slight evidence alone will be sufficient to warrant a committal. Justices upon such a hearing have a right to expect, and ought to insist upon having, the best evidence which exists in the case; and, although it is not for them to balance evidence, yet such evidence as is produced in support of the charge ought to be of the same nature and quality as that which would be admitted at the trial of the accused. In preparing, therefore, for the hearing before the committing justices no evidence should be collected that would not be admissible upon the trial; and all that would be required upon the trial to support the charge should be carefully gathered together for use upon the preliminary inquiry.

Steps to be taken by the accused.]-As regards the accused, it will be well for him, if of ability to do so (and he denies the truth of the charge), to avail himself, at this early stage, of professional assistance. When apprehended, and in custody, he will probably desire the attendance of some attorney, whom to consult ; usually, this request is promptly complied with, but as the accused has before committal for trial no absolute right to an interview with any one, it is sometimes refused. Should the constable in charge of the prisoner decline to permit the prisoner to see a professional adviser, an application might with propriety be made to the justice who will hear the case, when, should he also refuse the application, there is no other remedy: a state of things, no doubt, very inconsistent with that principle of fair dealing which should ever pervade the administration of the criminal law, and which few justices, it is believed, would lend themselves to encourage.

Place of hearing not an open court-Counsel or attorney of accused.]—It has before been shown (ante, p. 37) that when magistrates are hearing a case summarily, the place in which they sit is an open court of justice, to which all the Queen's subjects have a right of access;

and that upon such a hearing the respective parties have, by section 12 of the 11 & 12 Vict. c. 43, a right to have their cases conducted by counsel or attorney. Upon an inquiry, however, under the 11 & 12 Vict. c. 42, with a view to a committal to trial, this is not so; and the place in which the case is heard is declared not to be an open court, and the justices are empowered to exclude all persons from it.

The 19th section thus enacts :

That the room or building in which such justice or justices shall take such examinations and statements as aforesaid shall not be deemed an open court for that purpose; and it shall be lawful for such justice or justices, in his or their discretion, to order that no person shall have access to or be or remain in such room or building without the consent or permission of such justice or justices, if it appear to him or them that the ends of justice will be best answered by so doing.

Under the provisions of this clause, therefore, the justices have power to conduct their proceedings in private, and so exclude all persons, even including the professional advisers of either of the parties. The section seems certainly to contemplate, that the exclusion will only take place when it shall appear that the ends of justice will be best answered by it; but it is difficult to conceive any possible case in which the ends of justice can best be answered by refusing an accused party the assistance of a legal adviser. As the law now stands, the depositions of the witnesses taken by the magistrate are receivable in evidence on the trial, in the event of the death of such witnesses, or their being too ill to travel; the importance, therefore, to the accused of being enabled to cross-examine through the agency of a legal adviser, is as obvious as it is great. Common justice declares, that at a time of such peril as that of the examination of the witnesses by the committing justice, the accused party ought not to be deprived of legal professional assistance. There is really only one argument of any weight that can be advanced in opposition to the permission suggested, and that consists in the possibility of the

professional adviser taking advantage of what may transpire in the justice room, to warn others not yet in custody, or otherwise to defeat the ultimate ends of justice. This argument, however, becomes puerile in the extreme, when it is remembered that counsel and attorneys are members of an honourable profession, and are directly amenable, in cases of professional obliquity, to the all-powerful censure of the superior courts, and would, therefore, scarcely lend themselves to a proceeding which must necessarily result in their disgrace and ruin. But whether or not the interests of the public might be endangered is a consideration of trivial importance, when the sacred cause of justice to an accused is involved; indeed, it may well be questioned if justice to the public can ever be promoted by doing injustice to any one of its members. It would seem, however, that the omission of the Legislature in the 11 & 12 Vict. c. 42, to make an exception in favour of the legal advisers of the accused, was more accidental than intentional; for, upon attention being drawn to this omission in the statute, the Legislature in the corresponding act for Ireland, passed in the following year (12 & 13 Vict. c. 68), whilst similarly enacting by section 19 for power to exclude the public, expressly reserves the right of the counsel or attorney of any person, then being in such court as a prisoner, to be present. So that, upon this point, without there being any motive for such a distinction, a distinction clearly exists; but one, nevertheless, which is clearly to be attributed to inadvertency, since there cannot be any possible reason for giving to a prisoner in Ireland a right which is debarred to a prisoner in England.

In practice it rarely occurs that either the prosecutor or the prisoner is prohibited from having the assistance of a professional adviser; and when the pressing reasons for permitting the assistance, coupled with the partial recognition of the practice as contained in the 17th section, which section directly refers to the crossexamination of the witnesses by the counsel or attorney

of the accused, are taken into consideration, it is hoped that no bench of magistrates will ever refuse an application of the kind.

Proceeding with the case unless adjourned.]-Upon the parties being duly before the Bench, the case will be proceeded with, unless for any sufficient reason an adjournment is requested and granted, of which mention has before been made (ante, p. 130.)

Witnesses ordered out of court.]-At this stage of the proceedings a request will probably be preferred to the justices to order the witnesses to remain out of court until they are severally required to give their evidence; in such a case the request should uniformly be complied with (as to which see ante, p. 54.)

Statement of the charge-Variances.]-The charge is then read over to the accused from the charge-sheet, summons or warrant, or it is stated to him in a general way. Should there have been a prior information or complaint laid, no advantage can be taken of any defect therein, either in substance or form, nor for any variance between it and the evidence; since, when an information is taken, it is not for the purpose of being a record in the cases, but to enable the justice to judge whether or not he should interfere, and to guide his discretion as to the propriety of issuing a summons or a warrant (section 8.) So, too, by sections 9 and 10 no such objections are to be allowed to any summons or warrant, nor for any such variance; but if any variance shall appear to the justice to be such that the party charged has been thereby deceived or misled, he may, at the request of the party charged, adjourn the hearing of the case to some future day, and in the mean time remand the accused, or admit him to bail.

Course of proceeding in examining witnesses, &c.]— All preliminaries being arranged, the hearing is proceeded with; and here it may be remarked that the

accused is not to be called upon to plead, but the case is to be substantiated against him in the first instance, justices having no functions in indictable offences to deal summarily with the accused, even though he openly admit his guilt. The course of proceeding upon the hearing is set out in the 17th section of the 11 & 12 Vict. c. 42, which enacts

That in all cases where any person shall appear or be brought before any justice or justices of the peace charged with any indictable offence, whether committed in England or Wales, or upon the high seas or on land beyond the sea, or whether such person appear voluntarily upon summons or have been apprehended with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit such accused person to prison for trial, or before he or they shall admit him to bail, shall, in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement, on oath or affirmation, of those who shall know the facts and circumstances of the case, and shall put the same into writing; and such depositions shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same; and the justice or justices before whom any such witness shall appear to be examined as aforesaid, shall, before such witness is examined, administer to such witness the usual oath or affirmation which such justice or justices shall have full power and authority to do; and if, upon the trial of the person so accused as first aforesaid, it shall be proved by the oath or affirmation of any credible witness that any person whose deposition shall have been taken as aforesaid is dead, or so ill as not to be able to travel; and if, also, it be proved that such deposition was taken in the presence of the person so accused, and that he, or his counsel or attorney, had a full opportunity of cross-examining the witness, then, if such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution without further proof thereof, unless it shall be proved that such deposition was not, in fact, signed by the justice purporting to sign the same.

Order of examination of witnesses.]-The order in which the several witnesses will be called will be in