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suffers the vessel to be sold to a purchaser without notice of the claim, that he may forfeit his rights, or may be considered as waiving them, and as relying on the personal responsibility of the master and owner. On the contrary, it appears to me that any considerable delay must endanger his lien. But in the present case nothing of this kind has occurred. The shipper has used all the diligence practicable, and has proceeded to enforce his right at the earliest opportunity. Under these circumstances my opinion is that the purchaser took the vessel cum onere. If this is a correct view of the case, it applies as well to the second purchaser as the first.
It was strongly urged at the argument that the sales were not bona fide, but made with a view of withdrawing the property from the reach of the libellant. I do not place my opinion on this ground; but the evidence is entitled to much consideration in another point of view. Admitting that the sale was bona fide and not colorable merely, the case of the respondent will not be strengthened if it appears that he purchased with notice of the claim, and of the vessel's liability. The first transfer to Jones was to the son-in-law of the owner. Before this sale the consignee gave notice to the master that the vessel would be held to answer for the damages. The knowledge of this is not indeed by the evidence brought home with certainty to the purchaser, but the presumption is very strong that he knew of the misfortune that had occurred on the voyage. On the return of the vessel to this port in December, Jones, who went in her as master, left her at Boston and returned by land, and, before her arrival, transferred the vessel, with evident marks of precipitation, to his brother-in-law, Scott, the present claimant. As both the owner and the master, at the time when the loss happened, were insolvent, these proceedings are naturally calculated to create a suspicion that the intention of the libellant to look to the vessel for his damage, was understood by the parties, and that these transfers were made with a view of embarrassing him in his remedy; and these suspicions are raised into a presumption, when it is observed that the claimant, in his answer, has not denied his knowledge of the existence of this claim. It is true that silence is not to be taken as a confession, but it is equally true that it is not a denial. Qui tacet non utique fatetur, verum est tamen eum non negare. And in a case where a denial might
be of some importance to a party, and when it might well be interposed, his silence, though not construed into proof against him, leaves all the facts, which have a tendency to raise a presumption of his knowledge, pressing upon his case with their full weight.
ART. II.-RULES OF EVIDENCE.
Incompetency of Witnesses from Interest.
In the preceding numbers, we have shown, or endeavored to show, the impropriety of those rules of law, by which, in case of the atheist, the want of one of the sanctions to truth, and in that of the convict, the supposed weakness of all those sanctions, have, even in the absence of all motive to falsehood, been considered as sufficient reasons for the exclusion of their testimony. In the case now about to be examined, a different reason for the rule of exclusion has been given. In all systems of law, men stand excluded to a great and indefinite extent, for no reason, but because they are exposed to the action of this or that species of motive, without any inquiry whatever, whether the motive which excludes, will lead in a sinister direction; or, if leading in that direction, whether there may be opposing motives of sufficient strength to counterbalance this bias; or whether, even if this sinister motive should have an overpowering force, there be any danger that the testimony, being false, will be received and acted upon as true.
By the civil law, which is in force over almost the whole continent of Europe, father and son, patron and client, guardian and ward, are mutually excluded from giving evidence for each other; a servant or dependant is incompetent to give evidence for his master, and the testimony of a friend or enemy is regarded with great jealousy.' In Louisiana, ascendants cannot be witnesses with respect to their descendants, nor descendants with
1 Vide Hein. ad Pan. lib. 22, tit. 5, s. 140, 14.
2 Code of Lou. art. 2260, 2261.
respect to their ascendants. By the common law, those above excluded, are admitted as witnesses, but all those who have any legal, certain, or,immediate interest in the result of the case, or in the record as an instrument of evidence, are disqualified.” And those thus disqualified are excluded from a supposed want of integrity.'
Excluded from a supposed want of integrity!' as if pecuniary rights and obligations- rights and obligations which are the results of law alone can neither be acquired nor retained, but by a sacrifice of all claims to integrity. Does it never happen that such rights are acquired, or, being acquired, are retained, with integrity in their possessor? No matter whether those rights be sought after or retained with or without the aid of courts of law, there will be equal integrity in the individual demanding or retaining; and if an individual will sacrifice, to obtain his objects, all claims to integrity in courts of justice, there is no very good reason to suppose him more scrupulous when out of those courts.
Still want of integrity, unless followed or likely to be followed by perjury, is no sufficient reason for the exclusion of testimony. In the rules for this purpose, to render them proper, the assumptions are, that the interest, pecuniary or other, (for which the witness is rejected) will have an effect adverse to the truth; that is, it is an interest unjustly claimed by the plaintiff, unjustly withheld by the defendant; that the witnesses on either or both sides, if interested for the parties respectively calling them, will, to promote those interests, perjure themselves; and that perjured, they will probably nevertheless be believed, and, being believed,
1 In the Belgic code, recently promulgated, some useful and important innovations have been proposed. The only absolute exclusions are those of the husband and wife of a party to the cause, and all his relatives in a direct line. But the relatives and connexions of a party in the cause in a collateral line to the fourth degree, the presumptive heir or servant of a party, all directly or indirectly (pecuniarily) interested, all persons convicted of robbery, theft, of swindling, or those who may have suffered any punishment that renders them infamous, are said to be reproché; probably referring to the old rule of Roman law, by which the evidence of two witnesses is conclusive (plena probatio) in certain cases; and meaning that a witness of either of the classes enumerated, shall not be a witness for that purpose; that is, of forming a plena probatio with one other witness; but that, for every other, they are admissible. Vide Bentham's Rule of Ev. vol. 5, 745, 746.
2 2 Starkie, 744.
misdecision, to the prejudice of one side or the other, will be the result. It must be considered as preponderantly probably, not that some one or more, but that all these results would ensue from the admission of the now excluded testimony, or else the rule cannot be supported. If, for instance, the interest which excludes, be it social or pecuniary, be in accordance with the truth, the greater the interest the greater the security for veracity, and the less the probability of falsehood. Or, if, in case of the interest under consideration, acting in a sinister direction, there should be motives to veracity sufficient to prevent falsehood; or if, whether true or false, the testimony delivered should receive no more than a proper credit; or if, being false, and yet obtaining credence, misdecision should not be the result; no evil, as far as the ends of justice are concerned, is done.
The conduct of an individual in giving testimony, as in every other act of his life, will be the result of motives; and whether veracity be the result, will depend on the motives to which he is exposed, and on his sensibility to their action. Of the whole field of human action, however trivial or important, there is nothing, which is not the result of motives equally trivial or important. Mental or physical motion is alike caused by some force applied, and it might as rationally be supposed that inert matter would move of itself, without any extraneous force applied, as that any human action should take place, without some motive or interest impelling.
The work of the memory is easier than the work of invention; the difficulty, the labor, of framing falsehood with success-of keeping out of view true facts, and bringing forward false ones, and of making those false ones appear as true, the mental labor attending all this, and the love of ease to prevent, the fear of shame, the disgrace which, as far as the public is concerned, is known and seen to attach to falsehood in general, and to false testimony in particular — the fear of present and future punishment, a fear in proportion to the severity of the punishment present or future, — all constitute motives in every case (the atheist excepted) to prevent falsehood. These motives act with their ordinary force on all witnesses, whether interested or not; and with not the less force, because the individual subject to them may have some pecuniary interest. They act (with rare and casual exceptions and not requiring consideration,) in favor of
truth. Truth, then, will always be the result unless there be some one or more motives acting in a sinister direction with power sufficient to overcome these standing guards to truth. Of this there is the same certainty as that the ball, set in motion, will move in a direction and with a force corresponding to those of the impelling power.
But of the motives affecting human conduct, whether in giving testimony or in any thing else, there is no one which acts in a uniform direction; no one which may not act equally for the promotion of truth or of falsehood. Take the case of a person on trial in a criminal prosecution, who is excluded, because, from a wish to preserve his own life, it was supposed he would, if admitted, perjure himself. If the individual so rejected were innocent, every word he utters being consistent with other facts. in the case every truth he states being corroborated by truths uttered by others, - will aid him in proof of his own innocence; and falsehood being known and universally considered to be a sign of guilt, by this very motive of self-preservation he will, being innocent, be induced to utter the truth. If guilty, fearing, dreading the truth, knowing that by its utterance his doom is sealed, he is driven to falsehood as the only means of escape. Filial affection, the father being in the right, will act in coincidence with and be promotive of the truth; he being in the wrong, the same motive will act with a tendency adverse to the truth. So, too, of every other motive to which the human mind. is subject, there is no one which is not capable of acting in a direction favorable or adverse to the truth. No individual, then, should be excluded, because he is exposed to the action of any given motive.
Neither can a certain inference be drawn as to the truth, from the number of motives to which a witness may be exposed. The motives on one side may be weak and on the other strong to any degree of strength. Suppose half a dozen motives acting in favor of truth, yet they may all act with so feeble a force as to be overcome by some one motive acting with extraordinary activity in a sinister direction. If, then, in case of six acting in favor, and one adversely to the truth, the inference drawn from numbers merely, that truth is the result, is not conclusive; still less probable is the opposite presumption, that of the preponderance of one motive over the opposing six.
VOL. VI.-NO. XI.