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on their guard against deception from this source, there would evidently be no danger from this evidence. Those, who, without hearing or knowing the evidence, have rejected it as false, excluding all evidence to disprove this influence of theirs, were clearly more than sufficiently on their guard. If, then, watchfulness were substituted for exclusion, and if that watchfulness should be sufficient for the emergency, all the benefit of the admission of the testimony might be obtained without any imminent hazard.

Let, then, the evidence be admitted. If the interested witness, being admitted, is not believed, his testimony has no weight in the cause; it is, in effect, rejected; and the result is the same, in the particular case, as if he had been excluded. Suppose, on the other hand, that the evidence is believed, and is effective for the purpose of affording proof, on which a decision is grounded; then, if it is correctly credited, justice is done, where, without its admission, injustice might have been unavoidable.

If it is asserted that it was improperly credited, the assumption by the person thus alleging, is, that he is a better, surer, safer judge of the truth of testimony he never heard, and of which he knows nothing, than the judge who sees, hears, and examines, and who, after this examination, after hearing the statements and counterstatements of the parties and their other witnesses, yet believes. It would be equally reasonable for an individual to condemn the decision, to which the judge, after a full and patient hearing of the parties, had arrived, without knowing the nature of the claim, or the evidence by which it is supported, or the reasons on which the judgment was founded, as for him to say and decide that testimony, of which he knows nothing, was erroneously credited by those much better qualified to judge. But so says the law; it prefers a decision in perfect ignorance of the testimony, without a knowledge of any part or portion of it, to one with all the information attainable; and not merely prefers, but considers the decision without light as conclusively right, and presumes the one made with light to be wrong.

The rule, in its original establishment, assumed on the part of the judges who made it, a foreknowledge of the future most wonderful, that there was a preponderant probability that all witnesses, who might be interested, would perjure themselves; and

that in all coming time, such would be their own and the imbecility of all future judges, that, to prevent them from erring, the only safe course was to prevent them from hearing. Its continuance by succeeding judges admits the justice of that prescience by which their own imbecility was foreseen and guarded against. In common language the argument ran thus: 'A witness so and so situated, will probably lie. I know this perfectly well, have no doubt of it, and I so inform or can inform others; yet knowing this, neither dare hear him, nor permit others to hear him, lest, hearing, they and I should believe his falsehoods. Therefore I exclude him.'

Were this question now for the first time presented for discussion, it might be unnecessary to pursue the subject farther; but supported as the rule is by the prejudices alike of the legal profession and the public; almost sacred as it is rendered by the venerable dust of antiquity which covers ; a more severe and rigid scrutiny of its vague and shadowy distinctions, of its innumerable contradictions and exceptions, seems to be de- . manded.

1. By the rule now established, any interest, however minute, excludes.

Were it stated in some volume of travels, in a rich, flourishing, and intelligent community, that such was the notorious disregard of truth among its inhabitants, that they would all, or rather it was considered preponderantly probable that all would, perjure themselves for any the smallest pecuniary interest, and that so notorious was this want of truth, that a rule of law, in anticipation of, and to prevent this supposed perjury, had been made, by which all subject to the minutest conceivable pecuniary interest were excluded; that this rule was universal in its application, embracing the rich and the poor, the chief magistrate and the meanest beggar, without the least reference to the character of those so excluded, without even an inquiry respecting it; that this rule had received the sanction of wise and good men of all preceding ages; that it was a part of an elaborate code of laws, which, from their excellence was termed the perfection of human reason; that this was one of the most important and necessary of those laws; and that on its preservation the whole fabric of society depended;-what opinion would the reader form of the moral character of that community?

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Would he not suppose, if this rule were well-founded, that perjury and subornation of perjury were the order of the day? Would he not be on the look-out for a market overt, in which witnesses, with straws in their shoes, would be ready to sell their testimony; or their agent, the auctioneer, would be knocking off to the highest bidder, in this general mart of mendacity, witnesses for civil and criminal cases, in quantity or quality to suit purchasers; and the attorney standing by, examining, like the purchaser in a slave market, the intellectual qualifications of the witness; his acuteness in giving testimony; whether he was a fresh one, just entering the lists, with a maiden modesty and with untarnished character, or a veteran in judicial contests, with a worn out and ruined reputation, but with hardihood and impudence unrivalled? For, if to avoid the loss of one cent, an individual will perjure himself, it will hardly be imagined that he will have sufficient moral firmness to withstand the offer of ten cents, the offer of which will be unknown to the public. Whatever opinion might justly be formed of that country, such (if a similar, or rather if the same rule be well founded here,) must be his opinion of his own. Mutato nomine de te fabula narratur. The grave and solemn logic by which this matchless absurdity, or this profound and enlightened estimate of human character, is supported, can hardly be read without a smile. Starkie,' one of the best writers on the subject, and who, in addition to the wisdom of our ancestors, has the accumulated arguments of modern times, uses the following language in advocating the propriety of this rule. Experience proves that some exclusion is necessary; but if exclusion of witnesses actually interested, be, in some cases, necessary, the law must exclude all such witnesses, however trifling the amount of such interest may be; for a general rule must be laid down, and it is obviously impossible for the law to define what extent or degree of interest shall incapacitate a witness; and, therefore, it is necessary to exclude all, who are so interested to any extent; this is the necessary consequence of recognising this exclusive principle at all. The law excludes all who have an actual interest in the event, however minute that interest may be, because it must exclude all or none.'

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Suppose, (the very question in issue,) that exclusion is necessary,' and that the exclusion of witnesses actually interested be'in some cases necessary,' how follows it that the law should 'exclude all or none?' The law should exclude only in those cases necessary, and a partial, by no means proves a total necessity. If there be any point in which exclusion is unnecessary, why in that case exclude? If any point where it is manifestly absurd, why in that case adhere to the rule? The exclusion should be only coextensive with the reason of the rule. If, then, in case of a farthing's interest, it is absurd to say, that to promote that interest, every individual will, or that there is a preponderant probability sufficient to warrant the conclusion that all will commit perjury for that sum ; why, to that extent, for that sum, establish a rule that assumes this fact as its basis, or else it is totally unfounded; for, if no one believes that, for that sum, there is any such probability of perjury; that, from so minute an interest, there is any perceptible danger, then all unite in condemning the rule. If in the case of a penny, a dollar, two dollars, it is absurd and unnecessary, abolish it to that extent. Wherever the rule is unnecessary and useless, or absurd, and so seen and recognised,

abolish it.

But a' general rule must be laid down' and suppose it must, does it follow that it should be laid down so as to embrace cases where its operation is useless and injurious? cases not within its purview, not within the danger contemplated, and to guard against which the rule was established? If the case be not within its spirit, its purview, why, when such is the fact, adhere to the rule? The rule can as well be general at one point as another; but should not assuredly be so general as to embrace cases when it is not needed. A rule may be too general as well as too restricted in its operation, and either evil should be guarded against.

But it is impossible to define what degree of interest shall incapacitate,' and it must exclude all or none. If possible in any case to show the rule unnecessary, to the extent of such proof, it is clearly possible to show what shall not incapacitate. It is evidently possible, if such be the fact, to say, (and if such be not the fact the rule is right,) that one farthing interest shall not be considered and acted upon as conclusive proof of probable perjury, to the exclusion of testimony. But, if impossible to




define if in any given case, of any given sum, it is impossible to say that it will produce perjury to promote the interest arising from that sum-then the very impossibility of saying with certainty what the law assumes as certain, sufficiently certain to be the foundation of its action, is of itself a sufficient argument against the rule. In Indiana,' the general estimate of an average conscience is one hundred dollars; and however ludicrous it may be to make such estimate, and however difficult it may be to show why that sum should be preferred to one hundred and one dollars, yet establish the rule wherever it may be, such estimate is always actually made; and made, under the present rule, at the lowest point possible, predicating perjury of all, good or bad, rich or poor, for the smallest subdivision of property. The law now, (impossible though it may be) actually defines what interest shall incapacitate; and the question is in truth, whether no better line can be drawn, if a line must be drawn. But, if perjury cannot be considered as probable for any the smallest sum, if it be impossible to fix on any sum, then abolish the rule. If there be any given amount for which a witness should be excluded, whenever that amount can be agreed upon as the proper one, then and there establish the exclusion, but not till then and at no other point.

It may not be uninstructive to compare the reasoning by which the admission of the interest arising from the social relations, is justified, with the remarks previously quoted as to the exclusion arising from pecuniary interest. Starkie, in defending the propriety of the admission of father and son for each other, says, 'What would be the consequence of extending the principle to cases where the witness is influenced by the ties of blood or friendship, or by the relations which subsist in society? Where is the line to be drawn? If a father cannot be a witness for a son, must not the same principle exclude the testimony of a brother in favor of a sister? If so, why not that of an uncle in favor of a nephew, of one intimate friend for another? And where is the line of exclusion to be drawn? Would it be possible to define the particular degree of influence or bias which would render the witness incompetent? And if that were not,

1 A law to that effect, in case of parties, we think we have recently seen; that is, before justices of the peace, one hundred dollars being the extent of their jurisdiction. 2 Vol. i. 85.

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