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tion, which any one can tell, is given in evidence ; and when all this hearsay relates to the question, it would be bad enough to let it be heard unsifted by the jury; but still more preposterous is it, if unconnected with the inquiry, to suffer its introduction. If a professional judge alone had to decide, there would be some risk of his mind being distracted and biased by the prejudice created were the matter laid before him. But where a jury of wholly inexperienced persons are to decide, even let the presiding judge take ever so much pains to warn them against the impression made by the introduction of hearsay statements, or statements beside the question, there is almost a certainty of undue effect being produced on their minds. Where the result is the conviction of a person not guilty, the court can set that right, so that the innocent shall not suffer; but where an acquittal of the guilty is secured by their improper introduction, the evil is without remedy.
The requiring a jury to give their opinion upon circumstances of aggravation or extenuation, is certainly a fruitful source of the evil complained of. If it be said that these circumstances may be proved or disproved by conflicting evidence, and that on this the jury should decide; we must recollect that, unless the law has declared the circumstances as affecting the nature of the offence, the leaving them to be considered by the jury is really leaving in their hands the punishment to be awarded. But is it not far better to leave any extenuating circumstance to the consideration of the judge, who, if it is not on all hands admitted to exist in the case, may ask the jury in a conflict of evidence to assist him with their opinion? One course is to let the jury recommend mercy, and there can be no reason to doubt of this being sufficient. The greatest absurdities are caused by the French practice, even where it does not interfere with the decision of the cause. Circumstances are found to be extenuating which are manifestly indifferent-nay, not rarely, which are of aggravation. Thus, a young woman being tried for the murder of her father, the jury found it an extenuation of the parricide,
VOL. VIII. NO. XVI,
that she had put her father out of the way because he opposed her marriage with the man who proved her accomplice !
We have on the present, as on many former occasions, respectfully but earnestly recommended to our illustrious neighbours the adoption of some rules like our own, for confining the charge to a concise statement of the offence according to the law, and excluding from the inquiry all hearsay evidence, and all matters, however proved, which do not touch the question. Very far indeed are we from holding up our system as free from defects--nay, as incapable of improvement by borrowing some part of theirs. Their examination of the prisoner by the judge, we hold to have the same effect of defeating the ends of justice which the barbarous and now happily exploded practice of torture had ; we regard it as a species of torture, which may obtain confession or half confession from a person of weak nerves or imperfect understanding, and which to a determined and resolute person can only be the cause of uneasiness, without the least tendency to elicit the truth. But we can see no reason whatever for refusing the extension of Lord Brougham's most salutary act to criminal cases, when we know what an important reform it has produced in our civil procedure; that is, allowing a defendant to be heard if he is willing to undergo cross-examination, though here we should be for confining that cross-examination to the counsel for the prosecution, and not run the risk of the French practice being introduced, which gives the judge this power. The protection of witnesses in all cases, civil as well as criminal, from all self-crimination, we conceive also to be against every principle, and that here we may well take a leaf out of our neighbour's book. Another thing in which the French and the Scotch criminal procedure is better than our own, and a matter of some importance, is the requiring a list of the witnesses for the prosecution to be served upon the prisoner, leaving it always in the court's power to postpone the trial on account of evidence very recently obtained.
The French procedure gives persons acquitted considerable facilities of obtaining damages from prosecutors, or from persons who have, by information to the autho
rities, given rise to the prosecution. No redress, however, is given where the authorities have acted upon their own information, acquired in their official capacity.- Code Crim., c. iv. sec. 2.
If it were required to show how little we regard our juries as perfect, any more than our procedure, we might refer to such cases as have very recently occurred; as, for example, when eleven of the twelve jurymen had so entirely made up their minds to convict before hearing the judge's summing up, in a case of conflicting testimony of scientific men, and consequently a case peculiarly requiring the assistance and direction of the judge. Here, however, the most reprehensible conduct of the prisoner, by his own admission, had so entirely impressed the jury with a belief of his guilt, that they readily convicted him of murder, because he did not deny having committed bigamy. It appeared from what followed, that the learned judge's summing up would only have confirmed their impression, though upon more solid grounds.
Notes of Recent Leading Cases.
COMMON LAW. 1. SOLOMON v. THE VINTNERS' COMPANY (4 H. and N., 585 ; 28 L. J. Esch.,
370.) 2. BONOMI v. BACKHOUSE (27 L. J. Q. B., 378; in Error, 28 L. J. Q. B.,
The Right to the Support of Land and Buildings_Times when Right of
The case of Solomon v. The Vintners' Company, is the latest of a very large class of cases, in which questions have arisen respecting the rights which an owner of lands or buildings has to their lateral or vertical support, by adjoining or neighbouring lands or buildings, or by the underlying strata belonging to another owner. The cases comprised in the class to which we refer, treat of the nature of these rights, the mode of acquiring them, and the extent to which they may be qualified or relinquished by mutual agreement between the respective owners, or by other circumstances. To these cases we shall confine our attention in the present Number, reserving for our next Number the consideration of another class of cases, of which Bonomi v. Backhouse may be taken as the type ; and in which disputes have arisen respecting the time at which the right of action accrues for an infringement of the rights in question.
The right of an owner of land to the lateral support of its surface in its natural state by adjoining land, appears to have been recognised—though not very decidedly-in the early case of Wilde v. Minsterley, in the report of which, in Rolle's Abridgment (vol. ii. p. 564, Trespass—Justification, pl. 1), the following passage occurs :-“ Semble que home que al terre prochein adjoynant al mon terre ne poet foder son terre tum prope mon terre que per ceo mon terre alera en son pit; et pur ceo si l'action ust estre port pur ceo, ceo giseroit.” Lord Tenterdeu, in Wyatt v. Harrison (3 B. Ad., 871), was not more decisive on the point; but he observed that "it may be true that, if my land adjoins that of another, and I have not by building increased the weight upon my soil, and my neighbour digs in his land so as to occasion mine to fall, he may be liable to an action.” These cases, however have always been treated as authorities on this point; and ulti
mately it was laid down by Lord Campbell, in delivering the juilgment of the court in Humphries v. Brogden (12 Q. B., 739), that the right in question was a right of property passing with the soil.
Iu Gale on Easements (1st. ed., p. 216), it was suggested that as far as the mere support to the soil is concerned, such support must have been afforded as long as the land itself has been in existence, and it would seem in all those cases, at least in which the owner of land has not by buildings or otherwise increased the lateral pressure upon the adjoining soil, that he has acquired by such ancient enjoyment a right to the support of it, rather as a right of property, than as an easement, as being necessarily and naturally attached to the soil.” Lord Campbell, although using the term," right of property” in the passage we have quoted from his judgment, yet throughout Humphries v. Brogden, and also in his ju-Igment in Rowbotham v. Wilson (6 E. & B., 593, 25 L. J. Q. B., 362), treated this right as an “easement;" but, in the last-mentioned case in error (8 E. & B., 123, 27 L. J. Q. B. 61), the judges appear to have agreed that it was not an easement, or in the nature of an easement, but a natural right of the same character as the right to flowing water. In Solomon v. The Vintners' Company, and in Bonomi v. Backhouse, this point was on the authority of Rowbotham v. Wilson in error taken to be well settled.
The right to the vertical support of the surface of land in its natural state, is, also, like that to lateral support, a natural right. In the case of The Earl of Lonsdale v. Littledale (2 H. Bl. 267) in which a question arose as to such vertical support, the declaration contained no express allegation of the right, and it is supposed that the omission could not have been important, but that the right must have been deemed one to be recognised as a matter of course by the Court, otherwise such omission would have been relied on, rather than the objection that a peer of parliament was not liable to be sued in the Court of King's Bench by bill.
The point was fully discussed and finally settled in Humphries v. Brogden. In that case the plaintiff was possessed of certain closes, and a coal company, represented by the defendant, their secretary, were lessees under the Bishop of Durham of the coalmines under the closes; but there was no further evidence of the title or tenure of the closes or mines. Here, also, the declaration contained no allegation that the plaintiff was entitled to have his closes supported by the underlying minerals, and it was contended that the declaration was on that ground defective. But the court
See Humphries v. Brogden, 12 Q. B. 742.