interest of the State in preserving its consistency of action, and the due administration of justice. But before doing so let us discover, if we can, the origin and reason of the existing rule. Like many of our legal maxims, we must take it for granted. Mos pro lege must be our refuge. Lord Coke tells us that a wife cannot be produced either for or against her husband, Quia sunt duæ animæ in carne una. Other judges, including Lord Hardwicke, have adopted the maxim, who in doing so said, "The reason is to preserve the peace of families, and therefore I shall never encourage such a consent." But we have an authority in another direction, older and higher than that of Lord Coke or his followers. We read in Holy Writ, that "Ananias, with Sapphira his wife, sold a possession, and kept back part of the price, his wife also being privy to it." The result we well know. We also read that shortly afterwards Sapphira, not knowing what was done, was told by St. Peter to say whether they had sold the land for so much, and she replied, "Yea, for so much;" confirming the falsehood of her husband. St. Peter then said to her, "How is it that ye have agreed together to tempt the Spirit of the Lord ?"

As to the parties themselves, doubtless it is very desirable that the affection and harmony which ought to exist between husband and wife should not be idly jeopardized by the one appearing as a witness against the other; but we must, on the other hand, bear in mind that affection and harmony may often be more firmly cemented by their appearing for each other, and if they can do the one they must do the other. It may be said, temptation to perjury is encouraged thereby ; but we have abandoned that consideration in civil cases, and we do not allow it to operate in some criminal cases. In cases of assault, married parties are sentenced to fine and imprisonment on the testimony of each other, and no objection is raised. In cases of desertion the wife appears against the husband. In suits for necessaries supplied to the wife, both wife and husband may be witnesses. An Act has recently been passed "to restrain the sale of intoxicating liquors." It is provided that in proceedings against the owners of public-houses, not only they themselves shall be competent, though not compellable, to give evidence in their defence, but their wives also; and it is worthy of remark that the admission of the wife's evidence was moved by the Recorder of London, than whom, it may be said, no judge has had more experience in criminal

matters.

Brothers and sisters, parents and children, are admissible witnesses for or against each; and the distinction in respect of husbands and wives is, I conceive, based on sentiment rather than on reason and justice. As to the interests of society, assuming that the object of every judicial inquiry is the discovery of truth, and that punishment in some shape ought to follow the wrongdoer or the guilty, the same principle as to the exclusion of the evidence of prisoners applies to that of husbands and wives. The ends of justice are impaired if not defeated to the detriment of the social community, and the disparagement of the judicial office. The innocent may suffer

and the guilty may escape. Judex damnatur cum noccns ab

solvitur.

The political aspect of this question requires a wider and more comprehensive view, and I must illustrate it by a few instances of the effects of the present rule of exclusion.

Two men, both married, have committed the same offence; in the case of one there is evidence sufficient to convict him without that of his wife. In the case of the other, his wife is the only person whose evidence would prove his guilt, but she must not be heard, so the latter escapes punishment, the former does not. Again, two men may be tried for a joint offence-burglary or poaching, e.g. The one is married, the other is living in concubinage; both could be proved to be at home at the time their offence was alleged to have been committed. The woman living in sin proves her paramour's alibi, the lawful wife must not prove that of her husband. In the case of Rush, who was convicted of the murder of Mr. Jermy, in the year 1849; he was found guilty chiefly on the evidence of the woman with whom he cohabited. The judge,* in passing sentence on him, said that if he had not been living in sin, in other words, if the woman he lived with had been his wife, he would in all probability have not been pronounced guilty, as the woman could not then have appeared against him. At Chester, at the last Assize, a man was charged with perjury in an affiliation case; he was committed for trial, and was, I presume, out on bail. The day before his trial he married the woman; she was then his wife, and could not appear against him. The prosecution of course failed.† Could there be a greater mockery of justice? In trials for bigamy, the woman with whom the second marriage is had is a competent witness, because prima facie she is not the legal wife; but she may in fact be so, as the first marriage may from some impediment have been illegal, or if not, she may be as much attached to the delinquent as if she were a true and legal spouse. These are cases, and there are many others, showing the evils arising from our rule of excluding the testimony of married parties in criminal proceedings; and those evils, in my humble judgment, outweigh those which may result from the violation of matrimonial confidence. Jeremy Bentham, in his "Rationale of Judicial Evidence," fully discusses the question in a practical as well as a philosophical view. Let those who would still prevent husbands and wives from becoming witnesses in criminal cases turn to his pages; and those who also object to prisoners themselves giving evidence, read Mr. Pitt Taylor's cogent words in the published volume of the Society's Transactions for 1860. The preamble of the Act‡ enabling parties in breach of promise of marriage cases to give evidence, and parties as well as their husbands and wives in any proceeding instituted in consequence of adultery, is, "Whereas the discovery of truth in courts of justice has been signally promoted by the re

* Baron Rolfe, at the Norwich Assizes.

Reg. v. Ewens, Times, August 10, 1872.

32 & 33 Vict., c. 98.

moval of restrictions on the admissibility of witnesses, and it is expedient to amend the law of evidence, with the object of still further promoting such discovery."

These words have encouraged me in the view I take of these questions, and I would add that in all cases such evidence should be admissible. As evidence of the tone of feeling on these two questions, I must invoke a Bill brought into Parliament in the last Session at the suggestion, as we have been given to understand, of an Irish judge, and who approved of its provisions. Its title is, "A Bill to Amend the Law of Evidence." Two of its clauses involve the questions before us. One rendering a prisoner competent, but not compellable, to give evidence on his own behalf. The other rendering husbands and wives in every proceeding, both civil and criminal, competent and compellable to give evidence for and against each other. Here I would observe a distinction as to compulsion is drawn between a prisoner and husband and wife, and as I conceive justly. A prisoner has only his own interest to consult, and should therefore be allowed to tender his evidence or not as he thinks fit. A husband and wife, although in legal theory one, are practically two persons; and if the prosecution requires the evidence of either, it ought to have it; and if the alleged offender wants the evidence of husband or wife, he or she ought in justice to have it. The Bill was brought in by two private members, and went no farther than its first reading. It was merely a tentative measure, and was never intended to be proceeded with. Whether it will be again introduced must remain a question. The learned Attorney-General, however, who has done us the honour of presiding over this Section, has stated in his place in Parliament, and in his recent comprehensive address to us, that he intends in the next Session to call the attention of the House of Commons to the law of evidence. In so doing it can scarcely be supposed that the questions submitted to this Section can remain untouched, but that rather they will undergo a full and ample discussion. Let us await the result with confidence.

Mr. T. C. BRIAN also read a paper on the subject. He spoke of the growing tendency of late years on the part of our law-makers to relax the existing stringent prohibitions as to interested parties giving evidence, and called attention to the fact that both plaintiff and defendant in civil suits were admitted now to the witness-box. In affiliation cases, also, the defendant was made a competent witness on either side, and he contended that, except in cases strictly criminal and indictable, there were few coming within magisterial jurisdiction in which the defendant might not with advantage be admitted as a witness. He further contended that the charge of interest bore as

* Judge Lawson, who filled the office of Attorney-General, and had, therefore, much experience in criminal trials.

much against informers as against the defendants themselves; and he was of opinion that the evidence of defendants should be admitted in all those cases where it was a mere accident whether the person brought a civil action or instituted criminal proceedings, such as cases of libel or assault; but in the case of prisoners charged with felony, he did not think it would be at all to their advantage that they should be allowed to give evidence on oath. The proposal to allow prisoners to be sworn was not improved by the suggestion that admission to give evidence should be optional, and he quoted an instance to show that if a prisoner declined to give evidence, the effect on the jury would be unfavourable. In conclusion, he expressed the hope that the time might speedily arrive when, for the most part, defendants in magisterial cases (otherwise than criminals) would be able to be sworn, but that the time might be far distant when the unseemly spectacle shall be presented in our English courts of a prisoner, perhaps in a grave case, such as murder, being subjected to the painful and searching ordeal of cross-examination.

DISCUSSION.

Mr. J. W. BATTEN (London) doubted whether any advantage would accrue to the examination of prisoners, in criminal cases especially. The cross-examination of an ignorant prisoner on a capital charge would reduce him to such a state of nervousness, that it would be impossible to attach the least value to his answers.

Mr. H. S. STOKES (Bodmin), having had some experience as an attorney and clerk of the peace for the county of Cornwall, doubted very much whether it would be an advantage to the prisoner himself to compel him to give evidence. Some supposed that many accused persons had been convicted because their mouths had been shut, and they had not been allowed to give evidence with the view of establishing their innocence. To entertain such a notion as this was to suppose that the law had been most unrighteously administered. He protested against any such supposition, and firmly believed that in ninety-nine cases out of 100 perfect justice was done to prisoners. In the hundredth case the evidence of the prisoner might have affected the verdict, but he was not prepared to admit that it would. Under the present law, prisoners were given every opportunity of addressing the jury in their defence, either themselves or by counsel, so that they had every opportunity of stating all they thought fit in their defence, and their statement, if made with the appearance of truth, usually had full weight with the judge and jury. If, however, they were called upon to give evidence on oath, it would follow that they would be cross-examined, and in cases where prisoners were used to the procedure of the courts, their evidence would probably be looked upon with suspicion, and the temptation to commit perjury would be insurmountable in the majority of cases. The relaxation of the rules of evidence hitherto, however good they might have been, had tended to induce men to commit perjury. County court witnesses, influenced by interest, and perhaps by the laxity with which the oath in civil cases was regarded as compared with the oath in criminal cases, seemed to be perfectly reckless. The universal experience of county court judges was, that perjury was lamentably common. The true principle in all legislation on this subject should be, if possible, to remove the temptation to perjury; for although it was impossible altogether to prevent perjury being committed, opportunity should not be afforded by the relaxation of the rules of evidence for committing it. His experience led him to believe that a guilty man would be found guilty as often by his own testimony as by the testimony of others. Upon the question as affecting cases before magistrates, no one having had experience in

magisterial courts would have failed to notice the unfairness of excluding from a case the only testimony which could be given in explanation of the charge. Cases were constantly occurring in which magistrates excluded from giving evidence the only person who could give a true statement of the case, simply because that person was technically in the dock.

Mr. JOHN WESTLAKE (London) said: I cannot resist coming to the conclusion that in all criminal cases prisoners should be permitted, though not compelled, to give evidence. It is extraordinary how this question is prejudiced in the minds of Englishmen by the disgraceful scenes which occur in France; but there are cardinal differences between the administration of the law here and there, which should prevent us leaping at once to the conclusion that such scenes would be reproduced here. In most cases in France the trial is not presided over by a person who has any pretence to impartiality. He is a member of the civil service; in general he has never practised as an advocate, and if at all, for only a short time. He has either commenced his career in the civil service, or has entered it very soon after the commencement of his career; he has risen by steps in the civil service, has come to identify himself with the profession of a judge, and in that position he is constantly hoping for preferment. He sits in the presence of the Procureur du Roi, who is also intimately connected with the Administration, who is generally a bigger man than himself, and upon whose report of the trial he knows his own claim of promotion will very much depend. That is not the person before whom a prisoner, whether examined by him or not, can expect an impartial trial. Then, the examination of the prisoner is conducted not by counsel, but by the judge, whose position I have described. It is but natural that a person trying to elicit some story from the prisoner should more or less get into altercation with him. By trusting the examination to the judge, you at once put the prisoner into an antagonistic position with regard to him, although he is the only person who can theoretically protect him. Examined by counsel, he would have the protection of the one impartial agent in the trial, the judge. The fear of an adverse public opinion would do much to prevent counsel taking an unfair advantage of a prisoner; but even if the counsel were regardless of public opinion, there would in England be upon the spot a judge, impartial, as we know English judges are, who, inasmuch as he would not examine the prisoner himself, would not be mixed up with the altercation which it would be his duty to check. We may, therefore, consider the question on its own intrinsic merits, without fear of French results flowing from it. Now, a great concession is made when people admit the principle for which we contend in respect of magisterial cases. There was an inconsistency in Mr. Stokes's remarks, when he referred to the relative value of a prisoner's statement as a witness upon oath, or his statement as a prisoner under the present system. The jury has just as much reason to suspect a prisoner's statement not made on oath, as if it were made on oath, and would not that bias be corrected by the test of cross-examination? Although our present system generally succeeds in convicting the guilty, and generally in acquitting the innocent, yet it does not in these nicely-balanced cases give to an innocent person that security which he would have if he were allowed to offer himself as a witness. And we must remember that his statement or explanation is not always put forward by his own mouth, but more often is stated in the shape of a suggestion by his counsel, as the theory upon which the counsel bases the defence. The jury would naturally look with great suspicion upon this; because the counsel is a man of trained ingenuity, expressly employed for the purpose of putting forward some theory of defence. Surely any person who knows he is innocent would like to tell his own story on oath, and have it subjected to the test of cross-examination under the protection of the judge. It has been said we cannot stop short at allowing the prisoner to offer himself as a witness; we must, if we do anything, make him subject to all the conditions to which ordinary witnesses are subject. I would not object to a prisoner being compelled to give evidence, but I do not see the logical connection between the two propositions. What the choice would be in the case of an innocent person I cannot for a moment doubt.

Mr. CHRISTOPHER CHILDS (Liskeard) pointed out how tender the law of England had always been to the prisoner, and emphatically objected to the proposal of Dr. Waddilove.