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Criminal Law of England,” p. I6r), “and is probably a relic ofthe old inquisitorial theory of criminal justice, under which the prisoner had no counsel and could not have his witnesses sworn. It was natural enough that the person who conducted such an inquiry should sum up the results of it.” There is an old-world air about it now that makes it look sadly out of place in modern Courts, and, as with other “relics,” it would be more seemly to consign it to some place set apart for the custody of such objects, where the curious could inspect it in safety far from the madding crowd.
That the Sovereign should have her privileges—that the Attorney-General should be official head of the Bar, and should, in the words of the royal mandate of 1814, have pre-audience over even the “ ancientest of the serjeants ”— we readily admit. But that it should now be thought essential for the security of the Queen’s interests or those of the State to make use of means that are deemed unfair among her subjects, is no very flattering tribute to the Englishman’s sense of fairness, and to a dispassionate onlooker very like a denial of the maxim that the law is no respecter of persons.
“The great Lord Mansfield,” to whom the improvements in the trial of causes at Nisi Prius are due, and by whom the system now followed was matured, is said, by Lord Campbell, to have “hesitated long about making the right to reply depend upon the giving of evidence by the defendant, as thereby, to avoid a reply, important evidence is sometimes kept back, and inconvenience follows from the defendant's
.counsel having the privilege of speaking without any answer
from his antagonist ; but his masterly superintendence and great authority kept exerything straight, and, while he presided, trial by Jury in civil cases, which in theory appears so absurd, and which answers so badly in Scotland and other countries in which it is not understood, seemed a perfect invention for the administration of justice ” (Vida Life
of Lord Mansfield, in “Campbell’s Lives of the Chief Justices,” vol. I., p. 401).
The equitable nature of the practice thus settled by him, after so much doubt and deliberation, and finally embodied in the Act of 1854, has been thoroughly endorsed by subsequent experience, and has received its best and most enduring tribute in the efforts of modern legislation to extend it to our criminal courts.
As the practice established in ordinary trials, by which counsel for the prosecution is precluded from addressing the Jury in reply, when the defendant calls no witnesses, or no new matter is introduced on his behalf, “has been long thought to afford the best security against unfairness; ” “ it must,” in the words of Horne, “ be supposed the best method of obtaining justice.” In dealing out that impartial justice which the law and constitution have in view, it can hardly be intended now-a-days, that, “ greater means are to be allowed to the King for obtaining a conviction than are allowed to any other person” (20 State Trials, 652). The tendency of modern legislation has been to render the practice in criminal trials as nearly as possible akin to that at Nisi Prius, in which the Crown can claim no privilege of a general reply, and the object and language of the Act of 1865 seem plainly to have extinguished it. If the rule as to the reply in ordinary cases be the fair one, the privilege of the Attorney-General and his representatives is manifestly unfair, and its unfairness is most likely to manifest itself in those cases in which it is least desirable that any such suspicion should exist—when presumably the ablest and most experienced practitioner in the profession is, in a murder, or conspiracy, or other important case, pitted against,it may be, one of the mostjunior members of the Bar. Such are not extreme cases, but of common occurrence, and with a new Government department under the Director of Public Prosecutions, are likely to become even more
frequent, and in these the inequality of the contest is painfully apparent. That its existence is now felt to be a grievance, is undoubted, and its continuance can hardly be defended either on grounds of public policy or necessity; and now that we are to have a Criminal Code, it would be easy to remove all doubt on the matter, by formally abolishing this last vestige of privilege, and adopting one uniform rule on the subject, in accordance with what “reason approved by long experience” has established, as affording “the best security against unfairness in ordinary trials.” Joan KINGHORN.
II.—THE STATUTE OF USES AND THE PRESENT SYSTEM OF CONVEYANCING: OUGHT THE STATUTE TO BE REPEALED?
T the time of the passing of the Statute of Uses, in
the twenty-seventh year of Henry VIII. (1535), there
were two species of ownership of land recognised by
English law, namely, the Legal ‘ownership and the
Equitable ownership, which latter was commonly termed the Use.
The essential and original difference between the Legal ownership and the Equitable ownership or Use lay in the forum where the right was adjudged. Legal ownership was ownership according to the antient common law, and was alone recognised and enforced by the antient Courts of Law. Equitable ownership was ownership recognised in Equity only, and was enforced by the Court of Chancery only, and not by the antient Courts of Law.- Hence, Lord Bacon says :—“ Usus et Status potius differunt secundum rationem fori quam secundum naturam rei." (See Lord Bacon’s Reading on the Statute of Uses, p, 5. and Mr. Spence’s Equitable ]urisdiction,vol. 2, p. 875).
This distinction of ownership into Legal ownership and Equitable ownership corresponds to the distinction of Dominium into Dominimn ex jure Quiritimn and In bonis habere, which existed in Roman law prior to the Constitution of justinian, De Domino ex jnre Quiritium tollc-ndo, (Codex Just., 7, 25) ; although, in the Romanjurisprudence, both species of rights were adjudicated upon in the same forum. Moreover, the origin of the distinction between Legal ownership and Equitable ownership is similar to the origin of the distinction between Dominium ex jure Quiritium and In bonis habere; in each case the distinction originated in the desire to evade the technicalities and hardships of the older jus civile, or common law. In England the distinction is said to have been introduced by the ecclesiastics for the purpose of defeating the Statutes of Mortmain; a purpose which was itself defeated by the Statute 15 Rich. II., c. 5. However this may be, the distinction, once recognised, was extensively utilised by all classes of land-owners for the purpose of evading the hardships which were the fruits of the feudal tenures; for the Use or Equitable ownership was not the subject of tenure, and was not subject to those rules, the fruits of feudal doctrines, which regulated and bound the legal ownership until long after the enactment of the Statute of Uses, and in many respects still regulate it.
In England the Equitable ownership seems originally to have been always brought into existence, as distinct from the Legal ownership, through the medium of a trust or confidence; that is, through the medium of a formal common law conveyance to one person upon trust or in confidence that he would permit another to enjoy the land. Such a transaction probably had its origin in the Roman fideicomniissum ; and thus the Equitable ownership of
land, as recognised in the English jurisprudence, though exactly analogous to the Roman In bonis habere, is historically connected with the Roman fideicommissum.
A conveyance of land to one person on trust or in confidence that he would permit another to enjoy it originally created no legal obligation. Trusts, like fideicmmnissa, in their origin, nullo vinculo juris, sed tantum /mdore eorum qui rogabantur, continebantur (Institutes, lib. 2, tit. 23, l. 1). The trust or confidence was not recognised or enforced at law on the ground that it was repugnant to the conveyance. The Equitable jurisdiction of the Chancellor was either not yet in existence, or did not yet recognise and enforce trusts. The trust or confidence therefore, in its origin created merely a moral obligation. But in the latter part of the fourteenth or the early part of the fifteenth century, the Chancellor took upon himself to enforce trusts or confidences. The ground of his interference was the confidence reposed, and the breach of faith committed. Hence it followed, that the trust was enforced only against the person to whom the conveyance was made in confidence; for it was in him only that confidence was reposed, and by him only that a breach of faith could be committed. The trust was not, therefore, at the period of which we are now speaking, enforced against the heir of a person to whom a conveyance was made in confidence, nor against his alienee (Year Books, 8 Edw. IV., 6; 22 Edw. IV., 6). At this period, therefore, the right of the person for whose benefit the trust was created was not in the nature of ownership, or jus in rem, but was obligation, or jus in jwrsonam, merely (See Spence’s Equitable Jurisdiction, vol. 2, p. 875).
It was, however, soon held that the right created by the trust or confidence originally reposed might be enforced
against other persons than him in whom the confidence was
reposed, namely, against his heir, and also against alienees