Puslapio vaizdai
PDF
„ePub“

at common law. The defendant in equity alone receives this unmerited confidence. Whatever the danger in hearing parties, that danger is immeasurably increased when only one is heard, and that under such peculiar circumstances.

The general rule in all cases of exceptions, whether statutory or common law, seems to be this, - increase the motive to and the danger of perjury, diminish the securities for trustworthiness, and remove the means of detection, and an interested witness or party may be heard. The confessions of a party - incorrect and incomplete -- uttered without the ordinary securities for trustworthiness, misunderstood, misrecollected, or misreported, are received, while the party whose statements they are alleged to be is denied the opportunity of completing what is incorrect, supplying what is deficient, or of rectifying the errors of original perception or subsequent recollection : secondary is perversely preferred to primary evidence. When the facts are in the exclusive knowledge of a party, so that he is free from all fears of contradiction, let his statements be reduced to writing cautiously, under the advice and with the aid of counsel - all favorable facts in full relief, all unfavorable facts in the background or suppressed; exclude all examination and cross-examination, provided only the evidence is offered in the worst possible form, that of affidavits, and the party is at once and without objection heard. Let the word policy or necessity be used, - as though there were policy in receiving testimony which the “common experience" of mankind had “found unworthy of credit, as though any necessity would justify receiving proof which would ordinarily be perjured, — and the rules of the law are changed. Anxious to testify, one may release his interest, thus proving that motives stronger than pecuniary influence him, yet notwithstanding this conclusive evidence of an existing interest which compelled the surrender of the pecuniary and lesser, he is received. Anticipating crime from interest, the government creates the very motives whose action is so uniformly deleterious, offering pecuniary rewards attainable only on conviction, as if its money was less likely to lead to perjury than that of individuals. In admiralty and in probate cases, parties are allowed to testify. But to what purpose increase the list? The usurer and his ruined victim, the briber and the bribed, the infamous mother

- whosoever the whim of the judge or the caprice of the legislator may accept, are heard, and under circumstances the most unfavorable to the elucidation of truth. Better, then, would it be, to hear all, leaving to the tribunal by whom they are heard to determine the value of the testimony, instead of declaring it of no value, without knowing any thing about it, or capriciously considering it of the greatest and most remarkable trustworthiness, in equal ignorance of its real and intrinsic worth.

Other changes are necessary. Defect of religious belief should never be a ground of exclusion. The absence of one motive to veracity may be a good reason for hearing with caution, but never for refusing to hear. When the sanction of an oath would be unavailable, the witness may testify under the pains and penalties of perjury.

Those now considered as incompetent from infamy should be received. They are now heard, when to the infamy of the criminal is added the infamy of the traitor. They are now heard, in case the punishment due to crime is remitted; as if the witness would not testify as honestly without as with the pardon; as if the testimony could only be obtained at the cost of relieving a wrongdoer from the suffering of justly incurred punishment.

Husband and wife should be heard. Where the interest of either is subserved by the testimony of the other, there is no danger of any violent disruption of the conjugal ties. Where it is otherwise, the testimony, from the identity of their legal rights and interests," may be considered true. No just and beneficial confidence between man and wife will be left unprotected because either should be compelled to utter the truth to the prejudice of the other. Nor would the happiness of social life " be very much impaired because the husband, witnessing his own dishonor,” were admitted as a witness to prove the guilt of his wife, or the wife, falsely charged by the husband with the most infamous crimes, were received to vindicate her own reputation.

The attorney should be examined as a witness. Confessions made to him should no more be held sacred than those made to any one else. Confessions ordinarily are admitted, but those made to an attorney are peculiarly deserving of credence, from the circumstances under which they are made. The knave and the villain should not be permitted to enjoy the aid of a hired defender in whose skill, energy, and secresy they may repose the most implicit reliance, whatever the fraud to be committed or the punishment to be avoided. The common rule is only for the benefit of the dishonest and the criminal. Its abolition would not in the slightest degree interfere with the legitimate intercourse between the client and the attorney. It would only operate as a check upon the relation, so far as it subsists, between wrongdoers and their counsel, and it is difficult to perceive what principles of sound policy require that their intercourse should be so far unrestrained and secret, that any communication thus made, if important to the furtherance of justice, should be withheld. In no other confidential relation is this exemption from testifying allowed. Father and son, brother and sister, physician and patient, confessor and penitent, principal and agent, guardian and ward, trustee and cestui qui trust, are obliged, if the purposes of justice requ it, to divulge any communications, however confidential they may be. The relation of the attorney to the client is purely a business relation, involving only the obligations and imposing only the duties of good faith, integrity, and ability commensurate with the trusts reposed. It partakes in no degree of the high and sacred character of that subsisting between parent and child, brother and sister, or even friend and friend. In no other instance is the confidence of guilt respected. Liberty to consult, under the most inviolable secresy, how fraud may be successfully committed, when civil obligation merges into criminal liability, and how, if crime has been committed, its just punishment may be evaded, may be, as it is termed, a “privilege” to the client; but it is a privilege granted at the expense and to the injury of the rest of the community.

We would then utterly abolish the distinctions of competency and incompetency as applied to witnesses. The credibility of testimony alone should be regarded. Let that be the subject matter of investigation, and a great reform in the law will be accomplished.

In England, if we mistake not, the attention of parliament was first called to the consideration of the reforms we have been considering, in 1828, by Mr. now Lord Brougham, in his celebrated speech on law reform. Since that time the subject has been frequently under consideration. In 1843, by Lord Denman's act, so called, the law of evidence was so far modified, that interest and infamy are no longer grounds of exclusion. In New York, after due examination of the question, the same exclusions have been abolished, and a still more important change made, by which parties are subject to examination and cross-examination. In Massachusetts, at the recent session of De legislature, a bill was reported by the Judiciary Committee, substantially the same with Lord Denman's act; but it was rejected. All that could be accomplished was the passage of a bill by which stockholders in an insurance company are allowed to testify, notwithstanding their interest; as though, if the principle of exclusion on the ground of interest were good for any thing, there was any thing peculiar in insurance stock which would render the testimony of its owner less liable to be affected by it in his testimony, than by any other stock, or by any other property at stake. But legislation is piecemeal — fragmentary. By and by, it is to be hoped, the legislature will perceive that a dollar's worth of insurance stock differs not from a dollar's worth of any other stock and property. Other reforms must soon follow. We trust that the time is not far distant when the changes we have indicated will become part of the law of the land. If our efforts shall have done any thing towards accomplishing so important and desirable a result, our labors will not have been in vain.

[graphic]

Art. IV.- The Works of Walter Savage Landor. Lon

don. Edward Moxon. 1846. 2 vols. 8vo.

Though we have placed at the head of our article the title of the collected edition of Landor's works, it is to a consideration of his poems, and in particular of his " Hellenics,” that we shall in a great measure devote ourselves. It may at first sight seem somewhat of an anomaly to try a great prosewriter by what he has written in verse ; but the man is so individual that the merits both of his prose and poetry are identical in kind, and the defects which we are conscious of in the latter may help us to a clearer understanding, if not to a clearer definition, of what is poetry.

To say of any writer that his faults are peculiarly his own, is in a certain sense to commend him, and, where these are largely outweighed by excellences, it amounts to a verdict in favor of his originality. Imitative minds invariably seize upon and exaggerate the exaggerations of their model. The parasitic plant indicates the cracks, roughnesses, and flaws of the wall to which it clings, for in these alone is it able to root itself. If Byron were morose, a thousand poetasters bleated savagely from under wer-wolves' skins. If Carlyle be Teutonic, those will be found who will out-Germanize him. If Emerson be mystic, the Emersonidæ can be misty. It is only where the superior mind begins to differ from the commonplace type, or to diverge from the simple orbit of nature, that inferior ones become subject to its attraction. Then they begin to gravitate toward it, are carried along with it, and, when it pauses, are thrown beyond it. It is only the eclipse men stare at. It is not the star but the comet that gathers a tail. When we say, then, that Landor's faults are especially Landor, we imply that he is no imitator. When we say that he has no imitators, we imply that his faults are few.

If we were asked to name a writer to whose style the phrase correct would most exactly apply, we should select Landor. Yet it is not so at the expense of warmth, or force, or generosity. It is only bounded on every side by dignity. In all those portions of his works which present him to us most nobly, and therefore most truly, the most noticeable quality of the mere style is its un-noticeability. Balance and repose are its two leading characteristics. He has discovered that to be simple is to be classical. He observes measure and proportion in every thing. If he throw mud it is by drachm and scruple. His coarsest denunciation must be conveyed in sentences of just so many words spelt in just such a manner. He builds a paragraph as perfect as a Greek temple, no matter whether Phoibos or Anubis is to be housed in it; for he is a coarse man with the most refined perceptions. He is the Avatar of John Bull. He is Tom Cribb with the soul of Plato in him, and when he attacks there is no epithet which seems to fit him so well as bruiser.

But though he asks us to many banquets, where, after the English fashion, the conversation at a certain point becomes such as to compel women to withdraw; though he so obtrudes his coarseness upon us that any

notice of him would be inadequate without some mention of it; yet this jarring element is rather the rare exception than the rule in his writings. It affects the style more than the character of his works, and is more important in helping us to an estimate of the man, than of his books. An introduction to him without a previous hint of it would hardly be fair; yet we might be in his company for hours without discovering it. We should be at a loss to name the writer of English prose who is his superior, or, setting Shakspeare aside, the writer of English who has furnished us with so many or so delicate aphorisms of human nature.

« AnkstesnisTęsti »