Report of the Select Committee on Capital Punishments. Lewes, ford-on-Avon, and Warwick; and of the ... ... J. St. John Yates, Esq., Judge of the County Courts of Cheshire, holden at Congleton, Hyde, Macclesfield, and Stockport; of the County Court of Derbyshire, holden at Glossop; and of the County of Lancashire, holden at Ashtonunder-Lyne 1,350 66 301 is struggling, and his body is writhing, are going on; with obscene expressions" (234); that "the sight 1,350 clearly diminishes the awfulness of the effects of capital punishment" (235, 333); that there was no evidence of any moral impression (45); that the death of the criminal is followed by "sounds of low jesting and indecent ribaldry" (85), "the hubbub and uproar being most disgusting" (Letter 2). That in conversation afterwards the spectators "made light of it" (103), with such remarks as, "I should not care about being hanged, if that is all" (105); that it was not to them "a terrible sight" (322); that when viewed more seriously, it was too often from the gratification of merely 'revengeful feelings" (110, 333); that its tendency is "to harden those who see it " (113, 232), who “ to it as they go would to a theatre, or the exhibition of a bull-fight; pretty nearly the same faces being observed near the scaffold on each occasion" (268). On the other hand one witness, who has had opportunities of observation, thought that the present mode "had a very decidedly beneficial effect" (355); that it "tended to prevent the commision of crime" (353, 372); and that even those who laughed and joked at the time might afterwards be affected by it; but he added, that he knew no instance of this, whilst the notion of the honour of criminals "dying game (378) was very common amongst the lower class of society" (367); and that "speaking individually, he was decidedly of opinion, that it would be much better that executions should take place privately, the present mode satisfying a morbid curiosity which REPORT OF THE SELECT COMMITTEE THAT the committee have met, and considered the subject-matter to them referred; and have examined witnesses, and received communications on the following points: 66 On the effects produced by executions for capital ought not to be gratified" (363-365). offences as they are now conducted— 1. On the spectators. 2. On the population of the towns where the execution takes place. 3. On other criminals. 4. On the criminal himself. 5. As to the evils which may be apprehended from the substitution of comparative privacy, in carrying the last sentence of the law into effect, for the present system of entire publicity. 6. As to the advantages which may result from such a change. 7. As to the effects which have been found to result from such a change in other countries in which the altered system has been adopted. On the first six of these heads of enquiry it is, from the nature of the case, impossible to arrive at anything more certain than opinion: the committee have therefore endeavoured to obtain the opinion of those who, from their official position, possessed peculiar opportunities of drawing their conclusions from actual observation of the working of the present system, and have sifted the grounds on which these opinions have been formed. On the first head of inquiry, the effect, that is to say, of the sight of capital punishment on the mass of the spectators, the great preponderance of evidence represents the sight of capital execution as by no means generally deterring in its effect; that it is regarded as a mere sight to which people throng from all parts (Answers 191, 192, 193, 194). That in the words of the witnesses it is regarded "as a show" (Letter 3); and "that all kinds of levity, jeering, laughing, hooting, whistling, whilst the man is coming up-while he is still suffering-whilst he * We presume that these blanks will be construed as meaning each £1,350. † Sic in Queen's Printer's copy. 2. On the second point, of the moral effect upon the towns where executions take place, it was stated in evidence, that "the whole town for the day was a scene of riot and drunkenness and debauchery of every kind" (677); that the roads approaching it were, towards evening, "filled with disorderly and drunken persons (19); that the country people "flock in as to a bull-baiting or a cock-fight ;" and, after the solemn scene is over, "the day is invariably one of drunkenness, oaths and disorder" (19); that the "day is a kind of holiday spent at the beershops" (213). "The disgraceful state of the town," says a witness of the highest character, "on the day of execution, exceeded anything that I had before witnessed, or could have credited" (Appendix 8). 3. On the third point, of the effect produced on the criminal portion of the population, the evidence was, that the present mode tended to glorify the criminal, and so invest crime with something like the honours of martyrdom (19); that criminals were commonly found to have been frequent attendants at executions (47, 49, 85, 219); that the terrors of death were lightened by the spectacle (142, 170, 172, 173, 239), and "a hardening effect produced on those who were already tainted with crime" (290, 339); "that the imagination of an evil-doer would draw a far more impressive picture of an execution taking place within the gaol, out of his sight, than would be actually presented to his eyes in public (333); and that "no good effect could be traced in criminals to their having witnessed executions" (380); but that "if criminals were executed within the prison walls, and seen no more after trial and sentence, it would strike terror and dismay into the wicked" (Appendix 2). 4. On the criminal himself the effect was described as leading "to bravado, protestations of innocence, singing hymns" of triumph (331); and as "having altogether an injurious influence" (332). 302 Capital Punishment Report-Incorporated Law Society—Annual Report. 5. As to the evils which might be apprehended from any change of system, one of the witnesses gave his "decided opinion that the public execution of criminals deters from crimes" (372). He was also convinced, that "no plan for private executions would satisfy the public generally" (359). He thought "that doubts and suspicions might prevail in the public mind whether the execution had really taken place" (364); and "that the middle and lower classes would wholly disbelieve in the fact of such executions" (373, 390). Another witness thought that such suspicions might exist when sentence had been pronounced against a man of the higher classes, unless some chosen panel of witnesses testified as to the fact (98). Whilst two others wrote, "that the public is certainly in favour of public executions" (Appendix 7). On the other hand, one witness, eminently qualified to form a correct judgment, writes"I have no hesitation in confidently stating that in my opinion no benefit, directly or indirectly, is derived from public executions (Appendix 8). 6. On the advantages which might be looked for from such a change, many of the witnesses gave their opinions. They urged the great advantage of the removal of those evils which have been already enumerated as accruing to the spectators of such scenes generally, to the criminal portion of the community, to the criminals themselves, and to the towns in which public executions are now carried into effect; and they added the expression of their conviction "that a certain mystery and uncertainty about the actual extinction of life creates greater solemnity upon the mind than the public witnessing of the act" (109); that "if it was known to those who might be congregated about, by the tolling of a bell, or some external signals, such as raising a black flag, that at that moment the man was dying, they would more reflect on what was going forward, and it would be attended with a better and more awful effect" (175, 241, 242, 333, 339 [Appendix 2]). Such was stated by one witness to be "the general opinion of the police officers employed under him " (305, 306, 307); and on this principle in another district the prisoners were not allowed to see the execution of capital offenders (184, 185, 186); whilst the witnesses "did not see the slightest difficulty in carrying into effect executions in comparative privacy, so as to remove all danger of the apprehension that they had not been carried into effect, both by the classes who constitute the lookers-on and the community at large" (183). Various modes were suggested for securing this end, such as impanelling a jury for the purpose; admitting a certain number within the walls of the gaol, and allowing them to be present; holding an inquest on the body, &c. 7. As to the customs of other countries with regard to executions, and the effects which have resulted from them, the committee received evidence that in Prussia, and in several of the northern German states, executions have for the last ten or twelve years been always carried into effect within the prison walls (392); that in many of the states of North America the practice of carrying into effect executions within the gaol walls before some few admitted spectators was adopted ten or twelve years ago (426). The executions, also, in the colony of British Guiana are carried into effect within the prison walls (Appendix 5). In Prussia and in America certain official witnesses are present, and a few spectators are admitted by the authorities. The reasons given for the adoption of the change were "the bad moral effects which had been found to follow from public executions" (399); "the morbid feelings excited by the spectacle leading to the commission of crime, and even to the greater frequency of murder" (399); whilst "it drew away attention from the real awfulness of the punishment" (401); and "tended to make the criminal a hero" (402, 428); that "no evils had followed from the adoption of the present plan" (403); "that divesting executions of their circumstance and parade made them more terrible to the offender" (431); that "no suspicion had arisen as to the fact of the execution being actually carried into effect" (427); that "there have been rather fewer murders since the change" (412); that "the public feeling in Prussia is decidedly in favour of the present plan, and that a return to the old mode would be generally condemned by all classes" (404, 405, 406, 407); and that in the United States "the opinion of the country is so strong in its favour, that there is no doubt the practice will exist throughout the whole of the union in a very short time" (427, 428). On reviewing the whole of the evidence, the committee are of opinion 1. That executions should in future be carried into effect within the precincts of the prison, or in some place securing similar comparative privacy. 2. That a certain number of official witnesses be present at the execution, and sign a deposition to having witnessed it. 3. That such other spectators as the local authorities see fit to admit be also allowed to be present. 4. That the exact time of the execution be made known to those without, as for instance by the tolling of a bell, which shall cease at the moment of execution, and the hoisting at the same time of a black flag. And the committee have directed the minutes of evidence taken before them, together with an appendix thereto, to be laid before your lordships. 7th July, 1856. INCORPORATED LAW SOCIETY. ANNUAL REPORT OF THE COUNCIL, IN proceeding to state to the Annual General Meet- 1st. The parliamentary measures for the alteration of the law, which more or less affect the interests of the general body of attorneys and solicitors. 2nd. The efforts made to place upon a proper footing the fees of solicitors for business in the Court of Chancery. 3rd. The proposed new courts and offices, the changes in the practice of the courts, questions of solicitors, and cases of malpractice. professional usage, encroachments on the rights of 4th. The legal education and examination of articled clerks. 5th. The general affairs and present position of the society. I. PARLIAMENTARY MEASURES. Alterations in the law.-Since the last annual meeting, several of the bills then pending which affected the interests of solicitors have passed into laws. They all during their progress received such Incorporated Law Society-Annual Report. attention and consideration as, on the part of the profession, the Council deemed advisable. And as these changes in the law are numerous, and many of them of great importance to the legal practitioner, it may be useful briefly to state their purport, before proceeding to the bills in progress through the legislature. Those relating to the administration of justice were as follow: 18 & 19 Vic. c. 42, authorising the administration of oaths abroad by British Consuls, the execution of certain notarial acts, and providing for the admission of documentary evidence in the courts here without proof of seal or signature. By c. 45, the practice relating to county palatine trials is assimilated to that of other counties with respect to issues from the superior courts of common law at Westminster. By c. 48, the jurisdiction of the courts in the cinque ports in civil suits and proceedings is abolished, and transferred to the ordinary jurisdiction of the courts of common law and equity. By c. 90, the right of costs in Crown suits in revenue matters is given to the successful party in the same manner as in proceedings between subject and subject. The act in regard to which there was much discussion in both houses, and a reference to a select committee, was the new and summary remedy on dishonoured bills of exchange and promissory notes. A bill had passed the House of Lords to assimilate the law here to that of the so-called " summary diligence" in Scotland. By c. 67, a new form of writ is provided, and final judgment follows in twelve days, unless the judge permits an appearance and defence, but this special remedy is optional to the plaintiff, and must be taken within six months from the time when the bill shall become due. stead, therefore, of the creation of a new register office for dishonoured bills, and the employment of notaries instead of attorneys, the jurisdiction of the common law courts has been preserved. In By c. 111, actions may now be brought on bills of lading by the parties to whom the bills have been indorsed, in their own, instead of the names of consignees. Previously to this act, the property passed to the endorsee, but the rights of contract continued in the original shipper or owner. The acts affecting the law of property are the Infants' Marriage Settlement Act (c. 33), and the Charitable Trusts Act (c. 124). The former act was passed to remove the disadvantages which had arisen to persons who married during minority, and were incapable of making binding settlements of their property. This may now be effected under the sanction of the Court of Chancery, but the act does not apply to male infants under twenty, nor to females under seventeen. Charitable Trusts Act of 1855 enlarges and amends the Charitable Trusts Act of 1853, and confers additional powers on the commissioners in conducting their inquiries into charities, calling trustees before them, the appointment of official trustees, granting leases, &c. The Another very important act (c. 183), established for the first time the principle of limited liability amongst the partners in joint stock companies with regard to the debts and engagements of such companies. In the department of criminal law it is necessary to mention only one act (c. 126). 303 nistration of justice, under which summary powers are given to justices in petty session as to larceny not exceeding 5s. in value, the payment of expences and restoration of property, with power to increase the salaries of police magistrates, and compensating the clerks of peace for the loss of fees. A bill was long before parliament relating to the despatch of business in Chancery. By c. 134, provision is made for the transfer of the business of the Report Office to the clerks of records and writs,-the extension of the jurisdiction of the judges at chambers, the increase of the salaries of the judges' chief clerks and the clerks of records and writs,--the appointment of additional junior clerks and the apportionment of their salaries,-the grant of retiring pensions and compensations, &c. The statutes of the present session affecting alterations in the law are The Drainage Advances Amendment Act, 19 Vic. c. 9, authorising the commissioners, with the sanction of the Treasury, to make advances in circumstances not previously provided for. The Trial of Offences Act, c. 16, authorising the Court of Queen's Bench to order the trial of indictments to be removed into that court, and to be tried at the Central Criminal Court, though the offences might not be committed within its jurisdiction. The Drafts on Bankers Act, c. 25, which carries into effect the intention of the drawers of cheques, who, for the purpose of security, require that they should be payable only through the hands of a banker. Bills in Parliament.-The council have next to bring to the notice of the meeting the several bills in Parliament which have been introduced in the present session, and the provisions of which they have taken into consideration, in so far as they appeared to bear upon professional practice. There have been several changes under consideration as to the law of property. The Settled Estates Bill, by which it is proposed that the Court of Chancery should be empowered to direct the sale, or the grant of leases, of estates for the benefit of the parties interested,-measures which can only at present be effected by the expensive and dilatory means of a private act of Parliament. The council have suggested some amendments in this bill, and have supported its general principle as advantageous to the parties interested in such estates. Married Women's Reversionary Interest in Personal Property. The council are of opinion that this bill will be useful if amended, so as to place the law as to personal on the same footing as it is now with regard to real property. The Charitable Uses Bill has also been under consideration, the object of which, amongst other provisions, is to diminish the length of time, during which the deed of gift must be enrolled before the decease of the donor. The Advowsons Bill appears to be unobjectionable. It empowers parishioners and others to sell advowsons held in trust, and to apply the proceeds in providing parsonage houses, augmenting small livings, and to other beneficial purposes. The acts relating to the drainage of lands have again been brought before Parliament, for the purpose of further extending the powers of the commissioners. The Tithe Commutation Bill proposes to declare the effect of former acts as to parochial assessments, For diminishing expence and delay in the admi-and to make provision for the more just and uniform 304 Incorporated Law Society-Annual Report. rating of tithe commutation rent-charges to the relief of the poor. The bills which may be considered as particularly relating to the Courts of Law and Equity are as follow : The Appellate Jurisdiction of the House of Lords, for the improvement of which it is proposed to authorise the appointment of two deputy speakers, with peerages for life, selected from personages who have held high judicial office for five years. The Ecclesiastical Courts Abolition Bills are three in number: one brought in by the Solicitor-General, another by Sir F. Kelly, and the last by Mr. Collier. In the first two bills it is proposed to establish a new "court of probate," and in the last to transfer the business to the common law courts and the county courts. The main difficulty in the arrangement is to provide a just and practicable compensation to the proctors for the loss of their practice, whether in London in the Prerogative Court, or in the country in the several Diocesan and other courts, which are several hundreds in number. It yet remains also to arrange the jurisdiction in divorce causes and clergy discipline. The Procedure and Evidence Bill, introducd by Sir Fitzroy Kelly, proposes to extend the rules of evidence very largely-namely, the power of crossexamining and contradicting the evidence of witnesses; the administration of oaths; testimony in cases of adultery, and breach of promise of marriage; the uncorroborated testimony of a single witness, except in cases of treason and affiliation; the evidence of traders' account-books; enforcing the attendance of witnesses; admitting confessions, though threats or promises were held out; but excepting confessions to clergymen or medical men; receiving the depositions of deceased witnesses; expenses of witnesses; payment of money into court in actions of assault, libel, &c.; limitation of actions against retiring partners; oral authority to sign written agreements; in certain criminal cases wives not presumed to act under coercion of husband; and other alterations in the rules of evidence and the mode of procedure. The Council have also attended to the City of London Corporation Bill, and so far as it relates to the jurisdiction and practice of the Lord Mayor's Court, by way of foreign attachment, in which several amendments have been suggested. Several bills for the alteration or amendment of the mercantile and commercial laws have been introduced this session. The Mercantile Law Amendment and the Mercantile Law of Scotland Bill, which have been for some time before the House of Lords, were referred to a select committee, mainly with regard to the proposed abolition of the clause in the Statute of Frauds, which required contracts of a certain amount to be in writing, which alteration is strongly opposed by the merchants of the city. These bills have passed the House of Lords. The Joint Stock Companies Bill, including the provision for limited liability has passed the House of Commons, and. is in committee in the House of Lords. It provides that the winding up of limited liability companies shall take place in the Court of Bankruptcy, leaving the winding up of all other companies to the Court of Chancery. The Law of Partnership Bill, if passed, will enable capitalists to lend their money for carrying on trading and commercial business, and deriving in terest proportional to the profits, without being involved as general partners; and so also agents and managers of companies may be remunerated in proportion to the profits, without incurring the liability of partners. In the department of criminal law, and the jurisdiction of magistrates, The bill which has called for the most attention, is the County and Borough Police Bill, which after many alterations has passed the House of Commons. A bill for the appointment of public prosecutors has been proposed including deputy prosecutors, district agents, and official attorneys. Evidence has been taken before a committee of the House of Commons, and the bill for carrying the project into effect is before a select committee. The bill for amending the qualification of justices of the peace, continues the provision in former acts, acting as justices of the peace whilst in practice. preventing attorneys, solicitors, and proctors, from They form the only class of the community invidiously so excluded by statute. eligible for the appointment that they would be If they are so selected by the lord lieutenant, and approved by the They may act as justices for cities and boroughs; Lord Chancellor, they ought not to be disqualified. and under the Municipal Corporation Act, when elected to the office of Mayor, they are justices of the peace, virtute Officii, for their year of office, and for the year following. Writers to the signet, and solicitors of the supreme courts of Scotland, are not disqualified from acting as justices of the peace for counties in Scotland, and they are appointed to that office in common with other gentlemen of equal position in their respective counties. The Council therefore proposed that the clause in question should be omitted from the bill, and that the only restriction should be that, "Any attorney, solicitor, or proctor, acting as a justice of the peace for any county, riding, or division, should be prohibited practising professionally, either directly or indirectly, in any general or petty sessions, or in any other business transaction, before justices of the peace, or in any criminal business, either at assizes or quarter sessions." The bill has been withdrawn for the present session. II. REMUNERATION OF SOLICITORS. The members of the society are aware, from the previous annual reports of the Council, and from the details contained in the appendix to the report of last year, that the Council have for several years used their exertions to improve the system which regulates the taxation of the fees of solicitors, for business transacted in the Court of Chancery, and to obtain for them a just remuneration for their services. In consequence of the representations made by the Council to the Lord Chancellor, the whole subject was referred by his lordship to the consideration of Lord Justice Turner, Vice-Chancellor Wood, Mr. Follett, and Mr. Walton. Under that reference some members of the Council and other witnesses have been examined by the commissioners; and the commissioners have made their report to the Lord Chancellor, accompanied with a new scale of fees, which is now under the consideration of his lordship, and the Council have reason to hope that this question will shortly be brought to a satisfactory conclusion. (To be concluded in our next.) Law of Costs.-Notes on Recent Statutes. LAW OF COSTS. ON SALE BY THE COURT UNDER EQUITY JURIS- IN a suit for the administration of the estate of a testator, au order was made under the 15 & 16 Vict. c. 86, s. 56, directing certain mortgaged premises to be sold, and they were sold accordingly. Upon further directions, it was referred to the Taxing Master to tax the defendant John Crook Rumsey (the present petitioner) his costs, charges, and expenses properly incurred in or about the execution of the trusts of the will of the testator, and relating thereto, and his costs of this suit, as between solicitor and client. In pursuance of this order, the petititioner's bill of costs was taxed, when the Taxing Master disallowed the two following items :-- "Mr. Waller having raised certain queries on the title, perusing and considering same, and inspecting several of the deeds, and drawing answers thereto and copy, £1 1s. "Copy abstract of the title for the purchaser's solicitor, 26 sheets, £4 6s. 8d." The petitioner having objected to the disallowance, the Taxing Master, on reconsideration, disallowed the first item as before, but he reduced the second item to 13s. 4d. only, which sum he allowed in respect of four sheets of the copy submitted to counsel, on which counsel had written his notes and queries. The four sheets required to be recopied to render the copy abstract submitted to counsel fit to be sent to the purchaser's solicitor. The Taxing Master, in his certificate, stated his reasons for such disallowance and allowance as follow: "No. 1. Mr. Waller is the conveyancer employed by the defendant to peruse the title and draw conditions. The solicitor, as is usual, charges for drawing the conditions. I have disallowed this charge, because I consider the solicitor is remunerated for his trouble in answering the queries of his counsel, by the charge for drawing the conditions. "No. 2. It is not usual to charge for a second fair copy of the abstract for the purchaser, unless under special circumstances, when counsel have made notes on the copy laid before him, so as to render it unfit to go to the purchaser. For this reason, I have disallowed the second copy charged, except four sheets, on the back of which Mr. Waller seems to have written his opinion." On a petition to review the taxation, the Master of the Rolls said "I have ascertained, that according to the old practice it was not customary, except in difficult cases, to send an abstract of title to counsel to prepare the conditions of sale, before putting the property up to sale by auction; but the solicitor used to draw the conditions of sale, and he was allowed to charge for a draft abstract of title, and one fair copy of it, which was delivered to the purchaser; the abstract thus delivered to the purchaser was returned by him, with his queries written upon it; and it was not usual to have two fair copies. Under the statute for the Improvement of the Jurisdiction of Equity, and the general orders 305 of the court, before a sale by the court, an abstract of the title is now laid before the conveyancing counsel, with a view to the preparation of the conditions of sale. The question raised is this: whether a second copy of the abstract to be delivered to the purchaser shall be allowed as a matter of course? and I think it ought not. There may be special circumstances in which a second copy may be allowed, but they do not exist in the present case. "Where some of the sheets of an abstract, which has been laid before counsel, are rendered useless by remarks written upon it, and new sheets are prepared and substituted in their place, the re-copying of such new sheets is allowed; and in this case that allowance has been made. This, however, is not a matter of course, but lies in the discretion of the taxing master; and if sheets are rendered useless, the re-copying may, in the discretion of the taxing master, be allowed for. "As to the second item, counsel having raised objections, and made sundry queriss with reference to the title, the solicitor has charged for perusing the same, inspecting deeds, &c., and copy. The taxing master says that he is remunerated for this by the charge usually made for drawing the conditions of sale, and that it is not a matter of course to allow this charge, for the solicitor is, in fact, relieved from the labour of drawing the conditions of sale by counsel. This is a matter also in the discretion of the taxing master, and is not to be allowed as of course. I think, therefore, that the taxing master is right, and the petition must be dismissed without costs.' Rumsey v. Rumsey; exparte Rumsey, 21 Beav. 40. NOTES ON RECENT STATUTES. COMMON LAW PROCEDURE ACT, 1854. FORM OF ANSWERS TO INTERROGATORIES UNDER s. 51. Semble, that the answers to interrogatories under the 17 & 18 Vic. c. 125, s. 51, ought not to be general. The proper course to answer each interrogatory categorically, or to assign reasons for refusing to answer each question specifically. Where a party objected to the sufficiency of the answers filed on February 23, 1856, an application on May 5, for a vivâ voce examination under s. 53, was held too late. The party should apply promptly or satisfactorily explain the delay. Chester v. Wortley and another, 18 Com. B. 239. PRODUCTION OF DOCUMENTS ON HEARING OF Upon the hearing of a rule nisi to rescind an order for the review of the taxation of a bill of costs, it was objected that neither the rule, nor the affidavits on which it was drawn up, disclosed what the taxation was. The Court, in the exercise of their discretion, under the 17 & 18 Vict. c. 125, s. 46, ordered the allocatur to be produced for their inspection, without imposing any terms. Ashcroft v. Foulkes, 18 Com. B. 261. |