aliunde that it was intended to be kept secret;1 and in cases of negotiable instruments it is still more necessary for the Court to interfere, not only to enforce a discovery in aid of an action, but to relieve the plaintiff from danger and the vexation of a suit, by giving him possession of the instrument. A bill therefore improperly given by a partner in the name of the firm to secure a private debt will be decreed to be delivered up to be cancelled, and that without sending the case to a court of law if the facts be indisputably clear. Where the legislature has declared certain instruments to be void, a court of equity will give supplementary relief by ordering the delivering up of the instrument where the statute has not authorized the exercise of any such authority by a court of law,3 as in the instances of securities void under the statutes against gaming and usury; and so an annuity deed will be decreed to be delivered up to be cancelled, not only where it is set aside as fraudulent and oppressive on account of inadequacy of consideration, but also where it is void under the act for want of a perfect memorial, and this after the failure of an application to a court of law for a like purpose.6 Instruments suspected to be forged will be ordered to be deposited with the registrar and preserved with a view to the prosecution of the offender; but a court of equity will not in general order a power of attorney, which is a revocable instrument, to be delivered up, nor does there appear to be any instance where a voluntary conveyance has been decreed to be delivered up in favour of a subsequent purchaser, probably because it is good as against the grantor.9 Fraud in obtaining a reversionary presentation to a living is considered as a fit subject to be left to the jurisdiction of the Ecclesiastical 2 Newman v. Milner, 2 Ves. jun. 483; Jervis v. White, 7 Ves. 483. See 8 Pri. 689, and 2 Sw. 544. 37 Ves. 22. ↑ Rawdon v. Shadwell, Ambl. 268; Wynne v. Callender, 1 Russ. 293. See cases passim, 5 Ves. 605, 610, 623; 2 Sw. 157; 1 Sim. 153. 6 Angel v. Haddon, 2 Mer. 164. 7 Winchester v. Fournier, 2 Ves. 445, 446; Jones v. Jones, 3 Atk. 110; Fonbl. Eq. 328, n. 8 7 Ves. 28. 9 Oxley v. Lee, 1 Atk. 625. Court, though if the validity of the presentation be questionable, a court of equity has authority to issue an injunction to stay institution. In Jones v. Frost, upon a bill to have a pretended will, against the validity of which the Ecclesiastical Court had decreed, delivered up to be cancelled, relief was refused, because the will, having been declared a nullity by the proper Court, could never be made use of; but this has been considered an insufficient reason in many of the cases already cited of instruments declared to be void or fraudulently obtained; and Lord Eldon has observed,3 that where a will has been declared by a competent tribunal to be totally invalid, he would not say there were not cases in which the heir at law might not apply to have such delivered up as an instrument which ought not to be a cloud upon his title. F. I. H. ART. VII.-THE PRISONERS' COUNSEL BILL. Letter to the Right Hon. Lord Dacre, Chairman of the Quarter Sessions of Hertfordshire, on the Prisoners' Counsel Bill. By Frederic Calvert, Esq., Barrister at Law. London, 1836. THE Prisoners' Counsel Bill has attracted much more of the public attention than is usually bestowed on legal matters, and it was our intention to discuss the subject in all its bearings, but we have unfortunately procrastinated that intention till it is too late to act upon it effectually, in the hope of being able to write without the fear of the Lords before our eyes. The minutes of evidence given before the Committee of the Upper House have been hitherto strictly confined to the Peers constituting that Committee, and we are thus prevented from availing ourselves of the conclusive testimony of Mr. Charles Phillips and Lord Wharncliffe, which (particularly Mr. Phillips') are admirably adapted to clear up the prevailing errors as to the Bill. At present its opponents labour under great disadvantages. The arguments in favour of the change are all of a catching, popular, and easily-intelligible sort, and have been brought forward both in and out of Parliament by speakers and writers the best qualified to make the most of them. As regards popular impression, for example, the eloquent appeals of Lord Abinger and Mr. Horace Twiss in the debate of 1824, were ineffectually, though most ably, encountered by the dry practical conclusions of the solicitor-general of the day (Sir N. Tindal), and the blow was followed up by a sparkling article in the Edinburgh Review, generally understood to be from the pen of the Rev. Sydney Smith, whose unrivalled humour is almost invariably made subservient to his reasonings, and results, in fact, in nine cases out of ten, from the clearness and fulness with which the reductio ad absurdum is made out. But a large proportion of the profession (including three-fourths of the judges) are still unconvinced, and as it seems probable that no future opportunity will be afforded us, we will briefly indicate the principal grounds on which their opposition is based. In the great majority of criminal trials, the question for the jury is a very simple one, whether the prisoner has or has not committed an ordinary offence; the circumstances of presumption (where presumption is necessary) are such as are daily occurring in the common intercourse of life-those cases of circumstantial evidence which excite the imagination of the public, being in actual practice exceedingly rare,—and all the material bearings of the facts almost invariably suggest themselves, or are suggested in the examination and cross-examination of the witnesses. We would appeal to any sensible man who has been in the habit of attending courts of justice, whether by the time the defending counsel has asked a few questions, the nature of the meditated defence has not generally become clear to every one; we would likewise appeal to him to declare, whether, in the generality of cases, he has entertained a suspicion that the prisoner has been unfairly treated, or that his position would have been bettered by a speech. Mr. Sydney Smith thinks otherwise, or at least leads his readers to think otherwise, for we cannot help fancying that he himself is not deceived by the fallacy : "The particular improvement, of allowing counsel to those who are accused of felony, is so far from being unnecessary, from any extraordinary indulgence shown to English prisoners, that we really cannot help suspecting, that not a year elapses in which many innocent persons are not found guilty. How is it possible, indeed, that it can be otherwise? There are seventy or eighty persons to be tried for various offences at the Assizes, who have lain in prison for some months; and fifty of whom, perhaps, are of the lowest order of the people, without friends in any better condition than themselves, and without one single penny to employ in their defence. How are they to obtain witnesses? No attorney can be employed-no subpoena can be taken out; the witnesses are fifty miles off, perhaps--totally uninstructed-living from hand to mouth utterly unable to give up their daily occupation, to pay for their journey, or for their support when arrived at the town of trial—and, if they could get there, not knowing where to go, or what to do. It is impossible but that an human being, in such an helpless situation, must be found guilty; for as he cannot give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against him must be taken for true (however false); since it is impossible for the poor wretch to contradict it. A brother or a sister may come-and support every suffering and privation themselves in coming; but the prisoner cannot often have such claims upon the persons who have witnessed the transaction, nor any other claims but those which an unjustly accused person has upon those whose testimony can exculpate him -and who probably must starve themselves and their families to do it. It is true, a case of life and death will rouse the poorest persons, every now and then, to extraordinary exertions, and they may tramp through mud and dirt to the assize town to save a life —though even this effort is precarious enough: but imprisonment, hard labour, or transportation, appeal less forcibly than death,and would often appeal for evidence in vain, to the feeble and limited resources of extreme poverty. It is not that a great proportion of those accused are not guilty—but that some are notand are utterly without means of establishing their innocence. do not believe they are often accused from wilful and corrupt perjury; but the prosecutor is himself mistaken. The crime has been committed; and in his thirst for vengeance, he has got hold of the wrong man. The wheat was stolen out of the barn; and, amidst many other collateral circumstances, the witnesses (paid and brought up by a wealthy prosecutor, who is repaid by the county) swear that they saw a man, very like the prisoner, with a sack of We corn upon his shoulder, at an early hour of the morning, going from the barn in the direction of the prisoner's cottage! Here is one link, and a very material link, of a long chain of circumstantial evidence. Judge and jury must give it weight, till it is contradicted. In fact, the prisoner did not steal the corn; he was, to be sure, out of his cottage at the same hour--and that also is proved -but travelling in a totally different direction,-and was seen to be so travelling by a stage-coachman passing by, and by a marketgardener. An attorney with money in his pocket, whom every moment of such employ made richer by six-and-eightpence, would have had the two witnesses ready, and at rack and manger, from the first day of the assize; and the innocence of the prisoner would have been established: but by what possible means is the destitute ignorant wretch himself to find or to produce such witnesses? or how can the most humane jury, and the most acute judge, refuse to consider him as guilty, till his witnesses are produced?1 We have not the slightest disposition to exaggerate, and, on the contrary, should be extremely pleased to be convinced that our apprehensions were unfounded; but we have often felt extreme pain at the hopeless and unprotected state of prisoners; and we cannot find any answer to our suspicions, or discover any means by which this perversion of justice, under the present state of the law, can be prevented from taking place. Against the prisoner are arrayed all the resources of an angry prosecutor, who has certainly (let who will be the culprit) suffered a serious injury. He has his hand, too, in the public purse; for he prosecutes at the expense of the county. He cannot even relent; for the magistrate has bound him over to indict. His witnesses cannot fail him; for they are all bound over by the same magistrate to give evidence. He is out of prison too, and can exert himself. "The prisoner, on the other hand, comes into Court, squalid and depressed from long confinement-utterly unable to tell his own story from want of words and want of confidence, and as unable to produce evidence from want of money. His fate accordingly is obvious;—and that there are many innocent men punished every year, for crimes they have not committed, appears to us to be extremely probable."--Edin. Rev. vol. xlv. pp. 76, 77. There are expressions in this paragraph explicit enough to acquit the writer of any intention to contend that the disadvantages enumerated by him are attributable to this one particular defect (assuming it to be one) in our law; but his readers ! Would a speech produce them? |