committed every crime in the decalogue or the statute-book except the one set forth in the indictment. He may be a veteran from what Carlyle calls the devil's regiments of the line. He may manifestly belong to the dangerous classes; he may be guilty of the great and heavy crime of rags, stupidity, and poverty,yet he is thrown into the mill of the statute, and whirled off to the stand as a witness, where the most humane and tender of judges cannot protect him. The result is easy to foresee. He is torn to pieces by cross-examination. There are fifty things that he would keep back if he could. In a word, he breaks down; and the jury disbelieve him when he is really telling the truth, and find him guilty of the one crime of which he is really innocent. Surely, the advocates and admirers of the statute would hardly say that it is desirable to convict even a bad man, in such a way as this, of a crime of which he is not guilty.

To illustrate still further the operation of this new system in extorting evidence from the defendant himself, let us take a case which has already occurred, and which may recur at every term of the court. Let us suppose, then, a man by no means dead in trespasses and sins, but having a character to lose, and incommoded besides, with the possession of a conscience, to be indicted as a common seller of intoxicating liquors. Suppose it be proved. that he is the owner and keeper of a grocery. Suppose some loafer, who has been disappointed in the hope of buying liquor on credit at his shop, should swear positively to the "three distinct and separate sales" within the period covered by the indictment, which the law says shall be sufficient proof of the charge. If he should decline to make himself a witness, the jury would convict him without leaving their seats. He takes the stand, and swears that he never in his life sold one drop to the witness whose testimony has been given in. Then comes the cross-examination; and he finds that the whole subject of the general charge against him is open to inquiry. The confession that he has made three other sales is forced out of him; and he is convicted on his own evidence, after he has been successful in demolishing all other evidence in favour of the prosecution.

If, in the trial of an indictment, the defendant is made a competent witness, he must stand or fall by the story which he can tell. If he is a witness at all, he will fare like every other witness, and will besides labour under the disadvantage of being an interested witness; telling his story under suspicious circumstances, and labouring under the most extreme temptation to perjury. The guilty (and, practically, they are more than half of the whole number of the accused parties at a criminal term) will add the crime of perjury to the crime set forth in the indictment. Even of the innocent, some, under the influence of terror and anxiety, may mix some falsehood with the truth, and so increase the embarrass

ment and aggravate the dangers of their position; some, and probably not a few, from stupidity, from unskilfulness, or from want of established good character, may tell their story badly, and fail to command belief, even when they speak the truth; others will get no farther than simply to protest their innocence, which protest simply leaves the case where it stood before. In all such cases, the alleged privilege of testifying will simply be either nugatory and useless, or an engine of torture and oppression. It is to be remembered, that the statute is universal in its application, and reaches the case of the adroit and hardened culprit, the experienced felon, the green and ignorant novice, the nervous, timid, and feeble boy or woman, the foreigner, all orders and conditions of men, and almost every form of helplessness. All will be tempted to falsehood; all will be badgered on cross-examination. The experienced and self-possessed villain may possibly succeed in swearing his way through: the inexperienced and unskilful will be swallowed up.

It

But it is said that appearances may be so much against an innocent man that he cannot escape on unjust and wrongful conviction in any way unless he can testify in his own behalf. It certainly must be a very peculiar and extraordinary state of facts which could place an innocent man in such a position,-so peculiar and so extraordinary that it may be safely said to be of exceedingly rare and infrequent occurrence. False testimony may do it at any time; but it is not possible for mere statutes to protect the accused against perjury. must be "the lie with circumstance" that creates the danger in such cases; and mere denial by the accused, even though under oath, might avail very little. But if appearances are against a defendant,-that is to say, if facts and circumstances are proved, by honest testimony, which tend strongly to prove his guilt,-he, of course, must meet and explain those facts and circumstances. If he has counsel, the defendant's explanation will at least be suggested. If he has no counsel, he will, in answer to the call of the presiding judge, make the suggestion himself. If he is really innocent, all the true and honest evidence against him will be consistent with his innocence. Truth is always consistent with itself, and requires no ingenuity or skill for its exhibition. The explanation will come out and be made known. If it meets and covers the case, it will relieve him, even if it be only laid before the jury as a theory, or as a possible state of facts, consistent with the evidence, and also consistent with the innocence of the defendant. If it do not meet and cover the case, it will avail nothing to swear to it. The presumption of innocence, and the reasonable possibility of innocence, consistently with the facts proved, constitute the real and effective defence in all such cases.

It sometimes happens undoubtedly, especially in the case of atrocious and startling

crimes, that the public anxiety and alarm stimulate detectives into extreme activity, and reuse up some witnesses into a degree of positiveness and firmness of recollection that may be quite unwarrantable. Fearful mistakes are sometimes made as to the identity of the person arrested and on trial with the actual perpetrator of some great outrage. But, in such cases, the mere denial by the accused would not be greatly re-enforced by his oath. It costs so little for a felon to deny his crime ! Of course, he would deny it. The true pro

tection is the discrimination and carefulness of the presiding judge, the zeal and energy of the counsel in defence, the fairness and integrity of the public prosecutor, and, last and best of all, the conscientious and wise caution of the jury.

To sum up, then, the objections to the new system of the administration of criminal justice, we take these points:

It will be found to be compulsory in its operation, and will force defendants generally, in criminal cases, to take the stand as wit

nesses.

It will compel the guilty either to criminate themselves, or rely upon perjury for their protection.

It will, to a great degree, deprive all accused parties of the benefit of the presumption of innocence.

It will lead to such an accumulation of false and worthless testimony in the criminal courts, that there will be great danger that jurors will habitually disbelieve all testimony coming from any defendants.

It gives to persons who really are not guilty of any offence charged against them no substantial advantage over the presumption of innocence, and is wholly illusory as a privilege.

It tends to degrade the trial of a criminal case into a personal altercation between the prosecutor and the accused.

It is an experiment entered upon without necessity, not called for by the profession, not petitioned for by any body, demoralizing from its encouragement of perjury, and useless for the purpose of accomplishing any substantial good result.-American Law Review.

LAW IN ROMANCE.

The law is, after all, the most romantic of professions. Happily for its members, it is not entirely composed of sheepskin, and dust, and decided cases,-"quiddits and quillets, cases and tenures," as Hamlet hath it,-of contingent remainders or executory devises. It hath its paths of pleasantness, which are not necessarily those of Ferne, Littleton, or Chitty, but are more akin to human nature. And when we say that law has its romantic side, we mean that it has more to do than any other profession with those striking episodes in men's lives of which writers of fiction have taken advantage, either to incorporate, in

making them the groundwork of their romances, or to imitate, in feigning similar events as occurring to the creatures of their fancy. The law sees men under the influence of powerful emotions, in the commission of terrible crimes. It sees the evil passions of suitors in conflict one with the other. It sees violent and sudden alternation from great riches to extreme poverty, and the reverse. It sees much suffering and much oppression. And in all these it knows and understands the motives, and sees the workings, of the minds of the actors. For these reasons have we termed law the most romantic of professions, and not only the vast collection of causes celèbres, but the myriads of unreported cases containing as much that is marvellous, prove this beyond peradventure. Hence it is not strange that writers of fiction, seeking where they can find what most will interest their readers, have often turned to the law, and invoked its invaluable assistance in compounding a plot, or inventing a striking episode. We propose, therefore, looking at law in romance, which is the shade or idwλov of romance in law, which seeks to copy, if not to surpass, the reality in the extraordinary complication of events and episodes into which men may be led by crime, passion, or accident. Law, in this species of literature,-which, to separate from more orthodox law-books in buff, should be termed a sort of profane law,-may be divided into two classes: 1st, the cases where the plot turns on a legal point or proceeding in law; 2nd, where the circumstances of the tale culminate in a trial in court. Sometimes both are combined, and then there is law to the heart's content. It may be little pleasure to the tired lawyer, seeking relief in the literature of fancy after several hours' sharp engagement with Coke or Preston, to find their doctrines lying hid, like a snake, among the flowers of the imagination to which he has wandered for relaxation; and, on the other hand, to the hungry law-student, craving, with never-abated greed, the maxims of his profession, the law in fiction affords but an unsatisfying morsel.

Of the first class, the stereotyped instances are those where the plot turns on a disputed will, a forged deed, an altered marriage register, or a contested inheritance. The second is chiefly occupied by those cases where, after a variety of adventures, the hero or heroine is justly or unjustly accused of some crime, generally murder. In these cases, as a court-room during a capital trial is sure of a crowded and attentive audience, no matter how unimportant the person of the accused; so the author however dull may be the rest of his book, is sure of making one or perhaps two stirring chapters, and exciting a final interest in which his story may terminate. To a professional reader, however, this blaze of fireworks is apt to be rather tame, unless truthfully done; and the sticks of the rockets are painfully apparent, much as a diagnosis of the disease of which

the villain has expired, would be to a medical reader. It may be assumed, in the beginning, that the virtuous is always unjustly accused; and that it is morally certain that a new witness will appear before the trial is over, or, what is more probable, that the murdered man will turn up just before the word "Guilty" is pronounced by the foreman.

A good instance of the first class, and the work of fiction in which we are brought face to face most directly with the law, is Warren's "Ten Thousand a Year." Here we have barristers and attorneys without number, their characters described, and their conversation given, an account of a most interesting trial, and the whole composed by a barrister of excellent stand ng, and himself the author of an admirable work on the study of the law. Yet, wonderful to say, the whole point of the plot turns on law which cannot be held otherwise than bad. The book is so well known, that we need but refer in the fewest possible words to the plot: Tittlebat Titmouse, a vulgar and illiterate counter-jumper, is suddenly informed by the firm of Quirk, Gammon, & Snap, a trio of rascally attorneys, that he is the rightful owner of a property of £10,000 a year, now held by another. An action is brought, and the cause of "Doe on the demise of Titmouse v. Jolter" comes on to be heard at the York Assizes before Lord Widdrington, Lord Chief Justice of the King's Bench, and a special jury. For the plaintiff appear Mr. Subtle, Mr. Quicksilver, and Mr. Lynx. For the defendant, Mr. Attorney General, Mr. Sterling, Mr. Chrystal. According to the author's system of nomenclature, the counsel's powers shine forth in their patronymics (if this latter title is not a misnomer). The case depends upon the descent from a common ancester, and on the following pedigree :

Harry D.

Stephen D.

DREDLINGTON.

A female descendant

marries Gabriel

Tittlebat Titmouse, through

Charles D.

Geoffrey D.

A female descendant marries father of defendant.

whom plaintiff claims. The history of the pedigree is this: Of old Dredlington's sons, the eldest, Harry, had taken to wild courses, gone to the Jews, and, to obtain money, had conveyed his inheritance, his father still living, to one Moses Aron. The second son, Charles, had lived more quietly, and died leaving two sons, Stephen and Geoffrey. Stephen had followed his uncle Harry's example, entered the navy, and died, it was thought, without issue. Geoffrey thus succeeded, and, for greater precaution, took an assignment of the conveyance of his uncle Harry to Aron. Under him the defendant claimed.

The plaintiff's case was to show that Stephen had left issue. It was proved that he had married a woman of low rank, just before going

to sea, by whom he had a daughter, who was the mother of the plaintiff. Here the plaintiff rested. The defendant's title, then, depended only on the conveyance of Harry to Moses Aron, during the lifetime of his father, which, it was conceded, was invalid even by estoppel; but, on the evening before the trial, the defendant's attorney discovered a deed from old Dredlington to Geoffrey confirming the conveyance made by Harry.

The story of the trial is told with much circumstance. The opening of counsel and the evidence are given in detail. Harry's conveyance is well known to all parties, but is little relied on because made during his father's lifetime. The deed of confirmation comes like a thunder-clap, and is to decide the case. It is an ancient deed over thirty years of age. Its custody and possession are satisfactorily accounted for. No question is raised as to the handwriting. It is about to be admitted, when Mr. Lynx, true to his name, discovers an erasure in a material part. Let us quote Mr. Warren, "The plain fact of the case was this, —the attorney's clerk, in copying out the deed, which was one of considerable length, had written four or five words by mistake; and, fearing to exasperate his master by rendering necessary a new deed and stamp, and occasioning trouble and delay, neatly scratched out the erroneous words, and over the erasure wrote the correct ones. After argument, the deed was not permitted to be placed in evidence, and the plaintiff had a verdict for his estate worth $50,000 a year. This, then, is the turning-point of this legal novel, written by a lawyer, elaborated with great effect, and, after all, on the face, is now, and was then, undoubtedly bad law. Here was an ancient deed over thirty years old, the signatures undenied, the possession proved, with an erasure in a handwriting the same as the rest of the deed, and yet it was not allowed to go to the jury, but was peremptorily ruled out. We do not think such law can be found in the books, whether new or old. The trial is represented as taking place in the early part of the nineteenth century. For old law hear my Lord Coke:"Secondly, of ancient time, if the deed appeared to be rased or interlined in places materiall, the judges adjudged upon their view the deed to be voyd. But, of latter daies, the judges have left to the jurors to try whether the raising or interlining were before the deliverie." Lord Campbell, in Doe v. Catomore, 16 Q. B. 745, sustains this view; so do the Supreme Court of Massachusetts in Ely v. Ely, 6 Gray, 439, and Mr. Greenleaf and Mr. Sarkie in their treatises on Evidence. question is undoubtedly one of fact, to be left to the jury; and though some contrariety of opinion has arisen as to the proper instructions to be given to them as to the burden of proof and the presumptions of law arising, there is no respectable authority that we are aware of for entirely rejecting the deed as incompetent evidence on account of an alteration.

The

The

Supreme Court of Massachusetts, while they admit that the alterations may be of such a character that the party claiming under the deed may rest on the paper itself, deny that there is any presumption of law that the alterations were made either before or after. Lord Campbell, on the other hand, thinks there is a presumption that they were made before the execution, because the presumption always is against fraud; so there can be no doubt that the question is for the jury, and that the turning-point of this famous novel is bad law. We are told, with much circumstance, that a rule to show cause was obtained, and that, after solemn argument, the ruling of the chief justice was sustained in banc; but this only makes the matter worse.

There is much more of legal matter that is entertaining in the book. The legal characters are well described, the legal jokes told with gusto; and there is scarce a page on which some reference is not made to deeds, courts, or conveyancing. We must content ourselves with copying the description of Mr. Weasel, a celebrated pleader :-

"He was a ravenous lawyer, darting at the point and pith of every case he was concerned in, and sticking to it just as would his bloodthirsty namesake at the neck of a rabbit. In law he lived, moved, and had his being. In his dreams, he was everlastingly spinning out pleadings which he never could understand, and hunting for cases which he could not discover. In the daytime, however, he was more successful. In fact, every thing he saw, heard, or read of, wherever he was, whatever he was doing, suggested to him questions of law that might arise out of it. At his sister's wedding (whither he had not gone without reluctance), he got into a wrangle with the bridegroom, on a question started by himself, whether an infant was liable for goods supplied to his wife before marriage; at his grandmother's funeral, he got into an intricate discussion with a proctor about bona notabilia, with reference to a pair of horn spectacles, which the venerable deceased had left behind her in Scotland, and a poodle in the Isle of Man; and, at church, the reading of the Parable of the Unjust Steward set his devout, ingenious, and fertile mind at work for the remainder of the service as to the modes of stating the case now-a-days against the offender, and whether it would be more advisable to proceed civilly or criminally, and, if the former, at law or in equity."

With this we must dismiss "Ten Thousand a Year" without reference to more of its law, except to say, that it turns out that the mother of T. Titmarsh, Esq, was already feme covert when she espoused his father. Consequently, that gentleman, after going through a variety of entertaining adventures, spending many thousand pounds, becoming a member of the House, and marrying an earl's daughter, reverts to his former obscurity; and being knocked on the head in the futile attempt to recover a loan from an Irish baronet, ends his days peacefully in an asylum. Thus Mr. Warren's mistake in law makes one of the cleverest

novels on the shelves, has amused vast quantities of readers, and will not, we surmise, corrupt the ancient fountains to any very alarming extent.

Worth noticing as another good fiction, with a plot turning on law, is George Eliot's last novel, "Felix Holt, the Radical." Were this the title of an American novel of the present year, one might expect, if told there was law in it, to read some profound constitutional discussion, and to find some new and startling, if not very bad, law laid down; but, as the work was written on the other side of the water, we simply have before us a point of old real-estate law, which might well have found its place in the Year-Books. The law in "Felix Holt," not stated in precise legal phrase, is this: John Justus Transome, being the owner of certain estates a hundred years before the commencement of the story, made a conveyance, “entailing them, while in his possession, on his son Thomas and his heirs male,* with remainder to the Bycliffes in fee." His son Thomas, "a prodigal,” in his father's lifetime and without his father's consent, conveyed his interest to a cousin named Durfey, a lawyer, who appears to have entered upon the death of John Justus, the father, and assumed the name of Transome. One of the descendants of this Durfey, Harold Transome, being in possession, the plot turns upon the discovery of an heir of the Bycliffes, the remainder men, in the person of the heroine. The theory of the novel is this: that the ancient Durfey received a "base fee" from Thomas Transome, which would continue as long as the male line of Transomes existed; but that upon this stock becoming extinct, the estate would become the property of the Bycliffes, the remainder men, if any existed.

It will be remembered that one of the legal points in "Ten Thousand a Year" was somewhat similar to this. The question was whether an heir, in the lifetime of his ancestor, had power to convey away his expectancy so as to bind himself, and those claiming under him, by estoppel, on the subsequent descent of the estate. This, it will be remembered, was decided in the negative; and it was there assumed that a conveyance made by the goodfor-naught Harry Dredlington, in the lifetime of his father, would not bind his heirs. In "Felix Holt," on the contrary, it is taken for granted, that a conveyance made by the equally good-for-naught Thomas Transome, in the lifetime of his father, would pass the estate as against the heirs. The subject is an intricate one, and depends in some measure on the warranties in the deeds.† It is very fully discussed in the note to Doe v. Oliver, in Smith's "Leading Cases," to which more curious readers may refer. The case in "Felix Holt" is, however, clearly distinguishable from that in "Ten Thousand a Year. In the latter case, it was

Of his body," probably, as otherwise the estate of Thomas would be a fee simple (Litt. 31), and the remainder over void.

+ Co. Litt. 265 a. 2 Washburn on real property, 464.

the heir (so to speak, though "nemo est hæres viventis") who made the conveyance in the life of his ancestor, the tenant in fee. In "Felix Holt," it was the remainder man in tail who conveyed, living the tenant for life. By presuming, therefore, that Mr. Durfey persuaded the prodigal to have recourse to that very convenient but absurd fiction of the ancient law, the levying of a fine on the estate tail (and as Mr. Durfey was a lawyer, this is highly probable), Miss Evans will be found to have all the authorities in her favour, even though the prodigal had nothing in the land when he levied the fine. It is not likely the fair authoress looked into the black-letter "Reports of Sir William Jones, Chevalier,”"De Divers Special Cases Cy bien in le Court de Banck Le Roy Come le Common Banck in Angleterre," and perhaps not even in Coke's "Reports," or in Blackstone's "Commentaries;" but, for all that, we think her law on this ancient and abstruse point safe to stand the test of examination.* Had the conveyance been by bargain and sale, or by lease and release, or covenant to stand seised, the issue of Thomas Transome, might have avoided his conveyance by entry; but the "lawyer cousin" probably knew of the case of Machell v. Clarke, 2 Lord Raym. 778, and took the wiser course of the fine.

66

One more of these law-novels certainly claims notice, Mr. Trollope's recent story, Orley Farm." The author frankly says, in his first paragraph, that, did he think his rose by another name would smell as sweet, he should call his story The Great Orley Farm Case." We plunge into court on the first page, and leave it only to ascend barristers' stairs for consultations, to linger in attorneys' offices, and to go into the country to search for witnesses, until the concluding chapters bring us again before the judge and jury. What of social life is described is at judges' countryseats and barristers' town houses. The hero is rising at the bar; the heroine, a daughter of the ermine. Thus we have no stint of law, and, in spite of all, a most delightful and entertaining novel. Mr. Trollope's sojourn among professional men has hitherto been chiefly confined to the clerical order. We have dined among bishops and deans, and listened to the controversies of rectors, curates, prebends,

"Cur fine leive per l'issue en tayle en vie (n'aiant aucun estate) si sont al un que n'ad riens en le terre va solment per voy de conclusion vers le issues et ses lineall issues et vers touts ceux queux veignont en le post."

Godfrey v Wade Term Trin. Ann XXI. Jac. Reg. in Com musi Banco. Sir W. Jones's Rep. 31, 33. S. C. Hobart. 433. a.

"And. on these two cases of the Lord Zonch and Archer, it follows that in the grandfather be tenant in tail. and his father in his life, having nothing in the land, levies a fine with proclamations, and afterwards the grandfather dies, and afterwards the father dies, that this fine shall bind the son." 3 Rep. 90 b.

"A fine by tenant in tail does not affect subsequent remainders, but creates a base or qualified fee, determinable upon the failure of the issue of the person to whom the estate was granted in tail upon which event the remainder man my enter." Christian's note to Blackstone's Comm.

vol. iii. c. 21.

[Elec Cases.

and what not, until we were rather tired of their reverend society. This makes an acquaintance with the bench and bar an greeable change. Mr. Trollope, with his cabinetpainting style and niceness of touch, gives us all varieties of the profession, in court and out; and we would fain linger longer to say a word of our new professional friends. (To be continued.)

THE ACTION OF MANDAMUS. The case of Fotherby v. The Metropolitan Railway Company, which is reported by us this week (15 L. T. Rep. N. S. 243), decides the point that a mandamus may be claimed wholly apart from an action. The section of the C. L. P. A. 1854, upon which the question rests, is the 68th, which says that the plaintiff in any action in any of the superior courts, with certain exceptions, may endorse upon the writ, &c., a notice that the plaintiff intends to claim a writ of mandamus, and the plaintiff may thereupon claim in the declaration, either together with any other demand which may now be enforced in such action, or separately, a writ of mandamus &c. The success

ful contention in the case was, that an action will lie to compel a man to do his duty, even though there be no action at common law for the neglect of that duty, i. e., that the statute creates a new action for mandamus, which is ex debito justitiæ. Erle, C. J., decided that the word separately, in the section, settled the matter. The right to a writ of mandamus is substantive, not adjective to an action. There are some clear judgments on the point in Norris v. The Irish Land Company, 8 E. & B. 512; and 27 L. J. 115, Q. B. Times.

Law

UPPER CANADA REPORTS.

ELECTION CASES.

(Reported by HENRY O'BRIEN, Esq., Barrister-at-Law and Reporter in Pra tice Court and Chambers.)

THE QUEEN EX REL. MACK VS. MANNING. Municipal Act of 1867, sec 73-Disqualification-Lessee of Corporation-Defendant having claim against Corporation assigned before election.

Section 73 of 29. 30 Vic., cap. 51, came into force on the 1st January. 1867.

"Disqualification” is not included in this act in "Qualif cation."

Where a lease, which was for twenty-one years, was origi nally made to a third person for the benefit of the beneficial lessee, and afterwards. during the term. it was surrendered, and a new lease made directly to the benefificial lessee for the remainder of the term, which was for Jess than twenty-one years. it was hel that, looking at the real nature of the transaction, the 1-ssee was not disqualified from being a member of the Corporation.

A claim by the defendant against the Corporation, bonâ fide assigned to a third party, before the election does not disqualify.

[Com. Law Chambers, March 16, 1867 ]

J. A. Boyd obtained a writ in the nature of a quo warranto on the 1st February last, on the rela