cal leader has delivered a speech on public affairs as a guest of the Benchers. The speech of the Prime Minister is all the more noteworthy in that Mr. Lloyd George happens to be a solicitor. Lord Kinnear, a judge of the Scottish Court of Session from 1882 to 1913, died at Edinburgh on December 20th. Born in Edinburgh in 1833 and educated at Glasgow and Edinburgh Universities, Alexander Smith Kinnear was called to the Scottish Bar in 1856, but like many other young advocates, he paced the floor of the Parliament Hall for some years before he attained any considerable practice. At the Northern Bar there has always been a strong leaning towards literature, supported to some extent by the fact that the advocates possess a magnificent library. It has, therefore, happened that not a few young advocates, while waiting for briefs, have devoted some part of their ample leisure to the cultivation of belleslettres. This was so in the case of Kinnear, who contributed several scholarly articles to the Reviews. Kinnear's pen was also turned to law-reporting, and although he probably found less pleasure in recording the judgments of the Court of Session than in writing essays for Reviews, he no doubt discovered that the more prosaic work was also the more remunerative. Kinnear's prospects gradually improved and he rose to the front rank in the profession, reaching the top of the ladder in the crop of litigation consequent on the failure of the City of Glasgow Bank. In the long list of cases arising out of that catastrophe Kinnear was the leading counsel in the Court of Session for the liquidators, and he also appeared in most of the appeals to the House of Lords. In 1881 Kinnear was chosen Dean of the Faculty of Advocates, the highest distinction which his professional brethren could confer on him. In 1882 Kinnear was appointed Judge of the Court of Session, and he sat in the Outer House as a Judge of first instance until 1890, when on the resignation of Lord Shand he took his seat in the First Division of the Inner House as an Appellate Judge. He was raised to the Peerage in 1899 and became a member of the Privy Council in 1911. He retired from the Court of Session in 1913, but continued to take part in the hearing of appeals to the House of Lords. Kinnear was a judge of the best type, courteous and patient as well as learned. While each judge of the Scottish Supreme Court is styled "Lord," that is in almost all cases a mere title of courtesy; but Lord Kinnear was one of the few judges who was also a Peer; indeed he was the only instance of a puisne Scottish judge who, while still on the Bench, has attained this dignity. In Lord Kinnear's case the dignity was conferred chiefly in recognition of his services as Chairman of the Royal Commission which dealt with the constitution of the Scotch Universities. I rather hesitate at mentioning the latest rumour in the legal world, for its falsity may be demonstrated before this letter reaches you. It is said that the post of British Ambassador at Washington is being offered to Earl Reading, the Lord Chief Justice. The exigencies of the war have caused many curious appointments to be made, but to transfer the Lord Chief Justice from the Bench to the office of Ambassador would surely surpass them all. Although Lord Reading's previous visits to the United States have made him familiar with American life and his charming personality would doubtless make him a suitable successor to Sir C. Spring-Rice, such an appointment would still be an innovation, and would deprive the English Bench, temporarily at least, of one of its most distinguished occupants. W. E. WILKINSON. LEGISLATION AFFECTING THE LEGAL PRESUMPTION OF INNOCENCE. A person accused of crime is presumed to be innocent until the presumption is rebutted by legal evidence, whether direct or circumstantial, excluding all reasonable doubt of his guilt.' This presumption is of such long standing that its existence has become unquestionable in the legal mind. It is admittedly one of the most important of all presumptions of law, but it is well before proceeding further to ascertain how it comes to be so important, and to see upon what principle it is based. According to one learned author the doctrine is based upon the well recognised fact, which courts judicially notice, that men generally obey the rules of criminal law, and upon the impossibility of obtaining, and the consequent injustice of requiring, affirmative proof from the accused that he has done so in the particular case. The same author also says that this presumption is merely stating, concisely, the rule that any party, whether the state or a natural person, desirous of redress for an injury who seeks the aid of a court of justice, has the burden of proving the existence, or non-existence of the facts he affirms or denies. It will be noticed how closely related the burden of proof is to the doctrine of presumption of innocence. In this respect it is of more than passing importance. It is generally accepted as a fact, however, that the burden of proof is on the prosecution in a criminal case, and it comes somewhat of a surprise to find the tendency in recent years to throw more and more, on the accused, the burden of proof. Instantly there flashes through the mind the question whether or not this practice has affected, in 1 Russell on Crimes, p. 2058. 2 Underhill on Criminal Evidence (1912 ed.), p. 17. any way, the accepted doctrine in favour of the presumption of innocence. Has it? In answering this question it must be remembered that the legal presumption of innocence is twofold in its application. Firstly, it is to be rebutted by legal evidence. Secondly, the evidence in rebuttal must exclude all reasonable doubt of guilt. 1. THE REBUTTAL. Evidence in rebuttal, as a general rule, must be strictly confined to rebutting or cutting down the defendant's case, and must not be evidence to confirm the case for the prosecution. In recent years, however, a system of obtaining evidence in rebuttal has arisen which is greatly to be deprecated. A situation is brought about which practically necessitates the accused giving evidence against himself. This is done by shifting the onus of proof on to the defendant and extending the facts to be proved by him so as to include ingredients of the offence wherewith he is charged. This is particularly noticeable in legislation governing the sale of liquor. A provision is inserted somewhat as follows: The burden of proving the right to have or keep or sell or give liquor shall be on the person accused of improperly or unlawfully having or keeping or selling or giving such liquor.' At the same time it will be noticed that the gist of the offence is the fact of having, keeping, selling, or giving liquor, which except where authorised by the statute is, actually, an offence. Such being the case, a further situation develops, and the question arises whether or not the accused can be a competent witness for, let alone a compellable witness against, himself in respect of offences against provincial penal laws. To meet this situation, however, a further provision is inserted somewhat as follows: 'On the trial of any proceeding, matter or question under this Act, the person opposing or defending shall be competent to give evidence in such proceeding, matter or question.' In the result the accused has become a competent witness against himself, but to all practical intents and purposes it is hard to conceive any person willingly giving evidence to convict himself. Consequently if he chooses not to give evidence, but relies on the legal presumption of innocence in his favour, and upon the rules governing the burden of proof, he can still require the prosecution to prove a prima facie case against him. It must also be remembered that the making out of a prima facie case does not shift the burden of proof to the defendant, but this remains with the prosecution until the verdict is reached. The defendant is entitled to the presumption of innocence before he introduces any evidence, and this presumption must always remain and be taken into consideration. There should be no conviction unless the State has sustained the burden of proof. To meet this situation, however, the following provision has been inserted in legislation dealing with the sale of liquor: If in the prosecution of any person charged with committing an offence against any of the provisions of this Act in the selling or keeping for sale or giving or having or purchasing or receiving of liquor prima facie proof is given that such person had in his possession or charge or control any liquor in respect of or concerning which he is being prosecuted, such person shall be obliged to prove that he did not commit the offence with which he is so charged.' At last we have arrived at a point where the evident intention of such legislation is plainly disclosed. It is perfectly clear that the accused is desired to give evidence in spite of himself, and not only so but he must prove that he did not commit the offence wherewith he is charged. If the plain ordinary common sense meaning of these words is taken, it surely cannot mean anything other than that the accused must prove his innocence. As yet there has only been taken into consideration that part of the question dealing with the burden of proof, and it still remains to be seen how far this legislation has affected the legal 4 Underhill op cit. p. 24. |