both systems of law. If the concurrence is opened for a chair of procedure, (practice) and of criminal legislation,' the thesis must have for its object, one subject taken from the code of civil procedure, and another from the code of criminal instruction. Finally, if the chair is one of commercial law, the thesis must have for its object one subject taken from the code of commerce, and another taken from the civil code. All these theses must be distributed among the judges, and the candidates, at least, as soon as the twelfth day after the drawing.

Three days afterwards, the first candidate is to maintain his thesis, publicly; and all the other candidates, or only six of them, if there is a greater number, are to discuss the subject with him, at least during a half hour, in order, that in every case, the public exercises may last three hours. But as the disputants are allowed only one hour each, if there are not candidates enough to occupy the time required for the thesis, some of the judges selected by the president, for that purpose, are to dispute with the candidate. The exercises are conducted in French, when the subject is one of French law, and in Latin, when it is one of Roman law. The arguments must bear duly upon the meaning and application of the various texts of the laws, relative to the subject, or upon the relations of the Roman law, to the French law. The disputants are not allowed to cite decisions, or the opinions of living authors. They may either attack the principles advanced in the dissertation, and the solutions given to the questions, growing out of the thesis, or propose new questions, in relation to the subject, in order to attack afterwards the answers given to them by the supporters of the thesis.

The day, on which the last candidate maintains his thesis, the judges retire, immediately after this last trial, into their room. for deliberation, to proceed to the election of one of the candidates to fill the vacant chair. The president first proceeds to a secret balloting, in order to determine, whether it is proper to make an election, or in other words to determine, whether any of the candidates has passed the trials in a satisfactory manner. An absolute rejection of the whole is not valid, with

1 The term criminal legislation is used here, not in reference to the principles of legislation, but to the whole body of the criminal laws. This course of lectures is a course of law and not of legislation.

out a majority of two thirds of the votes.

In case there is but

a single candidate, they then proceed to ballot. Before the judgment of the concurrence, a discussion may be opened among the judges, upon the mefit of the candidates, but no mention must be made in their report of the different opinions expressed by them. If the first balloting does not give an absolute majority in favor of one of the candidates, they proceed to a second, and if this does not give a majority, the candidate who has the highest number of votes is then to be balloted for with the one, who shall obtain the highest number of votes upon a third balloting. In all cases of equality, the president is entitled to a casting vote. All the operations, relative to the judgment of the concurrence, must be conducted without leaving their room. The hall of the public sitting remains open while the judges are deliberating, and they return immediately after their deliberation is closed in order to make known the result.

The candidate selected receives his institution from the commission of public instruction, to which the president of the concurrence immediately transmits a report of all the doings.

The places of adjunct professor, in the faculties of law, are filled by the concurrence, in the same manner as the chair of the professor. The trials are the same. The applicant must be twenty-five years of age. When one of the adjunct professors of the faculty, before which a concurrence is opened for a chair, is chosen by the judges, one of the other candidates may be named adjunct without proceeding to new trials.

ART VIII.-RULES OF EVIDENCE. NO. 6.

ADMISSION OF PARTIES IN CRIMINAL PROCEDURE.

THE end, alike to be attained in civil or criminal procedure by the introduction of testimony, is the elucidation of the truth; the extraction of the whole portion of facts connected with a given litigated question. The reasons, which show the importance of the admission of this testimony in civil, show still greater

necessity for it in criminal causes. Necessary as has been seen to be the admission of parties in civil procedure to induce or prevent the imposition of just or unjust pecuniary burdens; this necessity is immeasurably increased, when the onerous inflictions of penal law are to be imposed or avoided. Here then, the question acquires a proportionably commanding importance and is to be discussed with still greater caution. In the investigation of truth, the eye of intelligence refers only to the fact in issue. The resulting effect of such fact is, such as the law has seen proper to ordain—and its provisions are to be considered as the best possible. The best means of ascertaining the existence of any facts is simply a question of evidence. The escape of innocence, the punishment of guilt, are the only ends to be attained, and the rules of evidence are, or should be, adapted to their most effectual attainment. Whether such rules have been adopted, is the subject proposed for consideration—a subject commensurate in importance with the due administration of penal law.

nesses.

In all cases, were the judicial investigator to pursue the course dictated by reason, he would obviously anticipate the fullest information from those best acquainted with all the facts. The eye and the ear witnesses the accidental spectators of the transaction-may not, when the matter comes up for judicial investigation, be the most accurate, the best witTheir senses may have been deceived their recollection may have become dim, confused and uncertain — or their memory may have failed. An adequate motive to perceive, treasure up, retain and relate what has transpired, may have been wanting. They may have ceased to exist, or their presence, for the purposes of judicial investigation, may be unattainable or attainable only with a great and undue trouble and expense. The crime, perhaps, may have been committed without the presence of any human being. Not so with the parties to the transaction. The actual participators, the actors in the scene, will always be present—and the same interest, which induced them to act, will always induce them to recollect. Were the transaction one of recent or remote occur

1 Am. Jurist, vol. 8, p. 7; vol. 10, p. 5. There may be much repetition. if the argument, but we must be pardoned that fault.

rence - where the rights of persons or property were violated -the reputed sufferer in those rights would best know1 when, where, how, and in what he may have suffered. The accused, the reputed violator of those rights, whether the charge was true, and if true, the precise manner, extent and mode of such violation. They, then, the injured and the injurer, would obviously, so far as accuracy of original perception and recollection are desirable qualities in a witness, be the best sources for instruction. Any supposed danger from want of integrity on their part, or of intelligence on the part of the judge, will hereafter receive examination.

Now the evils of exclusion are obvious. Were all testimony excluded, the detection of the criminal would be impossible. To the extent of exclusion so far as from that cause crime escapes detection to that extent it is encouraged and rewarded by receiving and retaining in safety and without molestation its fruits. Impunity is the necessary and inevi table result of insufficient proof. Partial exclusion is partial impunity. When this deficiency of evidence is the result of exclusionary rules, the law aids and abets the criminal. It does on a grand, what the perjured withholder of facts does, on a small scale. Suppression, on the part of a witness sworn to disclose the whole truth, is perjury. The law thus punishes the witness for following with strictness its own spirit. Exclusion of testimony; suppression of the truth are its grand characteristics, punishable in the case of a single individual, when infesting every portion of the law; approved as one of its most important rules. The witness who from feelings of compassion,'

1 In some conceivable cases, of course a violation of property, as larceny may have taken place, and the individual may not know so well who committed the crime as some other person, but still the argument remains in undiminished force in all cases, when he does know. The violator of the rights of others always knows, however reluctant to relate.

2 Whether a criminal escapes by reason of exclusionary rules, or the law should in certain cases authorize and prescribe perjury, would be a matter of form merely, not of substance. The English law adopts one, the Hindoo law the other course. The evil, however, is of limited extent in the latter, while in the former, it extends thoughout all its domains. 'Whenever a true evidence would deprive a man of his life, in that case if a false testimony would be the preservation of his life, it is allowable to give such false testimony and for ablution of the guilt of false witness he shall perform the Poojeh sereshtie: but for him who has murdered a Bramin, or slain a

:

in a single case suppresses the truth only follow the example of the law. Suppression either by the law or by a witness. differs only in the extent of the evil inflicted. In the one case a single individual may suffer unjust or escape just punishment; in the other, the evil pervades the whole community. He then, who, wishing to see the law enforced, adopts exclusionary rules of evidence, most effectually prevents the attainment of his own wishes.

No line of distinction can with safety be drawn between the rules of evidence in criminal and civil procedure. Whatever, in the one, elucidates the truth, cannot fail, of being conducive to similar results in the other. Reform in the existing law being the object, an examination of the law as it is, or its several subdivisions, becomes necessary. Not enough is it to notice the bizarre and incongruous state of any portion considered by itself; but its relation to other branches must be considered, for its absurd and contradictory provisions can only be seen by contrasting one portion with another.

In criminal suits, then, as in all others, there are always two at least, who have an interest in the result: the prosecutor and respondent; the party inflicting, and the party receiving the injury. Though the suit may be in the name of thegovernment, yet the real moving mind, the inspirer of the whole process, is generally the party who purports to be injured. The prosecutor, when not the party injured, has still an interest of some sort; else, why does he assume the burdensome expenses and onerous labors of the prosecution.' Either ill-will or a pecuniary interest must ordinarily have induced the prosecution; and to the vision of an unlearned man the former would be considered the most likely to lead the witness astray. The prosecutor, whether he be the party injured or not, has at any rate, in the cases to be cited by way of illustration, a pecuniary

cow, who being of the Bramin tribe has drunken wine, or has committed any of those particularly flagrant offences, it is not allowable to give false witness in preservation of life.'-Halhed's Gentoo Laws.

'In the English law, the prosecutor, in a vast many cases, is himself responsible for the costs; which in some instances are so burdensome as almost to amount to a denial of justice. 1 Chitty's Crim Law, 486, 671. Lord Brougham, in his speech on Reform of the Law, states an instance, when prosecutors costs were £10,000; p. 58.