examination would have convicted himself of the murder of Mr. Briggs, and we should have been spared the expressions of doubt in some quarters as to the justice of the verdict.

The same remarks will apply to the recent trial for child murder at Exeter. It seems, moreover, somewhat anomalous that persons charged with a criminal offence should be convicted solely on their own confession (as in Constance Kent's case), and yet precluded from rebutting the charge on oath.

There is a remarkable case in which two persons are both undergoing punishment for an offence of which both could not possibly be guilty.*

If, then, as I conceive, defendants in criminal cases ought to be allowed to tender their own evidence, why should not husbands and wives have the same privilege extended to them? This branch of the question was also brought before this Society by Mr. Pitt Taylor, in the paper I have alluded to, in which he gives cogent answers to the objections against the proposition. Although what I may urge may lack weight in comparison with such an authority, I will venture to give a few additional reasons why this restriction on evidence should be no longer enforced. The regard for the affection, sympathy, and confidence which ought to exist between husband and wife has prompted it, and we cannot but respect that consideration; it would be a painful thing to witness the conviction of a husband or wife by the evidence of either, but we are often compelled to witness the proof of the guilt of a parent by the evidence of the child, or the child by that of the parent, a violation of our feelings no less revolting. Again, it may be said that a desire to screen the husband or wife may induce perjury; the same may be said in civil cases, and if the fear of encouraging perjury is to prevail over the desire to elicit truth, we must revert to our old practice, and exclude the testimony of parties in their own cases, as also those who have an interest in the result. But there is another view of the question; the husband or wife may be the only person capable of establishing the innocence of either when accused. In trials for bigamy the woman with whom the second marriage is had is a competent witness, she may in fact be a legal wife, since the first marriage may be invalid, or, if not, she may be as much attached to the prisoner as if she were. Again, in such trials, the legal wife is not a competent witness, she cannot be heard either to prove or disprove the charge, and thus justice often miscarries.

In common cases of assault married parties are sentenced to fine and imprisonment on the testimony of each other, and no objection is raised. In suits for necessaries supplied to the wife, if the marriage be denied, their testimony will be received; again, in courts of equity, they may depose in support of their several adverse claims. In the Divorce Court, both or either of them are competent and compellable to give evidence of cruelty or desertion, or of the

* Mad. Valentin's case.

misconduct provoking them, although the question of adultery may also be in issue. Again, in suits for nullity of marriage, the quasi husband and wife are competent and compellable witnesses, and have been heard for and against each other, although it was obvious that revolting disclosures must be made; and, lastly, the judge of the Divorce Court has the power, which he has frequently exercised, of calling the petitioner before him to test the sincerity of his proceedings and his conduct towards his wife. It requires, then, but a step further in the path of justice to render married parties competent and compellable to give evidence, whether in favour of themselves or against each other, in every issue that can be raised.

Allow me here to state, as bearing on this question, what I lately witnessed at the Middlesex Sessions. A man was indicted for stealing some goods from a railway van. There could be no doubt of his guilt. The judge summed up decidedly against him. He then asked the prisoner what he had to say in his defence (he had no counsel). He replied that he had a certificate from an hospital. The judge replied, "We cannot receive that" (its nature, therefore, did not transpire). The prisoner then said, " My wife is here to speak in my favour." The judge abruptly replied, "We cannot hear her." The jury consulted; the judge again addressed them, urging as far as he could with propriety, a conviction. The jury, however, hesitated, and at length retired, and were eventually discharged, not being able to agree. What weighed on the mind of some was, no doubt, the impression that the prisoner had not had a fair trial by reason of the exclusion of the certificate and the evidence of the wife. To the question, then, which has been submitted to us, whether it is expedient to remove the remaining restrictions on the admissibility of evidence, I would unhesitatingly answer in the affirmative; and I would venture to suggest for your consideration the three propositions:-1st. That parties in actions for breach of promise of marriage should be competent and compellable to give evidence either for themselves or against each other. 2nd. That parties to suits instituted in consequence of adultery may nevertheless be competent and compellable to give evidence for themselves or against each other. And, 3rd. That persons charged with any criminal offence may tender their own evidence, subject to cross-examination, in order to clear themselves from the charge. And, lastly, that husbands and wives shall be competent and compellable to give evidence for or against each other in every criminal as well as civil trial.

I am satisfied that the shrewd and intelligent people of this important manufacturing town will consider these questions with as much sagacity as has marked the progress of their laborious skill; but I would remind them, in the words of Jeremy Bentham-that sturdy but honest and energetic pioneer in the path of legal reform, whose doctrines we have at last learnt to appreciate, although deemed vague and visionary when he enunciated them-that evidence is the basis of justice, and that to exclude evidence is to exclude justice,

143

LOCAL COURTS.

Upon what Principle should Local Courts be Constituted with reference to Extent of Jurisdiction and System of Procedure? By ARTHUR JOHN WILLIAMS.

BEFOR

EFORE we proceed to discuss the constitution of local courts, it will be as well to have before us distinctly the different methods by which civil justice is locally administered at present in this country.

There

Until the year 1845, it may be broadly stated that no claim, however trifling, could be enforced at common law except through the tedious and expensive procedure of the superior courts. had, it is true, existed, from the time of Alfred, a county court for each county, which was retained by the Norman kings. But, after continuing to be the principal court for the civil business of the kingdom for about a century, it gradually fell into disuse, when Henry II. began to appoint justices for the special purpose of making periodical visitations into each county, and laid the foundation of our present assizes. This county court, which never gained the dignity of being a court of record, received its final death-blow from a statute of Edward VI.,* which limited its exclusive jurisdiction to cases under 40s. It had for centuries fallen into complete insignificance and disuse, and had never been replaced by any efficient substitute. In some of the chief towns an attempt had been made to meet local needs by the establishment of local courts of request, each of which had an independent local jurisdiction. In these local courts, most of which were constituted by separate Acts of Parliament, the parties to local disputes might be examined. They were all, however, based upon no uniform system of procedure, and the proceedings of most of these inferior courts of record were complicated, costly, and dilatory." In 1845 the jurisdiction of 106 courts of this kind then existing varied from 40s. to £15.

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Practically speaking, therefore, the country was without any system of local judicature until within the last twenty years. The the poorer classes by this state of unfair consequences entailed upon the law, which in fact rendered all civil justice inaccessible to a large section of the people, had long engaged the attention of law reformers, particularly of our President, who, in the year 1830, brought in a Bill to establish local jurisdictions in this country. The speech with which he prefaced the introduction of this Bill contained a masterly and exhaustive survey of the evils caused by the want of

* Statute of Gloucester, 6 Edward VI.

† "Report of Royal Commissioners on County Courts, 1856,” p. 50.

cheap local courts, and the way in which these evils should be removed. The Bill was, however, postponed, and the Common Law Commissioners, to whom it was referred, reported in favour of the greater part of it. When again brought forward in 1833, it was lost by a majority of two in the House of Lords.

At last, in 1846, after an ineffectual attempt by statute* to modify the existing local courts of request, so as to meet the difficulty, the first of our Small Debts Courts' Acts was passed. By this measure, which was mainly due to the exertions of Lord Brougham, the first of a series of most salutary changes was made in the constitution and procedure of our common law courts. They have, in a great measure, effected the object proposed in the preamble to the first Act, "That one rule and manner of proceeding for the recovery of small debts and demands should prevail throughout England." They have devolved upon local tribunals a large share of their minor business, and we have now no less than sixty common law judges holding monthly sittings at every town of any importance throughout the kingdom. At these sittings, so familiar to every one under the old title of " County Courts," † all common law disputes, where debt or damage not exceeding £50 is claimed, may be tried. The procedure has been shorn of all the tedious and complicated machinery of written pleadings. The rules of practice, though founded on the established maxims and principles of the common law, leave to the judge a wide discretion as to their application. His duties are to get at the facts of each case, by the most direct and simple means. The parties, or their attorneys, are brought together in his presence, and, having heard their statements, and the statements of their witnesses, he is in a position at once to administer effectual justice. For this purpose he is made a judge as to fact as well as law; and though the constitutional right of having the facts submitted to a jury is very properly reserved to either party in cases above £5, this right is rarely claimed.‡

The immediate effects of the constitution of these local courts were most striking. The people at once availed themselves of a tribunal so accessible, so simple in its forms, and, comparatively speaking, so cheap. In the year 1863, a year rather below the average, there were nearly 800,000 plaints in these courts, and these plaints represented claims to the amount of nearly two millions.§ The experiment has, indeed, been "eminently successful, and benefits have been conferred upon the community by means of these courts, which it is, perhaps, difficult to exaggerate. Honest claims have been enforced, and injuries been redressed which the expense, distance, and delay incident to the superior courts placed, in effect,

8 & 9 Vict., c. 127.

This is their proper title, for the Act of 1846 distinctly makes them branches of the ancient County Court.

Out of 442,205 causes tried in 1863, only 877 were tried before a jury."Judicial Statistics," 1863.

§ "Judicial Stat.," 1863.

beyond the power of the law. Facility to enforce rights has checked the commission of wrongs, and thus a more desirable state of credit and morality has been produced.""

The Court of Chancery, moving in a different orbit, though round the same centre, exercises a distinct jurisdiction over a class of cases with which a Court of Common Law cannot deal. But its duties are of the most important nature. It regulates and controls all those fiduciary relations which are common to mankind in every station, and it gives relief in many cases where the more direct remedy of a common law action is not available. The important duties of trustees, the relations between partners, the administration and distribution of the estates of deceased persons, the specific performance of obligations, are all exclusively under the control of this court. The interests of the humbler classes lie, quite as much as those of the rich, within the scope of this jurisdiction. Yet, until within the last month, it was exclusively central and metropolitan ; and though its machinery had been made much less complicated and expensive, it was still quite beyond the reach of those classes who have often as much need of equitable relief as the wealthy. The great body of the people could not make use of this central tribunal. What they wanted was a handy and accessible mode of obtaining redress in a class of cases usually involving much hardship, where the existing means of redress were so costly and remote as to amount to a practical denial of justice. Without such a means of redress, the industrious mechanic, the small tradesman or farmer, was at the mercy of those with whom he had entered into relations and engagements over which a court of common law has no control. He could not secure himself against the incapacity or gross misconduct of his partner. He could not enforce specific performance of agreements for the non-performance of which mere damages do not afford adequate compensation. If he had saved and left a little money, there was no court at hand which would be ready to interpose when there were unscrupulous or careless executors, administrators, or trustees, and see that the property was duly administered or distri buted, instead of being wasted or improperly applied." †

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As long back as the year 1833 Lord Brougham urged upon the attention of the Legislature the hardship and injustice of this defect, and introduced into his Local Judicature Bill provisions for establishing cheap local jurisdiction in equity and bankruptcy. Though in this and subsequent efforts he failed to secure the support which was due to such a measure, he has lived to see it adopted and framed into law by others. In the last Session a Bill was presented by the then Lord Chancellor, Lord Westbury, which, with some alterations, has passed into law, and from the 1st of October, 1865, confers upon the

"Report of the Royal Commissioners on County Courts, 1856," p. 25. +"Report of Standing Committee of the Jurisprudence Department on the County Courts Equitable Jurisdiction Bill.”

28 & 29 Vict., c. 99

L