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the object of the trial is that the guilty shall suffer, and I think to that extent the learned Recorder has made out the case of Dr. Waddilove. With regard to the other points-on which Dr. Waddilove is a very competent judge-relating to cases of divorce and breach of promise of marriage, I think there is little difference of opinion in the present meeting, and that the general opinion is in favour of the alteration of the law.

Mr. J. H. RAPER: I wish to call attention to a point raised by Mr. Palmer. In the interests of truth, and for the protection of society, he would accept evidence from any quarter, whatever the creed or opinions of the witness might be; in other words, the intellectual or moral relationship to society of the witness he would not recognise, while at the same time he actually speaks against the recognition of a prisoner as a witness to aid us in eliciting truth. It seems to me as if he was quite satisfied that the mere fact of the man standing in the witness-box, being a prisoner, rendered it impossible to get at the truth through him. Now, if we eliminate from the inquiry any individual capable of giving evidence to elicit the truth, we certainly injure the innocent prisoner. In point of fact, if we have a good witness in the court he is in the criminal dock rather than in the witness-box; and if neither side can call him as a witness, we certainly limit our power of getting at the truth. The real question for our consideration is—What is the effect likely to be upon society at large, or is it likely to be a protection to society? I think that Dr. Waddilove's principle is in the right direction; and I also recognise the position taken up by Mr. Holyoake as one in the right direction; for it is really unsafe to exclude persons from giving evidence because of their religious opinions. I have no doubt that Mr. Holyoake referred to persons incapable of saying whether a certain religious opinion was true or false, but quite capable of saying whether a thing was blue or green. They may be insane on some points, but on other points they are quite capable of giving evidence.

Mr. THOMAS DUNN: I am old enough to remember when the allowing a counsel to speak in favour of a prisoner was said to have been an uprooting of the constitution, and very damaging to the State. I am quite old enough to remember, when the alteration of the law took place in civil cases, we were told that great injuries would flow to society from that change. But society has not yet felt any of these injuries. For myself, I would agree to the examination of prisoners at once, were it not that we have it so engrained in our hearts as Englishmen, that if an offence is charged it must be proved. Whether that, like many of our habits, ought to be altered, I should doubt. It should be remembered that, at present, if a magistrate, having heard the evidence in a criminal case, makes up his mind to send the accused to trial, he asks him if he has anything to say; and if he has anything to say, his statement is taken down, but it is not made upon oath. If the case goes to trial, any statement made by the prisoner goes along with the depositions; but I am not aware that, whether he has made a false statement or declined to make any statement, it has any effect upon the minds of the jury.

Mr. PALMER: The statement is not necessarily brought before the jury at all, unless counsel for the defence chooses to put it in, and then he gives the right of reply.

Mr. Cox: The statement is not taken to his prejudice.

Mr. DUNN: That is the point I wish to come to. We are apt to look at what is done in France, where all our notions of English justice are outraged by the judge trying to get the prisoner convicted by his cross-questioning; but nothing of that kind can take place here, as the examination and cross-examination here must be made by counsel. Take the case of a man who had been convicted previously. I think the same feeling of fairness which now prevents that fact being brought up against the prisoner on his trial would restrain the bar from alluding to it, and also the judge from bringing it forward. I cannot make up my mind on the subject of allowing the accused to give evidence. If I were to express strongly all my feeling, I would say, no; but I think my intellect says it would be prudent to try it.

The CHAIRMAN (Mr. Forsyth, Q.C.): On some points I have a strong opinion; on others such opinions as I shall express will be under considerable doubt. Now,

on the general principle which has been enforced by Dr. Waddilove in his paper, I have no doubt at all; and I think that the burden of proof lies upon those who seek to exclude any evidence whatever which may tend to the elucidation of truth. I think that when we got rid, in a great measure, of the objections to the competency of evidence, and made the objections apply rather to credibility, in point of fact the principle for which Dr. Waddilove now contends was conceded. Most of us remember the time when the slightest amount of interest of a pecuniary nature rendered it impossible for a witness to give evidence, and we know the gross injustice that that rule of law produced. Then that was got rid of, and now other considerations of a different nature prevail excluding testimony; and the question is whether we have or have not been wise in giving weight to these objections. Not to take up your time long, I will, with your permission, very briefly go over the four subjects which Dr. Waddilove brought before you with reference to exclusion of evidence. First of all, with regard to the question of the exclusion of the evidence of the parties in cases of breach of promise of marriage, I confess it has long struck me as a gross anomaly in the administration of justice. In that very action in which perhaps alone it is possible to prove the truth by the evidence of the one party or the other, these parties cannot give evidence. I am inclined to think that in all cases of breach of promise of marriage each party should be allowed to give testimony, the jury always taking into account that a deduction is to be made from the credibility of the party, considering the question at stake. But there is a difficulty I have with respect to this part of the question, which was felt by the House of Commons, and which I have no doubt led to the rejection of Sir Fitzroy Kelly's bill; and that is the question whether it should be required that the promise should be in writing, or whether the mere oath of one of the parties-say, the ladyshould be sufficient to obtain a verdict if the jury believed that. Well, I have come to the conclusion that the promise should be in writing. By the Statute of Frauds you know that you cannot recover the price of goods of the value of £10-you cannot recover under an agreement formed within a year unless you produce written evidence. Now, when you consider how much would be in the power of the woman who came forward by unsupported evidence to say, "That man made me such a promise on a particular day," with no written corroboration of that evidence, I think there ought to be a provision as to the promise being in writing. In such a case as that which I have just supposed, if the woman was young and good-looking, the chances are, as a speaker has observed, that there would be a verdict for the plaintiff. The speaker who referred to this spoke of corroboration, and he said that he would be inclined to admit parties, but that he would only allow the oath of the party with corroboration. But observe that this is just one of those cases where corroboration, in the ordinary sense of the word, would be of no use, if you have only the oath of the party. Because what is corroboration? Is a Sunday walk, or an admiring glance, or a little attention, to be taken as corroboration? There would not be a single case of an action for breach of promise of marriage in which you would not be able to have some corroboration, because no jury would give a verdict to a woman who said, "That man promised me marriage," and could not produce a soul to say that the parties had been very intimate, and that something took place which might be taken to corroborate the oath of the woman. I would admit the parties as witnesses in these cases, but as a safeguard I would require written evidence of the promise of marriage. With regard to the admission of parties as witnesses in suits of divorce for cases of adultery, I have no doubt that both parties should be admitted, but not compelled, to give evidence. I do not think that it would be right or proper that the husband or wife should be allowed to bring in one another to prove that which is a crime; and I think the ends of justice would be sufficiently attained if you allow each party to be a witness in his or her own cause, leaving the jury to make large allowance for the probability of each party telling a falsehood through the circumstances of the case. With regard to the other question, which has been most fully discussed of allnamely, whether we ought to allow the examination of persons who are tried in a criminal charge, I confess, although it is a difficult question, that I have come to the conclusion that in that point our position ought to be altered. I myself

think, as every person must think, that the great object of criminal procedure is not the mere protection of innocence, but the discovery of guilt; and I do believe that we put out of our hands a most effectual instrument for the discovery of guilt by refusing to allow a prisoner to be examined. Several of the speakers who have addressed you to-day have rested their argument rather on the ground that to allow the examination of the prisoner would be a protection to the innocent; but I am inclined to agree with the Recorder for Bath, that in that respect the change in the law is not so much needed, because at present it is in the power of the prisoner at any moment to make a statement. If the judge thinks that a statement by the prisoner will be of use to him, I believe that very few judges on the bench would refuse to let that statement be made, even though the prisoner is defended by counsel. But if there is any doubt upon this point, I would be disposed to alter the rule of law, so as to allow all prisoners to make a statement, even though they are defended by counsel. I would make an allowance in all such cases. I remember one case of a trial for murder in Liverpool, in which the circumstantial evidence against the prisoner was of the strongest possible kind. The prisoner in that case was defended by counsel, and when the prisoner asked to be allowed to make a remark by way of explanation, the counsel said to him, "For God's sake, don't do so, or you will hang yourself." But the prisoner was allowed to make his statement in explanation; the jury saw his demeanour, and the result of the prisoner's explanation was that he was acquitted. I remember that the judge who tried that case was the late Baron Alderson. I believe that to allow prisoners to make statements on their own behalf on oath would not only be for the protection of innocence, but that, through the cross-examination which would follow, it would also be a great means for the detection of guilt. I am not one of those who feel so strongly impressed with a tender regard for a person ultimately proved to be a criminal, as to be entirely opposed to extracting from himself the means of conviction, if it is only done in a proper and becoming manner. At present, if a man accused of a crime says, "I decline to make any explanation of these circumstances which are brought against me," and if the jury, from his so declining, infers his guilt, the jury would be doing their duty in convicting him. The great question is, how is the examination of the prisoner to be conducted? I have been in France, and attended the criminal trials in that country, and I confess that nothing is more shocking to one's sense of justice than to see the judges in France engaged, as if they were counsel for the prosecution, in angry altercation with the prisoner, endeavouring to show their own acuteness at the expense of the embarrassment of the prisoner, and actually smiling with triumph when the prisoner gets into a dilemma. I have actually seen in Paris a prisoner interrogated by the judge, and treated as if he were guilty, in presence of the jury, and before a single witness had been called into court. That could not happen, of course, in this country; but I should be very unwilling to see anything like a contest of skill between the prisoner and the judge. I think it must rest with the prisoner's counsel to decide whether the prisoner should be examined, and I think that might be done under the discretion of the judge so as to involve no great harm. With respect to the cross-examination of the prisoner, I would have the crossexamination conducted by the prosecuting counsel if the examination was conducted by the prisoner's counsel. In the case of a prisoner who makes his own statement, he might have the option of being cross-examined for the prosecution. But in either case, whenever a prisoner was cross-examined I would confine the cross-examination, as has been suggested, to the res geste. Mr. Palmer said that would be an alteration of the rule of examination, and that you ought to test the credibility of a prisoner, as you do that of every other witness, in the keenest possible way. But the cases are entirely different. If a witness comes forward in any case you ought to know whether he is truthful or not, and you test his veracity in all ways. If you break down his veracity, what follows? Simply that the party for whom he is giving his testimony loses a verdict; but if, in the case of the cross-examination of a prisoner who is giving evidence on his own behalf, you go into the man's past life to make out that he has been a poacher, you lead juries to the illogical conclusion that because he committed crimes formerly, he was guilty of the crime with which he stands charged. That is the

reason why, in the case of a prisoner being cross-examined, where the prisoner is defended by counsel, you ought to depart from the ordinary rule and confine the examination to the res geste. The other point which has been discussed is whether husbands and wives ought to be competent and compellable to give evidence for or against each other? On that question I differ from Dr. Waddilove. It may be illogical, but I cannot bring myself to contemplate with approbation the proposal that in a criminal case a wife ought to be allowed to convict her husband; and I believe that if, in the administration of the law, you found wives coming forward with evidence which would send their husbands to the gallows, or husbands coming forward to convict their wives of capital offences, our feelings would be so shocked, that instead of looking upon it as an improvement, it would be considered almost universally as a retrograde movement. It is a question of feeling, and it may be said that the opinion is illogical-that the wife ought to state the truth if she has seen her husband commit the crime, and that the husband ought to suffer; but I think that the feelings of the country would be opposed to that change. The only other question which has been brought before the section to-day is that which was raised in the paper of Mr. Holyoake; and it is difficult for me to express the absolute dissent that I feel with regard to his arguments. I believe that there is a great deal of misapprehension in Mr. Holyoake's mind with regard to the facts of the case. What our law says is this-If you, believing in a Divine Providence and a future state of retribution, have a religious objection to the taking of an oath, we respect your scruple, and we only ask you to make a solemn affirmation. And I think the law is perfectly right, because what the law says, and what our judges have felt, and what I believe the community at large feel, is that you want something more than the mere deterrent effect of the possibility of a conviction for perjury to get at the truth in many cases. There are many

men who would face the danger of a conviction for perjury who, if they believe in a future state of retribution, would not peril their souls by telling a falsehood. I believe that Mr. Holyoake has inadvertently made a great mistake in his paper, where he says that, in the Halifax burgh court, in 1861, John Howard was sentenced to a fortnight's imprisonment for being an atheist. Now that is not the law, and never has been the law. The real facts of the case would be that John Howard came forward and refused to take the oath without assigning a reason, and that is contempt of court, for which he would be imprisoned. But observe, if a man says, "I am an atheist," the court then says 66 We cannot receive you." He is not committed to prison for being an atheist; for in reality the court says to him, "We won't have your oath ; we cannot believe your testimony." I do not wish to detain the meeting longer than to express my entire dissent from the proposal of Mr. Holyoake; but I do it on this ground, that where a man comes forward and says, "I am a moral man; I am a truthful man; but I have no faith in a Divine Providence-I have no belief in a future state-I care nothing for the idea of retribution." I myself, for one, would be very sorry to have my life, liberty, and property, at the mercy of that man.

Dr. WADDILOVE, in reply, said: With reference to the remarks of the learned Chairman, as to the reception of the evidence of wives and husbands, it is very true that it would be a painful thing indeed for a husband or wife to be convicted by the evidence of one or the other. But there is another side of the question, and it ought to be kept in view that it would be a very pleasant thing to see the innocence of the husband or the wife established by the evidence of the one or the other. And how often does it happen that a husband and wife are together when a transaction takes place for which the husband or the wife may be subsequently charged, and nobody else is present, while suspicion is very strong against either of them; yet the husband or the wife, as the case may be, cannot come forward to say one word in explanation of the suspicion, or clear the husband or wife of the charge. It is, I think, very desirable that wives and husbands should not be compellable, but that it should be competent for them to give evidence. I would only put one question to gentlemen who have taken the opposite view to mine with reference to the admissibility of the evidence of the prisoner in criminal cases. I would simply ask them if they were innocent of a

charge, and that charge was pressed against them, whether they would not try to come forward to speak to their innocence? The guilty man would at his trial refuse to make his statement; and why would he refuse? Because he would know that his statement would convict him. The innocent man, on the other hand, would be most ready to come forward and try to establish his own innocence, and I do think that in our rules of law, we ought to look to the interest of the innocent rather than to the interest of the guilty.

Mr. HOLYOAKE: It is a very serious thing to make a profession that you Even if your cannot give evidence. You become an outlaw if you do so.

own child is killed, you cannot appear to prosecute the person who did it. As one of the speakers remarked in the course of the discussion, the result of the exclusion of the evidence of parties who have a conscientious objection to taking an oath is often not so much any disadvantage to the person himself who is excluded as a positive disability falling upon the person who may, for the time being, need the evidence of the parties who unfortunately are in the position of being unable to take the oath. Mr. Tennent said that he was afraid we had gone far enough in the way of relaxing the oath; but I think those who object to our going further in this direction are bound to show why we have gone so far. There are very few persons who have any scruple about taking the oath on account of the words of Jesus, "Swear not at all;" and they are much smaller in number than those who say, "These terms of the Surely oath imply a confession of faith which I do not hold; and therefore I cannot make a proclamation of that as my opinion if I do not hold it." if the one class is entitled to exception we are entitled to claim_exception also for the other class. As to the imprisonment of the pauper, I will explain. The man was an atheist, and he ventured to say so; and because he made that avowal he was not permitted to take an oath, and he was sentenced to a fortnight's imprisonment because he did not take the oath, and was thus guilty of contempt of court. There is no practical difference. One gentleman suggested that the phrase," So help me God" should be omitted. Now if that phrase was omitted it would take away the sanctity of the oath altogether. I think it better that we should have no other form than the simple declaration that we are liable to the penalties of perjury if we give evidence untruly. But there are numerous persons in this country who are under a religious impression with regard to the oath, and then you would no doubt deprive the courts of a good deal of evidence which can be extracted in the form of truth if men are under the impression that they are giving their evidence in the sight of God, who will punish them. That would involve the religious sanction of the oath. I have not pleaded for that. I have only pleaded that where there are persons who have no unwillingness to believe in a future state of retribution-who are not in the criminal condition contemplated by the President in his remarks, but who are reluctantly on the side of those who disbelieve it is better and fairer that they should be permitted to make an affirmation, than that they should be tempted to take an oath against their conscience; and if you say that the law shall remain as it is you say it is better that a man make a false declaration than that he should be an honest man and declare openly what his opinions are.

LOCAL COURTS.

"Upon what principle should Local Courts be constituted, with reference to extent of jurisdiction and system of procedure?"

In addition to the papers by Mr. Williams and Mr. Hall, printed at pp. 143, 155, a paper was read by Mr. Leppoc, which has been printed among the Sessional Papers of the Association in the "Journal of Social Science."

DISCUSSION.

Mr. ROBERT WILSON.-There is no doubt that the County Courts as they now exist, have earned for themselves a very great desert by their usefulness in the settle

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