may be the occasions on which it is obtained, or the uses to which it is applied. Whether it be given "in the ordinary affairs of life" or "judicial investigations," its probative force is the same. The individual-party, wife, attorney, convict, atheist - no matter what he may be, whose statements out of court would be entitled to, and would receive credence, (and " in the ordinary affairs of life" they might receive credence, though it were a party speaking of his own interests, a wife of her husband's, an attorney of his client's, a convict or an atheist of those of others,) would be none the less entitled to belief, because the same statements in relation to the same subject matter should be uttered in open court. "The ordinary affairs of life," all business transactions between man and man, are conducted upon evidence, and the same principles which guide, the same rules of judging and weighing testimony are alike applicable in "judicial investigations" as " in the ordinary affairs of life." Not a day, not an hour passes in which every man is not called to act upon proof without the checks, safeguards, and securities of judicially delivered testimony. The ratio of the value of property or interests upon and in relation to which judicial action is, to that in which it is not required, shows the values thus respectively determined upon, and their difference, and that but a very trivial and comparatively minute portion of the great business of life ever receives or requires judicial interposition. "In the ordinary business of life," were a man to be governed by the rules of the law as to the sources from which alone it would be safe to receive information, he would be thought better fitted for a place in a lunatic asylum, than for the management of his own affairs. Two children disputing, of whom does the father inquire? Wishing to know the truth, does he send his children away, and set himself to gleaning up confessional fragments from his servants? Was there ever a lawyer or a judge so idiotic as to be governed out of court by the rules which are followed in court in the investigation of facts? But if in the infinite variety of human affairs different rules from those adopted by the courts are observed and seen to be observed without prejudice or injury, does it not afford a strong indication that those rules might be adopted in the trial of causes, without endangering the rights of property or the peace of society?

"In the ordinary affairs of life, temptations to practise deceit and falsehood may be comparatively few." Temptations few! Why, they are as numerous as the objects of human desires, as potent as the hopes and fears, the losses and gains of life. "In judicial investigations the motives to pervert the truth and perpetrate falsehood and fraud are so greatly multiplied." How multiplied? How little of what man has or desires is ever the subject of judicial investigation? How rare is litigation to each man. How little of the wealth of the rich or the pittance of the poor, in comparison with the aggregate possession of either, is ever the subject matter of a judicial contest; and if it were, how is the motive to "falsehood or fraud" thereby increased? The same object is no more an object of desire, because its attainment is to be sought through the intervention of judicial action, than if sought without such intervention; nor will there be more likely to be falsehood to allow it in one case than in the other. Multiplication of occasions for falsehood there is not, still less is there of motives. Falsehood in the ordinary affairs of life receives, when detected, only the punishment of public opinion. Judicially uttered falsehood is not merely followed with loss of public respect, but it is or may be followed by the severest penalties of the law. The ordinary motives to truth exist in their accustomed vigor; and to these is superadded the disgrace of convicted perjury. The motives inducing falsehood are no greater because the amount involved is sought to be judicially obtained. Whatever the amount in question, one dollar or one million, the interest is no greater in court than "in the ordinary affairs of life," when the same amount is at stake, the motives to preserve or retain are the same, while new motives, whose tendency is to preserve the witness in the line of truth, are called into action. So that, whatever may be the subject matter-property, character, what not the fact of its being judicially investigated furnishes no additional motives for falsehood, but on the contrary many and important securities for truth not attainable in private life. The fear of punishment, examination, and cross-examination, the checks of adverse testimony, lessen the dangers and diminish the probabilities of false testimony.

"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 impossible, in the narrow compass of a trial, to investigate the character of witnesses." But what then? The argument, if good for any thing, would imply that judges and jurors were to investigate for themselves, and because they would not be able to investigate satisfactorily the character of witnesses, that, therefore, all such witnesses should be excluded. But is this investigation pursued as to those who are received? If not, what is the force of the argument as to those excluded? Suppose it ever so difficult to investigate the character of witnesses. What then? Is it their business? Is it the duty of the judge to descend from the bench, the juror to leave his panel, to investigate the character of witnesses? And are witnesses by classes to be shut out because it cannot be done? It is not done as to those received. Is it not equally necessary that it should be done in one case as in the other? But what is the danger of deception on the part of the judge or the jury? The party active, vigilant, with time and means, will be little likely to permit his rights to suffer from not sufficiently investigating the character of those who may be witnesses against him.

It is said, "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;" but does any argument in favor of shutting out evidence arise from that fact? Of what witness may it not be said, that the judge or the jury may have erred in giving too much or too little consideration to his testimony? If of none, then to what possible case does not the argument apply? What witness should ever be received? Is then exclusion the legitimate inference, or is it that there should be increased vigilance on the part of judge or jury?

"If no means were employed totally to exclude any contaminating influences from the fountain of justice this evil would constantly occur." But is all contaminating influence excluded? Can it be? But what is the evil, the constant occurrence of which is sought to be guarded against? That of inability on the part of judges or jurors to investigate the character of witnesses? That is never done. The judge who should attempt it would be impeached, and the juror who should go about investigating for himself would probably be discharged before he had proceeded very extensively in his inquiries. Is the evil that of believing witnesses unworthy of credit? And is that to be guarded against by excluding all contaminating influences? How can that be done; how know in advance the full effect of conservative influences, and how they compare with those which are the reverse, and on

NO. V.

4

which side the balance will lie, for on that depends the question? Would not that inquiry lead to a multiplication of issues?

"In determining what evidence shall be admitted and weighed by the jury, and what shall not be received at all," the law is founded upon "the experienced connection between the situation of the witness and the truth of his testimony. Thus the law excludes as incompetent those persons whose evidence in general is found more likely than otherwise to mislead juries." The rule is then based on experience of the evils resulting from an admission, at some former time, of the now excluded testimony. But this "experienced connection" is a matter of fact, itself to be proved by testimony - not by reasoning. Mr. Greenleaf would be much puzzled to define that period of the common law, when parties or those interested were received as witnesses, or to show when and why the change occurred, by which they were excluded. This experiment - when and where did it take place; under what king's reign? In which of the Year-books or in the later records of judicial wisdom are "found" those experimental cases, where those now incompetent were sworn to the great subversion of justice, and results so disastrous ensued that legislative sagacity interposed? In which of the parliamentary rolls is found the statute making so great and necessary changes? Experienced connection, - why so far as there has been any experience, it has been of exception to general rules, which were so bad that it was found necessary for the purposes of justice in innumerable instances to violate them.

The true question is, " whether it is expedient that there should be any rule of exclusion at all." That question is nowhere met. The argument of Mr. Greenleaf does not meet it. So far as any inference can be derived from the experience of ordinary life, it is against him. So far as the "experienced connection" is to be considered as a fact - it never existed. He says the "common law has merely followed common experience." If by common experience is meant the experience of other nations, it is obvious that unless their exclusions are the same, and unless, further than that, they have been the result of some "experienced connection" between the admission of the now excluded evidence and falsehood, they furnish no argument in favor of exclusion, and if so based, they furnish an argument only in the particular instances in which the experience has been had.

What are the teachings of experience as found in the codes of different nations? The Jews, with little of the spirit of modern gallantry either in the rule or the reason assigned, excluded all women, on account of the levity and boldness of the sex. They likewise rejected the testimony of children under thirteen years of age, of the deaf, dumb, blind, insane, the relations and enemies of parties, publicans, slaves, robbers, those convicted of having borne false witness, and those who had committed any crime worthy of death. The Mahometans, in all matters of property, received two men, or one man and two women, to prove any fact, estimating the testimony of a woman at half that of a man in trustworthiness. By their laws the moral character of witnesses was regarded, drunkards, gamesters, and usurers being incompetent. Evidence in favor of a son or grandson, or a father or grandfather, was not received. Slaves could not testify for their master nor their master for them; nor could infidels and apostates be heard when a Mussulman was a party.

The institutes of Menu, which for ages were the law of the multitudinous population of India, present a curious illustration of the caution with which evidence was received. Those must not be received as witnesses who have a pecuniary interest; nor familiar friends, nor menial servants, nor enemies, nor men perjured, nor men grievous by disease, nor those who have committed a heinous offence. The king cannot be a witness, nor cooks, nor other mean artificers, nor public dancers and singers, nor men of deep learning in Scripture, nor a student in theology, nor an anchorite, nor one dependent, nor one of bad fame, nor one who follows a cruel occupation, nor one who acts against law, nor a decrepit old man, nor a child, nor one man unless distinguished for virtue, nor a wretch of the lowest mixed class, nor one who has lost the organs of sense, nor one grieved, nor a mad man, nor one tormented with hunger or thirst, or oppressed with fatigue, excited by lust, inflamed with wrath, nor one convicted of theft. A slave of either sex, a blind man, a woman, a minor till the age of fifteen years, an old man of eighty years, a leper, and the like, were not received as witnesses.

These, it may be said, are the exclusions of ignorant barbarians. If we examine the Roman law, as found in the responses of her civilians, or the edicts of her prætors, or the rescripts of her emperors - the Roman law as illustrated by the learning and genius of the Catos and Scævolas of consu