lar, or the Tribonians and Ulpians of imperial Rome-though we may find absurdities less glaring than those of the great law-giver of the East, it will still be seen that Rome has made, in this branch of the law, but slight advances toward sound views, either as to the admission or the just appreciation of testimony. In the civil law the exclusions are almost as numerous and not much more judicious than those found in the laws of Menu. By its provisions, children approaching puberty were to be received, but not compelled to testify of matters within their understanding. Minors were received as witnesses when pecuniary interests were at stake, but they were not allowed in criminal cases, unless over twenty years of age. Slaves were not witnesses if the facts could be obtained from any other quarter. The testimony of those convicted of offences against the state, informers, of those cast into the public prisons, those guilty of making false accusations, those expelled from the senate, apostates, heretics, libellers, those convicted of bribery, infamous women, those who hire themselves to fight with wild beasts, the worthless, and the poor, were not admitted when other proof could be had. No one was a witness in his own case, or in that of one associated with him. The son could not be the witness for the father, nor the father for the son. Patrons were not heard in the cause of their client, guardians of their ward, nor overseers in that of the minor of whose estate they had charge."

By the common law, parties to a suit, those interested in its result, husband and wife, the attorney as to all confidential communications from his client, the atheist, and the convict, are excluded as witnesses.

The arguments of Mr. Greenleaf would as well support one set of exclusions as another; and whether found in the Hedaya or the Pandects, in the institutes of Menu or in those of the common law, they would have been equally applicable; for, being based upon assuming the very question to be proved, one law-giver may as well assume as another. Were all these exclusions to be united in any one code, it is difficult to imagine from what source proof could ever be obtained. If selections are to be made, we think little judgment is shown in those of the common law.

Decision as to the truth of testimony there must be, at some time or other decision either with or without hearing.

*Heineccius, Elementa Juris Civilis, Tit. V., De Test., &c.

Exclusion presupposes a judgment determining the probable falsity of testimony, without and before hearing it. Such is its supposition, else why exclude? The common lawyer, then, is not the man of experience, but the theorist, and an absurd and visionary one. His theory is, that he can decide better as to the truth of a witness without seeing and hearing him, than with; that a judgment as to the truth of testimony can better be made centuries before and without its utterance, than upon a hearing and a comparison of it with other evidence in the case. Mr. Bentham, abused as a wild and unsafe speculator, thought that before a decision could be safely made as to the trustworthiness of a witness, it might be as judicious to hear him. Mr. Greenleaf, who would call himself the man of experience, who would eschew speculation as dangerous, thinks that decision without hearing is the perfection of judicial wisdom.

In the list of exclusions, to our mind there are none so erroneous, so utterly without justification, as those of the parties and of persons interested. These we intend to examine particularly.

Let us briefly consider the matter. Correctness and completeness are the primary qualifications of witnesses. To attain these, attention is necessary. To give the necessary attention, an adequate motive is required. Be it contract, be it crime, which is the subject of inquiry, no one can be expected to have the same motive to give attention — full, careful, absorbing attention-as the parties, as those interested, the expected gainers or losers. Other witnesses accidentally present, like the fortuiti testes of the Roman law, may be free from any sinister bias which might affect their testimony. But mere freedom from bias-mere absence of interest is not the most essential qualification of a witness. Without motive to observe, men are inattentive observers. Nor is this all. While those interested are most likely to perceive what took place, so they will be the most likely accurately to remember. To perceive accurately and to remember truthfully is the work of labor, of labor greater or less according to the number and complexity of the facts, a work never undertaken except under the pressure of motives adequate to the attempted production of the expected result. Mere indifference can hardly be considered any very peculiar guaranty for clearness of original perception or accuracy of recollection; for from indifference naturally flow carelessness,

inaccuracy, forgetfulness, misrecollection-consequences none the less undesirable, with however undoubted disinterestedness they may be accompanied.

So far, therefore, as perception and recollection are concerned, those interested would be most likely to perceive and recollect all the facts within their knowledge, material and necessary to a just determination of the rights involved. They are witnesses ordinarily present, and upon whose intelligence and recollection reliance may be placed. Whether they will truly state their knowledge, when called in for judicial purposes, is another and different question, which hereafter will be considered.

In regard to parties, the "rule of the common law is founded not solely in the consideration of interest, but partly, also, in the general expediency of avoiding the multiplication of temptations to perjury." "The general rule is, that a party to the record can, in no case, be a witness: a rule founded principally on the policy of preventing perjury, and the hardship of calling on a party to charge himself."

"The principle on which" those interested in the result of a suit "are rejected is the same with that which excludes the parties themselves; namely, the danger of perjury, and the little credit found to be due to such testimony in judicial investigations."†

It is obvious, that so far as interest is to be considered a ground of exclusion, it is immaterial whether it be that of a party or of one merely interested in the result. Nobody supposes that it makes the slightest difference, so far as that is to be considered as a ground of exclusion, whether the name of the witness be on the docket of the court as a party or not. So far as the reasoning of the author is of any validity, it applies with equal force in both cases.

To the English lawyer, but one motive is seen acting upon the human mind, and that always with overwhelming force and in a sinister direction. Filial affection, paternal solicitude, the ties of friendship, are not considered as likely materially to endanger the truth of testimony. From one source and from one alone is there fear, and that is pecuniary interest. All hopes, all fears, all loves, all hates, all mortal passions, at once yield to the omnipotence of money. Such is the philosophy

* 1 Greenleaf, 378.

† 1 Greenleaf, 432.

of the law. In English jurisprudence, no unapt representation of the national character, Mammon reigns supreme:

"Mammon, the least erected spirit that fell

From Heaven-for e'en in Heaven his looks and thoughts
Were always downward bent, admiring more

The riches of Heaven's pavement, trodden gold,
Than aught divine or holy."

Indeed, such is the degraded character of the community in the eye of the law, that it presumes that all, rich and poor, good and bad, from the beggar in the streets to the chiefmagistrate for any the smallest pecuniary gain, or to avoid any the smallest pecuniary loss-would commit perjury; presumes, nay declares, that they will do so; makes such result a legal presumption not to be contradicted: "The magnitude or degree of the interest is not to be regarded," says Mr. Greenleaf, "in estimating its effect on the mind of the witness: for it is impossible to measure the influence which any given interest may exert." So universal and uneradicable is this depravity-so deficient is the whole population in veracity, so loose and inefficient are the ordinary restraints of human action—that our enlightened public policy requires this universality of exclusion for the least conceivable interest, lest otherwise the seat of justice might be polluted.

But how absurd is this reasoning. The motives which influence the human mind are as innumerable as the feelings or the desires of man; their strength as varying. The same motives vary in intensity between man and man, or as affecting the same man at different periods of time. Nor is there any motive the direction of which is uniform. It may lead to truth, it may lead to falsehood. However sinister the direc tion of any motive, it may be controlled or overborne by other motives, acting in a contrary direction. The prejudices and passions, the hopes and fears, by which man is affected, are not susceptible of the uniform and accurate admeasurement of mechanical forces. To the common lawyer, mental dynamics are as simple and invariable as those of brute matter. The argument in favor of exclusion assumes that pecuniary interest, as a motive, acts at all times, in all men; that the minutest interest leads uniformly to falsehood, and that it will not be overborne by fear of punishment, loss of reputation, or any motive leading in the direction of truth; or that it is so extremely improbable that this will be the case, that the only safety to society is to be found in exclusion.

Fear of perjury is a main reason for exclusion. What is the danger of perjury on the part of any witness? In all cases, the chance of his being right is equal to that of his being wrong; if in the right, he will never commit perjury, for truth will better subserve his purposes. However truth-destroying the effect of interest may be, it is manifest that in all cases of adverse and conflicting interests, as to each disputed fact, one must be in the right, the other in the wrong; or each may be partly right and partly wrong. It is equally manifest, that of two parties, if one be in the right, in whole or in part, that so far as his testimony is excluded, so far the truth will be shut out; if in the wrong, what are the chances of perjury? The position of the party-his interest and consequent bias-is seen and perceived by others, and known to himself. The or dinary restraining motives act with more than usual strength, for, feeling his position as one looked upon with suspicion, he will be likely to guard his testimony. Besides, if both parties are heard, the perjury of one is known to the other. Will one be so very likely to commit this offence in the presence of an antagonist, who has the knowledge to detect and the motive to punish?

İs danger of perjury a reason for excluding a witness; for refusing to call on one having the requisite and desired information, but of the truth or falsehood of whose testimony nothing can be foreknown?—for it cannot be foreknown whether he is in the right or the wrong. Why is not danger of murder an equally valid reason for imprisoning the son, lest, consider ing nature too tardy, he might anticipate its course? The argument applies as well in one case as the other. In either case the commission of crime is assumed as probable, because a gain may thereby be made. Because one might be so situated as to gain by crime, it by no means follows that he will be a criminal; yet such is the inference of the law. Excluding a witness, from fear of his committing perjury, is as sane as it would be for the shopkeeper to send away all his customers, lest they might steal. In the one case, "it certainly preserves the party from temptation to perjury.". In the other, it with equal certainty preserves the customer from temptation to larceny. Men may perjure; men may steal; one dollar or one thousand dollars-to gain or retain that sum, what greater probability of perjury than of larceny? What

* 1 Greenleaf, 379.