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taxed by the Taxing Officer, if the amount founded boast of the common law, that, under clained exceeds that sum, notwithstanding its humane provisions, the risk of convicting anything to the contrary in the order in that a man of a crime of which he is not guilty is behalf contained.

reduced to its very lowest expression. 17. Where two or more defendants defend

Under the law of Massachusetts, as it stood by different Solicitors under circumstances

until May 26, 1866, the great practical defence that, by the law of the Court, entitle them to of every person accused of a crime was, first, but one set of costs, the Taxing Officer, with

the presumption of his innocence; and secondout any special order, is to allow but one set ly, the certainty that he could not be comof costs; and if two or more defendants

pelled to furnish evidence against himself. defending by the same Solicitor separate un

The law not only presumed him to be innonecessarily in their answers, the Taxing Offi

cent, but allowed him to keep his own secrets. cer is, without any special order of the Court,

He was not called upon to explain any thing, to allow but one answer.

or to account for any thing. He was not to be 18. When, after the date of this order, a

subject to cross-examination. He had nothing

to do but to fold his arms in silence, and leave guardian ad liten is appointed on the application of the plaintiff to an infant, or to a person

the prosecutor to prove the case against him of unsound mird not so found by inquisition,

if he could. The penitentiary could not open no costs are to be taxed to the guardian; but

"its ponderous and marble jaws" to devour in lieu thereof, the plaintiff is to pay to the

him, unless his guilt was made out affirma

tively beyond reasonable doubt. The verdict guardian a fee of $15, and his actual disbursements out of pocket; and the plaintiff, in case

of “Not guilty" was perfectly understood to he is allowed the costs of the suit, is to add to

mean precisely the same as the Scotch verdict

of “Not proven." his own bill of costs the amount he so pays.

No better protection to But the Court may, in special cases, direct the

innocence could ever be devised. The only allowance of taxed costs to a guardian ad litem.

reasonable reproach ever urged against the

system has been that it sometimes let the These Orders are to come in force on Monday, guilty escape. the 8th day of April, instant.

It will be found, we think, on examination, P. M. VANKOUGHNET, C.

that this experiment, or this revolution which0. Mowat, V. (.

ever term may best describe this new statute), must inevitably and very greatly impair both

of these defences against a criminal prosecuSELECTIONS.

tion. It substantially and virtually destroys the presumption of innocence; and it compels

an accused party to furnish evidence which TESTIMONY OF PERSONS ACCUSED OF

may be used against himself. CRIME.

If the statute merely provided in general On the twenty-sixth day of May, 1866, the terms that the person “charged with any crime Legislature of Massachusetts enacted, that, or offence should be deemed a competent wit"in the trial of all indictments, complaints, ness" on the trial of the indictment, its cruelty and other proceedings against persons charged and injustice would be manifest at once. No with the commission of crimes or offences, the man can doubt that it would be utterly unperson so charged shall, at his own request, constitutional, and would be held to be so, in but not otherwise, be deemed a competent all the courts, without even the slightest hesiwitness; nor shall the neglect or refusal to tation. It is for this reason, that the statute testify create any presumption against the contains the fallacious and idle words, “at his defendant.” In these few words, with very own request, but not otherwise," and the little discussion and with no great amount of equally idle and fallacious words, that "his inquiry, the Commonwealth of Massachusetts neglect or refusal to testify shall not create enters upon what to some appears merely an any presumption against the defendant.” We experiment, and to others a thorough revolu- take the liberty to call these words “idle and tion, in the administration of criminal law. | fallacious,” because the option which is given Whether it should be designated as an experi- | to the accused party is practically no option at ment or a revolution, it cannot be said to have all

. In its actual workings, it will be found been called for by any generally acknowledged that this new statute will inevitably compel necessity, or to be intended for the

purpose of the defendant to testify, and will have substanreforming any practical abuse or defect that tially the same effect as if it did not go through had been a matter of general complaint. On the mockery of saying that he might testify if the contrary, if there has been any one thing he pleased. in which the old rules of the common law were Let us suppose that a person is on trial on a successful in their practical working, it was in criminal charge, and that the same evidence the protection of persons accused of crimes which was sufficient to cause the Grand Jury against the danger of being unjustly convicted. to find a true bill against him is brought for Here, if anywhere, was to be found a justific ward at the trial. There will be some plausi. cation of the cry of the old barons, “Nolumus bility in the evidence ; otherwise, no bill would leges Anglie mutare." It is a just and well- have been found. There will be some show


of a case against him. The court, the prose- The inevitable effect of the statute will be, cutor, the defendant, and the jury all under- that, “in the trial of all indictments, comstand that he can testify if he will. In fact, it plaints, and other proceedings against persons is difficult to see how the presiding judge can charged with the commission of crimes or possibly avoid informing him (if he is without offences,” the defendant will request to be himcounsel) of this privilege which the law gives self a witness. This will be the invariable him. How can he possibly do otherwise than course of things in every criminal case which testify? How can he be silent ? Or, if he makes any show of plausibility, or exhibits should see fit to be silent, of what practical evidence of any force or weight at all against value to him will be the presumption of inno- the defendant. The necessity which has been cence? How can the jurors avoid the feeling pointed out will press equally and irresistibly that the reason why he does not testify is on all. The innocent will be ready and the because he cannot explain the suspicious ap- guilty will be compelled to ask the privilege, pearances of his case, and because he dares and all will use it. Passing over the question not subject himself to the risks and perplexi- (though by no means a trivial one) of what ties of a cross-examination ? If he has counsel, value testimony will be that is given under it is, if possible, even worse and worse; for such fearful and overpowering temptation to the feeling will be that his counsel are afraid perjury, let us ask attention to the predicato put him on the stand. It will be found, in ment in which a guilty man will be found. practice, that the defendant, in every case in Suppose the evidence against him to be formidwhich there is any apparent plausibility in the able, he may understand, or be advised, that charge, will, "at his own request,” be made a silence would be better for him than anything witness; and the request will be made because he can possibly say; yet under the pressure he cannot help it. He will volunteer under of this terrific statute, he must go upon the the strongest compulsion, under a necessity stand as a witness. Ruin stares him in the that is wholly irresistible. The moment he face if he do not; and, if he does, what becomes takes the stand as a witness, the presumption of the constitutional provision that no man of innocence, that bridge which has carried shall be compelled to furnish evidence against thousands safely across the roaring gulf of the himself? Can he decline to answer on the criminal law, is reduced to a single and a very ground that his answer might tend to criminate narrow plank,-be must then stand or fall by him ? Has he not thrown overboard all his the story which he can tell.

defensive armour? Is he not to be stretched But it will be said, that the statute provides, on the rack of cross-examination ? Will not in express terms, that his neglect or refusal to all his secrets be wrung out of him by the tortestify shall not create any presumption against ture of question after question ? Plainly, the him. This is an attempt, on the part of the result must be that he will be compelled either Legislature, to cure the inhumanity of the to furnish evidence against himself, or to defend “ experiment,” and would answer the purpose himself by lies“ gross as a mountain ;' an admirably if it could be done by any amount alternative to which the Constitution gives us of "provided, nevertheless."

The difficulty

no right to subject even a felon. We then is, that the jurors all know that the defendant should see the spectacle of smooth, ingenious, has the privilege (as it is called) of making and plausible liars wriggling ingeniously, and himself a witness if he sees fit; and they also perhaps with success, out of the toils in which know that he would if he dared. They will, clumsier, and perhaps better, men are hopeand they must, draw every conceivable infe-lessly involved. rence to his disadvantage if he do not. His It is occasionally said, however, that it is of neglect or refusal to testify will, and inevitably no consequence, or, on the whole, it is a good must, create a presumption against him, even result rather, if the new statute facilitates the if every page of the statute-book contained a conviction of the guilty, and diminishes their provision that it should not. The statutes chance of escape. Is it right, however, to commight as well prohibit the tide from rising, or pel the guilty to furnish evidence against themtry to arrest the course of the heavenly bodies, selves ? Are we so fond of perjury, that we as to prevent a juror from putting upon the insist on forcing every man who really does defendant's silence the only interpretation that not wish to go to the penitentiary or house of it will bear. The juror cannot fail to see that correction, and yet is guilty, to swear that he the defendant must know whether he is guilty is innocent? Is not his plea of "Not guilty'' or not; must know all about his own connec- enough? It is idle, however, to waste words tion with the case; must know where he was on this part of the case. The Constitution and what he was doing at the time in contro- says that no man shall be required to furnish versy; must be able to explain every thing evidence against himself. The statute, practithat bears against him ; must be not only cally and in its effect, compels the guilty man ready, but most eager, to do so, if he is in fact either to furnish evidence against himself, or innocent of the charge, and yet that he refuses resort to a refuge of lies. to do so. There is but one construction to be But suppose the defendant to be innocent. put on such refusal; and no statute can be | He may be wholly innocent of the particular devised that will prevent that construction crime laid to his charge, and yet very far short from having its full effect.

of being a saint or an angel. He may have


committed every crime in the decalogue or the ment and aggravate the dangers of their posistatute-book except the one set forth in the tion; some, and probably not a few, from stu. indictment. He may be a veteran from what pidity, from unskilfulness, or from want of Carlyle calls the devil's regiments of the line. established good character, may tell their story He may manifestly belong to the dangerous badly, and fail to command belief

, even when classes; he may be guilty of the great and they speak the truth ; others will get no farheavy crime of rags, stupidity, and poverty, — ther than simply to protest their innocence, yet he is thrown into the mill of the statute, which protest simply leaves the case where it and whirled off to the stand as a witness, stood before. In all such cases, the alleged where the most humane and tender of judges privilege of testifying will simply be either cannot protect him. The result is easy to nugatory and useless, or an engine of torture foresee. He is torn to pieces by cross-exami- and oppression. It is to be remembered, that nation. There are fisty things that he would the statute is universal in its application, and keep back if he could. In a word, he breaks reaches the case of the adroit and hardened down; and the jury disbelieve him when he culprit, the experienced felon, the green and is really telling the truth, and find him guilty ignorant novice, the nervous, timid, and feeble of the one crime of which he is really innocent. boy or woman, the foreigner, all orders and Surely, the advocates and admirers of the sta- conditions of men, and almost every form of tute would hardly say that it is desirable to helplessness. All will be tempted to falseconvict even a bad man, in such a way as this, hood; all will be badgered on cross-examinaof a crime of which he is not guilty.

tion. The experienced and self-possessed vilTo illustrate still further the operation of lain may possibly succeed in swearing his way this new system in extorting evidence from through: the inexperienced and unskilful will the defendant himself, let us take a case which be swallowed up. has already occurred, and which may recur at But it is said that appearances may be so every term of the court. Let us suppose, then, much against an innocent man that he cannot a man by no means dead in trespasses and escape on unjust and wrongful conviction in sins, but having a character to lose, and incom- any way unless he can testify in his own bemoded besides, with the possession of a con- half. It certainly must be a very peculiar and science, to be indicted as a common seller of extraordinary state of facts which could place intoxicating liquors. Suppose it be proved an innocent man in such a position,--so pecuthat he is the owner and keeper of a grocery. liar and so extraordinary that it may be safely Suppose some loafer, who has been disappoint- said to be of exceedingly rare and infrequent ed in the hope of buying liquor on credit at occurrence. False testimony may do it at any his shop, should swear positively to the "three time; but it is not possible for mere statutes distinct and separate sales" within the period to protect the accused against perjury. It covered by the indictment, which the law says must be “the lie with circumstance” that shall be sufficient proof of the charge. If he creates the danger in such cases; and mere should decline to make himself a witness, the denial by the accused, even though under oath, jury would convict him without leaving their might avail very little. But if appearances seats. He takes the stand, and swears that are against a defendant,—that is to say, if he never in his life sold one drop to the wit- facts and circumstances are proved, by honest ness whose testimony has been given in. Then testimony, which tend strongly to prove his comes the cross-examination; and he finds guilt,--he, of course, must meet and explain that the whole subject of the general charge those facts and circumstances. If he has counagainst him is open to inquiry. The confessel, the defendant's explanation will at least sion that he has made three other sales is forced be suggested. If he has no counsel, he will, out of him; and he is convicted on his own in answer to the call of the presiding judge, evidence, after he has been successful in de- make the suggestion himself. If he is really molishing all other evidence in favour of the innocent, all the truc and honest evidence prosecution.

against him will be consistent with his innoIf, in the trial of an indictment, the defen

Truth is always consistent with itself, dant is made a competent witness, he must and requires no ingenuity or skill for its exhistand or fall by the story which he can tell. bition. The explanation will come out and be If he is a witness at all, he will fare like every made known. If it meets and covers the case, other witness, and will besides labour under will relieve him, even if it be only laid before the disadvantage of being an interested wit- the jury as a theory, or as a possible state of ness; telling his story under suspicious cir- | facts, consistent with the evidence, and also cumstances, and labouring under the most consistent with the innocence of the defendant. extreme temptation to perjury. The guilty If it do not meet and cover the case, it will (and, practically, they are more than half of avail nothing to swear to it. The presumpthe whole number of the accused parties at a tion of innocence, and the reasonable possibicriminal term) will add the crime of perjury lity of innocence, consistently with the facts to the crime set forth in the indictment. Éven proved, constitute the real and effective defence of the innocent, some, under the influence of in all such cases. terror and anxiety, may mix some falsehood It sometimes happens undoubtedly, especiwith the truth, and so increase the embarrass- | ally in the case of atrocious and startling



crimes, that the public anxiety and alarm sti- making them the groundwork of their romulate detectives into extreme activity, and mances, or to innitate, in feigning similar reuse up some witnesses into a degree of posi- events as occurring to the creatures of their tiveness and firmness of recollection that may fancy. The law sees men under the influence be quite unwarrantable. Fearful mistakes are of powerful emotions, in the commission of sometimes made as to the identity of the per- terrible crimes. It sees the evil passions of son arrested and on trial with the actual per- suitors in conflict one with the other. It sees petrator of some great outrage. But, in such violent and sudden alternation from great cases, the more denial hy the accused would riches to extreme poverty, and the reverse. not be greatly re-enforced by his oath. It It sees much suffering and much oppression. costs so little for a felon to deny his crime! And in all these it knows and understands Of course, he would deny it. The true pro- the motives, and sees the workings, of the tection is the discrimination and carefulness minds of the actors. For these reasons have of the presiding judge, the zeal and energy of we termed law the most romantic of profesthe counsel in defence, the fairness and integ- sions, and not only the vast collection of causes rity of the public prosecutor, and, last and celèbres, but the myriads of unreported cases best of all, the conscientious and wise caution containing as much that is marvellous, prove of the jury.

this beyond peradventure. Hence it is not To sum up, then, the objections to the new strange that writers of fiction, seeking where system of the administration of criminal jus- they can find what most will interest their tice, we take these points:

readers, have often turned to the law, and in. It will be found to be compulsory in its yoked its invaluable assistance in compoundoperation, and will force defendants generally, ing a plot, or inventing a striking episode. We in criminal cases, to take the stand as wit- propose, therefore, looking at law in romance, nesses.

which is the shade or ciowdov of romance in It will com el the guilty either to criminate law, which seeks to copy, if not to surpass, themselves, or rely upon perjury for their

the reality in the extraordinary complication protection.

of events and episodes into which men may It will, to a great degree, deprive all accused be led by crime, passion, or accident. Law, parties of the benefit of the presumption of

in this species of literature, —which, to sepainnocence.

rate from more orthodox law-books in buff, It will lead to such an accumulation of false

should be termed a sort of profane law,--may and worthless testimony in the criminal courts,

be divided into two classes : 1st, the cases that there will be great danger that jurors will

where the plot turns on a legal point or prohabitually disbelieve all testimony coming ceeding in law; 2nd, where the circumstances from any defendants.

of the tale culminate in a trial in court. SomeIt gives to persons who really are not guilty times both are combined, and then there is of any offence charged against them no sub

law to the heart's content. It may be little stantial advantage over the presumption of pleasure to the tired lawyer, seeking relief innocence, and is wholly illusory as a privilege.

in the literature of fancy after several hours' It tends to degrade the trial of a criminal sharp engagement with Coke or Preston, to case into a personal altercation between the

find their doctrines lying hid, like a snake, prosecutor and the accused.

among the flowers of the imagination to which It is an experiment entered upon without

he has wandered for relaxation; and, on the necessity, not called for by the profession, not

other hand, to the hungry law-student, craving, petitioned for by any body, demoralizing from

with never-abated greed, the maxims of his its encouragement of perjury, and useless for profession, the law in fiction affords but an the purpose of accomplishing any substantial unsatisfying morsel. good result. — American Law Rerier.

of the first class, the stereotyped instances are those where the plot turns on a disputed

will, a forged deed, an altered marriage regisLAW IN ROMANCE.

ter, or a contested inheritance. The second is

chiefly occupied by those cases where, after a The law is, after all, the most romantic of variety of adventures, the hero or heroine is professions. Happily for its members, it is justly or unjustly accused of some crime, genenot entirely composed of sheepskin, and dust, rally murder. In these cases, as a court-room and decided cases, -"quiddits and quillets, during a capital trial is sure of a crowded and cases and tenures," as Hamlet hath it,----of attentive audience, no matter how unimportant contingent remainders or executory devises, the person of the accused; so the author how. It hath its paths of pleasantness, which are ever dull may be the rest of his book, is sure not necessarily those of Ferne, Littleton, or of making one or perhaps two stirring chapChitty, but are more akin to human nature. ters, and exciting a final interest in which his And when we say that law has its romantic story may terminate. To a professional reader, side, we mean that it has more to do than any however, this blaze of fireworks is apt to be other profession with those striking episodes rather tame, unless truthfully done; and the in men's lives of which writers of fiction bave sticks of the rockets are painfully apparent, taken advantage, either to incorporate, in much as a diagrosis of the disease of which


the villain has expired, would be to a medical to sea, by whom he had a daughter, who was reader. It may be assumed, in the beginning, the mother of the plaintiff. Here the plaintiff that the virtuous is always unjustly accused; rested. The defendant's title, then, depended and that it is morally certain that a new wit- only on the conveyance of Harry to Moses ness will appear before the trial is over, or, Aron, during the lifetime of bis father, which, what is more probable, that the murdered man it was conceded, was invalid even by estoppel; will turn up just before the word “Guilty" is but, on the evening before the trial, the defenpronounced by the foreman.

dant's attorney discovered a deed from old A good instance of the first class, and the Dredlington to Geoffrey confirming the conwork of fiction in which we are brought face veyance made by Harry. to face most directly with the law, is Warren's The story of the trial is told with much cir"Ten Thousand a Year." Here we have bar- cumstance. The opening of counsel and the risters and attorneys without number, their evidence are given in detail. Harry's convey. characters described, and their conversation ance is well known to all parties, but is little given, an account of a most interesting trial, relied on because made during his father's and the whole composed by a barrister of ex- lifetime. The deed of confirmation comes like cellent stand ng, and himself the author of an a thunder-clap, and is to decide the case. It admirable work on the study of the law. Yet, is an ancient deed over thirty years of age. wonderful to say, the whole point of the plot Its custody and possession are satisfactorily turns on law which cannot be held otherwise accounted for. No question is raised as to the than bad. The book is so well known, that handwriting. It is about to be admitted, when we need but refer in the fewest possible words Mr. Lynx, true to his name, discovers an to the plot: Tittlebat Titmouse, a vulgar and erasure in a material part. Let us quote Mr. illiterate counter-jumper, is suddenly informed Warren, “The plain fact of the case was this, by the firm of Quirk, Gammon, & Snap, a trio -the attorney's clerk, in copying out the deed, of rascally attorneys, that he is the rightful which was one of considerable length, had owner of a property of £10,000 a year, now written four or five words by mistake; and, held by another. An action is brought, and fearing to exasperate his master by rendering the cause of Doe on the demise of Titmouse necessary a new deed and stamp, and occasionv. Jolter" comes on to be heard at the Yorking trouble and delay, neatly scratched out the Assizes before Lord Widdrington, Lord Chief erroneous words, and over the erasure wrote Justice of the King's Bench, and a special jury.

the correct ones. After argument, the deed For the plaintiff appear Mr. Subtle, Mr. Quick- was not permitted to be placed in evidence, silver, and Mr. Lynx. For the defendant, Mr. and the plaintiff had a verdict for his estate Attorney General, Mr. Sterling, Mr. Chrystal. worth $50,000 a year. This, then, is the According to the author's system of nomen- turning-point of this legal novel, written by a clature, the counsel's powers shine forth in lawyer, elaborated with great effect, and, after their patronymics (if this latter title is not a all, on the face, is now, and was then, undoubtmisnomer). The case depends upon the descent edly bad law. Here was an ancient deed over from a common anccster, and on the following thirty years old, the signatures undenied, the pedigree:

possession proved, with an erasure in a handwriting the same as the rest of the deed, and

yet it was not allowed to go to the jury, but Harry D.

was peremptorily ruled out. We do not think

such law can be found in the books, whether Stepben D.

new or old. The trial is represented as taking Geoffrey D.

place in the early part of the nineteenth cen

tury. For old law hear my Lord Coke:Tittlebat Titmou-e, through

“10 Secondly, of ancient time, if the deed whom plaintiff claims.

appeared to be rased or interlined in places The history of the pedigree is this: Of old materiall

, the judges adjudged upon their view Dredlington's sons, the eldest, Harry, had the deed to be voyd. But, of latter daies, the taken to wild courses, gone to the Jews, and, judges have left to the jurors to try whether to obtain money, had conveyed his inheritance, the raising or interlining were before the delihis father still living, to one Moses Aron. The verie.” Lord Campbell, in Doe v. Catomore, second son, Charles, had lived more quietly, and 16 Q. B. 745, sustains this view ; so do the died leaving two sons, Stephen and Geoffrey. Supreme Court of Massachusetts in Ely v. Stephen had followed his uncle Harry's ex- Ely, 6 Gray, 439, and Mr. Greenleaf and Mr. ample, entered the navy, and died, it was Sarkie in their treatises on Evidence. The thought, without issue. Geoffrey thus suc- question is undoubtedly one of fact, to be left ceeded, and, for greater precaution, took an to the jury; and though some contrariety of assignment of the conveyance of his uncle opinion has arisen as to the proper instructions Harry to Aron. Under him the defendant to be given to them as to the burden of proof claimed.

and the presumptions of law arising, th is The plaintiff's case was to show that Stephen no respectable authority that we are aware of had left issue. It was proved that he had for entirely rejecting the deed as incompetent married a woman of low rank, just hefore going evidence on account of an alteration. The


Charles D.

A female descendant

marries Gabriel

A female descendxnt marries father of defendant.

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