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denying a fact on which he had had no experience. Such an analysis was in every respect necessary, not merely for the sake of public justice; but, if the claim for damages were well-founded, for the interest of the client who retained him. In his evidence he stated that he had analysed the slag of the district, and he found it to contain 36 per cent. of carbonate of lead, the compound which he charged the defendant with diffusing over the plaintiff's grounds. This same slag was plainly visible in the plaintiff's fields, and the result of an analysis might have been unfortunate for his client's claim. Supposing, however, that he had analysed the mould of the field and found no lead, it would have been a strong point in favour of his client. He also stated in his evidence that he had examined the waters of the plaintiff's pond and brook, and found no lead dissolved in them ; but he did not examine the sediment, although he very well knew that cattle do not drink filtered water, and that a fine lead sediment diffused through water may be just as poisonous to cattle as lead in a state of solution. The result of this analysis would have probably been highly inconvenient to the plaintiff's interests. In reference to the examination of three or four dead animals, he stated that he had found no lead in the liver! He believed they were poisoned in dry weather by drawing the lead dust through their nostrils into the lungs while pasturing, and in wet weather the lead would pass with the food into the stomach! He did not, however, find any powder or dust in the lungs. He confined his analysis to an examination of the outside of the plants only; he did not examine the tissues of the grass, as acids would act upon and destroy them. He believed that the lead was on the outside of the grass, and had been there deposited from the defendant's fue" (P. 511).
The above case is interesting in another particular, which the author, we believe, has elsewhere ingeniously suggested. The explanation of the phenomenon seems to solve an ancient mystery in a satisfactory manner. The effects of leaden herbage on cattle are such as the witches of old were believed to produce by incantation. Cattle withered away and perished ; cows gave no
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.
We 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 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?
ART. XI.—THE DIVORCE COURT.
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, à 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 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