the occurrence or non-occurrence of a penury, must, though it depends upon matter of fact, always be determined, as a condition preliminary to the admission of evidence, by the Court. This gives rise to a sort of parasitical suit grafted on the principal one; which last may be buried under the first. And as the existence of the penury resolves into a mere matter of opinion, it is impossible even to conjecture what the result may be. There is no occasion on which counsel are more completely at fault, than when they are asked, whether the Court will, or will not, hold that there is a penuria testium. In the third place, supposing these circumstances to be got over, what can be more absurd than the principle of the remedy? If relations be excluded because they are presumptively incredible, it is plain that their incredibility must necessarily increase in proportion as the absence of other witnesses diminishes the checks upon their falsehood. A case where there is a penury of other witnesses, is the very one in which they can go wrong with the greatest safety, and with the greatest effect. These are the very occasions on which, according to the principle, they ought to be altogether excluded. -a rare Another example of what these impracticable interdictions of truth lead to, is afforded by a thing called The Option, which sometimes makes its appearance in our criminal courts ;production, of which we can find no specimen in the museum of any foreign collector of legal curiosities. It is this. Relations, as we have said, are admissible for and against each other in criminal cases. But even here there is a conditional exception in regard to parents and children. They are neither prohibited from bearing evidence against each other, nor can they be compelled to do it; but the rule is, that they just do it or not as they like. We can scarcely expect to be credited in making this statement; and, therefore, we may quote the authority of Mr Baron Hume, who, in that part of his Commentary' which treats of evidence, says, We will not compel the child to bear ' evidence against the parent, if he feel that just repugnance to 'such an office which may tempt him to commit perjury ;—yet is he a receivable witness, if he be willing.' His exercising this discretion is called The Option. Now, the meaning of this option is, that a son is admissible against his parent, whenever he chooses to avow in open Court that he has no objection to be admitted. Can any thing be more evident than that this avowal ought to be a reason for rejecting him? Probable credibility is the only true criterion of competency. But the law, as it stands, permits a person to keep himself back, who, by the very act of doing so, evinces the possession of that moral sensibility, 6 which is the proof of his fitness to testify; and it admits a monster, who, by proclaiming that he is not unwilling to assist in executing his own father, shows that no credit is due to him. If any thing could aggravate the absurdity of this, it would be the subsidiary rule which the inventors of the Option have been obliged to introduce in the case of children so young that they cannot exercise any legal discretion. It is held that they can, in no case, be witnesses against a parent. The principle of this is, that they are too young to be trusted to say whether they be willing or unwilling to come forward as witnesses; yet, the next moment, these very children are quite competent to be examined for or against any body else. The result of this is, that they are old enough to instruct a Court by their evidence, but not old enough to determine whether they shall choose to hang their own fathers. The only remedy for these follies is, to pass a statute, declaring that, except in the case of Husband and Wife, relationship shall be no objection to the competency of any witness. There are other two things which it would be as well to correct at the same time. One of these is a rule against ever asking a witness what account he formerly gave of the transaction he has been speaking to. We are aware that the competency of such a question must often depend on circumstances; and that it would require to be duly fenced by conditions and precautions. But, at present, the whole line of such enquiry,-almost every question whatever, is excluded. We cannot admit that this rule is absolutely fixed; because, although it is familiarly enforced, it rests upon no authority beyond that of careless practice. But, undoubtedly, the tendency is to exclude the whole investigation. It is vital to justice that this feeling should be corrected. The notion upon which it rests, is, that every witness should enter the Court free, as it is called; that is, unrestrained, and at liberty to tell any story he pleases. If this merely saved him from being asked how he came to make any particular statement before the examining magistrate, it would be quite right; because with us these examinations are not public, and it would never do to bring a witness into Court, who was fettered by a written statement said to have been made by him privately, and on compulsion, before any magistrate, however respectable. But our rule goes far beyond this. It makes the witness not only free in giving his testimony, but free of one of the best tests by which its falsehood may be detected. In the business of life, there is no such criterion of veracity as consistency of state. ment. Hence, the most common, just, and conclusive reason for disbelieving the maker of a statement, is, that he made the very opposite one the day before. But a witness in a Scotch Court could not be asked, in any form, or under any qualifications, whether he had not said, or perhaps even sworn, the very reverse an hour before he is examined. The effect of this is, that one great criterion and check of falsehood is absolutely cut off. many The other point requiring reconsideration, is the useless, timeconsuming maxim, that in every case all the witnesses must be examined out of the presence of each other. Mr Baron Hume mentions it in praise of our system, that "The witnesses are examined out of the presence of each other, which obviates any risk of a combination against the prisoner; and, after being examined and dismissed, no witness can again be called on to explain what he has said, or to supply omissions." These seem to be very odd topics for commendation. We are aware that of our countrymen have an idea that there is something magical in this separate examination of witnesses; but they are mistaken. There may be cases in which it may be useful; which the Court can always settle when applied to. But, in general, they should be confronted. Their being examined in presence of each other, instead of facilitating conspiracy, is the greatest possible impediment to it. Try this by the practice of ordinary life. Whether is it found that men err or falsify most when they tell their stories in the absence of those who can correct them, or when they see such persons standing before them, and know that they are to be asked next? The chief thing that agitates a false witness is the sight of true ones: and even though they be all false, still the very desire of all to coincide in the same tale, is almost sure to withdraw them from the naturalness of their own independent lies, into that circumstantial unity which is one of the best marks of concert. Yet, such is our present horror of one witness knowing what another has said, that if one of them, after being examined, were to go, even by mistake, into the place where the others were confined, this would be considered as a formidable, or more probably, as a fatal objection to all the rest, who would be thought to have been corrupted, or at least exposed to corruption, by this opportunity of communica tion. We cannot close these few remarks on one branch of our law, which remote accidents have made defective, without stating that we adhere to the account we formerly gave of the gene * *No. CI. Art. 5. ral excellence of our system; and of the reasons which we had to be proud of it in comparison with almost any other code, and especially in comparison with that of England. Our opinion, indeed, upon this subject, has received the strongest possible confirmation since the article we refer to was published. Since then a great number of statutory changes have been made, and several more recommended by Parliamentary Committees, both in the laws of England, and in its system of deeds, and forms of proceedings. It is sufficient to refer to the various alterations which have been suggested or introduced in certain parts of pleading, in bankruptcy, in arbitrations, in the production of documentary evidence, and examinations on commission, and in the establishment of county courts. The extent and minuteness with which these improvements coincide with rules with which we have been long familiar in the law of Scotland, is remarkable. It is so remarkable, that a person not disposed to study the details of the recent English measures, but wishing to know what they come to, will, in general, be nearly quite safe in asking what the law of Scotland is, and in presuming that, in their principles and objects, they are henceforth to be the same. Not that the law of the one country could ever be merged in its details or its practice, in the law of the other; or that Scotland has been directly taken as a model for any thing English; but that there are certain departments of law, in which nations, pursuing the same objects, under the guidance of common sense, must in a great degree end in the same general results. Yet it is while we occupy this proud position, that certain persons in our own country are smitten with the itch of legal innovation; and, at the moment when our principles and forms are virtually copied by our neighbours, are proposing to withdraw from our system the very things which they are adopting. It would be doing the projects we allude to far too much honour to examine them. They are the result of ignorance, often combined with selfishness. It is another proof of the sagacity of the eminent person who, as Lord Chancellor, presides over the law of the empire, that on the only opportunity he has bad of intimating his opinion upon the subject, he has announced himself hostile to these shallow schemes,-declaring that, whatever amendment the law of England may require, he is not aware of much that the law of Scotland admits of. ART. VI.-Faust: a Dramatic Poem by Goethe. Translated into English Prose, with remarks on former Translations and Notes. By the Translator of Savigny's "Of the Vocation of our Age for Legislation and Jurisprudence." 8vo. London: 1833. W HEN the patent was first taken out for distilling from the quartern loaf by collecting the spirit which evaporates during baking, a baker, whose honesty or science (we don't know which) was less than his mother wit, stuck up in his window, bread with the gin in it.' Translating is in this respect not very unlike baking. The world has been some six thousand years in discovering that a great part of the spirit necessarily escapes in the process, and that, of two rival methods, the one which professes to preserve the spirit most, runs the greater chance of being awkwardly and but half performed. The translator of a poem, has his choice whether he will employ verse or prose. Adopting the form of prose, he tells you plainly what you are to expect, nothing more than the substance honestly done into English.' Assuming the outward and visible signs of poetry, he too frequently hangs out false colours. He affects to give the thing itself. Yet so far from a ha'p'orth of gin being left in the manufacture, the whitening alum, and the other fraudulent cosmetics of the trade are generally substituted in its room. A prose translation, designed for a higher purpose than for the use or abuse of schoolboys, is a novelty in English literature deserving of attention on its first appearance. We must have a care, too, that under the necessities of a special case, there be slipped in no hypothesis of the abstract convertibility of prose and poetry. Otherwise our golden numbers, the bright expression of all that is most precious in our nature, might disappear as fast as their false. paper representative multiplied on our hands. We are indebted to the Greeks for most of what we yet know of the philosophy of literature. In their contempt for foreign genius, the notion of translating even a Roman, much less an Oriental, author, never occurred to them. If the Romans are never once mentioned by either Herodotus or Thucydides, we cannot be surprised to learn from Gibbon, that from Dionysius to Libanus, there is not a single Greek critic who condescends to name even Virgil or Horace. In questions of taste the Romans adopted every thing from the Greeks without enquiry or improvement. They imitated, however, more than they translated. Their performances in the latter line appear to have been by way of private practice in composition,as, for example, in philosophy and eloquence; or in order to save |