation. His success at the bar was rapid and brilliant, and as a judge he was distinguished for the highest judicial qualities; but he will be remembered as one of the very few chancellors who have brought discredit upon their high position. Certain disgraceful appointments made while he held the Great Seal, in making which he carelessly or weakly yielded to the influence of his son, for no personal stain was attached to him, excited so much indignation that, under the pressure of an adverse vote in the House of Commons, he resigned, and his misfortune excited the less sympathy that his bitter and sarcastic tongue had made him many enemies. We can give no better sketch of his character than is contained in the words of Lord Selborne, which we quote, and it is only due to his memory that we should give this testimony in his favor from one so well able to speak both of the man and the accusations against him:
I think he was a man of as brilliant natural powers as any man he has left behind him. He was a man, too, who, from his very great industry and energy in the application of those powers, had acquired a very great grasp and a large breadth of view in regard to the science of jurisprudence, to which his life was devoted. He had all the qualities of an eminent judge. Personally, I have to say that, in the earliest part of my professional career, I was indebted to him for notice and kindness. That was when I was young and obscure, and when notice and kindness from such a person were most valuable. I was also indebted to him, when he became Lord Chancellor, on my first introduction to public service, and further for his confidence during the whole time of our official connection. I was no unconcerned – I will not say spectator, because I was in some sense an actor in the parliamentary struggles connected with his retirement from office, and never had I the smallest doubt for a single moment as to his personal purity, and his freedom from any thing inconsistent with high public and private honor, in regard to those transactions in which he was thought VOL. VIII.
to have failed in vigilance. No doubt or suspicion ever crossed my mind, and I could not but feel pained, more than I have ever yet up to this moment been able to express, that it was considered necessary to visit him with censure, which, so far as any public grounds appeared, was due, in my judgment, not to him, but to others. From that time he accepted, in a dignified manner, the part in the judicial and other proceedings of your Lordships' House, nor did he ever, that I am aware, show any feeling of resentment against those who had thought it their duty to oppose him.
We are tempted to add the remarks of Lord Cairns, made, like Lord Selborne's, in the House of Lords when Lord Westbury's death was announced:
My acquaintance with Lord Westbury was of something like thirty years' standing. I recollect that when I, yet a young man, entered the profession of the law, the late Lord Westbury was in the full blaze of his career at the Bar, and I remember, as my noble and learned friend on the woolsack does, the kindness I received from him when kindness was most valuable. I remember with gratitude and gladness the unvarying manner in which that kindness was ever after extended to me. I say this because in contemplation of the great talents of Lord Westbury, remembering the splendor of his judicial career, recollecting the power he brought to bear on the performance of his duty as a judge, and remembering also those proofs of his intellect, which all of your Lordships must bear in mind, we may be too apt to forget that kindness of heart which lay below these more splendid and attractive qualities, - a goodness of heart to which I am glad my noble and learned friend on the woolsack has alluded in terms which I gladly endorse. I could not on this melancholy occasion say less of one with whom for so many years I had relations of the closest intimacy.
REGINA v. CASTRO. — In this celebrated case we have at least the satisfaction of knowing that the prosecution has rested; but the opening of Dr. Kenealy, which occupied twenty-one days in delivery, foreshadows a defence of such length as to make it a matter of great doubt whether the case will ever reach the jury when we consider the uncertainty of human life, and the wear and tear to which the jury must be exposed. Indeed, we notice that two of the jurors, imprudently walking in the street, narrowly escaped destruction by a falling tree.
When the ejectment suit was brought to so unexpected a termination, there were many on this side of the water at least who felt sure that the claimant was the veritable Sir Roger, notwithstanding his apparent confession that he was not. The immense mass of testimony which the prosecution has introduced in the pending case has satisfied most of these that he is an impostor; and this effect is produced, not so much perhaps by the direct testimony on the point of identity, as by the light which has been thrown on the claimant's movements and his mancuvres to obtain evidence. It is to be borne in mind that in each case we have heard only one side; in each the plaintiff has introduced seemingly conclusive evidence. What effect has been produced in England we are less able to judge, because a wholesome fear of process for contempt has secured the silence of the press on the subject. But nothing in the history of this extraordinary case is more surprising than the confidence which the claimant has been able to inspire in large numbers of very respectable people, - a confidence which all the adverse testimony has failed to shake, which leads barristers to brave imprisonment for contempt, and members of parliament to cross the ocean in search of testimony, and which must indeed be great to support the immense expense of so protracted a trial.
The theory of the defence that the defendant is the victim of a conspiracy among the Jesuits, who are unwilling to have the enormous revenues of the Tichborne estate pass from their control, whatever we may think of its merits, is doubtless well calculated to divert the attention of the jury from the main issue. Indeed, there is no slight prospect that those whose doubts can only be resolved by a verdict, will be still in doubt at the close of this trial.
CROSS-EXAMINATION. — Some passages in the Tichborne case have led to a fresh discussion on the proper limits of cross-examination. We quote an article from the Law Times which illustrates the subject, and which seems not wholly unsuited to this meridian:
Some instances of cross-examination to credit have recently occurred, which must have suggested very generally that the prevailing license is apt to be grossly abused. The Pull Mall Gazette, whose representative in legal matters is Mr. Fitzjames Stephen, has handled the subject scientifically, and, we need hardly add, adduced an illustration connected with the Indian Evidence Act. The writer is afraid to mention the cases upon which his article is based; but he evidently refers to the cross-examination of Lord Bellew, who, having given evidence as to the tattoo marks in a celebrated pending trial, was asked in cross-examination whether he had ever acted dishonorably concerning another man's wife, and cruelly to his own. In another case the victim of a seduction was asked a series of most offensive questions in crossexamination, with a view to show that she had previously been unchaste. No evidence was called to support this cross-examination, and Mr. Justice Honyman condemned it in unmeasured terms. For the benefit and instruction of attorneys and counsel, let us bear what a high-class thinker, and a man of unblemished character, says on the subject : “ The client,” says the writer above-named, " tells his attorney some lie about a witness against whom he has a spite. The attorney passes it on to the counsel, and unless the counsel is a man both of experience and principle, he is but too apt to regard this, however wrongly, as an instruction which relieves him from all responsibility in the matter, and compels him to throw in the face of the witness an insult which may not only deeply wound his or her feelings, but permanently injure his or her replitation. We do not at all forget, nor are we disposed in any degree to underrate, the good feeling and principle of legal practitioners, or the influence of the bench in checking abuses of their legal powers. No lawyer in either branch of the profession, who had either the feelings of a gentleman or any sort of position or reputation to lose, would degrade himself by slandering or insulting those who must from the nature of the case submit to his insult or his slander without defence or reply. When such conduct does take place, it is sure to provoke indignant rebukes from the bench, and it is to these circumstances that we owe it that English courts of justice are not, in fact, regarded with the horror with which they assuredly would be regarded if the parties used to their utmost their legal right of raking up every incident in the past life of every witness and every lying scandal which has ever been circulated by an enemy with respect to them, and flinging the whole in their faces, in the confidence that imputations which may happen to be true will inflict moral injury on the reputation of the witness, and that, even if the imputation is utterly false, some of the dirt can hardly fail to stick.” We hope the passages which we have italicised will be duly conned and remembered.