26 from my duties as judge in England, of attending the assizes there, and I see with my own eyes how the system works; and I confess that I am of opinion that it works most admirably. Does your Lordship think that the want of such an officer tends often to the failure of justice in England? I think that if the system could be introduced into this great country of England in the same manner, it would be desirable that it should be introduced; but there are most formidable objections, which I was unable to surmount, and which I am afraid may be found any officer of the Crown they please. In political cases | house in Scotland. I am in the habit, when I return affecting the community a grand jury is indispensable, and no restriction should be put upon its motion. . If I were called upon to devise a system, (and I have not considered this question of a public prosecutor very . much), I should be disposed to make the magistrates' clerks these district officers, who might be called public prosecutors, paying them a salary; and I would let them be responsible to some one officer in the county, who should be called the county public prosecutor. Mr. Daries, an American counsellor, spoke to the system prevailing in the state of New York with reference to a public prosecutor. He said that there was a local officer, called the district attorney, in each county of the state, the state being divided into fifty-six counties; that his duties were to conduct, both as attorney and as counsellor, all criminal prosecutions arising within his county. The following are extracts from his evidence: After the grand jury have determined that the case presented, in their judgment, is sufficient to find a bill, it being necessary that twelve of the grand jury should concur to find a bill, the district attorney draws up the bill of indictment, which we regard as requiring high professional skill, because if the indictment is defective, either the prisoner will be acquitted or the indictment will be quashed. Then the indictment is indorsed by the foreman of the grand jury as a true bill, and the grand jury attend in a body and present it to the Court. Then a bench warrant is issued for the arrest of the prisoner, and he is brought in, and if it is a bailable offence, he is bailed; if it is non-bailable, he is committed to custody until trial. Then the district attorney issues subpoenas for the witnesses; it is his business to prove the case, to see that the witnesses are necessary to sustain the indictment; and he is also bound, on the application of the defendant, to issue subpoenas for his witnesses. insurmountable. been surmounted in France, for instance?-In France, Your Lordship is aware that those objections have I suppose, from very early times they had a public prosecutor. The objections which I found so formidable were-First, that it would be a very great expense, because there must be a functionary in every district corresponding with what is called the procurator fiscal in Scotland. He superintends the taking of the original depositions; then he transmits them to the Lord Advocate, and the Lord Advocate and his deputes, to the number of four, examine them, and then they determine what cases are fit for prosecution, and whether the prosecution should be before the sheriff, or whether it should be before the judge of assize. If it is to be before the sheriff, the sheriff, who is sitting all the year round, immediately takes cognisance of these smaller offences; if they are remitted to the assizes, then the depute advocates examine the deposi tions, and they prepare the cases for trial, and one of them goes round each circuit and conducts the prosecutions. To have a corresponding staff of officers for England, such as they have in Scotland, would require a very heavy expense; and that is one objection. Another objection, which I was always afraid of, is as to the patronage-that it would be most alarming to vest such a patronage in the Crown; and I do not know in what other hands it could be safely vested. Of course there is a danger of jobbing with Crown appointments; but there would be much greater danger, I think, if the patronage were vested in the hands of the lord lieutenant, or any local authority. Then another very great obstacle was the interfering in England with the system which has been long established, because in England every person is allowed to put in exercise the Have you ever known that discretion exercised?-criminal law of the country, and he may employ for No case now occurs to me. Mr. Phillimore.-With regard to the expenses of the prisoner's witnesses, what is the course pursued?-If they sue in forma pauperis, they are paid by the county; that applies only to witnesses, however, who are poor, and unable to attend at their own expense; the Court makes allowance for their expenses to be paid. . . . . I think there is a discretion vested in the Court, by which, in a manifest case of fraud, they would not be allowed. In your opinion, that system of allowing the prisoner to call witnesses, to be paid for at the public expense, does not lead to fraud or to forged defences?-I have no recollection of ever hearing it suggested as having led to anything of that kind. Not to false alibis, for instance ?—No; I do not remember a case of the kind. The Right Hon. Lord Campbell, Lord Chief Justice, examined. that purpose any attorney or any counsel that he thinks fit to select. There are a great number of respectable attornies and counsel beginning their career, and who have made progress in their career, who are in possession of that business, and there would be difficulty in disturbing what may be considered, in one sense, a vested interest in them. Then what I should be afraid of would be, an interference with the independence of the Bar; because, if this patronage were vested in the Crown, no one could hold a brief in a criminal court except by the favour of the Attorney-General, or any Mr. Phillimore.—Has your Lordship's attention been person who had this patronage in his possession. It devoted to the consideration of the appointment of a might impair that upon which the country dependspublic prosecutor?-Yes, very much. I had the honour I mean the independence of the Bar, which is always to be Attorney-General for the Crown in England about the boast of the Profession to which I have the honour seven years, and I paid great attention to the subject to belong. These objections deterred me, while I was during the whole of that period. I have since consi- a member of the House of Commons, and while I redered it very attentively, with a view to see whether it presented the Crown in England, from making the was possible to introduce into England the system of a proposal; but at the same time I by no means say that public prosecutor, which I know has been found so they are such as should deter others from making the very beneficial in Scotland. In Scotland I have had attempt, because the public mind may by degrees bean opportunity, from my own observation, of seeing come ripe for such a change, and these obstacles may that the system there established works most admi-be overcome. I think that the prosecutions are better rably, both in the Court of Justiciary, the Supreme Court at Edinburgh, and at the assizes. I have attended in the Court of Justiciary again and again, and the assizes for four counties are held very near my conducted in Scotland than they are in England, because I have observed that the cases are more carefully got up, and there are very few acquittals, although I see no improper convictions. But there is another the helpless, who cannot afford, for instance, to retain a solicitor to manage the prosecution, in the case particularly of children who are ill-used?-I think not. Has your Lordship never known a case where there was great difficulty as to who should incur the expense, for instance, of prosecuting in a case where a child had been ill-used; whether it should be this parish, or whether it should be that parish, or who should take it up?-We have had questions of that sort before the Court of Queen's Bench. Is it not the case that the attorney for the prosecution is often obliged to advance the money for the investigation of offences?—Yes; he is often obliged to bring witnesses, and so on; but the attornies are always very ready to do that, because they are sure of being reimbursed.. reason why I should like to see a public prosecutor introduced into England, if it were possible, which is, that the Attorney-General is placed in England sometimes in a very embarrassing and painful situation. As the law and practice now exist, he is merely a private advocate, and his services may be professionally required by any person who is accused. Then he appears as a private advocate, and sometimes there may be a clashing between his duties as a private advocate and his duties as public prosecutor; because he is, after all, public prosecutor in a certain sense; for it is his Actually a dispute as to who should pay the money? duty to superintend the administration, to a certain-Yes; but still I do not think that offences go withdegree, of the criminal justice of the country. For out investigation in England for the want of a public example, there can be no writ of error brought without prosecutor. his fiat, and he is bound, if there be any reasonable In the case to which your Lordship referred, you ground for the application, to grant a fiat; he would had a dispute as to who should pay the expenses of be guilty of a misdemeanour in his office if he were to prosecution, but the prosecution went on nevertheless? refuse it. In the Court of Queen's Bench last term-It was after conviction. there was an application made for a mandamus to the In your Lordship's opinion, would it not often hapAttorney-General to compel him to grant a fiat for a pen, that although a case might be investigated, it would writ of error; but we said that we had no such autho- not be so thoroughly investigated, where expense was rity that the discretion was left with the Attorney-requisite, as if such an office as that of public proseGeneral. If he is guilty of any misconduct he must cutor existed?—That is not an evil which I have obanswer in Parliament; he may be impeached, and dis- served in England from the present system. missed from his office, and a person who would more worthily do the duties of it may be appointed in his place. He may be applied to for a fiat upon a prosecution in which he himself has been counsel for the accused; and there is no doubt that he would do his duty in a very disinterested manner, and perhaps refer the party to his colleague the Solicitor-General, to avoid the embarrassment of deciding the case of his client, or of a person who has been his client. Still, it places him in a painful situation, from which I think he ought to be rescued if possible. Then, at present, there is this great evil from the want of a public prosecutor in England, that the criminal law is often most shamefully perverted to mere private purposes. Indictments for perjury and for conspiracy are, in a great majority of cases, preferred with a view to extort money; the same for keeping gaming-houses and for keeping brothels. There is at present no sufficient control over these prosecutions, and the criminal law is often perverted to very corrupt purposes. A prosecution for conspiracy is instituted with a view to get money; and when a conviction takes place, there is a compromise-sentence is pronounced, but it is not carried into effect. That is for the want of a public prosecutor, who would superintend that proceeding, and see that the prosecution is not instituted except upon just and legitimate grounds, and that if there is a conviction, and if there is a sentence, the punishment shall be endured by the guilty party. I think, with that view, a public prosecutor is highly desirable. . The English counties vary so much in size and population that it could not be done by counties at all; it must be done by districts. In the county of Lancaster, as you know well, there would be a greater number of functionaries required than in the whole of England south of the Thames.. I understood your Lordship to say that prosecutions are better conducted in Scotland than in England?I really think so. Is that as far as regards their primary state, before they come to trial?-They are better got up. When they come to trial they come into the counsel's hands. You do not prefer the way in which they are then conducted?-No. In the criminal courts where I have the honour to preside I find the business conducted with the greatest possible propriety, both by the counsel for the prosecutions and the counsel for the prisoners. Taking the poorer classes of society, does not your Lordship think that the want of a public prosecutor operates very much to the hardship of the poor and With regard, also, to cases of murder, for instance, where there is no person, very often, on whom the duty immediately devolves, does not your Lordship think that the want of a public prosecutor has been felt? No; I must say that the cases of murder in England are always got up in a very efficient manner. I know of no exception to that observation. . . . . Your Lordship is still of opinion that the criminal law is often shamefully perverted to purposes of private interest?-In cases of perjury and conspiracy, and indictment, as I said, for keeping gaming-houses and brothels, it is most shamefully perverted. Does not your Lordship think that the police very often, in county towns and at sessions, abuse their powers?-No, I am not aware of it. Does your Lordship think it desirable to leave the power of prosecution open to the individual, as well as under the public prosecutor, as is the case in Scotland; or would your Lordship prefer the mode adopted in France, where everything is done by the public prosecutor?-I think myself that it is a privilege which has belonged to Englishmen, and of which they ought not to be deprived if it is properly guarded, to put the criIminal law in force by their own authority. I should not like to see a system established here that there should be no prosecution unless instituted by a public functionary; but I think that it is most essential, and I have recommended it to the present Attorney-General, and, speaking most respectfully, I would recommend it to the members of the House of Commons, to consider whether there should not be some check put upon prosecutions for perjury and conspiracy, and for keeping these gaming-houses, and so on. I think that it would be well if these prosecutions could not be instituted unless with the sanction of a public responsible functionary. Would it be possible to put that in some shape or other in the Attorney-General's hands?—I think that the Attorney-General, or some person acting under his authority, ought to be the functionary whose consent should be necessary for instituting such a prosecution, By giving the Attorney-General a proper staff there would be no difficulty at all?—I do not think there would. (To be continued). Jan. 26, 1856. EDWARD CHARLES CURTIS, Stratford, Essex, builder, BENJAMIN RICHARDSON LAWRENCE, Carshalton, Richard Kettle, Sheffield, woollen draper, Feo. 2 at 10, ShefSurrey, apothecary, Feb. 1 at 1, and March 4 at 12, Lon-field, aud. ac.-Stephen Bennison, Bridlington Quay, Yorkdon: Off. Ass. Edwards; Sol. Reed, 11, Ironmonger-lane, shire, miller, Feb. 6 at 12, Kingston-upon-Hull, aud. ac.City.-Pet. f. Jan. 18. Robert K. Meaden, Walbrook, wine merchant, Feb. 15 at 12, London, div.-James Digby, Birch, Essex, miller, Feb. 13 at 12, London, div.-Wm. Riddell and Mead Terrey Raymond, Sherborne-lane, merchants, Feb. 13 at half-past 11, London, div.-Wm. Dunkley, Daventry, Northamptonshire, grocer, Feb. 13 at 11, London, div.-Hector Rose, Jerusalem Coffeehouse, London, and York-street, Portman-square, merchant, Feb. 14 at 11, London, div.-Samuel Isaacs, Portsea, Hampshire, hardwareman, Feb. 12 at half-past 1, London, div.—Ŵ. H. Burgess, Miles's-lane, London, and Clink-street, Southwark, export oilman, Feb. 12 at half-past 11, London, div.Frederick George Teale and Francis Smith, Welbeck-street, Cavendish-square, and Blackfriars-road, builders, Feb. 13 at THOMAS BATE, Wolverhampton, licensed victualler, Feb. 2 half-past 1, London, div. sep. est. of Frederick George Teale. and 23 at 11, Birmingham: Off. Ass. Christie; Sols. -Lewis Cooke Hertslet and Joseph Okell, Union-court, Old Walker, Wolverhampton; Motteram & Knight, Bir-Broad-street, merchants, Feb. 12 at 12, London, div. joint est., mingham.-Pet. d. Jan. 21. and div. sep. est. of Joseph Okell. ABRAHAM STIMSON, Birmingham, builder, Feb. 4 and JOHN GRIFFITHS, Ludlow, Shropshire, carpenter, Feb. 2 CERTIFICATES. To be allowed, unless Cause be shewn to the contrary on or before the Day of Meeting. Domenico Tomassini, Tottenham-court-road, upholsterer, Feb. 14 at 11, London.-Robert K. Meaden, Walbrook, wine merchant, Feb. 15 at 12, London.-Wm. Dent, Newcastlestreet, Strand, lead merchant, Feb. 15 at 11, London.-Wm. Miller, Whitechapel-road, coffee-house keeper, Feb. 12 at 1, London. Thomas Gorton, Lincoln's-inn-fields, merchant, Feb. 13 at half-past 2, London. — Alexander M'Carroll, WILLIAM PAGE HURLSTON, Cheltenham. Gloucester- Brighton, seller of musical instruments, Feb. 13 at 2, London. shire, innkeeper, Feb. 4 and March 3 at 11, Bristol: Off.N. L. Dyson, Macclesfield, grocer, Feb. 14 at half-past 12, Ass. Acraman; Sol. De Lacy Towle, Cheltenham.-Pet. f. Manchester.-Wm. Insull, Dudley, Worcestershire, stationer, Feb. 21 at half-past 10, Birmingham.-John Griffiths, Wednesfield, Staffordshire, iron dealer, May 19 at half-past 12, Birmingham.-Henry A. Shilton, Coventry, trimming manufacturer, Feb. 14 at half-past 10, Birmingham.-F. D. Blyth, Birmingham, factor, Feb. 14 at half-past 10, Birmingham.Wm. Chamberlain, Walsall, Staffordshire, builder, Feb. 14 at half-past 12, Birmingham.-Wm. Wathen, Hereford, upholsterer, Feb. 14 at half-past 10, Birmingham.-Levi Baugh, Walbrook, Sedgeley, Staffordshire, grocer, Feb. 14 at halfpast 10, Birmingham. Jan. 18. STEPHEN AMER, Bradford, Yorkshire, grocer, Feb. 5 at 12. and March 3 at 11, Leeds: Off. Ass. Hope; Sols. Barrett, Bradford; Cariss & Cudworth, Leeds.-Pet. 4. Jan. 10. HENRY MANSFIELD, Liverpool, toy dealer, Feb. 1 and 28 at 11, Liverpool: Off. Ass. Turner; Sol. Dodge, Liverpool-Pet. f. Ĵan. 19. MEETINGS. Wm. Osler, Earl-street, Finsbury-square, cab proprietor, Feb. 1 at half-past 1, London, last ex.-Edward Hobbs, Brighton, ironmonger, Feb. 5 at 12, London, last ex.-R. Briant, Murray-street, New North-road, Hoxton, carpenter, Feb. 5 at half-past 1. 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By OWEN DAVIES TUDOR, Esq., of the Middle Temple, Barrister at Law, Author of "A Selection of Leading Cases in Equity." London: Butterworths, 7, Fleet-street, her Majesty's Law Publishers. ROUSE'S PRACTICAL CONVEYANCER. THE PRACTICAL CONVEYANCER: a Companion to SHELFORD'S LAW OF RAILWAYS.-THIRD EDITION. THE LAW of RAILWAYS, including the three General CRABB'S CONVEYANCING.-FOURTH EDITION. BY CHRISTIE. reference with general utility, 363 Precedents of Conveyances, Mortgages, A COMPLETE SERIES of PRECEDENTS in CON and Leases, and a Collection of Miscellaneous Forins. By ROLLA L STEPHEN'S LUSH'S COMMON LAW PRACTICE. Just published, Second Edition, 1 thick vol. Svo., 42s. cloth. USH'S PRACTICE of the SUPERIOR COURTS of COMMON LAW at WESTMINSTER, in Actions and Proceedings connected therewith over which they have a common jurisdiction; with Forms; also Introductory Treatises respecting Parties to Actions; VEYANCING, with Common and Commercial Forms, in Alphabetical Order, adapted to the present State of the Law and Practice of Conveyancing. With Prefaces, Observations, and Notes on the several Deeds. By GEORGE CRABB, Esq., Barrister at Law. The Fourth Edition. By J. T. CHRISTIE, Esq., of the Middle Temple, Barrister at Law. London: Butterworths, 7, Fleet-street, her Majesty's Law Publishers. Attornies and Town Agents; Suing in Person, by Attorney, or in Formá THE LAW relating to the PROBATE, LEGACY, and London: Butterworths, 7, Fleet-street, her Majesty's Law Publishers. A SUCCESSION DUTIES, including all the Statutes and the De- PRACTICAL TREATISE on the LAW, PRIVI-A MANUAL of the PRACTICE and EVIDENCE in LEGES, PROCEEDINGS, and USAGE of PARLIAMENT. By THOMAS ERSKINE MAY, Esq., of the Middle Temple, Barrister at Law, First Clerk Assistant of the House of Commons, late one of the Examiners of Petitions for Private Bills in both Houses, and Taxing Officer of the House of Commons. Third Edition, revised and enlarged. CONTENTS.-Book I. Constitution, Powers, and Privileges of Parliament.-II. Practice and Proceedings in Parliament.-III. The Manner of passing Private Bills, shewing the Practice in both Houses, with the latest Standing Orders, and the most recent Precedents. We are informed that Mr. May succeeds Mr. William Ley as First Clerk Assistant of the House of Commons, on that gentleman's resignation. Mr. May is the author of the able treatise on Parliamentary Practice,' which we have had occasion more than once to notice with well-deserved commendation as the great authority on the subject of which it treats."-Times. London: Butterworths, 7, Fleet-street, her Majesty's Law Publishers. ACTIONS and other Proceedings in the County Courts; with the THE LAWS of TURNPIKE ROADS: comprising the whole of the General Acts now in force; the Acts as to Union of Trusts, for facilitating Arrangements with their Creditors, as to the Interference by Railways with Roads, their Non-repair, and enforcing Contributions from Parishes, &c. &c., practically arranged. With Cases, copious Notes, all the necessary Forms, and an elaborate Index, &c. &c. By GEORGE C. OKE, Author of "The Magisterial Synopsis," and "The Magisterial Formulist." London; Butterworths, 7, Fleet-street, her Majesty's Law Publishers. |