PRISONERS' COUNSEL-PRACTICE.

MEMORANDUM.

Ar a meeting of twelve of the Judges, for the purpose of choosing the spring circuits of 1837, (LITTLEDALE, J., BOSANQUET, J., and COLERidge, J., being absent from indisposition), a discussion took place as to some points which were thought likely to occur at the assizes, in consequence of the recent act for allowing prisoners, indicted for felony, to make full defence by counsel; and the following seemed to be the course of practice which the judges present thought it would be most advisable to adopt :

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1. That where a witness for the crown has made a deposition before a magistrate, he cannot, upon his cross-examination by the prisoner's counsel, be asked whether he did or did not, in his deposition, make such or such a statement, until the deposition itself has been read, in order to manifest whether such statement is or is not contained therein; and that such deposition must be read as part of the evidence of the cross-examining counsel.

2. That, after such deposition has been read, the prisoner's counsel may proceed in his cross-examination of the witness as to any supposed contradiction or variance between the testimony of the witness in Court and his former deposition; after which the counsel for the prosecution may re-examine the witness, and, after the prisoner's counsel has addressed the jury, will be entitled to the reply. And in case the counsel for the prisoner comments upon any supposed variance or contradiction, without having read the deposition, the Court may direct it to be read, and the counsel for the prosecution will be entitled to the reply upon it.

3. That the witness cannot, in cross-examination, be compelled to answer, whether he did or did not make such or such a statement before the magistrate, until after his deposition has been read, and it appears that it contains no mention of such statement. In that event the counsel for the prisoner may proceed with his cross-examination; and if the witness admits such statement to have been made, he may comment upon such omission, or upon the effect of it upon the other part of his testimony; or if the witness denies that he made such statement, the counsel for the prisoner may then, if such statement be material to the matter in issue, call witnesses to prove that he made such statement. But in either event, the reading of the deposition is the prisoner's evidence, and the counsel for the prosecution will be entitled to reply.

4. If the only evidence called, on the part of the prisoner, is evidence to character, although the counsel for the prosecution is entitled to the reply, it will be a matter for his discretion whether he will use it or not. Cases may occur in which it may be fit and proper so to do.

5. In cases of public prosecutions for felony, instituted by the Crown, the law officers of the Crown, and those who represent them, are, in strictness, entitled to the reply, although no evidence is produced on the part of the prisoner.

EVENTS OF THE QUARTER.

THE following Bills, or Notices of Bills, are now before Parliament:-To empower the Lord Chancellor and the Judges to make orders relating to the custody of infant children of tender age, in cases where the parents are living apart, upon the application of either of such parents, or on the return to writs of habeas corpus issued at the instance of the father, Mr. Serjeant Talfourd ;— To amend the Law of Copyright, Mr. Serjeant Talfourd ;-To establish Local Courts, Mr. Roebuck;-To amend the Law of Costs and the General Issue, Sir F. Pollock;-To abolish Grand Juries, Mr. Prime; To amend the Law relating to Mortgages on Ships and Vessels, Mr. G. F. Young; - To regulate the Power of Judges to commit for Contempt, Mr. Lechmere Charlton ; To extend the Uniformity of Process Act, Mr. Elphinstone ;-To amend the Law of controverted Elections, Mr. C. Buller ;—To regulate the Keeping of the Records, Mr. C. Buller ;-To amend the Law of Libel, Mr. O'Connell ;-To regulate Admission to Inns of Court and Calls to the Bar, Mr. D. W. Harvey ;-To amend the Law of Wills, The Attorney-General ;-To amend the Acts regulating Attorneys and Solicitors, Mr. Tooke ;-For the better regulation of the Offices of Sheriff, Under-Sheriff, &c., Mr. Tooke ;-To amend the Jurisdiction of the Recorders' Courts, Mr. Stuart Wortley;-For the better Registration of Voters, The Attorney-General;-For the regulation of Prisons, Mr. Fox Maule;-For facilitating the Recovery of Possession of Premises after determination of Tenancy, Mr. Aglionby ;-To abolish Imprisonment for Debt, and alter the Law of Debtor and Creditor, The Attorney-General;-To regulate the Offices in the Common Law Courts, Mr. Serjeant Goulburn ;-To authorize Courts of Quarter Sessions to reserve points of Law in Criminal Cases, &c., Sir E. Wilmot; besides several Bills for the amendment of the Criminal Law, and various other comparatively unimportant measures directly or indirectly affecting the administration of the Law One of the most important and least understood of these proposed alterations is that which stands first upon our list, Mr. Serjeant Talfourd's motion to amend the Law relating to the custody of Children of tender age. The law at present stands

thus:

The father has a right over his child from the hour of its birth, and may, if he so pleases, enter by force or stratagem the house where his wife shall have taken refuge, seize the infant at her very breast, and deliver it over to the care and nurture of strangers.

He may forsake his wife for a mistress, and avow his intentions of persisting to keep that mistress, and yet may by law claim from his wife her infant female children; and should she resist his claim, she is subject to imprisonment for contempt of Court.

The child may be diseased and dying, and it may be proved that this was the sole reason for the mother endeavouring to retain possession of it, but the Court of Law will take it from the custody of the mother, and deliver it over to any stranger the father may choose to appoint.

He may deny all access to the children; remove them from place to place, with a view to prevent the mother from even obtaining intelligence of their welfare; give them into the care of utter strangers, and forbid those strangers to afford any clue to the place of abode of the children, and the Courts of Law cannot even make an order that the mother shall have access to her children, or see them.

The cases are subjoined.'-In De Manneville's case, the defendant, a needy French emigrant who had married an English woman possessed of property to the amount of £700 a year, after trying various other modes of persecution to compel her to make a will in his favour, forcibly deprived her of her child, then at the breast. In Mrs. Greenhill's case, the husband was living in avowed adultery with a mistress, from whom he positively refused to separate. In Mrs. M'Clellan's case, the child, a little girl, was in a very delicate state of health, and it was alleged in justification of the mother's eagerness, that two of her children had died of the same complaint; yet we find Mr. Justice Patteson (a judge as remarkable for humanity as for profound learning and sound judgment) deciding, "I feel myself bound to say that the child must be delivered up to Miss- whom the father has named. It might be better, as the child is in a delicate state of health, that it should be with the mother, but we cannot make an order on that point."

This is a state of things which it is quite impossible to justify, and the very least that can be done, now that public attention has been attracted to it, is to invest the Judges with the fullest discretionary powers of interference. At present, their uniform conclusion is-" We admit, we deplore the hardship, the injustice, the misery, but we have no power to administer relief." Strong grounds, however, might be urged by the accomplished and eloquent proposer of the amending Bill for going still further-for giving the prima facie right to the custody of children of tender age to the mother; and the inconvenience of a subsequent change of custody strikes us to be the only argument of force against establishing by positive enactment that which the laws of nature have undeniably ordained. What is the fostering care of the most affectionate father compared with the intense, passionate, all-engrossing devotion of a mother to her child? Or how could or when will a man minister to all those nameless wants of infancy which woman's love instinctively anticipates ?

The

The Bills for the amendment of the Criminal Law, proposed by the Commis sioners, have been already laid before the public by the newspapers. chief grounds on which these alterations are recommended are stated in the last Criminal Law Report 2, reviewed in a former Number. The correspondence between Lord John Russell and these gentlemen, is principally remarkable for the tenacity with which they cling to their former proposal of a digest; for the composition of which, allowing it to be required, they have shown themselves radically unfit.

The Local Court Bill may be regarded as defunct, the member who has taken charge of it being the member of all others the most calculated to exasperate opponents and render lukewarm the advocates of the scheme. But it seems not improbable that the jurisdiction of the Under-Sheriffs' Court, (now limited to 20%.) may be enlarged.

To prevent bills relating to Small Debts' Court from being shuffled through the

The King v. De Manneville, 5 East, 221; Skinner v. Skinner, 9 Moore, 278; M'Clellan's case, 1 Dowl. P. C. 81; Ball v. Ball, 2 Sim. 35; The King v. Greenhill, 6 Nev. & Man. 244.

216 Law Mag. 368.

House, Mr. C. Buller has given notice of a motion to the effect, that no bill affecting the administration of justice shall be regarded as a private bill.

It is believed that nothing will be done, though something may be attempted, during the present session in the matter of Chancery Reform. A demonstration was made by Mr. Pemberton, in the shape of a call for returns, but the intention, if ever entertained, of founding any specific measure or motion upon them, has been dropped. The Lord Chancellor continues to give general satisfaction in his

court.

‚Mr. Pemberton has given notice of a motion for the repeal of Attorney's Certificates a measure of doubtful utility.

It is understood that the Select Committee appointed to report on the privileges of the House of Commons, as affected by Lord Denman's decision in Hansard's case, are unanimously of opinion that the Chief Justice was wrong, whilst the weight of living judicial authority is with his Lordship. We shall discuss the question on the appearance of the Report.

The Bill drawn by Mr. Tyrrell, for the amendment of the Law of Wills, has passed the House of Lords, where, we hear, Lord Brougham has exercised a most mischievous ingenuity in damaging it; no one in his present dubious state of political feeling caring to quarrel with him about such a matter, for fear of converting him into an enemy. During its slow progress through the House of Lords, the Bill had been considerably improved. At Lord Brougham's suggestion it has been restored to its original state, for no other purpose, that we can discover, than that of enabling him to state that nothing had been done.

We understand that the present intention of the Ministry is to make the Master of the Rolls the nominal guardian-in-chief of the Records, and give the actual care and direction to a deputy appointed by the Government.

Mr. Justice Gaselee has retired from the bench, and Mr. (now Mr. Justice) Coltman, who is understood to have received a promise of a judgeship from Lord Brougham at the commencement of his chancellorship, has been appointed in his stead.

The following gentlemen have received silk gowns:-Messrs. F. N. Rogers, Biggs Andrews, G. Chilton, Jun., J. Evans, R. B. Crowder, J. Jervis, F. Whitmarsh, and C. P. Cooper. Since the fashion has now become established of conferring this kind of honour with reference to other considerations than extent of practice, we should be glad to know why Mr. Barnewall's name is omitted in the list. We state the general opinion of the common law bar when we say, that the high respectability of his character, and the benefits he has conferred on the profession by his reports, give him a much better claim than most of those who have been included in the recent batches.

The deaths it is our duty to record those of Sir James Burroughs, and Mr. Jekyll. We inserted a memoir of Sir James Burroughs, on his retirement from the bench 3, and we propose shortly to give a memoir of Mr. Jekyll. The promised biographical notice of Mr. Fonblanque is unavoidably postponed.

33 Law. Mag. 299.

April 27th, 1837.

LIST OF NEW PUBLICATIONS,

A Practical Treatise on the Law of Charities. By W. R. A. Boyle, Esq. of Lincoln's Inn, Barrister at Law, in royal 8vo. price 1l. 4s. boards.

A Complete Dictionary of the Law and Practice of Elections of Members of Parliament, and of Election Petitions and Committees for England, Scotland, and Ireland, compiled from the Journals, Reports, Treatises, Minutes, and Statutes, from the Earliest Period to the Present Time. By Johu David Chambers, M.A. of the Inner Temple, Barrister at Law, in 8vo. price 1l. 5s. boards.

The New Inclosure Act, 6 & 7 Will. 4, c. 115, with Notes. By H. W. Woolrych, Esq. of the Inner Temple, Barrister at Law, in 12mo. price 3s. boards.

The Country Solicitor's Practice in the High Court of Chancery, &c. &c. By John Gray, in 12mo. price 10s. boards.

The Law and Practice in Bankruptcy, as altered by the New Statutes, Orders, and Decisions. By B. Montagu and S. Ayrton, Esqrs. Barristers, in 2 volumes, 12mo. price 1l. 10s. boards.

A Selection of Leading Cases on Various Branches of the Law, with Notes. By John Williams Smith, Esq. of the Inner Temple, Barrister at Law, in royal 8vo. price 11. 2s. boards.

An Exposition of the Law of Parliament, as it relates to the Power and Privileges of the Commons' House; to which are added, the Proceedings on the Principal Questions of Privilege which have arisen in Parliament, and those Cases involving the Jurisdiction of the House, &c. which were Argued and Determined in the Courts of Westminster Hall. By S. A. Ferral, Esq. Barrister at Law, in 8vo. price 12s. boards.

Woodfall's Practical Treatise on the Law of Landlord and Tenant, with a full Collection of Precedents and Forms of Procedure. The Third Edition. By S. B. Harrison, Esq. Barrister, in royal 8vo. price il. 11s. 6d. boards.

Tables, showing at One View, the Value, in Corn Rent, of the Rent-Charge payable in lieu of Tithe, &c. &c. By W. P. Simpson, Esq. of the Inner Temple, Barrister. Second Edition, in 12mo. price 4s. 6d. boards.