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It is said, " The proof shall be taken continuously in like manner as at jury trials in civil causes before the Court of Session in Scotland, but with power to the Lord Ordinary to adjourn the proof upon such grounds as causes set down for jury trial may according to the existing law and practice be adjourned or postponed, or on such other special grounds as to him shall appear sufficient, and under such conditions, if any, as he shall think proper.” The words following “adjourned or postponed,” were added, as was mentioned in the August number of the Journal, wbile the bill was passing through Parliament. The discretion of the Court in refusing or granting postponements of jury trial does not appear to be assisted by many positive rules ; and cannot, we should suppose, be either extended or limited by the words, " or on such other special grounds," &c.
It was perhaps superfluous, though it may be justified on the ground of providing against possible emergencies, and of deviating as little as possible from the model suggested, to authorize in section 1 the use of the three methods of taking proof allowed by the Conjugal Rights Act. With the exception of two or three cases before Lord Mackenzie soon after the passing of that Act, every consistorial proof has been taken with the aid of the short-hand 'writer; and we believe that no one anticipates that any of the other courses now made competent will be adopted in time to come either in consistorial or ordinary proofs. If they are still to be competent, it would have been well, in the two manners of writing down the evidence which are not now used in practice, to dispense with the necessity of reading it over to the witness, and having it subscribed by him. Why should this be done any more than at a jury trial ?
Section 5 empowers the Court of Session to pass Acts of Sederunt for carrying into execution the purposes of the Act, and it is to be hoped that such an Act will soon be issued. will be desirable that expense should be saved, delay prevented, and efficiency secured by a strict interpretation of the concluding portion of the first section of the Act relative to adjournments. The grounds of adjournment may probably be specified, -we should bope with more precision (as well as in better English) than in the Jury Court Act of Sederunt of 1841.
The laxity of that provision in regard to trials by jury has been prevented from working much mischief by the wisdom of the Court; but what works well enough in the Inner House may have very dif
ferent results where the same discretion is entrusted to a number of single Judges. A great variety of practice exists under the corresponding clause of the Conjugal Rights Act, which has been interpreted at some bars with considerable laxity, and also in trials before the Lord Ordinary, under the 13th and 14th Victoria, c. 36. Thus, in Hood v. Williamson, we find the Lord Justice-Clerk remarking, “I see the trial began on 26th January, and did not conclude till 4th February—that is nine days. One does not suppose that the trial was going on all that time; but there were three days on which the trial was going on, and these were not three continuous days, which was a clear violation of the Act of Parliament.” To provide against such delays is absolutely necessary, in order to follow up the admirable and stringent Act of Sederunt of last year. It is important that agents both in town and in the country with whom the preparations for the trial rest, should know that their evidence must be forthcoming at once, and that there will be no room, as in proofs on commission, for bringing up witnesses in detachments, as may be convenient for the witnesses, or as the progress of the proof seems to require additional evidence on special points. The professional man who has a proof to lead must now, as in a jury trial, take a large general view of his whole case, founded on reliable precognitions, must make up his mind at the beginning what witnesses he will adduce, and have them all in the Outer House on the day fixed. One provision an Act of Sederunt might well contain ; namely, that where the proof is allowed in the Outer House, counsel shall speak on the evidence as
as both parties have closed their proof. Half the benefit of the Act will be lost if the freshness of the impression produced by seeing and hearing the witnesses is allowed to wear away from the minds both of counsel and Judge. Besides, this continuity of procedure would save much expense in additional fees to counsel, and (where no reclaiming note is lodged), in copies of the evidence. It would also promote efficiency, by necessitating closer attendance by senior counsel. If the speeches are heard at a different diet, senior counsel will speak from the printed proof instead of their own notes, and will rarely attend at the leading of evidence, though of course they will pocket a fee all the same.
Such an Act should lay down a rule either forbidding, or providing absolutely, in Outer House cases, for taking and sealing up
the evidence of which the competency is disputed, under suitable conditions as to expenses.
It would further be very desirable to require the Lords Ordinary and the Court itself, in every judgment, to separate the facts from the law, as is done at present, under § 40 of the Judicature Act, in interlocutors of the Court on proofs taken in inferior Courts. Of course, one important reason for such separation does not exist in this case, for this Act does not enact that the judgment of the Inner House shall be final on matters of fact. But it is always well that such separation should be made. The Court of review must always exercise a certain reserve in altering the findings in fact of a judge who has himself taken the evidence and seen the witnesses; and in itself the practice conduces to perspicuity. Besides, it would greatly narrow the area of discussion in the Inner House ou reclaiming notes, and in the House of Lords on appeals, if the particular findings in fact objected to could be pointed out.
We do not say that without such an Act of Sederunt this Act cannot have a fair trial, but certainly, having regard to the wide discretion committed to Lords Ordinary, to our experience of the loose band with which they held the reins of procedure till the recent Act of Sederunt was passed, and to the excellent working of that Act, we are entitled to presume that such an Act of Sederunt would greatly strengthen the hands of the Lords Ordinary in carrying out this new Act. Its structure, our readers will gather, we do not much admire. It is one of those statutes which demonstrate the necessity of there being a department charged with the preparation and with the revision, as altered in Parliament, of all bills before they finally pass into law. Still we look
upon the Act as a great boon. No mode of ascertaining facts is arbitrarily imposed upon the country-it will be left simply to the Court and to parties, with the aid of experience, to discover the best mode. The presumption continues to be in favour of trial by jury. Where issues are settled in any case the trial may proceed of consent before the Lord Ordinary without a jury. Where issues are not adjusted, the presumption will be in favour of trial before the Lord Ordinary or an Inner House judge on the record, to which parties may ask leave to have recourse to wherever they agree in preferring it to jury trial, and which the Lord Ordinary or the Court may impose upon them where they do not consent. Least favoured of all the methods comes
proof on commission, which parties may consent to; but as to which the Court will probably exercise its veto except in very special cases. In future there is no case of disputed facts which may not be tried by jury,* and on the other hand there is none that must be so tried—that may not be tried by a Lord Ordinary ; and again, wherever proof on commission is now competent it will still be competent. The consent of parties figures largely through the Act, but is nowhere made to control the discretion of the judge to whom is left the final determination of the mode of investigation.
It was hardly to be expected that so tempting an opportunity as the question of infanticide should have been avoided by the social reformers of Manchester. But it was not unreasonable, in a subject pregnant with such important interests to the prosperity, and almost the life of the community, to look for something more than the morbid sentimentalism by which the discussion was disfigured, and in which it ended. And all such discussions must prove similarly resultless so long as the question is dealt with, or at least is mainly dealt with, in its social and not its legal bearings. It has a very important social aspect, and it is just from that quarter that the most danger is to be apprehended, because, as such, it deals with elements in the consideration and treatment of which, experience has shown that men are more apt to be guided by feeling than by the dictates of sound reason and sober sense. It is quite true that until the question has been considered socially, it cannot be held to be placed upon a permanent or satisfactory footing. But what possible object can be supposed to be attained by such rhapsodies as those in which most of the speakers indulged at the Manchester Congress ? Dr Mary Walker, of New York, complacently assuming the superior morals of her own countrymen and countrywomen, suggests that the evil is to be repressed by familiarising the members of her sex with the shortcomings of their wayward and erring sisters. It is difficult to find, or at
• We must except under the Lunacy Acts Amendment Act (29 and 30 Vict. c. 51 § 24) issues in any action at law against any medical person in respect of any certificate granted by him under the Lunacy Acts, which must in future be tried by the Lord Ordinary without a Jury.
least to state, an answer to such views, when that does not commend itself to one's own proper feeling and good sense. verb is more true, or more frequently verified, than the saying that "familiarity breeds contempt;" and if ever the women of England, or of any country, come to regard the crime of infanticide, and those by whom it is directly perpetrated, with any other feelings than the uncompromising indignation and aversion with which they are now visited, it is impossible that there will be any other result than an increase of the evils complained of. This is no preaching, nor approving of the “Stand back, I am holier than thou” doctrine. When facts assume the startling proportions which statistics have recently disclosed as to the sacrifice of infant life, it is no time to dally with considerations that have their origin at best in mere sentiment. Another speaker; the Rev. Mr Solly, proposed that every act of criminality should of itself be held to constitute marriage, and that the parties, if previously married, both, or either of them, should be liable in a prosecution for bigamy. This ingenious theory we are quite willing to leave to the indignant retort of Mr Montague Chambers, who pointed out that no scheme could be more fruitful of all the evils which it is the object of the crusade against infanticide to express.
Even Dr Lankester, competent as he is to pronounce an opinion on the question, is not above the charge of having lost sight of its practical bearings, in the contemplation of its social, or rather its moral relations. It is quite right that society should hold and express a very strong opinion as to the guilt of a seducer. It is also true that the power of society in this respect is greater, in far more directions, and in a higher degree, than it has ever yet been exercised. But these are quite obvious truths, which stand in no need of perpetual inculcation, And good as is the intention of those who are continually harping on tbis side of the question, it is undoubted that more evil is produced by the agitation than would result from at least comparative silence; and this for two reasons, because, in the first place, men, in these matters, however much they may be guided, will not be ruled, and secondly, because the remedy proposed is utterly inadequate to cope with the evil to which it is applied. When the conclusion has been reached that infanticide is a crime, which society bas a strong interest as well as a clear duty to repress, we are very far indeed from the heart, and indeed but little beyond the confines of the question. It is only