ROADSIDE TREES AND HEDGES.

The passing of the Roads Improvement Act, 1925, has added considerably to the powers of local authorities in regard to the trimming of hedges and trees growing alongside the highway. True, this Act only applies to such hedges and trees as are growing at dangerous corners, whereas the Highways Act, 1835, from which most of their previously existing powers are derived, gives local authorities control over the growth of hedges and trees wherever they can be shown to be detrimental to a highway by excluding sun and wind. But there are good reasons for thinking that some confusion may arise as to the various demands which local surveyors will be in a position to enforce in regard to tree and hedge growths, and it is worth while therefore to look and see what precisely are the statutory enactments now in force and how they have been interpreted by the Courts when their intervention has been sought.

Section 65 of the Act of 1835 provides that where the surveyor is of opinion that a carriageway or cartway is prejudiced by the shade of hedges or trees (saving certain exceptions) whereby the sun and wind are "excluded from such highway" to its damage. . . he may take proceedings at petty sessions to enforce such cutting, pruning, and lopping as may be necessary to end the damage. The same section says that if any obstruction is caused by any hedge or tree, the same steps may be taken to compel the owner to remove the obstructing parts. Failing compliance on the part of the owner with an order of this nature, the local authority may do the necessary work and recover the cost of so doing from the owner (in addition to any penalty inflicted by the justices).

Incidentally it does not seem to have occurred to anybody concerned in the recent cases reported of persons being injured by falling boughs (the most recent being Noble v. Harrison, see LAW JOURNAL June 19, 1926), that there may possibly be a duty imposed on local highway surveyors to protect the public against eventualities of this sort. There the Court held that the owner of a tree was not required to become an insurer of nature; so that (failing a reversal of that decision on appeal) nobody would be liable for the consequences of a branch falling upon a passer-by. In Bullen v. Wakely (1898, 62 J.P. 166)-a case under section 65 of the Highways Act, 1835-the justices found that the tree was not only an obstruction but a source of danger to the public, it being an old yew tree, growing in a hedge. The Divional Court held that the justices were entitled to make an order for its removal.

Inferentially the Act of 1835 imposes the duty of protecting the public from "nuisance" and "obstruction" upon the highway surveyor, and section 20 says:

"If any surveyor . . . shall neglect his duty in anything required of him by this Act . . . he shall forfeit for every such offence any sum not exceeding

51."

Now if the surveyor has reason to think that any overhanging tree branch is a nuisance or is dangerous, he is armed with the necessary powers for its removal: and those powers include a right to get it removed, in case of default by the owner, at that owner's expense. How far this connotes a duty on the part of the surveyor to look out for and deal with dangerous overhanging elm branches, for instance (elm being notoriously a treacherous timber),

and, if so, how far failure to detect danger is to be ascribed to negligence on the part of the surveyor, are matters that may possibly be capable of argument. If not, and if the unsuspecting passer-by upon whom a tree-branch falls has no remedy against either the owner of the tree or the surveyor of the highway, who has power to cause the removal of dangerous overhanging boughs, the fact deserves to be made widely known.

But this is rather by way of deviation. To come back to the Roads Improvement Act, we may note that it does not repeal any previous enactments but is an Act "to make further provision for the improvement of roads "—which means that its provisions in regard to roadside trees and hedges are superimposed upon the provisions of existing Highway Acts. Its effective section in this particular matter is section 4, by which it is provided that where the highway authority is of opinion that there is a danger at any corner or bend in a highway arising from obstruction to the view of persons using directing him to alter the height of the obstructing fence, the highway, notice may be served on the owner or occupier hedge, or wall, as the case may be. Certain reservations are made, and there is provision for the recovery of compensation where alterations have to be carried out. The interpretation sections says that the term "hedge is to include any tree or shrub, whether forming part of the hedge or not.

trasting this section with section 65 of the Highways Act, The first thing that occurs to the mind when con1835, is that whereas in the former any tree, forming part of a hedge or not, may be ordered to be cut down to a low height (it will be observed that there is no power to alter actual removal), in the latter, trees planted "for ornament or for shelter to any hop-ground, house, building, or courtyard of the owner" may not be the subject of an order. There seems to be material here for conflict of authority. Moreover, it is inevitable that many differences will arise between local authorities and residents on highways where motor traffic is common: and many "desirable " corner residences may be deprived of no small part of their amenities by being compulsorily opened to the public gaze.

The procedure under the Act of 1835 was (and is) for the surveyor to make application to the local justices for an order directing the owner or occupier to carry out the necessary pruning or cutting within 10 days after the service of the order upon him. But the procedure under the Roads Improvement Act is quite different. The owner or occupier, upon receiving a notice of the requirements of the local authority, if he objects to comply with the same, may within 14 days after its receipt send his objection in writing, stating the grounds thereof, to the local authority, and thereupon the operation of the notice is suspended (either wholly or to the extent to which objection is taken) until the matter has been decided by an arbitrator agreed upon between the parties, or, failing such agreement, until it has been decided by the County Court. In either event, the arbitrator or the judge may modify the order in lieu of setting it aside entirely.

One very important matter likely to provide material for the exercise of advocacy in the County Courts and before arbitrators, is that of compensation. This, again, is to be decided by a single arbitrator agreed upon, or, in default of agreement, by the County Court. Nothing is said as to the cost of these proceedings. Who should be made to pay the costs appears to be left to the discretion of the arbitrator or the Court.

It would appear to be necessary for notices under the Roads Improvement Act to be very explicit in detail, as under the Act of 1835. In Brook v. Jenny (1841, 2 Q.B. 265), the Exchequer Chamber held that failure to specify with particularity the manner in, and extent to, which a hedge was required to be cut invalidated the order. This and other useful cases bearing on this subject generally are collated in "Pratt & Mackenzie" and are embodied there in notes to sections 55 and 56 of the Act of 1835.

PECULIARITIES OF THE JURY SYSTEM.

By SIR ERNEST WILD, K.C., Recorder of London. (An address given before the Worshipful Company of Stationers Livery Committee on the 23rd November.)

There you

THE subject of my address is " Peculiarities of the Jury System." We may say that the dawn of collective responsibility was the dawn of the jury system. There came a time when man ceased to be a cave man, and was divided into various communities. Communities of spirit began to dawn. You had him first of all in the Tithing. Then you had him in the Hundred, or, as it is sometimes called, the Wapentake. The system was a simple one. The system was this. If any wrong took place in a community, and they could not find the offender they all had to pay. That was the origin of the Jury System. Now, supposing it took place in the Hundred. Supposing somebody killed somebody else, or, more important still, somebody stole an ox or an ass, suppose anything of that kind happened, they had to find the offender. If they could not find the offender and present him for trial they all had to pay. That being so, of course, they were all very diligent in finding the offender. That is the origin of the Grand Jury, which was the Jury of Presentment. They were what were called Compurgators, gentlemen who alleged that A. B. or C. D. had committed the murder or had stolen the ox or the ass. have the origin of the Grand Jury. Then there came another set of men. The other set of men might be called the rival Compurgators. They said that, from the well-known character of A. B. or C. D. it was quite impossible that he could have committed the murder or have stolen the animal. They were the Petty Jury. You have those two sets of men, witnesses as to character, about as valuable I should think as witnesses as to character are to-day. Then when they got into an absolute muddle, one set of men being as respectable as the other, to get out of the difficulty they resorted to the old German system of Ordeal by Battle. That never obtained very much in our country, although there was some of it. The origin of Ordeal by Battle was this. They could not settle the matter by the oaths of the rival witnesses as to character, the Grand Jury and the Petty Jury respectively, and so they stood up and fought, or they had some other ordeal. If it was a witch they tried Ordeal by Water. If the lady swam she was guilty. If she drowned she was not. That was the way it began. So it came to a time when, in the words of the greatest constitutional historian we have ever had, Bishop Stubbs: "The verdict of the Jury no longer represented their previous knowledge of the case, but the result of the evidence afforded by witnesses of the fact; and they became accordingly judges of the fact, the law being declared by the presiding officer in the King's name.' Accordingly, therefore, ceasing to be witnesses of character on the one side or the other, they became judges of the fact, and our Jury System was evolved. That is really the inter-relation of the Jury System to-day. There are some misguided people who would abolish the Grand Jury as being of no further use. The Grand Jury, in my opinion, is a very great protection to the liberty of the subject. The Grand Jury representing the State, present the accused person for trial. Then the Petty Jury come along, and like their old predecessors, the rival Compurgators, try him. They find out and search out for anything that can be said in his favour. I hope it will be a long time before that ideal system which has stood the test

of ages is abolished. Coming to modern times, which interest us most, there is the principle of our Jury System, of the whole of our Criminal Law, which is improperly described as "benefit of the doubt." There is no such thing. I remember one of the greatest advocates who ever lived, Sir Edward Clarke, telling a Jury that that is a phrase which ought never to be used by any judge or

66

advocate, because there is no such thing as benefit of the doubt." In our Criminal Judicial System the Crown undertakes to prove guilt beyond doubt. The Crown must prove guilt beyond real doubt. If there is real doubt then the prisoner is entitled to acquittal as a matter of right. There is no question of benefit of the doubt. In Scotland it is different. I sometimes wish that we had a verdict of non-proven, which is the Scottish system, because there are a good many cases where the prisoner leaves the Court without a stain on his character where he is a lucky man to leave the Court at all. There are cases where really a verdict of non-proven would be a more satisfactory verdict.

Then there is the question which is often discussed as to whether or not it is desirable in criminal trials, and indeed in civil trials, that the principle of unanimity should be insisted upon. One has known trials rendered abortive by the conscience, or stupidity, or what-not of one juror. The whole of the extent and burden of the matter is sacrificed because some man or woman holds out. Nobody can but admire the one man who holds out in favour of innocence, although I have not much opinion of the one man who holds out in favour of guilt. Under the new Act of Parliament we have got rid of one anomaly. We have got rid of the anomaly that demanded that. supposing a juryman is taken ill during the trial, the trial is rendered a nullity. It is provided by the new Criminal Justice Act that if the number of jurors is not decreased below ten, with the assent of the Crown and the accused the trial can go on with eleven or ten, as the case may be. Also under that Act of Parliament considerable additions are made to the jurisdiction of magistrates. Whether that is wise or unwise it is not for me to argue in this connection. One must remember that those variations are only made with the assent of the accused. Any accused person who is liable to be sent to prison can demand as of right trial by jury.

In civil cases, as you are doubtless aware, it is competent for the parties to assent to a majority verdict. That cannot be done in criminal cases. In criminal cases we must have unanimity. In civil cases that often happens. I had a curious experience in my younger days of a County Court jury. In those days the number of the jury was not eight as it is now, but five. One solemnly addressed five men. I think it was a new trial. The amount in dispute was small, and had a long time before been eaten up by legal expenses. There were five jurymen. The trial took place before that very hale and hearty judge, Judge Willis. He had gone to catch his train after he had summed up and we waited. We waited a long time, and then we said: We will take the verdict of the majority if there are four to one. The jury sent word to us to say that they were not four to one. Then after waiting another hour and a half we said that we would take the verdict if there were three to two. The jury sent word to say that they were not three to two. Finally, the jury sent word to say that there were two for the plaintiff and two for the defendant and the other man could not make up his mind. I should think that that was a unique experience.

Now I come to women jurors. I was very doubtful when I was in the House of Commons, and when what is called the Sex Disqualification Removal Act (which always sounds more like a surgical operation than an Act of Parliament) was passed, whether women really desired to serve on juries. I never had any doubt as to their competence. Any man who has known any one woman will never have any doubt about that. I have stood publicly on the Bench, and I stand privately now, in a white sheet in regard to women jurors. I think they are really a very great adjunct to the administration of justice, particularly criminal justice. I think it is only right that if you are to have the judgment of the community, and that is what the Jury System is, both sexes should be represented, especially in cases where both sexes are involved. Women are very much harder than men; we all know that; but that is because they have more conscience.

(To be continued.)

FAMOUS TRIALS OF HISTORY.*

LORD BOLINGBROKE, author of the work which so deeply influenced George III, known as "The Patriot King," was known in his latter years as "The Magnificent Lord Bolingbroke." Lord Birkenhead, who in so many ways resembles the Tory Democratic statesman of the Age of Queen Anne, will perhaps also be remembered by future generations as "The Magnificent Lord Birkenhead." In one respect, certainly, his title to the name will not be questioned: to him belongs that magnificent audacity which is one of the attributes of greatness. No other Lord Chancellor or ex-Chancellor, we venture to think, would have had the moral courage required to compose a work styled "Famous Trials of History," which includes great State trials and other very celebrated trials since that of Queen Mary, and then goes on to include half-a-dozen recent cases of an interesting kind in which the author has been personally engaged. But Lord Birkenhead not only does this: he prefixes to his book a brief preface in which he confesses and avoids the charge. "Let me begin," he says, "by an attempt to disarm an obvious criticism. This book is called ' Famous Trials of History.' But it contains (it may be said) some trials in which the author was himself engaged, for which it cannot be claimed that they fall within this description. This is perfectly true. And if it be asked: 'Why, then, do you so dignify them?' I can only reply that I was quite unable to think of a compendious title which would cover both really famous trials and others which, interesting or not, are unlikely to become historical. Habetis confitentem reum." This candid plea of "Guilty — but Impenitent" is indeed magnificent!

In passing one may point out a curious paradox which appears in the annals of the Woolsack. The Law, as we all know, and as the ambitious student is always warned, is a jealous mistress: she will not permit her votaries to serve more mistresses than one. Even to write a text-book is dangerous for the aspiring practitioner: to indulge in legal journalism is too often fatal to his prospects. Yet, strangely enough, six of the most famous occupants of the highest dignity in the Law have been men of letters who deserve much more than an 66 honourable mention" in the history of English Literature. Sir Thomas More, the first layman to sit upon the Woolsack, was not only a great Humanist reformer and a politico-religious martyr, he was also the author of "Utopia," a sixteenth century essay in politics which every student of literature still reads. Francis Bacon, of course, is one of the great figures amongst our writers of prose, and is also the founder of one of the two rival schools of modern philosophy. Henry Brougham, weirdest and most wonderful of Chancellors, was a very voluminous writer, whose "Statesmen of the Reign of George III" is still fascinating reading. His intense, if not always well-informed, interest in the broader culture showed itself also in the famous treatise on "Mechanics," which, in his intervals of leisure as a judge, he composed and issued to the public under the auspices of the Society for Promoting Christian Knowledge, of which he was President; its mathematics was so completely erroneous that the book had to be withdrawn from circulation. And everyone recollects the delightful story by Walter Bagehot in "Literary Studies," of how Brougham, visiting Coventry by stage-coach, and finding that he had to stop from 12 noon to 4 p.m. in the town before the coach resumed its journey, promptly hired the Town Hall

*Famous Trials of History. By the Rt. Hon. Earl Birkenhead. Hutchinson & Co.

and sent round the town-crier to announce that Lord Brougham, detained till 4 p.m. in Coventry, would lecture at 3 p.m. in the Town Hall on "The Antiquities and Curiosities of the City"; meanwhile, he retired to the Town Library, there to make the necessary researches for his lecture. Doubtless in these latter days he would have been one of the commentators on Einstein.

Next we have "Jock" Campbell, as he was familiarly styled in his own generation, whose ponderous but readable" Lives of the Chancellors and "Lives of the Chief Justices are still eagerly studied by the young barrister interested in the literary history of his profession. Campbell, too, although too sensible to be a "Baconian," was one of the first critics to point out the difficulty of believing that anyone except a lawyer could have written Shakespeare's plays. His book on the legal aspect of the drama is still a mine of learning and of interesting archaic legal lore not to be lightly despised. Then Lord Haldane has given to the world half-a-dozen treatises on various aspects of philosophy, although by some strange accident he has never written anything at all on that much neglected branch of learning, the philosophy of law. Lastly we have Lord Birkenhead, who, at all periods of a career of kaleidoscopic rapidity, has been publishing books or contributing to the Press. Evidently the Law, like other haughty dames, is willing to make exceptions in favour of great genius, and permits to this a licence of infidelity to her monopoly which she disdainfully refuses to all lesser men.

"Famous Trials of History," although it cannot be called either a work of original literary genius or a treatise which embodies original research, is a volume of quite remarkable merit. It is intensely readable. Its narrative of facts is remarkably succinct yet always graphic, lucid, and artistically arranged so as to impress on the reader those incidents which are vital to a sound judgment of the case. The tone, too, is humanistic and sympathetic, yet conscientious and reverent there is humour at times, and wit at all times, but no note of either flippancy or cynicism. A large masculine mind, a broad and sane personality, remarkably free from petty or narrow prejudices, and ever paying due homage to the noble, the tragic, or the pathetic, is undoubtedly displayed in these pages. As a matter of fact, too, the neophyte who reads it through from cover to cover will carry away a very fair impression of the social and political history of the three and a half centuries it covers. He will even get some idea of the development of the Criminal Law and its procedure, although the author makes no attempt to expound the technicalities of the law, and deliberately writes in untechnical language wherever this is possible.

The first thirteen of the trials chosen are those to which the title has reference; the ten remaining chapters deal with dramatic or romantic cases of our own day, in most of which Lord Birkenhead was professionally concerned. It may be granted, we think, that the thirteen historical trials have been admirably chosen for the purpose of giving a picture of the period during which modern notions of criminal justice may fairly be said to have prevailed. This series opens with the trial of Mary Queen of Scots at Fotheringay in 1587 : it closes with the trial at Bar of Lord Cochrane in 1814. Of the second or personal series of cases, only that of " Sir Roger Casement," in 1917, can be said to have any historical interest. Indeed, the plan of the series would have been better served if one or two famous Victorian trials had been included, for instance, Daniell O'Connell's case, the Bill of Attainder against Queen Caroline, the Tichborne trial, the Parnell Commission with the Pigott Forgery, and the trial at Bar of the Jameson Raiders. But perhaps Lord Birkenhead is reserving these nineteenth century trials or proceedings for a later volume.

The volume opens with the tragedy of Fotheringay. Lord Birkenhead tells briefly, but most exceedingly clearly, the political history of the day; of the wild fury and fear of Catholicism which the Massacre of St. Bartholomew in 1572 had spread throughout English Protestants; the intense dread that a Catholic sovereign (Mary was next heir to

the throne) might succeed Elizabeth and thereby throw the State again into confusion; the numerous Catholic plots against Elizabeth into which Mary, naturally anxious to recover her freedom after eighteen years of treacherous and indefensible imprisonment, was almost necessarily inveigled; the reluctance of Elizabeth to execute a monarch, coupled with her anxiety to get rid of a beautiful and dangerous rival; the cruel but patriotic and fanatical vindictiveness of Parliament and the Protestant Association which kept urging the trial and death of the fascinating captive Queen; the mean and tortuous unscrupulousness of Elizabeth, Cecil and Walsingham; the servility of the law officers and judges who, well knowing that Mary's plea to immunity as a sovereign detained against her will was unanswerable, yet prostituted their talents to find plausible legal pretexts for depriving her of that plea; the harshness of the process in which the undefended woman had to face the most brilliant lawyers of the day; the contemptible efforts of Elizabeth to cast on scape-goats the responsibility for Mary's execution which she had determined to see carried out; and the final majesty of the Queen's behaviour at the fatal block. But with rare sanity of practical judgment, while recognising the injustice of treating Mary as a traitor and a criminal in a country where she had been detained in cruel and shameful breach of all laws of hospitality, Lord Birkenhead refuses to be led away by the dexterous pleading of Mary's literary partisans into doubting her technical guilt of complicity in Babington's plot.

His final comment is in these words: "Was she really guilty? I answer that none who reads the protests against her secretaries' confessions and acts being received as evidence can resist the conclusion that her whole defence was based upon the fallacy that what she implied but did not personally do was no proof against her. She was cruelly treated at her trial. Without aid of counsel a lonely woman was confronted by the best brains of England. She defended herself steadfastly and brilliantly, weakened as she was by long years of imprisonment; but she was done to death."

We have described at some length Lord Birkenhead's first essay; in many ways it is the finest in the whole volume. But all are very good, and the style is admirably varied to suit different kinds of matter; now solemnly historical and a trifle pompous; again graphically descriptive of some interesting scene; in yet other sketches conversationally pleasant in its narration of social events and customs. Strafford's trial and execution; the romantic episode of Colonel Blood in the reign of Charles II; the notorious story of Sir Edmundbury Godfrey's murder; the trial of Lord Mohun in Queen Anne's reign for murder by duelling; the curious story, familiar to readers of Macaulay's History, of Spencer Cowper's trial for the murder of a beautiful Quakeress, famous partly because Cowper was a barrister who became a judge and the grandfather of the poet, and partly because of the absurd (as it now seems) expert medical evidence given in favour of the prosecution; the trial of the greatest of all pirates, Captain Kidd; a chapter on the old sponging houses of Fleet Street in the days of imprison ment for debt; the painful cases of Dr. Dodd, whom Johnson vainly tried to save, and of Eugene Aram, with that of Deacon Brodie, not so well known; the memorable impeachment of Warren Hastings; and the use of judicial machinery for the political persecution on false charges of the sometime Radical agitator, sometime naval hero, Lord Dundonald: these make up the historical portion of Lord Birkenhead's book. The recent cases we have not space to enumerate, much less characterise. But the whole work is well worth reading.

THE attention of the legal profession is called to the fact that the Phoenix Assurance Company, Ltd., Phoenix House, King William Street, E.C.4, are now offering new schemes of personal accident, disease and sickness insurance-standard tables granting a wide range of benefits and selective tables under which the benefits may be selected.

66

Hudson on Building Contracts " is so naturally the work one turns to for the elucidation of difficulties arising out of these transactions that no lengthy description is needed here, and all engineers, surveyors and architects, whether in private practice or holding official positions, will welcome the arrival of this new edition. For 35 years this standard work has enjoyed great popularity, and its growth (from 948 pages in 1891 to 1819 pages in 1914), is perhaps not so remarkable as the reduction of the first volume from 1,123 pages in 1914 to 785 in 1926. The first edition was published in 1891 and consisted of a single volume of 948 pages. The second edition (1895) consisted of two volumes containing in all 1,226 pages, a growth in four years of 278 pages. The third edition (1907) — with a supplement to Vol. 1 published in 1910 and one to Vol. II published in 1912-contained 1,786 pages. The first volume of the fourth edition (1914) contained 1,123 pages, and the second volume 696 pages, or 1,819 in all. The present edition consists of one volume only, namely, the first volume of the fourth edition re-arranged, brought up to date, and reduced to 785 pages. The publishers state that they can supply purchasers of this edition with copies of the second volume of the fourth edition, which the author has considered it unnecessary either to "revise or reprint," as it merely contains reports of cases, precedents, and forms. The new volume has been re-classified into 21 chapters, most of them having a number of "sections," and is an admirably concise and yet full exposition of this special subject. A great many cases are cited, usually under the heading "Illustrations," following some particular proposition of law. The Table of Cases, which contains references to all the reports, the text only giving one, occupies 66 pages, and the pages on which extracts from judgments are set out are printed in heavy type, which is certainly a convenience, The Table of Statutes only occupies 2 pages, and is defective in not giving the sections. The Public Health Act, 1875, is referred to on twenty pages, the Arbitration Act, 1889, on fifteen pages, the Sale of Goods Act, 1893, on seventeen pages, and the Bankruptcy Act,