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laboratory, are called in aid of justice, civil and criminal. On professional men, therefore, rests the deepest responsibility to clear the innocent from suspicion, and to bring the execution of judgment on the guilty. But it were better to burn witches and drown sorcerers on the ancient grounds of superstition, than to protect the murderer under the pretext of scientific evidence, or to endanger the innocent by wicked neglect or presumptuous ignorance. With an instance of the latter, extracted from Dr. Taylor's excellent treatise, we close our remarks on the subject :

“A lady, in perfect health, while supping with her husband and family, complained, after having taken two or three mouthfuls

, of severe pain in the region of the heart. She fell back in her chair, and died instantly. The parties not having lived on the best terms, the husband was openly accused of having been accessary to the poisoning of his wife-a circumstance which was rendered still more probable in the opinion of his neighbours, by the fact that his wife had lately made a holographic will in his favour. One of his servants, with whom he was said to live in adultery, was arrested, and a paper containing a white powder was found in her possession. The husband endeavoured to compromise the affair by offering to give up the will. Here, then, were strong moral presumptions of death from poisoning. Three surgeons (experts !) were appointed to examine the body. They opened the abdomen, and observing some green spots in the stomach (produced, as it afterwards appeared, by imbibition from the gall-bladder), pronounced an opinion that the organ was in a gangrenous state from the effects of some corrosive poison. Some doubt arising on the correctness of this view, four other surgeons were directed to re-examine the body. They found that the stomach had not even been opened, and that its mucous membrane, as well as that of the intestines, was perfectly healthy! It contained a small quantity of undigested food, which was free from any trace of poison. The deceased had died from natural causes. The white powder found in the possession of the servant was nothing more than white sugar. Had the usual effects of poisons been attended to by the parties who were first called to give


evidence in this case, it is obvious that no charge of poisoning could have been made with any shadow of probability” (P. 158).

May not this case, besides its value in demonstrating the danger of loose professional evidence, also suggest to the candid mind the necessity of vigorous cross-examination of experts, when they appear in the witness-box, holding in their hands the life of an unfortunate prisoner?



our last number we referred to Lord Brougham's statement,

laid before the Law Amendment Society, of the great imperfection in the proceedings of this very important tribunal, especially to its want of all security against fraud and collusion. He has since moved for returns in the House of Lords, and given notice of his intention to bring the whole subject of that jurisdiction before their lordships soon after Easter. It is to be presumed that these returns? will be in the hands of the profession and the public before the matter is again brought forward ; but the subject is of such moment, and so universally interesting to the community at large as well as to lawyers, that we must enter somewhat into the consideration of it now, because, before another number can appear, the question will in all probability have been discussed in parliament.

It must be premised that, when the jurisdiction was vested in the court which had formerly been exercised substantially by the House of Lords, the confident belief was expressed by all friends of the measure, that, as far as possible, the court should guard itself against the risk both of deception and of rashness, and follow, as nearly as might be, the course of the House of Lords in passing divorce bills, supposed to be the most likely mode of gaining this security. The greatest praise is justly to be bestowed upon the eminent judge who has presided over it,

1 These returns are now ready.


and his diligence has been equalled by his acuteness in the whole conduct of the business ; while the most perfect impartiality not only towards suitors, but towards practitioners, a more rare judicial virtue, has uniformly distinguished him. We may have had occasion to lament his confidence in the kind of procedure to which he has all his life been accustomed; we may have to question the soundness of the rules to which he has subjected the practice of the court; but his great talents and exemplary love of justice are beyond all doubt, and what we are about to offer for consideration, rather points to an increase of his authority than any control over it, and rather to obtaining further help for his jurisdiction, than to interfering with it.

The proposal which Lord Brougham submitted to the Law Amendment Society, was for the regular attendance in all divorce cases of the attorney-general, or some one representing him; and it was believed that some check would thus be given to the frauds of parties. This rule has been adopted by the judicial committee in all cases of extension of patents; and, although less benefit has been derived from it than might have been expected, this arises from the circumstance, that all, or nearly all, the matters upon which the question of patent extension can turn, are before the court; whereas many facts may be within the knowledge of persons connected with parties in divorce cases, facts which there can be no means of laying before the court, but which the attorney-general could at once act upon when the information was communicated to him. In the House of Lords, divorces have been often prevented in consequence of suggestions made to individual peers, which led to sifting of the case, brought forward by collusion, and as it were conspiracy, of parties, suggestions which of course cannot be made to the judges of a court. The case has been put (and it is said actually to have existed unknown to the court) of the husband being induced to proceed against the wife, by the paramour offering to pay the expenses. Were the attorney-general in the cause, such a circumstance, of which proof was said to be accessible, would have been brought forward, and at once put an end to the suit. But


all the three parties, husband, wife, paramour, being in league, not a point of the real fact could reach the court.

The act (sects. 29, 30, 31) requires the court to satisfy itself, not only of the facts alleged as grounds of divorce, but that the party petitioning is not excluded from the remedy he seeks by any of the eleven bars, of which four are peremptory, as collusion, condonation, &c., and seven discretionary, as cruelty, misconduct, &c. But the want of adverse counsel, in the great majority of cases, leaves the court without the means of ascertaining how far the party comes under any of these beads; and the course of practice unfortunately established, still further tends to lull suspicion, and to shut out the light. The court requires the petition only to state the facts of the marriage and the adultery, as in a declaration at law. It is of the utmost importance that a full statement of particulars should be given--the ages of the parties, their cohabitation, the separation that may have taken place, with its circumstances, and the origin of the acquaintance with the para

The House of Lords had before it all the proceedings in the Ecclesiastical Court, and the notes of the evidence in the action for criminal conversation; and light was thus often shed on the

l; case, so as to create doubt or excite suspicion, and set the House upon making inquiry. In the Divorce Court, a divorce is said to have been more than once obtained where the wife had been married from the stews, or where the parties had never cohabited above a few weeks-not a hint of all this having reached the judges. In one case, the paramour pleaded matters of which he gave no evidence; but the plea set the court upon sifting the petitioner's case, and the divorce was refused. Had the paramour been in league with him, the same facts would have existed, but never could have been suspected, and the marriage would have been dissolved. But had the rules of the court required a full specification of circumstances, in all probability the suspicion would have arisen on the petition. In the House of Lords, the relatives of the parties are often unable to prove such good treatment as entitles the husband to his remedy. It is understood that this inquiry is not regarded as necessary in the Divorce Court. It appears to us incumbent on Lord Brougham to have a material amendment made in his “Evidence of Parties Act." That important statute has one manifest defect, in the exception of cases of adultery; and there seems no reason for retaining that exception. This improvement of our judicial procedure has had such extensive and such beneficial effects, that there is every reason for desiring its application to proceedings in divorce. The court has the power of examining the petitioner, which the House of Lords had, though seldom exercised. But if the party could tender his own evidence, it is plain that, where he declined doing 80, the court would at once have its suspicions awakened. It might also be fit that the wife and the paramour should be examined ; and, without such sifting, it is impossible to say that all the means have been taken to demonstrate the case.

One of the most unfortunate things in the proceedings of the court, is the great number of cases in which the whole matter rests upon the verdict of the jury. This is to be regretted on two grounds-first, the subject is, in many cases, partly law and partly fact, as condonation; but next, the case turning upon the verdict, and no new trial ever being granted unless the judge is dissatisfied with that verdict, the practical result is, that unless some suspicious circumstance calls the attention of the full court to the cause, a divorce is granted by a single judge with a jury, and not by the full court. It is observed by Mr. Macqueen, to whose able and learned works, both upon this particular subject and

upon the House of Lords' practice the profession is so deeply indebted, that in Scotland, no more than in France, is divorce tried by jury. When that mode of trial, in civil cases, was extended to Scotland nearly fifty years ago, the whole jurisdiction in cases of divorce was left in the hands of the judges; first of the Commissaries, or Ecclesiastical Court, and then of the Court of Ses-ion, which has succeeded to their jurisdiction. He adds that there have scarcely ever been appeals from the sentences in these cases.

It is to be regretted that the divorce court should have adopted the rules as to costs of the courts in Doctors' Commons, because some of these rules are very objectionable ; as that which enables

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