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milk, and goats and sheep were victims of untimely births. These mysterious events occurred in one field and not in another. The old woman, whose evil eyes had rested on the unfortunate cattle, or whose black cat was known to steal wickedly over the impregnated pasture adjoining her cottage, was accordingly, under the sanction of the church, and with the approbation of the bench, and by the authority of the civil power, pricked with pins, drowned, or burnt, as the case may be.
We do not burn witches now. What the processes were by which we consented to abolish this penalty, applicable chiefly to the aged and infirm, a narrow examination of history would enable us to say. But history, if we were to speculate thereon in analogy with our own times and contemporary reforms, we should assume this alteration of the law occurred thus:—The few who had the power of independent thought, and began to disbelieve in witchcraft, were at first suspected of irreligion, disbelief in revelation, and generally accused of heresy and wicked presumption. - The influence of the few then extended to a larger body of the public; by various stages the cabinets followed, at first with hesitation, afterwards more confidently; eventually the clerical body, having quoted scripture in support of the portion of their cherished creed till they could quote no longer, surrendered it as untenable, and the spiritual peers thereupon were induced, with many a misgiving and saddened anticipation of the future, to oppose no more, and witches were no longer burned, though the ignorant still held with the doubts of the aged orthodox and learned men who thus yielded their ancient opinions. The “Catholic Emancipation,” the Jew Bill, marriage with a deceased wife’s sister, and the history of other legislatorial doings, will be found to afford parallels to this our contribution to parliamentary history.
\Ve have said witches are not sent to the stake for exercising their supernatural powers either on animals or human beings. Progress of knowledge has saved them; and we now refer to scientific men to account for certain unexpected events. Strict education, carefully registered observation, and the wondrous discoveries of the 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 afiiiir 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 imbihition 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?
N 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, 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 reasons to question the soundness of the rules to which he has subjected
1 These returns are now ready.
the practice of the court; but his great talents and exemplary D
love of justice are beyond all doubt, and what we are about to ofi'er 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 tolinterfering 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 casesfacts 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 partiessuggestions 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 heads; 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 paramour. 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 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 afew 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 petitiouer’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.