necessarily reject the other also. Accordingly the husbands and wives of parties to the record were included in the proviso to Lord Denman's act, and, as we shall see, they are not rendered competent by the present statute. This omission is intentional on the part of the legislature, the House of Lords having wisely, as we think, refused to carry the admissibility of evidence to that extent which would permit a wife to be called upon to give evidence against her husband, or vice versâ.

Such being therefore the position of the law of evidence with respect to the admissibility of parties to suits anterior to the passing of the 14 & 15 Vict. c. 99, we will now turn to consider the provisions of that statute.

It commences in the first section with a recital of the proviso in Lord Denman's Act, which we have set out above, as far as and omitting the words printed by us in italics, and it enacts, that so much of the former act shall be repealed. The effect of this repeal would be to obviate every objection to competency on the score of interest, except in the case of the husband or wife of those persons who are nominally or substantially parties to the suit. But in order to obviate any objection being raised, that although the evidence of the parties was receivable, if they chose to tender it, yet that they could not be obliged by their adversaries to become witnesses, the second section enacts, that

"On the trial of any issue joined, or of any matter or question, or any inquiry arising in any suit, action or other proceeding in any court of justice, or before any person having by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action or other proceeding may be brought or defended, shall, except as is hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said suit, action or other proceeding."

The language of this section is very extensive. It includes every court of justice, superior or inferior, civil or criminal, within the realm. It comprises courts martial and committees of either house of parliament, and arbitrators who derive their powers from the consent of the parties, and it renders all that class of persons which was heretofore excluded not only competent witnesses, but also compellable to give evidence against themselves. It is scarcely possible to conceive any enactment which would make a more radical alteration in the mode of preparing cases for trial, or to foresee the full extent to which it may affect the hearing of causes. This statute comes into operation on the 1st of November (the day upon which this

Magazine is published), and applies to all trials and inquiries which take place on or subsequent to that day. It will therefore affect every civil cause henceforth tried in any superior court. It might have been as well if a clause had been inserted similar to that introduced into Lord Denman's Act of 1843, to the effect that nothing in it should apply to or affect any suit or proceeding commenced before the date of its passing. Some surprise will, we fear, be caused by this quasi-retrospective operation.

Among the effects which will be produced by this new medium of proof, the most beneficial will probably be the diminution of the number of causes which are defended upon mere speculation, or on the chance that the plaintiff may be unable, or have neglected to procure some piece of evidence essential to his case. Moreover, in those cases which do come to trial, the expense of procuring the attendance of witnesses to prove handwriting or the execution of documents will now be constantly spared, because the plaintiff may, by putting the defendant in the box, prove all these facts out of his mouth. But while these advantages are likely to result, we cannot shut our eyes to the fact, that there are disadvantages to be weighed in the opposite scale of the balance. A plaintiff will often tender himself as a witness to prove his own demand, and after swearing to his knowledge of the facts, will leave the case without other evidence in support of it. The defendant will then in his turn give a very different version of the same story, and it will be left to the jury to arrive at a conclusion between these two discordant statements, without the assistance which is so often afforded by corroborative or circumstantial proof. This consequence may well occur where both parties mean to tell what they believe to be a true story. The one may swear positively to a turning fact, which the other may from circumstances be unable to deny or to admit, but who in his turn may advance another fact inconsistent with his adversary's case. How are twelve common men, unaccustomed to weigh probabilities, to see their way through these discrepancies? And if this may happen where each party is honest-minded, how much is the difficulty enhanced if either chooses to strain his conscience but a little, and to add or colour a fact to suit his own view of the case? We much fear that the temptations to perjury will be thus increased, without any adequate security for its detection.

There is no clause in this act providing for the mode in which a plaintiff or defendant is to require the attendance of his adversary as a witness in the cause, or at what period such a summons is to be served. The parties will therefore have to serve a

subpoena either ad testificandum, or duces tecum, as in the case of an ordinary witness. We think, however, that it would have been better if it had been made necessary for either party to give notice to the other that he required his attendance, a certain number of days before the trial, as the knowledge of such an intention might often lead the party so subpoenaed to serve a counter-subpoena on his adversary, whereas he may now be too late to do so, especially if his adversary, for this very purpose, chooses to delay serving the subpoena until the last possible moment.

We saw that the general terms of section 2 of the act were restrained by a reference to after-contained exceptions. These exceptions are to be found in sections 3 and 4 of the statute.

3. "But nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself; or shall render any person compellable to answer any question tending to criminate himself or herself; or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband."

4. "Nothing herein contained shall apply to any action, suit, proceeding or bill in any court of common law, or in any ecclesiastical court, or in either house of parliament, instituted in consequence of adultery; or to any action for breach of promise of marriage."

The first of these sections embodies the principle which chiefly distinguishes the criminal jurisprudence of England from the practice of most other countries.. It is a leading doctrine of the law of England, and one upon which much of the security and liberty which we enjoy depends, that every crime charged against a man must be substantiated against him by affirmative evidence, given by those who seek to prove his guilt. No question, except whether he pleads guilty or not guilty to the indictment, can strictly be put to a prisoner at the bar, who is carefully protected from answering any questions either explanatory or inculpatory of his conduct. Even admissions or confessions previously made by him are admitted with the greatest jealousy, and if there is any reason to believe that they may have been dictated by hope or fear-if they are not plainly and evidently spontaneous--our law refuses to hear them detailed. In criminal prosecutions on the Continent of Europe, a totally different system prevails. The prisoner, after hearing the charge read against him, is in the first instance examined in the presence of the jury as to his knowledge of the transaction in question. It

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is the duty of the president of the court, instructed by the previous proceedings, to put questions to the accused with reference to the offence, often artfully framing the interrogatories with a view of entrapping him in his answer, and constantly exhorting him to state all that he knows of the matter. A substratum being thus laid, the witnesses are then examined, and the whole case is left to the jury. How diametrically opposed is this to the English system, where every man is presumed to be innocent until he be proved guilty; and where it is the recognised duty of every criminal judge to act as counsel for the accused person! It cannot be doubted that our method is more in accordance with the true principles of justice, which should ever be administered with care and caution, and is calculated to render judges even and dispassionate arbiters of the law; a result scarcely possible for those who assume the tone and part of advocates. At the same time, although of the two alternatives our course of practice is immeasurably the superior, it must be admitted that our rule of rejecting all admissions made by prisoners under any circumstances of possible inducement, is far too stringent. If it be clear that the statement has been dictated by some improper motive it ought to receive no credence; but we cannot help thinking that it would be better in all cases of doubt to receive the evidence with its accompanying facts, and to leave it to a jury to decide upon the whole view, whether they attach credit to it or not.

The exception in the fourth section is founded in the same policy which prevents husbands and wives giving evidence for or against each other. Proceedings instituted in consequence of adultery, or for breach of promise of marriage, must always involve inquiries into subjects of so private and confidential a nature, that it would be injurious to society to permit or compel those interested as principals to give evidence in courts of justice.

The next section of this statute to which it is necessary to call attention is the sixth, which provides that:

"Whenever any action or other legal proceeding shall henceforth be pending in any of the superior courts of common law at Westminster or Dublin; or the Court of Common Pleas for the county palatine of Lancaster; or the Court of Pleas for the county of Durham, such court, and each of the judges thereof, may respectively, on application made for such purpose by either of the litigants, compel the opposite party to allow the party making the application to inspect all documents in the custody or under the control of such opposite party relating to such action or other legal proceeding, and, if necessary, to take examined copies of the same, or to procure the same to be stamped, in all cases in which previous to the passing of this act

a discovery might have been obtained by filing a bill, or by any other proceeding in a court of equity, at the instance of the party so making application as aforesaid to the said court or judge."

This is a most valuable addition to the machinery of a court of common law. Hitherto the instances in which a party to an action has been able to inspect any documents in the possession of his adversary have been extremely limited. In policy causes indeed the rule has long prevailed of obliging the assured to produce to the underwriters all papers in his possession relative to the matter at issue; but a practice so conducive to justice has unfortunately not been extended to other kinds of actions; the utmost that the courts have done being to give a defendant, who requires to see documents in the possession of the plaintiff, time to plead, in order to enable him to have recourse to a court of equity for a bill of discovery. It is surprising that so inartificial a course of proceeding should have been permitted to remain so long. Independently of the great increase of expense which is thereby entailed upon litigant parties, it is obviously impossible that a collateral question of this kind can be as satisfactorily determined by a court which has not cognizance of the whole of the subject-matter in dispute, as by that tribunal with which the final decision rests. Lord Mansfield, who took a wider view of our legal system than most of his successors, is reported to have said that, whenever a defendant would be entitled to a discovery, he should have it in a court of law without going into equity. This dictum, however consonant it appears to be with good sense, we find scouted by the Court of Exchequer in a recent case, where they complain that it has occasioned a great deal of trouble at chambers, being perpetually cited there as an authority for applications to inspect, and they express a regret that it is not corrected!!1 Errare meherculè malo cum Platone, quàm cum istis vera sentire. Far preferable is the strong sense of the great founder of our commercial law, to the narrow trammels within which the learned barons have thought fit to confine the course of justice. Happily, however, this practice no longer rests upon the dictum of any judge, however eminent. We now have Lord Mansfield's opinion not only not corrected, but expressly sanctioned by the legislature, and we trust that the courts will exercise this power liberally and beneficially. We should have preferred to see the clause not restricted to cases where a bill of discovery would lie in equity, because we foresee that this will lead to minute inquiries, whether under the particular circumstances of each case the Court of Chancery would interfere or not, and will thus afford opportunities for refining See Goodliffe v. Fuller, 14 M. & W. 4.