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by comparing the evidence with the statutory definition of the crime and its appropriate punishments, can satisfy itself that the law is justly administered and that the punishments are suitable to the offences proved. It has been well said that a code is the ultimate form of every good system of laws, although the development of a system of jurisprudence may be retarded rather than advanced by its premature crystalisation into a code. Iagree with those who think that the laws of the United Kingdom have gained in symmetry and completeness from the large influence which our system accords to the opinions of judges. I agree that the basis of any really useful code must be the customary and jugde-made law of the country. No better illustration of this truth can be given than the example cited by Sir Travers Twiss in his address delivered last year to this department of the Association. I mean in the passage where that eminent lawyer explains that the success which attended the French Civil Code, and its adoption, with slight alterations, by the Parliaments of Italy, Holland and Belgium, is attributable to the fact that this code is founded upon the customary law of Western Europe originating under the Frankish Empire. I am not sure that in this country we are ripe for the enactment of a civil code, but I need hardly say that there are some branches of jurisprudence which come more rapidly to maturity than others, and our criminal laws, which are generally of a simple character, have doubtless attained to that stage of development at which it is desirable that they should be revised and embodied in a permanent form. I shall not occupy your attention by recounting the various attempts which have been made by the English jurists of our time to bring about this desirable result. Our Government has at length taken up the subject seriously, and a. Commission, consisting of some of the most eminent judges of England and Ireland, submitted in their final report to Parliament a complete Code of Criminal Law and Procedure, which was brought in and, if I mistake not, read a second time, in the session of 1879. The code, which was drafted by Sir James, now Mr. Justice Stephen, has been generally approved of by the legal profession and the press, and there can be little doubt that it will, substantially in its present form, become law, and supersede some hundreds of statutes which now exercise the ingenuity of lawyers in England and Ireland.
I ventured to remark, in opening this subject, that the lawyers of Scotland had something to learn from the profession in England and Ireland; and, if I may be allowed to do so, I would earnestly invite the consideration of my friends who are interested in Scottish jurisprudence to the question whether the new Criminal Code, the biggest product of the legislative activity of our times, should not be made applicable to Scotland. I have had occasion, as part of my official duty, to study the proposed code and its various clauses, and I protest I can see no reason, nothing even approaching to a reason, for depriving Scotland of the benefit of a measure which has been recommended to Parliament as a great legal reform for England and Ireland. I have already considered the question of the comparative advantages of written and unwritten laws, and if you agree with me that the criminal law of a country is that which, of all others, ought to be embodied in clear and authoritative propositions, then the only question is, whether we are to have one code or separate codes of criminal law for the three kingdoms. The question has been already virtually decided for Ireland, with the approval of Irish jurists, and the code is a joint production of a Commission of English and Irish Judges. Why should it not be similarly decided with respect to Scotland? The elements of criminal law are necessarily the same in all civilised countries. In countries acknowledging the same sovereignty there must be substantial identity, not only in the definition of what constitutes criminality, but in the punishment appropriated to different crimes. Certain differences, no doubt exist, distinguishing the law of Scotland from that of England and Ireland. In so far as these are substantial differences they are obviously indefensible. The social conditions of England and Scotland being identical, there can be no reason why an act of negligence or wrong which is punishable in one country should found only a civil action of damages in the other. Our Scotch law treats as criminal the neglect of duty by an engine driver or signalman, whereby the lives of the lieges are endangered. In England a statute has not been made to reach the case, and, unless the crime can be tried as manslaughter or assault, the act of negligence, as I understand, would not be indictable. This is a substantial difference, and ought to be removed, either by indemnifying railway servants in Scotland against prosecutions under this head, or by making negligence resulting in risk to life a criminal offence throughout the United Kingdom. With regard to mere differences of language and forms, the public have a right to expect the lawyers of the three kingdoms to settle these matters amongst themselves.
I have heard that the members of the Criminal Law Commission had expressed an inclination to adopt our Scottish term ‘theftuously,’ and if they would take along with it the Scottish term ‘theft’ which some persons might consider good English, the public would not greatly regret the sacrifice of the equivalent term ‘larceny.’ In exchange I should be prepared to sacrifice my predilections as a Scottish lawyer for ‘ culpable homicide ’ and would not be afraid to face a jury with a charge of ‘manslaughter.’ If the truth must be told we always speak of‘ manslaughter’ in Scotland everywhere except in court, just as our English friends speak of ‘theft ’ when they are not thinking of an indictment. It is really ridiculous to contend that the trivialities of legal nomenclature should operate as an obstacle to the accomplishment of one of the first duties of the state, the embodiment in a written form of those principles of justice which ought to be universal in their operation, and the violation of which is to subject the delinquent to punishment.
There are some points of general interest raised by the Criminal Code which, if time had permitted, I should have desired tospeak to. I shall only allow myself to enter upon one of these,—namely, the right of the state to permit, and if necessary require, an accused person to give evidence in his own case. By the ‘practice of France and other European countries a prisoner is examined in open court on the facts alleged against him, and is allowed to give his evidence to facts tending to exculpate him or to disprove the charge. He is not tortured; he gives such answers to the questions put to him as he thinks fit. If he is an honest man he will answer truthfully, and in so doing will doubtless impress the jury who hear him favourably. Nay more, he may state facts which no one but himself can speak to, and which, if he is believed may conduce powerfully to his acquittal or justification. If he is a rogue he will most likely begin with some improbable story or transparent falsehood, but under the pressure of crossexamination, he will be driven out of his shelter, and in many cases surprised or shamed into speaking the truth. Supposing the examination to be fairly conducted society is a gainer by the process, because whether the man be guilty or innocent, truth is elicited, and to reach the truth is the object of the trial. The worst that can happen is that the prisoner invents a falsehood and sticks to it. One must credit the jury, then, with the same power of distinguishing between truth and falsehood which they are supposed to possess in relation to other witnesses, and in the experience of countries in which prisoners are examined in court it is not found that guilty persons escape through juries believing whatever prisoners choose to put forward. The criminal practice of the United Kingdom disallows the examination of the accused in open court, because his evidence is ex hypathesi unreliable and valueless, but with strange inconsistency allows his deposition to be taken out of court and read to the jury as evidence against himself. I have not read or heard that anyone objects to a prisoner being examined out of court, under the usual caution that he is not compellable to speak, and that whatever he says will be reduced to writing, and if necessary be used against him. Yet most persons who have not reflected on the subject would be startled by the proposal to examine a prisoner in presence of the jury with the same reservation and the same warning. If the jury are to get the man’s evidence, why in the name of reason, should they not get it direct from his own lips instead of getting a translation of it into good English by a magistrates’ clerk, taken down behind their backs? What difference does it make that the one proceeding is called an examination and the othera declaration P It is recognised English law as well as French law—-at least it is recognised English practice—that we are to question the man and get all the information we can from him without torturing him, and that the results of the operation are to be evidence. To my mind it seems a self-evident proposition that this evidence, like all the rest of the evidence should be delivered in presence of the jury, that open and public examination is fairer than private examination—fairer to the prisoner, to the jury, and to the justice of the case. That the accused would be under a moral compulsion to answer the questions is true; his declinature to answer would damage him with the jury, quite possibly, because it amounts to an admission that he can give no explanation of the facts consistent with his innocence. The state has a legitimate interest to give him an opportunity of