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Administration of Justice-Complaint against Mr. Warren, Q. C., Recorder of Hull,

ported; and he is now in a lunatic asylum, hopelessly insane.

by both the governor and chaplain to have been very salutary.

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The Recorder did not sentence any prisoner to be whipped until his third Sessions, when he found it necessary from the increasing numbers and recklessness of juvenile offenders. The result is-that, as stated in the chaplain's report to the magistrates at the last Sessions, there are now fewer prisoners than there have been at any time since October, 1846;' and that, whereas, the two calendars preceding the last contained no fewer than 17 prisoners under 18 years of age, the last contained only two.'

"The Recorder's humane anxiety to do full justice to every prisoner, and the special pains he takes to inform himself of all facts bearing on the quantum of punishment, are known to all who attend the Court; and he constantly states, when the occasion arises, that his object in punishing is to reclaim and prevent.

"I believe there is not a prisoner in the gaol who does not admit having had a fair and impartial trial.

"All the foregoing facts can be verified by the proper authorities, and it is right that they should be known, to prevent misunderstanding, out of respect to the Judge and all concerned in administering justice.”

Second-The boy Regan (aged 15), is alleged to have committed only trivial crimes.' He had been three times previously convicted of felony, viz., on the 11th Nov. 1852, the 27th April 1853, and the 27th May following. He had on each occasion been sentenced by the magistrates to a short period of imprisonment, and on one occasion to be whipped. On the 11th October he was nevertheless again committed on a clear case of felony, aggravated by ingratitude; and the indictment expressly charged two of the previous convictions, in conformity with the recent Statute 12 & 13 Vict. c. 11, s. 3, by which he was liable to two years' imprisonment. The Recorder expressly stated in passing sentence, that his object was to reclaim an apparently incorrigible offender, and separate him for a long period from his guilty companions. He also sentenced him to be four times, not five times privately whipped at intervals during the imprisonment, as one whipping had proved ineffectual. He also himself secured for the prisoner the assistance of a leading counsel at the Sessions, by whom he was vigorously defended. The foreman of the jury recommended the prisoner to mercy, supposing it a first offence, but on hearing of the three convictions, abstained from doing so.. The Recorder visited the prisoner in the gaol after the Sessions, when he exp.essed gratitude for having had a counsel given him by the Recorder. He made strict inquiries as to the state of the prisoner's health, (as he had had, since the sentence, a fit of an epileptic nature, but from which he was recovering), and shortly afterwards the Recorder wrote from London to justice, however, has induced the writer, the governor on the subject, and found that not only to insert the preceding Letter of though apparently well enough at the period of the Clerk of the Peace, but to bear honourhis committal and trial, he was not in good health, and that otherwise than in respect of epileptic fits; that a physician was going to visit him, and, if necessary, he would be transferred to the infirmary. I have every reason "The seeming censure upon the learned for believing that under the circumstances, any Recorder of this borough, implied by the reapplication for a remission of either the whip mission of the sentence passed upon a young pings or imprisonment would have been sup-felon named Regan, by the noble Secretary for ported by the Recorder himself; whose own authority had expired with the Sessions. No whipping at all has been inflicted on the prisoner, who is now conducting himself satisfactorily in the gaol, and attends school, and is learning a trade.

"J. H. GALLOWAY, Clerk of the Peace." Hull, 7th Dec., 1853."

An able leading article appeared in The Hull Advertiser on this subject, and which we extract because it must be disinterested, for the Editor and Mr. Warren are of difA sense of ferent political sentiments.

able testimony to the judicial conduct and character of Mr. Warren during the whole period of his recordership :—

the Home Department, has induced the Clerk of the Peace, Mr. Galloway, to address to us an exceedingly well-written letter, with a view to correct the mischievous reports put abroad upon the subject. In the first place, we beg to assure Mr. Galloway that no impression unfa"Third.The letter speaks of painfully vourable to the conduct of the Recorder, as an numerous flogging sentences' inflicted by the upright, pains-taking, conscientious, and really Recorder. Now out of 230 prisoners tried by humane Judge, found at any time a place in him, many of whom were liable to whippings, our mind. Almost as constant in our attendhe has ordered whippings in only eight cases, ance at the Court of Quarter Sessions as the and every one of those of apparently incor- Recorder himself, and rendered doubly observrigible boys, who had been previously convict-ant by our opposition to many of his welled of felony and other offences twice, thrice, known political opinions, we enjoyed opportufour, and even eight times. When it is neces-nities of forming a judgment as to his real. sary to carry the sentence into effect, the sur- merits, which enabled us to treat with contempt geon is present; the character of the infliction the silly gossip which found its way into some depends entirely on the conduct of the prisoner of the London papers concerning him. And in the gaol, and there has been no single in-being opposed on principle to the whole system stance of undue severity. The effect is declared of flogging, whether in the army, the navy, the

Administration of Justice.-Lectures at the Incorporated Law Society.

INTRODUCTORY

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LECTURE OF MARTIN ARCHER SHEE, ESQ., BARRISTER-ATLAW.

REFERRING to the previous part of this excellent Lecture (page 106, ante), we proceed to give a full report of the remainder. Mr. Shee thus proceeded :

The rules according to which the Court decrees the specific performance of agreements were obviously founded on the clearest and most distinctive principles of equity.

prison, or the public school, we were especially INCORPORATED LAW SOCIETY. careful to ascertain, long before the boy Regan was tried, the degree of severity, and the exact circumstances under which the punishment of whipping was inflicted in the Hull Borough Prison. The result of that inquiry was, to satisfy us that, supposing the punishment of whipping to be retained, it did not matter a great deal whether in 18 months a lad was sentenced to be punished twice or four times. We knew right well that the first person to inquire about the state of the prisoner's health, Connected with the first and most extensive and, if necessary, to suggest mild and reforma- function of equity; viz., the repression of tory treatment, would be the presiding Judge, moral, as contra-distinguished from legal fraud, Mr. Warren. We feel confident that if it was we find the important and effective jurisdiction deemed by the governor, the surgeon, the chap- exercised by the Court, in the enforcement of lain, or the visiting magistrates, desirable to the specific performance of agreements between obtain a remission of the lad's sentence in con- parties contracting on the footing of pecuniary sequence of either bad health, or wonderful or valuable consideration, and the no less moral improvement, the Recorder would be formidable interference by injunction, whether one of the very first to suggest an application in restraint of proceedings commenced or to Lord Palmerston,-nay, he would be the threatened to the irreparable or grievous injury very first to petition the Crown to be made the of present or future rights, or in arrest of the bearer of a message of mercy to the prisoner. ordinary course of law in cases where its reAnd even now, it may be that he was consent-sults would be opposed to good faith or coning to the exercise of the Royal Prerogative of science, or where the true interests of justice mercy by the noble Home Secretary. The require a more searching investigation of facts only mistake now made, was the not selecting than the machinery of the mere legal tribunals the Recorder as the medium of making known can effect. to the people of Hull the remission of Regan's sentence. And we have not the least doubt that this resulted from the noble Home Secretary not being aware of Mr. Warren's personal attention to the interior economy and general management of the Hull Gaol, as well as to the individual condition of the prisoners. Before Mr. Warren's time, it was very unusual for learned Recorders of this borough to trouble their heads in the way which he does about the reformation of the prisoners tried before them. They were content with the correct discharge of what was understood to be their regular official duty. But he does a great deal more; and out of this excess of labour has sprung the kind of opposition which he has hitherto experienced in Hull. This has its origin, not in bad feeling, but in an excessive jealousy of any undue severity on his part. His great powers of personal observation enable him, by the exercise of a sort of prescience, to detect latent crime in the countenance of a prisoner, and thus he is sometimes prompted to address his warnings to the unacted vice before him, as well as to the small acted part revealed in the evidence. Those who have eyes, but see not, cannot comprehend this, and deem him at times rather sharp in his admonitions. But he is an excellent Judge, nevertheless, and requires only to be well supported by the magistracy to effect a wonderful reduction in the juvenile criminality of the borough. While, therefore, we thank Mr. Galloway for the explanation which he has given, we would suggest to him not to 'trouble himself much about idle rumours to the Recorder's prejudice, Mr. Warren is large enough to be the object of such attacks; and he possesses greatness enough in himself to be able to consign to utter nothingness myriads of those capable of making them."

Whatever a man has deliberately and distinctly undertaken to do,-not by way of gratuitous bounty, but as the result or term of a fair negotiation with another person, involving mutuality of contract,-it was evident that he was in good faith and conscience, strictly bound to perform. It would be a mockery of justice to say, that when A. has solemnly contracted with B. for the sale to him of an estate, at a certain price, which both parties have agreed upon as its reasonable value, either party should be at liberty to recede from his bargain, at any time previous to the completion of the transaction by the payment of the purchasemoney on the one hand, and the legal conveyance of the land on the other. And the same observation held equally good with reference to every other variety of beneficial contract which remained in fieri, involving either absolutely or contingently, the performance of subsequent acts as a legitimate consequence of the agreement.

Undoubtedly, our system of law did not ignore these moral obligations, the existence of which was assumed in every action brought on a covenant in a deed. But apart from any question as to the formalities required to constitute an express legal covenant,-formalities in nowise distinguishable in principle, however they might be in degree, from the requisitions of the Statute of Frauds as to the signature of an agreement by or on behalf of the person against whom it was sought to be enforced,-a single glance at the nature of legal procedure on that point, will suffice to show how imperfect was

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Incorporated Law Society-Mr. M. Archer Shee's Introductory Lecture.

the remedy which the jurisdiction of the ordi- of the costs incurred in vindicating the autho nary tribunal could supply. Take, for instance, rity which he had rashly set at defiance. This, the case of a covenant for farther assurance in it must be remembered, was the distinctive a deed of conveyance of land, in fee simple, modus operandi of the Court of Chancery in where the further assurance required by the giving effect to its decrees and orders. Compurchaser, and claimed under the covenant, paratively recent legislation had expressly given would be necessary to his secure possession of to the decrees of the Court, under certain the property; as it might be,-if some cloud restrictions and conditions,-the effect of judgon the inheritance,-affecting the title of the ments at law, for all purposes connected with vendor at the date of the conveyance, had been the liability of real and personal property to removed by matter ex post facto, and invested answer pecuniary demands duly enforced him with an independent and paramount title against its owner; and, in such cases, the to the fee of which he had purported to dis- statutory remedy was cumulative. But the pose. In the event of his refusal, when called Court of Chancery, acting as such, proceeded upon, to execute a further and more complete in personam, treating every species of disobediassurance in pursuance of his covenant,-how ence to its orders, or defiance of its authority, is the purchaser to obtain full redress at law? on the part of those who were properly subIf he sued the defaulting party on the covenant, jected to its jurisdiction,-as a contempt of the -pecuniary damages, by way of compensa- Court, to be personally expiated by imprition, according to the estimate of a jury,-for sonment. The process by which its authority the injury sustained by its infraction, were all was vindicated, was the same in spirit and that was within his reach; while the wrong principle, whether the offending party had doer, subject of course to the payment of da-eloped with a female ward of Court, refused to mages and costs,-was at liberty, as far as the put in his answer to a Bill in Chancery, disinterference of mere law was concerned,-to obeyed an injunction restraining him from cutconvey the subject-matter of the covenant to ting down timber, or omitted to pay a specified another purchaser. sum of money within the period limited by a decree.

It would of course be understood, that this case was put merely by way of illustration, and not as a probable or ordinary combination of circumstances. Perhaps, in most cases of legal covenant on which actions were brought,-the receipt of pecuniary compensation might be a substantial and satisfactory remedy for the injury inflicted. But in the case which he had supposed, as in the vast majority of cases where a man had stipulated for the absolute possession of a specific thing, as for example,-an estate which he coveted as a residence, or valued on account of the local or territorial influence connected with its ownership, the remedy by way of damages, might be to him a mockery. What he wanted was not a sum of money, to be taken as the measure of his loss or disappointment,-but the estate itself.

In such a case, law was powerless for his relief. But equity supplied the real and effective remedy, by constraining the vendor to carry out his agreement modo et formá; i. e. to execute a valid conveyance of the estate, on receipt of the purchase-money agreed upon. In like manner, if it were the purchaser who sought to recede from his bargain, the Court exercised an equally effective control over him, by decreeing the payment of the money, in exchange for the tendered conveyance, previously taking care to ascertain that the vendor was in a position to confer a valid title to the interest which he had agreed to convey.

The perfect efficiency of the remedy in equity, in such cases, was the result of the formidable power vested in the Court, of enforcing obedience to its decrees and orders, by imprisonment of the refractory party, for an indefinite period,-of more or less duration in practice, according to the delay which might intervene before the delinquent purged his contempt by unqualified submission, and payment

This power of commital for contempt was, no doubt, inherent in all the Superior Courts, both of Law and Equity, But it was a power, the exercise of which was rarely called for in reference to disputes relating to property, which were within the province of law, and liable to be decided by the verdict of a jury on matters of fact-the several writs of fieri facias, capias ad satisfaciendum, and haberi facias respectively obtainable, as of right, under a judgment, according to the nature of the case, being in general amply sufficient to vindicate the authority of the legal tribunals. But in equity, the power of committal, if not daily called into action, was essentially the vis motrix on which the whole machinery of the jurisdiction depended. It was no rusty or unwieldy weapon, slumbering in its scabbard, and rarely visible beneath the ponderous folds of the judicial ermine; but a bright, keen-edged, and easily brandished blade, held unsheathed with a firm and vigorous grasp, and ever and anon gleaming portentously in the eyes of all refractory suitors. With the sole exception of the sovereign, whose royal prerogative was, in an es. pecial manner, represented by the jurisdiction of the Great Seal, there was no individual in the kingdom, however exalted his social or po litical station, who could with impunity set at defiance the order of the Court, or in any manner exhibit contempt for its authority.

Nor was this a merely theoretic view of the formidable power in question. The cases of Mr. Long Wellesley and Mr. Lechmere Charlton, are significant examples of the resolute and unflinching manner in which the majesty of the Court has been vindicated in practice,―nct only against deliberate disobedience, but even against irreverent demeanour on the part of members of the Legislature who vainly sup

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posed that the senatorial privilege would suffice rogatus erat : Quibus enim non poterant hæreto shield them from the unpleasant conse- ditatem vel legata relinquere, si relinquebant, quences to which the common herd of mankind fidei committebant eorum qui capere ex testaexpose themselves, by braving the terrors of the seals and mace.

mento poterant hæreditatem, et ideo fidei commissa appellata sunt; quia nullo vinculo juris, sed tantum pudore eorum qui rogabantur, continebantur.”—Inst. Lib. 2, tit. 23.

And it would seem that, among the Romans, the appeal od misericordiam, addresssed to the sovereign power in the case of the more flagrant abuse of the fiduciary possession which the Law ignored, first obtained the exceptional interposition of that paramount authority, in redressing the particular grievance, and ultimately led to the establishment of a permanent jurisdiction invested with functions strictly analogous to those of our Courts of Equity.

The principles upon which the Court acted when interfering by injunction, would naturally occupy a considerable share of attention at a subsequent stage of the inquiry. The nature and mode of that interference were not such as to demand any very elaborate illustration in that preliminary notice. As, in the matter of specific performance, the Court peremptorily constrained the defaulting party to do that which conscience and Equity dictated, so, where it saw manifest injustice about to be perpetrated under the mask or authority of law, or doubtful rights asserted in such a "Posteà Divus Augustus primus semel ilemanner as to threaten irreparable damage, or rumque, gratia personarum motus, vel quia per occasion great practical injury, to the interests ipsius salutem rogatus quis diceretur, aut ob of the party who was adversely litigating those insignem quorundam perfidiam, jussit consulibus rights, it restrained with a strong hand the per- auctoritatem suam interponere; quod quià formance of the act, or the enforcement of the justum videbatur, et populare erat, paulatim legal process by which the scales of justice conversum est in assiduam jurisdictionem : were endangered in their strictest equilibrium. tantus que eorum favor factus est, ut paulatim The variety of cases in which this restraining etiam prætor proprius crearetur, qui de fideipower of the Great Seal might be called into commissis jus diceret quem fidei-commissarium exercise, under divers imaginable combinations appellabant."-Just. of circumstances, was so great as to baffle all attempt at precise classification.

The points on which he had touched were strictly illustrative of the nature of the jurisdiction, as it regarded the broad rule of Equity, irrespectively of the more technical parts of the system.

The Lecturer then passed on to a cursory view of the functions of the Court in the administration of trusts.

The whole subject-matter of trusts was, in an especial manner, and ex vi termini-so to speak the legitimate province of Equity, as relating to the enforcement of duties attached to the legal possession of property in the hands of persons bound by conscientious obligation to hold or administer that property for the benefit of other parties. The nature of the subject, and its origin, as traceable in the writings of the civilians, not only served to mark the distinction between the office of the legal tribunal and the attributes of the forum conscientiæ, but suggested the idea of a conflict between the legal and the moral principle, not wholly dissimilar to that which appeared to have existed between the two jurisdictions in our own country, at the period when the Courts of Equity first assumed an active position in reference to this matter. The fidei commissa of the civil law must have been originally devised as a means-an irregular, circuitous, and uncertain means-of giving effect to dispositions of property either wholly prohibited, or imperfectly practicable by the strict rules of law.

"Sciendum est," says Justinian, "omnia fideicommissa, primis temporibus, infirma fuisse; quia nemo invitus cogebatur præstare id de quo

It was the received opinion, and indeed the history of our legislation supplied an important corroboration of the view, that the system of trusts among us owed its origin to the efforts made by or on behalf of the clergy, to evade the operation of the Laws of Mortmain, in restraining the alienation of lands in pios usus. The clergy, naturally unwilling that the benevolent intentions of devout laymen towards the Church should be disappointed in deference to what they, no doubt, considered a very barbarous, if not a very irreligious, enactment, were not slow to recommend to the intended benefactor the adoption of an expedient with which their own knowledge of the civil law had rendered them familiar; and the fidei-commissum, however contemptuously regarded by the Courts of Law, soon found in the more indulgent, and perhaps more enlightened, judgment of a clerical Chancellor, a prompt and effective recognition.

The beneficial interest, so recognised and protected against the legal and fiduciary seisin, though in name a use, was strictly a trust according to our present understanding of that term; and although the Legislature, not easily baffled in their steady resolve to uphold the principle of the law restraining gifts in mortmain, succeeded in defeating the object of these pious fidei-commissa by the Statute of 15 Rich. 2, c. 5, which declared all uses to be within the Statutes of Mortmain, and forfeitable like the lands themselves, the expedient which the clergy had thus fruitlessly suggested for the benefit of the Church, was resorted to with more permanent effect by the laity for purposes connected with the wants and arrangements of civil life. The feudal principle, indeed, as represented by the Common Law, and the exclusively territorial legislation by

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of uses.

Incorporated Law Society—Mr. M. Archer Shee's Introductory Lecture.

which it was extended or modified, maintained subject of an equitable interest as distinguished with varying success a protracted struggle from the legal possession,-that interest, on against the jurisdiction claimed and exercised the death of the person in whom the absolute by the Courts of Equity in the administration beneficial ownership was vested, would pass to But the principle of a fiduciary pos- his legal personal representatives in the same session, when once extensively applied to the manner, and subject to the same liabilities, as temporal affairs and interests of society, was a corresponding legal interest in personalty, not destined to yield in the contest with the when not dissociated from the beneficial enjoyperversity of Parliament. When the Statute ment. of the 27 Hen. 8, known as the Statute of This perhaps hardly required to be stated, Uses, attempted once more to prohibit the as it involved little more than the proposition, creation of fiduciary interests in land, by of very obvious truth and easy apprehension, transferring the legal attributes of the seisin to that equitable interests, according to their the beneficial use declared in connexion with nature and degree, were subject to certain geit, the sole practical effect of this enactment neral laws regulating the descent, enjoyment, was to give greater plasticity to the legal limi- and transmission of property, so far as those tations of an estate,-while the substitution or laws were irrespective of mere technical or addition of a trust, simply appended to the use statutory forms, imposed on its strictly legal thus deprived of its original character, at once alienation. But this close analogy, even in eluded the apparent stringency of the amend- its limited signification, did not hold good ed Law, and received the prompt recognition throughout; and the whole doctrine and sysof a tribunal ever reluctant to circumscribe with- tem of Equity, in reference to that most rein the narrow bounds of technical prohibition markable and most salutary anomaly, the sethe free action of principles in perfect harmony parate estate of married women, would afford with moral and substantial justice. satisfactory proof that, on some points, Equity, From the date of the Statute of Uses, thus so far from following the Law, exhibited a very reduced to a brutum fulmen by the happy in-wide divergence from its course, and acted in genuity of the conveyancing intellect, ever dirrct opposition to its theory and practice. fertile in resources for facilitating the transfer The history of this peculiar branch of our and modification of all beneficial interests, equitable system, from its first recognition Equity remained in undisputed possession of the field; and the system of trusts, extended and applied to every species of property to which the law could attach a right, or conscience append an obligation, was not less certain in its action, nor less definite in its details, than the fabric of the Common Law itself.

Of this system, the Courts of Equity had exclusive cognisance; and, as far as they were occupied in enforcing the rights derived under trusts expressly declared by documentary provision, the functions of the Great Seal, and its derivative tribunals, were closely analogous to those of the Common Law. Equitas sequitur legem, was a maxim to be taken, no doubt in a restricted sense, as applicable to the vast range of objects within the compass and control of our equitable jurisdiction. But it was literally true, in most cases, in reference to the distribution and transmission of such beneficial interests in property as depend solely on Equity for their recognition. As, for example, where the devolution of an equitable estate, either expressed or implied, was regulated by the principle of inheritance, the laws of descent by which the right heir is to be ascertained, were the same that are applicable to the transmission of the legal interest or estate upon which the trust was engrafted. Thus, in the case of freeholds, the equitable fee followed the course of descent governing the legal inheritance; and, in the case of copyholds, the rule of customary heirship would, in like manner, designate the individual in whom the equitable inheritance was vested.

Again, in the case of personalty, if it be the

down to its full development in recent times, was strikingly illustrative of the manner in which the Court had gradually worked out the true principles of its own jurisdiction through seeming difficulties created by a too close adherence to strictly legal rules, in dealing with a subject matter existing only in derogation of the maxims of Common Law.

As far as Equity was merely conversant with express trusts, its task was comparatively easy, and would seem to involve no nice or discriminating application of the principles of conscientious justice. It was in dealing with the subject of implied and constructive trusts, that the Court found a wide field of strictly equitable action, wherein to display its powers and assert its authority.

A very great proportion of the liabilities and obligations which equity was occupied in defining and enforcing, might fall within the category of constructive trusts; a term clearly applicable in every case where any species of property or beneficial interest appeared, on a full investigation of all the accompanying facts and circumstances, to be so possessed by, or vested in one person that fair dealing and conscientious justice, irrespective of positive law, or express declaration, imposed on him the moral duty of transferring it to, or holding it for the benefit of another.

The enforcement of such duties was the province of equity; and the jurisdiction which it exercised in the administration of the estates of deceased persons, at the suit of creditors, legatees, or next of kin, as the case might be, although now resorted to as the machinery through which certain undisputed legal principles were most conveniently worked out,-undoubtedly