reassembling at the appointed time, as also to prevent the possibility of communications on the subject of the cause being held with them in the interval. Nevertheless, we think the rigorous inflexibility with which a cause once commenced is now carried on to its close, might be modified with advantage. No doubt, encouragement should not be held out to parties to be negligent in getting up their proofs or coming unprepared to trial; but, on the other hand, it is important not to allow justice to miscarry, or parties to be put to the expense of another trial, when, by a temporary adjournment a deficiency in proof may be supplied.

We think, therefore, that a discretionary power should be exercised by the judge at the trial, where the circumstances are such that the court would afterwards grant a new trial, or where he may otherwise deem it right for the purposes of justice (in like manner as was anciently done for the purpose of a view), to order an adjournment of the trial, subject to such conditions as to costs and otherwise as he may think fit.

LAW OF EVIDENCE.

As incidental to the trial of issues of fact, the subject of evidence next claims our attention. Happily, the improvements introduced in modern times into this branch of the law have left us comparatively little to suggest in the way of amendment. Nevertheless it appears to us that in several important particulars the law of evidence is still open to improvement.

Evidence, or the instruments of proof, may be divided into two main classes; oral, or the testimony of living witnesses, and documentary. The rules of law relating to the first head have reference, one, to the admissibility of witnesses; two, to the manner of their examination.

Admissibility of Witnesses.

Now, plain sense and reason would obviously suggest that any living witness who could throw light upon a fact in issue should be heard to state what he knows, subject always to such observations as may arise as to his means of knowledge or his disposition to the truth. The law of England, however, at least till a recent period, proceeded on a very different principle. Acting, apparently, on a distrust both of the integrity of witnesses and of the discernment of the tribunals, it sought to protect the latter from the possibility of being misled, by carefully excluding from giving testimony not only the parties to the cause, but any one who had any, even the most minute, interest in the result. Every person so circumstanced, however small and insignificant the amount of his interest, was presumed to be incapable of resisting the temptation to perjury; and every judge and juryman was presumed to be incapable of discerning perjury committed under circumstances peculiarly calculated to excite suspicion and watchfulness. It is painful to contemplate the amount of injustice which must have taken place under the exclusive system of English law, not only in cases actually brought into court and there wrongly decided in consequence of the exclusion of evidence, but in numberless cases in which parties silently submitted to wrongs from inability to avail themselves of proof, which, though morally conclusive, was in law inadmissible. From the

time, however, when the late Mr. Bentham first turned the attention of the public to the defects of the English law of evidence, the system of exclusion has been crumbling away before the power of discussion and improved legislation. The first inroad by general enactment was made by 3 & 4 Will. 4, c. 42, the twenty-sixth section of which enacted, that, "in order to render the rejection of witnesses on the ground of interest less frequent, if any witness should be objected to as incompetent, on the ground that the verdict or judgment in the action would be admissible in evidence for or against him, he should nevertheless be examined, but in that case the verdict or judgment should not be admissible for or against him or any one claiming under him." But a far greater improvement was effected by the Act 6 & 7 Vict. c. 85, commonly termed Lord Denman's Act, which removed incompetency on the ground of interest in all persons except the parties to any suit, action, or proceeding individually named on the record, or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended, wholly or in part, or the husband or wife of such persons. The great benefit resulting from this alteration in the administration of justice paved the way to the statute 14 & 15 Vict. c. 99, whereby (except in actions for adultery and breach of promise of marriage), in all civil suits and proceedings in any court of justice or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, the parties are rendered competent and compellable to give evidence.

Such is the gradual progress of opinion and intelligence. A quarter of a century ago such a measure, if proposed, would doubtless have been treated as a wild and dangerous innovation, altogether unfit to be entertained by the legislature. The new law has now been in practical operation for eighteen months; and, according to the concurrent testimony of the bench, the profession, and the public, is found to work admirably, and to contribute in an eminent degree to the administration of justice.

The highly satisfactory result of these more enlarged views induces us to consider whether an exception preserved by the late statute, namely, the exclusion of husband and wife as witnesses for or against each other, may not be abolished.

Admissibility of Husband and Wife.

The law of England in civil cases (as also in criminal, with some few exceptions) precludes a husband or wife from giving testimony in a cause in which the other is a party; and the rule is carried so far as to prevent their being examined, either as to circumstances that happened before the marriage, or even as to the fact of the marriage itself. Thus, where one of the plaintiff's witnesses, after she was actually subpoenaed to testify in the suit, married the defendant, she was held incompetent to give evidence; and where, in an action of debt, a woman pleaded coverture, it was held that her husband was not a competent witness to support the plea. So, where a married woman brought an action as a feme sole, it was held that her husband could not be called by the defendant to prove the coverture, and so defeat the plaintiff. Yet this decision caused a dilemma, put by the defendant's counsel, from which there could be no escape. "If the witness is to be rejected, it must be

because he is the plaintiff's husband; but if the plaintiff has a husband, she cannot maintain the action." Even if the relation of marriage has been terminated by divorce or death, the rule remains equally inflexible. Where a woman, who had been divorced by Act of Parliament and had married another person, was offered as a witness against her former husband, to prove a contract which he had made during the coverture, she was held to be clearly incompetent; and where an action of trover was brought by the representatives of a deceased husband, and it was proposed, on behalf of the defendants, to call the widow to prove that she pledged the goods with them by her husband's authority, it was held that she was not a competent witness, though the effect of her evidence would have decreased her late husband's estate, and, consequently, would have operated against her own interest. It is difficult to conceive a more striking instance of the injustice which may be produced by the inflexibility of a rule of exclusion.

Having shown the extent to which the rule is carried, we proceed to consider its propriety.

The incompetency of husband and wife to be witnesses for one another is said to rest on three grounds:-1st, Identity of interest; 2nd, the consequent danger of perjury; 3rd, the policy of the law, which, as it is said, "deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of justice," and which rejects such evidence, because its admission would lead to domestic disunion and unhappiness.

The first two grounds are manifestly no longer tenable, since the parties to suits have been themselves made competent to give evidence. It remains to be considered how far the third ground should be allowed to exclude testimony which may be essential to justice. In the first place, it seems clear that no disturbance of domestic happiness need be apprehended from permitting husband and wife to call one another as witnesses. The evidence may in many cases be indispensable. A wife often keeps her husband's books, conducts his business in his absence, pays or receives money for him. Even in matters in which she may take a less active part, her testimony may be the only one to prove facts essential to the vindication of her husband's rights, or it may be valuable as confirmatory of the evidence of other witnesses; so the testimony of the husband may be material to the wife in matters relating to her separate estate, to the proof of her coverture, if sued as a feme sole, and the like. It seems difficult to assign any reason why the law should be more tender of the domestic happiness of married persons than they are themselves disposed to be the only danger that can be suggested is, that evidence might be extracted from the witness, by the adverse party, prejudicial to the interest of the married plaintiff or defendant, and that some bitterness of feeling might arise in consequence; but of the probability of such a result the married couple are themselves the best judges. Should any fact be thus brought to light which would otherwise have remained unproved, the interests of truth will be thereby promoted, and any transient interruption of conjugal harmony from such a circumstance, or from disappointment occasioned by the evidence falling short of what was expected, would be a trifling evil compared to the mischief which must result from the exclusion of testimony essential to the ends of justice and truth.

A more difficult question, however, arises when we proceed to consider whether it should be made competent to an adverse party to call a husband or wife as witness against one another. The case would,

no doubt, be of rare occurrence: when it did occur, it would, in the greater number of instances, be where husband and wife have separated, and are on bad terms with one another. In such cases the mischief apprehended from the interruption of domestic happiness becomes out of the question. But suppose the husband and wife living together on the usual terms: here the identity of interest betweeen them will deter an adverse party from calling one against the other, except under very peculiar and pressing circumstances, and when the fact to be proved is certain in its character, and clearly within the knowledge of the witness; but if there be such a fact in the knowledge of one of two married persons, so material to the case of the adverse party as to make it worth his while to run the risk of so hostile a witness, it becomes matter of very serious consideration whether justice should be allowed to be defeated by the exclusion of such evidence. It is clear that nothing but an amount of mischief outbalancing the evil of defeated justice can warrant the exclusion of testimony necessary to justice. What, then, is the mischief to be here apprehended ?-The possibility of the resentment of a husband against a wife for testifying to facts prejudicial to his interest. But it is obvious that such resentment could only be felt by persons prepared to commit perjury themselves, and to expect it to be committed in their behalf. Such instances, we believe, would be very rare, and we do not think that a regard to the feelings of individuals of this class, or the amount of mischief likely to arise from a disregard of them, is sufficient to compensate for the loss which in many cases may result from the exclusion of the evidence.

It will be observed that we have confined our remarks to the testimony of married persons as to facts. The question how far the communications of married persons inter se should be matter of testimony in courts of justice, stands on very different ground. So much of the happiness of human life may fairly be said to depend on the inviolability of domestic confidence, that the alarm and unhappiness occasioned to society by invading its sanctity, and compelling the public disclosure of confidential communications between husband and wife, would be a far greater evil than the disadvantage which may occasionally arise from the loss of the light which such revelations might throw on questions in dispute.

The conclusion to which the foregoing observations lead us is, that husband and wife should be competent and compellable to give evidence for and against one another on matters of fact, as to which either could now be examined as a party in the cause; but that all communications between them should be held to be privileged. It should be added that husband and wife are already witnesses for or against each other, under the late statute, when they are jointly parties as plaintiffs or defendants.

Examination of Witnesses.

We proceed to consider the law relating to the examination of witnesses.

The first and fandamental principle of the English law of evidence is, that the value of all testimony rests on the sanction of religion. Hence the rule that no evidence can be received otherwise than upon oath; to which, however, an exception is made in the case of certain specified religious sects, who entertaining conscientious scruples against taking an oath, are admitted, by statutory enactment, to make a

solemn affirmation instead thereof, such affirmation being supposed, from their peculiar views, to rest on the religious sanction equally with an oath. But as, in either case, the religious sanction is considered indispensable to the admissibility of the evidence, the witness, on presenting himself to be examined, is liable so be asked whether he believes in a state of reward and punishment, and in the event of his answering in the negative, is excluded from giving evidence.

Examination on Oath.

The expediency of examination upon oath has in recent times been much called in question. It has been urged that where the moral and legal sanctions to speak truth are insufficient, the religious sanction, acting with a more remote motive, will have little or no effect; while the reliance placed on the efficacy of an oath tends to lull the tribunal which has to deal with the evidence into a false security. To this, however, it may be answered that this reliance on the oath results from the general experience of mankind of the effect of the religious sanction in this respect on the minds of men. It can, we think, hardly be doubted that there is a large class of persons who, though less alive than they ought to be to a sense of moral duty, or to the fear of legal penalties, may yet be deterred from falsehood when to these is added the dread of Divine vengeance. Moreover, we think it cannot be doubted that the effect of a transition from the use of judicial oaths to simple declarations would, at least at the outset, by removing one of the barriers to falsehood, encourage false testimony, and tend materially to lessen the confidence of the public in the administration of justice.

But while, for these reasons, we should be averse to the abolition of judicial oaths, in cases where an oath is likely to produce truth in the witness, it may admit of question whether the religious sanction should be made the indispensable condition of testimony in cases where that sanction is admitted to have no existence. The following case has been put. A witness is produced whose testimony is essential to one of the parties in the suit. He is examined as to his religious belief, and at once admits that he has no belief in a state of rewards and punishments. As the rule now stands, he would be excluded; yet his disbelief is not the fault of the party calling him, and to whom his testimony is essential. The penalty of the unbelief of the witness is paid, not by himself, but by the innocent suitor. Under these circumstances it has been urged that though the evidence, if received, would be wanting in the important sanction of religion, it would, on the other hand, still possess the not inefficacious sanctions of morality and law, and there would be the additional security for truth arising from the admission itself on which the witness is now excluded. it is said that nothing but a sense of truth would induce a man to admit, in a court of justice, a disbelief which must render him odious in the eyes of the mass of his fellow-men. As we have been unable to agree on any recommendation on this point, we think it inexpedient to pursue the subject further.

Affirmation.

For

We have already adverted to the exception in favour of certain sects who object on religious grounds to the taking of oaths. The exception