The rule originates, no doubt, in a love of fair play. Every man is entitled to be considered innocent until he is proved to be guilty. You must not make a man criminate himself. These are aphorisms in which we fully agree. But it is equally true that you ought to give every man the utmost freedom to prove that he is innocent, and to exculpate himself.

We are fully aware of the evils that arise from the system pursued in the French courts, where the judge interrogates the culprit (we use the word in its legal sense of an accused person, not in its popular meaning of a guilty one), where the grave judicial inquiry degenerates into a "keen encounter of their wits," and the hand which ought to hold the balance steady wields, instead, the sword of the combatant. We know, too, the still greater evils that attend the system of secret examination by the judge, which prevails in other continental states, and with which the readers of Feuerbach are familiar; and we would far rather retain the imperfections of our own system than adopt the infinitely worse mischiefs which are attendant upon either. Still the reverse of wrong is not necessarily right; and our own course of proceeding might, we think, be modified with advantage.

In the present state of the law this curious anomaly exists, that in the very same state of facts, it depends upon whether the proceeding is civil or criminal whether the mouth of the accused person is closed or not. A and his wife, walking home at night, are met by B and his wife, when B knocks A down. A indicts B for the assault, and this being a criminal proceeding, A and his wife give their evidence upon oath, whilst neither B nor his wife can be examined at all. But suppose that, instead of indicting B, A had brought an action against him, the whole case is changed. Now A and B, and their respective wives, can all be exam

ined and cross-examined. Can there be a doubt which course is most conducive to the elucidation of the truth, and can a grosser absurdity be conceived than that the same court should adopt modes of procedure so inconsistent in an inquiry into the same facts, before the same judge and the same jury, and practically between the same parties?

A case occurred last summer which excited great interest, and which forcibly illustrates the evil we complain of.

A clergyman of the name of Hatch was indicted for a gross offence alleged to have been committed upon a child of tender years, who had been intrusted to his care as a pupil. The charge rested almost solely on the evidence of the child, a girl of the name of Eugenia Plummer. Neither Hatch nor his wife could be examined, and, as theirs was the only testimony by which, from the nature of the case, the charge could be rebutted, Hatch was convicted. Under the circumstances, it was hardly possible that the jury could come to any other conclusion. A few weeks elapsed, and Eugenia Plummer was placed at the same bar, charged with perjury. Then the tables were turned. Hatch and his wife were examined: the child's mouth was closed. jury convicted Eugenia Plummer of perjury. On the evidence before the jury no other result could reasonably have been expected. Both the juries discharged their duties with honesty and intelligence. Both were assisted in their deliberations by judges of the highest character and the greatest experience and ability, yet one jury or the other convicted an innocent person. If Plummer was guilty, Hatch was innocent; if Hatch was guilty, Plummer was herself the double victim of his brutality and his perjury, We express no opinion whatever as to which jury was right, but it is manifest that both could not be, It must, we think, be clear to every

The

one that the only way in which a case of this kind could be satisfactorily tried must be by confronting and examining both the parties. To attempt to try such issues separately is like trying to cut a knot with the two disunited halves of a pair of scissors.

If, upon one trial, both could have been examined, the inquiry would very possibly have terminated in the acquittal of both. In other words, the jury might have found the evidence of both so unsatisfactory that they could not found any decision upon it. Such a result, certainly, would not have been desirable, yet it would have been far less objectionable than what has actually taken place. The conviction of Eugenia Plummer for perjury has operated as a virtual acquittal of Hatch. But every one must feel that that acquittal having been obtained when the mouth of the only material witness against him was closed, is far less satisfactory than it would have been if it had resulted from the decision of a jury who had heard the evidence of Plummer.

The case of Elizabeth Canning, which we examined at length in a former number, was of the same description. Squires was convicted of felony on the evidence of Canning, and Canning was subsequently convicted of perjury committed in that very evidence. On the first trial Squires could not be examined; on the second, Canning was silenced, and both the accused persons were convicted. Such cases are of frequent occurrence, and they are always attended by this evil, that, whether rightly or not, public opinion will unavoidably be divided as to the result. The conviction of Canning hardly diminished either the number or the zeal of those who had espoused her cause; and it would probably be found that the juries who came to conflicting decisions in the cases of Hatch and Eugenia Plummer represent, not unfairly, the diversities of public opinion.

The remedy we would suggest is, that in all cases a culprit should be permitted to tender himself for exa mination. We think that to allow the prosecutor to call the culprit, and to examine him whether he would or no, would be attended with evils greater than any advantage to be derived from such a course-evils less in degree, though the same in kind, as those which make us shrink with horror from the idea of extracting even truth by the means of torture-means which have never been used in our courts since they were adopted by the express command of that Queen whom Lord Macaulay has held up to us as the pattern of every gentle and feminine virtue, and her ruthless husband. If an accused person choose to remain silent, or to make his statement to the jury without the sanction of an oath, and without submitting its truth to the test of cross-examination, he should be fully at liberty to do so, subject of course to the unfavourable effect which such a proceeding would unavoidably have on the minds of the jury. That this would be the line taken by the guilty we believe would frequently be the case; but every innocent man would, we believe, gladly adopt the other course. We have heard it urged that the ignorant, the stupid, or the timid man would be thus placed at a disadvantage when exposed to the cross-examination of an experienced, acute, and possibly not very scrupulous counsel. We believe, on the contrary, that such a person is the very one to whom (supposing him to be innocent) the course we suggest would be of the greatest advantage. What is the position of such a man now? He is left to blunder his story out as best he may, casting it before the jury in a confused unintelligible mass, with, very possibly, the most material parts wholly omitted. our suggestion were adopted, the thread of his narrative would be drawn from the tangled skein by

If

The ultimate object of all criminal jurisprudence is the safety of society. When a crime is committed, especially if is one of a nature to excite extreme horror and detestation, the first and most natural impulse is, to fix the guilt upon some one. Outraged humanity and public indignation demand a victim. In the case of the Road murder, we have seen persons who, from their position and education, ought to know better, calling out for the abandonment of the established forms of law and justice, and the adoption of some new and inquisitorial mode of proceeding. We have seen a magistrate holding a sort of extrajudicial court, listening to, and even asking for,

To attempt to remedy these evils by adopting any exceptional course of proceeding in an individual case, would only be to introduce a mischief of far greater magnitude. It is far better that an individual crime, however horrible, should remain unpunished, than that rules established for the purposes of justice should be strained or set aside. But it is well that we should consider carefully whether those rules rest on a sound foundation. We have, with great advantage, abandoned the rule which formerly excluded the parties to civil suits from giving evidence. We believe that nothing but good would result from the removal of the anomaly which still exists in our criminal courts when the accuser is sworn, and gives his evidence on oath, whilst the accused is refused the same sanction to his denial of the charge.

WHO can ever forget Mr Disraeli's famous announcement, that the reputation of Lord John Russell is one of the precious possessions of our country? The character of our public men ought, indeed, to be precious in our eyes. The safety and honour of the nation depend upon it; and it is now a trite remark, that there is no worse sign of the times in which we live than the low esteem in which leading statesmen are held. It is better, however, that in these matters the truth should be spoken, that evil should be called evil, and that good should not be lowered by companionship with bad. The attempt to bolster up rotten reputations will by no means tend to raise the character of our statesmanship. The attempt to represent a little man standing on the shoulders of the Whig aristocracy as a great minister, can do no good either to the little man himself or to the ministerial office. When the history of our day and generation comes to be written with that nakedness of statement which has already laid many a cherished reputation in the dust, what will then become of the precious Whig whom Mr Disraeli has so enthusiastically praised as a thing of beauty and a joy for ever? That Mr Disraeli is perfectly sincere in the praise which he has lavished on the Foreign Secretary we do not doubt; for he has from the first consistently held the same view-giving honour to Lord John Russell even while he withheld it from Sir Robert Peel. It is usual, in our mild epoch, for a politician to temper his opposition to the principles and practice of his antagonists, by expressing admiration of their eloquence and respect for their characters. They do not fight now with poisoned weapons; they do not denounce each other as monsters; they do not propose to impeach one another. In recoiling

VOL LXXXIX.-NO. DXLIV.

from the bad habit of former years, in which the ministers in office abused the statesmen in opposition as traitors to their country, and the statesmen in opposition treated their foes in place as rogues and tyrants, Mr Disraeli, among others, is generally at great pains to throw a sop to the Cerberus whom he means to defy, and to salve the wounds which he is determined to inflict. The historian and the publicist are not in the same case; and we may be permitted to differ from Mr Disraeli in our estimate of Lord John Russell, the preciousness of whose reputation consists in this, that, of all the statesmen of the present century, he is the most notorious bungler, the worst of leaders, the most unreliable of colleagues, the most ridiculous of despatch-writers, the most factious of Whigs, the most egotistical, and therefore the most impracticable, of ministers.

Our condemnation of the man who was for half a decade Prime Minister, who is now, at a time of unexampled difficulty, honoured with the direction of our foreign affairs, and who looks forward, at no distant period, to leading once more the Liberal party in the House of Commons, is so grave, that we shall naturally be asked to explain how it is that Lord John Russell ever obtained a great position in the councils of the nation. He owes that position partly to his own activity, but chiefly to the accident of his birth. His activity has been extraordinary. It has for the most part, however, been the activity of a weak, restless nature. Lord John Russell has never been a strong man, either intellectually or physically; but he has had that tenacity of purpose which gives to many weak men a success denied to their betters. His ability is an indefinite quantity, a slovenly sort of power, which has no particular

S

bent, which is everything by turns, which does nothing very well, but which does a few things pretty well. He has always been a meddling man, and his activity has generally been little more than the irritability of an egotist incapable of concentration, and believing himself capable of anything. Sidney Smith expressed this pungently enough in illustrations which it is needless for us to quote. There are few things which Lord John has not attempted, and he has done almost all badly. He has tried his hand at history, and nothing can be more stale and unprofitable. He has produced a couple of biographies-both miserable daubs. He has written a historical tragedy, which, besides being neither poetical nor dramatic, has not even the merit of historical accuracy. He has attempted political philosophy, and has achieved political platitude. He undertook the duties of an editor, and we all know how disgracefully he sent forth to the world the papers of his friend Moore. He has all his life been fumbling at politics, and his name is not identified, save by courtesy, with a single great measure; for Parliamentary Reform, which he is pleased to regard as his own particular province, is no more his than Free Trade belonged of right to Peel-indeed, far less. He was truly enough depicted, ten years ago, as the little boy who wrote "No Popery" on the wall, and then ran away; and that is the character of his statesmanship from first to last. He is great in speech, little in performance. If he cannot do a thing himself, he can prevent others from doing it. He is the "Johnny who upset the coach;" and if he has one particular function in the State which is exclusively his own, and by which he will be known to posterity, it is that of upsetting the political coach. He is notorious for knocking down governments, no matter whether he is in or out of office; and it seemed

if he had crowned his career of ischief when, a few years ago,

66

like Barnum winding up his concerns with a lecture on humbug, he took to lecturing the young men of London on the obstacles of government." Thus, not strongly, but irritably active, he might, had he been born in a lower station, have passed through life as a pettifogging lawyer, a desultory parson, a doctor of all things, or a Jack-of-all-trades. Born the son of a duke, the son of the leading Whig duke, the hope of this mighty duke when his party was singularly barren of political talent, Lord John stepped at once into great place, and has been permitted to conduct a party in the senate like a cabal of grocers in a vestry.

When the Whigs entered upon office in 1831, their position was peculiar. The Whig party was essentially an aristocratic one. It counted, in the olden time, most of the great families. It was the party of the upper classes and the upper crust of the middle classes. The Tories, on the other hand, in these ancient days, boasted some of the older families families of great distinction, but many of them, on account of their religious bias or disaffection to the reigning dynasty, glad to withdraw into the shade; and these naturally allied themselves with the great mass of the people, in combination with whom they formed the Country Party, by which name they were distinguished from the Court Party, or the Whigs. In the lapse of time, however, this arrangement was completely subverted. The Tories became, through long continuance in office, the Court Party, and embraced nearly the whole of the British peerage; while the Whigs, finding themselves in a hopeless minority in the House of Lords, had nothing for it but to appeal to the country and coalesce with the masses. The Tories, on becoming the Court Party, gradually lost their power, long years having in some degree (we confess it) blinded them to the popular wants; while the Whigs, in throwing themselves upon the