Excluding the public.

the justice will exercise his discretion, and either remand or discharge the prisoner, as he may think advisable and proper; and if he remand the accused, it may be either to custody, or upon his own recognizances, or that of himself and one or more sureties. If the remand be for a time not exceeding three days, it may be given verbally to the constable, but if for a longer period (which, however, must not exceed eight clear days), it must be by warrant. This remand, however, may be made from time to time, as occasion may require: (sect. 21.)

Supposing both prosecutor and defendant to be present, and no sufficient reason is raised for a postponement, it will be the duty of the justice to enter at once upon the hearing; but before doing so, two or three preliminary questions may arise touching the course of proceedings which it will be necessary to determine. First, as to the admission or exclusion of strangers. Upon inquiries of this nature, the justices have a general power to exclude parties from being present. By sect. 19 of the 11 & 12 Vict. c. 42 (Administration of Justice Act, No. 1), it is declared, "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." As this section makes no reservation in favour of any parties, it will extend to the exclusion of the professional adviser of the accused; it is, however, difficult to conceive a case in which the ends of justice can be best answered by depriving an accused party of the

assistance of a legal adviser. Having before (ante, p. 22,) considered the propriety of permitting parties to have the assistance of counsel or attorney, it will be unnecessary further to consider it in this place.

of court.

Another preliminary which sometimes arises Ordering is, that of ordering the witnesses out of court. witnesses out A request of this nature is often made on the part of the accused, and when so made, should always be complied with; indeed, it would be a wholesome practice generally to admit one witness at a time into the presence of the justices whilst the examinations are being taken. The utility to the cause of truth, upon the trial of causes or indictments, of having the witnesses out of court, so that no cue should be given to them, nor any hints conveyed from what they hear as to what they are to say, is every day experienced and appreciated; and if this be so upon the trials themselves, it is not less so upon these preliminary inquiries, when evidence is given which, through death or illness, may be the only evidence afterwards received upon the trial, and when it is considered that, whether true or false, when once sworn to, the witness will not be afterwards likely to depart from what he has said.

taking the

If all the preliminary matters be settled, the The mode of justice will proceed to hear the evidence in sup- examinaport of the charge. Upon all occasions of this tions. sort some one, either the prosecutor or a constable, or other person at whose instance the proceedings are taken, will state the substance of the case, and call the witnesses in the order in which it is most convenient their evidence should be taken; but before each witness deposes to any fact, it is essential that he should be sworn according to the proper form appropriate to the occasion and the witness, or that he should affirm, in cases in which his affirmation may be

Mode of taking examinations.

taken, as where the witness is a Quaker, Moravian, or Separatist. Even before the 11 & 12 Vict. c. 42, which by sect. 17 renders it imperative in the justices, before any witness shall be examined, to administer to such witness the usual oath or affirmation, it was decided by the Queen's Bench to be an improper proceeding to take the examination first, and then to swear the witness. Abbott, C. J., in R. v. Kiddy (4 Dowl. & Ry. 734), saying, "magistrates should understand that the oath is to be administered to the witness before he is examined and not afterwards;" and Bailey, J., in the same case, remarking, "The answer of the witness is to be taken under the sanction of an oath : swearing him after his examination is taken is a very incorrect mode of proceeding, and it is hoped will be discontinued.”

The oath or affirmation will be tendered by the justices' clerk.

It may here be mentioned that in some localities, with the view of marshalling the witnesses, and getting their testimony into exact and regular order, a practice exists of going through the evidence before some subordinate officer, prior to the examination before the justices. Such a practice cannot be too strongly censured. True it is that, by such a proceeding, the examination afterwards before the justices may be facilitated, and a complicated case be put into a proper shape and form; but it is open to the objection of being unsanctioned by the obligation of an oath, and being behind the back of the accused; and, being taken by an irresponsible and often interested party, liable to abuse and to lead to the apprehension of the witnesses having been tampered with. Justice to the public and to the accused demands that the evidence, as given before the justices, should be pure and uncontaminated: that there should be no re

taking ex

hearsal beforehand of the evidence which is to Mode of be given at the hearing: that the witnesses when aminations. before the magistrates should deliver their evidence unadulterated and genuine as from the original fountain of truth, and not qualified or even made more perfect by any hint, correction, or explanation which may, in the way we have suggested, have been given. If the case be involved in doubt or mystery, the justices should themselves endeavour to solve it, and if discrepancies or inaccuracies are apparent, the accused ought to have the benefit of them. However much, therefore, such a preliminary examination may assist in the development of the truth, and render the after-examination before the justices the more easy and comprehensible, it ought carefully to be discountenanced as tending to results of a most vicious and mischievous description.

Each witness, after being sworn, should be required to tell all that he knows concerning the matter in question, but if there be any one present who knows the facts, or has been instructed as to them,—as the attorney for the prosecution, or a police constable,he may, with propriety, be permitted to put such questions to the witness as will elicit the facts, the justices, however, keeping a watchful guard that such questions be relevant and put in a legal form, and, above all, that they be not leading ones. The evidence of the witness should be written down by the clerk as it is given, and as nearly as possible in the very words of the witness, and in the actual presence and hearing of the prisoner, who should be permitted to take notes of their evidence.

The accused has a right to cross-examine any Crossand all of the witnesses produced against him examination. (sect. 17) in as full and complete a manner as he may think necessary; and it will be the duty of the justice to cause his clerk to take down such cross-examinations upon the same papers

as those containing the examinations in chief, distinguishing properly between the two kinds of examination. There is certainly no express provision that such cross-examination shall be reduced to writing, but inasmuch as sect. 17 says, that the witnesses shall be examined in the presence of the accused, "who shall be at liberty to put questions to any witness produced against him,” and as the concluding portion of the same section provides for the giving of the examination in evidence in certain cases, if it be proved that the 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, it is clear that it was the intention of the Legislature that the cross-examination should be reduced to writing, and be returned, together with the depositions, to the sessions or assizes. Indeed, the power to cross-examine would be futile, unless such crossexamination were to be recorded for future use. If the examination itself is to be evidence in certain cases, so ought the cross-examination, which may modify or explain it. Of course the justice will exercise a sound discretion in reference to the cross-examination, and permit neither irrelevant questions to be asked, or their answers to incumber the depositions.

CHAPTER VII.

EXAMINATIONS-ADJOURNMENTS-PRISONER'S STATEMENT AND DEFENCE.

WHEN the prosecutor has produced all the evi. dence which at the time he is enabled to bring forward in support of the charge, he will, if he desire time to adduce further evidence, apply