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have feared that after Sir Robert Finlay's Act came into force in 1890, the Court of Appeal would be overwhelmed with applications for new trials. To those who practised before him, he seemed as if he had made up his mind that new trials should not be granted on the ground of misdirection, verdict against evidence, or excessive damages. Unless the appellant could make out a strong case for entering judgment notwithstanding the verdict, his appeal was almost hopeless, and in a great many cases his appeal was never heard in the judicial sense of the term.
The Court of Appeal has no jurisdiction which requires to be exercised with greater care and greater patience than that of granting or refusing applications for new trials. The cases may be few, but there are certainly some where the verdict of the jury, owing to prejudice or impatience, is utterly wrong, and where the judgment following the verdict inflicts great injustice. It is often difficult to point out from the note of the evidence where exactly the error began which led to the erroneous result, and to follow its course through a long trial. A true judicial opinion in these applications can only be formed when the whole of the facts and the whole course of the trial have been brought before the judges in the Court of Appeal. This examination requires time and patience. Lord Esher, as President of the first Court of Appeal, sacrificed one of the most useful, if not the most useful, branch of its jurisdiction, and too often sent away from his court counsel, solicitor, and litigant, all feeling that an unjust decision had been allowed to stand, that the application had not been properly heard or understood, and that an appeal, which should have been weighed and considered, had been summarily or contemptuously dismissed.
The contrast between this method of dealing with new trials and the method soon after adopted by Lord Justice A. L. Smith, Lord Justice Chitty, and Lord Justice Collins, is too fresh in the memory of the profession to require further
comment. It is to be hoped that the danger of a return to Lord Esher's method has finally passed away. But, notwithstanding this serious defect, Lord Esher did an enormous amount of good work as a judge, and some useful work as a legislator. He has left behind him many judgments which strikingly record his powerful reasoning, his knowledge of business, his grasp of commercial law, and his great common sense. The judgments do not set forth legal principles with the clearness of thought or lucidity of expression which characterize the judgments of Lord Cairns, Lord Justice James, or Lord Bowen, but they will long remain as leading authorities on some important commercial questions.
One great service he rendered to the profession in procuring the passing of the Act of 1888, under which was established the admirable tribunal commonly known as “The Disciplinary Committee” of the Incorporated Law Society.
His best friends and his warmest admirers must admit that on the Bench he was occasionally rude and sometimes undignified. But, as a rule, his good humour was unfailing, and no one more heartily appreciated a joke, even if the joke was against himself. In a case respecting a fraudulent prospectus, the counsel before him was arguing that it had deceived a large number of persons, including some country clergymen, who had been induced to apply for shares in a worthless company. Lord Esher was unconvinced and incredulous, and said, “Now, just imagine for a moment that I am a country curate." He laughed as heartily as his brethren and the Bar when the counsel quietly replied, “My lord, my imagination is limited."
The late Master of the Rolls had many of the attributes of a great judge. He had a healthy hatred of dishonesty, meanness, and fraud. He was keenly anxious to see that justice was done, and he spared no pains to do justice to the best of his ability. Some of the most enduring and most pleasant memories of him will be those of men, some now on
the Bench, and some in the front rank of the Bar, who gratefully recall some early effort in advocacy when their first success was secured by his help and encouragement. In his farewell speech to the Bar, he expressed, as he had frequently done before, his sympathy with the Bar, and his desire to be still considered a member of the Bar. Those who, like the writer, have applied to him for advice or counsel in cases of professional difficulty, or for assistance in cases of professional distress, know how kindly and shrewdly his advice was given, and how generously he contributed in cases of genuine misfortune. His sympathy and charity were as wide as the profession, although he responded more readily and more generously to the appeal made by a member of his old circuit. These pages will probably be read by some members of the Bar who, like the writer, knew Lord Esher only as a judge, but knew him to be just, manly, and generous, and, in the recollection of his many kind and generous acts, they will forget the occasional petulance and brusqueness which slightly disfigured a great and useful career.
IV.-PRISONS IN ENGLAND AND AMERICA:
N the May number of the Law Magasine last year, in a
paper entitled “Prison Reform,” I discussed the report of the Departmental Committee on Prisons as well as the main provisions of the measure founded upon it which subsequently became law under the title of the Prison Act, 1898. I then described the report of the Committee as marking " the commencement of a new era in the history of the penal system of England.” As there can be little doubt that the impulse to reform was, to a large extent, derived from
America, which also furnished the experiments upon which many of the suggestions of the Committee were based, I propose in the present paper to compare and to contrast the treatment of crime in that country with our own system, believing as I do that in this department of social reform we have still very much to learn from our kinsfolk across the Atlantic.
Before I proceed further, however, it may be well to guard against a misapprehension which might possibly arise. The reader must not suppose that there is a uniform system in the treatment of crime prevalent throughout the United States of America. The very reverse is the fact. Crime in the United States and its treatment are not matters of federal concern, but they fall within the province of the State Legislatures. Thus we find that no two States have adopted precisely the same system, and some States stand as widely apart from one another in their practice as the poles. It would obviously be impracticable in a paper of this kind, as well as inconsistent with its purpose, to enter into a detailed description of the system which prevails in each individual State. But a broad line of demarcation may be drawn between the North and the South. In the Southern States the system of convict-camps and chaingangs still extensively prevails, and a brief description of this system must be given.
There are comparatively few prison buildings in the South, and a practice has long prevailed of "farming-out” the convicts to private speculators and contractors, for labour in the open air, chiefly on plantations, or in the construction of railways and canals, or the working of mines. The contractors pay so much a head for the labour of the convicts, who actually become a source at once of considerable revenue to the State, and of large profits to individuals. It is said that some prominent politicians and legislators at Washington have made fortunes as convict-contractors.
The gangs include women and children. In one of the better class of chain-gangs in North Carolina were found fifty-five prisoners, among whom were three women and one boy of eleven years of age : and these men, women, and the boy all slept under a tent seventy feet by twenty-four. It is obvious that the grossest evils are inseparable from such a system. Women and girls are habitually subjected to the grossest indecencies and exposures. The prisoners are in many cases "sweated” to death by excessive labour, wretched food, brutal violence, and the grossest neglect of sanitary requirements. The mortality is enormous.
Whereas in English convict prisons the death-rate is under 7 per 1000 per annum, it ranges in these camps from 75 to over 200 per 1000.
The system has recently been defended by the Governor of Alabama upon the curious ground (which is, I believe, directly contrary to the fact) that the negroes are “a race difficult to train to skilled labour.” However that may be, as a matter of fact the practice is not confined to negroes, although, no doubt, they form the bulk of most chain-gangs. The authorities of Florida lately sold by auction 430 prisoners, young and old, black and white, to work in the phosphate mines. But in any case the system is a foul blot on the Christianity and civilization of the South, and with a feeling of repugnance and disgust one gladly turns to the Northern States.
But here again a broad distinction has to be drawn : namely, between the jails and the prisons. The former, in which petty offenders and prisoners awaiting trial are confined, are under the control of the local authorities representing the counties and the cities : whereas the latter, in which persons convicted of serious crime are imprisoned, are under the direct control of the State. It is said that the jails are “the dark side of the prison system” of the Northern States: and certainly if the local jail of the City of New York, called “The Tombs,” is a fair sample, they