other gaming, it sometimes rages in persons of a higher grade, and produces in them also its destructive effects. Now it is the duty of government to encourage good morals, to which nothing is more conducive than habits of industry. On this principle alone, and more especially if it is found, that lotteries attract the idle and inconsiderate into a vain and foolish expense of time and money, tending to the impoverishment of their families, and destructive of the common good, we cannot doubt, that it is the right and duty of government, in their wisdom, to restrain them, or to prohibit them altogether.

Whether, at this day, there is in England any lottery authorized by law, does not appear from this volume. We believe, however, that the public sentiment there, as well as in New York, Massachusetts, and some of the other states, is highly favorable to putting an end to all gaming of this description under the form of law. And all that is wanting to give effect to the existing law on this subject in Massachusetts, is the decided co-operation of a virtuous community, on which more depends to give efficacy to the laws than is generally supposed. For it is not to be expected, that public officers, though eminent for good morals in private life, and even zealous in the discharge of public duty, are not rendered more diligent by knowing that the public eye is upon them, which, while it requires, is ready to applaud their fidelity.

It was not till the year 1702, that, in England, persons called as witnesses for defendants on trial for treason or felony were permitted to be sworn; nor is it, even to this day, allowed to a party on trial for felony to have counsel, excepting in matters of law arising in the course of his trial. But the privilege of counsel was always allowed to persons on trial for a misdemeanor. Why counsel should be denied to a party whose life is at stake, and allowed in a case affecting only his personal liberty and property, is not very intelligible, unless it was meant as a declaration from the highest authority, that the latter were to be considered of more value than life. The principle on which this denial is grounded is, that it is not necessary for the prisoner to have assistance as to matters of fact, but he is to defend himself upon the plain truth, which is presumed to be best known to himself, without any dilatory arts or evasions. It is supposed also, that the court is so far of counsel for the prisoner, that it will not see him suffer from want of needful assistance to conduct his defence according to law.

But a knowledge of the law is required to determine what facts are pertinent to a defence, which can only be derived from a confidential communication between the party and his counsel. In many, if not in most cases, the judge is the last person, to whom the party would choose to confide the circumstances of his case; nor would the judge himself be desirous of such special confidence. Besides, a fact may be pertinent at one stage of a trial, which would be properly rejected at another; and hence the skill of learned counsel is wanted to arrange the facts of the defence, and the order of their introduction, as well as to argue the questions of law which may arise in the course of the trial. The anecdote of the Earl of Shaftsbury, the author of the Characteristics, is well known. He was a member of the house of commons, when the bill of 7 Anne, c. 21, regulating trials for high treason, was under consideration. In attempting to utter a premeditated speech in favor of that clause in the bill, which allowed to the prisoner the benefit of counsel, he fell into such disorder, that he was not able to proceed. But, having at length recovered his spirits, and together with them the command of his faculties, he drew such an argument from his own confusion as more advantaged his cause, than all the powers of eloquence could have done for' said he, if I, who had no personal concern in the question, was so overpowered with my own apprehensions, that I could not find words or voice to express myself, what must be the case of one, whose life depended on his ability to defend it?' (a)

The constitution of the United States, and we believe that of each of the states, have expressly secured to the accused the privilege of the assistance of counsel in all criminal prosecutions. If such a man as Algernon Sydney was, upon his trial, brow-beaten by his merciless judge, and by an ungenerous interruption, diverted from the true ground of his defence; what other fact is wanted to prove the value of counsel?(b) Indeed, the aid of learned and faithful counsel is not less useful to the court than the prisoner. For it is the duty of counsel to study his case, and to defend him with all zeal and ability, so that neither the judge nor the jury may, through inadvert

(a) 2 Ralph's History of England, from the restoration of Charles II. to the death of William III. 613, in note.

(b) See the account of this trial in 9 State Trials, Howel's ed. 818, and in Ralph's History of England, vol. I.

ence, or from any other cause, suffer any thing to happen to their client which is not warranted by law and right.

The statute of 9 Geo. IV. c. 32, authorizes the affirmation of Quakers and Moravians to be taken in evidence in criminal trials as well as in civil actions. It also permits, in cases of forgery, the party whose name is forged, or who has an interest in the deed or writing charged to be forged, to be a witness. Prior to this statute such person was deemed an incompetent witness, by reason of his supposed interest in the event. In the trial of Henry Fauntleroy, Esq. at the Old Bailey, October 30, 1824, before Justice Park and Baron Garrow, for forging the name of Miss Frances Young to a power of attorney, under which he transferred £5450, long annuities of her money in the stocks, before she was admitted to be sworn as a witness, the counsel for the prosecution proved, that the Bank of England had replaced the stock, of which she had been defrauded by the prisoner; it being absolutely necessary to show, as the law then was, that she had no interest in the prisoner's conviction, before she could be allowed to testify, that her signature to the warrant of attorney was a forgery. This rule of exclusion has been repeatedly considered by eminent judges in England as an anomaly. (a) The remarks of Kent, C. J., in the case of The People v. Howell, 4 Johns. R. 296, show, that though the old English rule on this point was adopted in practice in New York, it was not approved in principle. The ancient rule in England, that a witness whose name was forged, was incompetent to prove the forgery on an indictment, because he was interested in the question, still prevails in their courts, and it was adopted in this court in the year 1794. The ground or reason of that decision are not before the public, and we therefore do not know them. But since that time, the question of interest has been investigated and defined with more precision, both in England and in this state. The rule now, in all such cases, and I believe I may say in almost all criminal cases, except in the case of a forged instrument, is, that the witness is to be received, if he be not interested in the event of the suit, so that the verdict could be given in evidence in an action in which he was a party. The interest which the witness may have in the question is no longer the test. That degree of interest goes only to the credit

6

(a) 4 East, 582, Rex v. Boston. 7 T. R. 60, Smith q. t. v. Prager.

of the witness. The exclusion of the witness, in the case of forgery, has, therefore, now become an anomaly in the law of evidence, for it is certain, that the conviction of the party charged with forging a check, cannot be given in evidence in a subsequent civil suit on the check; and as the reason of the old rule has ceased by a sounder definition of the question of interest, and as it is now applied to other criminal cases, it would seem to be fit and proper, that the rule itself should no longer be applied to the case of forgery.' In Massachusetts the anomaly never existed, the person whose name is forged having always been deemed there a competent witness to prove the forgery in a criminal prosecution. In the case of John Searle, who was tried for forgery in the Supreme Judicial Court, in Suffolk, February term, 1802, before Paine, Strong, Sewall, and Thatcher, justices, the court refused to hear an argument from Mr. Otis, who was counsel for the prisoner, whether Giles Alexander, Jr. whose name had been forged, was a competent witness to prove the forgery. Judge Paine said, that it had been repeatedly settled, upon argument, that the person injured was a competent witness, and that his interest in the question went only to his credit. [MS.]

A point of evidence is settled by 9 Geo. IV. c. 31, s. 18, on the necessity of which, in order to complete the crime of rape, there have been conflicting opinions. It is now declared not to be necessary, in any such case, to prove the actual emissio seminis, in order to constitute a carnal knowledge, but that the offence shall be deemed complete upon proof of penetration only. The like proof is now declared sufficient to sustain an indictment for rape in the state of New York. (a)

As we derived the originals of our law from England, and are accustomed to regard the decisions of their courts with the highest respect; we shall detain our readers to point out some new provisions on the practice in criminal cases; and it is undoubtedly true here as there, 'that the technical strictness of criminal proceedings may in many instances be relaxed, so as to ensure the punishment of the guilty, without depriving the accused of any just means of defence: and thereby the administration of justice may in other respects be rendered more effectual.' And here we may remark, in pass- · ing, that in England justice is administered in the most public

(a) 2. Rev. Stat. 734.

manner, both for the sake of the example and that the law. may be known. The people there have always required their courts of justice to be held in places known and accessible to all the community. In the administration of the criminal justice, too, all the citizens, whether rich or poor, learned or ignorant, have a personal interest. And therefore, if a court of this description should be held in a retired or in an inconvenient situation, so as to be a frequent subject of complaint from the mere circumstance of its location; the government would, we think, find it for their interest as well as their duty, speedily to remove such cause of complaint. In this respect, too, their example is worthy of imitation.

No indictment is now liable to be abated by reason of any dilatory plea of misnomer, or want of addition, or of a wrong addition; but the court may amend the same, and require the party to plead. 7 Geo. IV. c. 64, s. 19. It was decided by the twelve judges in 1822, where a prisoner refused to disclose his name, that he might be indicted as a person whose name was unknown, but who was personally brought before the jurors by the keeper of the prison. Russ. & Ry. 489.

Where the names of all the owners of the property in the case of partners and other joint owners, are not known, it is made sufficient in an indictment to name one of such partners, and to state the property as belonging to him, and another or others.' 7 Geo. IV. c. 64, s. 14.

No indictment or information may now be stayed and reversed for omitting to state the time at which the offence was committed, in any case where time is not the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or exhibiting the information, or on an impossible day, or on a day that never happened. Ib. s. 20. If a person upon his arraignment for any offence, shall stand mute of malice, or will not directly answer to the indictment, the court may order the clerk to enter a plea of not guilty, which shall have the effect to put him on trial, as if he had actually pleaded to the same. 7 & 8 Geo. IV. c. 28, s. 2.

It is made lawful for every court of record, to cause the record on which any trial may be pending in any civil action, or in any indictment for a misdemeanor, when any variance. shall appear between any matter, in writing or in print, produced in evidence, and the recital thereof upon the record