innocent until he is proved guilty, so long as we refuse him the opportunity of disproving the offence imputed to him. Though the great majority of all cases preferred in our criminal courts are founded on real guilt, there is a balance of charges which are unfounded. And though the balance be ever so small, the few men and women as yet unstained by crime, which it includes, have a solemn and pressing claim for protection at the hands of our criminal executive. It is for their benefit that the two humane maxims have been brought into our system which declare, that it is safer to err in acquiting than condemning, and that it is better several guilty persons should escape, than one innocent person should suffer. But whilst, to quote a leading authority on this subject, "these rules are often perverted to justify the acquittal of persons of whose guilt no reasonable doubt could exist," * we deny those who are really innocent a recourse to the only means by which they can establish their right to an acquittal.

In Scotland, "the Lord-Advocate has power to direct the procurator-fiscal to include particular witnesses in the Crown list; or, if a representation be made of a very important witness, or a very poor person, an arrangement is made that in the event of its appearing to be a reasonable case after trial, an allowance shall be made."† In America, the expenses of witnesses who are unable to pay their own expenses are paid by the State. In France, the prosecuting officer is empowered to send subpœnas to the witnesses for the prisoner at the same time as to the witnesses for the Crown. But, in our system, the rule is inexorable that no allowance shall be made to witnesses for the defence. The only ground upon which the rule is founded is, that if relaxed, it would be liable to abuse. But the checks we will just indicate, and which are readily at hand, would prevent any abuse of this rule; this rule which presses with such intolerable harshness upon those of all others entitled to protection, the poor who are prisoners but are not guilty. In the first place, only witnesses to facts

* Best, Law of Evidence, Introd. p. 115, 2nd Ed.

† Evidence of Lord-Advocate, Rep. on Pub. Pros., 148.

should be allowed-witnesses to character never. In the second place, full discretion should be given to the examining justices to bind over any witness as to facts in favour of the prisoner, who has been examined before them. Before commitment, and after the examination of the prisoner by the Bench, which we have suggested, he should be asked whether he has any witnesses in his favour, or who can support any statement he may have made. If he should say he has, but that they are not present, he should be remanded until they are summoned, and the Bench will then decide whether they should be bound over or not. Every witness for the defence thus bound over, should be entitled to the same allowances as are made to witnesses for the Crown on their examination before the magistrates, and at petty sessions. In the interval between commitment and trial, it should also be competent for the committing justices, on being satisfied that any one not so included, can give important evidence, to bind such person over on the same terms. But where the committing justices decline to include any witness for the defence, and he attends the trial, it should still be in the discretion of the judge to allow his expenses if he thinks his evidence material. This discretion would control the otherwise absolute power of justices at petty sessions.

These, then, are the reforms which we would urge upon the attention of the legislature:

1. The appointment for each county of Crown attorneys, who should reside in the county town.

2. The appointment of all clerks to justices as deputyprosecutors, with a fixed additional salary.

3. The appointment of Crown counsel to act as assistants to the Attorney-General, in his capacity of minister of public justice.

4. The abolition of grand juries at sessions, and at the central criminal court.

5. The reconstruction of grand juries at commissions of oyer and terminer and gaol delivery, in such a way that only the graver and more important cases shall come before them. 6. The examination, without prejudice, of prisoners charged with indictable offences, on the preliminary inquiry before justices.

7. The examination of prisoners on final trial as to the facts sworn to for the prosecution, subject to careful provisions for their protection against any unreasonable use of this power.

8. The exclusion from evidence of voluntary statements made by prisoners to the officer who arrests them.

9. The production, at the expense of the Crown, of such witnesses as may be judged necessary by the committing justices.

We are conscious that these proposed changes do not in any way meet all the evils which still remain in our system. But, so far as they go, we submit our views with some confidence. Some of them are not new in principle, and all of them are based upon axioms in jurisprudence which are now universally accepted as correct. The chief merit we would claim for them is that they have been contrived with much care and consideration, so that they may fit readily and easily into the existing machinery. Though we have tried, as far as possible, to make each of the changes we advocate independent of the others, we are profoundly impressed with the expediency of introducing them by one measure, in which each may be properly adjusted, so that the whole scheme may be consistent. If thus introduced, we doubt not that our criminal statistics would soon record a startling improvement in the efficiency and precision, and consequently in the humanity, of our system. For it is well to bear in mind that the administration of justice is humane only so far as it is unerring, and exact. One thing is clear, that it is high time that something should be done which will render our proceedings more effective in detecting and convicting crime. It is a grave reproach both to the profession and to the executive, that whilst in the year 1861, only 8 per cent. of those who were bailed or committed for trial on indictable charges in Scotland, were acquitted; in England and Wales nearly 25 per cent., or one

fourth, escaped conviction.* And this reproach becomes still graver when we find that it occurs through defects which can be removed with little difficulty. It would be well that our legislature should be at once impressed with the weighty truth contained in the maxim “minatur innocentes qui pareit nocentibus."

ART. IV. ON THE ECONOMICAL EFFECTS OF THE PATENT LAWS.†

THE HE view of these laws, which I propose to submit to the Society, does not require that I should enter into an historical notice of their origin, or follow the changes which have, from time to time, been made in them previously to the Act of 1852.

The principle of the present law of patents is embodied in the 23rd of James I. The Act of 1852 was one of detail, affecting procedure and fees.

It is hardly necessary to state that the Act of James was passed when legislative interference was believed to be absolutely necessary for the protection and encouragement of our trade and manufactures, and that it is now almost the only statute remaining, in which the principle of legislative protection for the encouragement of manufactures and trade is retained.

A patent is a contract between the Crown (the public) and the patentee-entered into for the mutual benefit of the patentee and the country. The patentee is supposed to be benefited by having the exclusive right of licensing others to use his invention for a term of fourteen years, and the public is supposed to be benefited, by the publication of an

* In Scotland during the year 1861, out of 2,668 persons bailed or committed, only 239 or 8.95 per cent. were acquitted. In England and Wales during the same year, out of 18,326 persons bailed or committed, 4,423, or 24.13 per cent., were acquitted. Summary of Judicial Statistics for Scotland, England, and Wales, in companion to the Almanac for 1863.

†AI Paper read at Edinburgh, October 9th, 1863, before the National Association for the Promotion of Social Science, by W. Hawes, F.G.S., Chairman of Council of the Society of Arts.

accurate description of the invention; by the security the publication affords that the monopolies granted for fourteen years will not be continued beyond that term, or the invention be lost in the event of the death of the patentee before the expiration of the patent; and by the stimulus patents afford to the inventive genius of the country.

It would appear, on the consideration of the first condition imposed upon the patentee, that the care taken by the law to secure the publication of a full and particular description of the invention would afford the easiest means, indeed would encourage rival manufacturers to evade his rights; and it does so operate, not so much perhaps by the fraudulent use of the patented process as by the use of the information afforded in the specification, to produce a similar result in a manner to avoid legal piracy, or by taking up the invention where the patentee left it, believing his plan and process to be perfect, and producing by other means an equal if not a superior result, whereby a contract, entered into as the patentee believed for his security, and in respect of which he fulfilled his engagement, becomes the means of destroying his anticipated advantages.

It operates also in another way prejudicially to the patentee, and most prejudicially in proportion to the novelty and utility of the patent, for no sooner is a new idea patented than a host of patents follow it, covering every possible variety in the application of the same idea to the certain destruction of the property in the patent of the original patentee, which holds no superior position before the public over those of any of its rivals-in fact competition, to avoid which is one of the greatest inducements to take out a patent, is encouraged rather than checked by the practical working of specifications. The publicity originally given to the grant of a patent, by its notification in the Gazette, was supposed to be as beneficial to the patentee as to the public, and, until a comparatively recent period, specifications were only occasionally published in extenso. They were, upon the payment of certain fees, open to public examination in the