Lapas attēli
PDF
ePub

stances.

Nor do the species or number of motives afford a sure ground of inference, for individuals are as diverse in sensibility as in character, and a motive, which, with one, might be all powerful, with another might exert an influence scarcely perceptible. Fear of shame might restrain one individual, while with another, it might be weak and inefficient in its action. Equally variant, as far as the same individual is concerned, may be the force of any given motive at different times and under different circum

Motives of strength today, in one direction, may tomorrow lose their power, or their force may act in an opposite direction.

There are, then, no motives acting with a uniform tendency, nor with the same force on different individuals, nor even on the same individuals at different times. They are not, like the levers and pulleys of mechanics, the subjects of precise and close calculation. The heart of man is not subject to inspection, his motives to knowledge, nor his passions to measurement. The conduct of an individual will depend on the comparative number and strength of the motives respectively leading to truth or falsehood, and on his sensibility to their action. Attention to one motive, or the number of motives, only, might lead to error. Though it were certain, that any one motive of great power, or any number, were acting in favor of mendacity, still, unless the opposing motives, and the sensibility of the individual in relation to these motives respectively, were taken into account, it is obvious, the conclusion would be erroneous. Probity is, in truth, in respect to giving testimony, as in other cases, rather relative than absolute. Absolute certainty is unattainable. One individual is better, his statements more credible, than those of another; but of no one can it be said, that every thing he utters will be true, or will be false, any more than that every thing he may

do will be right or wrong. Truth or falsehood can never be foreknown; and no one, for any supposed probable results of his testimony, should be excluded.

It is utterly impossible to form any well-grounded prediction as to the truth or falsehood of the statements of any witness, from the mere fact that he is exposed to the action of this or that motive. How absurd then the law, that, even without any survey of the circumstances in which the witness is placed, without any knowledge of his character, without the trouble of an examination to ascertain, as far as is ascertainable, those facts, by a rigid and unbending rule, excludes, condemns, the individual without hearing him.

But improbity in no one form, and in no one form more than another, should be presumed. Whatever reason there may be to anticipate perjury in any individual in the suppport of any claim he may have, when called on to give testimony in support of that claim, there is equal reason, neither greater nor less, to suppose that, for the same interest, with an equal chance of escape, he would suborn witnesses and forge a deed. All interest being to be supported by dishonest means, or rather by the law presumed to be so supported, false testimony will be no more likely to be resorted to than any other form of improbity, only as it seems more or less likely to promote the dishonest ends proposed. And if perjury be so probable, and be presumed to result from so slight motives as we shall see that it is assumed to result from, in parties and in witnesses, it would be but a necessary and proper extension of the rule of supposing improbity, to presume all parties suborners; for the difference of crime is trifling, and if the party would perjure himself, he would suborn others, and all witnesses thus be suborned. If an interest of one shilling is to be the ground of presuming perjury for the purpose of exclusion, there seems no reasonable doubt that those who would forfeit their integrity to retain that sum, will do the same to acquire a greater. Upon this principle all testimony would be excluded. The reasoning by which one form of improbity is presumed, is equally applicable to every other; and he who anticipates perjury as the common and ordinary course of all who have any interest in dispute, should not scruple at the further extension of his own reasoning.

But whatever other exclusions may be proper, pecuniary interest, the only interest of which the human mind is susceptible according to the universally received and generally accredited canons of the common law, is manifestly an improper ground for the rejection of testimony. Pecuniary interest, as before remarked, can hardly be supposed to act in all cases adversely to the truth. Whenever it acts in coincidence with the truth, whenever it is consistent with, and is supported by, the truth, the greater the interest, the stronger the guaranty of veracity. But suppose the only case where there is the least pretence for

exclusion, namely, that in which interest acts in a direction adverse to the truth. Still is it preponderantly probable that for this one interest all others will be disregarded? The witness testifies under circumstances seen by all, and known to himself to be considered by others as pregnant with suspicion, and exposing his statements to doubt. He knows his statements will be thoroughly canvassed; that in proportion to his interest at stake, will be the watchfulness and suspicion with which they will be received; and with this knowledge of the thoughts of others, falsehood will be seen by him to be, as on all occasions, a path beset with difficulty and danger, and one eminently and peculiarly so in this. Is it, then, so very preponderantly probable that all, rich or poor, with so many motives, loss of reputation, fear of punishment, &c. deterring, will, to promote this one end, and under circumstances so obviously exposing them to suspicion, commit wilful and deliberate perjury, and that for any sum, however small? And that they will be more likely to do this to obtain any sum, however small, than to promote the interests of those with whom they are united by the nearest ties of connexion, or even to preserve life? In proportion to the extent of the interest, and according to the relative situation of the witness, will be the temptation to swerve from the truth; but be the interest ever so great, it can never be certain that he will so do; while that he will not so do, the probability is perpetually increasing with the diminution of the sum. render the witness exposed to its action less deserving of belief than one not so situated; it may expose his statements to suspicion; but of the credence to be given, of the deductions to be made from them for this cause, the judge or judges of fact are as competent to form an opinion, as when, for other causes, similar allowances are made.

Whenever the testimony of an individual interested, is rejected, that evidence being necessary to a just result, a certain evil, misdecision, is the inevitable consequence. The evil falls on, and is suffered by the party in the right, and who, by this exclusion, is deprived of what properly belongs to him. Is it on the part of the plaintiff that this evidence is necessary to substantiate his claims? by its exclusion he suffers the only evil that is apprehended, namely, misdecision; the very evil, to prevent which, the witness is rejected.

It may

Doubtful as it may justly be considered, whether every interest will lead to perjury, or whether for every interest, every individual will perjure himself, still more doubtful is the only real evil which can result from the admission ; namely, that it should be to the prejudice of the party having the right; for if admitted, and the proper credit only be attached to it, no evil whatever follows.

But what is the danger of so disastrous a result? What greater danger of deception is there in this, than in any other case of testimony exposed to suspicion from other causes? It should be ever remembered that the danger of deception is not as the danger of falsehood, at any time; still less so when the danger of falsehood is perceived. The more probable it is that any individual will testify falsely, the less likely is it that the falsehood of such individual will deceive. Falsehood is most dangerous when most unexpected. The more obvious the danger of perjury from interest, the less the danger that such interested testimony will prove deceptive. Pecuniary interest, as all see and know, acts with force. All believe this, and take precautions to prevent testimony, coming from such a source, from producing too great an effect on their minds. Fear or enmity, love or hate, or revenge, any of the passions, are infinitely more likely to lead to deception. They may exist and act, and yet their very existence be unperceived. The effect of love or hate is unknown; there is no mode by which their strength can be measured, or the sensibility of any one to their action be ascertained. A cloud covers them, and conceals them from human inspection. We have no index by which to measure the intensity and activity of their power. Of money, its strength as a motive, is, in the same individual, in proportion to its amount; and in different individuals, in proportion to their relative susceptibility to the influence of pecuniary motives. From a million to one dollar, or to one cent, there is an infinity of subdivisions and of pecuniary interests and motives. There is wealth, from any, the

greatest, to any, the smallest sum; from that of Creesus to that of his poorest subject; and the force of the motive arising from the same amount, will vary in proportion to the situation and character of the individual exposed to its action. The individual whose income is a million per annum, and he whose life is supported from day to day by begging, will not be equally affected by the motive to save or gain a dollar. The old

[ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors]

woman who sells apples at the corner of the streets, knows the difference between two and one, in reference to cents, dollars, or millions of dollars; that two dollars, or two millions of dollars will be more objects of desire th one dollar or one million of dollars; she knows that the price of half a dozen apples would be regarded differently by herself and by the rich merchant who passes by her; that while the loss of a dollar would be felt by her as a serious matter, the man of millions would not regard it. All this she knows, and every body knows, save and except the judge, who considers the motive to save or gain any sum, more or less, a million or one dollar, as having the same force on the the minds of all individuals, from kings to beggars; and that force to be infinite. While pecuniary interest is thus seen, and its force as a motive, and the susceptibility of any individual to its influence may be estimated with very considerable probability, and while most other motives are involved in uncertainty, or shrouded in darkness, is there a good reason for sweeping off, by one indiscriminating rule, all interested witnesses, without any distinction as to the amount of their interest, or its probable influence as a motive? Is the danger so great that with circumstances, written legibly in figures on his forehead, the witness would obtain undue credit with the judge, who is so acutely sensible of its force, as now to exclude the witness; or with the jury, who themselves know the value of money, and the influence of the motive, and who would be cautioned by the judge, and warned by counsel, of the danger of falsehood? Would there be such magic in the testimony of one thus subject to suspicion, that all would yield to its influence? The judge, the jury, all, see the danger; all know that money has power over the mind. There is no judge or juryman by whom this motive will not be seen as having weight, and who, seeing this, will not be guarded against this evidence. Is there so great danger, then, that they will fall into the error of giving this evidence undue and improper credence? Is there any, the smallest reason to believe that the testimony of an interested witness cannot be weighed and compared, as well, nay, much better, than that affected by the interests of social life? If the testimony of those thus affected, is, and has been admitted without evil, is there any shadow of a reason to anticipate any pernicious consequences from the admission of this? If the judges of the law or of the facts were sufficiently

« iepriekšējāTurpināt »