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the Incorporated Law Society; the second was proposed by Lord Brougham and adopted by the Chancellor; the third was proposed by the Chancellor himself. It would be difficult to avoid the inference, from the proceedings which were had in all these matters, that party tactics had a great share in them. They were left to the Attorney-general in the House of Commons, and as it was plain that the government gave him a feeble support, the temptation appears to have been irresistible of throwing them out, and thus damaging the ministry. Upon the proposals for improving the divorce procedure, there was also a desire shown of courting popular favour, by a pretence of keeping down the costs of the procedure, and by a falsely alleged jealousy of checking the publicity of trials.
The proposal to make the Attorney-general a party in all causes of divorce a vinculo, has been so often discussed in this journal, that we need not resume the argument now, except to state that not one of the reasons on which our approval of the plan was founded, received any answer. It might fail to prevent collusion, so might any protection given to the court; but no one pretended that the court now has even the chance of being put on its guard in cases of the grossest description, and no one denies that it is without those means of defence which the House of Lords, to whose jurisdiction it succeeds, possessed, and which in many instances proved effectual. This provision will evidently be again brought forward, and as it has the entire concurrence of the judges of court, as well as of those law lords who have so long taken part in the divorce jurisdiction of the House, it will in all probability be adopted.
The proposition to give the court a power of hearing certain causes with the exclusion of the public, is only an adoption of the practice always used in the consistorial courts, upon suits of nullity of marriage on the ground of impotence. That it ought to be the practice of the Divorce Court, which has succeeded to the jurisdiction of the ecclesiastical tribunals, there really can be no doubt, nor that it should be extended to all cases where the details are of a nature to outrage public decency. The Court of Chancery constantly sits in private by consent of parties. If it be said that the Divorce Court ought to have no power of excluding the public without the like consent, the answer is obvious. Many suits are brought with the hardly concealed object of making the scandals referred to public; many to extort 'money by that threat; and, even when there is no such motive in operation, it is manifest that, when parties are in great contention, the desire of one to have a private hearing of the cause will, in many instances, be a sufficient reason for the other to desire the admission of the public. As for the reasons given against the proposal, they appear to have been singularly futile. It was said the publicity of all judicial process would thus be infringed upon, and rendered precarious, as if the distinct restriction of the exclusion to cases of one class were not a suffi. cient guard against the apprehended encroachment. It was said, we cannot say argued, that favour might be shown to certain parties; but this would be a reason for not confiding any of the high powers of the court to the judges. Surely their responsibility to parliament and the country, would be sufficient security against any such partiality as was fancied.
There was a good deal of declamation on the sacred principle, that justice ought always to be administered in public. It might be presumed that Lord Campbell and Lord Brougham, who strongly supported the proposed provisions, had never been averse to the admission of this principle; perhaps we might go farther and observe, that it must be a conviction of the necessity of the case which could reconcile them to make any exception to the rule. As for the topic dwelt upon in deference to the press, that its conductors might be trusted, no doubt some of them may, perhaps most of them; but unhappily there are those who, merely because the greater number of papers abstain from publishing the offensive details, would, on that account, seek undue advantage by giving them. Besides, the actual presence of the audience ensures the corrupting effects being produced, at least upon many persons, without the possibility of those suppressions which, we are told, the discretion of the press would make.
The loss of the bill, framed and promoted by the Incorporated Law Society, much to their credit, for promoting the education of solicitors, is to be regretted--we should rather say its postponement than its loss; because there can be no doubt of it being reintroduced and passed. Nothing can be more reasonable than that deduction from the time required to serve in a solicitor's or attorney's office should be allowed, on the conditions contained in the bill. This was a most important provision of the rejected bill; but there were others material to the encouragement of professional studies, and it was deserving of commendation for judiciously not attempting too much.
ART. XII.-THE TRIAL OF THOMAS SMETHURST.
The Queen v. Thomas Smethurst, Aug. 15th and Aug. 18th, 1859, Central Criminal Court. Minutes of Evidence printed from the Shorthand Notes of Messrs. BARNETT and BUCKLER. London: Butterworths, 1859.
WE E do not purpose to analyze, in this article, the entire
evidence given on Smethurst's trial, nor to investigate minutely the proceedings in this remarkable poison case. Our readers will have heard and read, we fear, too much already about this frightful crime (as the jury declared it to be), or terrible blunder of the tribunal before whom Smethurst was convicted, as the Home Office has found it. It is not the least peculiar feature of this case, that whereas on the trial in the Central Criminal -Court, the jurymen, and, we have good grounds for believing, all others, with very unimportant exceptions, who were present and heard the evidence, were satisfied of the guilt of the accused; yet after the verdict was delivered, some of those who did not hear the evidence, but who, we must presume, had the opportunity of considering much of the value of which we have not the privilege of judging, have come to the conclusion that the verdict was
VOL. VIII, NO, XV.
wrong. Dr. Smethurst has, in fact, been tried a second timenot in open court—and has been acquitted. Unsatisfactory as this state of facts is, it would be unfair to attack the authorities to whom the issue was referred for re-consideration ; because, first, we do not know what were the grounds submitted to their judgment; and next, under any circumstances, we have no right to assume that the onerous and painful duty imposed upon them has not been properly and conscientiously performed.
It is said, we know, that public opinion, as expressed by the newspaper press, required the reversal of the verdict, and that in obedience thereto the Home Office has acted. We are not, however, justified in believing that this was the motive for reprieving Smethurst; and we should further deny, absolutely, that “public opinion” (endeavouring to give as accurate a definition as we can to this vague term) has pronounced upon the subject at all. It is true that heaps of anonymous letters were printed. Some appeared with names appended to them of which the "public" knew nothing, and others with names to which the public attached no value, and there has been no little editorial comment vouchsafed ; but we trust it will be a long time before the government of a civilized country will listen to, and act upon, such expressions of "public opinion” as these. There would be no guarantee for the due administration of justice, if once the dictation of the press were submitted to in such matters. The uses of newspapers are doubtless most important in the present day; but were their decisions thus to be regarded, we should soon find that the irresponsibility of editors and correspondents, and the opportunity which would thus be afforded for undue influences to operate, varying, as the press does, in its different branches, and in character and repute, would subjugate the executive of this country to an intolerable tyranny.
The cheap press of London has indeed distinguished itself greatly on this occasion, and forcibly illustrates the danger to which we are referring. Under the cover of saving the life of the miscreant who now lies in jail awaiting his uncertain fate, or under the pretence of expounding scientific truth, sundry medical
men have been vigorously advertising themselves in that part of the newspapers allotted to correspondents. The professional character of men like Dr. Todd and Dr. Taylor has been disgracefully assailed ; and personalities of a gross description, dishonesty, and misrepresentation of fact, have been freely indulged in. Some of the enthusiastic chemists and ingenuous philanthropists, indeed, have been carried so far that we daily expected them to propose a “Smethurst testimonial," or at least to call an "indignation meeting,” in which a vote of censure should be passed upon the Chief Baron, Serjeant Ballantine, and Dr. Taylor.
The readers of the brilliant letters of “Justus,” “Lex,” “Medicus," and "Veritas,” are left in happy ignorance whether they may not all have been written by worthies, who, however they may aspire to appear in print, may be totally ignorant of equity, jurisprudence, or medicine. Party spirit, personal spleen, and professional jealousies, all find vent in this correspondence.” It would be not a little instructive if one could, on some occasions, look behind the mask of the indignant but anonymous moralist letter-writer, or of the profound, disinterested, and scientific Authority. We might occasionally find, peradventure, a dear relative of the party whose cause is so warmly advocated, or a disappointed rival of the witness whose evidence is condemned. Alas, for human nature! Men love and hate, embrace and assault, divide and conspire all over the world, and over all time, for nearly the same
It is the accident of the circumstances which surround them, which regulates the mode in which they express their angry nature and bad passions. In some states of society the Bowie knife, assassin's bullet, duellist's pistol, and poisoned cup; in others, the courts of law, and the like inventions of civilization, are the common weapons in use. We trust that the present stage in English society is not that when the newspaper, by usurpation, is to exert directly and injuriously too extensive a control.
We do not know whether it be perfectly true, that “no man can be written down except by himself,” but it is a rule which generally holds good; and we rejoice that the respectable men who have been so freely aspersed, have not been tempted to enter