diction of his evidence at the trial, if the deponent be called and examined thereat as a witness (r).

Fifthly, though, by the general rule of law all hearsay, -that is, any statement by a witness of what has been said or declared out of court,-is excluded; yet on a charge of homicide, it is the practice to admit testimony as to the dying declarations of the deceased, with respect to the cause of his death,-that is, if made under a sense of approaching dissolution (s).

Sixthly, though by 16 & 17 Vict. c. 83, the husband or wife of any party to a legal proceeding, is now in most civil cases competent and compellable to give evidence on behalf of either or any of the parties, yet it was also thereby expressly provided that this is not to extend to compel or enable a husband to give evidence for or against his wife, or a wife to give evidence for or against her husband, in any criminal proceeding. Such evidence therefore remains, generally, inadmissible, as it always was by the common law. Yet this rule is open to certain exceptions. Thus, in treason, a wife may give evidence against her husband, because the tie of allegiance is paramount to all others. So upon a charge of forcible abduction and marriage, or other violence to her person, the woman has always been a competent witness against her husband (†). And other exceptions to the general rule have been now made by statute; it being enacted by 40 & 41 Vict. c. 14, that on the trial of any indictment or proceeding for the non-repair of a nuisance to any public highway, river, or bridge, or instituted for the purpose of trying or enforcing a civil right only, every defendant, and the wife or husband

(r) See R. v. Scaife and others, 20 L. J. (M. C.) 229; Queen v. Upton, St. Leonard's, 10 Q. B. 827; Queen v. Clements, 30 L. J. (M. C.) 193; Reg. v. Beeston, 1 Dearsley's C. C. R. 405; The Queen v. Cockburn, 26 L. J. (M. C.) 136; Austin's case (per Willes, J.), 1 Dearsley's C. C. R. 612.

(s) See as to dying declarations, R. v. Moseley, 1 R. & M. C. C. R. 97; R. v. Hayward, 6 Car. & P. 157; R. v. Perkins, 9 Car. & P. 395; The Queen v. Reany, 26 L. J. (M. C.) 43; The Queen r. Hind, 29 L. J. (M. C.) 147.

(t) 1 Chit. Bl. 444, n.; 1 Phil. Ev. 71; Lord Audley's case,3 St.Tr. 402.

of any defendant, shall be admissible witnesses and compellable to give evidence. And by the Married Women's Property Act, 1882, any wife or husband is made competent to give evidence against each other in criminal proceedings taken under the Act (u).

[Seventhly, it was an antient and commonly received practice (v),—derived from the civil law, and which also has obtained in France (r), -that as counsel was not formerly allowed to any prisoner accused of a felony, so neither should he be suffered to exculpate himself therefrom by the testimony of any witnesses. And therefore it deserves to be remembered to the honour of Mary the first, (whose early sentiments, till her marriage with Philip of Spain, seem to have been humane and generous,) that when she appointed Sir Richard Morgan chief justice of the Common Pleas, she enjoined him, "that notwithstanding the "old error which did not admit any witnesses to speak, "or any other matter to be heard, in favour of the adver"sary, her majesty being party;-her highness's pleasure "was, that whatsoever could be brought in favour of the

subject, should be admitted to be heard; and moreover, "that the justices should not persuade themselves to sit "in judgment otherwise for her highness than for her sub"jects" (y). Afterwards, in one particular instance,when embezzling the royal stores was made a capital felony (z),—it was provided by statute, that any person impeached for such felony "should be received and ad"mitted to make any lawful proof that he could, by lawful "witness or otherwise, for his discharge and defence:" and, in general, the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive, that a practice was gradually introduced of examining witnesses for the prisoner, though not upon oath (a): the consequence of

(u) 45 & 46 Vict. c. 75, ss. 12, 16. (v) St. Tr. i. passim.

(x) Domat, Pub. Law, b. 3, tr. 1; Montesq. Sp. L. b. 39, c. 11.

(y) Hollingsh. 1112; St. Tr. i. 72.

(2) This was by 31 Eliz. c. 4, a statute repealed by 7 & 8 Geo. 4, c. 27. As to the existing provision with regard to this offence, vide sup. p. 138.

(a) 2 Bulst. 147; Cro. Car. 292.

[which still was, that the jury gave less credit to the prisoner's evidence, than to that produced by the Crown. Sir Edward Coke protests very strongly against this tyrannical practice; declaring, that he never read in any Act of parliament, book-case, or record, that in criminal cases the party accused should not have witnesses sworn for him; and that therefore there was not so much as scintilla juris against it (b). And the house of commons were so sensible of this absurdity that, in the bill for abolishing hostilities between England and Scotland, (when felonies committed by Englishmen in Scotland were ordered to be tried in one of the three northern counties,) they insisted on a clause, and carried it against the efforts of both the Crown and the house of lords, against the practice of the courts in England, and the express law of Scotland, "that in all "such trials, for the better discovery of the truth, and the "better information of the consciences of the jury and "justices, there shall be allowed to the party arraigned "the benefit of such credible witnesses, to be examined upon oath, as can be produced for his clearing and justi"fication" (c). At length by the statute 7 & 8 Will. III. c. 3, the same measure of justice was established throughout all the realm, in cases of treason causing any corruption of blood, and of misprision thereof: and it was afterwards declared, by statute 1 Anne, st. 2, c. 9, that in all cases of treason and felony, all witnesses for the prisoner should be examined upon oath in like manner as the witnesses against him (d).] And now, there is no distinction in this matter between civil and criminal proceedings. In all cases, every witness who is examined in a court of

66

(b) 3 Inst. 79. See also 2 Hale, P. C. 283, and his Summary, 264.

(c) Stat. 4 Jac. 1, c. 1. See Com. Journ. 4, 5, 12, 13, 15, 29, 30 Jun. 1607.

(d) Provisions are now made (vide sup. pp. 354, 358) to afford facilities to persons accused of in

VOL. IV.

dictable offences, to have the depositions taken of such persons as they may desire to call as witnesses, before they are committed or held to bail; and also for the payment of their expenses, if allowed by the court at the trial.

F F

justice must give his evidence under the sanction of an oath, or of some affirmation allowed in substitution of an oath.

Lastly, the defendant in a criminal prosecution is allowed to call witnesses to speak, generally, to his character: though he is not allowed to prove particular actions bearing favourably on his character; unless they happen to stand in connection with some of the facts charged and proved against him (e). And, on the other hand, the crown seldom, in practice, seeks to put in evidence of general bad character (ƒ); and though under certain circumstances it may give proof of a previous conviction for crime (g), yet this must be within the restrictions which have been imposed by certain legislative provisions. For by 24 & 25 Vict. cc. 96, 99 (h), it was provided that in an indictment under those Acts alleging the offence to have been committed after a previous conviction, the defendant shall, in the first instance, be arraigned upon so much of the indictment as charges the subsequent offence, concerning which only the jury shall, in the first instance, be charged to inquire; and that if they shall find him guilty thereof, or if on arraignment he shall plead guilty to the subsequent offence, then, and not before, the previous conviction shall be inquired into. If, however, the prisoner, in his defence, shall give evidence as to character, the prosecutor may, in answer thereto, give evidence of the previous conviction before the subsequent offence is found: and the jury shall then inquire of the previous conviction and of the subsequent offence, at the same time (i). As to the mode of proof, it forms one of the provisions of the

(e) As to evidence to contradict evidence to character, see R. v. Rowton, 34 L. J. (M. C.) 57.

(f) Taylor on Evidence, s. 327. (g) Ibid.

(h) There is a previous statute on this subject to the same general effect, viz. 6 & 7 Will. 4, c. 111.

(i) 24 & 25 Vict. c. 96, s. 116, and c. 99, s. 37. Some doubt appears to be entertained whether this practice is confined to offences under these Acts, or is general. See Arch. Pl. & Ev. 15th ed. p. 831; The Criminal Law Acts, by Greaves, p. 203.

Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. 18, that a previous conviction may be proved by producing a record or extract of such conviction; and by giving proof of the identity of the person against whom the conviction is sought to be proved, with the person appearing in the record or extract of conviction to have been convicted.

[When the evidence on both sides is closed,—and indeed when any evidence hath been given,-the jury cannot be discharged, (unless in cases of evident necessity,) till they have given in their verdict (j): but are to consider of it, and deliver it in, with the same forms as upon civil causes. But the judge may adjourn, while the jury are withdrawn to confer, and return to receive the verdict in open court ().] And when the trial runs to such a length, that it cannot be concluded in one day, the established practice now is to adjourn the court till the next morning; but the jury, in cases of felony, must be kept somewhere together, so that they may have no communication except with each other (1). [Such verdict may be either general, as

guilty" or "not guilty;" or special, setting forth all the circumstances of the case, and praying the judgment of the court (m); whether, for instance, on the facts stated, it be murder, manslaughter, a nuisance, or no offence at all.

(j) Co. Litt. 227; 3 Inst. 110; Foster, 27; Gould's case, Hil. T. 1764. See The Queen v. Charlesworth, 1 B. & Smith, 460. The discretion of a judge with regard to the discharge of a jury before verdict cannot be considered in a court of error. (Winsor v. The Queen, Law Rep., 1 Q. B. 289; S. C. in error, ib. 390.)

(k) 3 St. Tr. 731; 4 St. Tr. 231, 455, 485.

(1) Stone's case, 6 T. R. 527; 1 Chit. C. L. 632. It is remarked in the Report of the Criminal Code

Bill Commission (p. 37), that "the "jury may separate in cases of "misdemeanor but not in cases of "felony." In reference to the same matter of discharge, the Report observes that at present a verdict cannot be taken on a Sunday.

(m) See an example of a special verdict, in an indictment for a nuisance tried in 1837, R. v. Tindall, 6 A. & E. 143. It is, however, observed in the Report just referred to (ib.), that "proceedings