goods were delivered to the carrier, and the money paid over; admitted from necessity, as otherwise there would be no one to tell a falsehood to the prejudice of honest men. A strange necessity! to call the presumed rogue for the purpose of depriving innocent men of their property.

Necessity! If interest be so pregnant with danger to the cause of truth, there is no necessity, which can justify the admission of evidence from which falsehood and injustice will probably result, without at the same time justifying falsehood and injustice. Necessary! The veriest child knows that evidence, from the force of which deductions will be made, will never be introduced, except from a necessity more or less cogent; so that if necessity be a sufficient reason for admission, the rule is at an end.

But under the head of interest from the record, there is one case so truly remarkable, that, though hardly belonging to this branch of the subject, it ought not to be passed by without observation.

When the witness would, by the acquittal of another, discharge himself, he is incompetent,' and therefore one indicted as an accessary cannot be admitted in favor of the principal, whose acquittal would secure his own safety. If the supposed principal were innocent, the supposed accessary's testimony, being in his favor, would be true; or, if the supposed accessary were innocent, it can hardly be considered probable, that, being innocent, he will commit an equal crime for the chance it may afford of escape from unmerited punishment; or, if both were innocent, such testimony would be true. It is, therefore, made a presumption of law, for the purpose of excluding this testimony, that the supposed principal is guilty, for if innocent, the testimony of the supposed accessary, if true, must be in his favor― that the supposed accessary is guilty, for if innocent, there is no motive for perjury; and, that being both guilty, the accomplice will resort to perjury, an additional crime, to effect his escape. How in this case, it is possible for the innocent prisoner to obtain the evidence of his supposed accessary, it is not easy to perceive. The inchoate right of being hanged, the accessary would undoubtedly be willing enough to release. But, besides the

VOL. VI.-NO. XI.

12 Starkie, 749.

difficulty of finding one, who, with the release, would choose to accept its attending liabilities, it seems very doubtful whether the law, though it allows very wonderful things to be done by a release, would permit so great liberties to be taken. If the release was to be given to the accessary, though undoubtedly it would be received with joy, yet, who are to give it but the attorney-general or the hangman. If, then, it should seem that no release would be considered effective for the purpose of procuring his admission; the only forlorn hope, in innocence, seems to be, that the accessary should promise to testify against the principal, and when on the stand violate his promise and tell the truth.

If the testimony of the supposed accessary were against the principal, whether true or false, there would be no qualms about its admission. The very self-convicted partner in guilt, ‘under an implied promise of pardon, with an equitable title to a recommendation to the king's mercy,' is every day admitted to testify against the principal. Nay, further, though such testimony were false, perjurious, putting in peril the life of an innocent man, it being for the king, though perhaps not praiseworthy, is, at any rate, not indictable. To the innocent there is no hope. Truth, if in his favor, is rejected without a hearing. Falsehood, if against him, is admitted, encouraged, rewarded. Of a truth his hope must be in God; the laws of his country leave him but little.

7. To the instances above enumerated, might be added the numerous ones, in which the testimony of a party is admitted. In chancery, when in case of fraud, resort is had to the supposed knave for the truth; or in case of evidence on affidavit, and the

1 Such is the fact. Perjury for the king is not punishable. We cite our authority:

'He was indicted upon the statute of perjury, because he was produced as a witness for the king upon a trial in an information and sworn: Setting forth the oath and the falsity: Resolved by the court, that the witness produced and deposed for the king, might not be punished by way of indictment, which is the suit of the king. For he cannot punish his own witness, who swears for him. Wherefore he was discharged.' Croke's Rep. Ab. by Hughes, p. 410. Price's case. Ed. London, 1665. This case has never been overruled, perhaps some would say overrated, but it is extracted literatim from a venerable volume of law. Law is like wine, the older it is, the better is its flavor. This case smacks strongly of age. It may be too old to be good. It is dangerous vouching for law.

They,

other cases, when the party is admitted to testify. however, belong to the subject of evidence in regard to the party.

In all the instances which we have enumerated, witnesses interested have been for centuries admitted, and under circumstances as pregnant with danger as any in which they are excluded; and yet no evil has ensued. In the exceptions to the general rule, which we have just been considering, it has by no means been our intention to object to the exceptions. The rule being bad, the more exceptions, the more violations there are, the better. But of all these exceptions, no single one can be pointed out, which does not, to its extent, show the absurdity of the rule. They cannot consistently both subsist together; one or the other must fall.

But as witnesses do not come into court with the word interested stamped on their forehead; as their form or appearance affords no indication of that fact, it may not perhaps be considered inexpedient to examine the different tests, by which so dangerous an ingredient is detected, and the witness thereupon branded. To effect this, the court have resorted to two modes; one, by which the evidence is obtained from the witness on his voir dire; the other, by which it is derived from other witnesses. But the adoption of either course precludes recourse to the other. Both cannot be employed together. One, unlearned in the law, would suppose that there could be no good reason why all the proof attainable, to one point as well as another, should not be resorted to; nor why, if interest be so dangerous, any species of evidence, by which its existence could be rendered more or less probable, should not be admitted. The reason given in the books is, we believe, that having resorted to the conscience of the individual, you shall be bound. This seems not to be a very intelligible one; for if, having resorted to his conscience, you find he has none, or but an apology for one, why should he be helped to one by a fiction of the law, at the expense of justice, and of one of the parties to the suit?

The test, by an examination on the voir dire, is, upon the principle assumed by the advocates of exclusion, a palpable absurdity, a perfect felo de se. If, on examination, the witness, in reply to the questions put, says he is interested, he is rejected; if, that he is not interested, he is admitted. The general rule is that from interested testimony, there is a preponderant danger

of perjury. Be it so. The witness says I am interested. If this be true, he knows that, by testifying to the truth he will be rejected; and that, being interested, and so stating, he cannot promote those interests for which, if admitted, it is presumed he will perjure himself. If, nevertheless, he testifies truly, by such true testimony he shows integrity when you anticipated total dishonesty; and for so doing the law rejects him. If he says he is interested, when he is not so, then, such testimony being false, he is admitted as a witness. Had the witness, being interested, done what the law supposed he would do after admission, testified falsely and denied his interest, then he would have been admitted unhesitatingly; acting uprightly and disappointing expectation, he is rejected from a supposed want of integrity.' You expect perjury when there is interest, and yet resort to the witness from whom you expect perjury, and consider his evidence conclusive. You consider the evidence of an individual, the probable falsehood of whose testimony, without stopping to listen to it, you make a matter of legal presumption, to be true — true to the exclusion of all other evidence on the question of his admission. If he is interested, and yet honest, and states that he is interested, the law considers him to be probably a perjurer, and he is rejected. If being interested, he denies it, thereby perjuring himself, he is admitted.

If, without resorting to the witness, resort be had to his statements out of court, besides the strangeness of expecting truth from one whom the law considers as probably a perjurer, there is the additional absurdity of preferring hearsay evidence to direct testimony; of preferring statements without, to those with, the sanction of an oath; statements which may be misrecollected or misreported, and which were made without the proper examination, and which, after all, only prove past not present interest, in which latter the danger lies. For though interest once existed, it by no means follows that it now exists.

If the declarations of the proposed witness be considered. conclusive, still the rule is bad. Suppose he was misunderstood, would there be any evil in correcting that misunderstanding?

But to the men of the law extraordinary things are possible. As by certain magic rites and ceremonies in case of infamy, this infamy is eradicated, and the convicted felon stands forth 'regenerated and disenthralled,' a new creature, with all moral

taints and legal disabilities removed, and with a restored and purified reputation; so, too, the law in its wisdom, leaving no evil unprovided for, has established a mode by which integrity may be restored to the witness, who, by some interest, was so unfortunate as to have lost it. It is restored by the sacrifice of the disqualifying discrediting interest. Integrity and interest could not coexist in the same bosom; they are irreconcilable, and the war between them is unceasing.

This restoration of integrity is effected by a release either to or from the witness interested. How comes this release? Suppose the witness without any consideration flowing from, or any understanding with, the party, the 'releasee,' should give him a release of all claims to the interest for which he is excluded; the witness deprives himself of, and invests another with rights, unexpected and uncommanded by the law; and to the extent of the interest so released suffers a loss. And does he do this for nothing? without motive? No, not unless you suppose action not merely without, but contrary to motive. There is, then, in this case some motive superior in strength to that of the pecuniary interest on account of which he was rejected, and to promote which he suffers the loss; to the extent of that interest and the action of a correspondent motive he is still exposed to bias. The devisee being a witness to a will, and of course, before the statute took away his interest, interested to establish that will, must, to be admissible, release his interest, or rather the law itself releases it. If, then, releasing without consideration, without being paid the devise, he was thus deprived of the gift intended him by the deviser, to that extent he suffered, and the will of the deviser was frustrated to do this he must be impelled by some motive superior, though in a degree ever so slight, yet superior, to the pecuniary interest under the will. He was then, to all practical purposes, as to giving testimony, an interested witness. There is no getting rid of this dilemma.

If, to procure this release, any one wishing to establish the validity of the will, should pay the legacy; if the will be established he loses what the deviser never intended he should; if the will be not established, the witness receives what the event shows he was not entitled to, and the person paying, in either event, suffers a loss which the law never imposed on him, and that for