upon which it rests. But it is not so much our intention to examine the professional merits of this work of Mr. Greenleaf, as to invite the public to a consideration of the present state of this branch of the law, and to the reforms which, we think, it imperatively requires. In doing this we write not so much for the profession as for the people. The subject should not be considered as referrible only to the peculiar and exclusive jurisdiction of the bar, but as one easily understood and fully within the intellectual scope of all possessing any claims to intelligence or general information. In the whole field of law or legislation there is no subject of such vast practical importance as the law which determines the admission or rejection of evidence. The substantive portion of the law, that which prescribes and ordains, may be in the highest degree wise; the criminal code may be framed. in the soundest philosophy, and with the most judicious combination of the principles of prevention and reformation; perfection, in fine, may be predicated of each and every portion of the substantive branch of the law, yet if the rules of evidence are erroneous, their wisdom is no better than so much folly, the will of the legislator is unheeded, his rewards unreapt, his penalties unimposed. -- Important as is the subject, and its importance corresponds to that of all interests which may be judicially endangered, -yet it is but recently that it has received the attention of the public either in Europe or in this country. In the Year-books and the earliest reports and digests, questions relating to the competency of witnesses or the admissibility of evidence, were of the rarest occurrence. The intricate technicalities, the hairbreadth distinctions, the conflicting and contradictory decisions, which form so large a portion of any treatise of evidence, are not to be found in the Rollis and Fletas of our early jurisprudence. By the gradual accretion of decisions, this has now become one of the most important divisions of the law, so that he who is thoroughly versed in its rules may be considered almost prepared for the practice of the courts without any other professional learning. In the trial of Warren Hastings, the injurious operation of those rules was seen and felt on a great scale. The indefatigable industry and perseverance, the deep philosophy of Burke; the strength and vigor of Fox; the thrilling and dramatic eloquence of Sheridan, were seen to be foiled during the whole course of that prosecution, by the technical learning and legal quibbles of a Law and a Dallas. The future chief-justice of the king's bench, then just commencing that career which ended in the attainment of the highest honors of the profession, insisted that his client should be tried according to the rules of evidence as they were administered in courts of common law jurisdiction. The highest judicial tribunal of the nation, ignorant of the laws they were called on to administer, with a want of self-reliance naturally and appropriately incident to such ignorance, sought information of the common law judges as to what they might or might not properly hear, and as to what would and what would not afford instruction or aid in the elucidation of the cause then pending before them. The common law judges almost invariably excluded the evidence proposed. Burke, perceiving that the adoption of their rules would end in the exclusion of the proof by which alone he could hope to convict the great proconsul of the Indies of the high crimes and misdemeanours with which he stood charged, was indignant that their opinions were followed by the House of Lords. For the first time, "in a report from the committee of the House of Commons appointed to inspect the Lords' Journal, made April 30, 1794," the attention of the House of Commons was called to the rules of evidence, and particularly to those which had been laid down by the judges for the guidance of the House of Lords upon a variety of questions submitted to them for their opinion. Until that time, the law of evidence, like every other branch, had been assumed to be the perfection of human reason, and the assumption had remained unquestioned. In this report, Burke conceded the general fitness of those rules in cases between parties, but perceiving their effect in the exclusion of the proof necessary to sustain his cause, endeavoured to distinguish between rules proper to be adopted in ordinary civil cases, and those by which the imperial court of parliament should be governed. He thought that "the committee could not with safety to the larger and more remedial justice of the law of parliament admit any rules or pretended rules, uncorrected or uncontrolled by circumstances, to prevail in a trial which regarded offences difficult of detection, and committed far from the sphere of the ordinary practice of the courts." But Burke, while examining those rules and endeavouring, though ineffectually, to shield the law from the reproach of "disgraceful subtleties," and while urging that "the lords ought to enlarge and not to contract the rules of 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 established 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 concep tion 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 enthu siasm 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 Such are not the conclusions of the common law. 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 accompa nied, 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 liti gation 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 |