which case both would have been liable to an action before the 24 Geo. II., c. 24 s. 6, which exonerates the constable from liability if he delivers a copy of the warrant upon demand.*

These points do not appear by the reports to have been suffi-. ciently pressed upon the Court in either case; but they seem to us to go to the very root of the matter. The Court, in Reg. v. Carmarthenshiref notice that the 1 Vict., c. 68, has not the word "duly" in it, but, as we have already observed, the statutes which speak of inquests holden, clearly mean inquests duly holden. Thus the 3 Hen. VII. c. 1, which ordained "that a coroner have for his fee, upon every inquisition taken upon the view of the body slain 13s. 4d.," clearly only applied to inquests duly taken; and therefore it appears to us that no stress ought to have been laid upon the absence of the word duly in the 1 Vict., c. 68. It is much to be regretted that the case of Reg. v. Gloucestershire was not again brought before the Court, as, if the matter had been fully discussed, we cannot help thinking that it would have been held that no payment could have been enforced either for the coroner's fees or for any disbursement where the inquest was improperly held; and as to any supposed hardship on medical men or others in disallowing their remuneration, there is on the other hand the hardship on the ratepayers of being obliged to pay for unnecessary inquests; and it may perhaps be that where a coroner summonses medical men, &c., in a case where he has no jurisdiction, he would be personally liable to them in an action.

We should think that the following cases must convince any one as to the uselessness and mischievous tendency of coroners' inquests in murder and manslaughter. A prisoner on being placed at the bar, asked how it was that he should have been brought there before being taken before a magistrate? Blackburn J., said he had before complained of persons being committed on the coroner's warrant without being examined before a magistrate. He did not think the prisoner should complain *See Atkins v. Kilby, 11 A. & E., 777. + Supra, The 3 Hen. VII., c. 1, is wholly repealed by the 26 & 27 Vict., c. 125.

of it; because it would probably be more in his favour than against him. In charging the jury, his lordship again alluded to the fact of the prisoner not having been committed on a magistrate's warrant, as well as on a coroner's warrant; but said he had no power to punish such conduct except by disallowing the prosecutor's costs, which he should do.*

So on an indictment for murder, where the circumstances were extremely suspicious, Lush J., in the course of the case, strongly commented on the fact that there had been no examinations of witnesses and sifting of evidence before the justices. There were only examinations of witnesses taken before the coroner in the loosest manner, and the prisoner's statement was not admissible in evidence against her from the manner in which it had been taken. If any further case of the kind came before him, and no depositions were taken before the magistrates, as in every case they ought to be, he should disallow the costs for the prosecution, as he saw had been done by Mr. J. Blackburn, at Manchester assizes the other day. The prisoner was acquitted.†

We cannot but express a hope that the question of coroners' inquests will be taken up by Parliament, and the matter well considered; and, if it be, we cannot doubt that we shall be freed from an institution, which, whatever may have been its use in ages that are gone by, is no longer fit for the present state of society.

We have learnt with much pleasure that our former article upon this subject has excited no inconsiderable interest in Scotland. This has induced us to go into much more detail as to the English procedure in this article than we otherwise should have done, in order that it may be duly appreciated in Scotland. Our only object is that the system of both countries should be fairly and candidly weighed, and that all advantageous proceedings should be adopted in both countries alike; so that while on the one hand, as few guilty persons may escape

*

as

Reg. v. Sherlock, Manchester, Dec. 5, 1866; Morning Post, Dec. 6. † Reg. v. Jane Craggs, Durham, Dec. 12; The Times, Dec. 14, 1866.

possible, so on the other, the innocent may be as rarely, and to as little extent as possible, subjected to any inconvenience. The further consideration of the subject has justified the opinion we formerly expressed of the practicability, as well as the expediency, of each system adopting some of the proceedings of the other, and we were happy to see that the late Lord Advocate was taking the matter into his consideration. We are strongly disposed to think that a commission to enquire into the procedure of both countries would be the most expedient course. At present, we regret to say, the procedure of the one kingdom is so little known in the other, that we are convinced that there would be great difficulty in properly framing any Act of Parliament for either kingdom, which would not perpetuate differences in the procedure that ought to be abolished. If, however, a few gentlemen practically conversant with the procedure of each were to meet and compare the procedure in the one kingdom with that in the other, point by point, we entertain no doubt that they would readily agree as to the greater number of points, and work out an assimilation in the law of both.

At present, Scotland really seems to stand even in a worse position than England did before Sir Robert Peel's Acts of the 7 Geo. IV., c. 64, & 7 & 8 Geo. IV., c. 28; and all the amendments contained in those Acts, and the very much larger and more useful amendments in the 14 & 15 Vict., c. 100, so far as may be practicable, ought under any circumstances to be extended to Scotland at once.

We have said nothing as to the procedure in Ireland, because we believe it to be very similar already to that in England. The 7 Geo. IV., c. 64 and the 7 & 8 Geo. IV., c. 28, were followed by very similar Acts relating to Ireland, in the 9 Geo. IV., and the 14 & 15 Vict., c. 100, applies to Ireland as well as to England. We can, therefore, conceive no reason why any difference should be permitted to exist in any other respect between the two countries; and we cannot but think that it would be very beneficial to have a similar procedure in all the three kingdoms.

VOL. XXIII.—NO. XLV.

.

F

66

ART. III.-CASE OF THE BANDA AND KIRWEE

W

BOOTY.

(In the High Court of Admiralty.)

ITH rare ability Dr. Lushington has in this case laid the foundation of a great system of military prize law, which may in after times take rank with the splendid jurisprudence

of maritime warfare.

Military prize law is not very likely to involve the great doctrines of neutrality or other momentous international questions in the same degree as naval jurisprudence; but questions will inevitably from time to time arise, which will require for their masterly solution, as in the Banda and Kirwee case, an exercise of all the powers and accomplishments of a consummate judge.

Our continental neighbours would style the Banda and Kirwee case 66 a cause célèbre," and it well deserves the appellation. The pecuniary stake at issue was enormous, it exceeded £700,000 sterling. The briefs of counsel, and the mass of books and papers which accompanied them were of extraordinary magnitude. The counsel for the different parties were thirty-six in number. The judge was the oldest judge on the Bench of Westminster Hall, where young men rarely occupy that elevated seat. The arguments extended through twenty-six days, and amply illustrated the high intellectual and legal attainments of such men as the then Attorney-General, Sir Roundell Palmer, Sir Robert Phillimore, the Queen's Advocate, the then Solicitor-General, Sir Robert Collier, Sir John Rolt, the present Attorney-General, Sir William Bovill, the present Lord Chief Justice of the Common Pleas, Mr. W. M. James, Vice-Chancellor of Lancaster, Sir John Karslake, the present Solicitor-General, Mr. John D. Coleridge,

Mr. Brett, Dr. Deane, Mr. Denman, and Mr. Mellish; and it is not too much to say that the forensic talent displayed on this occasion most honourably sustained the ancient fame of Westminster Hall, and produced corresponding effect upon the minds of those whose duties or interests obliged or induced them to attend the proceedings.

The booty in question arose, as is well known, from captures made in the year 1858, by a column of troops dispatched to the field, under the orders of General Sir George Whitlock, by the government of Madras, to take part in the suppression of the great military mutiny which was then raging in India. It is a question which has given rise to a controversy, but which does not here call for discussion, whether the commotions in India which led to the war of 1857-8, consisted only in military defection, or represented a national revolt of more extended scope. Mr. Kaye, in his history of the Sepoy War, appears to treat the case as one of a national character; but a full view of the controversy and of the facts which bear upon it, will be found very ably exhibited in the Edinburgh Review of 1856, in an article upon Mr. Kaye's work. So far, however, as the military operations of the British forces were concerned, and so far as the doctrines of prize law were affected, neither side of the controversy is in any way conducive to a right apprehension of the judicial proceedings which sprang from the captures of Banda and Kirwee.

For the purpose of restoring British rule and supremacy in Central India, several columns of troops were placed in the field. On the north-west, Lord Clyde took the personal command in Oude, but the operations which he conducted were unconnected with the questions in the Banda and Kirwee case. Sir Hugh Rose was at the head of the Central India field force, and Sir George Whitlock was appointed to the command of the Sangor and Nebudda field force, composed of troops equipped by the Presidency of Madras, for service in Bundelkund. The Doab, a narrow belt of territory lying at the south of Oude, between the rivers Ganges and Jumna, was allotted to a

F 2