evidence, according to the nature and difficulties of the case," did not perceive that the defect lay deeper; that the rules of the common law were intrinsically defective and vicious, unfitted for the end proposed; that, in reality, it mattered not whether the tribunal was that of a petty justice of the peace or the highest and most solemn tribunal of a great nation; whether the amount in litigation was the penny of the poor man or the wrongs of injured nations; that the ascertainment of the truth, for the purposes of judicial action, was the end alike proposed in each, and the modes of obtaining it most fitting in one case, were equally so in the other.

This report of Burke is remarkable as being the first instance in which this branch of the common law was subjected to the investigation of one not trained in and bigoted to professional pursuits and professional logic. But the time had not then arrived, nor was Burke the man. That entire freedom from all sinister bias and class interest; that utter abnegation of the authoritative force of mere prescription; that deep and all pervading philanthropy; that power of acute, accurate, and patient analysis so necessary in the examination of the subject; that profound and thorough knowledge of the law; that martyr-like devotion to the reform of long estab lished abuses; that fearlessness and enthusiasm in the prosecution of cherished pursuits, were wanting.

In the fulness of time Bentham arose. Bentham, the master in that great work of judicial and legislative reform in which Romilly and Brougham were content to be enrolled as disciples. A profound philosopher, a laborious student, learned in the codes of all nations, sagacious, determined, indefatigable in the accomplishment of whatever he undertook, he devoted days and nights to the great work of judicial reform. Educated to the bar, he knew well the law and could trace his course through its more than Dædalian labyrinths. Leaving the gains of legal traffic and the visions of professional eminence; deserting the field of politics, which lay open to him; filled with the sublime and magnificent idea of becoming the law-giver, not of one nation or people, but of all nations and tongues, the Solon or Numa of humanity, in the vigor of manhood he set himself apart for that great work, the conception of which had awakened his energy and enkindled his genius. Occupying ground illustrious as having been the residence of Milton, if he caught none of his poetic inspiration, and we think no one will suspect him of having wandered in

the to him ungenial fields of poesy, yet it will not be denied that he was blessed with a full measure of his lofty independence, his indomitable love of liberty, and his generous enthusiasm for the rights of man. With "the greatest happiness of the greatest number" as the object to be attained, an end heretofore too little regarded in legislation, he probed to the quick existing laws and institutions. He examined with the utmost thoroughness the rules of procedure and the principles of evidence as developed in the English law. All weapons. seemed at his command; wit the keenest; humor the most felicitous; sarcasm the most biting; logic unanswered and unanswerable. In his great work, The Rationale of Judicial Evidence, he placed its principles upon a firm and solid foundation. The result to which his investigations led him; the result to which all intelligent men who have examined the subject are arriving, is, that all, without exception, all who, having any or all the organs of sense, can perceive, or perceiving, can make known their perceptions to others, should be received as witnesses. Their religious belief or want of it; their character as established infamous by conviction; their relation to the cause as parties, or interested as attorneys, or as husband and wife of those who are parties, should be regarded as circumstances affecting only the greater or lesser degree of credit which should be placed in their statements, but never as sufficient reasons for exclusion. In other words, while the credibility of witnesses should be most rigorously scanned, the question of their competency should never be raised. Such were the conclusions to which, after a most searching analysis of existing laws, he arrived; a result the correctness of which he has established with almost the precision and certainty of mathematical demonstration.

Such are not the conclusions of the common law. Such are not the conclusions of Mr. Greenleaf. Indeed, in a work written for a text book, what is mainly wanted is, that it should be a correct exposition of existing law. The work of Mr. Greenleaf can never be regarded other than as a successful and well arranged compilation of adjudged cases. He seems, however, never to have thought of the law save with the docile and admiring submission of a believer in its infallibility; and the reforms of Bentham would meet with about as much sympathy from him as John Calvin would have received if he had undertaken to exhort a conclave of Roman cardinals to embrace his peculiar dogmas.

As we consider Mr. Greenleaf an able defender of the existing law, and as presenting with great success the results of past decisions and the reasoning upon which they rest, we propose, by examining the general doctrines of exclusion, or particular instances as found in the English law, to give his reasoning as the text of our comment.

It should ever be borne in mind that litigation is rarely foreseen; that it springs up unexpectedly; that no one can foreknow and prepare in advance for the emergency. No one goes around in the ordinary business of life attended by a witness, like a familiar spirit, who may be always ready to see and hear what may occur; nor if any one were thus accompanied, could he be sure of the presence of such a witness when the occasion in which he might be needed should arise.

There is no act the most trivial, no contract the most insignificant, which may not become the subject matter of litigation, or upon which the most important consequences may not depend, the hour of rising, of departing from or returning to our residence, the articles of apparel worn, the road taken, the place of stopping, the individual with whom conversation may have been held, the topics of that conversation, the exact questions put and answers given, all, any, every thing which man has done or which man can do. The infinite variety of human action is only coextensive with the infinite variety of litigation upon which property, liberty, or life may depend. There is no event, no word spoken, no thing done, no motion of the body, no thought of the heart, which, in the eternal chain of antecedents and consequents, may not become matters of inquiry. In vain, then, can one in advance guard his rights. He can not know how they will be jeoparded, nor if jeoparded by what witnesses the facts he may deem of importance may be proved. Whether they be men of deficient or exuberant faith; whether they be men famous for integrity or infamous for want of it-whosoever they may be by whom such facts were perceived, he needs them, and if they be the only witnesses, still greater is his need.

The exclusion of testimony, from whatsoever source attainable, is presumably wrong. The judge needs testimony, else he cannot decide; he requires proof, else he is without the means of correct decision. He might as well resort to the lot, to ordeals by fire, to ordeals by water, to burning ploughshares, to trials by battle, as to attempt to decide without proof. So obvious would all this seem, that one would suppose that resort

wloud naturally be had for information to all to whom the facts were known. To the common lawyer it seemed otherwise. Ordinary men seeking for information, inquire of those who know. Extraordinary men, learned men, lawyers deeply imbued with the wisdom of the past, specially object to inquiring of such.

Exclude evidence material, and unattainable from any other source, for what cause soever plausible or otherwise; exclude evidence, and the judge, to the extent of and in proportion to the importance of the evidence excluded, is deprived of the means of correct decision. Exclude all evidence for any reasons, or for such as have in various instances been assigned, and you compel the judge to resort either to lot or to arbitrary will, not by any means so safe as the lot for the determination of the cause. You deprive him of the very food of justice -pabulum justitia-as Bacon terms it. Justice was beautifully symbolled by the ancient Greeks as blind. Deaf as well as blind she might as well be, if she is to be precluded from hearing testimony. Correct decision, the great result sought for, mainly depends upon the fulness of the facts presented for consideration. Any source, every source, any individual, every individual, no matter who he may be, to whom any portion, however minute, of the facts may be known, should be heard. Scrutinize his testimony as rigidly as you will, but hear it. Because the light of the noonday sun can not be had at midnight, should the farthing taper therefore be extinguished? Because evidence from the best conceivable sources cannot be obtained, shall none be had?

He who would claim that evidence from any source should be rejected, is bound to show satisfactory reasons for such rejection. In his chapter on the competency of witnesses, Mr. Greenleaf bases the general doctrines of exclusion upon the following grounds:

"Although, in the ordinary affairs of life temptations to practise deceit and falsehood may be comparatively few, and therefore men may ordinarily be disposed to believe the statements of each other: yet in judicial investigations the motives to pervert the truth and to perpetrate falsehood and fraud are so greatly multiplied, that if statements were received with the same undiscriminating freedom as in private life, the ends of justice could with far less certainty be attained. In private life, too, men can inquire and determine for themselves, whom they will deal with, and in whom they will confide; but the situation of judges and jurors

renders it difficult, if not often impossible, in the narrow compass of a trial, to investigate the character of witnesses: and from the very nature of judicial proceedings, and the necessity of preventing the multiplication of issues to be tried, it may often happen that the testimony of a witness unworthy of credit, may receive as much consideration as that of one worthy of the fullest confidence. If no means were employed totally to exclude any contaminating influence from the fountains of justice, this evil would constantly occur. But the danger has always been felt, and always guarded against in all civilized countries. And while all evidence is open to the objection of the adverse party, before it is admitted, it has been found necessary to the ends of justice that some kinds of evidence should be uniformly excluded.

"In determining what evidence shall be admitted and weighed by the jury, and what shall not be received at all, or in other words, in distinguishing between competent and incompetent witnesses, a principle seems to have been applied similar to that which distinguishes between conclusive and disputable presumptions of law, namely, the experienced connection between the situation of the witness and the truth or falsity of his testimony. Thus the law excludes as incompetent those persons whose evidence in general, is found more likely than otherwise to mislead juries: receiving and weighing the testimony of others, and giving to it that degree of credit which it is found on examination to deserve. It is obviously impossible that any test of credibility can. be infallible. All that can be done is to approximate to such a degree of certainty as will ordinarily meet the justice of the case. The question is not whether any rule of exclusion may not sometimes shut out credible testimony; but whether it is expedient that there should be any rule of exclusion at all. If the purposes of justice require that the decision of causes should not be embarrassed by statements generally found to be deceptive or totally false, there must be some rule designating the class of evidence to be excluded. And in this case as in determining the ages of discretion and of majority, and in deciding as to the liability of the wife for crimes committed in company with the husband, and in numerous other instances, the common law has merely followed the common experience of mankind.”—pp. 376, 377.

Such are the reasons by which Mr. Greenleaf would justify the general doctrines of exclusion. They are fairly stated by him. They are all the law has to give. Are they well founded? Let us examine them.

The main business of life is in hearing and reasoning on evidence. Judicial action-decision upon proof-is an every day affair. Evidence, proof, testimony, is the same; whatever