afraid that it would produce an eagerness which would make men swear, as it is technically called, near to the wind. Here again I speak from my own experience. I recollect a case in which a gentleman of large fortune appeared before an arbitrator on some dispute arising out of an electioneering contest. It was my lot to examine him. I had got a great number of his letters in my hand. He was very eager to be heard in his own cause. He had quarrelled with his agent, and wished to explain the cause of the quarrel. I put a question to him: "Did you never on such an occasion say so and so?" His answer was distinct and ready-" Never." I repeated the question, and he repeated his answer. I then said to him, "Do you see what is now resting under my hand?" pointing, at the time, to about fifty of his letters which were on the table. I then said to him, "I advise you to pause before you repeat your answer to that question." He rejected my advice, and not without great indignation. Now those letters of his contained assertions in direct contradiction to what he had sworn. I do not say that he perjured himself,-far from it. I do not believe that he intentionally swore to what was false; he had only forgotten what he had written some time before. Now, had this occurred in an open court, he would have been ruined to the end of time-for he would not have had an opportunity of explaining the matter; he would have been suspected of perjury, when all that he was guilty of was a little too much eagerness, impetuosity, and wrong-headedness. I may be told, perhaps, that the anecdote which I have just quoted makes more against the alteration I propose than for it. I care not whether it does or not. All I have to say is, be uniform in your practice. Why do you refuse to allow a party in a cause to be examined before a jury, when you allow him to swear in his own behalf in your courts of equity, in your ecclesiastical courts, and even in the cases decided by your common law judges in the business of the term? I hope that if the committee of inquiry, for which I am now moving, be granted, something will be done to check the present practice of trying cases on affidavit. If it be right to exclude the parties from giving evidence in their own behalf in one case, it is not right to admit them to give evidence in others. I hope, therefore, that the dissimilarity of your practice in your different courts, will be a ground for yielding to me the examination I require.

The next question which presents itself to my attention is, the great question of how far interest should disqualify a witness. The ancient doctrine on this point has of late years been much restricted by the construction of our courts of law; and for my own part, I confess that I cannot see any adequate reason why all witnesses of good character and credit should not be admitted as evidence, leaving the question of their credibility entirely to the consider

right, and that he felt himself called on to avail himself of every aid that he could in shaping his defence of it. The Court, on hearing him, ordered the issue to be drawn up by three barristers, who settled it in a quarter of an hour, and in the small space of a quarter of a sheet of paper. Talk of scourging with a rod of iron! Why, the lash of parchment which is applied to all suitors in our courts of law-that flapper which keeps them awake by the sufferings it inflicts

-that goad which drives them on from one stage of misery to another, till it makes them plunge into complete and undeniable ruin, —that is a more effectual rod for scourging a nation than any rod of iron which even the ingenuity of a Phalaris could invent.

I next come, in the consideration of this subject, to say a few words on juries-a point on which I feel it the more incumbent to touch, because juries have of late been attacked by the reformers of the law. I hold them to be a wise and politic, and almost perfect institution; and I say this the more willingly, because I have been represented, very erroneously, to entertain doubts respecting its excellency. I speak as a practical professor of the law, when I say that there is no other mode of trial so admirably adapted to prevent wrong, to secure right, and to eviscerate the truth, as the trial by jury. In the first place, it controls the judge, who might, not only in political cases, have a prejudice against the defendant, but might also, in private cases, have, what is equally detrimental, a prejudice against a particular counsel. In the second place, it supplies that want of knowlege of the world which judges seldom possess, and which, from their habits and station in society, it is not decent that they should possess. In the third place, who can so well weigh the value of conflicting evidence as twelve men indifferently chosen, of various habits, characters, and prejudices? Who, moreover, can so well assess the amount of damages which a plaintiff ought to recover for any injury he has received? How can a judge decide half so well as an intelligent jury, whether a plaintiff should, for an assault, recover 50l. or 1007. damages? or, for a criminal seduction, 1500l. or 2000/. damages? The system looks well in theory, and works well in practice; it wants only one thing to render it perfect, namely, that it should be applied to those cases from which the practice in equity has excluded it; and that improvement would be best effected by drawing back to it that jurisdiction which the Court of Equity has taken from it.

This consideration brings me to the next point which I intend to press on the notice of the House-I mean the admission of evidence. I must say, that it appears to me to be an error to exclude, so rigidly as we do, the testimony of the parties in an action. It is received in all questions of arbitration; why should it be refused in open court? I do not fear that perjury would become more frequent by the alteration which I propose, though I am rather

afraid that it would produce an eagerness which would make men swear, as it is technically called, near to the wind. Here again I speak from my own experience. I recollect a case in which a gentleman of large fortune appeared before an arbitrator on some dispute arising out of an electioneering contest. It was my lot to examine him. I had got a great number of his letters in my hand. He was very eager to be heard in his own cause. He had quarrelled with his agent, and wished to explain the cause of the quarrel. I put a question to him: "Did you never on such an occasion say so and so?" His answer was distinct and ready-" Never." I repeated the question, and he repeated his answer. I then said to him, "Do you see what is now resting under my hand ?" pointing, at the time, to about fifty of his letters which were on the table. I then said to him, "I advise you to pause before you repeat your answer to that question." He rejected my advice, and not without great indignation. Now those letters of his contained assertions in direct contradiction to what he had sworn. I do not say that he perjured himself, far from it. I do not believe that he intentionally swore to what was false; he had only forgotten what he had written some time before. Now, had this occurred in an open court, he would have been ruined to the end of time-for he would not have had an opportunity of explaining the matter; he would have been suspected of perjury, when all that he was guilty of was a little too much eagerness, impetuosity, and wrong-headedness. I may be told, perhaps, that the anecdote which I have just quoted makes more against the alteration I propose than for it. I care not whether it does or not. All I have to say is, be uniform in your practice. Why do you refuse to allow a party in a cause to be examined before a jury, when you allow him to swear in his own behalf in your courts of equity, in your ecclesiastical courts, and even in the cases decided by your common law judges in the business of the term? I hope that if the committee of inquiry, for which I am now moving, be granted, something will be done to check the present practice of trying cases on affidavit. If it be right to exclude the parties from giving evidence in their own behalf in one case, it is not right to admit them to give evidence in others. I hope, therefore, that the dissimilarity of your practice in your different courts, will be a ground for yielding to me the examination I require.

The next question which presents itself to my attention is, the great question of how far interest should disqualify a witness. The ancient doctrine on this point has of late years been much restricted by the construction of our courts of law; and for my own part, I confess that I cannot see any adequate reason why all witnesses of good character and credit should not be admitted as evidence, leaving the question of their credibility entirely to the consider

ation of the jury. In the case of Bent v. Baker, which was an action against an underwriter on a policy of insurance, the Court held that another underwriter was a competent witness. The rule established in that case was, that if the evidence to which a person swears cannot be given for him in another cause, he is a competent witness, although he may entertain wishes on the subject; for that only goes to his credit, as Lord Kenyon said, and not his competency. The question in Bent v. Baker, was, whether a person who had been employed as a broker by the plaintiff in procuring the policy to be subscribed by the defendant, and had afterwards subscribed the policy as assurer, was a competent witness for the defendant; and the Court decided that he was.

I would wish the principle laid down in that case to be still further extended, as I consider it one of great practical use and authority. Let the House look at the inconsistency of the present system. If I have the most distant interest, even the interest of a shilling in reversion, on an estate of 50,000l. a year, I am incompetent to give evidence on any point that affects that estate; but supposing that I have a father, ninety years of age, lunatic, bed-ridden, and quite incapable of doing any legal act for himself, and that he is in possession of an estate in fee simple, and not in fee tail, and that I expect to be his heir, and that nothing can prevent me from becoming so, I may be a witness on any point which affects his estate, and I am competent to swear into the possession of my father an estate of 50,000l., to which, in the common course of events, I must myself succeed in a year or two. I therefore trust that the House will agree with me, that a line ought to be drawn between competency and credit, and that all persons should be admitted to give evidence, leaving it to the jury to determine what dependence ought to be placed on their testimony. This is rendered the more imperative by the manner in which witnesses are often made competent, by giving them a release of all future actions or causes of action. When a witness has an interest, if he divests himself of it by a release, there is no objection to his competency. Evidence is thus often cooked up for the courts, which, according to the existing rules, is not admissible. A release is given to the witness, which, if he is a man of honor, he returns immediately after the termination of the cause.

With regard to the reception of written evidence, I must say that it appears to me to be no less capriciously received than rejected. I think as highly as any lawyer ever did of the statute of frauds, and I would go the full length of the learned judge who said that every line in it was worth a subsidy. Still I am of opinion, that a few lines might be added to it which would render it even still more valuable. The French law requires that all contracts for

sums above one hundred and fifty francs should be reduced into writing. As every body can now read and write, I would wish that all contracts, to be valid, should be reduced to writing. As the law now stands, the books of a dead person can be admitted as evidence, provided he charges himself with any item, however small. . Why so? It is clear that he may make such an entry in his books to get 5001. for his heir. I speak on this point from a recollection of what occurred on a case tried at York, which my learned friend, the Solicitor-General, will remember-I mean the case of Barker v. Ray. In that case, much was suggested to all the counsel concerned in it, to make them think that it would be a useful rule to admit the books of a dead man as evidence, no matter whether he charges himself with any item or not, if it appear that he has no intention of making them evidence for his heir. The law already opens the door for mischief; and I wish to see whether, by a change in the rule, we cannot find some means of counteracting it. I am induced to think that no injury could arise out of such an alteration as I propose, by the curious circumstance that entries made by a deceased-rector or vicar of the receipt of tithes, have been admitted as evidence for his successor, because he was supposed to have no interest to mis-state the fact in making an entry which could not possibly be evidence for himself.

P

In the examination of witnesses, I think that nothing can be better than the rules already laid down. Every facility is afforded to counsel for extracting the facts of a case. There is, however, a want of uniformity in the practice of the judges towards counsel engaged in examination. Some judges will not allow them to cross-examine a witness whom they have called themselves, even though a hostile one; and others will not allow them to put a leading question to a witness, in cross-examination, if he is only nominally adverse to them. I regret that tests are excluded, by which the knowlege and skill of a witness might be tried. If I wish to try the power of a witness's memory, I am not allowed to examine him as to the contents of a letter which he has admitted that he has written-I must put the letter into the witness's hands before I ask him any questions on it. That question was raised and decided in the Queen's case, on a question which I had put to one of the Italian witnesses. Neither was I allowed to apply any test to his veracity. That test of his truth, as well as of his memory, is not allowed by the jealous system of our law.

There is another test of truth, of which I shall say the less, as I brought in a Bill some time ago to remedy the evil of the present law I allude to the test of malice to be found in the truth or falsehood of any publication alleged to be libellous. I see no reason why persons of any class of religious belief should be considered