AN anonymous resolution has been sent to us foreshadowing an agitation against this Act. We should have been better pleased had the society which gives forth this resolution sent its name along with it, but we think the subject of sufficient importance to give the form of resolution, which is as follows:

Resolved,-"That the committee of this society deems it of the greatest consequence to be prepared to operate with kindred associations in communicating with the Commission appointed to inquire into the Practice and Procedure of the Superior Courts of Law, considering that those courts in point of efficacy and convenience, with respect to the recovery of debts, afford by far the greatest advanfact that the County Courts Act (30 & 31 Vict. tages to the trading community; and looking to the c. 142) was passed without in the least ascertaining the wishes of the mercantile community, and in the marked absence of proper discussion, if not without due consideration.""

ADVOCACY IN THE COUNTY COURTS. We have already stated on more than one occasion that the contributor who argued in favour of giving to the Bar exclusive audience in the County Courts, arrived at conclusions which we did not contemplate and in which we do not concur. From the very first, indeed, we have desired to see solicitors more generally employed in advocacy; but the question afloat in his mind was whether the employment of counsel in local courts would not greatly benefit solicitors and compensate them for loss of business in the Superior Courts. But the arguments of our contributor have in no way shaken our first opinion that the proposition is undesirable, and even if desirable, impracticable.

It is obvious that, let the jurisdiction of the County Courts be enlarged to any extent, heap the Pelion of criminal law upon the Ossa of Equity, and pile them upon the heads of the Judges and Registrars, the vast majority of the business will be the recovery of small debts and little matters which certainly could not endure a fee to Counsel, much less fees to solicitor and counsel both; and our contributor, we presume, does not contemplate permission to Counsel to act without an attorney. It is, therefore, an absolute necessity that solicitors shall conduct the larger portion of the business of the County Courts. But if they are to have audience in any case, how is it possible to define the limit, and determine in what cases they shall give way to a Bar. It would be ridiculous to set up a point of value and say they shall be heard if 51. be claimed, but not if 67. be sued for: the smaller claim is just as likely to involve difficult questions of law and fact as the larger one. Or is it proposed to classify the subjects of suits and say that Counsel shall have exclusive audience in jury cases only? But the more pregnant is the case with difficult points the more certain it is to be left to the Judge alone. Or, if it be suggested that the solicitor shall be excluded in equity cases, in title cases, and such like, there again is the conclusive answer, that these cases vary in magnitude, and many of them must, under any circumstances, be conducted by the solicitor, or the parties must go unrepresented.

These are practical objections, which no conceivable enlargement of the courts would remove. But there are others no less cogent. We have no desire to set one branch of the Profession in contrast with the other, or to encourage anything but cordial good will between them; but we must in candour confess that the experienced solicitors who practise as advocates in the County Courts are for the most part far in advance of the junior Counsel, who would supersede them were exclusive audience to be given to the Bar. It is certain that counsel in large practice would not attend the County Courts regularly as “a Bar." They will go there only when specially retained. The regular attendants will be men who have reputation and fortune to make-who must come, for some time, at least, more as learners than as masters of the art of advocacy. Now, it may be taken as certain that the Legislature will never sanction the compulsory employment of inexperienced barristers instead of experienced solicitors. It would, indeed, be most unjust to the suitors, and would give universal dissatisfaction. Our correspondents who have commented so strongly on the suggestion may rest assured not only that the project will find no favour here, but that there is not the remotest probability of its being proposed elsewhere, or, if proposed, that it will be listened to for a moment, either by the Legislature or by the Courts. The County Court Judges and the suitors are perfectly satisfied with the present system, which secures the assistance of Counsel in cases of sufficient importance.

some deduction in point of salary was not made
in respect of these fees; but this was entirely
denied, the managing clerk (Mr. PRIOR) stating
that his principal (Mr. ARNOLD) was more
profitably engaged, and did not care to attend to
the business.

Mr. LONSDALE's chief objection to hear Mr.
PRIOR was based upon the fact that, without the
intervention of Mr. ARNOLD, he could not get
the business, and therefore, although the clients
did not see the principal, it was the business
of the principal. Upon that ground he argued
that the principal only could be heard. We do
not desire to make any comment upon the
arguments used on either side, but whether
Mr. LONSDALE be right or wrong in his present
view of the Act, we think as a matter of pro-
individual hardship may prove, that Judges
fessional expediency, however onerous cases of
should be very jealous to whom they grant
audience. Suppose a case of negligence. Would
Mr. PRIOR or Mr. ARNOLD be made defendant?
This is a serious question, for in one case the
plaintiff would be proceeding against a man of
substance, and in the other, very probably,
against a man of small means. Furthermore,
be better for managing clerks? If Mr. LoNs-
if the rule were strictly enforced, would it not
DALE decides in favour of Mr. PRIOR, Mr.
ARNOLD will be able to retain all his connection
single-handed. If the decision be against Mr.
PRIOR, Mr. ARNOLD must take a partner or
give up his County Court practice. Would not
that partner very possibly be Mr. PRIOR? and
would not Mr. PRIOR then thank Mr. LONSDALE
for his strict construction of the Act?

THE LAW DIGEST COMPETITION.

any one assert that if the commissiones a power to offer such terms they would ha serious difficulty in finding the persons to whe they might properly be offered?"

In the same article in which this occurs is a protest against the gratuitos i offered to the Bar in the proposition number of gentlemen should devote every of two months to a work for which the majority will not get paid. "Is it likely, asked "that you will be able to call man for such work from their other occupation couple of months with as little ceremony would call cabs off the stand, and with strong probability that after all their will not be required." Our own experin teaches us that very few good men wills ject is the law of Easements. Everybody to such a mode of summons. The inviting is going to compete, selects this as branch which holds out a hope of accom ment within the limited period. But thi is dashed by the wide words of the instra embracing as they do "other servitudes."

We should certainly not advise any of the Bar, who has anything to do, to must result in loss, disappointment, and upon the competition. To the vast ma fication.

MEDICAL EVIDENCE. Ir is open to serious consideration whethe learned societies should not turn their she to the adoption of measures framed to ch present haphazard and occasionally delibe contradictory and absurd way in which s and more particularly medical men give evidence. Should not condign punishme upon an individual who proves, more thorough incapacity to act as a medical giving the three following certificates? 3 were produced in evidence at the triale son v. The Midland Railway Company. Hi certificate is as follows:

undertaker, of 8, Hethpool-street, Hall-part This is to certify that I am attending Mr. dington, suffering from

severe concussion di

brain, and compression produced by extra
from a ruptured vessel, caused by the railw
dent at Colney Hatch, Aug. 30, 1865, and
no doubt but that he will feel the effect
some time. J. MORGAN. M.R.C.S.LLC

Sept. 26, 1865.
Two days afterwards, and when he ha
seen by the surgeon of the company, Mr.
GAN says:

I hereby certify that I found nothing seri the case of Mr. Johnson, 8, Hethpool-street park, Paddington, and consider him not inj the accident at Colney Hatch.

Sept. 28, 1865.
J. MORGAN, Surge
Later on the same day Mr. MORGAN
verted to the company. He says:

I hereby certify that I found nothing a matter with Mr. Johnson, of 8, Hethpos Hall-park, Paddington.

THE daily papers have, we perceive, taken the view which we at the outset adopted respecting the scheme for making a Digest of the Law. We were, indeed, singular at first in holding that the competitive system was a wrong system upon which to proceed, and we suggested that gentlemen of standing and known ability should be selected and well paid to devote their time and energies to the task. After some delay and apparent hesitation our contemporary, the Pall-Mall Gazette, which has evidently a lawyer on its staff, has echoed our opinion. We think this course is so clearly the correct one that we reproduce our view put in the words of our contemporary: "What then, it may be asked," he writes, "is the true course? The answer is-You want a very expensive article, and you must be prepared to pay a fair price for it. You want work done which no one is fit to do who is not a man of high standing and great ability, and you must come up to the terms of men of high standing and great ability both in the matter of money and also in the matter of feeling. You must not expect such men to work without a definite prospect of adequate payment, or upon terms which they would regard as humiliating. You must treat with them upon the understanding that their time and labour are of great value, and that the task which they are required to do is one which will absorb the greater part, if not the whole, of their time and attention. If you wish for a competition, request a certain number of specified persons to compete, and pay them at all events for their time and labour, even if they do not succeed. This is the course usually taken with the architects who are asked to compete for public works, and the work of constructing a code requires at least as much skill and thought as that of planning a building. Why, however, need there be any competition at all? There is no want in the Legal Profession of proved and recognised ability of all sorts, and especially of the sort of ability which would be qualified for the work of codification. Every law library is EXAMINATION OF PRISONERS. full of the books of living authors, distinguished or otherwise, which works would be the materials IN an article in Macmillan's Magazine for with which the codifiers would have to operate. month, Mr. DICEY, reviewing the evidence Surely it ought to be no difficult matter to the very doubtful case of WIGGINS, who certai select from all these a few men who have proved ought not to have been hung, draws fro Ar the sitting of the next County Court for themselves to possess capacious and systematic the moral that the defendant in criminal c Tunbridge Wells, the Judge, Mr. LONSDALE, minds, adequate industry, and the power of clear should be made a competent witness. is expected to give a decision upon the question expression, and to get from them such specimens whether a managing clerk who is a solicitor, and of a digest or a code as would at once show what of those who advocate this change in the Mr. DICEY, in common with most, if not who appears as solicitor on the record, is entitled could be done, and command the confidence of ministration of the criminal law, has had r to be heard where his principal disclaims all the public. Of course such labour would be little of that personal experience which can interest in the cases, and where it is averred expensive. Unless they were thoroughly well obtained only by holding criminal brief, and that the business in question is the business paid either in money or in a recognised claim to therefore, he and they either do not know. of the clerk for which he receives the fees. professional promotion, such men would not do are unable to appreciate, the practical objections The Judge, at the first hearing of the application, the work, nor ought they to be asked to do so; foremost of which is the following predicame put it very strongly, as was natural, whether but why should they not be well paid? or will that would attend almost every case.

We would refer our readers to the very sensible

letter of Mr. Edward Clarke.

THE STATUS OF MANAGING CLERKS

Sept. 28, 1865. What an intolerable scandal to science is Has the Royal College of Surgeons nothing say upon this subject, and does the Apothe Company countenance jugglery of this parent character? The time certainly on have arrived when medical opinions longer be bought and sold.

whose case was thus damaged, and also da We may remark that in this case the plaint as we remark elsewhere by the evidence illiterate articled clerk, would have lost verdict had it not been' for the able spee his counsel, and the careful summing up LORD CHIEF Baron.

To criminal trial can occur without some
umstances for suspicion attaching to the
soner. We know how easy it is for a clever
ss-examination so to present the facts as
sustain the theory of the prosecution and
ke the evidence tally with it. Innocence
If under the hands of some men, whom
could name, would be made to look like
ilt. Sure we are that no experienced counsel,
wever satisfied that his client is not guilty,
uld advise him to become a witness. If he
, he would incur the greatest risk; if he
I not, the prosecution would put it to the
y thus, "The prisoner may present himself
a witness to contradict or explain the facts
ved against him, if he can do so; if he
Il not, you will conclude that he cannot."
gain, it would change the entire principle
the criminal law-that it is for the prose-
tion to prove the case against the prisoner,
t for the prisoner to prove his innocence.
make the prisoner a witness would practically
to throw the burden upon him. "That is
case against him, let him answer it if
But the present system is not perfect. Cases
occur, rarely indeed, but occasionally, when
e ends of justice would be promoted by the
amination of the prisoner, especially in certain
isdemeanors, or where, as in WIGGINS's case,
e facts are known only to himself.
We would, therefore, recommend a middle
urse; empower the Judge, on the application
the prisoner, to admit him as a witness, if he
all be of opinion that justice requires that
should be heard. This would secure all
e advantages desired in the few cases, without
e evil that would attend it in the many cases.

e

can."

RESIDUARY DEVISE.

of the blame. That such a state of things

devise in the position of that which was residuary
in substance, and the consequences followed.
should have been so long allowed to continue, is
In this conflict we expressed (L. T. Vol. 41, certainly nothing short of disgraceful. That the
p. 798) a preference for the opinion of STUART, evil of which we speak is not imaginary, and
V. C., although he was in a minority, on the that it demands an early and an effective remedy,
ground of the distinction still remaining, that a glance at the volume of statutes for the present
all real estate vests in the devisee by the devise, year, which fully maintains the reputation gained
while personalty does not vest in the legatee by by its predecessors, will readily show. Let us
the will, but in the executor for the purposes of turn in the first place to the 30 & 31 Vict. c. 121,
administration; and that, subject to the account which the Act itself declares is to be cited for
and by the executor's assent, as on a balance all purposes as "The Annual Turnpike Acts
of account, and not otherwise, the vesting takes Continuance Act 1867." Looking at this title
place in the legatee. We are gratified to find any person would at once conclude, and, we
that this opinion accords with the judgment think, most reasonably so, that the Act was one
of the Lord CHANCELLOR in Hensman v. Fryer which only made provision for the further con-
on the appeal. He did not understand that tinuance of certain Acts relating to turnpike
the Act intended to make the important change roads, which Acts, but for its being passed to
contended for in the character of a residuary continue their operation, would shortly expire.
devise; but he recognised the essential dis- He would not, we imagine, expect to find that
tinction, in this respect, between realty and the Act not only continues certain turnpike
personalty as still subsisting, in the language Acts, but also makes several important amend-
which he quoted from Lord CoTTENHAM'S judgments in the law relating to turnpike trusts.
ment in Mirehouse v. Scaife, 2 M. & C. 695, that This is, however, in reality the case, for, on
"When a testator gives the residue of his turning to the second part of the Act, we find
personal estate, he knows that it will be un-
such provisions as the following, that "no trustee
certain, till his death, what will be comprised in or commissioner of any turnpike road shall be
that gift. But it is certain that the gift will liable to any penalty or forfeiture by reason of
operate upon part only of what he may be his being a proprietor or holder of a share in any
possessed of at his death, all debts, funeral gas company or water company which contracts
expenses, and other charges being to be paid with the trustees or commissioners of such turn-
out of it; and the expression necessarily pike roads for the supply of gas or water for the
imports what will remain after all charges are purposes of such road or of the toll-houses
defrayed. On the other hand, the testator knows thereon;" that "the trustees or commissioners
precisely upon what real estate such a gift will of a turnpike road, which shall hereafter become
operate, unless there be charges affecting the an ordinary highway, shall, as soon as may be
land beyond what the personal estate can after the expiration of their trusts, distribute
satisfy." The principle of this reasoning applies the balance of any moneys remaining in their
to a will actually executed immediately before hands amongst the parishes upon which will
the death of the testator, and the Act only puts fall the liability to repair the roads of such
the will, as to the estate comprised in it, in trust, in proportion to the mileage of such roads
Indeed, had the plain words of the Act been in any highway district or highway districts,
the same position as if it had been so executed. in each parish, or, if such road shall be situated
more closely attended to, it is probable that the then the trustees shall pay over such balance to
difference between the Equity Courts would the treasurer or treasurers of such highway dis-
not have arisen on any inferences of legislative trict or highway districts, in proportion to the
intention. The enactment is that the will, as to mileage of such road in each such highway dis-
the estate comprised, is to be construed to speak trict, to be distributed in manner aforesaid;"
death. In other words, it is to be construed as
as if executed immediately before the testator's and that, "from and after the passing of the
Act, no driver of any waggon or cart of any
if so executed. No change in the old law is upon such carriage in any turnpike road, pro-
a will before the Act would have been construed kind shall be liable to any penalty for riding
made by the enactment except as to the sup- vided such driver shall not ride upon the shafts
posed time of execution. Now, in a will, prior of such carriage, but shall carefully drive such
death of the testator, a residuary devise of land such reins being attached to every horse draw-
to the Act, executed immediately before the carriage by means of reins held in his hands,
was specific; how, then, can a residuary devise ing the same;" together with other provisions
of the Wills Act, which expressly assimilates of the trust, where the repairs are borne by the
be otherwise than specific under the enactment relating to access by ratepayers to the accounts
the discussion and speculation which have been certain cases. The likelihood of such provisions
the construction of the two devises? After all parish, and to the auditing of the accounts in
raised on the intention of the Act, the case
as these being overlooked when contained in such
really seems to be one where what you were an Act, and under such a title, is obvious, and
looking for lay at your feet.
there cannot be any doubt that they ought
properly to have been formed into a separate Act,
with a title which should clearly indicate their
nature, a thing which the title at the head of the
Act in question does not do, although it differs
somewhat by making mention of "further pro-
visions," from the "short title" prescribed in its
last section. Let us turn again to The County
Courts Act 1867 (30 & 31 Vict. c. 142). The
9th section of that Act provides that the juris-
diction given by the 28 & 29 Vict. c. 99 The
County Courts Equitable Jurisdiction Act), so
far as relates to cases coming within the fourth
head of the 1st section of that Act, may, from
and after the passing of the first-mentioned Act,
be exercised in all suits for specific performance
of, or for the reforming, delivering up, or can-
celling of any agreement for the sale, purchase,
or lease of any property where, in the case of
a sale or purchase, the purchase-money, or, in
the case of a lease, the value of the property,
shall not exceed 5007. The 33rd section of the
Act, however, declares that "the several enact-
ments specified in schedule (C) to this Act
annexed are hereby repealed," and on referring
to schedule (C) we find among the enactments
there enumerated the 28 & 29 Vict. c. 99, which
is declared to be repealed as regards the fourth
head of suits and matters mentioned in the 1st
section; the very portion of the Act, the opera-
tion of which is extended by the 9th section of
the same Act, so that the Legislature is made to
extend the operation of a certain provision in
one part of an Act, and to repeal the very pro-
vision so extended in another.

DECISION given by the LORD CHANCELLOR, a appeal, the first day of the present sitting, ill settle, short of the House of Lords, an aportant point under the Wills Act. There as long been a difference of judicial opinion in e equity courts as to the operation, on a resiuary devise of real estate, of the provision of e Wills Act, that a will is to be construed, ith reference to the estate comprised in it, to peak as if it had been executed immediately efore the death of the testator, unless a conrary intention appear by the will. A late ecision on the subject was by KINDERSLEY, V. C., Hensman v. Fryer, 14 L. T. Rep. N. S. 882, in which he held that the Act had changed the haracter of a residuary devise, and that such a evise was no longer, as under the old law, pecific. but stood on the like footing as escended land; consequently that there ought o be a right of marshalling against real estate evised in a residuary form. Hence the ViceChancellor decided that, since the Wills Act, a eneral pecuniary legatee, if creditors exhausted The personal estate so that there was nothing eft, had a right to resort to the real estate so MODERN LAW-MAKING. levised; and till he was set right, he said, he THE Statute-book, it has been often said, is a must assume that to be the law. The same disgrace to the law of England, and there can -iew of the Act was previously taken by him be no doubt that there are many Acts of Parn Dady v. Hartridge, 32 L. T. Rep., 7: Hibon liament which are a disgrace even to that . Hibon, 8 L. T. Rep. N. S. 195; and Rodhouse statute-book. This state of things may unquesMold, 12 L. T. Rep. N. S. 629. The MASTER tionably be attributed in a great degree to the f the ROLLS adopted that view in Rotheram v. slovenly and piecemeal system of legislation Rotheram, 33 L. T. Rep. 159, and Bethell v. Green, which we so persistently pursue. Instead, when 4 Beav. 302. STUART, V.C., on the contrary a law is found to require alteration or amendecided Pearmain v. Twiss, 2 L. T. Rep. N. S. 81, ment, of repealing it entirely, and of re-enacting and Clark v. Clark, 12 L. T. Rep. N. S. 485, on that portion of it which it is desired to retain, he principle that the Act had not changed the together with the new provisions which are inspecific character of a residuary devise. He tended to effect the required alteration or amendeasoned that the only effect of the Act was that ment, we allow the old law to remain almost, if he will passed lands purchased since its date. not entirely, as it stood before, repealing only What difference, he asked, was there between some part of it, or it may be even no part of chat and the rule under the old law, where a it at all, and then add new provisions to the general residuary devise of the whole estate was old, which, except so far as they may repeal, or held to be a specific devise of the whole estate? may be inconsistent with the tenor of the latter, If the only difference were that it now passed are directed to be construed as one with them. what the testator had at the time of his death, The amount of utterly useless matter which is all property which he had acquired at the time of thus accumulated, and the amount of confusion, his death must be specific. KINDERSLEY, V. C., vexation, inconvenience, and expense which is supported the opposite view by the argument thus occasioned, are too well known to every that the only reason why, before the Act, a resi- lawyer, and, indeed, to most of the public at duary devise was considered specific was that it large, to need any lengthened comments. It is lid not give all the residue, as in the case of a not, however, to our system of legislation alone, bequest of personalty, but since the Act it em- bad as it undoubtedly is, that this state of braced every portion of the real estate which the things is to be attributed. The carelessness, and testator might have at the time of his death; even the ignorance, of the draftsmen to whom moreover, the Act enacted that if a particular the drawing the Bills is entrusted, as well as of devise of real estate failed the property should those persons whose duty it is to correct and fall into the residuary gift, so that in all its in-revise them during their passage through Parcidents and qualities the Act put a residuary liament, have to bear by no means a small share

Again, by the 36th section of the same Act it is declared that the Act shall come into opera

tion on the 1st Jan. next, the section being, no doubt, intended to apply to the whole of the Act; but, notwithstanding this, in several sections (see sects. 5, 9, 28) words referring to the time of the passing of the Act have been allowed to remain, thus giving rise to the question whether those sections are already in force or whether they will not be so until the time prescribed by the 36th section. Take also Lord St. Leonards' Act for amending the Law of Auctions of Estates (30 & 31 Vict. c. 48). The 3rd section of that Act contains a somewhat elaborate definition of the term "agent," but on searching 'for that term in the Act it will be found that it does not even once occur in it.

Take, again the Representation of the People Act 1867 (30 & 31 Vict. c. 102). Amongst other blunders, it will be found that the 43rd section of that Act makes certain provisions as to polling

at a contested election of a "member or mem

the same number of terms as, and in fact enjoy no
advantage whatever over, the students for the
English Bar. These letters, with copies of
which we have been favoured, fully state the
reasons for the request.

We first present the letter from Mr. Justice
MARKBY to Lord WESTBURY.

offer themselves to be examined. And altogether. though I do not think it likely that any test would be proposed here, which would be a serious barrier to an industrious man, I think it would deter the class of men who come out now, from the English Bar, from trying their fortunes in this country.

This would, I think, be a very great misfortune. Up to the present time the Calcutta Bar has been 1, Theatre-road, Calcutta, 25th Sept. 1867. supplied almost entirely from the English Bar: by My Lord-Relying upon the interest which I men bred in the same social school as English know your Lordship takes in the administration of lawyers, and who bring out with them the same justice, as well as in the welfare of the Bar and in high standard of honourable dealing that prevails at legal education, I venture to address you on a sub-home. I do not hesitate to say, that were these to ject which nearly concerns each of these matters. be turned away by the introduction of any such rule It has hitherto been the practice (as you are pro- as I have mentioned, our Bar would sadly deteriorate. bably aware) to admit as advocates in the High At present it would bear comparison for independent, Court at Calcutta only those gentlemen who have honourable, and gentlemanlike conduct with any been already called to the Bar in England or Ire- similar body of men in the world; and this, I believe, land, and an English or Irish call to the Bar, accomis mainly owing to the traditional notions of honour panied by satisfactory testimonials as to character, and self-respect brought out from the English Bar, has always been considered a sufficient qualification. which here, as at home, so vastly contributes to Several gentlemen have, however, of late presented enable the honest to hold the dishonest in check. themselves upon an English call to the Bar, granted, Considering the very great temptations to dishonesty not upon the usual terms required for barristers to which an advocate is exposed in any country, practising in England, but upon special terms, and the extent to which those temptations are accompanied with a stipulation that the barrister aggravated in India, I cannot doubt that, were the obtaining the dispensation shall not practise in Eng-change which I speak of introduced, and its conse quences should be such as I anticipate, though we still most certainly have many respectable men at the Bar, yet the power of these to check dishonest practices would be infinitely less than that of a tody of union, giving rise to a feeling of full reliance on the like the majority of the present Bar, who have a once a standard to appeal to, and also a strong bond support of each other in carrying out their principles,

land.

In some cases two, in others four, and in one case, it is said, six terms of residence had been dispensed with under these circumstances.

gone

unwilling to refuse to admit as advocates any gen-
The judges of the High Court are naturally very
tleman who has been at the trouble and expense of
obtaining an English call to the Bar, and who has
come out to this country relying upon its sufficiency;
but at the same time they feel strongly the necessity
of keeping up the character of their own Bar. Those
members of the Calcutta Bar also who have
through the regular course feel some, and I think
not unreasonable, irritation that others should be
admitted on easier conditions than themselves.
The gentlemen who principally avail themselves
of this relaxation are members of the Indian Civil
Service at home on furlough, and Indian natives of
the country. The object of the former is generally
to qualify themselves for appointments, and of the
latter to practise. In some cases, also, Europeans
who have been resident out here as attorneys, or in
some other private capacity, go home and get called
to the Bar under the same favourable terms; some
with a view to appointments and others to practise.
tain appointments, and who do not attempt to prac-
Of course, with those whose sole object is to ob-
tise, we have nothing to do, but as they frequently
indeed, I believe generally-apply to be admitted
as advocates, we have to consider their qualifications

For these reasons I should feel great regret it the Inns of Court, by lowering their already low standard, should drive us to institute an examination for advocates here, and it is my unwillingness to adopt this inevitable alternative which has induced me to lay this subject before your Lordship; and to ask you, if you concur in my views, to use your influence with the Inns of Court to induce them to discontinue the practice of calling barristers who intend to practise in India on terms different from those who intend to practise in England.

It would be a far easier task and far more satis

bers" for the University of London, although the 24th section expressly provides that in all future Parliaments that University shall return one member; and that in the 61st section the word month is defined to mean calendar month, although the 13 & 14 Vict. c. 21, s. 4, which is an Act to shorten the language commonly used in Acts of Parliament declares that, in all Acts passed after the date of its commencement, the word month shall have that meaning, unless words are added expressly showing lunar month to have been intended. We will not, however, multiply examples. Those which we have given from this one volume of statutes will not only sufficiently show the nature of the evil of which we have been speaking, but also make it clear that it is quite time that it should be effectually removed. Until this is done the labours of the Law Digest Commissioners, and of those who may be appointed under them, will, to a great extent, be rendered useless, as the statute-book will be continually introducing confusion where they are endeavouring to establish order, and continually adding new matter factory to myself to advocate these views if the to the pile of rubbish which it will be their great qualification for an English call to the Bar were not, object to clear away. It may, no doubt, be said as regards legal attainments, merely nominal; 1 də so, however, because I feel sure that legal attainthat the present state of things produces work ment, important as it is, is of greatly less importance for the lawyers; and this, to some extent, is perhaps true enough; but a vast amount of the here most especially, the main security in the admito honesty in the Judge is, all over the world, but than honest dealing. Honesty in the advocate next confusion and doubt which now arises from nistration of justice. At the time I cannot help Legislative enactments is as perplexing and injurious to the lawyer as it is to any member expressing how great a boon it would be to this of the general public; and we feel sure that no country if, while the moral and social standard were lawyer, who rightly appreciates the character Now, in accepting the twelve terms' nominal resi- not lowered, the intellectual standard of English and position of his profession, would desire that dence at an Inn of Court as a qualification, most of legal education were raised to that of other the evil which we have here noticed should be the judges here felt they were adopting a low stan- European countries. This would not only solve the allowed to continue, for the mere reason that dard, and many consider that it is too low. Indeed, difficulty which I have been discussing, but it would I believe the only consideration which has induced be one step towards solving one of vastly greater some additional amount of litigation may be the Court here, hitherto, to accept members of the importance, namely-how to find Judges to admicaused by its existence. No human care or fore- English Bar, without further inquiry as to their nister the law in India. Sooner or later it must be sight can render an Act of Parliament so per-qualification, is this: That, until lately, the class of affairs of this country that the proper persons to ill fect that no question can arise under it, or in men who have presented themselves for admission connection with it; and were the evils in ques- has consisted almost entirely of those who have the highest judicial offices are not men who have tion to be at once swept away, we do not believe adopted the Profession as a means of livelihood, and been trained to other duties, who have never studied that the Legal Profession would be at all in- are dependent entirely on their own exertions; self-law, and who have had no judicial experience. reliant men having neither fortune nor powerful interest. Such men are likely to be (as I believe those who come from the English Bar to practise in this country almost invariably are) industrious. With respect to these, therefore, a principle of natural selection operates, which enables us to dispense with any artificial one.

juriously affected by the change, but that it would, in common with the public at large,

derive a substantial benefit.

as well.

But with respect to the classes I have mentioned above, and which, owing to the increased facilities of communication with Europe, are rapidly growing in number, it is different.

forced upon

the attention of those who manage the

Many a Zillah Judge enters his civil court for the first time in his life to preside over it; and though is frequently years since he has heard a criminal case, and then only of a petty character. This rough administration of justice might have done

he tries men for their lives in his criminal court, it

in

former times, and may still do in some districts of India; but it will not do in those districts, the area of which is rapidly increasing, where suitors know and are encouraged fearlessly to where suits are conducted by expert advocatesassert their rights, and where the relations of men to each other are daily becoming vastly more com

THE BAR IN INDIA. THE Bar in India complain of the facilities offered by the Inns of Court for admission to their ranks by the abbreviation of the period of term keeping before calls. It is not that the recruits thus prematurely sent to them are not sufficiently learned in the law, for whether the period of pro- They frequently rely on their connections or in- plicated and more difficult of investigation.

bation be eight terms or twelve terms, it would not much affect the question of knowledge. But they say that three years of association with gentlemen is necessary to implant that fine sense of honour, that refinement of manners, and that loftier tone of feeling which are so necessary to sustain the social status of the Bar and which are nowhere more needed that in the Indian courts. Perhaps there is another reason, not named but not forgotten, that term keeping for three years costs one-third more in fees and time than if for two years, and that this increase would practically operate to exclude many undesirable persons. These complaints of the Bar have found two spokesmen, one of them no less a personage than Dr. MAINE, who has addressed a letter upon the subject to Sir EDWARD RYAN, and the other from Mr. Justice MARKBY, of the High Court of Calcutta, addressed to Lord WESTBURY, inviting his intercession with the benchers of the Inns of Court to amend their present practice, by requiring that those who purpose practising at the Bar in India shall keep

this country, are not sifted by any such process.
These, whether natives or European residents of
fluence to obtain appointments or business, and yet
it is with respect to these very persons, that the
standard of requirement has been lowered by the
Inns of Court.

It is undoubtedly true that, in one sense, we have
the remedy in our own hands. We have the power
to reject the English call to the Bar as a qualification,
ass of candidates for admission as Advocates;
and to establish tests of our own for ascertaining the
but, for my own part, I feel one very strong objec-
jection to this course, which is this: It appears to
me the only test we could establish would be an
examination. Now, looking to the fact that almost
every English barrister who comes out here to
practise is poor, that he has to expend a large sum,
frequently to incur a heavy debt, in coming to India,
that failure is little short of absolute ruin,-I fear no
one would risk so much on passing an examination,
the exact standard of which could not possibly be
made known. Moreover, men come out here gene-
rally two or three years after they have been called,
habits necessary for preparation for them they
when they have done with examinations, and the
would at least have to spend some months, after
their arrival in this country, before they ventured to

I again apologise for trespassing on your Lordship's time, and can only plead the importance of the interests at stake.-I remain, your Lordship's

obedient servant,

(Signed) WILLIAM MARKBY. And this is the letter from Dr. MAINE :

Oxford and Cambridge Club, Nov. 20, 1867. versation the other day, I should like to assure you My Dear Sir Edward,-With reference to our conagain that I have been made most sincerely anxious by the attitude assumed by the Indian High Courth Bar. It is understood that certain gentlemen have in consequence of certain recent calls to the English recently been called, after a shorter period of probation than usual, on the understanding that they will practise exclusively in India: there being, however, nothing to show that they are better qualified for Indian practice than other members of their Profession. The High Courts for themselves and for the Bar practising before them-conceive that they have a right to deprecate, and even to resent, these calls: believe the grounds of their dissatisfaction to be the and, without pretending to be absolutely certain, I following:

1. They think that the Indian branch of the Pro

If you can give me any assurance

of these calls to the Bar is likely to

be seriously considered by the Inns of Court, I
dare say I can get the Calcutta judges to postpone
any step they may meditate.-I am, my dear Sir
Edward, very sincerely yours,
(Signed)

The Right Hon. Sir E. Ryan.

H. S. MAINE.

FENIANS AND DEATH PUNISHMENT.

sion is thus stamped with a mark of inferiority.
barrister in arguing his cases; but even that he finds of February.
u are yourself aware how high is the status of in
rristers in India, and that their pretensions go facts from the court.
en beyond their conceded claims. But their claims If the High Courts substitute an examination test
rn entirely on their being members of the Bar, in for the present unconditional mode of admission, it
ecisely the same sense in which-and to precisely may be safely asserted that no barristers, or next to
e same extent to which-this membership belongs none, will attach themselves to the Indian Bars. It
every gentleman practising in Lincoln's-inn or is not easy to get young Englishmen, of twenty-
Westminster-hall.
three or twenty-four, to submit to examination in
2. They say that the very ground on which they London; it will be all but impossible in the Tropics.
mit barristers-as, of course, to the privileges of The result will be the loss of important advantages
vocates before the High Courts-is rendered, to a by the English Bar. The number of barristers now
-nsiderable extent, untenable. The ground of this practising in India is not extraordinarily large, but
conditional admission is not the peculiar fitness it is sure to increase materially. A High Court and
the English barrister as such for Indian practice a Chief Court have now been established in the
or, indeed, owing to the wide departure of Indian interior of India, where the climate is better than
w and procedure from English models, he has in the Presidency towns, and before long barristers
most to go to school again), but the moral eleva- will find their way even into the district courts.
on he derives from his connection with a great Pro- More than this, I can see that, in the more settled
sion regulating its system of advocacy by definite Provinces of India, we are drifting fast on the
les and honourable traditions. This elevation-separation of the judicial from the administrative
hich is of incalculable value in such a country as branches of the public service, and on the relaxa-
dia-they allege to be lost in proportion to the tion, so far as regards the former, of the monopoly
minution of the time during which the student now enjoyed in most courts by the covenanted
mains in England under the special influences of civilians. The courts which will supersede the not
very satisfactory tribunals which now administer
justice, will pretty certainly be mixed courts of bar-
risters and civilians, provided (but provided only
that the barrister-advocate preserves his present
prestige in India).

e Inns of Court.

3. They assert that considerable practical injusce is occasionally caused by these premature calls. has happened that a member of the Bar thus rematurely called, has come out to India at the me time with, or a little before, barristers who bad

mpleted the full period of probation, but who had ot thought fit to apply for any allowance of time, or erhaps had only made up their minds to go to India the moment of being called. The man called in he shorter period thus became senior at the Indian ar; and I need scarcely remind you that at those ars seniority is a serious matter, seeing that nobody as preaudience, otherwise than by seniority, except e Advocate-General of the Queen.

I am not, as you know, in any way connected ith the High Courts, and I do not feel myself alled upon to maintain the absolute impregnability f their reasoning; but I wish to urge on you the ct, that they are discontented, and that they have e power of acting on their opinion. The admison, without conditions, of members of the Engsh, Irish, and Scottish Bars to the status of advoate is only matter of grace; the High Courts are atitled under their charters to impose what condions they please. I am seriously afraid that, unless tisfied, they will exercise their powers, and will lace on the roll of advocates only such persons as in pass some examination test, producing, perhaps, certificate of good character,

Now the effect of this measure would not be to

acilitate to any appreciable extent the admission of atives of India to the position of practitioners before he courts; if it had that effect there would be trong, though not, in my judgment, preponderant, easons for adopting it. With rare exceptions, howver, a native of India will always prefer being

admitted, not as an advocate, but as a vakeel or

leader, in which case he is permitted to practise in he District Courts and on the appellate side of the High Court. The very freedom from restraining ules which he thus enjoys, makes it easier for him o enrich himself. The true result of the new system of the High Courts would be to bring in, wholesale, practitioners of English extraction from the various colonial, and especially from the Australian Bars. I ave myself received not a few letters from persons n this position, bitterly complaining of the alleged nonopoly of the courts by practitioners coming lirect from the mother country; and claiming to be admitted, at all events, after showing their fitness by

xamination.

Now, I do not think I use too strong language, and I certainly do not use language stronger than my opinion, when I say that such admission of colonial practitioners would be an unmixed calamity or India. We have already had some illustration of the fruits of allowing Englishmen to practise who do not hold themselves subject to the strict rules of our Profession; and I can only say, that the combination of the chicane which a native practitioner permits bimself with the energy and high-handedness of the European, produced results which appeared to me to be frightful. Happily, the admission of the class to which I refer, who got in by qualifying as vakeels, has been stopped by the High Courts.

The natives of India have a genius for advocacy largely developed in them: but nothing is a greater snare to them than the apparent liberty enjoyed by the advocate. Nothing is so effectual a check on the abuse of these immunities as the example of English barristers voluntarily submitting themselves to very strict rules of professional conduct. Not only have native practitioners a strong tendency to imitate and adopt the habits of a class conventionally higher than themselves, but they soon see that the selfrestraint of the barrister is remunerative. The true reason why a native litigant prefers a barrister to conduct his case is, not that he thinks him a better advocate than a native vakeel, but that he is sure no foul play will be practised.

Perhaps the very last thing which a native learns to imitate is the candour displayed by the English

While, however, I should deeply lament the
adoption by the High Courts of the measure which
they threaten, I am by no means blind to some con-
siderations which make in favour of the system of
calling persons intending to practise in India to the
Bar on shorter probation. There are no students
worthier or more interesting than the comparatively
few natives of India who come to England for the
purpose of becoming members of an Inn of Court.
The fact of their doing so is a remarkable proof of
personal energy and superiority to prejudice; and,
as I before stated, they are likely rather to lose than
to gain through the step in point of the emoluments
of practice. Now, no doubt, the full time required
for admission to the Bar is somewhat long for gentle-
men removed so far from their native country.
I myself believed that the High Courts would be
satisfied, while the interests of the persons just
referred to would be consulted, if the Inns of Court,
giving up the system of calling to the Bar on more
lenient terms, when nothing is alleged except that
the student means to practise in India, would make
a certain allowance of time to students who show,
by satisfying some definite test, that they are quali-
fied for Indian practice. The position assumed by
the High Courts is that, as the moral results of con-
nection with the English Bar are being more and
more denied to them, they will at all events secure
the advantage of definite proof that the gentlemen
practising before them have mastered the elements
of the Indian system of law. But the Indian judges
would be more unreasonable than I take them to be
if they were not satisfied when they obtained this
proof from the Inns of Court, together, to some
extent, with the moral influences on which they set

so much store.

partment of Hindoo and Mahomedan law.

But

My former connection with the educational system
of the Inns of Court is my only excuse for saying
more than this, but I myself should certainly rejoice
the Inns of Court thought fit to go further than
the mere establishment of an examination. Indeed,
examinations which do not test the progress or
I cannot say that I have any very great belief in
completion of a pre-arranged course of study. Just
before I left England, five years ago, it was under-
stood that the Inns thought of establishing a de-
nothing seems to have come of it, and, indeed, I
can see that there would be great difficulty in
making such a department fit in exactly with the
Moreover the
present system of legal education.
present law of Hindoos and Mahomedans no longer
constitutes the part of Indian law which is most
You, yourself,
interesting to Englishmen at large.
as an Indian Law Commissioner, can easily divine
what are the portions and peculiarities of the
Indian legal system which one would wish to see
brought to the notice of the student, and, indeed,
made part of his knowledge. The Government of
legislative sanction to codes which contain nothing
India has made considerable progress in giving
more than English law very greatly simplified.
already fused in our courts, and already the law
As regards civil law alone, law and equity are
of realty is almost entirely assimilated to the law
of personalty. The experiment would hereby pos-
view, but in fact it is one of the most practical
sess importance from a merely speculative point of
character, since the simplified law at the present
moment guides the decisions of courts in which
the interests which are the subject of litigation are

at least as large as those litigated in English
tribunals, even including the Court of Chancery.

Simplified English law, actually applied in a
country which is the most litigious in the world,
and which, of all countries, is most rapidly ad-
vancing in wealth, is surely worthy of the observa-
tion of English lawyers.

I shall be again in Calcutta about the beginning

This subject may now be calmly considered. It is one of more than common gravity to the executive. Home Secretaries, however much they may differ from one another on the policy of particular modes of dealing with crime, agree in declaring that their most anxious duty is to advise on the execution of a death sentence which has been actually passed. Considerations regarding the prisoner personally, the community in the peculiar case, and the evidence at the trial, on the true weight and balance of which depends justice both to the prisoner and to the community, are sufficient to trouble the most equalminded adviser of the CROWN. But it is not the special circumstances only which press on him; the arguments against infliction of the extreme punishment generally, the irrevocability of life once put out, the fallibility of testimony of whatever apparent strength, and the reaction on the public mind and feeling of a violent death, all gather a cloud of responsibility about the perplexed Minister. This is true even where individual crime has placed the decision of the issue of life and death in his hands; but where the case is such that the decision must strengthen or weaken the feeling of allegiance of millions of the people to the QUEEN's Government, where in addition to all the usual elements of difficulty there lies at the bottom the question whether the crime committed ought to be treated as civil or political, such a degree of embarrassment is created, that the exercise of the prerogative of mercy becomes well nigh too onerous a matter to be determined without some sanction, so far as the constitution may admit, of Parliament itself.

To arrive at a conclusion in so arduous an affair, various grounds have been taken of right and of expediency. Probably the sound view of principle is, that in most instances of public administration, expediency makes right. We will not discuss the point, but there is one ground of expediency to which we drew attention last year when the report of the Capital Punishment Commissioners was before us, and which grew worthy of special consideration in resolving how the law should be best vindicated against such outrage as the murder of police-constable BRETT. It is wise sometimes to shut the study-door on abstract theories, and seek philosophy in the streets. Some of the witnesses before the Commission conducted us thither. Legal peers, statesmen, judges, lawyers, jurists, philanthropists, and public writers were examined; but there were two witnesses who had passed their law, who had been in the habit of circumventing lives as palpable practitioners of the criminal felons bodily, of seizing them with their hands as a prey of justice, of putting manacles on their strong limbs in hours and places of solitude and danger, and of leading them captives, like the lower animals, to cages of stone walls and iron bars. And to what did these two practitioners, Mr. Inspector KITTLE and Mr. Inspector TANNER, think that they owed their success and safety in their pursuit of crime?

Prisoners had often told KITTLE, "If it was not for swinging for you, I would stick a knife into you." It frequently happened that a policeman on duty during the still hours of the night, say at three or four o'clock in the mornmitting a burglary, and a constable of low ing, apprehended a burglar in the act of comstature, perhaps, would apprehend an immensely eight inches high would apprehend and convey powerful burglar; a constable five feet seven or to the police-station a burglar six feet high. The danger exists in the act of apprehension. knew that his punishment was only penal serviKITTLE believed that if a desperate character tude for life, he would not hesitate to commit murder to liberate himself from the custody of

the policeman who had him in charge, and he knew that was the feeling of the police generally. TANNER certainly was impressed with the feeling that there were many men who, if it were not for the fear of being hanged, would very deliberately murder him; they would do so if the punishment was only penal servitude, rather than be apprehended.