upon the same footing, there would be some justice in excluding both from giving evidence, or in only hearing the one when the other was allowed to speak. But no one can doubt what must be the effect upon the prosecutor when he knows that his adversary's mouth is shut; no one can doubt that, if he knew he was to be followed by the defendant's deposition, he would in most cases give a different testimony.

Let it next be observed, we refer to the assertion often made upon this subject, that the defendant does give his account of the matter, and that therefore we cannot say his mouth is shut. No doubt he does, if he pleases, tell his story, as it is often called; but how? He is not sworn; and, what is often of more importance, he is not subject to cross-examination; hence what he says generally goes for little. But now and then it produces considerable effect; and if it owes much of this to the manner of the party, and generally to his demeanour, it owes a good deal more to his story being told without even the court sifting by cross-examination; and thus it often happens that too much influence is exerted by it upon the minds of the jury, which the proposed change in our procedure would prevent; because if defendant renounced the benefit of the new law, and gave any his unsworn and unsifted statement as under the old law, that statement would be of little weight.

Let us now ask if any reason can be assigned for hearing the parties where they are now competent-as the prosecutor in all cases, the bankrupt and the insolvent, the defendant in actions of tort, the party against whom a criminal information is moved forany reason which may not equally be urged in favour of examining the defendant in all prosecutions, if he desires to be heard upon his oath and subject to cross-examination. Does not every

reason given for refusing the deposition of the one apply with precisely the same force against admitting that of the other? But does not every such reason apply to the admission of parties as witnesses in civil suits? The interest which they have was always urged, and for many long years successfully urged, as a sufficient ground of excluding their evidence altogether. They are under a bias to support their cause; therefore they cannot be believed, and there is no use in hearing them; such was the

language triumphantly held; and yet we now know that it was wholly unfounded, have legislated in utter disregard of it, and find by the admission of those who held it that we acted wisely, and that all experience sanctions what has been done. The same argument is now used, the same language held by the same persons against hearing the defendant; and though the interest is greater, and therefore the objections may be somewhat stronger, in the case of the party criminally charged, the argument only differs in degree, for it is the selfsame in kind. Then let it be remembered, and this removes all the diversity just remarked between the two cases, or at least makes the one as strong as the other:-While the exclusion continued in civil suits, there was no injustice done between the parties; both were excluded equally. But in criminal procedure the injustice is rank and glaring; one party always competent; the other always excluded; and it may well be deemed to be the wrong party; because, if any favour is to be shown, it ought rather to be towards the person accused; the more especially, seeing that, by the course of our procedure, the charge against him is prepared behind his back, by a kind of decision against him on an ex parte statement, and which, from the importance of those who produce it, has considerable weight though known to be ex parte.

We have hitherto been dealing with the objections likely to be urged against the change, rather than stating the reasons in its favour; but these are powerful, and they are unanswerable. The ground upon which parties in civil suits have been admitted exists here undeniably; the investigation of the fact, the ascertaining the truth, and preventing erroneous decisions, the object of all the proceedings, is incalculably assisted by the amendment proposed; and the greater importance of this, the more grievous consequences of misdecision in criminal than in civil cases, needs not be stated, or needs only to be mentioned, that all doubt may be removed. Let any one ask himself what he would most desire if falsely accused of an offence which he knew he was incapable of committing. He will at once answer-"To meet my accuser, tell all I know of the matter, under the sanction of an oath or solemn affirmation, under the risk of punishment for perjury, and, above all, subjecting myself to the most rigorous and sifting cross

examination." One conscious of guilt will not expose himself to this test of innocence. But it may be said that declining to take the benefit of the new law, will always be regarded as a proof of guilt. It will never of course be held sufficient for conviction; but if it works in doubtful cases to cast the balance against the accused, there can be no reason to complain on behalf of justice; for the only result is that the guilty have not escaped. It is, however, alleged that persons of weak nerves, and deficient in presence of mind, may either be deterred from exposing themselves to examination, or, if examined, may appear to be guilty when they have only been confused. The former case is certain to be of rare occurrence; the supposition is of a person innocent, and yet afraid of being interrogated; the protection of counsel and of the court may, from the other circumstances, be relied on for his escaping the inference arising from his refusal. That protection may still more surely be trusted in the latter case, aided by the fact of the party having submitted to interrogation, as evincing the consciousness of innocence. That a guilty person should escape by his possessing audacity, ability, and possibly experience in former trials, appears next to impossible when the effects of cross-examination, and the exposure of the press, are taken into the account; and his own former trials are likely to weigh more against him, than his dexterity thus acquired can weigh in his favour.

Upon the whole, we feel confident that Lord Denman, had he happily been spared to adorn and elevate the profession and the legislature, would, to use his own words in 1851 (Law Review, xiv. 212), have given his adhesion to the principle of Lord Brougham's bill, and tendered his vote for its further "progress." It may truly be regarded as forming a corollary from his own memorable act of 1842, or at least from that of 1851.

ART. VIII. THE POSITION OF AFFAIRS IN RELATION TO JUSTICE AND LEGISLATION.

THE

HE position of affairs, in relation to Justice and Legislation, corresponds with that in relation to all our other affairs. Both one and the other are due to the same cause, or congeries of causes. Therefore in treating of one, the other must also be necessarily regarded.

During the last chancellorship, we had to regret the postponement of legal and legislative affairs to the political (at a time, too, when the common feeling and common voice were in favour of legal reforms.) This state of things was attributable partly to the want of vigour of the late chancellor, and partly to the want of conception by other statesmen of the condition of legal and political matters, and the aid which the legal matters, considered constitutionally, may render to the political in giving them a due foundation.

Lord Cranworth lost an opportunity of exhibiting the highest constitutional statesmanship, and of vindicating his profession from unjust aspersions. We fear that that opportunity is irretrievable, for the predicament we labour under is not only of a worse, but probably of a more chronic character.

We shall endeavour to indicate some of the congeries of causes to which we have referred. It must be in a somewhat cursory and discursive manner; for the subject is too large and too various, and too little ventilated, to be disposed of in a direct and summary fashion. We must content ourselves with holding a free conversation on the subject, in order to incite persons of a practical turn to seek, beyond the range of their usual contemplation, the reasons for so anomalous a state of things as that exhibited in public affairs, and which so seriously troubles our own special interests, and the special interests of the community.

The nation seems to be in want of two things-a principle and a statesman; and to be collecting its material for a new effort, about which it has not quite made up its mind, and to be looking about for help in a state of great dubiety whence it is to come.

All parts of the body politic are in a scattered condition. It is not only in India that there is mutiny, but every part is in a state of insurrection against every other part, and against the whole.

We are dispersed and possessed of the quick intelligence of the ancient Athenians, asking news and criticising without stint, but slow to place ourselves in a condition of self-denial, and lend each a hand to the common purpose.

The statesmanship of the present moment is a system of collecting the wind from all quarters, without the skill of an Eolus, to put in constraint the force thus acquired in measures that shall win general assent.

Some while ago we observed upon the necessity of proceeding by organization of forces, instead of the fortuitous conjunctions of atoms which now go by the name of party.

Party we have none at the present time; and scarcely statesmanship. It is well that we who are in future to suffer so much amendment, should take thought of the means by which that amendment should be founded in principle, and consistent with a well-ordered development of our whole system of law.

To this end we think that Conservatives and Liberals should look to the constitutional proprieties, to the means that we have for doing the nation's work, to the need that there is for the development, the adjustment, and amalgamation of these means.

But first of all we must look for a principle co-extensive with the exigencies of the occasion, and that shall give to our statesmanship a foundation which may enable it to bear the shocks of tempest to which all political arrangements are subjected.

That principle we would find in the recognition of the claims of every class of the people, in the resolute disposal, one after another, of all matters under consideration, according to the order of their emergency.

Let us, as good men of business, make a list of all our creditors among the people, and of all the claims upon us in the shape of matters under consideration, and let us marshal these matters according to the principle just stated.

When the people perceive that their claims are recognised, and that they are postponed to those only which are of a pressing nature, they will wait patiently; and, in exercising their judg