THE BELLE SAUVAGE ESTATE, LUDGATE HILL.

Just published, in 2 vols. royal 8vo., price 21. 128. 6d. boards,

THE WORSHIPFUL COMPANY OF CUTLERS give SMITH'S LEADING CASES. THIRD EDITION.

Notice, that, at Michaelmas, 1849, the Leases of the Belle Sauvage listate will expire, and that they shall shortly be prepared to receive Tenders for renewed Leases thereof, in whole or in parts.

The Estate occupies an area of nearly 30,000 square feet, and adjoins on one side the open space formerly the site of the Fleet Prison. It combrises the extensive and very desirable premises within the Gateway of he Belle Sauvage-yard, Ludgate-hill, consisting of ten houses and warehouses, numbered from 1 to 10, of which the Belle Sauvage Hotel forms I considerable part. There is also a large range of stabling, &c., at the back or north end of the yard, and approached by the second archway. The Premises are most conveniently situated, and are admirably adapted for an Hotel, Chambers, Warehouses, Clubhouses, and for almost any Establishment requiring extensive accommodation.

For Plans and further particulars, apply at Cutlers' Hall, 6, Cloaklane; or to Messrs. Beaumont & Thompson, Solicitors, 19, Lincoln's-innfields; or to Mr. Richard Tress, Architect, 23, Little St. Thomas Apostle. JAMES BEAUMONT, Clerk.

A Selection of Leading Cases on various branches of the Law, with Notes. By JOHN W. SMITH, Esq., of the Inner Temple, Barrister at Law. Third Edition. By H. S. KEATING, Esq., and JAMES S. WILLES, Esq., of the Inner Temple, Barristers at Law.

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CHRISTIE'S CONCISE PRECEDENTS OF WILLS.-Concise Precedents of Wills, with an Introduction and Practical Notes, adapted chiefly as a Manual for the ready use of Solicitors. By JAMES TRAILL CHRISTIE, of the Middle Temple, Esq., Barrister at Law.

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A TREATISE on the LAW of EASEMENTS. The Times, Dec. 26, 1848.

Second Edition. By CHARLES JAMES GALE, Esq., of the Inner Temple, Barrister at Law.

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THE STATUTES and ORDERS relating to PRACTICE

and PLEADING in the HIGH COURT of CHANCERY, from
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A MANUAL of EQUITY JURISPRUDENCE, as ad

ministered in England, founded on Story's Commentaries, and comprising, in a small compass, the Points of Equity usually occurring in Chancery and Conveyancing, and in the general Practice of a Solicitor. By J. W. SMITH, Esq. Second Edition.

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This day is published, in royal 8vo., price 17. 6s. boards, TREATISE on the POWER and DUTY of an ARBITRATOR, and the LAW of SUBMISSIONS and AWARDS; with an Appendix of Forms, and of the Statutes relating to Arbitration. By FRANCIS RUSSELL, Esq., M. A., Barrister at Law.

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THE FIFTH EDITION of Mr. LUMLEY'S COM

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The Jurist

No. 628-VOL. XIII.

JAN. 20, 1849.

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LONDON, JANUARY 20, 1849.

ing of the Blackstonian cast of mind to the worship of all that is, because it is. It is said, that, if you have We have already, in a former Number of this Journal, an appeal on matter of fact, you must have it to another in reference to an occurrence that had then lately taken jury; and if to one, why not to a second and a third; place, advocated the propriety, not merely of an appeal and where is it to stop? And that the evidence that in criminal cases on fact as well as law, but the esta- will convince one jury, will of course convince another. blishment of some machinery, by which, if, by the re- But, in the first place, we require to know why of sult of the inevitable defects of human institutions, an necessity an appeal must be from one jury to another accused person is convicted and punished, and after-jury, if there could be shewn any substantial reason for wards satisfactorily establishes his innocence, he shall receive at the hands of the State a solemn reversal of the judgment, and compensation for the actual and substantial loss that he can shew he has incurred. We hardly expected, when we wrote our former observations, that so soon again the imperfection of our system of criminal investigation would be manifested, by the discovery of the innocence of another person accused, convicted, and punished. The case we allude to is that of Mr. Barber, who has recently published a pamphlet*, in which all the details of his very singular case are narrated; and, certainly, it is one of those cases which strikingly support the argument of those who contend for a general appeal in criminal cases. We are not, however, going to dwell on the peculiar features of Mr. Barber's case, for the examination of which we refer our readers to the well and most temperately written pamphlet itself, but to renew our attacks upon the perpetuation of the non-appeal system. We have read and heard many arguments, and from men of varied positions and acquirements, against allowing appeals; but they all appear to resolve themselves into the fear of trouble, the fear of expense, or the tenacious cling

calling in another species of tribunal? What is there about this jury so eternally thrown in our faces, that is so marvellous-so allwise and penetrating, that Englishmen cannot disconnect the idea of justice, and especially criminal justice, from that of a jury? Let any man hear the stories that every day's practice brings home from circuit, of the pranks of juries, and he would fancy there could not be a tribunal more likely to err. Yet let anything be proposed in or out of Parliament to withdraw from juries the ultimate finding of facts, and forthwith grave men arise, and forgetting, or choosing to forget, how many times they have laughed at the fatuity of juries, pronounce grave eulogiums on the trial by jury-palladium of our liberties, &c. But, in the next place, why should it be assumed, that what will convince one jury must necessarily convince another? In equity, a Vice-Chancellor is a jury, and the Chancellor is an appeal jury; yet we do not find that the Chancellor, on appeal, always draws from the evidence the same conclusion that a Vice-Chancellor has done. On the contrary, nothing is more common than for a decree to be reversed, because the evidence does not, in the mind of the Chancellor, support the conclusion of fact drawn by the Court below. In the next place, all the while that objections are made to appealing, on matter of fact, to any other tribunal than

1

a jury, there is, in reality such an appeal; for what else is the application ad misericordiam to the Crown? It is, in form, a prayer for pardon; it is, in reality, an appeal to the Secretary of State to review the facts-for the law, we believe, he never attempts to review; and the Secretary of State refers it to the Under-secretary of State, who is, of late years at least, always a Barrister. So that there is really an appeal from a jury to one single minister, not a lawyer-who, aiding his inquiries by the assistance of a lawyer, may and does from time to time decide that a jury has incorrectly found its facts. How similar in principle, yet how superior in practice, would be an appeal to a given body of judges on matter of fact as well as of law!

The judgment of the very eminent person who has decided this case is, as might be expected, from his high reputation, and from the nature of the subject, at once elaborate and argumentative, subtle and cautious. Still, if we correctly apprehend its effect, it proceeds on the ground, not of fraud, but of a right of property being in the plaintiff; and, on this view of the question, we propose to submit a few observations to our readers. The case is, unquestionably, one of the first impression. We did not hear it stated in the judgment that there is any direct authority in point, and we believe there is none. The Court referred to cases operating by way of analogy; and the judgment was, therefore, that which, to a lawyer's ear, is rare, but delightful—a judicial argument upon principle.

But then it is said, if there were such an appeal, every convicted person would appeal, with or without Now, the question upon principle comes, in effect, to ground; and, as most convicted persons are penniless, this-whether there is a right of property, not in an unwho is to pay the expense, and what check would there published manuscript or print, for it is clear there be on frivolous appeals? The answer is, first, the coun- is such a property, but in the fact of such a manutry does, in fact, pay a great deal for appeals in civil script or print having been composed. Property, in cases, many of which are frivolous, notwithstanding the the legal sense, can, we apprehend, exist only in some check of costs. The whole establishment of appeal judges material thing. There is no property in the invention of and officers in civil cases is paid for, not by the suitor, a mechanical principle in the abstract; that is settled. but by the public, and probably far exceeds the ex- There is property in a principle applied in practice; pense that would be incurred by criminal appeals, if that is, there is property in the material exhibition of every criminal case involving life or transportation the mechanical idea. So there is property in a literary were appealed. And if civil suitors are entitled to the idea, materialised by being exhibited, explained, maniprivilege of throwing on the country a burthen in re-fested in the form of words written, or, under particular spect of their appeals, why should not criminal suitors legislative enactments, spoken. But there is, we apprehave a like privilege? But a further answer is, that hend, and can be no property at law in an idea unmathough the State has a right to protect itself by punishing terialised; and for this, if for no other reason, that there evil-doers, it has no right to establish for their protection cannot be property except in that which is capable of a confessedly imperfect machinery, and to assume the identification-that which has conditions of existence disresults of that machinery to be correct merely for the tinguishing it from every other thing; whereas an idea, purpose of saving expense. until materialised, cannot be identified-cannot be measured by or confined within any boundaries-cannot, in fact, have precise attributes peculiar to its existence, distinguishing it as a thing different from any other thing. Property, the jus proprietatis, seems, in fact, to require of necessity, to satisfy the term, something material; and when we talk of a man's property in his ideas, it should not be forgotten that the law has hitherto not noticed any such property, except when the ideas have been connected with something material, such as writing, drawing, painting, or the like. Within this view of property fall clearly the cases of unpublished manuscripts or prints. There the author has materialised his ideas: he has embodied them in the form of words written, or of figures delineated upon paper. He has produced a material thing, expressing through matter particular ideas to the mind of the reader or looker. But if a man has conceived only the idea of a work or a picture, has he, can he, have any property in that idea until he has clothed it in material form? Suppose, for instance, the Laocoong roup never to have existed, and that an artist had formed the idea of such a group, could he maintain a right of property in the abstract idea of the central figure of a father surrounded by sons, and all struggling in the coils of a serpent; that is, could he maintain a title to property in the idea, to the extent of preventing any other perdying it? Certainly, no decided case has gone that son from embodying it after his own fashion of embolength. Again, suppose a person of literary imaginait be pretended that he could refuse himself to clothe it tion to conceive the fable of The Paradise Lost, would in language, and at the same time prevent every person from clothing that fable in language of his own? the result would necessarily be, that, in a short space any such doctrine were attempted to be maintained, of time, all subjects of interest might be monopolised by those who would not take the pains to materialise them; and there would remain nothing on which the labours of the writer or artist could be employed.

With regard to the other branch of the subject, the duty of the State to reverse an improper decision with as much solemnity and publicity as that with which it was made, and to compensate the person who has lost, not by his own, but by the error of the State, we conceive the question to be so free from doubt and difficulty, that nothing but the innate indisposition of all States to admit error and accept innovation, could have prevented the principle from being adopted long ago. The justice of the thing can be no more questioned than the justice of Lord Campbell's Act, imposing on railway companies, who have killed men by the carelessness of their servants, the liability to compensate the families of the sufferers; and the difficulty of estimating what a man has lost by losing his business or profession for a given number of years, would not be so great as to require a Laplace to calculate it. It would be about as difficult as it is to compute the pecuniary value of a man's life, under Lord Campbell's Act, and

not more so.

It is a long time since a case of so much interest and importance as that of The Attorney-General v. Strange and Prince Albert v. Strange* has been decided; the interest and importance of the case not depending merely, though much, on the rank and position of the parties engaged, but also on the originality of the question at issue, and the extensive consequences that may

follow the decision.

The facts of the case have been so presented to the Court as to require it to decide this question: whether there is a right of property in literary or artistical composition, entitling the proprietor of the composition to restrain any person, not having his consent, from publishing to the world a catalogue enumerating and identifying the compositions produced; and the Court has decided that there is such a right of property.

* Vice-Chancellor Knight Bruce, 16th January, 1849, not yet reported.

If

Now, if there be no property in an idea unmate