husbands or wives, and misleading of the jury into erroneous verdicts of acquittal? Why give in this instance all the benefit of the doubt against the accused? I think the ends of justice would be promoted, without imperilling domestic peace, if-1st, The husbands and wives of accused parties were competent witnesses for them in all cases; 2d, if they were not competent witnesses against them, unless with the accused's consent; and 3d, if they were allowed to decline to give evidence at all, or to answer any question put to them. It is almost unnecessary to add that if the exclusion is objectionable in the usual case, its corollary, which excludes the wife or husband of one prisoner as a witness for or against another, is still more so, and ought, at any rate, to be abolished.

III. I pass now to the third ground of exclusion, namely, on account of want of belief in a God. It proceeds on the grounds1st, That one who does not believe in a Supreme Being will not fear that divine justice will overtake him if he speaks falsely; and, 2d, That he cannot take the judicial oath. The latter ground at one time excluded the evidence of all who, from religious conviction, considered it wrong to take an oath. It has been removed as to them, and can hardly be maintained as to any others. Looking at the exclusion only on the first ground, it will be seen to assume that the evidence of such persons is not to be believed, and that its falsehood would probably escape detection and mislead the jury. I take leave to dispute these propositions. The number of men of high personal character, honourable and trustworthy, who, after careful and thoughtful inquiry, have come--I believe erroneouslyto the conviction that there is no personal Deity, is considerable, and includes not a few men of as accurate powers of observation, clear intelligence, and strength of memory, and withal of as high culture and exemplary life, as the world has ever seen. On matters of scientific inquiry, on history, on the ordinary affairs of life, no one hesitates to believe them; and the records of their observations and experiments are accepted by all the world as not merely true, but as eminently accurate and trustworthy. Yet men such as these are excluded as witnesses by the same law which admits the most ignorant and stupid of the population, with no real religious opinions at all,-children so young that they can but dimly understand, and unreasoningly accept, a few rudimentary religious truths,-the votaries of the most superstitious faiths,-ignorant savages, if they only believe in a Supreme Being,-men convicted of perjury and of every phase of the crimen falsi, and steeped from childhood in vice and crime,-or (perhaps worst of all) men whose vicious lives belie their shallow or pretended religious convictions. It was pointed out in a comparatively recent case that the exclusion involves a contradiction, because the witness is excluded on his own statement of his want of belief, which ex hypothesi is not credible. The witness is excluded because he credibly states the ground of his own incredibility; and thus the only evidence which

the Court will allow him to give, being on a matter of no moment in the cause, is practically the only ground for rejecting all evidence which he could give on matters of fact, on which a just decision in the cause depends. In a country like ours, where scepticism is not the fashion, there are no inducements to leaving the broad lines of the national faith; and it cannot be said that it is those who love truth least who do so. Sometimes a love of truth almost morbid, a determination to accept no doctrine which is not absolutely demonstrated to be true, and an honest searching into the foundations of all knowledge, have shaken the faith once accepted uninquiringly, and have landed the unhappy speculator in unbelief. Probably every one who hears me knows some such men. Can it be said that they are less truthful than the rest of the community? I think not. On the contrary, I believe that truthful evidence may be expected from them as much as from any other class of witnesses, and more than from the vast majority of those who are daily examined. Besides, the exclusion operates against the public generally, while the person excluded seldom suffers from it. If intended as a stigma or punishment for infidelity, it usually does no harm to the party himself; whereas the want of such evidence may cause to others the loss of most important civil rights, and an unjust conviction or acquittal of the most heinous crimes. These are serious evils, for which there is no ground either in principle or expediency. Again, the maintenance of a religious test for witnesses is an anachronism, after it has been abolished in regard to all secular offices, including professorships of lay chairs. Truthfulness is surely as necessary for the due discharge of the functions for which no such test is required, as for giving evidence in a Court of law. The same love of religious liberty which has abolished religious tests elsewhere, should sweep it away from the witness box. The exclusion has been abolished in the case of certain witnesses of almost the lowest possible class, by a Statute passed in 1843 (6 Vict. c. 22), recognising as valid Acts of Colonial legislatures which admit the evidence (I quote the words of the Act)" of barbarous and uncivilized people who, being destitute of the knowledge of God and of any religious belief, are incapable of giving evidence on oath in any court of justice.' I doubt if there is a greater contradiction and absurdity in the laws of any country than to maintain the exclusion against its civilized citizens, including men of the highest culture and morality, as witnesses before tribunals unsurpassed by any others in the world, after legalizing its abolition as to ignorant and brutal savages, often not its citizens, when adduced before tribunals usually inferior.1

1 The Act 32 & 33 Vict. c. 68 (which does not apply to Scotland) provides that "if any person called to give evidence in any court of justice (extended by 33 & 34 Vict. c. 50 to examinations before all persons having authority to administer an oath for taking evidence), whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding judge is satisfied that the taking of an oath would have no binding

IV. I must deal briefly with the next class of exclusions (which exist only in Scotland), on the ground of enmity, bribery, tutoring, and presence in Court under certain circumstances during the examination of other witnesses. The two first-enmity and bribery -assume such strong prejudice on one or other side as render the evidence incredible. This may do no harm in extreme cases. But the bribe may be a trifle, and the ill-will may be slight; and in such questions of degree it is impossible to draw the line by rules of law. The attempt has produced artificial rules and distinctions, as well as contradictions. Thus, a bribe, and even a rejected offer of one, however small, from one of the parties, excludes; while a bribe, however great, by a stranger, or in criminal cases the promise of a reward, however high, by the authorities for the detection of the crime, does not. In civil cases expressions of enmity, made perhaps thoughtlessly, if founded on serious injury, will exclude, yet enmity more bitter but groundless, or harboured silently because deeply, will not; while in criminal cases the accuser is heard, no matter how strong and how much provoked his hostility to the accused may be.

Tutoring," or the improper instructing of a witness by the party adducing him, excludes, on the assumption that the witness will follow the instructions and speak falsely; or, if not, it punishes the party by the exclusion in odium corrumpentis, without discriminating as to the importance of the issue, and the unimportance of the fact to which the tutoring applied, or as to the light which the witness could throw on the questions in issue.

The presence of the witness in the Court during the examination of other witnesses used always to exclude, on the ground that his evidence might be influenced by what he heard. The Evidence Act of 1840 gives the Court discretion to admit the witness, where "it shall appear to the Court that his presence was not the consequence of culpable negligence or criminal intent, and that he has not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination."

All these grounds of inadmissibility ignore the differences in disposition, character, and habits among mankind. They assume that what is likely to lead some will lead all to falsehood, that the witness will not tell the truth on other facts equally, or perhaps much more important compared with those on which he is expected to speak falsely; and that, notwithstanding the examination and cross-examination by the Bar, farther examination from the Bench and jury-box, and comparison of the evidence with other evidence in the cause, it will mislead the jury, and defeat the ends of justice.

effect on his conscience, make the following promise and declaration," etc. etc. In practice these Acts are held to have abolished the objection on account of unbelief in a God. They are understood to work well in England and Ireland, and ought to be extended without delay to Scotland.-W. G. D.

It is almost unnecessary to say that these assumptions are erroneous. I propose that the law of Scotland should be assimilated on these matters to that of England, where such considerations only affect the credibility of the witness.

V. The last ground of exclusion is outlawry, or loss of civil status, pronounced by one of the Superior Courts upon a person charged with crime failing to appear for trial. It is intended as a punishment for contumacy, but it does little or no harm to the party against whom it is directed. It really punishes the innocent litigant, who requires his evidence, which is not supposed to be incredible. Although the exclusion on this head is rare, it might cause grave injustice. I propose that it should be abolished. It does not exist in England.

I have thus answered affirmatively the question submitted for discussion, and have endeavoured to show that the exclusionary rules as to classes of witnesses cannot be defended upon any exceptional ground, but should be abolished from regard to the great general principle noticed at the outset. I conclude with expressing the earnest hope that the course of legislation, which, running without deviation during the last thirty-five years, has removed many of the old obstructions to full and fair judicial investigation, will ere long sweep away those that remain.

SANITARY INSPECTORS AND SANITARY INSPECTION OF SCOTLAND.

PAPER READ BY W. C. SPENS, ESQ., SHERIFF-SUBSTITUTE, HAMILTON, AT THE SOCIAL SCIENCE CONGRESS At Glasgow, OCTOBER 1874.

PRIOR to the Public Health Act of 1867 (apart from local legislation), the only Act in force dealing generally with Sanitary matters was the Nuisances Removal (Scotland) Act 1856, amended to a certain extent and with reference to various provisions by the General Police Act of 1862. By the 7th section of the earliest Act, it was provided that the Local Authority

"may when it shall be thought necessary for the purposes of this Act appoint an Inspector or Inspectors of Nuisances and an Inspector or Inspectors of Common Lodging Houses, and shall make bye-laws for regulating the duties of such Inspectors, and shall appoint convenient places for their offices, and shall allow to every such Inspector, in respect of his employment, a proper salary; and, if no such Inspector is appointed, the Local Authority shall in all cases, in which any duty is laid on them by this Act, appoint some person where the same shall be necessary to perform such duty, and shall remunerate him as they see fit."

It may be well to explain at this point the meaning of the phrase "Local Authority" in Scotland. The statutory meaning of Local Authority in the Nuisances Act of 1856 is substantially the same as defined in the Public Health Act of 1867, by which last-named Act it was provided in section fifth

"The following bodies shall respectively be the Local Authority to execute this Act in the districts here under stated in Scotland-in places within the jurisdiction of any Town Council and not subject to the jurisdiction of Police Commissioners or Trustees as aftermentioned, the Town Council-in places within the jurisdiction of Police Commissioners or Trustees, exercising the functions of Police Commissioners under any general or local act-the Police Commissioners or Trustees, and in any Parish or part thereof, over which the jurisdiction of a Town Council or Police Commissioners does not extend, the Parochial Board of such Parish."

Thus, for example, the Town Council of Hamilton is the Local Authority of Hamilton; the Police Commissioners of Wishaw, appointed under the General Police Act of 1862, are the Local Authority of Wishaw; and the Parochial Board of Bothwell is the Local Authority for the Parish of Bothwell. By the 8th section of the Public Health Act of 1867, the provisions with reference to the appointment of the officer nominated Inspector of Nuisances in the Nuisances Removal Act of 1856, are somewhat changed.

Time will prevent my quoting this section. I may point out, however, the following distinctions between it and the 7th section of the Nuisances Removal Act:-(1) Under the former Act it was incumbent on the Local Authority to frame bye-laws for regulating the duties of the office of Inspector of Nuisances, while under the latter it is merely permissive to the Local Authority to make byelaws for the regulation of the Sanitary Inspector," which bye-laws shall not be effectual until they are approved by the Board of Supervision." In the case of trained and educated Sanitary Inspectors, the advisability of their respective Local Authorities framing substantive rules for their guidance might well be doubted; but if the system of appointment which at present obtains is to be continued, when men of little, or it may almost be said, of no education are appointed Sanitary Inspectors, it seems to me expedient that it should be compulsory on Local Authorities to frame bye-laws for the guidance of their Sanitary Officers, subject to revision by the

1 "The Local Authority may, and where it shall be thought necessary by the Board" (that is the Board of Supervision, to whom large powers are given by the Act), "for the purposes of this Act, the Local Authority shall appoint a Sanitary Inspector, or Inspectors, who shall be also Inspector, or Inspectors, of Common Lodging Houses, and a Medical Officer, or Medical Officers, and may make Bye-Laws for regulating the duties of such Inspectors and Medical Officers, which Bye-Laws shall not be effectual until they are approved of by the Board; and the Local Authority shall appoint convenient places for their Officers, and shall allow to every such Inspector, or Medical Officer, on account of his employment, a proper salary; and, if no such Inspector or Medical Officer is appointed, the Local Authority shall, in all cases in which any duty is laid on them by this Act, appoint some person, where the same shall be necessary, to perform such duty, and shall remunerate him as they see fit; and the names, and addresses, and salaries of the said Inspectors and Medical Officers shall be reported by the Local Authority to the Board immediately on such persons being appointed, and such salaries fixed; and the said Inspectors and Medical Officers shall be bound to make such Returns and special Reports to the Board, as the Board shall require them to make; and the said Inspectors shall be removable from office only by the Board, except in the case where the Local Authority is the Town Council, or Police Commissioners, or Trustees in any Burgh in Scotland having a Local Act for Police purposes, or having a population of ten thousand, or upwards, according to the census last taken, in which case the Inspectors shall be removable from office by the Local Authority."