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 The rules of evidence stated and discuss 
 
 3 1924 020 135 624 
 
Cornell University 
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THE 
 
 RULES OF EVIDENCE 
 
 ikih auti ^mnu'ti. 
 
 BY 
 
 JOHN ^PPLETON, 
 
 JUSTICE OP THE SUPREME JUDICIAL COURT OF MAINE. 
 
 PHILADELPHIA: 
 
 T. & J. W. JOHNSON & CO., 
 LAW BOOKSELLERS AND PUBLISHEES, 
 
 No. 635 CHESTNUT STKEBT. 
 
 186 0. 
 
m /3d ^ 
 
 Entered, according to Act of Congress, in the year 1860, 
 
 BT JOHN APPLETON, 
 
 In the Clerk's Office of the District Court of Maine. 
 
 Pn-E k M'EIBOT, PS'S, 
 LODQE STREET. 
 
 
(S SEP 
 
 24 
 1937 
 
 ^^^ 
 
 PREFACE. 
 
 Many years ago I read with great interest the masterly work of Ben- 
 tham on the subject of Evidence. But as that is not readily accessible, 
 and is so voluminous, it occurred to me, that a careful examination of the 
 more important rules of law, as to the admission and exclusion of evidence, 
 and the differing modes adopted in its extraction, as settled by courts of law 
 and equity, would not be without interest to the legal profession and would 
 be of utility to the public. Accordingly, I prepared numerous articles for 
 literary and legal journals, discussing different portions of this subject. 
 These I have collected, and with occasional corrections and additions I 
 now offer to the public. I should have been glad to have avoided the 
 repetition of the same line of argument when examining the different 
 rules of exclusion J but this I could not remedy, without re-writing the 
 whole work, for which I have not sufficient leisure. 
 
 The conclusions to which I have arrived are these : 
 
 All persons, without exception, who, having any of the organs of sense, 
 can perceive, and perceiving can make known their perceptions to others, 
 should be received and examined as witnesses. 
 
 Objections may be made to the credit, but never to the competency 
 of witnesses. 
 
 While the best evidence should always be required, the best existing 
 and attainable evidence should not be excluded, because it is not " the 
 best evidence of which the case in its nature is susceptible." 
 
 The best mode of extracting testimony, orally, in public, and before the 
 tribunal which is to decide upon the facts in dispute, should be adopted 
 on all occasions, and before all courts, when practicable. The only ex- 
 ception to the universality of this rule is one arising from special delay, 
 vexation and expense in its observance; as, in case of sickness, or the 
 absence of witnesses. 
 
 Many of the errors in the law, here pointed out, have been cor- 
 
iy APPLBTON ON RULES OF EVIDENCE. 
 
 reoted. Many of tte reforms, here suggested, have been partially 
 adopted. Interest and infamy in very many of the States have ceased 
 to be grounds for the exclusion of testimony. A limited admission of 
 the testimony of the husband and wife, has been allowed in cases in which 
 one or the other is a party, (a) The parties in civil cases with greater or 
 lesser restrictions upon their testimony have been received or compelled 
 to testify in their own cases. In offences of the lowest grade of crimi- 
 nality the accused in one State(6) has been admitted as a witness in his 
 own behalf. But incompetency from defect, or a want of religious belief, 
 is still the law in most of the States. The communications between 
 client and attorney remain privileged. The law as to confessions and 
 hearsay continues in a condition pre-eminently chaotic. Different courts, 
 and the same court on different occasions, employ differing modes of 
 extracting proof. Much, therefore, remains to be done. 
 
 So far as changes have been made, their practical working in the 
 administration of the law has been such as to make it a matter of aston- 
 ishment, how courts could have ever hoped to administer justice when 
 the evidence now received was excluded. 
 
 The importance of the subject is commensurate with the importance of 
 justice itself. Without evidence, or with bad rules, the judge of fact is 
 as powerless to do justice, as the Hebrew of old was to make brick with- 
 out the needed straw. In what I have done, I have only endeavored to 
 apply the reasoning and principles of Bentham, of which I have made 
 free use, to the law as found in the treatises of jurisconsults and the deci- 
 sions of courts ; and if I shall have aided in accomplishing the changes, 
 which I regard as necessary and indispensable, I shall be abundantly 
 rewarded for my labors. 
 
 Banqob, 3d April, 1860. 
 
 (a) " In the trial of all cItII suits, the husband and wife of either party shall he 
 deemed competent witnesses, when the wife is called to testify by or with the con- 
 sent of her husband, and the husband by or with the consent of his wife." St. 
 of Maine, 1859, v. 102, sec. 1. 
 
 (4) " No respondent in a criminal prosecution or proceeding at law, for libel, 
 nuisance, simple assault, simple assault and battery, or for the violation of any 
 municipal or police ordinance, offering himself as a witness, shall be excluded 
 from testifying, and all laws inconsistent herewith are hereby repealed." St. of 
 Maine, 1859, c. 104. 
 
CONTENTS. 
 
 CHAPTER I. 
 The Arguments in favor of Excluding Witnesses considered, . . 9 
 
 CHAPTER II. 
 Of the Incompetency from Defect of Religious Piinciple, . . 21 
 
 CHAPTER III. 
 Of the Incompetency of Witnesses from Infamy of Character, . . 30 
 
 CHAPTER IV. 
 Of the Incompetency of Witnesses from Interest, . . .41 
 
 CHAPTER V. 
 Of the Incompetency of Parties as Witnesses at Common Law, . . 61 
 
 CHAPTER VI. 
 Of the Admissibility of Parties as Witnesses in Equity, . . 93 
 
 CHAPTER VII. \^<\' \^'^ 
 Of the Admissibility of Parties as Witnesses in Criminal Procedure, . 119 
 
 CHAPTER VII I. 
 
 Of the Admissibility of Accomplices and Parties to the Record in Crim- 
 inal Procedure, ....... 135 
 
yi APPLETON ON RULES OF EVIDENCE. 
 
 CHAPTER IX. 
 Of the Incompetency of the Husband and Wife as Witnesses, . . 144 
 
 CHAPTER X. 
 Privileged Communications. Of the Admissibility of Counsel or Solicitor, 156 
 
 CHAPTER XL 
 Of Confessions and Hearsay, . . . • • .113 
 
 CHAPTER XII. 
 Of Hearsay, ........ 189 
 
 CHAPTER XIII. 
 Of the Examination of Witnesses at Common Law, . . .216 
 
 CHAPTER XIV. 
 Of the Examination of Witnesses in Equity, .... 228 
 
 CHAPTER XV. - V 
 
 m, 
 
 Of the Examination and Cross-examination of Witnesses in Law and 
 Equity, as to facts which may tend to expose them to penalty, 
 forfeiture, or punishment, ...... 245 
 
 CHAPTER XVL 
 Of Judicial Oaths, ....... 254 
 
 Appendix, ..... . . 271 
 
ERRATA. 
 
 Page 20. 21 lines from bottom, for "lies" read lay. 
 
 Page 109. 2 lines from bottom, for "Earl of Radnor" read Earl of Radnor v. 
 Shafto, 11 Vesey, 453. 
 
THE 
 
 RULES OF EVIDENCE. 
 
 CHAPTEE I. 
 
 EXAMINATION OF THE ARGUMENTS IN FAVOR OP EXCLUDING WIT- 
 NESSES FOR ANY CAUSE. 
 
 In the whole field of law or of legislation, there is no subject of such 
 vast practical importance as the rules by which the admission or rejec- 
 tion of evidence is determined. The substantive portion of the law, that 
 which prescribes or ordains, may be in the highest degree wise; the 
 criminal code may be framed with the soundest philosophy, and 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, 
 the wisdom of the law 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 
 hair-breadth distinctions, the conflicting and contradictory decisions, 
 which form so large a portion of any treatise on evidence, are not to be 
 found in the EoUes and Fletas of our early jurisprudence. By the 
 gradual accretion of decisions, this has now become one of the most im- 
 portant divisions of the law, so that he, who is thoroughly versed in its 
 rules may be considered, without other professional learning, as almost 
 prepared for the practice of the courts. 
 
 Of the rules of evidence as established by the common law, it may be 
 said, without the slightest exaggeration, that if the knaves and criminals 
 great and small, had united upon a code the object of which should be 
 to afford the greatest security to each, consistent with the existence of 
 law ; had they taken " sweet counsel together," with full power to establish 
 rules of evidence, which should aiford the minimum of protection to 
 
 Eebktiaey, 1859. — 2 
 
10 APPLETON ON KULBS OF EVIDENCE. 
 
 society, and the maximum of impunity to themselves, with yet a remote 
 possibility of punishment, it is difficult to perceive how, having any rules, 
 they could have materially improved upon the existent law. Aware that 
 some rules must be granted to pacify the demands of society, the saga- 
 cious knave and the discreet criminal would hardly have pressed for the 
 adoption of rules more favorable to the legal impunity of crime and the 
 successful consummation of fraud, than those which the common law, in 
 its sympathetic wisdom, has so kindly furnished to their hands. It has 
 closed the most obvious and readily accessible means of information. It 
 has excluded those, who from interest in or relation to a cause would 
 have the best personal — and those, who from connection with the party 
 as husband, wife or attorney, would have the best derivative means of 
 knowledge. The individual defrauded is refused a hearing; the party 
 defrauding is not compelled to answer. The criminal rejoices in his own 
 exemption from the dangers of cross-examination, and in that of all those 
 of his fellows whom conviction may have stamped with ignominy. 
 
 That judicial action requires or should require, for its basis, proof, — 
 that this should be sought for from all available sources; that existing, 
 no matter where, it should be rendered forthcoming for the purposes of 
 justice, would seem to be propositions so self-evident as to require neither 
 argument nor illustration. That the sources from which evidence would 
 be sought, should vary in relative trustworthiness, was to be expected, — 
 for witnesses in a cause cannot be selected in advance. "When the bur- 
 glar will enter the dwelling ; when the assassin will stab ; when the knave 
 will defraud ; when the dishonest will deny or evade the obligations of 
 his contract, can be neither foreseen nor foreknown ; for if foreseen or 
 foreknown, the entry of the burglar, the stab of the assassin, the frauds 
 of the knave, would have been guarded against and prevented ; the vio- 
 lated contract would never have been entered into. Proof therefore must 
 necessarily be had from sources corresponding to the act proved, and 
 from the parties to the act — from the parties to the crime to be investi- 
 gated, — ^and the contract to be enforced; from their accomplices and asso- 
 ciates, their friends and relatives. Primarily, without recourse to rea- 
 soning or investigation, it must be seen that from such sources, more 
 directly and obviously than from any other, evidence more or less reliable 
 can always be had ; that these are the natural sources from which to seek 
 for proof. All other evidence must ordinarily be casual, fortuitous, the 
 result of accident, not of forethought. Fortuitous, accidental, unexpected, 
 it will obviously have all the general characteristics of humanity, em- 
 bracing convicts and atheists, the bad and the good ; those interested and 
 those indifferent; all who may have had knowledge of the fact to be de- 
 termined. The party injured having foreseen no wrong, having no 
 pre-appointed witness, must be allowed to offer whatever exists ; his own 
 testimony, for of that alone he is certain ; that of his opponents, com- 
 pulsorily if needed; that of all those who may have knowledge of the 
 subject in dispute, no matter what in point of character or in degree of 
 interest they may be, he himself suffering, if the testimony, from any 
 cause, is liable to suspicion, in the diminished credence it will receive 
 or else he must be remediless and endure in silence the wrong which has 
 
EXCLUDING WITNESSES FOR ANT CAUSE. H 
 
 been committed. The exclusion of proof entitled to any weight — the 
 slightest, — is the voluntary self-deprivation, by the court thus excluding, 
 of the means of correct decision, to the extent of all proof for such cause 
 excluded. If the testimony rejected be the only proof attainable, it is 
 an utter denial of justice. It is like bandaging the eye to aid vision; 
 like imposing manacles and fetters to accelerate motion. 
 
 Of the lengthened series of circumstantial facts by which right is 
 sought to be established and crime developed, it is not to be expected 
 that each fact in the series should be proved by the same kind of evi- 
 dence or by witnesses, whose testimony shall in each instance have the 
 same degree of probative force. No rule can be established in advance, 
 by which the degree of credit to which a witness is entitled can be pre- 
 determined. The same law of nature, by which the strength, the com- 
 plexion, the size, is seen to vary, will equally exist in reference to clear- 
 ness of perception, strength of recollection and integrity of narration. 
 Whether the intellect of the witness is keen, his memory good, his integ- 
 rity unimpeachable, can only be known after, and consequent upon 
 examination. Common sense requires a hearing in each particular case, 
 before deciding upon the greater or less degree of credence to which the 
 witness may be entitled. Of individuals or of classes there is none of 
 which falsehood can certainly be predicated in any particular instance. 
 Exclusion because of anticipated falsehood, is decision without and be- 
 fore hearing, — decision adverse to the integrity of the witness. The law 
 in one phase of its action, when the criminal is on trial, presumes his 
 innocence ; when a witness is to be called, in all its exclusions the pre- 
 sumption is guilt, to prevent which the witness is excluded ; guilt on the 
 part of the witness ; on its own part incompetency utter and irremediable, 
 else there would be neither fear nor danger in receiving proof, against 
 the truth of which the court seems to be so fully and entirely on its 
 guard. 
 
 It is obvious that the integrity and trustworthiness of witnesses will 
 be exposed to various and conflicting motives; the action of which will 
 vary at the same time upon different persons, and upon the same person 
 at difi^erent times and under different conditions. However difficult it 
 may be after the full benefit of examination and cross-examination, and 
 after a careful comparison of the testimony of one witness with another, 
 to award to each the precise degree of credence which his testimony may 
 merit, it is still more difficult to decide this question, without such hear- 
 ing and comparison. Caution, necessary in all cases, may be more par- 
 ticularly required, therefore, where there is danger of undeserved cre- 
 dence ; and in such case the legislature may well place the judge of fact 
 on his guard. But caution and exclusion are entirely different. Caution 
 places the judge on his guard against sinister bias, gives him all the 
 possible material for correct decision, but requires prudence and judg- 
 ment in the use of the materials furnished. If the evidence excluded 
 be true, no possible reason can be given for its exclusion. Whether 
 true or not cannot be foreknown. Judicial assumption can hardly claim 
 infallibility, yet excluding such is the assumption of the judge. Mis- 
 decision, the excluded evidence being material, true and unattainable 
 
12 APPLBTON ON KULES OF EVIDENCE. 
 
 from any other source, is seen to be inevitable. If the evidence be not 
 true, that misdecision would ensue from its reception, is by no means 
 certain. If false, its very falsity made manifest from other sources, 
 would be an article of circumstantial evidence of no ordinary force in 
 inducing correct decision. Presumed imbecility on the part of the 
 judge of fact; presumed guilt, or rather guilt presumed on the part 
 of the witness, if an opportunity to testify should occur ; such the rea- 
 sons for exclusion. How can the law foreknow that judges whose capa- 
 city is unknown, will be deceived by the testimony of unknown witnesses, 
 of whose integrity they are equally in the dark. But exclusion pre-sup- 
 poses a judgment of which such exclusion is the consequence, — a judg- 
 ment without knowledge or the means of knowledge, — which determines 
 the future perjury of all witnesses of the excluded classes as preponder- 
 antly probable, and the future imbecility of all judges to justly decide 
 on the testimony of such witnesses. 
 
 While it is thus clear, then, that no exclusions should be made, be- 
 cause no judge nor legislature, centuries in advance, can foreknow or 
 persumably conjecture, what in each case shall be the importance, neces- 
 sity, truth or falsehood of any unknown witness, nor the competency of 
 a judge hereafter to be born correctly to weigh such testimony; nor what 
 would be the consequence from the admission of the excluded testimony, 
 whether favorable or unfavorable to justice, still the common law ex- 
 cludes great masses of testimony, and particularly the testimony of those 
 from whom especially the knowledge of facts might be obtained, — of those 
 who at all events must know, whether they will truly or not disclose that 
 knowledge. 
 
 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 ad- 
 vance 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 sometimes 
 thus accompanied, could he be sure of his presence 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 of litigation, or upon which the most 
 important consequences may not depend; as the hour of rising, of depar- 
 ture from or returning to one's residence, the articles of apparel worn, 
 the road taken, the place of stopping, the individual with whom conversa- 
 tion may have been held, the topics of such conversation, the precise ques- 
 tions 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 co-ex- 
 tensive with the infinite variety of litigation, upon which property, liberty 
 or life may depend. There is no event, no word spoken, no act done, 
 no motion of the body, no thought of the mind, which in the eternal 
 chain of antecedents and consequents, may not become matter of inquiry. 
 In vain, then, can one in advance guard and protect his rights. He can- 
 not know how nor when they will be put in jeopardy, or if so, by what 
 witnesses the facts he may deem of importance, may be proved. Whether 
 they be men of deficient or exuberant faith ; whetherthey be men famous 
 
EXCLUDING WITNESSES FOB ANY CAUSE. 13 
 
 for integrity or infamous for want of it ; whosoever they maybe by whom 
 such facts were perceived, he needs them, and if they be the only wit- 
 nesses, still greater is his need. 
 
 The exclusion of testimony from whatsoever source attainable is pre- 
 sumably 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 
 burningploughshares, to trials by battle, as attempt to decide without proof. 
 So obvious would all this seem, that one would suppose that resort would 
 naturally be had to those by whom the facts were known. To the common 
 lawyer it seemed otherwise. Ordinary men seeking for information in- 
 quire of those who know. Extraordinary men, learned men, lawyers 
 deeply imbued with the wisdom of the past, especially 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 evi- 
 dence for any reasons, or for such reasons as have in various instances 
 been assigned, and the judge is compelled to resort either to lot or to arbi- 
 trary will, not by any means so safe as the lot for the determination of 
 the cause. He is deprived of the very food of justice, pabulum 
 justiticR, 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 fullness of the facts 
 presented for consideration. Any source, every source, any individual, 
 every individual, no matter who he may be, to whom any portion, how- 
 ever minute, of the facts may be known, should be heard. Scrutinize his 
 testimony as severely as you will, but hear it. Because the light of the 
 noonday cannot be had at midnight, should the farthing taper therefore 
 be extinguished 1 Because from the best conceivable sources proof 
 cannot be obtained shall none be had ? 
 
 He who would exclude material evidence obtainable from any source 
 whatsoever, is bound to give satisfactory reasons for such exclusion. A 
 learned writer(a) on the subject of evidence bases the general doctrines 
 of exclusion upon the following grounds : — 
 
 « Although in the ordinary affairs of life temptations to practise de- 
 ceit 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 impossible in the narrow compass of a 
 
 (a) Greenl. on Evidence, § 326. 
 Februakt, 1859. — 5 
 
14 APPLETON ON EULES OF EVIDENCE. 
 
 trial, to investigate the character of loitnesses ; and from the very nature 
 of judicial proceedings and the necessity of preventing the multiplica- 
 tion 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 continually 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 
 heen found necessary to the ends of justice that some kinds of evidence 
 should uniformly be 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 dis- 
 tinguishing 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 exjperienced 
 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 mis- 
 lead juries; receiving and weighing the testimony of others, and giving 
 to it that degree of credit 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 the liability of the wife for crimes com- 
 mitted in company with the husband, and in numerous other instances, 
 the common law has merely followed the common experience of man- 
 kind." 
 
 Such are the general reasons by which the exclusion of testimony is 
 justified. They are fairly stated. They are all the law has to give. Are 
 they well founded 1 They require and should receive a careful and de- 
 liberate examination. 
 
 The main business of life is in hearing and reasoning on evidence. 
 Judicial action — decision upon proof — is an every day affair of common 
 life. Evidence, proof, testimony is the same, whatever may be the occa- 
 sion on which it is obtained, or the uses to which it is applied ; whether 
 it be given " in the ordinary affairs, or in 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 
 
EXCLUDING WITNESSES FOR ANT CAUSE. 15 
 
 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 men, are conducted 
 upon evidence, and the same principles which guide, the same rules 
 of judging and weighing testimony, are alike applicable in "judicial in- 
 vestigations" as " in the ordinary affairs of life." Not a day, not an hour 
 passes, in which every man is not called upon 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 
 relative 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 consideration. " 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 dis- 
 puting, of whom does the father inquire ? Wishing to know the truth, 
 does he send his children away, and proceed to glean confessional frag- 
 ments of what his children may have said from the servants in the 
 kitchen ? Was there ever found a lawyer or judge so idiotic as to be 
 governed out of court by the rules which are followed in court in the 
 investigation of facts, and are lauded as the perfection of human reason. 
 But if in the infinite variety of human affairs, different rules from those 
 which govern the courts are acted upon, and seen to be acted upon 
 without prejudice or injury, does it not afford a strong indication that 
 such 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 false- 
 hood 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 litiga^ 
 tion to each man. How little of the wealth of the rich or the pittance 
 of the poor, in comparison with the aggregate possessions of either, is 
 ever the subject-matter of a judicial contest; and if it were, how is the 
 motive to ^'falsehood and 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 in one case 
 than in the other. Multiplication of occasions for falsehood there is not, 
 still less is there of motives. Falsehood in ordinary affairs receives, 
 when detected, only the punishment of public opinion. Judicially 
 uttered, falsehood is not merely followed with loss of public respect, but 
 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, or may 
 be, superadded the disgrace of convicted perjury. The motives inducing 
 
16 APPLBTON ON RULES OF EVIDENCE. 
 
 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 pre- 
 serve 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 mo- 
 tives for falsehood, but, on the contrary, many and important securities 
 for truth, not attainable in private life. The fear of punishment, exami- 
 nation 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 situa- 
 tion of judges and jurors renders it difiicult, if not impossible, in the 
 narrow compass of a trial, to investigate the character of witnesses." 
 What then ? The argument, if good for anything, would imply that 
 judges were to investigate for themselves, and because they are not able 
 to investigate satisfactorily the character of witnesses, that therefore all 
 witnesses should be excluded. But is this investigation ever pursued by 
 judges or jurors as to those who are received ? If not, what is the force 
 of the argument in favor of exclusion ? Suppose it ever so difficult to 
 ascertain the character of witnesses. What then ? Is it their busi- 
 ness ? 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 this cannot be done ? It is 
 not done as to those received. Is it not equally necessary that it should 
 be done in the one case as in the other ? — as to those received, as to 
 those excluded ? But what is the danger of deception on the part of the 
 judge or jury ? The party active, vigilant, with time and means, will 
 be little likely to permit his rights to suffer from not sufficiently scruti- 
 nizing the character of those who may be witnesses against him. 
 
 It is said, " it may often happen that the testimony of a witness un- 
 worthy 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 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 same 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 the judge or the 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 ? Who knows 
 or can know in advance that the evidence excluded will be contaminat- 
 ing ? But what is the evil, the constant occurrence of which is sought 
 to be guarded against ? That of inahility 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 
 
EXCLUDING WITNESSES FOR ANY CAUSE. 17 
 
 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 eiFect of conservative influences, and 
 the sinister bias from those which may be contaminating, upon unknown 
 witnesses ? And how can it be ascertained on which side will be the 
 balance, for on that the decision of the question depends. 
 
 "In determining what evidence shall be admitted and weighed by 
 the jury and what shall not be received at all," the law is said to be 
 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 then is 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. 
 One would be 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. The 
 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 incom- 
 petent were sworn, to the great subversion of justice, and results so disas- 
 trous ensued therefrom 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 exceptions 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, in his work on Evidence, does not meet it. 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 expe- 
 rience." If by common experience is meant the experience of other 
 nations, ii is obvious that unless their exclusions are the same, an^ 
 unless, further than that, they have been the result of some " expe- 
 rienced 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 code of other 
 nations ? The Jews, with little of the spirit of modern gallantry either 
 in the rule or the reason therefor 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 
 
18 APPLBTON ON EULBS OF EVIDENCE. 
 
 who had committed any crime worthy of death. The Mahometans, in 
 all matters of property, require 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 of a son or grandson in favor of his father or grandfather 
 was not received, and the reverse. Slaves could not testify for their 
 masters nor their masters for slaves : nor could infidels and apostates be 
 heard where a Mussulman was a party. 
 
 The institutes of Menu, which for ages were the law of the multitu- 
 dinous population of India, present a curious illustration of the caution 
 with which evidence was received. " Those must not be received as wit- 
 nesses 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 an 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 scriptures, nor a student in theo- 
 logy, 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 madman, nor one tormented with 
 hunger or thirst, or oppressed with fatigue, excited by lust, inflamed 
 with wrath, nor one convicted of theft."(6) 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 Koman law, as found in the responses of her civilians or the 
 edicts of her praetors, or the rescripts of her emperors, — the Roman law, 
 as illustrated by the learning and genius of the Catos and Sosevolas of 
 consular, or the Tribonians and Ulpians of imperial Rome — though we 
 may find absurdities less glaring than those of the great lawgiver of the 
 East, it will still be seen that Rome made in this branch of the law 
 but slight advances towards 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 con- 
 victed of offences against the state, informers, those cast into the public 
 prisons, those guilty of making false accusations, those expelled from 
 the senate, apostates, heretics, libellers, those convicted of bribery, infa- 
 mous women, those who- hire themselves to fight with wild beasts, the 
 worthless and the poor, were not admitted when other proof could be 
 
 (6) Laws of Menu, c. 8, §J 64, 65, 66, 6Y. 
 
EXCLUDING WITNESSES FOR ANY CAUSE. 19 
 
 had. The son could not be admitted 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. (c) 
 
 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 general arguments to which we have adverted, 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 be alike and equally applicable; for being 
 based upon assuming the very question to be proved, one lawgiver may 
 as well make the assumptions required to support his case as another. 
 Were all these exclusions to be united in one system of law, it is difficult 
 to imagine from what source proof could ever be obtained. Their dis- 
 cordant variety furnishes no slight argument against all. 
 
 When trial by battle was the law of the land and the rights of person 
 and property, the guilt or innocence of the accused was made to depend 
 upon the skill and vigor with which the weapons of the combatants were 
 wielded; when the wisdom of the Almighty, it was expected, would 
 intervene to the vanquishing of the oppressor and the defeat of the 
 wrongdoer, this mode of determining guilt or innocence had its stren- 
 uous supporters, as rules hardly a whit wiser now-a-days have theirs. 
 Were this mode of trial the law of the land and the practice of the 
 courts, sage counsellors, experienced judges learned in the law, would 
 be found opposing an alteration, as endangering the best interests of 
 society. The wisdom of our ancestors, the terrors of innovation, the 
 timid forebodings of endangered conservatism, would bear sway, and the 
 clangor of arms, and the streaming of blood, and the death wounds of 
 the defeated combatants, would even now be seen and heard, and the 
 results of the combat be received as proof conclusive of the right. 
 Indeed, the same arguments then urged for the continuance of this 
 mode of trial, are what judges and chancellors now deem sufficient to 
 justify the exclusionary rules of the common law and of equity. Vene- 
 rable conservatives, like our judges, haunted by fears of perjurious tes- 
 timony, faithless in the integrity of witnesses, defended the judicial 
 combat, fearing that without it every heir would be disinherited, as it 
 would be easy to find two persons, who would perjure themselves if they 
 had no fear of being challenged; "for it would be better to leave to 
 God, to whom all things are open, to give the verdict, in such case, 
 scilicet, by attributing the victory or the vanquishment to one party 
 or the other, as best pleaseth him, than to put it to the country, that is, 
 to the jury, who, for default of evidence, may be ignorant of right." 
 So now it is deemed wiser to decide without evidence to the extent of 
 the evidence excluded — and it may be of all attainable proof — than to 
 trust the jury who might decide erroneously. Fear of perjury is alike the 
 reason of the defender of the trial by battle and of trial without proof, 
 
 (c) Heiunecius Elementa Juris Civilis, Tit. V. de Testibus, &c. 
 
20 APPLETON ON RULES OF EVIDENCE. 
 
 to the extent of all exclusions, for they both proceed upon the same prin- 
 ciple, — the facility with which perjury is committed and the utter in- 
 ability of the judge of fact to detect its commission, (li) The judge of 
 the olden time, fearing perjury, but trusting in God, sent the litigants 
 to battle, and determined their rights " according to the victory or the 
 vanquishment" of the one or the other; the modern judge with similar 
 fears but with less trust, relying neither on himself nor on God, deprives 
 those who are to decide of the means of correct decision, and leaves the 
 result, as far as relates to himself, to accident. 
 
 {d) The compiler of the assizes dg Jerusalem " thinks it would be very inju- 
 rious, if no wager of battle were to be allowed against witnesses in cases affecting 
 succession ; since otherwise every right heir might be disinherited, as it would be 
 easy to find two persons who would perjure themselves for money if they had no 
 fear of being challenged for their testimony. This passage indicates the real causes 
 of preserving the judicial combat; systematic perjury in witnesses^ and want of legal 
 discrimination in judges." — Hallam's Middle Ages, Part 2. 
 
 Presumed perjury in witnesses and presumed imbecility in judges of fact, lies at 
 the foundation of all the exclusionary rules of modern times. 
 
 "Je pencherais §, croire que tout homme, quel qu'il soit, peut etre recu ^ 
 t^moigner. L'imbecillite, la parente, la domesticity, I'infamie m6me n'emp6chent 
 pas qu'on ait pu bien voir et bien entendre. C'est anx juges a peser la valeur du 
 l^moignage et des reproches qu'on doit lui opposer." — Prix de la Justice. Oeuvres 
 de Voltaire, 34 Tome, 418. 
 
 The more barbarous a nation, the more numerous are its exclusions of testi- 
 mony. 
 
 " The Siamese are extremely capricious in the standard value of witnesses ; the 
 oaths oi priests and men in office bearing a preference over all others, while there 
 are not less than twenty-eight in number, who are excluded and declared to be 
 incompetent ; they are as follows : contemners of religion, persons in debt, the slaves 
 of a party to a suit, intimate friends, idiots, those who do not hold in abhorrence 
 the cardinal sins, among which are enumerated besides theft and murder, drink- 
 ing spirits, breaking the prescribed fasts and reposing on the mat or couch of a 
 priest or parent, gamblers, vagrants, executioners, quack doctors, play actors, herma- 
 phrodites, strolling musicians, prostitutes, blacksmiths, persons laboring under in- 
 curable diseases, persons under seven and above seventy, bachelors, insane persons, 
 persons of violent passions, shoemakers, beggars, braziers, midwives and sor- 
 cerers." Roberts' Embassy to Siam, 306, 307. 
 
CHAPTER II. 
 
 or INCOMPETENCY FROM DEFECT OF RELIGIOUS PRIN'CIPLE. 
 
 In examining the rules of evidence, the substantive part of the law, 
 that portion which directs and ordains, which creates rights and obliga- 
 tions, either civil or criminal, and prescribes the punishment for the 
 violation of those rights and obligations, must for all the purposes of the 
 discussion be considered perfect; and every rule of evidence must be 
 regarded good or bad as it increases or diminishes the efficiency of this 
 branch of the law. As the law operates only through the medium of 
 evidence, to ascertain the fact or facts which require its aid, evidence is 
 necessary. " Evidence, then, is the basis of justice, and the exclusion 
 of evidence is the exclusion of justice." As it maybe obtained from all, 
 it should be sought from all, the good and the bad, the willing and the 
 unwilling. Every individual whose fortune it may be to be a percipient 
 witness of a disputed fact, whether atheist or believer, interested or dis- 
 interested, husband or wife, attorney or client, the convicted felon and 
 the prisoner at the bar, should be examined and heard as witnesses, un- 
 less in any given case, greater mischief would be likely to result from 
 the admission than the exclusion of their testimony ; for wherever any 
 parcel of evidence is excluded, the judges of fact (by whatsoever name 
 called) are, to the extent of the exclusion, deprived of available and 
 requisite means of information. 
 
 By the existing rules of evidence, both of the common and civil law, 
 vast and important masses of testimony are excluded ; that is, prevented 
 from being heard by the respective judges of fact, before whom causes 
 may be tried. No valid reason can be given for these exclusions, other 
 than that the admission of the excluded testimony would be attended 
 with a preponderance of evil exceeding that arising from its rejection. 
 As the cases in which testimony is excluded are numerous, and have for 
 their bases diiferent and discordant reasons, we propose to examine sepa- 
 rately the force and validity of the reasons assigned in each case for 
 exclusion. 
 
 Exclusion, or as it is technically termed, incompetency, from defect of 
 religious principle, will form the subject of the present chapter. When 
 the common law flourished in its pristine vigor, it was laid down gene- 
 rally, that " an infidel could not be a witness, in which denomination 
 Jews as well as heathen, were comprised; and Hawkins thought it a suffi- 
 cient objection to the competency of a witness, that he believed neither 
 the Old nor the New Testament." The original rule was found fraught 
 
22 APPLETON ON RULES OP EVIDENCE. 
 
 with evil, and at length (in Omichund v. Baker)(a) received a partial 
 judicial repeal. But still in England as well as in this country, "those 
 are not competent witnesses who do not believe in the existence of 
 a Grod or a future state, or who have no religious belief."(6) 
 
 The authorities, however, are by no means concordant as to the precise 
 amount of belief sufficing for admission or requiring rejection. " As to 
 the nature and degree of religious faith required in a witness, the rule 
 of law as at present understood, seems to be this, that the person is com- 
 petent to testify, if he believes in the being of God, and a future state 
 of rewards and punishments ; that is, that Divine punishment, will be 
 the certain consequence of perjury. * * It is not material, whether the 
 witness believes that the punishment will be inflicted in this world or 
 in the next.'Yc) But the witness must believe that a supernatural 
 punishment will be inflicted here or hereafter, " for it is not sufficient 
 that a witness believes himself bound to speak the truth from a regard 
 to character, or to the common interests of society, or from fear of the 
 punishment which the law inflicts upon persons guilty of perjury." 
 
 As there is an infinite variety of character among men, so among 
 witnesses, the degree of credit to be given to their statements, varies 
 from full and implicit confidence to entire and unhesitating disbelief. 
 Whatever may be urged against any witness, as affecting character, 
 should be urged against his credit, and not his competency. In examin- 
 ing the question of exclusion, on the score of religious belief, the case 
 of the atheist alone will be considered, for if atheism should not be 
 deemed a sufficient reason for exclusion, no other variety of religious 
 opinion ever can be. 
 
 The testimony of a witness is required, because he has seen, heard or 
 known something relating to the issue between the parties litigant, which 
 being truly related would materially affect their rights. Now neither 
 the eye nor the ear, nor the touch, — neither the vision nor the hearing, 
 nor the perception is affected by the more or less erroneous belief or un- 
 belief of the person seeing, hearing, or perceiving. The important in- 
 
 (ffl) Willes, 545. 
 
 (6) " Pour qu'un individu soit habile et acceptable 5, tdmoigner, 11 faut, * * * 
 qu'il ne soit pas exoentrique dans ses croyances (soit par ignorance, soit par sys- 
 tfeme ou de propos d^llb^rS), fftt ce mSme par suite de raisounements et par esprit 
 pbilosopbique ; it ne doit pas etre, par example, un Tch&ridgt ou un kadari, c'est §. 
 dire un sectaire ou un partisan de la doctrine de la non-prgdestination cu fatality 
 des actes ; cette doctrine implique I'ignorance des rapports des causes aux effects ; 
 les doctrines des sectaires ou schismatiques impliquent la tendance a expliquer 
 les choses par les discussions," &c. — Jurisprudence Mussulmane, Tome V. 193. 
 
 (c) 1 Greenl. Ev. § 368, 369. In Atwood v. Walton, Y Conn. 66, Mr. Justice 
 Daggett says, that if " it is satisfactorily proved that the person does not believe 
 in a future state of rewards and punishments, there is not that tie upon his con- 
 science and of course that sanction, which the law requires ; and therefore, he 
 ought not to be sworn." 
 
 In the People v. Mattison, 2 Cow. 433, Walworth, J., says, " if he believes 
 there will be punishment by his God eom in this world if he swear falsely, there 
 is a binding tie upon the conscience, and he must be sworn." 
 
 In Hanscom v. Hanscom, 15 Mass. 184, the Court considered a disbelief in a 
 future state of existence as an objection to the credibility and not the compe- 
 tency of the witness. 
 
DEFECT OF RBLIGIOITS PEINCIPLB. 23 
 
 quiry is whether he will truly relate what is seen, heard, or perceived, 
 for if he will, his testimony is equally necessary and desirable for the 
 purposes of justice, as if his belief were of the most unimpeachable 
 orthodoxy. 
 
 The exclusion in the case under consideration rests upon the assump- 
 tion of the question in dispute. The witness is excluded because(c?) he 
 " is unworthy of any credit in a court of justice." Utter mendacity — 
 falsehood without and against motive, is regarded as a necessary and con- 
 clusive presumption from want of faith or erroneous faith. But error 
 in belief is compatible with truth of statement. Because a man's faith 
 may be erroneous, it does not necessarily nor even probably follow that 
 his testimony will be perjured. (e) 
 
 Improbity, such as would affect testimony, inferred from want of faith, 
 from erroneous belief, is the only reason of any force that can be given 
 for the exclusion of the atheist. But atheism is not improbity, it is only 
 an erroneous conclusion from misjudgment or want of sufficient considera- 
 tion, and the most that can be said of it is, that it diminishes the re- 
 straints upon crime and lessens the incentives to virtue. The atheist 
 testifies under the influence of the same restraining motives as other wit- 
 nesses, save the fear of supernatv,ral punishment here or hereafter. 
 There is the absence of only one of the mendacity-restraining motives. 
 The atheist can speak the truth. Unless then greater evils result from 
 his admission than his exclusion he should be heard. In the great pro- 
 portion of cases where he would be without interest in the result, he would 
 be without motive to commit perjury. No man will do it without some 
 object is thereby to be gained. The same motive in all cases tempts to 
 or prevents the commission of crime, — a benefit real or imaginary, — a sup- 
 posed utility to the criminal. The atheist and the believer, when they 
 are devoid of any sinister interest, are equally entitled to credit, for 
 neither, without and against motive, will commit crime. 
 
 In all cases where there might be an interest leading in a sinister direc- 
 tion, whether legal or not, the atheist would be less entitled to credence, 
 because one restraining motive is wanting. So far as any motive derived 
 from the good or evil of this world — fear of punishment or the loss of 
 reputation — would influence conduct, their credibility would be equal. 
 The difference of credit therefore, would depend on the fear of divine 
 punishment here or hereafter as a motive influencing conduct and de- 
 
 [d) In Norton v. Ladd, 4 N. H. 444, the court say, " He who openly and deliber- 
 ately avows that he has no belief in the existence of a GoA, furnishes clear and sat- 
 isfactory evidence against himself, that he is incapable of being bound by any reli- 
 gious tie to speak the truth, and is unworthy oi any credit in a court of justice." 
 
 " When the point shall arrive," says Mr. Alison, in his Practice of Scotch Crimi- 
 nal Law, 438, "it is well worthy of consideration, whether there is any rational 
 ground for such an exception, . . . whether the risk of allowing unwilling wit- 
 nesses to disqualify themselves by the simple expedient of alleging that they are 
 atheists, is not greater than that of admitting the testimony of such as make this 
 profession." 
 
 But it seems in Scotland, that witnesses to be competent are required " to be- 
 lieve in a God and a future state of retribution, in which falsehood will be 
 punished." Tait on Evidence, 347. 
 
 (e) Datfidem vir jurijurando non Jusjurandum viro. 
 
24 APPLBTON ON RULES OF BVIDBNCB. 
 
 terring from the commission of crime. There are certain securities 
 against crime, such as character, if good, education, fear of present and 
 future punishment. The strength of these securities is as variable as the 
 character of the individuals subject to their influence. So too, there 
 are concurring causes, such as interest, passion, hatred, revenge, &c., 
 which lead or may lead to falsehood ; and it is only by comparing the 
 relative force of the various antagonist motives which influence an indi- 
 vidual, that we can approximate to a correct opinion as to the probable 
 truth or falsehood of his testimony. Men are not of uniform weight and 
 measure, nor of passions and feelings of equal duration and intensity. 
 Neither do the results, so far as concerns the truth or falsehood of testi- 
 mony, depend on the number of the mendacity-restraining, or the men- 
 dacity-promoting motives, but rather on the energy with which they act. 
 One motive may be sufficient in a given situation to restrain one, while 
 the union of many would be found insufficient to produce the same effect 
 in another individual. The dread of temporal punishment to a man sen- 
 sitive of reputation, might have more influence upon his conduct than 
 the dread of present and future punishment would on a mind diff"erently 
 constituted. The absence of one mendacity-restraining motive proves 
 not the absence of all. It merely proves that no reliance can be placed 
 on the one wanting. When the motives to perjury exceed the induce- 
 ments to truth and the checks to crime, then the witness, whoever he 
 may be, and whatever his belief, will testify falsely. In every case of 
 conflicting testimony, it is a question of comparison, weighing the differ- 
 ent characters and motives of witnesses, as to their effect on testimony, 
 and after this comparison, believing or disbelieving their statements. 
 This is done as to every witness and to every motive of his ; and if it can 
 be done when all the restraining motives are in full operation, it may 
 equally be done, when one or more may be removed. If then, the ques- 
 tion of belief is to be raised, it should be after the delivery of the testi- 
 mony, — as one affecting its credibility,- — and not before and for the 
 purpose of its rejection. 
 
 The fear of divine punishment(/) has probably less effect upon human 
 
 (/) In the report on the affairs of the East India Company made to the British 
 Parliament in 1832, Part 4, Judicial, p. 9, are to be found the minutes of testi- 
 mony taken before the committee. 
 
 Richard Clarlie says, " prosecutions for perjury are frequent." " Int. 96. What 
 is the effect upon the character of a native on his having been prosecuted for per- 
 jury and convicted 7 If the man is of a character, to which from rank or caste any 
 degree of respectability or sanctity attaches, those qualities would not be affected by 
 his punishment in the minds of the natives. I believe that persons holding office 
 in the temples have been viewed with equal reverence, and treated with equal de- 
 ference in regard to their spiritual authority, while under actual punishment for 
 perjury." 
 
 "W. B. Bailey, p. 88, says, " I am of opinion that the use of oaths might be aban- 
 (?07ie(i in our courts of justice without injury, if not with advantage. . . . My own 
 impression is that generally speaking, the moral sanction of an oath does not, espe- 
 cially among the lower classes, materially add to the value of native testimony ; 
 that the only practical restraint on perjury is dread of the punishment prescribed by 
 law for that offence, and that the fear of consequences in a future state, or the appre- 
 hended loss of character and reputation among their countrymen, has little effect 
 in securing true and honest testimony on the part of those who may be influenced 
 by the bias of fear, favor or affection." 
 
DEFECT OF RELIGIOUS PKINCIPIiB. 25 
 
 action than is generally imagined. Those who would disregard the pre- 
 sent motives to truth, would regard little a future punishment, which by 
 its very contingent remoteness loses its effect. The force of the religious 
 obligation is generally united with the other sanctions for truth, but when 
 tested alone, its weakness and inefficiency is perceived, as in the case of 
 custom house oaths, test oaths, and oaths (in England,] to obey the ob- 
 solete statutes of the universities. In these and similar instances, the 
 religious either stands alone or is opposed to the other sanctions, and is 
 perceived to be an ineffectual check to false testimony. If it be alleged 
 that all atheists are immoral, dissolute, &c., then the worse their cha- 
 racter, the less the danger of undue reliance being placed upon their 
 testimony. 
 
 An argument likewise is drawn from the oath administered. (^) " All 
 witnesses before they are examined, are called to an oath, by which 
 they appeal to the Supreme Being for the truth of their assertions, and 
 imprecate divine vengeance on themselves if their testimony should be 
 false." It is said to be absurd to administer an oath to those who deny 
 its obligations, and who disbelieve in the existence of a future state of 
 rewards and punishments. This may be so. But the atheist does not 
 deny the legal obligations of an oath, and the pains and penalties 
 attached to its violation, any more than he does those of any other law 
 of the land. He ignores only all obligations of a religious nature, and 
 his testimony is exempt from their influence. Were the witness to 
 testify under the pains and penalties of perjury, the supposed absurdity 
 would at once vanish. The objection, so far as it relates to the absurdity 
 of an oath being taken by one who disbelieves in the existence of God, 
 is purely formal ; and the remedy is simple and at hand, i. e., by a 
 change in the words used in the form or ceremony by which the atten- 
 tion of the witness is particularly called to the truth of the testimony he 
 is about to utter. 
 
 But atheism is a fact regarding the state of the mind, and the absur- 
 dity of its affording any suflScient ground of exclusion is very apparent, 
 when one reflects on the only possible mode of ascertaining the fact. If 
 the fact be proved by the statements of the supposed atheist upon the 
 stand, by relying on them as a ground of exclusion, the court rely in 
 fact, on his trustworthiness, and say that having, as they believe, 
 spoken the truth in that instance, the only one in which they have 
 known him to testify, he shall not be admitted to testify farther as a 
 witness for fear that he will ever after perjure himself in the testimony 
 he may give. (A) If he has stated an untruth, and is not an atheist, then, 
 by the law of the land, he is admissible. Or, if being an atheist, he 
 denies the fact, he must be admitted, for the witness alone knows the state 
 of his belief at the time of his examination, and is not contradicted, 
 though it should be proved that at some previous time he had admitted 
 his disbelief in the existence of God. This is to offer inducements to 
 the abandoned atheist to lie, and to exclude the individual who acts 
 with integrity. 
 
 [g) See chapter XVI. on Judicial Oaths, where this subject is further discussed. 
 (A) Swift's Evidence, 47. 
 
26 APPLETON ON RULES OF EVIDENCE. 
 
 If the atheist has such a regard for truth, such a sense of moral obli- 
 gation, (no matter how acquired) that in consequence thereof he acknow- 
 ledges his disbelief in the existence of God, he would by that very 
 admission be entitled to credit, inasmuch as if, in despite of the dis- 
 grace and ignominy consequent on the avowal of such opinions, and 
 the great temptations resulting therefrom to conceal his opinions, he 
 nevertheless acts with integrity, he shows himself possessed of extraor- 
 dinary firmness, and an uncommon regard for truth, and might certainly 
 be trusted as to other facts, in relation to which he would have no motive 
 to swerve from the truth. The unprincipled witness who scruples not 
 to deny his atheism and to assert falsely his belief in future punish- 
 ments, would be received. So the rule can never be productive of good. 
 It excludes the honest man who embraces that belief, and affords no 
 means of detection, no security (where alone it is needed) against the 
 dishonest atheist. 
 
 It is obvious that the best means of ascertaining an individual's 
 belief, will be to inquire of him whose belief is the subject of doubt; and 
 the preceding remarks are made on the supposition that the question as 
 to his belief is to be put directly to the witness. (i) But in a note on 3 
 Black. Com. 369, Mr. Christian makes the following remarks: "I have 
 heard," he observes, "a learned judge declare at Niai Prius, that the 
 judges had resolved not to permit adult witnesses to be interrogated 
 respecting their belief of the deity and a future state." If by this 
 remark it was meant, that the witness should never be inquired of, it 
 would operate as a repeal of the rule, unless inquiries were to be made 
 of other witnesses. But in Curtis v. Strong, 4 Day, 51, (A) it was de- 
 cided that the declarations of a witness out of court were admissible to 
 prove his incompetency, and that the witness could not be permitted in 
 court to explain or deny the declarations imputed to him, because it 
 would be incongruous to admit a man to his oath for the purpose of 
 ascertaining whether he had the necessary qualifications to be sworn. 
 This may be regarded as the existing law on the subject. However 
 incongruous it may be to admit a man to his oath for the purpose of 
 learning if he has the necessary qualifications to become a witness, it is 
 certainly much more so, to rely for the same purpose on loose conver- 
 sations, or unguarded statements unsanctioned by the penalties of the 
 law. If the law be that proof of atheism is only to be had by receiving 
 evidence extraneous to the witness, besides the absurdity of putting 
 confidence in his statements for the purpose of discrediting him — 
 excluding him by reason and in consequence of these very statements — 
 it has the still more glaring absurdity of preferring hearsay evidence to 
 direct proof under the pains and penalties of perjury — for to the motives 
 arising from the fear of those pains and penalties, the atheist is amena- 
 ble. The witness is regarded as worthy of credit as to his loose, casual 
 statements — regarded as worthy of credit so far as he is known — he is 
 excluded, because believing him, he is deemed unworthy of credit. 
 His statements made without any securities for their trustworthiness are 
 
 (i) 1 Phil. Ev. 20. (/c) Jackabn v. Gridley, 18 Johns. 99. 
 
DEFECT OF RELIGIOUS PRINCIPLE. 27 
 
 regarded as true, and serve for the exclusion of his statements under the 
 penalties of the law, when the dangers of falsehood would be diminished 
 and the safeguards for truth increased. 
 
 As the fact of atheism is only proved, so it can only be disproved by 
 the declarations and conduct of the witness, whose religious belief is 
 the matter in controversy. The witness cannot be sworn, " because it 
 would be incongruous to admit a man to his oath for the purpose of as- 
 certaining whether he had the necessary qualifications to be sworn. "(Z) 
 He cannot be interrogated before being sworn, or after his statements 
 have been received, either to explain, deny or qualify them, because 
 " nothing can be evidence unless delivered under the sanction of an 
 oath," and " the declarations of the witness not under oath, do not dis- 
 prove" the truth of his statements. . It seems, therefore, well establish- 
 ed, that an infidel " can neither be sworn to disprove the fact, nor be 
 permitted without oath, to make himself competent."(?>i) 
 
 The statements of the witfiess made out of court and reported, may 
 have been misunderstood, misrecollected or misreported. When origin- 
 ally uttered, they were without the securities which the law regards 
 so important for the truth of testimony. They were the unsworn remarks 
 of the individual. When sworn to by the percipient witness, they are 
 but hearsay. If the witness being present in court were interrogated, 
 all the dangers incident to hearsay — to reported evidence — would vanish. 
 The judge would see with his own vision, hear with his own ears. 
 Besides, the then present state of mind of the witness, is the subject 
 under investigation. (») His past belief is only important as throwing 
 light upon his present. But the past might be as the reported state- 
 ments of the witness would indicate it to have been, but his views and 
 belief may have changed. The action of the court is in all cases based 
 upon the unsworn statements of the excluded witness. Uttered in their 
 presence, they reject them — uttered in their absence and reported by 
 same accidental auditor, they receive and act upon them, depriving the 
 witness of all opportunity for correction, explanation or denial; pre- 
 ferring hearsay and loose statements to direct and immediate answers 
 made in their hearing, and in answer to their own interrogatories. 
 
 But in truth, action, not belief, is the object of legislation. Grovern- 
 ment has no right to interfere with the religious belief of its citizens. 
 This is a question between them and their God. Government should 
 
 (l) Jackson v. Gridley, 18 Johns. 99. 
 
 (m) Jackson v. Gridley, 18 Johns. 99. 
 
 (re) If the objection be want of religious belief, the party objecting cannot in- 
 terrogate the witness, but must prove the witness's declarations. Perry's case, 3 
 Gratt. 632. U. S. v. Kennedy, 3 McLean, 175. 1 Greenl. Ev. § 370. 
 
 But upon this point the authorities differ. In Quinn v. Crowell, 4 Wharton, 
 334, the defendant called a witness, to whom the plaintiff objected, on the ground 
 of an alleged want of religious belief, and the judge admitted the testimony of 
 witnesses in support of and in opposition to the objection, and afterwards' the 
 person objected to was examined on his voir dire, and having testified to his 
 belief, was admitted to give evidence in chief, and it was held not to be error. 
 
 It was held in 17 111. 541, that the court might hear the explanations of the 
 witness, and then determine as to his admissibility. 
 
28 APPLBTON ON RULES OF EVIDENCE. 
 
 never meddle with abstract belief; it should never expose a man 
 to ignominy or disgrace for atheism or deism, or erroneous opinions of 
 any description. The moment those opinions result in action detrimen- 
 tal to the community — the moment the immoral man is guilty of im- 
 morality, — the moment the atheist commits perjury, then the duty of 
 government commences. If, because a man is an atheist it should there- 
 fore be presumed that he would commit perjury, and his testimony for 
 entertaining such a belief should be excluded, why might it not equally 
 well be presumed, that for the same reason he would commit murder, 
 and thus government be justified in confining him for life. In other 
 words, if he may be punished (and this exclusion is a punishment 
 for opinion,) because it is supposed, without the preventive care of 
 government in requiring his exclusion, that he would commit perjury; 
 why should not government see that he does not have the power of com- 
 mitting every other crime, and as a precautionary measure, confine him 
 for life. It is just as probable that from flefect of religious principle 
 the atheist will shoot the first man he meets, as that he will perjure 
 himself the first time he is called as a witness ; and he may with equal 
 propriety be prevented by confinement for life from doing the one, as 
 by exclusion from doing the other. The punishment is more severe in 
 the one ease than in the other; hut one meets thousands of men, for 
 every time he is called as a witness. 
 
 It seems however, in civil cases, that the objection of atheism is not to 
 be taken to the testimony of a party wherever it is receivable ; that the 
 atheist may make affidavits in all cases where they are allowable, may 
 swear to his answer to a bill in equity, and generally is admissible as 
 and where any party is received. " The law in such cases does not know 
 that he is an atheist ; that is, it never allows the objection of infidelity to 
 be made against any man seeking his own rights in a court of justice. "(o) 
 But the law regards a belief "in the existence of an omniscient 
 supreme Being, who is the rewarder of truth and the avenger of false- 
 hood," as " an indispensable test of truth." But if indispensable, why 
 should it ever be dispensed with ? When " his own rights" are in- 
 volved, the danger of perjury is the greatest possible. If the witness 
 is unworthy of credit generally, why should he be received, when to 
 the untrustworthiness of erroneous belief is superadded that of the in- 
 terest of a party ? 
 
 But while in civil cases, the atheist may receive the protection of the 
 law, in criminal cases he meets with a total denial of justice. All ima- 
 ginable wrongs may be committed upon his family in his presence, all 
 conceivable ofl'ences may be committed upon his person or his property, 
 and unless he can procure testimony of the requisite standard of belief, 
 he is without the pale of the law. 
 
 The rights of others may be at stake. However important the facts 
 within his knowledge, his testimony is rejected. It must be remem- 
 bered, that proof cannot he had hy aslcing, and whenever by the exclu- 
 sion of the only existing proof (the witness being an atheist) the pun- 
 Co) 1 Greenl. Ev. 414, n. 
 
DEFECT OF RELIGIOUS PRINCIPLE. 29 
 
 ishment falls on the innocent individual, wtose cause may require his 
 evidence. Admitted, " when his own rights are concerned," he is ex- 
 cluded, lest he may be made <'the instrument of taking away those of 
 others." But if he testify truly, the rights of no one will be taken 
 away. Why is he not, in the absence of all sinister motives, as likely 
 by his testimony, to support just rights as unjustly to take them away ? 
 Why assume the falsehood of his testimony, and that its tendency will 
 be to take away rights, when no motive is shown to induce false testi- 
 mony ? Why judge of the character of testimony before it is heard ? 
 But if a judgment must be passed upon the trustworthiness of a witness 
 before he is heard, why should it be uncharitable ? and so uncharitable 
 as conclusively to determine that in the entire absence of all motives to 
 falsehood, and with the presence of the ordinary motives to truth, it will 
 be perjurious ? 
 
 Nor is this all. It leaves it in the power of any man to be a witness 
 or not. A believer, interested for one party and knowing facts adverse 
 to his interests, has only falsely to profess an erroneous belief, and he is 
 excluded. Wishing to be a witness, and being an atheist, he has only 
 to express a change of sentiments and attend church,(p) and he will be 
 admitted to testify. He alone determines whether he will be heard or 
 not. If an atheist and a man of integrity, he is peremptorily shut out ; 
 if an atheist, and he will lie and deny his atheism, he is unhesitatingly 
 received. The law does not even protect itself, excluding all honest and 
 admitting all dishonest unbelievers, provided only that they are willing 
 to render themselves competent by falsehood. 
 
 The rule of law has not a solitary benefit to counterbalance its un- 
 mitigated evil. The evil is less perceived because the numbers to be 
 affected by the exclusion are few, and the instances when the excluded 
 testimony may be needed, are rare. 
 
 [p) If " it could be proved by external signs, that there had been a change of mind, 
 such as a pious and devout attention to religious worship, and a declaration in the 
 belief of God and a, future state of rewards and punishments, such proof might rein- 
 state the witness, and entitle him to be sworn." Per Spencer, C. J., in Jackson 
 T. Gridley, 18 Johns. 99. 
 
 But it seems a single declaration of a change of views made during the term, 
 when the party making it is to be offered as a witness, and after he is advised that 
 he will be objected to on that account, is not suficient. Scott v. Hooper, 14 Ver- 
 mont, 535. The inquiry arises, how many declarations will suffice, and when 
 must they be made. 
 
 February, 1859. — i 
 
CHAPTER III. 
 
 INCOMPETBlSfCY OF WITNESSES FROM INFAMY OE CHARACTER. 
 
 " There are many offences whicli our law considers such blemishes on 
 the moral character, as to incapacitate from giving evidence in courts of 
 justice ; as treason, and every species of the crimen falsi, such as forgery, 
 perjury, subornation of perjury, &c., and other offences of the same kind, 
 which involve the charge of falsehood, and affect the administration of 
 justice."(a) Individuals convicted of these crimes, upon whom judgment 
 has been passed, are said to be incompetent from infamy of character, and 
 are not even heard. (6) 
 
 The evils of this rule may be enumerated in a few words. To the ex- 
 tent of its operation, it licenses the commission of any and all crimes in 
 the presence of and upon persons thus convicted, (none but convicts being 
 present,) and completely annihilates all rights of person or property, 
 when those rights can only be established through the medium of this 
 
 [a) 1 Phil. Ev. 24. 
 
 (i) " Publico judicio damnati et nou in integrum restituti, admittendi non sunt 
 ad testimonii fidem." Dig. lib. 22, tit. 5, de Testibus, art. 3, § 5. 
 
 " Denique ex eodem sibi recte collegere videbantur vacillare fidem judicio publico 
 damnatorum, criminis accusatorum, Tel in vincula publica conjectorum, calumnisein 
 publicis judipiis damnatorum, senatu motorum, paganoram apostatarum hjereti- 
 corum, damnatorum ob carmen famosum, ob corruptionem, acceptamve pecuniamut 
 testimonium vel dicerent, vel non dicerent, mulierum quae qusestum corpore fece- 
 runt, eorum qui vitam ad cultrum depugnandasve bestias locarunt, omnium, denique 
 viliorum et pauperum, quamdiu aliorum est copia." Heinneoii Elementa Pandectarum. 
 lib. 22, tit. 6, I 139. 
 
 " The depositions of those who are rendered infamous by any condemnation 
 ought to rejected. . . Not only the loss of a state of good fame, but even the sus- 
 pension of that state, by a dicret for the apprehension of a person, is a ground for 
 rejecting his deposition ; because for a witness to be worthy of credit, it is not 
 sufficient that he should be free from crime, he must also be free from all legiti- 
 mate suspicion." 1 By. Poth. part 4, c. 2, art. 8, \ 790. 
 
 By the Scotch law, " Infamia juris, that is to say, infamy ascertained by a legal 
 sentence, is in general the only ground of exclusion under this head." Glassford 
 onBv. 401. 
 
 " La deposition judiciaire d'un t^moin qui a subi une peine afHictive definie, (et 
 limitSe par loi, on meme toute autre peine correctionalle,) n'est point admissible 
 dans une accusation semblable a cells qui a amene la condemnation de ce tfemoin. 
 Dans toute autre question differente le temoignage de ce temoin sera valable ; ainsi 
 celui que aurait subi le peine portee oontre tout musulman qui s'enivre serait ad- 
 mis a t6moigner dans une accusation pour injure et diffamation. Mais s'il s'agis- 
 sait d'un musulman converts qui, avant son islamisation aurait 6t^ punl pour 
 s'Stre enivrfi, cette punition ancienne ne pourrait motiver le rejet du temoignage 
 aprfes cette conversion." Priucipes de legislation musulmane, par Khalil Ibn-Ish'ak 
 traduit par M. Perron, 5 tome, 209. 
 
INCOMPETENCY FROM INFAMY OF CHARAOTBE. 31 
 
 sort of evidence. The benefits of a contrary rule would, of course, be 
 the prevention of those evils. 
 
 The objects of courts being to ascertain the truth, and the only evil to 
 be guarded against beina; wrong decision, it is perfectly immaterial what 
 or how infamous the witness may be, provided, when called on the stand, 
 he speaks the truth. This being the only object of the introduction of 
 any witness, it follows, that if a person convicted of theft be as likely 
 as any other individual not so convicted, to state the truth, he answers 
 equally well the purpose of his introduction, and should be heard. Neither 
 infamy of character, nor deformity of body, affords a valid reason for 
 rejecting testimony which is probably true. However desirable it 
 might be that none but witnesses of high moral character should ever 
 be introduced, it would undoubtedly be still more desirable, that no 
 occasion should arise for the introduction even of such testimony ; that 
 is, that litigation should cease. B.ut as this is utterly hopeless, and as 
 it is impossible to foresee every dispute which may arise, and to pre-ap- 
 point the testimony, and as there are frequently no witnesses of a con- 
 tested transaction, but those whose characters are thus tainted with in- 
 famy, the question occurs whether the ends of justice would be better 
 served by the introduction of such testimony, however dangerous it may 
 be, than by its rejection. If other testimony be attainable this will 
 never be offered. It might as reasonably be supposed that a party would 
 prefer the interests of his opponents to his own, as that he would intro- 
 duce secondary, when the best evidence was within his reach ; a man of 
 less when a man of more credit might be obtained. The question there- 
 fore is, whether, when as full evidence as by possibility might exist, 
 cannot be had, that shall be rejected which is within our power; whether 
 the light of the sun being unattainable, total darkness should be preferred 
 to the dim and uncertain light of the twinkling stars. 
 
 In discussing every question of exclusion, the argument for general 
 admission is so cogent, that the burden of proof lies on the objecting 
 party to support his position ; to show a preponderance of evil resulting 
 from the reception of that particular species of evidence he seeks to 
 exclude. 
 
 The strongest objections which can be urged against the admission of 
 a witness convicted of crime, are a presumedlc) want of truth inferred 
 from the moral turpitude displayed in the commission of previous crimes, 
 and the inefficiency of moral restraints upon such witness, and the 
 probability that, if he should testify untruly, the judge of fact will, 
 from some cause, place undue reliance on this evidence ; for if the wit- 
 ness testify truly, or if no more than the proper credit be given to his 
 statements, the rights of the parties or the interests of the community 
 will not suffer. In other words, the advocates of exclusion say that 
 there is preponderant probability that the witness will perjure himself, 
 and that his perjuries will be credited. 
 
 (c) " It cannot reasonably be expected that such a person woald regard the 
 obligations of an oath. By the turpitude of his conduct he has shown that he is 
 regardless of laws, human and divine." — 1 Starkie Ev. 82, 
 
32 APPLETON ON KULBS OF EVIDENCE. 
 
 To justify this result, it is inferred, from the commission of one crime, 
 that the individual committing it, will further commit perjury whenever 
 he shall be called upon to testify in a court of justice. It is undeniably 
 correct, that the fact of a witness's having once violated the laws of 
 morality, is a good reason why less reliance should be placed on his 
 statements than on those of an individual of irreproachable reputation. 
 It is a well known rule of law, that every man is to be presumed inno- 
 cent till his guilt is established by satisfactory proof. But the principle 
 of exclusion reverses that salutary maxim ; it rejects the witness not for 
 actual, but presumed want of truth and on account of supposed prospective 
 guilt. The convict can and ma^ speak the truth. Because a man has 
 committed theft, it by no means follows that he will commit perjury. 
 Because he has violated one law, it is by no means sure that he will 
 violate any or all other laws upon the statute book. Does the father 
 never again question a child, who has once told an untruth ? After 
 having once felt the punishment of the law for its violation, it by no 
 means follows, that from some peculiar obliquity of taste, the criminal 
 will again court its penalties. Take the case of perjury : and let the 
 inference be, that because the witness has once perjured himself, he 
 will again do the same the next time an opportunity occurs. Who does 
 not perceive such an inference rash and unfounded ? Were an individual 
 on trial for theft, what magistrate would consider the record of a. previous 
 conclusive proof of the subsequent supposed theft in the absence of all 
 other evidence. But this rule of exclusion conclusively infers perjury 
 from some precedent delinquency, and it allows no evidence to disprove 
 this inference. The case in which the perjury was committed, was one 
 in which the balance of conflicting motives induced the commission of 
 that crime ; but it furnishes no certainty that the same crime would be 
 committed under different circumstances. Indeed, unless the present 
 penal code be deplorably inefficacious, even in a case perfectly similar, 
 the probability is, that having once suffered the penalties of the law, he 
 will not again provoke them. The commission of other crimes affords 
 still less proof, from which this species of guilt is to be inferred. 
 
 " The law excludes those," says Mr. G-reenleaf,(cZ) " who have been 
 guilty of those heinous crimes, which men generally are not found to 
 commit unless when so depraved as to be unworthy of credit for truth. 
 The basis of the rule seems to be that the witness is morally too corrupt 
 to be trusted to testify/ ; so reckless of the distinction between truth and 
 falsehood, and insensible to the restraining force of an oath as to render 
 it extremely improbable that he will speak the truth at all." That 
 there are offences which should exclude the witness, seems to be assumed 
 as right. Still " it is a point of no small difficidty to determine pre- 
 ci,sely the crimes which render the perpetrator thus infamous." They 
 must, however, be those which " imply such a dereliction of moral 
 principle as carries with it a conclusion of a total disregard to the obli- 
 gation of an oath." In other words, the offence must be such an one as 
 will justify «the conclusive inference of future from past crime. The 
 
 {d) 
 
 1 Greenleaf on Evidence, § 372, and passim. 
 
INCOMPETENCY FROM INFAMY OF CHAEACTEK. 33 
 
 law makes this a legal presumption, and does not permit its disproof. 
 Were the witness heard, and his credibility submitted to the considera- 
 tion of a jury, all would be right. But this is not done. A witness is 
 excluded, because from the commission of a past offence it is inferred 
 conclusioely that he will perjure himself whenever called on to testify. 
 But what and how great is this probability of future from past cpme? 
 The offence, whatever it was — on account of which the exclusion takes 
 place — however great its moral taint — however atrocious its character — 
 was committed under the influence of powerful motives then operating 
 on the mind of the culprit — ^motives so strong as to overcome all moral 
 restraints. But unless some motive or motives of the greatest strength 
 are acting upon the witness, will he commit a second crime? Because 
 one crime has been committed, it by no means follows that the same 
 person will again commit another under the same circumstances — still 
 weaker is the inference if the circumstances are changed, and every 
 motive points in a contrary direction. Lives there the man, lived there 
 ever the man so corrupt that he would commit crime without motive? 
 Is it conceivable ? Examine then the situation of the witness — the 
 various motives which may reasonably be presumed as likely to influ- 
 ence his conduct — allow them their fitting and appropriate significance 
 — hear all the evidence that may be offered touching his character for 
 truth and veracity, and then after it is heard, determine as to the truth 
 or falsehood of the testimony received — but never refuse to hear. 
 
 But if punishment has been imposed and suffered — punishment such 
 as the law, regard being had to prevention and reformation, has adjudged 
 meet and proper — it may be presumed sufi&cient, if there be any pre- 
 ventive or reformatory effect in punishment, to prevent the repetition of 
 crime on the part of one who has once suffered. If not suificient, it 
 should be increased. If increased indefinitely, and no such effect is had, 
 then is the infliction of legal punishment pure and unmixed evil. If the 
 law neither amends by its sufferings, nor prevents by its terrors, it can 
 only be considered as the application of so much physical force, by 
 which during a given period of time the criminal is restrained from 
 injury to society. If the law is of any service, either by way of amend- 
 ment or prevention, then one who has once endured its penalties, would 
 be less likely to err even to promote his imagined interests — still less 
 would he be disposed to commit crime, when the rights of others are 
 involved, and for their benefit. 
 
 In all oases, where there is no sinister interest, no motive to seduce 
 from truth, the worst equally with the best man, is entitled -to credence, 
 unless it be considered sound reasoning to suppose ah effect without a 
 cause. 
 
 The convict is of the same common nature, actuated by the same 
 desires, incited by the same hopes, and deterred by the same fears, 
 which influence the action of others. The commission of any given 
 crime shows that under a certain combination of circumstances, he had 
 not suificient firmness to resist temptation, and affords ground to believe 
 that where his own interests are in issue [and in no other case\ he 
 would more readily than another yield to temptation, — that motives 
 
34 APPLETON ON RULES OF BVIDBNOE. 
 
 preventive of crime have less weight with him than with others — not 
 that they have no weight. It is a stain on his character, on account of 
 which a deduction should be made from the credit otherwise to be 
 given to his evidence, and of the effect of which the jury can judge as 
 well as of any other discrediting circumstances. 
 
 So stands the argument as to the probability of the truth of his 
 statements. If then his evidence being necessary, be rejected, certain 
 evil, inevitable misdecision is the result; while if received, the worst 
 that happens is, what is sure in the event of exclusion ; that is, certain 
 is preferred to doubtful and contingent evil. 
 
 If then the witness, whether his testimony be true or false is admitted, 
 still unless undue reliance be placed on his testimony no evil ensues. 
 The position that there will be this error, assumes for its basis either 
 imbecility or dishonesty on the part of the judge of fact, and so far ope- 
 rates only as an argument showing that there should be a change of 
 judges. The evil, remember, is undue reliance on this suspicious testi- 
 mony. The judge, who can in other cases weigh and compare testimony, 
 can equally well do the same in this. A witness comes forward, having 
 at some previous time been convicted of perjury. He comes with the 
 mark on his forehead. The jury (if the trial be by jury,') are cautioned 
 by counsel and judge, and by the proof of his recorded infamy. Would 
 every word he uttered be likely to be received implicitly as truth ? 
 Would the danger be, that thus forearmed and forewarned, he alone 
 would be too dangerous to be heard ? so dangerous that he must be ex- 
 cluded ? Would not the danger rather be, that his evidence being true, 
 would be disbelieved, than that being untrue, it would be credited ? Is 
 there such magic in falsehood ? The judge says, this is suspicious, 
 dangerous evidence, — too doubtful to affect the rights of parties; and 
 yet knowing its doubtfulness — the suspicion adhering to it, — for fear he 
 shall believe, he dare not trust himself to hear it. " Strike, but hear." 
 Judge but hear ; — would he not be better prepared to judge of the truth 
 of testimony after its delivery than before ? The evidence, when disbe- 
 lieved, produces no direct effect. It is the same as if not heard. If it 
 would be believed, then the legislator, who establishes the rule of exclu- 
 sion, assumes on his part, that he is a better judge of the truth of the 
 statements of an individual of whom he is utterly ignorant, than the tri- 
 bunal which sees his manner, hears and compares his testimony with the 
 other evidence adduced, and after this comparison, gives credit to what 
 he utters. 
 
 But this pious horror of crime, this virtuous indignation at guilt will 
 not alone suflSce for exclusion ; mere crime, however atrocious, and how- 
 ever fully admitted, never excludes. With the old Spartans, theft per se, 
 was well enough, — rather approved than otherwise. The detection it 
 was which was considered worthy of punishment. So with the common 
 law. The judgment it is which excludes. The avowed but unconvicted 
 thief or perj urer is a competent witness. The accomplice, testifying under 
 the expectation of pardon or the hope of reward, equally guilty with the 
 accused whose conviction he is seeking to procure, is heard ; and to his 
 testimony, laden with the guilt of crime, and induced by the hope of 
 
INCOMPETENCY FROM INEAMT OF CHARACTBE. 35 
 
 pardon, the law takes no exception. The guilt in each case the same, — 
 associates in crime, — the accomplice, with pardon dependant upon his 
 testimony, is received to convict, while the associate, if convicted and 
 sentenced, would not be heard to testify in a cause between other parties 
 in which he had no interest. This admission " is justified by the neces- 
 sity of the case," as if any necessity would justify the admission of those 
 who had committed crimes, which carried with them " a conclusion of 
 a total disregard to the obligations of an oath." 
 
 But the judgment is not always enough. Neither the crime nor the 
 judgment will exclude, if the conviction shall have taken place in a state 
 other than that in which the witness is to be examined. This " insensi- 
 bility to the obligation of the oath," this recklessness of " the distinction 
 between truth and falsehood," this moral corruption of the witness, are 
 matters "strictly territorial." (e) This judgment may however "be 
 shown in diminution of the credit due to his testimony." But the same 
 crime is no worse in one state than another. If " the conclusion of a 
 total disregard to the obligations of an oath" be correct in one state, why 
 is it not equally so in all ? If this inference of the law be well founded, 
 why should not increased efficiency be given to so wise a rule, and its ap- 
 plication be of universal extent. But if on the other hand, the evidence 
 of avowed criminals — of convicts from other states has been and can be 
 received without danger, their crime being "shown in diminution of the 
 credit due" them, what reason is there why the law cannot be safely 
 changed, and all convicts be admitted, subject to such just deductions 
 from the weight of their testimony, as in each case the jury may deem 
 proper ? 
 
 This taint — this " disability," it must be borne in mind, arises from a 
 recklessness of "the distinction between truth and falsehood," and an in- 
 sensibility to the " restraining force of an oath" — both unfortunate de- 
 fects in a witness, but happily they are found removable, and thus a way 
 found by which the convict equally with the unconvicted accomplice may 
 be heard. 
 
 The various modes of " restoring competency," the sovereign remedies 
 by which all danger is removed, and the mouth of the witness opened, 
 can scarcely be mentioned without a smile. To pass by the sham pro- 
 cess of " confessing error in the record," or the mystic virtues of burn- 
 ing in the hand, as recognized means of expelling mendacity, a remark or 
 two may be made with regard to pardons, — whether by statute or under 
 the great seal; the " most effectual modes of restoring competency, "(/) 
 and the only ones in vogue in this country. The others, though possess- 
 ing no ordinary virtue, have been little tried here. It would hardly be 
 supposed that a witness would be more trustworthy the moment after 
 than the moment before a pardon ; and indeed it seems that some have 
 
 [e] 1 Greenleaf on Evidence, § 376. This it seems is a " disqualification not aris- 
 ing from the law of nature, but from the positive law of the country." The au- 
 thorities are conflicting as to the effect of a judgment of an infamous crime passed 
 by a foreign tribunal upon the admissibility of testimony. Com. v. Greene, IV Mass. 
 515 ; State v. Candler, 3 Hawks. 393. 
 
 (/) 1 Phil. Ev. 29. 
 
36 APPLETON ON RULES OF EVIDENCE. 
 
 ttought " that a pardon could only remove the incompetency and not the 
 blemish." But such absurd notions have given place to more reasonable 
 ideas, it being now clear that a pardon, whether under the great seal or 
 by act of parliament, " makes the witness a new creature and gives him 
 a new capacity." If such be the virtues of the seal or of parchment, 
 (and if such are not the effects, it will be difficult to tell what they are,) 
 it seems unfortunate that they are not oftener tried to the utter removal 
 of all falsehood. However, as a quack remedy by which competency may 
 be restored, it is not without its use. 
 
 The absurd and evil consequences of the rule of law by which infamy 
 of character, as established by conviction, is made a ground for the ex- 
 clusion of testimony, was most strikingly illustrated in the trial of Abner 
 Kogers, for the murder of Charles Lincoln, a warden of the Massachu- 
 setts State Prison. (^) The accused was a convict, and the only witnesses by 
 whom the crime could be proved were the fellow convicts of the prisoner. 
 That they saw the crime when committed, if committed ; that there were 
 no motives perceptible, at least, which would be likely to induce false 
 testimony ; that they were willing to narrate what they saw ; that 
 without their testimony crime would go unpunished, they being the only 
 witnesses by whom it could be proved, were reasons which would have 
 been regarded sufficient by an unlearned layman, ignorant of legal 
 rules, to have at once received their testimony, and after making such 
 deductions therefrom as the tarnished character of the witnesses would 
 seem to require, to have decided in accordance with the convictions of 
 his understanding. It would never have occurred to him, that to procure 
 a chance for the conviction of one, all the convicts whose testimony might 
 be important or necessary for conviction, should be turned loose upon 
 society, and that this was a matter of legal necessity, so stringent, that 
 if not done, the assured impunity of the criminal was a matter of the 
 
 (g) Trial of Abner Rogers, jr., reported by G. T. Bigilow and George Bemis. In 
 the above report are to be found the following remarkable paragraphs, illustrating 
 most strikingly this branch of law. 
 
 " John P. Reed, called and sworn. (It was agreed that the witness had been 
 pardoned by the governor to render him competent on the part of the prosecution.") 
 
 '■ Joseph TuUy, called and sworn. (This witness it was agreed had been made a 
 competent witness on behalf of the government by pardon.") 
 
 " George H. Savery, called and sworn. (This witness it was agreed had received 
 a pardon to enable Mm to testify on behalf of ih& prisoner.'') 
 
 " William Bevenel, called and sworn. (This witness had been rendered partly 
 competent by pardon aud partly by writ of errors) 
 
 '• Bernard Lander called. Objected to by the State's attorney as incompetent 
 from having been convicted for receiving stolen goods. Record offered, showing 
 his conviction of that offence and his commitment to the States prison. The wit- 
 ness was rejected." 
 
 "Henry Rockford, called and sworn. Objected to, as having been convicted of 
 petty larceny in the Police Court of the City of Boston. Pardon produced by the 
 witness." 
 
 Abner Robers was indicted and tried for the murder of Charles Lincoln, jr. The 
 law presumes all accused innocent, — it presumed him innocent. The verdiet of 
 the jury was in accordance with the presumption of law. One person not having 
 received a pardon was rejected as a witness — not because his testimony might not 
 have been true, and of vital importance to the prisoner, but because he wanted 
 the pardon so necessary to technical competency — so unnecessary to testimonial 
 veracity. 
 
INCOMPETENCY FROM INFAMY OF OHARAOTBE. 37 
 
 most entire certainty. Not so the common law. That presumed the 
 prisoner innocent, and in this case the verdict of the jury was in ac- 
 cordance with this presumption. Yet five individuals, convicts, whose 
 guilt was as satisfactorily established as guilt ever can be, justly suffering 
 the penalties imposed by law, were pardoned, not on account of any good 
 conduct or peculiar veracity of theirs, but simply that thereby they 
 might be made competent witnesses. A sixth was called, but no pardon 
 being produced he was rejected. A just punishment for an offence com- 
 mitted was in each instance of the pardon remitted. The punishment 
 of innocence and the escape of guilt are both disastrous to society. The 
 remission of a just and fitting punishment of a crime, for a cause totally 
 unconnected with the character or conduct of the pardoned convict, is 
 an evil great in proportion to the justice of the punishment thus cause- 
 lessly remitted. If the punishment was just the pardon was unjust — 
 a violation of the will of the legislator. To aid in the conviction of one 
 whom the law presumes to be innocent, any supposable number of those 
 known to be guilty are relieved from the punishment which of right they 
 should suffer. 
 
 But why pardon ?(Ji) Is there any magical virtue in « the great seal ?" 
 Does it resemble, in its moiral efiicacy, the royal touch in its healing 
 virtues ? The one heals disease ; does the other cleanse from sin ? Does 
 the great seal remove " this presumed total disregard to an oath ?" 
 Does it confer new sensibilities to its obligations ? Why in the case 
 referred to, were five convicts pardoned ? Did the " great seal" change 
 the evidence, which these convicts would have delivered, from falsehood 
 to truth ? Were these witnesses after pardon, any more deserving of 
 confidence ? Was their testimony any more likely to be true than that 
 of their fellow-convict, who was not among the lucky ones, from whom all 
 moral taint was removed by the supernatural virtues of a "great seal ?" 
 If the trustworthiness of the witness is not increased, nor his testi- 
 mony changed, then, of what conceivable benefit is the pardon ? If the 
 testimony was made more reliable, cannot legislative wisdom devise some 
 mode, by which the virtues of the " great seal" as a preventive of 
 falsehood, may be further extended ? If the pardon is inefficacious, 
 as respects the witness, does it enlarge the sagacity of the judge or in- 
 crease the discernment of the jury ? If not, if no effects ensue from 
 this mummery, if the trustworthiness of the witness is not increased, 
 nor the capacity of the judge enlarged, nor the discernipent of the jury 
 rendered more acute, then all that has been accomplished is, that crimi- 
 nals expiating their offences by suffering the appointed punishment, are 
 turned out again to commit new depredations; justice is defrauded of her 
 due, and nothing whatever has been gained, save by the criminal ; for 
 the pardoned witness might just as well have been heard without the 
 
 (A) "Formerly the objection to the competency of a witness arising from a con- 
 viction of a crime inferring infamy was indelible, and not to be removed except 
 by the royal pardon, or by act of Parliament ; no lapse of time or endurance of 
 punishment could efface the stain attached to the character by the conviction. And 
 this, supposing the objection of incompelmcy founded on infamy to be in itself expe- 
 dient, appears to be the necessary consequence of the conviction." Tait on Bv..346. 
 
38 APPLETON ON fiULES OF EVIDENCE. 
 
 pardon as with ; as well permitted to testify when his offence is evidenced 
 by a judgment, as by his own admissions; when committed within as 
 without the state where the trial is had, leaving it to the jury to place 
 such reliance on the testimony as they may think, under all the circum- 
 stances, it is entitled to. If competent to judge of the veracity of a 
 pardoned convict, will they be hopelessly at fault if the convict should 
 testify before them without any pardon ? 
 
 But the truth is, the pardon is a silly device to evade the consequences 
 of a bad rule. But this it does not necessarily accomplish. The pri- 
 soner may need the testimony of a convict, to establish his innocence. 
 The pardon so necessary to technical competency, so unnecessary to tes- 
 timonial veracity, depends on the will of the executive magistrate of the 
 state, and it can hardly be supposed, that he will pardon proven guilt, 
 for the purpose of facilitating the escape of a prisoner, though if not 
 done, even innocence should suffer. The rule is full of evil, and that 
 continually, without a particle of alleviating good. Important witnesses 
 may thus be shut out, the truth excluded and justice be perverted. The 
 consequences will fall not on the party guilty — the convict — for to him 
 the utterance of testimony is a matter perfectly immaterial, but on the 
 party in the right, who is entirely without fault, and whose misfortune 
 it is to be thus deprived of evidence, which may be true and necessary 
 to the attainment of his just rights. Experience has fully shown, that 
 no evils have resulted from the admission of the accomplice or of par- 
 doned convicts, — and if none in those cases, there can bo none in any. 
 
 It has been recently enacted in England,(i) that enduring the punish- 
 ment to which an offender has been sentenced for any felony not pun- 
 ishable with death, has the same effect as a pardon. This has been 
 deemed all wrong by men learned in the law,(^) punishment in its pre- 
 ventive or reformatory effects being in no respect equal to the great seal. 
 
 But the rule of law by which persons convicted of infamous crimes 
 are excluded from testifying, has its exceptions, which are in principle 
 utterly at variance with the rule as originally established. The convict, 
 if a party to a suit, may make an affidavit in his own defence, but not 
 as complainant. Here, in the very worst form of testifying, where the 
 witness is unquestioned, uninterrogated, his interests being involved in 
 the result, the convict is allowed to testify under the additional disabi- 
 lity of interest — as if any conceivable danger arising from this testimony 
 were not more than doubled under Such circumstances. Yet, his affi- 
 davit is admitted ; and why ? Because, " otherwise he would be with- 
 out remedy ;"(l) a good reason undoubtedly, indeed the only reason 
 why testimony is ever given ; but equally applicable to the case, when 
 without such testimony, others " would be without remedy," and when 
 the evidence would be given under circumstances infinitely less ob- 
 jectionable. 
 
 The witness, too, whose character for want of truth is notoriously 
 bad, is received, and this want of truth is urged as an argument against 
 
 (i) St. 9 Geo. 4, ^. 32, § 2. (k) 1 Phil. & Am. on Ev. 25. 
 
 (l ) 2 Starkie, Ev. 123. 
 
INCOMPETENCY FKOM INFAMY OF CHARACTER. 39 
 
 his credibility. In this case, a witness with 2k proved want of truth, is 
 admitted, while in the exclusion of the convict, a supposed and inferen- 
 tial want of truth is the reason for rejecting his testimony. 
 
 The accomplice is every day admitted " notwithstanding the turpi- 
 tude of his conduct," and yet the evils anticipated from the admission 
 of men infamous for crime, not merely does not occur, but their evi- 
 dence is deemed indispensable to a wise administration of the law ; as 
 without such proof, it is "often impossible to bring the principal offenders 
 to justice." In this instance, proof of present depravity, the fact alone 
 worthy of regard, (for past is only adduced to prove present depravity,) 
 is more clear and decisive than it can be in any other case. Persons 
 formerly convicted may have changed their character, or the conviction 
 may have been erroneous ; but here the guilt is recent, and the proof con- 
 clusive. So far, therefore, as regards present depravity, the accomplice 
 is less entitled to admission than the convict. Policy{m) and necessity 
 are the reasons given for the admission of this testimony, as otherwise 
 the greatest crimes might escape unpunished. But if guilt be a ground 
 of exclusion, and if the testimony of persons of such character is too 
 doubtful and suspicious to be introduced in civil cases, much more should 
 policy and necessity reject such evidence in criminal cases, where reputa- 
 tion, liberty, and even life itself are at hazard. Infamy or interest — either 
 excludes testimony, says the judge, and as proof of this truth, up steps 
 on the stand the accomplice, confessing his guilt — the traitorous accom- 
 plice, — who swears under " an implied promise of pardon ;" who " has an 
 equitable title to recommendation for the king's mercy," and who, to the 
 unlearned in the law, would seem excluded on the double ground of inter- 
 est and infamy. The taint on the character, the moral guilt of the indi- 
 vidual, the doubt and suspicion attached to the statements of him who 
 is condemned out of his own mouth, are equally great, as if the guilt 
 were proved by the production of a record. If there be danger from 
 the thief, whose recorded guilt is adduced against him, it is none the less 
 because the witness voluntarily admits his guilt. The law, in a spirit 
 of mercy, says, that it is better that ten guilty men should escape than 
 that one innocent man should suffer. How important, then, would the 
 rejection of this evidence be deemed by the exclusionist, were he con- 
 sistent ? But in fact, if any judgment can be formed from the experi- 
 ence of centuries, no evil has resulted from the admission of accomplices, 
 or if occasional evil, it is more than balanced by the benefits resulting 
 from the admission of this species of proof. 
 
 But this exclusion is sometimes said to be a part of the punishment 
 attached to the offence. As a punishment of the guilty, it is utterly 
 nugatory — as if an individual, whom other motives would not restrain, 
 would be influenced by the fear of not being permitted to testify where 
 the interests of others were involved. The real punishment falls not on 
 the guilty, but on the innocent, — on him whose misfortune it is to need 
 such testimony, and whose rights are impaired by its rejection. 
 
 (m) Policy and necessity, says Phillips ; policy and perhaps necessity, says 
 Starkie; the necessity of the case, says Greenleaf. 2 Starkie, 19 ; 1 Phil. Ev. 31 ; 
 1 Greenl. Ev. 2 379. 
 
40 APPLETON ON RULES OP EVIDENCE. 
 
 • 
 
 The admission of the accomplice may be regarded as in reality an 
 exception to the rule under consideration, though not technically so, as 
 neither the crime, nor the punishment, nor the conviction, but "the 
 judgment alone creates the disability;" and even then, only in the state 
 where the judgment was rendered. To most it would seem that if there 
 be danger from such evidence, sufficient to warrant its rejection, the 
 rule should be co-extensive and commensurate with the danger : whether 
 the criminality or the infamy arising from the criminality, be proved 
 by the admissions of the party or by the record, whether the deed be 
 committed within the jurisdiction of one state or that of another. 
 
 But the accomplice guilty by his own admission, the pardoned con- 
 vict, the convict unpardoned, if his crime however heinous has been 
 committed in a foreign jurisdiction, are received and heard without fear 
 of misdecision or any apprehension of danger to the cause of justice. 
 If the admission of such testimony be justified by experience, there 
 would seem little reason for excluding that of the unpardoned criminal, 
 because his hand may not have been burned, or because he may not 
 have received a pardon under a great seal or a small one. 
 
CHAPTER IV. 
 
 INCOMPETENCY OP WITNESSES PROM INTEREST. , 
 
 In the preceding chapters we have shown, or endeavored to show, the 
 impropriety of those rules of law, by which, in case of the atheist, the 
 want of one of the sanctions to truth, and in that of the convict, the 
 supposed weakness of all those sanctions, have, even in the absence of 
 all motive to falsehood, been considered as sufficient reasons for the ex- 
 clusion of their testimony. In the case now about to be examined, a 
 different reason for the rule of exclusion has been given. In all systems 
 of law, men stand excluded to a great and indefinite extent, for no 
 reason, but because they are exposed to the action of this or that species 
 of motive, without any inquiry whatever, whether the motive which 
 excludes, will lead in a sinister direction ; or, if leading in that direction, 
 whether there may not be opposing motives of sufficient strength to 
 counterbalance this bias ; or whether, even if this sinister motive should 
 have an overpowering force, there be any danger that the testimony, 
 being false, will be received and acted upon as true. 
 
 By the civil law, which is in force over almost the whole continent of 
 Europe, father and son, patron and client, guardian and ward, are 
 mutually excluded from giving evidence for each other : a servant or 
 dependant is incompetent to give evidence for his master, and the testi- 
 mony of a friend or enemy is regarded with great jealousy.(a) In 
 Louisiana,(6) ascendants cannot be witnesses with respect to their de- 
 scendants, nor descendants with respect to their ascendants, (c) By the 
 common law, those above excluded, are admitted as witnesses, but " all 
 those who have any legal, certain, or immediate interest in the result of 
 the case, or in the record as an instrument of evidence, are dis- 
 
 (a) Vide Hein. ad Pan. lib. 22, tit. 5, a. 140, 14. 
 
 (6) Code of Lou. art. 2260, 2261. 
 
 (c) In the Belgic code, recently promulgated, some useful and important inno- 
 vations have been proposed. The only absolute exclusions are those of the hus- 
 band and wife of a party to the cause, and all his relatives in a direct line. But 
 the relatives and connections of a party in the cause in a collateral line to the 
 fourth degree, the presumptive heir or servant of a party, all directly or indirectly 
 (pecuniarily) interested, all persons convicted of robbery, theft, of swindling, or 
 those who may have suffered any punishment that renders them infamous, are 
 said to be reproche ; probably referring to the old rule of Roman law, by which 
 the evidence of two witnesses is conclusive [plena probatio) in certain cases ; and 
 meaning that a witness of either of the classes enumerated, shall not be a witness 
 for that purpose; that is, of forming a, plena probatio with one other witness; but 
 that, for every other, they are admissible. Vide Bentham's Rationale of Bv. vol. 
 5, 745, 746. 
 
42 APPLBTON ON RULES OF BVIDBNCB. 
 
 qualified."(^) And those thus disqualified, are excluded " from a sup- 
 posed want of integrity." 
 
 Excluded ^^from a supposed want of integrity I" as if pecuniary rights 
 and obligations — rights and obligations which are the results of law 
 alone — can neither be acquired nor retained, but by a sacrifice of all 
 claims to integrity. Does it never happen that such rights are acquired, 
 or, being acquired, are retained, with integrity in their possessor ? No 
 matter whether those rights be sought after or retained with or without 
 the aid of courts of law, there will be equal integrity in the individual 
 demanding or retaining; and if an individual will sacrifice, to obtain his 
 objects, all claims to integrity in courts of justice, there is no very good 
 reason to suppose him more scrupulous when out of those courts. 
 
 Still want of integrity, unless followed or likely to be followed by 
 perjury, is no sufficient reason for the exclusion of testimony. In the 
 rules for this purpose, to render them proper, the assumptions are, that 
 the interest, pecuniary or other, (for which the witness is rejected) will 
 have an effect adverse to the truth; that is, it is an interest unjustly 
 claimed by the plaintiff, unjustly withheld by the defendant; that the 
 witnesses on either or both sides, if interested for the parties respectively 
 calling them, will, to promote those interests, perjure themselves; and 
 that perjured, they will, probably, nevertheless be believed, and, being 
 believed, misdecision, to the prejudice of one side or the other, will be 
 the result. It must be considered as preponderantly probable, not that 
 some one or more of, but that all of these results would ensue from the 
 admission of the now excluded testimony, or else the rule cannot be 
 supported. If, for instance, the interest which excludes, be it social or 
 pecuniary, be in accordance with the truth, the greater the interest the 
 greater the security for veracity, and the less the probability of false- 
 hood. Or, if, in case of the interest under consideration, acting in a 
 sinister direction, there should be motives to veracity sufficient to pre- 
 vent falsehood ; or if, whether true or false, the testimony delivered 
 should receive no mora than a proper credit; or if, being false, and yet 
 obtaining credence, misdecision should not be the result; no evil, as far 
 as the ends of justice are concerned, is done. 
 
 The conduct of an individual in giving testimony, as in every other 
 act of his life, will be the result of motives ; and whether veracity be 
 the result, will depend on the motives to which he is exposed, and on 
 his sensibility to their action. Of the whole field of human action, 
 however trivial or important, there is nothing, which is not the result of 
 motives equally trivial or important. Mental or physical motion is alike 
 caused by some force applied, and it might as rationally be supposed 
 that inert matter would move of itself, without any extraneous force, 
 .as that any human action should take place, without some motive or in- 
 terest inducing. 
 
 The work of the memory is easier than the work of invention; the 
 difficulty, the labor, of framing falsehood with success — of keeping out 
 of view true facts, and bringing forward false ones, and of making those 
 
 {A) 2 Starkie, 744. 
 
INCOMPETENCY FROM INTEREST. 43 
 
 false ones appear as true, — the mental labor attending all this, and the 
 love of ease to prevent, the fear of shame, the disgrace which, as far as 
 the public is concerned, is known and seen to attach to falsehood in 
 general, and to false testimony in particular — the fear of present and 
 future punishment,, a fear in proportion to the severity of the punish- 
 ment, present or future, — all constitute motives in every case (the fear 
 of future punishment in the case of the atheist excepted) to prevent 
 falsehood. These motives act with their ordinary force on all witnesses, 
 whether interested or not; and with not the less force, because the indi- 
 vidual subject to them may have some pecuniary interest. They act 
 (with rare and casual exceptions and not requiring consideration,) in 
 favor of truth. Truth, then, will always be the result unless there be 
 some one or more motives acting in a sinister direction with power suffi- 
 cient to overcome these standing securities for truth. Of this there is 
 the same certainty as that the ball, set in motion, will move in a direc- 
 tion and with a force corresponding to that of the impelling power. 
 
 But of the motives affecting human' conduct, whether in giving testi- 
 mony or in any thing else, .there is no one, which acts in a uniform 
 direction ; no one which may not act equally for the promotion of truth 
 or of falsehood. Take the case of a person on trial in a criminal prosecu- 
 tion, who is excl'uded, because, from a wish to preserve his own life, it 
 was supposed he would, if admitted, perjure himself. If the individual 
 so rejected were innocent, every word he utters being consistent with other 
 facts in the case — every truth he states being corroborated by truths 
 uttered by others, — will aid him in proof of his own innocence ; and 
 falsehood being known and universally considered to be a sign of guilt, 
 by this very motive of self-preservation he will, being innocent, be in- 
 duced to utter the truth. If guilty, fearing, dreading the truth, know- 
 ing that by its utterance his doom is sealed, he is driven to falsehood as 
 the only means of escape. Filial affection, the father being in the right, 
 will act in coincidence with and be promotive of the truth ; he being in 
 the wrong, the same motive will act with a tendency adverse to the truth. 
 So, too, of every other motive to which the human mind is subject, there 
 is no one which is not capable of acting in a direction favorable or ad- 
 verse to the truth. No individual, then, should be excluded, because he 
 is exposed to the action of any given motive, for the direction of such 
 motive can never be foreknown. 
 
 Neither can a certain inference be drawn as to the truth, from the 
 number of motives to which a witness may be exposed. The motives on 
 one side may be weak and on the other strong to any degree of strength. 
 Suppose half a dozen motives acting in favor of truth, yet they may all 
 act with so feeble a force as to be overcome by some one motive acting 
 with extraordinary activity in a sinister direction. If, then, in case of 
 six acting in favor, and one adversely to the truth, the inference drawn 
 from numbers merely, that truth is the result, is not conclusive ; still less 
 probable is the opposite presumption, that of the preponderance of one 
 motive over the opposing six. 
 
 Nor do the species or number of motives afford a sure ground of in- 
 ference, for individuals are as diverse in sensibility as in character,and 
 
44 APPLBTON ON RULES OF BVIDBUCB. 
 
 a motive, which, with one, might be all powerful, with another might 
 exert an influence scarcely perceptible. Pear of shame might restrain 
 one individual, while with another, it might be weak and inefBcient'in 
 its action. Equally variant, as far as the same individual is concerned, 
 may be the force of any given motive at different times and under differ- 
 ent circumstances. Motives of strength to-day, in one direction, may 
 to-morrow lose their power, or their force may act in an opposite direc- 
 tion. 
 
 There are, then, no motives acting with a uniform tendency, nor with 
 the same force on different individuals, nor even on the same individual 
 at different times. They are not, like the levers and pulleys of me- 
 chatiics, the subjects of precise and close calculation. The heart of man 
 is not subject to inspection, his motives to knowledge, nor his passions 
 to measurement. The conduct of an individual will depend on the com- 
 parative number and strength of the motives respectively leading to truth 
 or falsehood, and on his sensibility to their action. Attention to one mo- 
 tive, or the number of motives, only, might lead to error. Though it 
 were certain, that any one motive of great power, or any number, were 
 acting in favor of mendacity, still, unless the opposing motives, and the 
 sensibility of the individual in relation to these motives respectively, were 
 taken into account, it is obvious, the conclusion would be erroneous. 
 Probity in respect to giving testimony, as in other cases, is relative rather 
 than absolute. Absolute certainty is unattainable. One individual is 
 better, his statements more credible, than those of another ; but of no one 
 can it be said, that every thing he utters will be true, or will be false, 
 any more than that everything he may do will be right or wrong. Truth 
 or falsehood can never be foreknown ; and no one, for any supposed pro- 
 bable results of his testimony, should be excluded. 
 
 It is utterly impossible to form any well-grounded prediction as to the 
 truth or falsehood of the statements of any witness, from the mere fact 
 that he is exposed to the action of this or that motive. How absurd 
 then the law, that, even without any survey of the circumstances in which 
 the witness is placed, without any knowledge of his character, without 
 the trouble of an examination to ascertain, as far as is ascertainable, those 
 facts, by a rigid and unbending rule, excludes — condemns, — the indi- 
 vidual without hearing him. 
 
 But improbity in no one form, and in no one form more than another, 
 should be presumed. Whatever reason there may be to anticipate per- 
 jury in any individual in the support of any claim he may have, when 
 called on to give testimony in support of that claim, there is equal rea- 
 son, neither greater nor less, to suppose that, for the same interest, with 
 an equal chance of escape, he would suborn witnesses and forge a deed. 
 All interest being to be supported by dishonest means, or rather by the 
 law presumed to be so supported, false testimony will be no more likely 
 to be resorted to than any other form of improbity, only as it seems more 
 or less likely to promote the dishonest ends proposed. And if perjury 
 be so probable, and be presumed to result from so slight motives as we 
 shall see that it is assumed to result from, in parties and in witnesses, it 
 would be but a necessary and proper extension of the rule of supposing 
 
INCOMPETENCY FROM INTEREST. 45 
 
 improbity, to presume all parties suborners ; for the difference of crime 
 is trifling, and if the party would perjure himself, he would suborn others, 
 and all witnesses thus be suborned. If an interest of one shilling is to be 
 the ground of presuming perjury for the purpose of exclusion, there seems 
 no reasonable doubt that those, who would forfeit their integrity to retain 
 that sum, will do the same to acquire a greater. Upon this principle all 
 testimony would be excluded. The reasoning by which one form of im- 
 probity is presumed, is equally applicable to every other ; and he who 
 anticipates perjury as the common and ordinary course of all, .who have 
 any interest in dispute, should not scruple at the further extension of 
 his own reasoning. 
 
 But whatever other exclusions may be proper, pecuniary interest, the 
 only interest of which the human mind is susceptible according to the 
 universally received and generally accredited canons of the common law, 
 is manifestly an improper ground for the rejection of testimony. Pecu- 
 niary interests, as before remarked, can hardly be supposed to act in all 
 cases adversely to the truth. Whenever it acts in coincidence with the 
 truth, whenever it is consistent with, and is supported by, the truth, the 
 greater the interest, the stronger the guaranty for veracity. But suppose 
 the only case where there is the least pretence for exclusion, namely, that 
 in which interest acts in a direction adverse to the truth. Still is it pre- 
 ponderantly probable that for this one interest all others will be disre- 
 garded ? The witness testifies under circumstances seen by all, and 
 known to himself to be considered by others as pregnant with suspicion, 
 and exposing his statements to doubt. He knows his statements will be 
 thoroughly canvassed ; that in proportion to his interest at stake, will be 
 the watchfulness and suspicion with which they will be received ; and 
 with this knowledge of the thoughts of others, falsehood will be seen by 
 him to be, as on all occasions, a path beset with difiiculty and danger, so 
 one eminently and peculiarly so in this. Is it, then, so very prepon- 
 derantly probable that all, rich or poor, with so many motives, loss of 
 reputation, fear of punishment, &c., deterring, will, to promote this one 
 end, and under circumstances so obviously exposing them to suspicion, 
 commit wilful and deliberate perjury, and that for any sum, however 
 small ? And that they will be more likely to do this to obtain any sum, 
 however small, than to promote the interests of those with whom they 
 are united by the nearest ties of kindred, or even than to preserve life ? In 
 proportion to the extent of the interest, and according to the relative 
 situation of the witness, will be the temptation to swerve from the truth ; 
 but be the interest ever so great, it can never be certain that he will so 
 do ; while that he will not so do, the probability is perpetually increasing 
 with the diminution of the sum. It may render the witness exposed to 
 its action less deserving of belief than one not so situated ; it may expose 
 his statements to suspicion ; but of the credence to be given, of the de- 
 ductions to be made from them for this cause, the judge or judges of fact 
 are as competent to form an opinion, as when, for other causes, similar 
 allowances are to be made. 
 
 Whenever the testimony of an individual interested, is rejected, that 
 evidence being necessary to a just result, a certain evil, misdecision, is 
 
 Eebruaky, 1859. — 5 
 
46 APPLETON ON RULES OF EVIDENCE. 
 
 the inevitable consequence. The evil falls on, and is suifered by the 
 party in the right, and who, by this exclusion, is deprived of what pro- 
 perly belongs to him. Is it on the part of the plaintiff that this evidence 
 is necessary to substantiate his claims ? by its exclusion he suffers the 
 only evil that is apprehended, namely, misdecision ; the very evil, to pre- 
 vent which, the witness is rejected. 
 
 Doubtful as it may justly be considered, whether every interest will 
 lead to perjury, or whether for every interest, every individual will 
 perjure himself, still more doubtful is the only real evil which can result 
 from the admission ; namely, that it should be to the prejudice of the 
 party having the right; for if admitted, and the proper credit only be 
 attached to it, no evil whatever follows. 
 
 But what is the danger of so disastrous a result ? What greater 
 danger of deception is there in this, than in any other case of testimony 
 exposed to suspicion from other causes ? It should be ever remembered 
 that the danyer of deception is not as the danger of falsehood, at any 
 time ; still less so when the danger of falsehood is perceived. The more 
 probable it is that any individual will testify falsely, the less likely is it 
 that the falsehood of such individual will deceive. Falsehood is ' most 
 dangerous when most unexpected. The more obvious the danger of 
 perjury from interest, the less the danger that such interested testimony 
 will prove deceptive. Pecuniary interest, as all see and know, acts with 
 force. All believe this, and take precautions to prevent testimony, 
 coming from such a source, from producing too great an effect on their 
 minds. Fear or enmity, love or hate, or revenge, any of the passions, 
 are infinitely more likely to lead to deception. They may exist and act, 
 and yet their very existence be unperceived. The effect of love or hate 
 is unknown ; there is no mode by which their strength can be measured, 
 or the sensibility of any one to their action be ascertained. A cloud 
 covers them, and conceals them from human inspection. We have no 
 index by which to measure the intensity and activity of their power. 
 Of money, its strength as a motive, is, in the same individual, in pro- 
 portion to its amount ; and in different individuals, in proportion to 
 their relative susceptibility to the influence of pecuniary motives. From 
 a million to one dollar, or to one cent, there is an infinity of subdivisions 
 and of pecuniary interests and motives. There is wealth, from any, the 
 greatest, to any, the smallest sum ; from that of Crcesus to that of his 
 poorest subject; and the force of the motive arising from the same 
 amount, will vary in proportion to the situation and character of the 
 individual exposed to its action. The individual whose income is a mil- 
 lion per annum, and he whose life is supported from day to day by 
 begging, will not be equally affected by the motive to save or gain a 
 dollar. The old woman who sells apples at the corner of the streets, 
 knows the difference between two and one, in reference to cents, dollars, 
 or millions of dollars ; that two dollars, or two millions of dollars, will 
 be more objects of desire than one dollar or one million of dollars ; she 
 knows that the price of half a dozen apples would be regarded differ- 
 ently by herself and by the rich merchant who passes by her ; that 
 while the loss of a dollar would be felt by her as a serious matter, the 
 
INCOMPETENCY PROM INTEREST. 47 
 
 man of millions would not regard it. All this she knows, and everybody 
 knows, save and except the judge, who considers the motive to save or 
 gain any sum, more or less, a million or one dollar, as having the same 
 force on the minds of all individuals, from kings to beggars; and that 
 force to be infinite. While pecuniary interest is thus seen, and its force 
 as a motive, and the susceptibility of any individual to its influence may 
 be estimated with very considerable probability, and while most other 
 motives are involved in uncertainty, or shrouded in darkness, is there a 
 good reason for sweeping off, by one indiscriminating rule, all interested 
 witnesses, without any distinction as to the amount of their interest, or 
 its probable influence as a motive ? Is the danger so great that with 
 interest written legibly in .figures on his forehead, the witness would 
 obtain vndue credit with the judge, who is so acutely sensible of its 
 force, as now to exclude the witness; or with the jury, who themselves 
 know the value of money, and the influence of the motive, and who 
 would be cautioned by the judge, and warned by counsel, of the danger 
 of falsehood ? Would there be such magic in the testimony of one thus 
 subject to suspicion, that all would yield to its influence? The judge, 
 the jury, all, see the danger; all know that money has power over the 
 mind. There is no judge or juryman by whom this motive will not be 
 seen as having weight, and who, seeing this, will not be guarded 
 against this evidence. Is there so great danger, then, that they will 
 fall into the error of giving this evidence undue and improper credence ? 
 Is there any, the smallest reason to believe that the testimony of an 
 interested witness cannot be weighed and compared, as well, nay, much 
 better, than that affected by the interests of social life ? If the testimony 
 of those thus affected, is, and has been admitted without evil, is there 
 any shadow of a reason to anticipate any pernicious consequences from 
 the admission of this ? If the judges of the law or of the facts were 
 sufficiently on their guard against deception from this source, there 
 would evidently be no danger from this evidence. Those, who, without 
 hearing or knowing the evidence, have rejected it as /a?se, 'excluding all 
 evidence to disprove this inference of theirs, were clearly more than 
 sufficiently on their guard. If, then, watchfulness were substituted for 
 exclusion, and if that watchfulness should be sufficient for the emer- 
 gency, all the benefit of the admission of the testimony might be ob- 
 tained without any imminent hazard. 
 
 Let, then, the evidence be admitted. If the interested witness, being 
 admitted, is not believed, his testimony has no weight in the cause ; it 
 is, in effect, rejected; and the result is the same, in the particular case, 
 as if he had been excluded. Suppose, on the other hand, that the evi- 
 dence is believed, and is effective for the purpose of affording proof, on 
 which a decision is grounded; then, if it is correctly credited, justice 
 is done, where, without its admission, injustice might have been una- 
 voidable. 
 
 If it is asserted that it was improperly credited, the assumption by the 
 person thus alleging, is, that he is a better, surer, safer judge of the truth 
 of testimony he never heard, and of which he knows nothing, than the 
 judge who sees, hears, and examines, and who, after this examination, 
 
48 APPLETON ON EULES OF EVIDENCE. 
 
 after hearing the statements and counter-statements of the parties and 
 their other witnesses, yet believes. It would be equally reasonable for 
 an individual to condemn the decision, to which the judge, after a full 
 and patient hearing of the parties, had arrived, without knowing the 
 nature of the claim, or the evidence by which it is supported, or the 
 reasons on which the judgment was founded, as for him to say and 
 decide that testimony, of which he knows nothing, was erroneously 
 credited by those much better qualified to judge. But so says the law; 
 it prefers a decision in perfect ignorance of the testimony, without a 
 knowledge of any part or portion of it, to one with all the information 
 attainable ; and not merely prefers, but considers the decision without 
 light as conclusively right, and presumes the. one made with light to be 
 wrong. 
 
 The rule, in its original establishment, assumed on the part of the 
 judges who made it, a foreknowledge of the future most wonderful, that 
 there was a preponderant probability that all witnesses, who might be 
 interested, would perjure themselves ; and that in all coming time, such 
 would be their own and the imbecility of all future judges, that, to 
 prevent them from erring, the only safe course was to prevent them from 
 hearing. Its continuance by succeeding judges admits the justice of 
 that prescience by which their own imbecility was foreseen and guarded 
 against. In common language the argument ran thus : " A witness so 
 and so situated, will probably lie. I know this perfectly well, have no 
 doubt of it, and I so inform or can inform others ; yet knowing this, 
 neither dare hear him, nor permit others to hear him, lest, hearing, they 
 and I should believe his falsehoods. Therefore, I exclude him." 
 
 Were this question now for the first time presented for discussion, it 
 might be unnecessary to pursue the subject farther; but supported as 
 the ru^e is by the prejudices alike of the legal profession and the public ; 
 almost sacred as it is rendered by the venerable dust of antiquity which 
 covers it ; a more severe and rigid scrutiny of its vague and shadowy 
 distinctions, of its innumerable contradictions and exceptions, seems to 
 be demanded. 
 
 1. By the rule now established, any interest, however minute, ex- 
 cludes. 
 
 Were it stated in some volume of travels, in a rich, flourishing, and 
 intelligent community, that such was the notorious disregard of truth 
 among its inhabitants, that they would all, or rather it was considered 
 preponderantly probable that all would, perjure themselves for any the 
 smallest pecuniary interest, and that so notorious was this want of truth, 
 that a rule of law, in anticipation of, and to prevent this supposed per- 
 jury, had been made, by which all subject to the minutest conceivable 
 pecuniary interest were excluded ; that this rule was universal in its 
 application, embracing the rich and the poor, the chief magistrate and 
 the meanest beggar, without the least reference to the character of those 
 so exqluded, without even an inquiry respecting it ; that this rule had 
 received the sanction of wise and good men of all'preceding ages; that 
 it was a part of an elaborate code of laws, which, from their excellence 
 was termed the perfection of human reason ; that this was one of the 
 
, INCOMPBTBNC.Y FKOM INTEREST. 49 
 
 most important and necessary of those laws ; and that on its preserva- 
 tion the whole fabric of society depended ; — what opinion would the 
 reader form of the moral character of that community? Would he not 
 suppose, if this rule were well-founded, that perjury and subornation of 
 perjury were the order of the day ? Would he not be on the look-out 
 for a market overt, in which witnesses, with straws in their shoes, would 
 be ready to sell their testimony ; or their agent, the auctioneer, would 
 be knocking off to the highest bidder, in this general mart of menda- 
 city, witnesses for civil and criminal cases, in quantity or quality to suit 
 purchasers ; and the attorney standing by, examining, like the purchaser 
 in a slave market, the intellectual qualifications of the witness ; his 
 acuteness in giving testimony; whether he was a fresh one, just enter- 
 ing the lists, with a maiden modesty and with untarnished character, or 
 a veteran in judicial contests, with a worn out and ruined reputation, 
 but with hardihood and impudence unrivalled ? For, if to avoid the 
 loss of one cent, an individual will perjure himself, it can hardly be 
 imagined that he will have sufficient moral firmness to withstand the 
 bribe of ten cents, the offer of which would be unknown to the public. 
 Whatever opinion might justly be formed of that country, such (if a 
 similar, or rather if the same rule be well founded here,) must be his 
 opinion of his own. Mutato nomine de te fabula narratur. The grave 
 and solemn logic by which this matchless absurdity, or this profound and 
 enlightened estimate of human character, is supported, can hardly be 
 read without a smile. Starkie,(e) one of the best writers on the subject, 
 and who, in addition to the wisdom of our ancestors, has the accumulated 
 arguments of modern times, uses the following language in advocating 
 the propriety of this rule. " Experience proves that some exclusion is 
 necessary ; but if exclusion of witnesses actually interested, be, in some 
 cases, necessary, the law must exclude oil such witnesses, however tri- 
 fling the amount of such interest may be ; for a general rule must be laid 
 down, and it is obviously impossible for the law to define what extent or 
 degree of interest shall incapacitate a witness ; and, therefore, it is ne- 
 cessary to exclude all, who are so interested to any extent ; this is the 
 necessary consequence of recognizing this exclusive principle at all. 
 The law excludes all who have an actual interest in the event, however 
 minute that interest may be, because it must exclude all or none." 
 
 Suppose, (the very question in issue,) that "exclusion is necessary," 
 and that the exclusion of witnesses actually interested be " in some cases 
 necessary," how follows it that the law should " exclude all or none ?" 
 The law should exclude only in those cases necessary, and a partial, by 
 no means proves a total necessity. If there be any point in which ex- 
 clusion is unnecessary, why in that case exclude ? If any point where 
 it is manifestly absurd, why in that case adhere to the rule ? The ex- 
 clusion should be only co-extensive with the reason of the rule. If, then, 
 in case of a farthing's interest, it is absurd to say, that to promote that 
 interest, every individual will, or that there is a preponderant probability 
 sufficient to warrant the conclusion that all will commit perjury for that 
 
 (e) Vide 1 Starkie, 85. 
 
•50 APPLBTON ON RULES OF EVIDENCE. 
 
 sum; why, to that extent, for that sum, establish a rule that assumes 
 this fact as its basis," or else it is totally unfounded ; for, if no one believes 
 that, for this sum, there is any such probability of perjury ; that, from 
 so minute an interest, there is any perceptible danger, then all unite in 
 condemning the rule. If in the case of a penny, a dollar, two dollars, 
 it is absurd and unnecessary, abolish it to that extent. Wherever the 
 rule is unnecessary and useless, or absurd, and so seen and recognized, 
 abolish it. 
 
 But a " general rule must be laid down" — and suppose it must, does 
 it follow that it should be laid down so as to embrace cases where its 
 operation is useless and injurious ? cases not within its intent, not 
 within the danger contemplated, and to guard against which the rule 
 was established ? If the case be not within its spirit, its purview, why, 
 when such is the fact, adhere to the rule ? The rule can as well be 
 general at one point as another; but should not assuredly be so general 
 as to embrace cases when it is not needed. A rule may be too general 
 as well as too restricted in its operation, and either evil should be guard- 
 ed against. 
 
 But " it is impossible to define what degree of interest shall incapa- 
 citate," and it must exclude all or none. If possible in any case to show 
 the rule unnecessary, to the extent of such proof, it is clearly possible 
 to show what shall not incapacitate. It is evidently possible, if such be 
 the fact, to say, (and if such be not the fact the rule is right,) that one 
 farthing's interest shall not be considered and a.cted upon as conclusive 
 proof of probable perjury, to the exclusion of testimony. But, if im- 
 possible to define — if in any given case, of any given sum, it is impos- 
 sible to say that it will produce perjury to promote the interests arising 
 from that sum — then the very impossibility of saying with certainty 
 what the law assumes as certain, sufiiciently certain to be the foundation 
 of its action, is of itself a sufiicient argument against the rule. In one 
 of the States,(/) the general estimate of an average conscience is one 
 hundred dollars ; and however ludicrous it may be to make such esti- 
 mate, and however difficult it may be to show why that sum should be 
 preferred to one hundred and one dollars, yet establish the rule wher- 
 ever it may be, such estimate is always actually made ; and made, under 
 the present rule, at the lowest point possible, predicating perjury of all, 
 good or bad, rich or poor, for the smallest subdivision of property. The 
 law now, {impossible though it may be) actually defines what interest 
 shall incapacitate ; and the question is in truth, whether no better line 
 can be drawn, if a line must be drawn. But, if perjury cannot be con- 
 sidered as probable for any the smallest sum, if it be impossible to fix 
 on any sum, then repeal the law, by virtue of which the interested wit- 
 ness is rejected. If there be any given amount for which a witness should 
 be excluded, whenever that amount can be agreed upon as the proper one, 
 then and there establish the exclusion, but not till then and at no other point. 
 
 It may not be uninstructive to compare the reasoning by which the 
 
 (/) A law to that effect, in case of parties, we thinls; we have recently seen; 
 that is, before justices of the peace, one hundred dollars being the extent of their 
 jurisdiction. 
 
INCOMPETENCY FROM INTEREST. 51 
 
 admission of the interest arising from the social relations, is justified, 
 with the remarks previously quoted as to the exclusion arising from pecu- 
 niary interest. Starkie,(gr) in defending the propriety of the admission 
 of father and son for each other, says, " What would be the consequence 
 of extending the principle to cases where the witness is influenced by 
 the ties of blood or friendship, or by the relations which subsist in so- 
 ciety ? Where is the line to he drawn ? If a father cannot be a witness 
 for a son, must not the same principle exclude the testimony of a brother 
 in favor of a sister ? If so, why not that of an uncle in favor of a nephew, 
 of one intimate friend for another ? And where is the line of exclusion 
 to be drawn ? Would it be possible to define the particular degree of 
 influence or bias which would render the witness incompetent ? And if 
 that were not, as it is, an insuperable difficulty, it would be inconsistent 
 and unreasonable to assign an arbitrary limit not co-extensive with the 
 operation of the principle itself. If all who labor under influence, pre- 
 judice, or bias, were excluded, the consequence would be that the rule . 
 would be too vague and indefinite to be put in practice. The difiieulty 
 arises from the general and extensive nature of human motives and pre- 
 judices, which exclude any definite limitation," &c. . . " And were it to 
 exclude every witness, from kindred, friendship, or any other strong mo- 
 tive by which human nature is influenced, it would exclude too much 
 the means of discovering the truth," 
 
 In the case of pecuniary interest, the same reasoning proved the pro- 
 priety of a result directly the reverse of this. The same difficulty, that 
 of establishing general rules, in the former case proved the propriety of 
 general exclusion : in the latter, of general admission. The difficulty 
 of drawing a line was a satisfactory reason why in one case a line should 
 be drawn excluding all, and in the other, admitting all. The evil of de- 
 priving courts of evidence, — the indispensable necessity of justice, — the 
 absurdity of assigning arbitrary limits not co-extensive with the rule, were 
 reasons equally for admission and rejection. Th^ premises continuing the 
 same, the reasons the same, the only course was to draw, not the same, but 
 directly opposite conclusions from the same premises. The question to 
 be proved being, not what is right, but that whatever is, is right, had 
 the rules been changed as in the Roman law, with equal ease, from the 
 same premises, could the apologist of existing institutions have varied 
 his conclusions to accommodate them to a change in the law. 
 2. The interest must be certain, not doubtful or contingent.(7i.) 
 The son, for instance, is admitted, when tlie rights of his father are 
 in contestation. Why ? Because the interest is contingent. But is 
 every contingent interest valueless ? What is a lottery ticket but the 
 present value, too highly estimated it is true, of a contingency, — of the 
 chance of some one of the prizes offered ? Would not an only son be 
 as likely to be affected by the interest he has in a case of his father's, in 
 which a million, his father's whole estate, is in issue, as in a case of his 
 own, when but a dollar was pending ; and were this right of the son, 
 
 (a) Vol. i. 85. 
 
 (A) " But a contingent interest, says Tait, in the issue of a suit created by pur- 
 chase of tlie plea would disqualify." Tail's Evidence, 359. 
 
52 APPLETON ON RULES OF EVIDENCE. 
 
 tis chance of surviving and inheriting of the father, the subject of sale, 
 would it not be considered as more valuable than the dollar which ex- 
 eludes ? Could not this right be sold for some certain sum, some amount 
 every body would call certain ? And if so,' virould it not have the same 
 influence as this certain sum — its price — on the testimony ? throwing 
 out of view the interest of filial affection as being perfectly powerless, too 
 microscopic in its effects to be regarded by the common law. " Contin- 
 gent !" But is not every thing contingent? What is certainty or un- 
 certainty ? Nothing belonging to the respective events of which they 
 are predicated by different individuals; they are predicated of the same 
 event, the event itself remaining unchanged and unchangeable : they are 
 mere words, expressive of the belief of the individual uttering them, as 
 to the probability of any given event, about which they are uttered, 
 either as having existed, existing, or about to exist. The interest of the 
 party, what is it but contingent ? dependent upon the result of the case, 
 the amount recovered, the solvency of the individual against whom the 
 judgment may be obtained, the value of which would vary accordingly 
 as the different contingencies are regarded by the purchaser of that in- 
 terest. But of witnesses, there is no one whose interest is not subject 
 to the same contingencies, together with the additional one as to the re- 
 sult of the case he may bring, or be compelled to bring, to recover his 
 right ; for the recovery of the judgment by no means puts the money he 
 may have a claim to, into his own pocket. 
 
 3, But a legal liability is not absolutely necessary. ()') 
 If a witness would testify under the impression of an interest which 
 he honestly believes he has in the event of the suit, although in point 
 of fact he is mistaken, he having no legal interest, he cannot be sworn ; 
 he being considered under the same bias as if actually interested. It is 
 obvious, that if, on stating his belief, he was informed by the court that 
 it was erroneous ; if he believed the judge, his mistaken impressions 
 would be removed, and there would be no pretence for interest interfer- 
 ing. The rule must, therefore, be based on one or the other of these 
 two very remarkable reasons ; either it would be considered improper, — 
 extrajudicial, — for the judge to inform him of his mistake and set him 
 right, and, therefore, never knowing his mistake, he would obviously 
 testify under the same bias as if legally interested ; or else from some 
 cause or other, the general character of judges must be such, that state- 
 ments coming from that source would not generally receive credence, or 
 
 {i) Whether the law be as above stated is doubtful. The cases on the point are 
 numerous. On the side of incompetency are PiUingham v. Greenwood, 1 Str. 129 ; 
 Rex V. Walker, 1 Ford, 145 ; Trelawney v. Thomas, 1 H. B. 309 j Rudd's case, Leach 
 C. C. 154; Richardson's Ex's v. Hunt, 2 Munf. 148; Sentney v. Overton, 4 Bibb, 
 445; Lansingburgh v. Willard, 8 Johns. 428; Plumb v. Whiting, 4 Mass. 518; 
 Sliillings V. Bolt, 1 Conn. 14. On the side of competency are 1 Phil. Ev. 43 ; 2 
 Starkie, 74V ; State v. Clarke, 2 Tyler, 273 ; Long v. Baillie, 4 Serg. and Rawle, 
 226; Henry v. Magon, 2 Binney, 497 ; Miles v. O'Hara, 1 Serg. and Rawle, 36; 
 Moore v. Sheredine, 2 Har. and M'Hen. 453. These cases are quoted from the 
 notes to Phillips and Starkie. This is the certainty of the law on the subject of 
 evidence. Now how should the inquirer govern himself in coming to conclusions, 
 numero aut pondere ? If by numbers, a. child can count; if by weight, quisjudicet 
 ipsos judices ? 
 
INCOMPETENCY PROM INTEEBST. 53 
 
 would not receive credence in a sufficient number of cases to do away 
 the evil resulting from the evidence of those, who, disbelieving their 
 statements, were, so far as their testimony was concerned, the sanae as if 
 actually interested ; for, if their statements were credited, the witness 
 would know that he was devoid of interest. 
 
 If it should be said that the law is misstated on this point, and that a 
 witness, while believing himself actually interested, is still, if under no 
 legal interest, admitted, it will only be one more added to the long list 
 of exceptions to the general rule ; for, if interest only as believed is dan- 
 gerous, the belief of interest existing and continuing, the witness testi- 
 fies under precisely the same frame of mind as if his impressions were 
 correct. 
 
 4. The subsequent voluntary creation of an interest without the assent 
 of the party by whom he is called, does not exclude. (/c) 
 
 If a witness, either by a wager, or in any other way, become by his 
 own act interested, he is admitted, because he shall not be permitted to 
 deprive another of the benefit of his testimony. But if the situation of 
 the party deprived of testimony is a matter worthy of consideration — 
 which it does not as yet seem to have been — of what consequence to him 
 is it whether the interest by which he is deprived of testimony were 
 voluntarily or involuntarily acquired ? The deprivation of testimony is 
 equally great, in whatever way the interest was acquired, and the loss of 
 the evidence, in either case, is equally injurious to his rights. But let 
 the voluntarily acquiring interest by a wager,(Z) or in any other way, be 
 as improper as it may, still, if the rejection of testimony from interest is 
 required by a prudent regard to the ends of justice, it is perfectly im- 
 material when or how it is acquired ; it is none the less dangerous because 
 voluntarily created. To warrant the exception, it would be necessary to 
 show the different and greater effects on testimony caused by a dollar's 
 interest involuntarily, and the same voluntarily, acquired. Having vol- 
 untarily lost all claims to integrity, there seems no reason why he, more 
 than another, till reinvested with honesty, should be heard ; or why, if 
 the rule be right, his testimony, if productive of misdecision and injus- 
 tice, should be admitted, more than any other evidence subject to the 
 same dangerous bias. 
 
 5. Informers. 
 
 So little does government think of this supposed danger, that it holds 
 out pecuniary rewards, attainable only in case of the testimony's being 
 credited ; that is, on the happening of the very event, to prevent which 
 the evidence is rejected. All men, says the law, will perjure them- 
 selves for one cent, or an infinitely small portion of a cent, and govern- 
 
 (Ic) 1 Phill. 105, andscy. The law was formerly otherwise. The authorities are 
 both ways. Under this head are very curious distinctions. If the wager is made 
 after the happening of the event to which he is called as a witness, it excludes ; if 
 before, it does not. Suppose two facts, one before, the other afler, the wager ; 
 what would then be the result can only be known after argument. 3 Johns. Cas. 
 231 ; Root, 406. Sed qusere de hoc. 
 
 (I) In the Scotch law, the person thus interested is admitted " because, if such 
 an interest were in every case to disqualify, a witness might create the interest in 
 order to deprive the party of his evidence." Tait on Evidence, 359. 
 
54 APPLETON ON RULES OF EVIDENCE. 
 
 ment proclaims to all, if you will swear enough to convict, you shall 
 receive ten dollars. Strange that government, knowing the^ truth- 
 destroying effect of interest, will voluntarily infect testimony with any 
 ingredient so deleterious; that, for the purposes of justice, it will invite 
 and suborn perjury, and that too in the very temple of justice. 
 
 6. Interest in the record and exceptions. 
 
 " A witness is interested, if the record would be the instrument of 
 securing to him some advantage, or of repelling some charge against 
 him, or claim upon him, in some future proceeding. (A) It will be unne- 
 cessary to examine the case when the record is admissible, as it is a 
 matter most thoroughly enveloped in mystery. We shall only remark 
 on some of the cases of interest under this head, about which there is 
 no doubt. 
 
 The uniform presumption of law is that of innocence, honesty, in- 
 tegrity. But the ease with which this, like many other rules of law, is 
 trampled under foot, is most strikingly illustrated in cases of interest 
 resulting from the record. " In an action against the master for the 
 negligence of his servant, the servant is not competent to disprove his 
 supposed negligence j for the verdict may be given in evidence in a sub- 
 sequent action by the master against the servant, as to the quantum of 
 damage, though not as to the fact of the injury. "0 
 
 If, in this case, the usual supposition of law were well-founded, that 
 negligence is not to be presumed, the servant, if not negligent, has no 
 interest but to tell the truth ; and to prevent his admission, the presump- 
 tions are that he has been negligent in his master's employ, the very 
 fact contested, and that, to disprove that negligence, he will perjure 
 himself. Both these assumptions are gratuitous. 
 
 Contingencies being not susceptible of creating an interest, one would 
 have thought there would have been contingency enough about the 
 matter to have admitted the servant; it being contingent, 1st, whether 
 the supposed injury was done; 2d, if done, whether by the servant; 
 3d, if so, whether provable in an action against the master; 4th, if 
 proved against the master, whether he would commence an action, and 
 be able to prove the necessary facts against the servant ; for, if all these 
 things did not concur, be " the quantum of damages" more or less, of 
 what consequence is it to the servant ? 
 
 It is to the interest arising from the record in cases like this, 
 that those admitted from necessity, in the course of trade, are excep- 
 tions. 
 
 Under this head may be classed agents, partners, &c. Upon this 
 ground it is the constant course to admit the servant of a tradesman to 
 prove the delivery of goods, or the payment of money, or that it has 
 been overpaid by the servant, or, in an action against the carrier, the 
 delivery of goods, (m) 
 
 In these and similar cases, to mere laymen, it would be difficult to 
 discover why the servant should not be admitted. He would evidently 
 
 {k) 2 Starkie, 747. (Z) i Phil. 45, 6. 
 
 (m) 2 Starkie, 752. So in the law of Scotland. Tait, 357. 
 
INCOMPETENCY PROM INTEREST. 55 
 
 be admitted without tesitancy, were it not for the rule and the pre- 
 sumption previously considered. But, for the purpose of excluding him, 
 the law presumes he has not paid the money, delivered the goods, or 
 performed the other duties incumbent on him ; and then, this presump- 
 tion still subsisting, he is admitted from necessity. The witness, who 
 pocketed the money or stole the goods, according to the general rule, is 
 admitted to prove what ? — that he so did ? no ; but that the goods were 
 delivered to the carrier, and the money paid over; admitted from neces- 
 sity, as otherwise there would be no one to tell a falsehood to the preju- 
 dice of honest men. A strange necessity ! to call the presumed rogue 
 for the purpose of depriving innocent men of their property. 
 
 Necessity ! If interest be so pregnant with danger to the cause of 
 truth, there is no necessity, which can justify the admission of evidence 
 from which falsehood and injustice will probably result, without at the 
 same time justifying falsehood and injustice. Necessary ! The veriest 
 child knows that evidence, from the force of which deductions will be 
 made, will never be introduced, except from a necessity more or less 
 cogent ; so that if necessity be a sufficient reason for admission, the rule 
 is at an end. 
 
 But under the head of interest from the record, there is one case so 
 truly remarkable, that, though hardly belonging to this branch of the 
 subject, it ought not to be passed by without observation. 
 
 When the witness would, by the acquittal of another, discharge him- 
 self, he is inoompetent,(raj and therefore one indicted as an accessary 
 cannot be admitted in favor of the principal, whose acquittal would 
 secure his own safety. If the supposed principal were innocent, the 
 supposed accessary's testimony, being in his favor, would be true ; or, if 
 the supposed accessary were innocent, it can hardly be considered pro- 
 bable, that, being innocent, he will commit an equal crime for the chance 
 it may afford of escape from unmerited punishment; or, if both were 
 innocent, such testimony would be true. It is, therefore, made a pre- 
 sumption of law, for the purpose of ' excluding this testimony, that the 
 supposed principal is guilty, for if innocent, the testimony of the supposed 
 accessary, if true, must be in his favor — that the supposed accessary is 
 guilty, for if innocent, there is no motive for perjury; and, that being 
 ■ both guilty, the accomplice will resort to perjury, an additional crime, 
 to effect his escape. How in this case, it is possible for the innocent 
 prisoner to obtain the evidence of his supposed accessary, it is not easy 
 to perceive. The inchoate right of being hanged, the accessary would 
 undoubtedly be willing enough to release. But, besides the difficulty of 
 finding one, who, with the release, would choose to accept its attending 
 liabilities, it seems very doubtful whether the law, though it allows very 
 wonderful things to be done by a release, would permit so great liberties 
 to be taken. If the release was to be given to the accessary, though 
 undoubtedly it would be received with joy, yet, who are to give it but 
 the attorney-general or the hangman. If, then, it should seem that no 
 release would be considered effective for the purpose of procuring his 
 
 [n) 2 Starkie, 749. 
 
56 APPLETON ON RULES Off EVIDENCE. 
 
 admission; the only forlorn hope, in innocence, seems to be, that the 
 accessary should promise to testify against the principal, and when on 
 the stand violate his promise and tell the truth. 
 
 If the testimony of the supposed accessary were against the principal, 
 whether true or false, there would be no qualms about its admission. 
 The very self-convicted partner in guilt, " under an implied promise of 
 pardon, with an equitable title to a recommendation to the king's 
 mercy," is every day admitted to testify against the principal. Nay, 
 further, though such testimony were false, perjurious, putting in peril 
 the life of an innocent man, it being for the king, though perhaps not 
 praiseworthy, it is, at any rate, not indictable. (o) To the innocent there 
 is no hope. Truth, if in his favor, is rejected without a hearing. 
 Falsehood, if against him, is admitted, encouraged, rewarded. Of a 
 truth, his hope must be in God ; the laws of his country leave him but 
 little. 
 
 7. To the instances above enumerated, might be added the nume- 
 rous ones, in which the testimony of a party is admitted. In chancery, 
 when in case of fraud, resort is had to the supposed knave for the truth ; 
 or in case of evidence on affidavit, and the other cases, when the party is 
 admitted to testify. They, however, belong to the subject of evidence 
 in regard to the party. 
 
 In all the instances which we have enumerated, witnesses interested 
 have been for centuries admitted, and under circumstances, as pregnant 
 with danger as any in which they are excluded ; and yet no evil has en- 
 sued. In the exceptions to the general rule, which we have just been 
 considering, it has by no means been our intention to object to the ex- 
 ceptions. The rule being bad, the more exceptions, the more violations 
 there are, the better. But of all these exceptions, no single one can be 
 pointed out, which does not, to its extent, show the absurdity of the rule. 
 They cannot consistently both subsist together ; one or the other must 
 fall. 
 
 But as .witnesses do not come into court stamped with the word 
 interested ; as their form or appearance affords no indication of that 
 fact, it may not perhaps be considered inexpedient to examine the 
 different tests,, by which so dangerous an ingredient is detected, and 
 the witness thereupon branded. To effect this, the court have re- 
 sorted to two modes ; one, by which the evidence is obtained from the 
 witness on his voir dire ; the other, by which it is derived from other 
 witnesses. But the adoption of either course precludes recourse to the 
 
 (o) Such is the fact. Perjury for the Mng is not punishable. We cite our 
 authority : — 
 
 " He was indicted upon the statute' of perjury, because he was produced as a 
 witness for the king upon a trial in an information and sworn : Setting forth the 
 oath and the falsity ; Resolved by the court, that the witness produced and deposed 
 for the king, might not be punished by way of indictment, which is the suit of the 
 king. For he cannot punish his own witness, who swears for him. Wherefore 
 he was discharged." Croke's Rep. Ab. by Hughes, p, 410. Price's case. Ed. 
 London, 1665. This case has never been overruled, perhaps some would say 
 never ruled, but it is extracted literatim from a venerable volume of law. Law is 
 like wine, the older it is, the better is its flavor. This casiS smacks strongly of age. 
 It may be too old to be good. It is dangerous vouching for law 
 
INCOMPETENCY EROM INTEREST. 57 
 
 other. Both cannot be employed together. One, unlearned in the law, 
 would suppose that there could be no good reason why all the proof at- 
 tainable, to one point as well as another, should not be resorted td ; nor 
 why, if interest be so dangerous, any species of evidence, by which its 
 existence could be rendered more or less probable, should not be admitted. 
 The reason given in the books is, we believe, that having resorted to the 
 conscience of the individual, you shall be bound. This seems not to be 
 a very intelligible one ; for if, having resorted to his conscience, you find 
 he has none, or but an apology for one, why should he be helped to one 
 by a fiction of the law, at the expense of justice, and of one of the parties 
 to the suit ? 
 
 The test, by an examination on the voir dire, is, upon the principle 
 assumed by the advocates of exclusion, a palpable absurdity, a perfect /eZr) 
 de se. If, on examination, the witness, in reply to the questions put, 
 says he is interested, he is rejected ; if, that he is not interested, he is 
 admitted. The general rule is that from interested testimony, there is a 
 preponderant danger of perjury. Be it so. The witness says I am in- 
 terested. If this be true, he knows that, by testifying to the truth he 
 will be rejected ; and that, being interested, and so stating, he cannot 
 promote those interests for which, if admitted, it is presumed he will per- 
 jure himself. If, nevertheless, he testifies truly, by such true testimony 
 he shows integrity when you anticipated total dishonesty ; and for so 
 doing the law rejects him. If he says he is interested, when he is not 
 so, then, such testimony being false, he is not admitted as a witness. Had 
 the witness, being interested, done what the law supposed he would do 
 after admission, testified falsely and denied his interest, then he would 
 have been admitted unhesitatingly ; acting uprightly and disappointing 
 expectation, he is rejected " from a supposed want of integrity." You ex- 
 pect perjury when there is interest, and yet resort to the witness from 
 whom you expect perjury, and consider his evidence conclusive. You 
 consider the evidence of an individual, the probable falsehood of whose 
 testimony, without stopping to listen to it, you make a matter of legal 
 presumption, to be true — true to the exclusion of all other evidence on 
 the question of his admission. If he is interested, and yet honest, and 
 states that he is interested, the law considers him to be probably a per- 
 jurer, and he is rejected. If being interested, he denies it, thereby per- 
 juring himself, he is admitted. 
 
 If, without resorting to the witness, resort be had to his statements out 
 of court, besides the strangeness of expecting truth from one whom the 
 law considers as probably a perjurer, there is the additional absurdity of 
 preferring hearsay evidence to direct testimony ; of preferring statements 
 without, to those with, the sanction of an oath ; statements which may 
 be misrecollected or misreported, and which were made without the pro- 
 per examination, and which, after all, only prove past not present interest, 
 in which latter the danger lies. For though interest once existed, it by 
 no means follows that it now exists. 
 
 If the declarations of the proposed witness be considered conclusive, 
 still the rule is bad. Suppose he was misunderstood, would there be any 
 evil in correcting that misunderstanding ? 
 
58 APPLETON ON KtTLES OF EVIDENCE. 
 
 But to the men of the law extraordinary things are possible. As by 
 certain magic rites and ceremonies in case of infamy, this infamy is 
 eradicated, and the convicted felon stands forth " regenerated and disen- 
 thralled," a neiv creature, with all moral taints and legal disabilities re- 
 moved, and with a restored and purified reputation ; so, too, the law in 
 its wisdom, leaving no evil unprovided for, has established a mode by 
 which integrity may be restored to the witness, who, by some interest, 
 was so unfortunate as to have lost it. It is restored by the sacrifice of 
 the disqualifying discrediting interest. Integrity and interest could not 
 co-exist in the same bosom ; they are irreconcilable, and the war between 
 them is unceasing. 
 
 This restoration of integrity is effected by a release either to or fi-om 
 the witness interested How comes this release ? Suppose the witness 
 without any consideration flowing from, or any understanding with, the 
 party, the ' releasee,' should give him a release of all claims to the inter- 
 est for which he is excluded ; the witness deprives himself of, and invests 
 another with rights, unexpected and uncommanded by the law ; and to 
 the extent of the interest so released sufiFers a loss. And. does he do this 
 for nothing ? without motive ? No, not unless you suppose action not 
 merely without, but contrary to motive. There is, then, in this case 
 some motive superior in strength to that of the pecuniary interest on ac- 
 count of which he was rejected, and to promote which he suffers the 
 loss ; to the extent of that interest an-d the action of a correspondent mo- 
 tive he is still exposed to bias. The devisee being a witness to a will, 
 and of course, before the statute took away his interest, interested to es- 
 tablish that will, must, to be admissible, release his interest, or rather 
 the law itself releases it. If, then, releasing without consideration, with- 
 out being paid the devise, he was thus deprived of the gift intended him 
 by the deviser, to that extent he suffered, and the will of the deviser was 
 frustrated : to do this he must be impelled by some motive superior, 
 though in a degree ever so slight, yet superior, to the pecuniary interest 
 under the will. He was then, to all practical purposes, as to giving 
 testimony, an interested witness. There is no getting rid of this di- 
 lemma. 
 
 If, to procure this release, any one wishing to establish the validity 
 of the will, should pay the legacy ; if the will be established he loses 
 what the deviser never intended he should ; if the will be not establish- 
 ed, the witness receives what the event shows he was not entitled to, 
 and the person paying, in either event, suffers a loss which the law never 
 imposed on him, and that for the purpose of obtaining a chance for jus- 
 tice. [We speak of law as it was applied according to the ordinary rules 
 of evidence, and independently of the statute 25 Geo. II. c. 6, and other 
 statutes annulling the devise or legacy given to one who is a subscribing 
 witness to a will.] 
 
 If the release is bona fide, there is the evil of obligations being im- 
 posed upon, and losses suffered by the wrong individual; if mala fide, 
 that is, with an understanding that the parties shall act as if no release 
 had been made, then the interest exists. 
 
 But how comes this release ? The witness would not deprive himself 
 
INCOMPETENCY FEOM INTEKBST. 59 
 
 of rights to which he had an unquestioned title, and the party would 
 not release the witness from liabilities to which he might be exposed, 
 without some inducement. The party must, in some way or other, have 
 ascertained that the testimony of the witness would be useful to him. 
 The witness must have made statements by which his testimony was seen 
 to be desirable. And having made these extrajudicial statements, is 
 there no motive to adhere to them ? Has the witness no interest in his 
 reputation for truth, which, in case of a deviation from these statements, 
 must suffer ? The party would never have released the witness, or paid 
 the consideration for which the witness signed his release, without some 
 knowledge of what the testimony of the witness would be, and an un- 
 derstanding express, or implied, that such testimony, when delivered 
 in court, would coincide with the previous statements which led to this 
 contract, and with this understanding and under these circumstances is 
 the disqualification done away ? 
 
 Without the release, or the happening of a certain event, there woiild 
 be certain liabilities to be borne by the witness, from which this release 
 exempts him. If the witness says that he intends to avail himself of 
 this release to be thereby exempted from liabilities to which he is legally 
 and equitably subjeet^if law and equity are coincident — in order to 
 throw a loss on one who should not suffer it, he is heard. But, if being 
 a man of honor,(p) he intends, notwithstanding his release, to submit to 
 his previous liabilities, and on being interrogated, so says, then he would 
 not "be suffered to endanger his integrity by being examined on the 
 trial. "(j) If, then, the witness, notwithstanding his release, is willing to 
 act honorably, if he is a man of extraordinary integrity, he must not be 
 heard. Liability, though legally released, will nevertheless exclude one 
 who is disposed to act with integrity, while admission is thus given to 
 him who may be tempted to dishonesty or perjury. It is supposed that 
 the individual who voluntarily assumes obligations, to which by law he 
 is not exposed, will commit perjury to escape from obligations which he 
 cannot be compelled to bear. If not intending so to do, but so saying, 
 he can always deprive the party releasing him of the benefit of his tes- 
 timony ; or if intending so to do, that is, to comply with his legal obli- 
 gations, notwithstanding the release, if he will, merely to accommodate 
 himself to the circumstances and the rules of evidence, perjure himself, 
 and say he does not, there is no objections to the introduction of his 
 testimony. 
 
 If, on the other hand, the witness has released his claims to the party, 
 still, if considering him a man of integrity, he expects to receive what- 
 ever belongs to him, and that the party will act uprightly, and take no 
 advantage of the release, and so says, he is rejected ; if, so expecting, 
 
 {p) There were formerly strong objections to men of honor in courts, but lat- 
 terly there have been signs of relenting. 2 Starkie, 746. Contradictory autho- 
 rities. 
 
 (y) Per Lord Mansfield. Leach, C. C. 154. So Lord Mansfield states the law, 
 but it has been since more generally considered as overruled. 2 Stark. 746. But 
 the rule as stated by Lord Mansfield, is adopted in Skillinger t. Bolt, 1 Conn. 
 Eep. 147. 
 
60 APPLETON ON RULES OF EVIDENCE. 
 
 he denies the fact, he is admitted. To all honest men, notwithstanding 
 the specific of the release, the doors are absolutely shut; to all dishonest, 
 release or no release, they are thrown wide open. 
 
 What then comes of all this shuffling, of these slight-of-hand tricks ?(r) 
 Eights are taken from those to whom they belong and given to others ; 
 and individuals are exempted from liabilities to which they ought to be 
 subject, that there may be even a chance for justice. And when, after 
 all, the release is operative, the whole effect of it is to cause that to be 
 regarded as without suspicion, which is equally untrustworthy as before, 
 rendering it less likely to be regarded with caution, without rendering it 
 more entitled to credit; increasing the danger and diminishing the secu- 
 rity, by lulling watchfulness to sleep. 
 
 The rule, then, examined under every aspect, is fraught with nothing 
 but evil, naked, uncompensated evil, without the shadow of good. 
 
 Whether the law in all oases examined, has been correctly stated, is 
 uncertain, for the law on this subject is as inconstant and evanescent as 
 the clouds floating above us, and as changeable and unfathomable as the 
 ocean. To go through the detail of conflicting authorities, would be 
 labor without the hope of reward, and tedious without conveying wisdom 
 or instruction. Starkie devotes no less than forty pages to this subject, 
 and makes about six hundred and twenty references, including, perhaps, 
 some repetitions; a good proof of the certainty of this part of the law. 
 When the decision of Bent v. Baker was made, a triumphant shout 
 was raised at the important innovation. Since then legislatures have 
 gone on, at a snail-pace, removing interest with their omnipotence, by a 
 penny at a time ; and their co-laborers, the judges, by exception after 
 exception, have partially remedied the defects of the law at the expense 
 of its consistency. Centuries to come, by the co-operation of the judiciary 
 and the legislature, may accomplish, what ought now to be done, — admit 
 all, and substitute suspicion and watchfulness for exclusion. 
 
 (r) Starkie, vol. 1, ST, in defending the rule by which parents and children, &c., 
 are admitted, among other things, with a simplicity truly enchanting, remarks, 
 that "partiality or influence, arising from natural affection, or friendship, does 
 not admit of a release." 
 
 We cite two or three decisions as specimens of the law, on the subject of in- 
 terest. 
 
 "The deposition of a witness, who afterwards becomes interested, and is alive 
 at the time of trial, is not admissible." Irwin v. Reed, 4 Yeates, 512. Quere, if 
 dead at the time of trial ? If the deposition was taken when he was not subject 
 to the action of the interest which is so dangerous, why is it not as good as any 
 other deposition ? The fact of subsequent interest will make no alteration, no 
 erasures, in the deposition, nor in any way affect its truth. 
 
 " When after a witness has given his testimony, and it is discovered that he is 
 interested, he may still release his interest and be re-examined." City Council v. 
 Hayward, 2 Nott & M'Cord, 308. He may still release his interest. Strange 1 It 
 seems this was doubted, and nothing but a solemn decision could remove such 
 doubts. 
 
 " Where a witness interested, has made a deposition, and being afterwards 
 released, is again examined, his evidence is admissible, although the second deposi- 
 tion be the same as the first." 2 Vern. 272. A fact well worthy of being record- 
 ed, that a witness is admissible, although he has twice told the same story. The 
 wonder is he was not excluded; probably they would allege that fact, to the credit 
 of the witness. 
 
CHAPTEK V. 
 
 INCOMPETENCY OF PAUTIBS AS WITNESSES AT COMMON LAW. 
 
 The evils of the various exclusionary rules depend on, and vary in 
 proportion to, the necessity and value of the excluded testimony. In 
 the preceding chapter, an examination of some of the rules of exclusion 
 has been made, but a more important, and if more important a more 
 objectionable case of exclusion, calls for examination. "The law of 
 England, (a) ... to avoid all temptation to perjury, lays it down as an 
 invariable(6) rule that, nemo testis esse debet in propria causa."(c) 
 The propriety of this rule we now propose to examine, for however 
 injurious are the other rules of exclusion, this claims the precedence 
 in evil. 
 
 As before remarked, misdecision ensues whenever evidence necessary 
 to inform the judge is rejected. Exclude the truth, and he must 
 decide erroneously. If all testimony were shut out, that of parties and 
 witnesses, courts of law might as well be closed. Whenever the testi- 
 mpny of plaintiff or defendant being true and the only evidence by 
 which the claim can be substantiated, is excluded, the extreme of 
 judicial evil is endured. Exclude the evidence of the parties in their 
 own favor, it being the only existing proof, you take from them the 
 means of obtaining, you deny them, justice. Whenever facts within 
 the knowledge of a party, and adverse to his interest, are withheld, 
 injustice, at the expense of the party requiring such testimony, is done. 
 Thus all facts in the knowledge of one or both of the parties, all trans- 
 actions without witnesses, are acted upon and treated as if not done. A 
 contract being made or fulfilled in the presence of the parties, excluding 
 their evidence, the decision is the reverse of that required by the facts. 
 Unjust claims are wrongfully enforced, or just ones wrongfully avoided. 
 As to whatever is done or said in the presence of witnesses, if misrecol- 
 lected or mis-stated, the parties are without remedy. No matter how many 
 witnesses, so they only happen to be parties, no matter how important the 
 facts within their knowledge, they are at once shut out. By excluding 
 this testimony, fraud is encouraged, a bounty is offered to the dishonest. 
 Whenever facts are known only to the parties, the honest are placed at 
 
 (a) 3 Black. 371. (i) Invariable, ut lucua a non lucendo. 
 
 (c) NuUus idoneus testis in re sua intelligitur. — Dig. 22, 4, 10, de testibus. 
 Omnibus In re propria diceudi testimonii facultatem jura subraoverunt. — Cod. 4, 
 20, 10, de testibus. Such is the rule of the civil law, but like the invariable rule 
 of the common law, it will be found to be broken in upon by exceptions, some of 
 which will be noticed as we proceed. The similarity of these two systems, on the 
 subject of evidence, is in many respects very striking. 
 
 Februaey, 1859. — 6 
 
62 APPIiBTON ON RULES OF EVIDENCE. 
 
 the mercy of the dishonest. UnfouDded suits and groundless defences, 
 by refusing to examine and cross-examine the parties, who are conscious 
 of their own knavery, by freeing them from the shame of manifest false- 
 hood, from the danger of detected perjury, are invited and encouraged. 
 Nay, every inducement is held up to view ; successful fraud is attended 
 with rewards ; unsuccessful knavery is without punishment. The parties, 
 too, are placed at the mercy of any witness introduced by those opposed, 
 whether his misstatements are the results of carelessness or crime. 
 Even if this testimony were not required, still the introduction of the 
 parties wpuld serve for other and important uses. From them might be 
 obtained the ground of the claim or defence, the proofs by which they 
 are respectively substantiated, facts may be admitted, all unnecessary 
 evidence may be avoided, and delay and expense prevented. 
 
 But contracts are not entered into with the expectation of subsequent 
 litigation. Be-sides, witnesses are not provided in advance; and if they 
 should be, from death or any other cause, they may not be attainable, 
 or if attainable, only at a great and disproportionate expense. But a 
 matter in lite always implies parties, and those parties at hand. In 
 the other cases of exclusion, the number excluded is small, and their 
 testimony may be only as to few and comparatively unimportant facts. 
 In the case of parties, the number is coextensive with the number of 
 parties, and the importance of the testimony coextensive with the im- 
 portance of the matter in contestation. The other rules of exclusion 
 may be evaded ; the witness, if interested, may be purged of that in- 
 terest by some of the numerous legal specifics; he may give or take a 
 release; — if convicted, his veracity may be restored by the virtues 
 of his Excellency's seal; if his belief should not happen to square with 
 the legal orthodoxy of the time, he may repent, or, what will answer as 
 well, he may seem to repent, of his belief, and the doors are unhesi- 
 tatingly opened for admission. In all cases, therefore, where the evi- 
 dence is of sufficient importance, it can rarely happen that it is not 
 obtained. In the case of the party, even thougli he be without interest, 
 a mere flesh and blood John Doe or Richard Roe,((^) still there is no 
 known way by which his testimony can be received. So far, therefore, 
 as the number of witnesses excluded, so far as the value of the facts 
 within their knowledge, and if in their exclusive knowledge, the utter 
 hopelessness of obtaining them elsewhere may be considered important, 
 so far this may be considered infinitely the most important case of 
 exclusion. 
 
 In comparing and weighing testimony when delivered, not merely the 
 character of the witness, but his opportunities for observation, and the 
 motives which might or might not induce him to make the best use of 
 those opportunities, are to be considered. The character of the witness 
 is by no means all that requires attention. Correctness and completeness 
 are the only sure preventives of error, the primary and indispensable 
 requisites of testimony, without which, however great may be the wish, 
 
 (d) " The party in whose name an action is brought cannot be a witness though 
 he be merely a trustee for some other persons." 1 Phil. 58. The cases, however, 
 are contradictory. Those cited in the notes contradict the text and each other. 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 63 
 
 there can be but little expectation of justice. If these are wanting, if 
 the testimony be incorrect as to any facts, or if correct as far as it goes, 
 it be incomplete, not embracing all the facts, not affording a full and 
 accurate view of the case, it may, even with the most perfect integrity 
 on the part of the witness, be equally prejudicial, as if the effect of the 
 most perverse and wicked mendacity. 
 
 To afford a correct and complete knowledge of facts, it is not enough 
 that they should be stated as they seemed to the witness, but that they 
 should seem to him as they really are. For if owing to want of oppor- 
 tunity for observation, or deficiency of attention, an incorrect or incom- 
 plete knowledge of facts should be obtained, the defect of testimony is 
 as great, as if such incorrectness and incompleteness were intentional, 
 the result of determined improbity. To see facts as they exist, and all 
 which exist, and in the order of their existence ; to give sufficient atten- 
 tion at the time, so as to render those facts fixed in the memory, that at 
 any subsequent period, when it may become desirable to recall them, the 
 recollection of them may be full, clear and distinct, — is the work of 
 labor, of labor in the perception and recollection ; and the more nume- 
 rous and complicated the facts, the greater the labor, and this labor will 
 never be incurred without an adequate motive. The original impressions 
 may have been clear, distinct, embracing every fact, still from want of 
 inducement to renew, to clothe with freshness past impressions, they 
 may have faded away, without leaving a trace, or only a confused and 
 incorrect reminiscence. In this view of the subject, an absence of 
 interest is not the only desideratum in testimony, for the same absence 
 of interest which furnishes security against intentional misrepresentation, 
 affords strong reasons to suppose the witness may have been a careless 
 and indifferent percipient witness of the several facts which form the 
 subject-matter of his testimony. Hence we see how treacherous and 
 mistaken are the recollections of those, who having nothing but their 
 indifference to the result to recommend them, while destitute of interest, 
 are alike destitute of clear perception and accurate recollection, qualities 
 the most desirable. 
 
 How then, in these respects, is the party situated? So far as an 
 exact and distinct knowledge of the things done or agreed to be done, of 
 the conversation leading to, and the contract entered into and completed, 
 are of importance, the parties would manifestly be the best witnesses. In- 
 terested each would be, to the greatest possible extent, to the extent of the 
 contract and the rights thereby acquired ; and being so interested, they 
 would obviously be the most attentive observers of the transaction. As 
 great as might be the importance of the contract to each, so much would 
 each feel interested in its consummation, and so far have motives suffi- 
 cient to induce him to give the attention requisite to a perfect under- 
 standing of its language and its import. Each participating in the 
 matter in dispute, in the transaction under investigation, would hest 
 know his own views and his conduct — better at any rate than others, 
 inasmuch as a man, who has interest enough to make a bargain, would 
 be more likely to know, however unwilling he might be to disclose, its 
 terms, than any unconcerned and careless spectator. The same reasons 
 
64 APPLETON ON RULES OS EVIDENCE. 
 
 which insure attention to the contract to understand its terms, would 
 likewise insure their full and complete recollection. Of his own business, 
 of his own concerns, every one is necessarily regardful; of his own 
 affairs, as they make the most impression, so that impression will the 
 longest endure. Events that but slightly arrest the attention, soon fade 
 away. The more the attention is originally interested, the oftener the 
 facts are recalled; and in proportion to their importance, will be the 
 frequency with which they will be recalled, the more deeply and per- 
 manently they will be fixed in the memory. But by no one, to whom 
 they are of little consequence, will this be done. As between indiffeuent 
 and interested persons, the same acts will be differently regarded ; their 
 importance is relative, to the parties of the greatest, to all others of the 
 most trivial consequence. Strange, then, must that logic be considered 
 which would anticipate equal attention from the party who is, and from 
 the witness who is not, affected by the facts or events which are trans- 
 piring. Any other witness, being without motive to regard with care 
 what contracts might have been entered into, being ignorant of the 
 respective views and wishes of the parties, will neither ascertain with 
 accuracy nor preserve with fidelity their several agreements and disagree, 
 ments, their admissions and denials — what was said and what was done. 
 Of whom, then, would you inquire but of the parties ? ' Each fully and 
 entirely understood, (or if there should happen to have been a misunder- 
 standing,) still they understood the contract better, know more of and 
 concerning it, and would be mere likely to remember, than anybody else. 
 Who knows so well, who will remember so accurately ? 
 
 Were a witness stationed and preappointed to observe, collect, and 
 treasure up the facts in a case, were he paid in proportion to the atten- 
 tion given, to the fidelity of his reminiscences and the truth of his narra- 
 tions, he would clearly be more likely to perceive, recollect, and relate 
 facts, as they transpired, than any witness, however disinterested. His 
 interest would afford a guaranty for the truth of his statements. He 
 would be the beau ideal of testimonial trustworthiness. To a certain ex- 
 tent and for certain purposes, the party is thus interested — affords this 
 guaranty ; for important as is the contract to him, so important is it for 
 him fully to understand all its essentials at the time it is entered into, 
 and to. treasure them in his memory. The greater the interest, the 
 greater the security that all this shall be done. So far, then, interest is 
 evidently favorable to the cause of truth ; and were integrity, in the de- 
 livery of the facts hnown, supposable, the parties would be the best wit- 
 nesses. In the absence of all sinister interest, none so safe, none so 
 worthy of reliance. Why then reject them ? Are all parties under the 
 inflfuenoe of this sinister interest ? The distinctness of their original im- 
 pressions, the importance of the facts within, and the accuracy of, their 
 knowledge, the vividness of their recollections, and the facility with 
 which they may be obtained, are strong reasons for their introduction, 
 .notwithstanding the danger of this influence. 
 
 " In the greatest number of civil cases , . the facts at issue must be 
 known to the persons directly implicated, better than to any others ; but 
 the interest which they have in that issue, the danger of perjury, and 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 65 
 
 other reasons founded on the strongest views of expediency, render their 
 evidence, in the great majority of cases, highly suspected, and therefore 
 incompetent."(e) From a supposed want of legal integrity, says Gilbert, 
 parties are excluded. Indeed a sort of incongruity has been assumed as 
 existing between the stations of parties and witnesses. The very usage 
 of language, the definition of witness, " an indifferent person to each party 
 sworn to speak the truth, the whole truth, and nothing but the truth," (/) 
 have sanctioned this supposed incongruity, so that, to most lawyers, the 
 admission of the party to testify would be regarded as a judicial heresy 
 of no ordinary magnitude. We shall endeavor to show, not merely that 
 there is no such incongruity, but that there is the most perfect propriety, 
 in permitting those who are percipient to be narrating witnesses, what- 
 ever may be their relation to the cause ; that, if the facts " are better 
 known to them than to others," however " highly suspected," they should 
 not therefore be considered " incompetent." 
 
 The testimony of a party delivered, or which may be required to be 
 delivered, may be divided into two portions, that favorable to and at the 
 instance of, and that adverse to the interests of, the party testifying, and 
 of course called for by the opposing party. Accordingly, as the testi- 
 mony extracted belongs to one or the other of these divisions, will vary 
 the reasons assigned for exclusion. If the testimony be favorable to and 
 at the instance of the party testifying, a presumed want of integrity, the 
 danger of perjury,((7) the impolicy of trusting juries with such suspicious 
 testimony, are given as reasons for refusing to hear. If the testimony 
 be adverse to the interests of the party, it will never have been intro- 
 duced by him whose interests are thereby disserved, but will have been 
 called for by the opposing party. In this case the fear of perjury, (A) (if 
 the party should conclude to serve his own interests regardless of truth) 
 if not the hardship of calling a party to charge himself, seem to have 
 been considered satisfactory reasons for each branch of the rule. It may 
 be remarked that the reasons in one, do not apply in the other case : the 
 danger of perjury, the hardship of disserving one's self, do not exist 
 together. The testimony being favorable, however great the danger of 
 perjury, however deceptitious it may be, there can be no hardship in giv- 
 ing it utterance : being adverse, however great may be the hardship, 
 there can be no danger, no well grounded danger, that an individual will 
 knowingly testify falsely to his own injury, and of course no danger that 
 such testimony will lead to deception. Each case, with its several rea- 
 sons, will receive separate examination and illustration. 
 
 When the party, at his own instance,(i) and to aid himself, is intro- 
 duced, a supposed want of integrity, a danger of perjury is considered a 
 sufficient reason for refusing to hear him. The assumptions are, that the 
 
 (c) Glassford on Evidence, 327. 
 
 (/) M'Nally on Evidence, 1 vol. p. 1. 
 
 \g\ 3 Starliie, 1161. 
 
 (A) Tlie fear of perjury, and tlie propriety of oaths, will be subsequently ex- 
 amined. 
 
 (i) The rule of the civil law coincides in this respect with the common law. At 
 his own instance no one is heard ; but at the instance of his antagonist, any one, 
 as in equity. 
 
66 APPLETON ON RULES OF EVIDENCE. 
 
 interests of the party testifying are adverse to the truth, that to promote 
 such interests he will testify falsely, that such false testimony will be re- 
 ceived and acted upon as true, and that misdecision will ensue. In other 
 words, it is assumed that each party is in the wrong, that each, being in 
 the wrong, will, to serve himself, testify falsely, and that such false testi- 
 mony will receive undue credence to the prejudice of the party in the 
 right. For if false testimony should not be delivered, or if delivered, 
 should not receive undue credence, no mischief is done. But by the rule 
 each party, the one in the right as well as the one in the wrong, are ex- 
 cluded as guilty of perjury; and interest, without hearing their state- 
 ments, has been considered, by judges living centuries past, as conclusive 
 proof of probable perjury. 
 
 But what is the probability that all parties will testify falsely ? Is the 
 plaintiff right in prosecuting, the defendant is wrong in resisting the 
 claim ; if the defence be righteous the claim is unjust. The parties being 
 at issue, both cannot, as to each disputed fact, be in the wrong, and the 
 statements of both will not be untrue. Interest will retain the party in 
 the right in the path of rectitude. So far as truth and justice coincide, 
 so far truth will serve the purposes of the party testifying, and it will 
 always serve his purposes best when his conduct has been upright ; to 
 that extent truth may be relied on as certain. If, as often is the case, 
 there be mutual errors, if the testimony of neither should be entirely cor- 
 rect, yet a portion of the evidence may be relied on as true. But as to 
 each disputed fact, in each disputed case, truth being for the advantage 
 of the party in the right, there will always be one witness from whom, 
 as to a part or the whole of the facts, truth may be expected — upon whom 
 reliance may be placed — and another, the party in the wrong, whose 
 statements may be entirely or partially true or false. 
 
 The party in the right will not, the party in the wrong may or may 
 not perjure himself; that he will have motives to induce and motives to 
 restrain him, is sufficiently obvious. The strength of the various mo- 
 tives, which influence human conduct, vary in different individuals, and 
 in the same individual at different times and circumstances. In no case, 
 whatever their nature, however sinister their direction, is there any cer- 
 tainty that the testimony delivered will be false ? From the existence of in- 
 terest or any other motive, no sufficient reason for exclusion can be drawn. 
 Interest will act with no more nor greater force on an individual, whether 
 the person thus affected be a witness or party. That is, the one and the 
 same motive, the hope of gaining, or the fear of losing one hundred 
 dollars (and it is the supposed influence of this motive which excludes) 
 will have no other or different influence on testimony, whether the wit- 
 ness be a party or not. The same identical motive operating on the mind 
 of the same individual cannot be perceived as likely to produce any dif- 
 ferent results from the situation of the individual with reference to the 
 cause. It is still the same amount, still the one hundred dollars. It 
 must be remembered that costs are not to be taken into consideration as 
 increasing the sum : the amount gained or lost is in each case the same. 
 Indeed, when the interest of a witness is one hundred dollars, he is, in 
 fact, to that extent, to that amount, as much a party as if his name were 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 67 
 
 on the docket. Pride, passioa, or revenge, as they do not enter into the 
 reason of the rule, and if they did, might as well exist in the bosom of 
 the cestui que trust as of the trustee, as well in the bosom of the inter- 
 ested witness as of the interested party, will not now be considered with 
 reference to this subject. In a preceding chapter the propriety of ad- 
 mitting witnesses interested in the event of the suit has been shown, and 
 the same general reasoning, which proves that the interest, the gain or 
 loss of a witness affords no sufficient reason for rejecting his testimony, 
 is equally applicable as proving that the same interest in case of the party 
 should not, on account of its supposed probable falsehood, be esteemed a 
 sufficient reason for exclusion. 
 
 The result, then, in the case of parties, is, that a part of the testi- 
 mony will be true ; that each, so far as they are thereby benefited, will 
 testify truly ; and, that there is no probability sufficient to justify ex- 
 elusion, that either will testify untruly. The truth then is rejected lest 
 falsehood should deceive. Who suffers? Not the party in the wrong — 
 exclusion serves his turn, renders his success sure. For whose benefit 
 was the rule established? Of the honest man ? Admission is his only 
 hope ; exclude his testimony, it being the only proof existing, and wrong 
 decision is unavoidable. Hearing all, the worst that can happen is mis- 
 decision ; by excluding, that event, otherwise more or less probable, is 
 rendered certain. 
 
 But is misdecision so very probable ? Let us examine the matter. If 
 the parties being admitted should coincide either entirely or substantially 
 in their statements, the cause is at an end — justice is done. If, as to a 
 portion of the facts, they should agree, there is so much evidence about 
 which there can be no dispute, so many facts established on the safest 
 and surest basis. It is only in case of contradictory statements that any 
 question, any difficulty as to correct decision can arise. It may be said, 
 that of two contradictory statements, it will be impossible to ascertain 
 which may be correct ; and that, therefore, both should be excluded. 
 Such seems the only conceivable objection. If, says the exclusionist, the 
 parties contradict each other, what, in the absence of all other proof, is 
 to be done ? Done ? What does a father when two children tell him 
 contradictory stories about their several grievances ? Does he not hear, 
 examine, and compare their respective statements, and then judge ; or 
 does he stop up his ears, turn them both out of the room, and then de- 
 cide as he may ? There is no greater danger of deciding erroneously in 
 this than in any other case, when similar contradictions are uttered by 
 persons occupying the position of witnesses. If in one case the judge 
 is competent to decide, he is equally so in the other ; if not competent, 
 the argument is much stronger for the removal of the judge than for 
 the exclusion of the testimony. To decide right, when right decision is 
 unavoidable, deserves little praise ; it is only in cases of contradiction 
 and doubt that the services of the judge^/c) are required ; and there it 
 seems he fails. 
 
 Further,' it may be urged, that a bad man will have unequal chance 
 
 (k) Judges of fact, are generally intended, whatever may be their designation. 
 
68 APPLETON ON RULES OP EVIDENCE. 
 
 with the good man ; that the dishonest will commit perjuries, his per- 
 juries be credited, while truth will be disregarded. True, such may be 
 the result, and what then ? Is it not better that the honest should have 
 an equal chance of success ? Is it not better that they should have some 
 hope, than that their failure should be rendered sure ? Bad men as wit- 
 nesses, may, when their testimony is false, receive credence, trustworthy 
 witnesses may be disbelieved ; and should all testimony therefore be 
 excluded ? But has falsehood this advantage, (for even equality is an 
 advantage,) is it more likely to be credited than the truth ? The liar is 
 always in danger, from within and from without, from his own assertions, 
 from unexpected questions, from opposing statements. Every true fact 
 uttered by any witness, any true or any false statement of his own, may 
 lead to his detection and overthrow. Truth, consistent with itself, con- 
 sistent with every true fact in the case, will receive support and corro- 
 boration from every quarter. If there be a single true fact, with which 
 the statements of his opponent are inconsistent, such statements are 
 necessarily false. Every truth uttered by himself or any other witness — 
 every truth in the case — by its inconsistency with such falsely asserted 
 facts, increases the probability of the triumph of integrity. Is then the 
 chance of success equal ? And even if it were, what would be thought 
 of the judge, who should exclude all contradictory statements, all evi- 
 dence, lest after hearing, he might be puzzled how to decide. False 
 testimony, when heard, may be credited ; but it is hardly worth the while, 
 by excluding true, to make special provision, that injustice shall always 
 be crowned with success. 
 
 Indeed in some respects the usual motives to truth act in case of the 
 party with increased force. The situation of the party being dangerous 
 to any extent supposable — the more dangerous it should be considered, 
 the more watchful the public, the more scrutinizing the judge ; and all 
 this being known to the party, standing as he does a suspected witness, 
 on his good behavior, seeing every eye upon him, knowing, that if his 
 testimony be untrue, contradictions and refutations may spring up from 
 he knows not where ; has he not greater motives to be correct in his 
 testimony, to be on his guard to preserve his character, than any other 
 witness ? With so many motives to restrain, with this suspicion attached 
 to his testimony, and the little chance it will produce the results desired, 
 would he not perceive the prospect of successful falsehood to be too slight 
 to justify the risk incurred ? In case of falsehood in the testimony of 
 extraneous witnesses, however strong may be the desire, the knowledge 
 to detect and disprove these false assertions may not exist. The evidence 
 of interested witnesses may be all on one side, unopposed by counter 
 testimony. In case of the party, if there be falsehood, such counter 
 testimony of the opposing, party will always have tbe advantage possessed 
 by truth. The plaintiff will always be met by countervailing zeal and 
 countervailing interest. If he exaggerates, the defendant has the best 
 means and the strongest inducements to detect and point out these ex- 
 aggerations, the testimony of each being seen and examined by the other, 
 the parties being mutually interrogated and cross-interrogated ; knowing 
 too, that their statements are made before one with the requisite know- 
 
INCOMPETENCY OP WITNESSES AT COMMON LAW. 69 
 
 ledge and with adequate motive to disprove what may be untrue ; there 
 is, even if the most danger of falsehood, the best opportunity for detec- 
 tion. 
 
 In case the contradictions exist between the party and extraneous 
 witnesses, still less is the danger of deception from the testimony of the 
 party. The interest of the party is obvious — brought home to the notice 
 of the most unobservant ; and the more probable the judge thinks it is, 
 that the party would perjure himself — the more fully convinced he is 
 that parties are ex officio liars — the less would seem to be the danger that 
 too implicit reliance would be placed on such testimony. The real danger 
 would rather seem to be, that such suspicious testimony would not receive 
 sufficient attention. To the witnesses, their situation lulls watchfulness 
 and suspicion asleep ; when all around presents the appearance of perfect 
 security, the pilot is not on the watch for danger. Of this testimony, 
 being so much more than enough suspicious, so much so that he does not 
 hear it, it would hardly be expected, that he would as soon as he should 
 hear it, fall into the opposite error of believing without any investigation. 
 
 So far, then, as regards the only case where there is danger of false- 
 hood, the testimony being favorable to the party delivering it, there is 
 no preponderant probability that such testimony will be false, or if false, 
 that it will receive undue credence. Let it then be delivered ; as for 
 pure testimony, it can never be foreknown nor obtained with certainty ; 
 and as for waiting for it, as well might the countryman wait on the banks 
 of the river for the ever-flowing stream to cease its course, that he might 
 pass over on the sand which its waves had covered. 
 
 So stands the argument when the party is introduced at his own in- 
 stance, and to support his own claim. Suppose the testimony of a party 
 adverse to his own interest is required. The reasons for exclusion are 
 different. Here the testimony of the party will be true or believed to 
 be true, there is no fear of intentional deception, no danger of perjury, 
 for if there be any thing which may be considered as undeniably true, 
 true to the exclusion of even the possibility of doubt, it is, that no sane 
 man, whatever may be the subject matter of his testimony, will testify 
 falsely to his own injury, not merely without, but against motive. 
 
 The question, then, is, w'hether, at the instance of his opponent, a 
 party shall be subject to examination for the purpose and with the inten- 
 tion of eliciting facts adverse to the interest of the party called. No,(?) 
 says the common law. A man is not bound to give evidence against him- 
 self — it would be hard — he would perjure himself. 
 
 The evidence in all these cases is called for by the opposing party. 
 That a party will, at his own instance, introduce evidence prejudieal to 
 himself, is not a danger that requires guarding against. A party shall 
 not be asked, and is not bound to answer questions,(m) which may dis- 
 
 (Z) " As a party is not suffered to be a witness in support of his own interest ; so 
 he is never compelled in courts of law to give evidence for the opposite party 
 against himself." 1 Phil. Ev. 61. " A rule founded on the ground of policy in 
 preventing perjury, and a consideration of the hardship of calling a party to charge 
 himself." 3 Starkie, 106 and note. 
 
 (m) "The plaintiff . . who declines answering a question properly put; or 
 
70 APPLBTON ON KULBS OF BVIDENCE. 
 
 serve his own interests. He shall not be asked — but what he would 
 have answered can never be foreknown. If his answers are in his own 
 favor, all hardship vanishes, and the danger of deception, which in that 
 event is the only objection, has already been considered. If his answers 
 are against his own interest, then the supposed hardship occurs. But 
 what is this hardship which has been adjudged sufficient to excuse the 
 party from testifying ? In all cases the delivering of testimony is at- 
 tended with some more or less inconvenience and hardship ; and this 
 hardship can only avail as a valid excuse for the non-delivery of testi- 
 mony, when it arises from the expense, delay, and trouble, which the 
 party must suffer in obtaining and producing it. But here the hard- 
 ship is of a totally different character and arises from giving due effi- 
 ciency to the laws, the very thing of all others desirable. Assuming 
 the answer to be against the interest of the party and for that cause ex- 
 empting him from examination, is assuming the party to he in the wrong 
 and establishing a rule, which enables him to triumph in injustice ; to 
 shield himself from doing right ; to avow his dishonesty as a reason, 
 why he should claim and receive this protection of the law. The answer 
 being against his own interest is the strongest and most convincing proof 
 of its truth — proof about which, there can be no more question, than 
 that action, mental or physical, is in the direction of and caused by the 
 forces impelling. So that this testimony unquestionably stands free from 
 the least shadow of suspicion. Of testimony favorable to the party tes- 
 tifying, notwithstanding the objections urged, we have seen that a due 
 regard to the ends of justice require its admission — much more so here, 
 when no possible evil can arise. From whom and in what shape will the 
 objection arise. Erom the judge ? If his intentions are pure, why 
 should he refuse to hear, what if heard, will aid and instruct, but what 
 at any rate will not deceive. If testimony of unquestionable trustworthi- 
 ness is desirable, he cannot object. Condemned by his own admissions, 
 out of his own mouth condemned, the party cannot complain. The judge 
 may fear that the testimony may not be thus adverse ; but if the one 
 most interested is willing, on him be the risk, on him the peril. Even 
 if it should be favorable, he, who anticipates perjury, must thank his 
 own folly, if deceived. But with truth, which is assumed whenever the 
 hardship is given as a reason for the answer, with safer grounds of re- 
 liance than any reported confessions or admissions, the judge cannot but 
 decide correctly ; and this can never be considered by him as unpleasing 
 or unsatisfactory, (n) 
 
 who departs from court ; or who being ordered to speak, stands mute ; . . . such 
 a plaintiff shall fail in his suit." Institutes of Menu, c. 8, JJ 54, 55, 56. 
 
 (n) In the civil law adverse interrogation, or what we should call examination 
 and cross-examination, at the instance of either party, was not allowed. But either 
 party might resort to the decisory oath of the party; the party to whom the oath 
 was deferred might either take it or refer it to the party otfering it. If taken, the 
 facts asserted were considered as conclusively established thereby. If neither 
 taken nor referred, it was considered as tantamount to a confession of the injus- 
 tice of the claim of the party thus refusing. In certain cases the judge deferred 
 the oath to either party, when the proof seemed not sufficient to warrant a deci- 
 sion. 
 
 In certain cases, too, the party was examined, after obtaining an brder from the 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 71 
 
 If the objections arise from the party, what form will they take ? If 
 his answers are favorable, he of course will have no objections to state 
 what may aid, but cannot injure his cause. It is only when in the wrong 
 that this reluctance to testify arises, and it is for the benefit of those 
 thus reluctant that this rule exists. Bad indeed must be his case if, 
 when presented in the best aspect, when coming from the favorable lips 
 of the party, it will not endure the light. This reluctance is but a re- 
 luctance to do right, a fear that the testimony delivered may lead to, 
 what of all things he dreads, correct decision. The worse the case the 
 greater the reluctance. The reason given for not testifying is the very 
 one of all others why he should be compelled to testify ; this very un- 
 willingness is an admission(o) of the turpitude of his conduct, and past 
 misconduct is no very good reason for present or future misconduct. He 
 fears that if he testify, justice will be done, the hardship of correct deci- 
 sion will be endured, and hence his desire to be excused ; the judge, 
 imbued with similar fears, consents. The hardship of correct decision is 
 equally great, whether the testimony which leads to such results comes 
 from the mouth of the party or of any one else; and if the hardship of 
 being compelled to obey the laws is a sufficient reason for excusing him, 
 it is equally so for the rejection of all evidence; and as the actual im- 
 position and endurance of the burden is greater than any hardship in 
 giving utterance to testimony, which might lead to such results, the rea- 
 soning, if valid, shows that no burdens should be imposed, that no laws 
 should exist. Extraneous witnesses are compelled to answer, notwith- 
 standing the hardship, though by such answers they charge themselves 
 in a civil suit. But is it less of a hardship for a witness to lose than 
 any one else ? Will such loss be borne, with more philosophy, because 
 he happens to be a witness instead of being a party ? He loves his pro- 
 perty equally as well as if he held the more prominent station of party; 
 and well might he wonder at the consistency of those rules, which, as a 
 witness, require of him truth to the loss of his cause, but which, when a 
 party, releases him from such obligations. The term witness, by which 
 in one case he is designated, will hardly remunerate him for his loss ; 
 yet that is all he has, in that alone consists the difference in the hard- 
 ship of the two cases, (p) If then, in case of witnesses, this presumed 
 
 judge for that purpose, on interrogatoriee ; and these interrogatories are put, in 
 order to derive some proof from the admissions the party may malce, or from con- 
 tradictions into which he may fall — aut confitendo aut mentiendo se oneref. As to 
 the extent and effect of such interrogatories, see Dig. 11, \, de interrogationibiis in 
 Jure faciendis ei interrogatoriia actionibus. 
 
 (o) Manifests turpitudinis et confessionis est, nolle nee jurare nee jusjurandum 
 referre. Dig. 12, 2, 38. Such is the obvious principle of common sense. To in- 
 quire, at common law, they refuse, and of course are without this peculiarly forci- 
 bly proof of improbity. 
 
 ( p) The rule as to witnesses, who are not parties, is involved in doubt. Much 
 in the way of authority may be adduced on each side. In the impeachment of 
 Lord Melville, the twelve judges, after consultation, differed in their conclusions. 
 Eight considered the witness was bound to answer notwithstanding such answers 
 might charge him in a civil suit. Pour of the judges, among whom was the Oh. 
 Jus. of C. P., Mansfield, dissented. The chances may be in the ratio of the num- 
 ber of judges. In England, the legislature, aware of the fluctuation incident to all 
 things human, and particularly to judicial opinions, have established the law in 
 
72 APPLBTON ON RULES OF EVIDENCE. 
 
 JiardsMp is no sufficient reason for excusing the witness, it is none for 
 excusing the party. Were the party to address the judge on this sub- 
 ject, it would be something in this strain : " I have done w^ong. I have 
 defrauded this individual and am unwilling to affijrd him any recompense. 
 Indeed to do so would be very hard. If compelled to answer, so unwill- 
 ing am I to do right, that for the purpose of escaping obligations, which 
 the law imposes on me, I may commit perjury; at any rate, I shall be 
 under strong temptation to do so ; and it is certainly better to permit me 
 to wrong him, than by requiring my testimony, to induce me to commit 
 perjury and thus wrong myself. If I should not commit perjury ;(j) if 
 I should state the truth, I am then compelled to endure justice, to con- 
 form to and bear the burdens of the law, compelled to perform my con- 
 tracts, a hardship of all others I wish to avoid. All undue advantages I 
 wish to retain, from all just obligations I wish to escape. In fine, I neither 
 am nor wish to be an honest man, and if I should answer truly, pro hac 
 vice, I shall at any rate be one by compulsion ; therefore excuse me, I 
 pray you. Had my conduct been upright I should not have been thus 
 reluctant." The judge, duly sensible of the delicacy of his situation, 
 commiserating the melancholy dilemma in which the party is placed, for- 
 getful that whatever hardship there may be in compensating for injuries 
 done or contracts broken, it is of the parties' voluntary creation, upon 
 hearing these reasons duly assigned, excuses him. 
 
 It is a rule of the common law that no man shall take advantage of 
 his own wrong; but here the party urges his own admitted wrong as a 
 reason why he should be exempted from doing right, or rather from 
 testifying what may lead to his being compelled to do right. What 
 would be thought of such a plea in bar to an action, a plea acktiow- 
 ledging the truth of the several averments in the plaintiff's writ, a plea 
 admitting the existence and violation of the several contracts specified, 
 and giving the hardship of affording remuneration as a good and valid 
 reason why it should not be done ? What would be thought of such a 
 reason for not admitting any testimony which might lead to the enforce- 
 ment of any duty imposed by the laws ? The judge, who for this 
 cause should excuse the party, if consistent, could hardly fail to decide 
 the total absence of all right on the part of the plaintiff, as a valid and 
 sufficient reason for his recovering his claims. Unwillingness to testify, 
 lest such testimony should lead to correct decision, considered as a suffi- 
 cient excuse for not testifying? Unwillingness to receive justice at the 
 hands of the judge, a reason why it should not be administered ! and 
 recognized by judges as a good reason ! What ai;e the objects of courts 
 but to compel the unwilling ; the willing need not compulsion. 
 
 What seems never to have occurred, or, if it occurred, seems to have 
 been thought of too trifling importance to deserve notice, is the still 
 
 conformity with the opinion of the majority of the judges. In this country, the 
 law is uncertain — decisions both ways. 
 
 (?) Ait praetor, eum a quo jusjurandum petitur, solvere aut/wrore eogam : alterum 
 itaque eligat reus ; aut solvat, aut juret ; si non jurat, solvere cogendus erit a pras- 
 tore. Dig. 12, 2, 34, 6. The prEetor seems not to have been afHicted with this 
 squeamish and sickly delicacy. Still the rule of the pr^tor might be improved ; 
 but at any rate it is better than common law. 
 
INCOMPETENCY OP WITNESSES AT COMMON LAW. 73 
 
 greater hardship, which this rule imposes on honest plaintiffs or defend- 
 ants by depriving them of, or rather "withholding from them, the means 
 of obtaining their rights. The sufferings they may endure seem never 
 to have entered into the conception of these dealers out of what passes 
 for justice, or if noticed, were only noticed to be disregarded. The great 
 hardship of receiving justice, a regard for the dishonest, that they 
 should be abundantly, and more than abundantly protected, that they 
 should be supported in their iniquities, are visible throughout the 
 whole. No care is taken of the interests of the honest, who thus suffer. 
 Let it be remembered, that in no event does the honest man suffer 
 by admission in this case, whatever may be the answers : if true, he 
 certainly does not ; if false, he is only where he was when he com- 
 menced, without the evidence which he wished and hoped to obtain. 
 Whatever be the answers, he incurs no risk from the examination. The 
 individual in the right, for whom the rule ought to be established, is 
 not aided by it. The claim of the plaintiff being unjust and known to 
 be so, as in attempting to enforce the collection of a note already paid, 
 the only hope of the defendant (he being excluded as a witness) is in 
 resorting to the plaintiff in the expectation of eliciting the truth from 
 him. If the answers are true, justice is done. The only chance for jus- 
 tice is in thus resorting to him. If the answers be false, if the plaintiff, 
 being questioned, denies the payment, even then the defendant is none 
 the worse for the question. The rule, therefore, cannot, in any conceiv- 
 able combination of circumstances, have been established for the purposes 
 of justice. The honest alone are prejudiced, the dishonest alone are 
 benefited by its existence and continuance. Had the law been passed 
 at the request and solicitation, and for the special benefit of knaves, 
 they would hardly have wished for more than to be entirely exempt 
 from all personal examination as to their conduct, That the honest 
 should suffer, was viewed as unimportant ; that the dishonest should not 
 merely not be exposed to any hardship, but that they should be sedu- 
 lously preserved safe from what to them might be imagined a hardship, 
 the doing or receiving justice, was the object carefully and anxiously 
 kept in view, and for such purposes no better means could have been 
 devised. To have subjected the parties to examination might have led 
 to impertinent and unpleasant inquiries, might have exposed the dis- 
 honest to some danger, might have rendered the chance of justice better, 
 and therefore it must not be permitted. 
 
 In any or in all these cases, the judge meanwhile preserves a most 
 stoical indifference to the result. If the parties wish to inform, he 
 refuses their information : if either seeks it through his means from his 
 opponent, he seeks in vai-n. As for the judge, afraid they will lie, or 
 they will be unwilling to answer his questions, he therefore makes no 
 inquiries. Of the evidence adduced, he makes selections to suit himself; 
 to increase that mass by seeking information is what he never attempts. 
 In Scotland " it is competent for a court of justice to examine the par- 
 ties to a lawsuit upon the matter of it, not being upon oath, and to put 
 all questions to them which may serve to inform the mind of the 
 
74 APPLETON ON RULES OF EVIDENCE. 
 
 judge. "(?•) At common law, from a spirit of indifference, they care- 
 fully abstain from all inquiries, lest by any means instruction should be 
 received. 
 
 The rule having been examined, it remains to ascertain if it is with- 
 out exception, and if not, to inquire how those exceptions consist with 
 the rule. 
 
 The first exception to the rule will be found in the initiatory and 
 succeeding parts of a suit, as writs, pleas, &c. Important as it is that 
 justice should be done in the final decision of a cause, it can hardly be 
 considered as unimportant that every individual should be secured, as 
 far as practicable, from being compelled to answer unjust claims; and if 
 so, it is obvious that every security, that in any case is effective, should 
 be adopted to ensure such result. Desirable as truth may be on the 
 final trial, equally desirable is it at the commencement of suits. Un- 
 founded suits and unjust defences differ only in degree. The expences 
 imposed by the plaintiff on the defendant are equally onerous, whether 
 he loses any given sum by an unjust decision, or in resisting an un- 
 founded claim. 
 
 Any one acquainted with the practice of the law knows, that, in the 
 commencement of a suit, whether at common law or in equity, whether by 
 writ or by bill, there are not merely no securities for truth, but that an un- 
 limited license to falsehood is not only permitted, but even compelled. 
 The plaintiff, in his writ, or the defendant in his plea, may wander un- 
 checked and unquestioned over the whole region of fictitious claims or 
 imaginary defences; the one may charge all supposable violations of 
 right, the other may offer all conceivable excuses for wrong. True, 
 these are called allegations ; but do they not answer the purpose of evi- 
 dence, and that the most conclusive? The allegations in the writ, 
 without any inquiry whether true or false, without any security against 
 vexatious litigation, save the nominal security of inadequate cost 
 against an irresponsible plaintiff, are deemed sufficient to compel the 
 defendant, under pain of having each and every allegation taken as 
 proved, to answer at his own expense, to any complaints, however 
 groundless. Sufficient evidence are the writ and the allegations therein 
 contained, to authorize, nay, to require the arrest and confinement in 
 prison, with felons, in the lowest abodes of human suffering, any number 
 of individuals, however honest and respectable ; or to justify the seizure 
 and temporary confiscation of all the real and personal property of the 
 most wealthy; and this, without regarding the inconvenience and de- 
 rangement of busioess consequent upon these proceedings, is done on 
 the mere assertion of any individual, the most worthless in the commu- 
 nity, he knowing and boasting, perhaps, that his claim is entirely 
 unfounded. (.s) On the part of the defendant, he may, when without 
 
 (r) Glasaford, 331. In the civil law the judge may defer the oath to either, in 
 case of a deficiency of proof, and this is termed the suppletory oath. Where, and 
 to whom, and for what purposes, it shall be delivered, depends on the discretion 
 of thejudge. 
 
 («) These remarks refer to attachments on mesne process, which are allowed in 
 New England. 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 75 
 
 defence, by a special plea, of the falsehood of which he is well aware, 
 put the plaintiff to any amount of trouble, expense and delay, in pre- 
 paring to prove, or in proving facts, which the defendant knows to 
 exist, and which he will not deny when proof is adduced. The mere 
 allegations of the plaintiff or defendant, uncorroborated by other proof, 
 unsupported by oath, without the least inquiry or thoughts of in- 
 quiry to ascertain their truth, are deemed sufficient evidence for these 
 purposes. If these allegations are evidence, then are mere statements 
 of the party in his own case for his own benefit, conlidered sufficient 
 to render proper, measures so detrimental to the adverse party : If 
 not evidence, then it follows, that the law authorizes all these pro- 
 ceedings; authorizes the actual infliction of a greater punishment than is 
 suffered in many felonies, without any proof whatever; the same law 
 that presumes all men innocent, and that will not suffer the greatest 
 criminal to be harmed, even as to the amount of a hair of his head, 
 without preliminary proof upon oath. 
 
 Now he, whose word is sufficient, without any security, to impose an 
 unlimited amount of trouble, expense and vexation, upon an indefinite 
 number of individuals, one would suppose might be heard on the final 
 trial. Trustworthy to the imposition of burdens however expensive, 
 credited to lay the foundation of suits innumerable, with or without 
 cause, at his own option ; when the question arises as to the justice of 
 these suits, he who thus imposes, and he upon whom burdens are thus 
 imposed, are alike excluded. The plaintiff, who is permitted without 
 any security to commence and prosecute his claim, is not heard on the 
 final trial to establish the claim of a farthing's value, even under the 
 pains and penalties of perjury, and with all the checks of cross-examina- 
 tion, — is not suffered to prove one of the ten thousand allegations, which 
 he may assert without any sanctions, and by his mere uncorroborated 
 naked assertion, compel the defendant to answer and contest. A strange 
 credence for one purpose, and a strange distrust for every other. Is 
 the oath of the individual, whose word is conclusive for so important 
 purposes, absolutely without credit ? While truth is thought so desira- 
 ble, it seems strange that measures were not adopted, by which its 
 existence might, at any rate, be rendered more probable. False testi- 
 mony in the trial of a cause is punished. Truth being desirable in this 
 case, ways and means are taken to procure it. In writs and pleas had 
 truth, veracity, bona fides been viewed as important, the proof would 
 have been, in adopting the requisite means to enforce their existence ; 
 and such means not being adopted, no inconsiderable evidence is fur- 
 nished that such virtues were not considered necessary. The assertions of 
 the plaintiff and defendant not being evidence in the trial, thoiigh for 
 every other purpose conclusive, and the security of an oath, and the pun- 
 ishment of perjury being withdrawn, falsehood is not merely without 
 punishment, but is encouraged and perhaps rewarded. 
 
 Nor have the rules on this subject even the merit of consistency. In 
 writs, no oath, no security for veracity is required ; in pleas of a certain 
 description, affidavits of their truth are required, and from whom ? The 
 party himself. But if there be any necessity of guarding against delay, 
 
76 APPLBTON ON EULBS OF EVIDBNCB. 
 
 is there not an equal propriety in guarding against unfounded prosecu- 
 tions? In equity, the bill not being under oath, full, liberty is given to 
 the vivid imagination of the draftsman to roam over the whole region of 
 conceivable fraud. The defendant, poor ill-used defendant, being com- 
 pelled to answer under oath, is at once deprived of the privilege of un- 
 limited falsehood. But true bills are just as important as true answers — 
 honesty as desirable on the part of the plaintiflF as of the defendant. Nor 
 is this all, occasionally requiring honest plaintiffs in equity, occasionally 
 wishing to protect defendants against unfounded prosecutions, they exact, 
 as in bills for a discovery, the security of his oath j without which they 
 refuse to hear him.(<) 
 
 Continuances. 
 
 Assertion on the part of the plaintiff being sufficient to give com- 
 mencement to a suit; the suit being commenced, a continuance on 
 account of the absence of a material witness is claimed. The interest 
 in procuring this continuance is no other than the interest in the final 
 result. The continuance is desirable, only because it benefits, to a cer- 
 tain extent, the party asking, and prejudices proportionally the party 
 opposing, the continuance. Were the plaintiff not to gain by the pre- 
 sence of the absent testimony, he would have no wish to procure it; it 
 is only, as it is necessary and important with reference to the ultimate 
 decision, that it is desired. If the testimony of the absent witness is 
 that on which the case depends, the interest in the continuance and in 
 the cause is one and the same. And by whatever motives, he would, on 
 the final trial be influenced, by the same motives, he would be induced to 
 obtain his continuance. The same reason to expect perjury, the same 
 reason for exclusion in one case as in the other. Yet the party is ad- 
 mitted to testify, thereby to obtain the continuance. 
 
 But if admitted, it would be supposed that every precaution to pre- 
 vent falsehood, every security for trustworthiness would be adopted, 
 every opportunity of contesting the facts stated be afforded, lest it should 
 so happen that a continuance should be improperly granted. Not so 
 says the law. The individual, who, before a jury under every security, 
 which examination and cross-examination afford, and whose statements 
 may be contradicted from every quarter, from a presumed want of inte- 
 grity is excluded, is still, in the same case, unexamined and unques- 
 tioned even though he be in court, permitted to testify to those facts on 
 account of which he desires a continuance, and such testimony, thus 
 delivered at his own instance, is rendered conclusive ; — is not permitted 
 to be denied or disproved. 
 
 (t) Actor quidem jurat, non calumniandi animo se litem movisse ; sed seatimando 
 se bonam causam habere. 
 
 Reus autem non aliter suis allegationibus utatur, nisi prius et ipse juraverit, 
 quodputans se bona instantia uii ad reluctandum pervenerit. God. 2, 59, 2. 
 
 Such was the oath of calumny, which required the party to swear that he 
 believes the facts constituting the claim or defence are true ; and that such claim 
 or defence is well founded. This however isvucw disused in most countries where 
 the civil law is in vogue. It would seem, from Glassford, to be still retained in 
 Scotland. 
 
 Somewhat analogous to the Roman procedure, are the affidavits of defence. 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 77 
 
 By the rules of 0011^(1*) the party, in his affidavit, must state, among 
 other matters, the name(?)) of the witness and " the particular facts" he is 
 expected to prove, and the grounds of such expectation. The witness is 
 wanted only for and on account of the particular facts he is expected 
 to prove, and the supposed existence of such proof affords the only 
 reason why the continuance should be granted. If these " particular 
 facts" do not exist, or, if existing, there he no reason to believe 
 the witness will prove them, no matter whether due, or more or 
 less than due diligence has been used to procure his attendance, the 
 motion for continuance should not be allowed. What is the rule ? The 
 " particular facts" the witness is expected to prove, are stated in the 
 affidavit of the party desiring delay, " and no counter affidavit shall be 
 admitted to contradict the statement of what the absent witness is ex- 
 pected to prove." " Any other facts," such other facts being compara- 
 tively unimportant, may be proved by the party opposing the continuance. 
 The party claiming a continuance gives as the reason the particular facts 
 to which he expects the witness will testify, and the ground of such ex- 
 pectation. The question, which ought to be presented to the court for 
 consideration, is, whether there be reasonable grounds to believe the 
 witness will swear according to the statement of his supposed testimony. 
 " What the absent witness will prove," affords the only reason for delay ; 
 whether he will really prove what it is stated he will, is rendered proba- 
 ble only by evidence; that is, the grounds of expectation stated and set 
 forth in the affidavit. If no grounds, or no reasonable grounds, are shown, 
 that such testimony will be delivered, no reason appears for delay. If 
 false grounds of expectation are stated, it does not better the matter. 
 Now it so happens, that, as to this, as to every question, there are two 
 sides ; and while there may be grounds of expectation, that such testi- 
 mony will, there may be still stronger grounds of expectation, that such 
 testimony will not, be delivered. The supposed probable testimony of 
 the witness is as much susceptible of disproof as of proof; it is as much 
 a matter of proof, that he will make one set of statements, as that he 
 will make another. Now, if such supposed testimony would not be 
 uttered by the witness, or if, upon hearing all the evidence, it should seem 
 probable, sufficiently so for the action of the court, that such statement 
 of " what the absent witness will prove" is false, that he will prove no 
 such thing, then no continuance should be granted. Excluding all 
 counter testimony, decision as to that fact, the only material one in the 
 affidavit, is made upon the ex parte, uncontradictable statements of the 
 individual interested in obtaining delay. Strong as may be the probability 
 that such testimony may be given, still stronger may be the proba^ 
 bility that such statements will not be made. Defendants, to any 
 
 u) 16 Mass. 374. The rules in Maine and Massachusetts are the same. 
 
 Jreenl. 488. 
 
 (y) It was decided in Smith v. Dobson, 2 Dow. & Ry. 420, that the affidavit to 
 postpone a trial need not stale the name of the witness suggested to be material 
 and necessary. 
 
 In MoKeuzie v. Hudson, 1 Dow. & Ry. 159, it was held, upon an affidavit to 
 postpone a trial, to procure certain documents, that the court would not try the 
 question of the admissibility of the evidence, to obtain which delay was sought. 
 
 Februaky, 1859. — 7 
 
 1 6re 
 
78 APPLBTON ON RULES OF EVIDENCE. 
 
 number, may state, that the witness will not utter such testimony as the 
 plaintiif on his part has alleged, and they may show to the court con- 
 clusively strong reasons for such belief, but they are not heard. When 
 such continuance is granted, the evidence being untrue, the witness not 
 stating such facts, additional delay and expense is without any cause 
 imposed on the suffering party. Why then admit evidence to prove 
 certain facts, and reject it when offered to disprove these facts ? If what 
 " the witness will prove" is a matter of controversy, why not permit it 
 to be denied ; why not suffer the judge to hear all that may be known 
 on the subject? Why treat as conclusive, evidence so suspicious, that 
 in the final trial it is not even permitted to be heard ; conclusive as to 
 facts, as important on the hearing of the motion before the court, as the 
 motion is important in reference to the suit. 
 
 Loss of deeds and papers proved hy the party. 
 
 By a well known rule of law, " the best evidence of which the nature 
 of the thing is capable, is required.'Vio) No evidence, which supposes 
 the existence of evidence of a higher nature, is admissible. Thus, the 
 copy of a deed, implying, as it does, the existence of an original, which 
 would, if introduced, be better evidence, is admissible only on proof of 
 the loss, &c., of the original. As to all « material and traversable facts," 
 on which the jury may be called upon to decide, the evidence of the party 
 is not allowed : is it sufficient, in the case supposed, to prove the loss 
 of the deed or other paper? Unless the loss(a) be first proved, such 
 secondary evidence is not admissible, and if not admitted, the party 
 requiring such evidence loses his case. The fact of the loss is often 
 solely and exclusively in the knowledge of the party in whose possession 
 it was, and he being inadmissible, proof from other quarters is unattain- 
 able. If, then, this avenue be closed, all access to the temple of Justice 
 is denied. Is the party then admissible to prove such loss ? In some 
 States(y) the court, being consistent at the expense of justice, exclude 
 him ; but as the weight of authority establishes the admissibility of the 
 party for these purposes, the reasoning by which this apparent is shown 
 not to be a real exception, remains to be noticed. 
 
 To show the consistency of this exception with the general principle, 
 a distinction is taken between "preliminary questions" and " material 
 and traversable facts." As to the latter class of facts, the rule is rigidly 
 enforced. In the other case, the party is admitted to make affidavit, 
 " which," says the court, " seems to be proper enough ; for it is not ad- 
 
 (w) 1 Phil. 176. 
 
 {x) The plaintlfif is a competent witness to prove notice to produce a deed. 
 Jordan v. Cooper, 3 S. & R. 564 ; and to prove its loss. Snyder v. Wolfrey, 
 8 S. & R. 328. 
 
 (y) It has been decided in Connecticut that the loss or destruction of a deed 
 was not a preliminary question but a material and traversable fact, to which a party 
 was incompetent to testify. 4 Day, 388. Coleman v. Wolcot ; 7 Day, 304 Mather 
 V. Goddard. In S. 0. Sims v. Sims, 2 Rep. Cir. Ct. 225. In Virginia, New York, 
 North Carolina, Pennsylvania, Massachusetts and Maine, and in the Supreme Court 
 of the United States, the decisions are the other way; the party is admitted to 
 prove loss, &o. Givens v. Mars, 6 Munf. 201 ; Jackson v. Frier, 16 Johns. 193 ; 
 Garland v. Goodloe, 2 Hayw. 351 ; Meeker v. Jackson, 3 Yates, 442 : Davis v. 
 Spooner, 3 Pick. 286; Taylor v. Riggs, 1 Pet. 591 ; Adams v. Leland, 7 Pick 62. 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 79 
 
 mitting him to testify in his own case, but only admitting him to the 
 privilege of using other evidence ;"(^) it is only permitting him " to lay 
 the foundation for the introduction of inferior proof" — distinctions cer- 
 tainly very nice ; but do they show that the general rule is not infringed ? 
 In all these cases, the copy of the deed or note is only received upon 
 proof, which is considered suflacient to excuse its non-production. The 
 original being assumed as unattainable, as important as was the original, 
 equally important becomes the substituted secondary evidence, equally 
 necessary its introduction. Proof of loss of the original is just as " ma- 
 terial" as, had the loss not happened, would have been the proof of the 
 original. The fact of the loss is just as " traversable" as was the fact of 
 the existence of the original. If such deed or note was the sole evidence by 
 which the claim was substantiated, such deed being lost, the copy becomes 
 asimportantas was the original, and whatever interest the party has in the 
 final decision, the same interest has he in this preliminary question, the 
 same interest to lay the foundation for secondary proof. " The privilege 
 of using other evidence !" As important as that other evidence may be, 
 so important is it to obtain this privilege. " Not admitted to testify in 
 his own case I" in whose case, for whose benefit, is he admitted to testify ? 
 The loss of the deed is proved or it is not. If proved, then is it proved by 
 the evidence of the party, and under circumstances more dangerous than 
 if the testimony had been delivered on the final trial. If not proved, 
 then is the secondary evidence illegally and unjustifiably received. What 
 is obvious enough, and admitted by the judges, is, that it Vfas almost im- 
 possible to pretend to do justice without this evidence ; that if this was re- 
 jected, it could hardly be supposed that it could be obtained from any 
 other individuals, and being unwilling to violate the general rule, the 
 only course that remained was by some verbal quibble to admit the party, 
 and at the same time preserve the rule inviolate. They therefore called 
 this a preliminary question for the court. But may not a party have 
 interest in preliminary questions as well as in any other ? May he not 
 commit perjury there as well as elsewhere ? Does the fact that the evi- 
 dence is for the court instead of the jury, render it more credible ? Does 
 it increase the veracity of the party ? If so, if he is more trustworthy, 
 let the judges hear all the evidence. 
 
 Though the party may be admitted to prove the loss, yet " the con- 
 tents of the deed or record cannot be proved by the afiidavit of the 
 party. "(a) If this be understood according to its literal import, (and 
 the words of the court are cited) it is difficult to perceive how the lost 
 deed and the copy can be connected together. The contents are what 
 alone distinguish it from all other deeds, and the contents being un- 
 known, it is impossible to say that the copy is a copy of the deed lost. 
 Thousands of deeds may be lost or destroyed, and proved to be lost or 
 destroyed, — ^yet if the one, a copy of which is introduced, should not 
 happen to be among the number, no proof is yet afforded to warrant its 
 
 («) 3 Pick. 286. Davis v. Spooner. 
 
 (a) Adams et al. v. Leland et al., 1 Pick. 64. " The testimony is to the loss 
 and Bot the contents of the paper," remarks Marshall, 0. J., in Taylor v. Biggs, I 
 Peters, 591. 
 
80 APPLBTON ON RULES OF EVIDENCE. 
 
 introduction. If the only evidence as to the contents should be parol, 
 still what does such parol evidence show but the contents of iome deed 
 or paper ? Unless the party states the contents, it cannot be known by 
 any one that the contents of the paper testified to by the witness have 
 any connection with the deed or paper, which the party asserts he has 
 lost. Perhaps, however, the meaning may be, that the contents may be 
 proved for the purpose of identifying the copy with the lost deed, but 
 that on the final trial, and for the purposes of aflfecting the ultimate de- 
 cLsion, evidence from the party shall not be received. But why this 
 distinction, if this be the distinction, and if it be not, there is no sort or 
 shadow of proof that shows loss of a deed, like that, the purported con- 
 tents of which are proved. If the party may prove the contents for one, 
 why not for another purpose ? If he will testify the contents truly to 
 the court, why not to the jury ? Not permitted to prove the contents ! 
 But if, as the authorities show, he may prove the loss, why not the con- 
 tents ? He has no greater interest to prove one than the other. Both 
 must be proved to insure his success. As he would be more likely to 
 know the loss, so likewise would he be more likely to know the contents. 
 If the contents can in no other way be proved, the proof of the loss is 
 to no purpose. The same necessity which requires proof of loss requires 
 proof of contents. If heard as to one fact, why not as to another? 
 If it will make the witness more veracious, call it a " preliminary ques- 
 tion," so the evidence may thereby be received; or let it be merely to ob- 
 tain a privilege, or address it to the court, and let them report it to the 
 jury, if distinctions like these make any difierence in the veracity, as it 
 seems they do in the admissibility of witnesses. If quibbles only will 
 insure admission; quibble, if so it must be. They are never less excep- 
 tionable than when used for the purpose of procuring the admission of 
 the truth. 
 
 Affidavit for Motions. 
 
 Antecedent or subsequent to the final trial, there are a large class of 
 trials called motions. Unless the party making it expects to gain, he 
 will no more trouble the court with his motion, than with his cause. In- 
 terested in his cause, he is in a similar manner interested in this prelimi- 
 nary decision. To sustain a motion proof is required. The party whose 
 interest in the motion may be as great as his interest in the cause, is ad- 
 mitted unexamined and unquestioned at his own instance to establish the 
 facts, by which he expects to sustain his motion. The instances in which 
 this is done are perhaps more numerous than the causes themselves. And 
 each instance is a violation of the general rule. In all these the question 
 occurs, why, if so great be the danger from the testimony of parties, are 
 they received for this purpose ? The evidence, it may be said, is offered 
 to the court. What then ? is it less important that the court should 
 hear the truth than others ? Is correct information less valuable to them 
 than to others ? If this testimony be too dangerous to trust juries with 
 it, is it not too dangerous for the judges to hear, who, in the eye of the 
 law, are incompetent to judge of facts ? So incompetent that questions 
 of fact are not tried before them ? Or is it that the judges are less likely 
 
INCOMPETENCY OJ' WITNESSES AT COMMON LAW. 81 
 
 to be deceived, that they are better qualified to decide the relative weight 
 of testimony ? If so, let them hear all the evidence. Whatever may 
 be the reasons assigned, still in fact here is a gross inconsistency. And 
 if this evidence be properly admitted, if it be free from danger, there is 
 no conceivable case in which the testimony of the party would be at- 
 tended with risk. (6) 
 
 Admission from Necessity. 
 
 Parties from policy being excluded ; from necessity, the excluded wit- 
 nesses are recalled and heard. Thus words serve for admission, words 
 for exclusion. They are admitted from necessity, where it is impossible 
 to adduce better proof, " for that the law must not be ineffectual by im- 
 possibility of proof "(c) A good reason, undoubtedly, but in what con- 
 ceivable case will the party offer himself, when he does not conceive his 
 own evidence necessary ? If other evidence is attainable and sufficient 
 to establish his rights, he will not testify himself; it is only when he can 
 procure no other proof, that, conceiving it necessary, he will offer him- 
 self. But it is only from necessity, that evidence is ever introduced. 
 But the necessity must be one " resulting from the subject as constituted 
 by general law," not " a casual and accidental want of proof" in parti- 
 cular cases. The absence of proof, if a good reason for admission in one 
 ease, is equally so in another. A particular absence of proof no reason ! 
 But the law must, in this case, " be rendered ineffectual from want of 
 proof" as much as in any conceivable class of cases. Whenever the evi- 
 dence of the party is from any cause necessary, from whatever cause the 
 deficiency of other proof may arise, the law is rendered ineffectual. The 
 only difference is, that, if the general rule of exclusion be a good one, the 
 more numerous the particular cases, which fall within the exceptions, 
 the greater the evil which is done. No matter how this want of proof 
 occurs; whether by accident or not, once occurring, the necessity is the 
 same, the argument the same for admission, as if it was within the excepted 
 class. The law is rendered ineffectual in all cases, when necessary evidence 
 is excluded, without any reference to the causes which create this neces- 
 sity ; and if the rendering the law ineffectual is a valid reason in one, it 
 is in all possible cases. But, says Gilbert, in justifying the exclusion of 
 evidence rendered necessary by accidental causes, " the law must prefer 
 the suffering of particular inconvenience, rather than the suffering a 
 general mischief." (cZ) But the rule being, as it must be assumed to be, 
 a good one, the admission, in cases where this necessity arises from ac- 
 cidental causes, is only a particular mischief; and when these particular 
 eases increase so as to become a class more or less numerous, that is, 
 when the particular becomes a general mischief, should not the particu- 
 lar, the lesser mischief, be preferred ? Is there not less evil in admit- 
 ting a party in a particular case, which may be of rare and casual occur- 
 rence, than in a particular case, the like of which will frequently occur. 
 Admission being an evil, one would suppose the less frequent its occur- 
 rence the better ; that a casual and accidental, would be preferred to a 
 
 
 The defective mode of examination will be hereafter considered. 
 Gilbert on Ey. 245. [d) 1 Gilbert, 248. 
 
82 APPLBTON ON RULES OF BVIDENOE. 
 
 systematic and general violation, in an extensive class of cases, of a 
 necessary and useful rule. 
 
 In what cases and as to what facts does this necessity authorize ad- 
 mission ? In those cases where the facts are supposed to be within the 
 knowledge of the party. The general reasoning which supports this 
 class of exceptions, will be found fully developed by Parsons, Ch. J., in 
 the case of Stimpson v. Drowne.(e) In this case, which was a com- 
 plaint under the bastardy act, the court say that the mother, " though 
 made a competent witness from necessity, yet her testimony ought not 
 to be given to facts equally within the knowledge of other persons who 
 are disinterested. As in debt on the statute of hue and cry, the party 
 robbed is a competent witness from necessity, and he is sworn in chief; 
 he is examined as to all facts which, from the nature of the. transaction, 
 must be within his own knowledge ; but to the other facts necessary to 
 support the action, and which, from their nature, are within the know- 
 ledge of disinterested persons, he is not examined." Remembering 
 that on account of too great temptations to perjury, parties are excluded, 
 let us examine this exception. It is obvious that the greater security 
 with which perjury can be committed, the greater the probability of its 
 existence. As to facts which maybe known to any number, and which, 
 if false, may be easily contradicted and disproved, the party is rejected. 
 As to facts solely and exclusively within his own knowledge, he testifies 
 without fear of contradiction, without possibility of detection, without 
 checks of any description. Uncontrolled, unchecked, at liberty to 
 wander, if he choose, over the whole field of falsehood, under circum- 
 stances thus dangerous, the party is admitted. In other cases where 
 there may be disioterested witnesses, if his testimony be false, it maybe 
 disproved; in this, if false, detection, except from his own statements, 
 is impossible — the other party suffers without hope. Is there the 
 greatest danger of perjury when detection is easy or when it is impos- 
 sible ? To take away all means of detection, or to remove all fear of 
 punishment, would seem to be an odd way of preventing the growth of 
 perjury. But whether a good way or not, it would seem that the 
 judges so considered it, inasmuch as in those cases alone is the party 
 received. Perhaps, however, if that was not their opinion, the increase 
 of perjury might have been thought a reason for admission. Increase 
 the danger, render detection ah extra impossible, enable the witness, 
 whose presumed perjury is a matter of legal presumption, never to be 
 disputed, to perjure himself with perfect security, — do this, and then 
 the law admits the witness from necessity. Impossibility of other proof, 
 followed as it is with consequent impossibility of detection, a reason 
 why, if ever, the testimony of a party should be refused, is adduced and 
 sanctioned, to justify admission, by those who in the same case would 
 shudder <it questioning the same witness as to "other facts," when, if 
 he should testify falsely, detection and punishment could hardly be 
 avoided. To justify all this inconsistency, the word necessity is suffi- 
 cient, as if, in some inconceivable way the word, or the necessity itself, 
 
 (e) 2 Mass. 444. 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 83 
 
 diminished the danger of falsehood, or lessened in any manner, the 
 evils which the rule was intended to prevent ; as if it were necessary to 
 admit evidence more likely to be productive of evil than of good, — evi- 
 dence which, under the most favorable circumstances, is assumed so 
 incurably untrustworthy, that to prevent injustice, it is most carefully 
 excluded. 
 
 In 1 Greenleaf's Reports, 27, Herman v. Drinkwater,(/) may be 
 found an interesting illustration of the exception from necessity. In 
 this case, the master of a vessel broke open and embezzled the contents 
 of a trunk he had received to carry to another port : the delivery of the 
 trunk and its being broken open being proved, the party was admitted 
 to prove the contents and their value upon the ground of necessity; 
 " he not having it in his power to establish that fact by other proof." 
 The plaintiff, say the court, would be deprived of an adequate remedy 
 unless admitted, and therefore they receive him. Had there been full 
 plenary proof of the contents of the trunk, but no evidence to prove its 
 being broken open by the defendant, except the plaintiff's, would he 
 have been admitted ? No. Yet is not his evidence as necessary, is 
 he not as much " deprived of adequate remedy'' in this as in the 
 other case ? Is it not just as hard to lose one's case from defect of proof 
 as to one fact as to another ? Yet, as to any other fact, the plaintiff would 
 have been unhesitatingly rejected, even though he were thereby "de- 
 prived of an adequate remedy." Admitted to state the contents of the 
 trunk ! Suppose a note had been lost, would he have been received to state 
 itscontents to a jury ? No. But is there any more danger in stating the 
 contents of notes than of trunks ? In this very case, had two trunks 
 been in litigation, and proof of the contents of one attainable, the plain- 
 tiff would most probably have been rejected, the urgency of the case 
 being not quite so apparent. Had the proof of the contents been of a 
 contradictory nature, would the party have been received to corroborate 
 the evidence by him adduced ? Probably not. Had there been con- 
 tradictory evidence as to the embezzlement of the contents, would the 
 party have been allowed to strengthen, by his own evidence, the state- 
 ments of the witnesses he had produced ? Certainly not. Yet how 
 much less is the danger of perjury in stating facts which may be 
 known to any number of individuals, than in stating facts known only 
 to himself. 
 
 But necessity will not always suffice. Were the admission of the 
 plaintiff as a witness made by the court to depend upon whether the 
 trunks lost had tacks or brass nails — the owner of one with tacks 
 received — with brass nails rejected — there are few, who would not ridi- 
 cule the absurdity of such a distinction. None the less absurd is it when 
 the plaintiff is a witness or not, as he brings trover or case — as the loss 
 
 (/) 1 Vates, 34, Snyder v. Geiss ; a similar case. 
 
 Jurare ia infinitum, sed judex potest praefinire oertam Bummam, usque ad quam 
 juretur. Item et si juratum fuerit, licet judici vel absolvere, vel minoris condem- 
 nare. Dig. 12, 3, 4 and 5. The civil law authorizes the party in certain cases to 
 prove the value of the goods or property taken, but places bounds, ne in infinitum 
 
84 APPLBTON ON RULES OF EVIDENCE. 
 
 is by robbery or by negligence — as tbe contents of the trunk are articles 
 of wearing apparel or surgical instruments. Yet if the trunk be lost by 
 the negligence of the carrier(g') — or if the contents are other than 
 articles of wearing apparel,(A) the party losing is not admissible to prove 
 the fact of the loss or the number and value of the articles lost, because 
 the loss is regarded as arising from carelessness and not from fraud — as 
 if the necessity, which is the reason for admission, was not equally strin- 
 gent whether the carrier was fraudulent or negligent(i) — whether the 
 loss was of clothing or something else. 
 
 Book accounts, verified by the suppletory oath of the party,(A;) may be 
 mentioned as another exception. The party is admitted to serve him- 
 self, and sworn to make true answers. For his own interest admitted, 
 but if the adverse party wishes to subject him to examination, as to 
 other facts adverse to his own interest, and is willing to incur the risk, 
 he is not allowed to do it. The effects of interest can hardly be consid- 
 ered less injurious in this than in any other case. The party, in the 
 civil law, is in a similar manner admitted to supply what is wanting in 
 the evidence, which results from his books, they being considered but 
 half proof. 
 
 Statutory exceptions. 
 
 Without noticing more particularly the exceptions of the common 
 law, it may not be amiss to examine the statutes enacted in reference to 
 this subject. The legislature, recognising the absolute perfection of the 
 exclusive rule, have still legitimatized a host of exceptions, irreconcila- 
 bly at war with the general principle. A sample or two, as illustrating 
 the wisdom and consistency of legislative action, will be offered. Search- 
 ing over the whole tribe of plaintiffs and defendants fOr that purpose, 
 wherever they find dishonesty, they admit ; not finding, as far as possi- 
 ble they endeavor to create it. Such may be given as a brief descrip- 
 tion of their doings. 
 
 Exceptions under the Usury and Gaming Acts. 
 
 The usury law may serve for illustration. A note being in suit, the 
 interest of the plaintiff to enforce, of the defendant to avoid the pay- 
 ment of this, is as great as of any other note of equal amount. If 
 
 (g) Snow v. Eastern Railroad, 12 Metcalf, 44. In Ohio it was held the owiler 
 was admissible — his testimony being limited to such articles as are usually car- 
 ried in a travelling trunk. The Mad River and Lake Erie Railroad v. Fulton, 20 
 Ohio, 319. 
 
 (A) Pudor V. Eastern Railroad, 26 Maine, 458. 
 
 (t) On a trial of Bodmyn, coram Montagu, B., against a common carrier, a ques- 
 tion arose about the things in a box, and he declared this was one of those cases, 
 where the party might be a witness ex necessitate rei, for every one did not show what 
 he put in a box. 12 Viner, Abr. 25. But Mr. Justice Hubbard thought otherwise, 
 and that the traveller, not relying upon himself, should provide other evidence 
 beforehand of the articles taken by him. " If he omits to do this, he then takes the 
 chance of loss as to the value of the articles, and is guilty, in a degree, of negli- 
 gence-:-the very thing with which he attempts to charge the carrier." 12 Met. 44. 
 
 (A) In Pennsylvania, it seems that a witness examined as to his books, cannot 
 be cross-examined as to other facts without his consent. Shaw v. Levy, 17 S. & 
 R. 99. But in some States the party in such case may testify to the admissions 
 of his opponent as well as to every other material fact bearing upon the cause. 
 Clark V. Marsh, 20 Vermont, 338. Stainford v. Bates, 22 Vermont, 546. 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 85 
 
 the defendant should testify that more than the legal rate of inter- 
 est is reserved, the note is adjudged void, unless the plaintiff will 
 by oath contradict this statement, when the payment is enforced. As 
 to any other facts regarding this or any other note, the parties are 
 refused. But, in addition to the interest, there would seem to be no 
 common degree of turpitude in thus endeavoring to avoid the payment 
 of a debt voluntarily contracted and justly due; and as far as such con- 
 duct goes, it affords proof of no ordinary dishonesty on the part of the 
 defendant. The defendant, by the verity of his oath, a knave, and, if 
 false, doubly so, is admitted, and by that very admission, encouraged to 
 cheat the plaintiff out of his property. Such would seem to be the 
 view that most would have of the defendant. 
 
 But by the theory of the usury law, the defendant is considered as 
 oppressed, and the law is passed for his security. On this hypothesis 
 the matter assumes a new aspect. The parties are both sworn and both 
 heard ; so far the course, which reason dictates, has been pursued. But 
 they might as well have been neither sworn nor heard, for the legisla- 
 ture, long before the contract was entered into, have saved the judges 
 the labor and trouble of reflection by establishing, in advance, an inva- 
 riable rule, not nominally, but really invariable, by which all cases are 
 to be decided. And how ? Always in favor of the plaintiff. A law 
 made for the especial protection and security of the oppressed — the 
 oppressor and oppressed being both heard — the decision is invariably in 
 favor of the individuals, whose practices the law wishes to repress. 
 What is probable is that the defendant would rarely or never delibe- 
 rately swear to the existence of usury, when no usury existed. Whether 
 probable or not, it is still more probable that the plaintiff, indignant at 
 the conduct of the defendant, would deny such usury, even if it were 
 true. The balance of probabilities will be seen to be in favor of the 
 defendant as to that fact. But the law does not permit the judge to 
 weigh, to consider, to discriminate, even though he were ever so fully 
 satisfied of the falsehood of the plaintiff, even though evidence ah extra 
 to any amount were obtainable, — still he is bound to decide upon this 
 false testimony as if it were true. The gaming act, passed as it was for 
 the protection of the loser, presents the similar absurdity of requiring 
 full and implicit credence in the statements of him, whose rapacity it 
 was the object of the law to curb. In ordinary cases the result of false 
 testimony is more or less uncertain ; in this, in addition to the motive of 
 interest, the plaintiff is encouraged to perjury by the absolute certainty 
 of its successful issue ; so the plaintiff on his part will only commit per- 
 jury, the legislature on their part will insure its success. Such are the 
 terms of the contract proposed to all dishonest men. Decreeing by 
 statute that all plaintiffs, without exception, are to be believed, they 
 take from defendants all hope but in the integrity of the very individual 
 whose dishonesty is assigned as a reason for trampling under foot the 
 ordinary rules of the law. 
 
 It seems, however, notwithstanding the special confidence thus re- 
 posed in the oppressor, that if the plaintiff, the witness whose veracity 
 the legislature have ordained should never be questioned, should, from 
 
8S APPLETON ON RULES OF EVIDENCE. 
 
 sickness or any other cause, be unable personally to appear, his deposi- 
 tion or affidavit, after due notice given to the adverse party, is not to be 
 received, although, in motions or questions of that description, his affi- 
 davit without notice would be unhesitatingly admitted. One of those 
 verbal reasons, which constitute so much of the learning of the law, is 
 deemed amply sufficient for this distinction. It seems that the danger 
 of perjury is greater or less as is the solemnity with which the oath is 
 administered. The oath must, in this case, be administered by a justice 
 of the peace ; but if the party were present in court it would be done by 
 the clerk ; and as, from some cause or other, it happens that justices 
 cannot administer the oath with as great solemnity as clerks, to prevent 
 the inevitable increase of perjury, which would result from oaths thus 
 defectively administered, they are prevented from doing it at all. Vera- 
 city dependent upon the room in which, and the person by whom, the 
 oath is administered. (A) Such are the reasons which judicial wisdom 
 has assigned for legislative action. Meanwhile, on the part of the plain- 
 tiff, as ample provision is made for his interests as could possibly be de- 
 sired. If necessary, delay is granted ; or if he should die, the defendant 
 being excluded, his estate recovers the debt. The defendant alone is the 
 sufferer. In addition to the trouble and expense consequent upon delay, 
 if from sickness or death he should not appear in court, decision in favor 
 of the plaintiff follows irrevocably. Out of court, neither can the oath 
 be administered to him. To one unlearned in the law, the question might 
 occur, why oaths, so deficient in solemnity, so replete with perjury, are 
 ever allowed ? Why, if the oaths administered by justices are so much 
 more- likely to be violated, should they ever be allowed thus to put in 
 jeopardy the consciences of witnesses, and the rights of parties ? In 
 affidavits without notice, the oath of a magistrate will answer ; with 
 notice, and with adequate opportunity for examination, it will not answer. 
 Solemnity is sufficient without, insufficient with, notice. For what pur- 
 poses do distinctions like these serve, but to tax the memory and 
 confuse the mind ? 
 
 In the cases examined, although the only effect of the rule was to pro- 
 duce misdecision, where it perhaps might not have ensued, there was, at 
 any rate, the apparent merit of having heard both parties ; even though 
 special provision was made, that false testimony should have the force 
 and effect of true ; thatj the judge hearing should act as though he had 
 
 (h) 2 Pick. Rep. 67, Prye v. Barker et al. The oath of a plaintiff that usurious 
 interest has been taken or secured, must be administered in court. If adminis- 
 tered elsewhere the court observe that " there might be more danger of false swear- 
 ing than when the party is under the solemnity of a court. We know of no case 
 in which a party has the benefit of his own oath upon a trial, except when the 
 oath is administered in court. Probably the object of the statute was, that the oath 
 of defendant should be met by an oath delivered with the same solemnity." From 
 whence it follows that if the oath could have been administered with the same 
 solemnity by justices as by clerks, the statute, in cases of necessity, would have 
 allowed it to have been done. 
 
 In the civil law the oath of the party might be taken at home for good and su&- 
 cient cause. 
 
 Ad egregias personas, eosque, qui valetudine impediuntur, domum oportet mitti 
 adjurandum. Dig. 12, 2, 15. 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 87 
 
 not heard. But the height of legislative absurdity had not then been 
 reached. If wrong decision was the object of legislation, ample provi- 
 sion was already made to produce misdecision after bearing all the evi- 
 dence. To hear cases by the half, and decide as they could, was an ex- 
 periment, which alone was wanting to fill up the measure of possible 
 absurdities. The occasion selected for this peculiar judicial experiment, 
 was as remarkable as the experiment itself.(i) 
 
 Exceptions under the Bastardy Act. 
 
 In complaints under the bastardy act, the mother, as to certain facts, 
 is admitted : as to all those which maybe known to an indefinite number 
 of individuals, when she may be contradicted from any and every quar- 
 ter, she is refused : as to those within her own knowledge and when con- 
 tradiction by the assumption can come from but one, she is selected for 
 admission, and the reputed father, — the only witness whose knowledge 
 is equally extensive with her own, is excluded. (A;) 
 
 Perjury — policy — interest — whatever may be the reasons assigned for 
 any and all cases of exclusion, are they not applicable with as much, nay, 
 with greater force to the mother, than the Reputed father ? But the 
 mother is admitted from necessity. From " the nature of the transac- 
 tion," is not the reputed father equally conversant with every fact ? 
 Are they not all as much within his knowledge, as within that of the 
 complainant ? Is not the necessity for his admission equally great ? Im- 
 portant as it is that the mother should be admitted to substantiate all 
 true charges, is it any the less important, that the reputed father should 
 be received to disprove all untrue charges ? Yet the mother, degraded,(A 
 by her own confession, debased as she is proved to be by facts incon- 
 testable, is admitted, and the reputed father, whose guilt is as yet a 
 matter of doubt and uncertainty, rejected. Is the mother so peculiarly 
 deserving of credence, that, for her sake, the dangers of perjury, and the 
 truth-destroying eifects of interest, must be incurred ? If her admission 
 is proper, is the reputed father's any less so ? The defendant, supposed 
 innocent, is refused ; the complainant, known to be guilty, heard. Even 
 if cases must be heard by the \alf{m\ at a time, was there much wis- 
 dom in the selection ? 
 
 (i) En Italie, le serment d'une fiUe enceinte est re9U pour una preuve suffisante, 
 an prejudice de celui qu'elle nomme pour pfere de I'enfant qu'elle porte dans son 
 sein. ... On respecte comme une preuve le serment d'une mechante personne qui 
 avoue son crime au prejudice d'un autre, dont la probity n'est rendue suspecte par 
 aucun autre indice. Par une suite d'un pratique si insensee, en Italie, une fiUe 
 qui avoue qu'elle a eu un commerce charnel avec plusieurs personnes, 3. la fois, 
 conserve encore assez de credit, pour pouvoir, par son senl serment, declarer celui 
 dont elle est grosse. . . . Les filles choississeut presque toujours dans le fait, celui 
 dont elles croyent se pouvoir accommoder le mieux, sans s'embarrasser du ser- 
 ment. Traitfe des Loix Civiles. 2 Tome, 109, 110. 
 
 (A) Somebody else than the accused might be the father. She knows whether 
 or not she has had criminal intercourse with others. But she is not compelled to 
 answer inquiries made to elicit that fact. Low v. Mitchel, 18 Maine, 372. Sweet 
 V. Sherman, 21 Vermont, 23. " Creditur virgini dicenti se ab aliquo agnitam et ex 
 eo prsegnantem esse." Cod defin. lib. iv., tit. 14, def. 18. 
 
 (Z) The credibility of a female witness may be impeached by proving that she is 
 a common prostitute. Com. v. Murphy, 14 Mass. 387. Decided differently in New 
 York, 13 Johnson, 504, Jackson v. Lewis. 
 
 («i) Oases heard half at a time. Audi alteram partem : A direction so obviously 
 
88 APPLETON ON KULBS OF EVIDENCE. 
 
 Insolvent and fraudulent debtors; the briber and the bribed; the 
 rapacious usurer and the distressed borrower; the gambler and his 
 ruined victim ; the infamous mother ; the hired informer ; the traitorous 
 accomplice :(m) — such are the witnesses specially selected as deserving 
 so peculiar credence, that for them the most important rules of law must 
 be violated. Without a breach of the most liberal charity, it may be 
 truly said, appearances are against them. Indeed, whenever there are 
 peculiar objections to a witness, whenever his character is odious and 
 depraved, provision is made for his admittance. Nor is that all. Lest 
 the judge, if left to himself, might in some ill-advised moment decide 
 correctly, ample and extraordinary provisions are made to render mis- 
 decision unavoidable. The truth of these observations having been ren- 
 derered fully apparent by the examples already adduced, we shall not 
 trouble the reader with any further illustrations. 
 
 What is obvious is, that the more plaintiffs or defendants there are; 
 the more numerous are the individuals from whom truth may be ob- 
 tained, and the greater the evils of exclusion. The more numerous the 
 individuals acquainted with any transaction are, the more numerous are 
 the sources from whence the facts may be ascertained, and the greater 
 the evils of closing these avenues to true and trust- worthy evidence. 
 The more witnesses there are admitted, the better is the prospect of jus- 
 tice. Improper as it is to exclude one, it is still worse to exclude more. 
 As yet we have supposed but one plaintiff or defendant. Let the num- 
 ber be increased to any amount. The plaintiffs being more than one, is 
 a co-plaintiff, if willing, received, if unwilling, compelled, to testify? 
 If willing, he is never received for his co-plaintiffs, if unwilling, never 
 compelled to testify against them. Such would be the general answer. 
 
 But a legal proposition, not accompanied with exceptions, would be an 
 anomaly not to be endured. Accordingly, " in a recent case, a plaintiff^ 
 by consent of the defendant, was allowed to be examined on oath as a 
 witness in the case, although he came to defeat the claim of his oo-plain- 
 tiff.'Yo) Had there been any objection on the part of the plaintiff ad- 
 mitted, or of the defendant, the admission could not have taken place : — 
 
 proper, one would suppose could never be disregarded. It never can but at the 
 sacrifice of justice. It will hereafter be seen to how enormous an extent this rule 
 is neglected. 
 
 [n) Quia circumscriptor, quis ganeo, quia nepos, quis adulter, quae mulier in- 
 famis, quis corrupter juventutis, quis corruptus, quis perditus, iuveniri potest, qui 
 se, cum Catilina, non familiarissime vixisse fateatur ? Cic. in Cat. The com- 
 panions of Cataline and the witnesses of the legislature seem to have been selected 
 with similar judgment and upon similar principles. To have associated with a 
 good man, to have admitted as a witness a party of integrity, would, in either 
 case, have destroyed the beautiful symmetry. 
 
 (o) 3 Starkie, 1061. So of defendants. If the evidence of a defendant be 
 sought, for the purpose of charging himself, and in contradiction to his interest, 
 there is no legal objection to his competency, if he chooses to testify. 1 Phil. 63, 
 note. But will he, will any one, choose to testify ? 
 
 If one of several defendants be called as a witness in the case by the plaintiff, 
 and he be willing to testify, he is a competent witness although his co-defendants 
 may object to his being called. Miner v. Downer, 20 Vermont, 461. 
 
 If a co-plaiutifif assign his interest in the suit he may be examined for the assignee 
 on his tendering thecosts of suit. 3 Rawle, 301 ; Contra, 2 N. H. 283 ; 2 Verm. 143. 
 
INCOMPBTBKCY OF WITNESSES AT COMMON LAW. 89 
 
 the consent of both was required. This consent, on the part of the de- 
 fendant, would never have been granted, but upon some understanding, 
 express or implied, as to what would be the testimony of the co-plaintiff 
 thus admitted. Had he supposed it adverse to his own interests, he 
 never would have consented — consenting, he has received a pledge, ex- 
 press or implied, that such testimony will be to his own advantage. If, 
 then, such pledge be given, and the co-plaintiff, after being admitted, 
 should testify adversely to the interests of the defendant, the pledge is 
 forfeited ; and does this violation render him more deserving of confi- 
 dence ? But whether he is pledged or not, still if his testimony be un- 
 favorable to the defendant, favorable to those associated with him, is he 
 not under the influence of interest ? No matter how his admission was 
 procured, it being procured, and his testimony favorable to himself, is 
 there not as great danger of perjury as if he had been admitted at his 
 own instance ? Does the veracity of a witness depend upon the indi- 
 vidual at whose instance he is introduced ? The testimony, then, being 
 adverse to the defendant, he is as much under the influence of interest, 
 his testimony as dangerous, as would have been that of any co-plaintiff, 
 introduced at his own instance. 
 
 If the testimony of the admitted co-plaintiff should be, as is antici- 
 pated, favorable to the interests of the defendant, how happens it, that 
 the consentof the plaintiff is obtained ? That he should be willing to pre- 
 judice himself, that he should commence a suit for the purpose of having 
 it defeated, seems not to be very probable. The fact that the plaintiff 
 has, to a certain extent, an interest in common with other plaintiffs, by 
 no means proves that he may not likewise have interests in common 
 with the defendants, and adverse to the co-plaintiff. Unless the con- 
 duct of this co-plaintiff is of a peculiarly romantic description, one can 
 hardly imagine that he will consent to prejudice himself. Consenting 
 or choosing, then, to testify, no stronger proof can be furnished, that 
 he has some interest adverse to his co-plaintiff and favorable to the de- 
 fendant, and that he consents to be admitted, because he is willing to 
 serve himself. Is he not then interested ? Is he not interested as much 
 as the defendant whom he assists ? Are not their interests one and the 
 same ? And how are the other co-plaintiffs situated ? Placed entirely 
 at the mercy of the defendant, or, of what amounts to the same thing, 
 of a co-plaintiff identified in interest with him. Co-plaintiffs, in any 
 number, knowing the falsity of this testimony, with lips sealed must suffer 
 in silence ; they are not permitted to contradict these statements.(p) 
 " But this case was so peculiarly situated that there could be no danger 
 of perjury."(2) A very peculiar case, certainly, if free from all danger 
 
 (p) If the plaintififs were to make a declaration out of court, evidence of that de- 
 claration would be admissible ; and how is the proof less credible, said C. J. Mans- 
 field if, with the consent of the defendant, he declares the same thing upon oath 
 at the time of the trial? 1 Phil. 61. One bad rule is thus made to support 
 another. The law as regards confessions of parties was intended to have been ex- 
 amined in this chapter, but its length renders it necessary to defer that subject 
 for subsequent consideration. The law as to admissions will as ill bear ex- 
 amination, as any portion. 
 
 (y) 3 Starkie, 1061, note, Norden v. Williamson, 1 Taunt. 3Y8. 
 
90 APPLETON ON RULES OF EVIDENCE. 
 
 of perjury. Were a dispute to arise between two firms, in each of which 
 the plaintiff had an interest, in the one as active, in the other as dormant 
 partner, his interest as plaintiff minute, his interest as defendant great 
 to any conceivable amount, — has he not adequate inducement to serve 
 his greater, at the expense of his lesser, interest ? Yet under the pre- 
 tence that he is acting against his own interest, a fallacy so thin and 
 shallow that a child at the first glance would detect it, he is admitted, 
 and his evidence viewed as peculiarly worthy of trust. Liberty is given 
 to a plaintiff to injure hioaself, if he chooses. But who will ever choose ? 
 Meantime no precautions are adopted to prevent his injuring others. The 
 consent of his co-plaintiff is not required. The only inquiry is, whether 
 two individuals will consent to serve themselves — so they will, they shall 
 be heard. The consent of those who may thus be exposed to any amount 
 of loss and expense, of those who alone will suffer, is perfectly imma- 
 terial. Whether they choose it or not, suffer they must, if their ad- 
 versely interested co-plaintiff so wills -it. As by the law, all those with 
 whom a contract is made must join, the adversely interested co-plaintiff 
 could not have been left out with safety, had the others wished it. The 
 same law existing as to defendants, as the plaintiff can select whomso- 
 ever he pleases for defendants, he may join those in community of in- 
 terest with himself at his own pleasure. So that if there should happen 
 to be a plaintiff or defendant whose interests are opposed to their asso- 
 ciates, his version of the matter must bind all the. others, though plain- 
 tiffs or defendants to any number should offer, by their oaths, to disprove 
 his statements. He is received, they are not heard. Such are the cases 
 free from danger. Such is the regard for those who are so unfortunate 
 as to be engaged in litigation. 
 
 By the theory of the law all parties are liars ; and as the plaintiff can 
 choose whom he pleases for defendants, he is thus invested with the 
 power of destroying the " legal integrity" of others ad libitum, by merely 
 making them defendants. In this is included the power of depriving 
 the defendant of all proof, by selecting as defendants those by whom the 
 defence would have been substantiated. It was not enough to reduce 
 to silence all real defendants, however numerous, but the ability to de- 
 stroy the legal veracity of all the defendants' witnesses must be super- 
 added. A rule like this, more particularly in cases of tort, places the 
 defendants in the control of the plaintiff. How then is the law ? Are 
 defendants admitted at the instance of the co-defendants, or are they com- 
 pelled, at the instance of the plaintiff, to testify to the prejudice of those 
 associated with them in the defence ? To these questions the answer 
 would be in the negative. So long as their names remain on the record, 
 if no evidence, or the slightest, be adduced against them, they are not 
 heard. (7-) A discretion, however, in certain cases, is granted to the 
 judge, of directing the acquittal of defendants against whom nothing is 
 proved, for the purpose of making them witnesses. This, however, can 
 never be claimed as a right. A verdict being rendered in favor of a de- 
 
 (r) I Phillips's Et. 62, cases cited in notes. 3 Starkie, 766. If in torts the de- 
 fendant suffers a default, he may be received for the others. 
 
INCOMPETENCY OF WITNESSES AT COMMON LAW. 91 
 
 fendant, or in torts, by having suffered a default, is he a witness, and 
 for whom ? He is a witness for the defendants — refused if called by 
 the plaintiffs. For this, as for every thing else, there is a reason — but 
 what a reason ! The plaintiff has waived his testimony by making him 
 defendant.(s) With reasons like these at command, what may not the 
 judge accomplish ? He may admit or reject at pleasure. Had he chosen to 
 admit, it would have been enough to have waived his prior waiver, a thing 
 easily said, and he would have been received. Not, however, choosing 
 to admit, he considers the waiver as binding. What the witness will 
 testify, whether truth or falsehood — however important the testimony 
 may be — is of no consequence. The great question upon which his ad- 
 mission rests, is, by whom is he called ? If called by the plaintiff, no 
 matter how important his testimony may be, or how much the plaintiff 
 may repent of his ill judged waiver, he is irrevocably excluded. If called 
 by the defendant, with whom it could rarely happen but that he should 
 have some community of interest, si any rate, of feeling, he is admitted : 
 To exculpate the defendants, admitted, to inculpate, refused. Will your 
 testimony be for the plaintiff or defendant ? As the witness may answer, 
 he is admissible or not. 
 
 Although the defendant, when defaulted, is, in torts, received to aid 
 his co-defendants, yet in contracts the law is different. Lord Kenyon 
 assigns as a reason for this distinction '•' that he might negative the con- 
 tract, and that if negatived as to one, it fails as to the other ;(<) which, 
 being interpreted, signifies, that the plaintiff has no case; that if the 
 evidence of this defendant should be hoard, it would so appear; there- 
 fore they take special care that it shall not appear. So far from show- 
 ing the propriety of rejecting, it shows most forcibly the necessity of 
 admission. Here the admission depends not so much upon the person 
 calling, for even the defendant o&UTioi always obtain the testimony in this 
 case, but upon the words in which the writ happens to be couched — if tres- 
 pass, the witness is heard — if assumpsit, refused. Nor do distinctions 
 end here. Had the name of this co-defendant not been inserted in the 
 writ, or, being inserted, had ho been fortunate enough to escape the 
 service, he would have been received. (m) 
 
 In the exceptions noticed, the party is introduced at his instance, or 
 to save his own interest. In no one instance at common law is the 
 party compelled to answer, if unwilling. The exceptions are all of the 
 most dangerous description, and if proper, what becomes of the rule ? 
 If the party can with safety be received under the most dangerous cir- 
 
 («) 1 Phil. Ev. 63. " The plaintiff cannot ordinarily examine a defendant . . . 
 against whom nothing is proved, because he is considered as having waived his 
 testimony by making him defendant." 
 
 H) 1 Phil. Ev. 63. 
 
 (m) 1 Pick. Rep. 12], Gibbs v. Bryant; 2 Pet. Eep. 186, Le Roy v. Johnson. 
 In the latter cases releases might have been necessary. But cannot a man, whose 
 name is in a writ, sign a release, as well as any body else ? 
 
 But the authorities are «t variance. In Bate v. Russel, 1 M. & M. 332, it was held, 
 that where the defendant pleads a matter in personal discharge, a verdict may be 
 taken for him, and he may be examined for his co-defendants. Contra, 9 Wend. 
 286. 2 N. H. 283. 1 Bailey, 308. 
 
92 APPLBTON ON BULBS OB EVIDENCE. 
 
 cumstances, if indeed his evidence is necessari/ under those circum- 
 stances, why should he ever be excluded ? 
 
 But to what purpose wander, without a clue, through the Daedalean 
 labyrinth of the common law ? Bad rules being established, their viola- 
 tion is the part of wisdom. The rule and the exceptions cannot stand 
 together. The sooner it is determined which shall predominate, the 
 better. 
 
 So much for the "pure and tried reason" (y) of the common law. How 
 much preferable may be equity, remains for further consideration, (ic) 
 
 [v) Plowden. 
 
 [w) By the law of Scotland "if a person shall, without reasonable cause, make 
 another a party to any suit for the purpose of excluding his testimony, the law 
 will not allow him to obtain such an object : and one, who has been included in 
 the list of defenders for this purpose, whether in a civil or a criminal action, shall, 
 upon discovery of the circumstance, be a good witness notwithstanding." Tait 
 on Evidence, 360. " The cause will be advised first as to him, and when he has 
 been assoilzied, he may be examined as a witness for the other parties called." lb. 
 
CHAPTEK VI. 
 
 ADMISSION OF PARTIES IN COUETS OF EQUITY. 
 
 At common law, it was found " essential to the pure administration 
 of justice," that the testimony of the party, whether favorable or adverse, 
 should, with certain exceptions, be excluded. 
 
 Let us now pass to Chancery, and examine the rules which a new set 
 of masters have given us. The jurisdiction of courts of law and equity, 
 and the extent of their respective powers, are so involved in doubt and 
 uncertainty, that neither judges nor chancellors oan agree, and whether 
 each or either will afford redress can only be known with certainty after 
 trying the experiment. The vague and shadowy distinctions, which 
 mark the imaginary boundaries of their respective powers, have never 
 yet been clearly settled. Such, meanwhile is common law ; so defec- 
 tive its organization ; so deplorably are the ends of justice perverted by 
 exclusion of testimony ; and so apparent was this, that a remedy of some 
 sort was necessary to the well being of society .(a) That remedy the 
 courts of law neglected or refused to provide : to hear all the evidence 
 in a case, to, ascertain all that might be necessary to a correct decision, 
 was so utterly abhorrent to their views of right, that in no way could 
 they be induced to accede to such a proposition. 
 
 Accordingly another system of procedure, and different rules of evidence 
 based on the acknowledged imbecility, or incompetency of common law, 
 are established. At common law all papers in the possession, all facts in 
 the exclusive knowledge of the parties, were withheld. Content with a 
 portion only of the facts, the courts decided as correctly as could be done in 
 partial ignorance of the subject matter of their decision. In equity, by 
 means of compulsory discovery on oath, and thus purging the conscience, 
 they obtain a more full, complete and accurate knowledge of the facts 
 before decision ; which being obtained, ^' the judgment is the same in 
 equity as it would have been at law."(b) From hence we learn, that at 
 common law, they do not discover the truth, that they decide without 
 such discovery, or without even attempting to make such discovery, and 
 that equity discovering the truth, gives judgment. A greater condemna- 
 tion of common law cannot be conceived. The same facts existing, yet 
 from deficiency of proof different judgments are given, and this is 
 admitted by all; yet common law doing injustice or permitting it to be 
 done, neither wishes for nor attempts a remedy. The unlearned might 
 
 (a) See 2 American Jurist, 314, for a very able and interesting paper on Clian- 
 cery Jurisdiction. 
 
 (b) 3 Bl. Com. 437. 
 
 February, 1859 8 
 
94. APPLBTON ON KULES OF EVIDENCE. 
 
 naturally inquire why it is not as important that the facts should be 
 known in one court as another ? Why justice, and truth as a mean of 
 obtaining justice, are not as important at common law as in equity? 
 Why the facts in each case being the same, any portion of them neces- 
 sary or desirable to correct decision, should be withheld 1 How, if one 
 course be right, its opposite can be other than wrong ? and if wrong, 
 why the defect has been suffered to remain ? Similar to these would be 
 the inquiries of the mere layman, on first learning that the two great 
 courts of the bountry administered justice on diverse principles and 
 with different results ; that they were perpetually at cross purposes, the 
 one busily engaged in undoing what the other had done : each, howe- 
 ver, in its respective sphere, being the perfection of human reason. 
 
 The rules of common law are the result of the most enlightened in- 
 telligence, and yet so bad, that society can hardly exist under their 
 influence ; its procedure is correct, yet so perversive of the ends of 
 justice, that a new jurisdiction must be specially created to palliate or 
 remedy its defective operations. The remedy comes not in the shape of 
 repeal, but of exceptions, thus apparently sanctioning the general rule 
 whose incurable evils it was established to prevent. To retrace their 
 steps, when wrong, might seem a partial waiver of their high claims to 
 infallibility ; to create exceptions would only place the propriety of the 
 rule on a more firm and stable foundation. (c) Such would seem to be 
 the reasoning by which rules utterly at variance with each other, are 
 permitted to exist — rules reconcileable on no conciliatory hypothesis, 
 mutually condemnatory of each other, and yet mutually lauded, as the 
 case may be, by judge or chancellor. 
 
 It remains, then, to examine the rules of evidence in equity, for the 
 purpose of ascertaining the consistency of these rules as between court 
 and court, and even in the same court, and their adaptation to the 
 ends of justice. 
 
 At common law all facts within the knowledge of a party, if adverse 
 to his interests, might remain there forever : as for eliciting such facts, 
 the courts have no mode, no process ; and had they ever so many, the 
 hardship of disclosing such facts, is a reason amply sufficient to exone- 
 rate the party from declaring them. All testimony favorable to the 
 party, however necessary or important such testimony may be, they 
 refuse to receive, and this as a measure of spiritual precaution, lest, by 
 chance, he should commit perjury. By the short and easy assumption, 
 that all parties are liars, the judge is at once saved the trouble of 
 hearing and deciding. 
 
 At common law the evil to be remedied was the exclusion of the 
 testimony of the party, whether at his own or at the instance of his 
 opponent. In equity the courts have established a partial change, no 
 one, as at common law, being admissible to support his own claims, 
 every one being compellable to testify at the instance of his adversary. Oif 
 
 (c) Exceptio probat regulam. The unanswerable argument, if correct, in favor 
 of common law ; for what rule has not its exceptions ? Regula probat excep- 
 tionem — and thus both &ie proved. 
 
ADMISSION OP PARTIES IN COURTS 01" EQUITY. 95 
 
 the two great divisions of testimony, self-serving and self-disserving, one 
 portion is thus utterly excluded. 
 
 Remembering the reasons, at common law, for excluding self-dis- 
 serving testimony, let us see if those reasons do not require a similar 
 exclusion in equity. As it depends on the plaintiff, orator, to com- 
 mence the suit and examine the defendant as far as he may choose, he 
 will of course never commence but to the intended and expected disser- 
 vice of such defendant. The power of the court is exerted, and exerted 
 without reluctance, to obtain facts and documentary evidence, which it 
 is anticipated will be injurious to the interests of the party examined, 
 and which, the more injurious they may be, the more reluctant will he 
 be to disclose. At common law, the hardship of delivering such testi- 
 mony was deemed a sufficient reason for exonerating the defendant 
 from giving it utterance. The case is hard at common law; so hard 
 that for this cause the party is excused from stating facts adverse to his 
 interests. Is it any the less hard to disclose those facts when a suit is 
 commenced by bill than by writ? at equity than at common law? The 
 judge of a common law court, deeply commiserating the hardship of 
 doing justice or of giving testimony, which by any possibility might 
 lead to results so disastrous, most readily, for that cause, exempts all 
 unwilling witnesses from testifying. Change not the party, nor' the 
 room, nor the bench, nor the sacred wig, nor the learned judge, who 
 wears it — change only the name of the process from writ to hill, the 
 titular appellation of the presiding magistrate from judge to chancellor, 
 and the logic once so valid is perceived to be utterly without foundation. 
 The answer of the defendant is compelled, even though millions may be 
 at stake. By how much is the hardship of giving testimony prejudicial 
 to one's self diminished ? Is it any the less hard to lose an estate 
 by the decree of a chancellor, than by the verdict of a jury? by the 
 soothing words of equity, than by the harsher process of common law ? 
 Will one bear with more philosophy the utter ruin of his prospects, 
 because a lord chancellor has ordained it? If not, then why this 
 difference between these courts? 
 
 The importance and complexity of these suits may be urged as a 
 reason for the exception, because, such facts being necessary for correct 
 decision, could in no other way be obtained. Is the truth then exclu- 
 sively necessary and desirable before a chancellor? Is the judge care- 
 less and indifferent to the result? But the more important the facts 
 may be to the elucidation of the cause in controversy, the greater will be 
 the hardship, when they are adverse, in disclosing them. If in a com- 
 paratively simple and unimportant case, the compelled testimony of a 
 party be attended with hardship sufficient to justify its exclusion ; 
 increase that hardship, and the propriety and fitness of the rule is pro- 
 portionally increased : — increase that hardship and the dangers of per- 
 jury, for the purpose of avoiding it, are thereby multiplied. The greater 
 the amount involved may be, the greater are the evils resulting from mis- 
 deeision, should such testimony prove false, so that if it be admissible 
 at equity, so much more should it be so at common law. 
 
 Still less is any reason for admission to be derived from the peculiar 
 
96 APPLETON ON RULES OF EVIDENCE. 
 
 class of oases in which this testimooy is received. It is obvious, (the 
 mendacity-restraining motives in each case being the same) that the 
 danger of false testimony will be as the strength of the sinister motive 
 impelling — that an individual with right on his side, will not have the 
 same motive as one in the wrong — the honest as the dishonest. Both 
 parties at common law, and in the absence of any special presumption 
 of dishonesty, are excluded. In equity to detect and elicit fraud, to 
 discover and enforce secret trusts, by resorting to the conscience of the 
 party (for their skill in this respect is a matter of which they boast) 
 they admit — whom ? The injured? No; him who is supposed fraud- 
 ulent, whose fraud is to be detected ; one, against whom, by their own 
 hypothesis, there are ample reasons for the utmo'st caution ; and that 
 too when, if ever, there is special danger. In the very case where there 
 is most peril, the assumed knave, from whom additional knavery is 
 anticipated- — a man by the very supposition, which justifies his admis- 
 sion, dishonest — is compelled to testify where his interests, based upon 
 fraud, are in issue. In vain can it be urged, that this is the only mode 
 of detecting fraud ; still, though it be the only mode, yet if in ordinary 
 cases there be good and suflScient reasons for exclusion, the argument 
 is much more cogent when fraud and dishonesty are presumed, unless 
 such fraud and dishonesty afford reasons for anticipating veracity. Of 
 men of average integrity, occupying the station of party to a suit, 
 perjury is the legal presumption; of men of extraordinary dishonesty, 
 integrity is expected. Of honest men, lest they should lie, no inquiries 
 are to be made; of the dishonest, there is no suspicion. 
 
 It may be said, that, as the facts are known only to the party, resort 
 must be had to him or to no one. As to facts known to an indefinite 
 number of individuals, the party is excluded; when, he is the sole and 
 exclusive possessor of the evidence in the case, he is admitted. But 
 when the facts are entirely within his own knowledge, he testifies without 
 check or restraint : if falsely, no one can detect or contradict him ; the 
 opposing party is entirely at his mercy. The security for truth is the 
 least, the danger of falsehood is the greatest, for when there is no 
 chance of detection, there are no scruples, no fears. Is there no danger 
 of perjury before my Lord Chancellor ? Does the difference between 
 the several appellations by which the suits are distinguished afford any 
 security for truth ? Are words things ? If so, call all judges chancel- 
 lors, if thereby the trustworthiness of witnesses can be increased. Is 
 equity alone potent to purge the conscience? cannot the same be done 
 at law, or is the chancellor alone master of the spell ? It would, at any 
 rate, seem that the parties selected, and the cases in which they are 
 selected, were those which afford the least sanction for such variation 
 from the general rule of the common law. 
 
 But though the evidence of the defendant was desired on account of 
 the supposed aid it would afford the plaintiff, it was by no means certain 
 that such aid would be rendered. Until it is heard, its purport could 
 not be known. What then if the defendant, called to disserve, should 
 conclude to serve his own interests ? What if the assumed knave should 
 verify your assumptions by proving a real one ? 
 
ADMISSION OF PARTIES IN COURTS OF EQUITY. 97 
 
 The testimony of the defendant, whether true or false, being in this 
 event, contrary to the anticipations of the plaintiff, self-serving, would 
 seem to be liable to all the reasons, which exist for any other portion of 
 similar testimony. The danger of perjury on the part of the witness, 
 of deception on the part of the judge, suffice in ordinary oases for ex- 
 clusion. If perjury be the legal presumption in case of self-serving 
 testimony of the plaintiff, introduced at his own instance, is it not equally 
 so, of similar testimony delivered by the defendant ? The favorable tes- 
 timony of the plaintiff in his own case is no more likely to be perjured, 
 than that of a defendant whose evidence is self-serving — that is, testi- 
 mony favorable to the party delivering it is no more likely to be false, 
 because the witness occupies the station of plaintiff, than if he occupy 
 that of defendant. If presumed perjury be a sufficient ground for re- 
 fusing to hear the favorable testimony of the plaintiff or defendant, 
 when introduced by themselves, is it not equally so, though such proof 
 be extracted at the instance of their respective opponents ? If self- 
 serving testimony be in and of itself dangerous, deceptive, prejudicial 
 to the ends of justice, it matters not by whom it is introduced ; it should 
 never be the basis of the decision of the court. The danger whether 
 of perjury or deception, is in the intrinsic character of the testimony, 
 not in the mode of its introduction. Whether the self-serving testimony 
 of the defendant were proffered by himself, or obtained in answer to in- 
 terrogatories of the plaintiff, can make no difference. The judge should 
 investigate the testimony before him. How such testimony was obtained 
 or by whom elicited, is assuredly of secondary importance. If there be 
 danger of perjury in the one case, there is equal danger in the other ; 
 in all cases. If the judge be competent to decide in the one case, he is 
 equally so in the other. Whether the evidence be that of the plaintiff 
 or of the defendant; whether it be offered by the party uttering it, or 
 be called for by his opponent, can neither add to nor diminish its trust- 
 worthiness. If then such testimony be dangerous it should not be re- 
 ceived, and the answer, if favorable to the defendant, should be rejected; 
 or if received, the similar testimony of the plaintiff, which cannot be 
 more dangerous and may be equally material, (indeed all self-serving 
 testimony) should be admitted. Whatever may be the answer, whether 
 favorable or adverse, it should seem that the objections to its admission 
 were as strong in equity as at common law ; and to be consistent, the 
 same rules should be observed in each court. 
 
 The answer of the defendant, if adverse to his own interests, will 
 obviously be satisfactory to the plaintiff by whom it was required. If 
 favorable to the interests of the defendant, and of course, so far pre- 
 judicial to those of the plaintiff, can the plaintiff be received to contra- 
 dict or disprove such statements ? The plaintiff, by the assumption of 
 the court, is honest and injured; the defendant is dishonest and the 
 injuring party. Can the honest man be heard in his own favor? No, 
 unhesitatingly answers equity. The plaintiff, relying for success on the 
 conscience-purging process of equity, and finding it ineffectual, cannot 
 be heard. If one can be heard, why not the other ? Why this super- 
 abundance of caution ? Of two witnesses equally conversant with all 
 
98 APPLBTON ON RULES 0¥ EVIDENCE. 
 
 the facts, one is taken and the other refused. The plaintiff bound hand 
 and foot is delivered over to his dishonest antagonist to be tormented. 
 When acting for the avowed purpose of detecting fraud, what course is 
 more obvious than to inquire of all, who may have been conversant with 
 the transaction in dispute ? What course can be more directly opposed 
 to the plainest dictates of the most limited intelligence, than to hear one 
 party and refuse to hear the other? To decide without proof was the rule 
 of common law ; to equity belongs the greater glory of hearing cases by 
 the half, and that from choice and from principle. The exclusion is 
 because the chancellor is either unwilling or unable to decide upon their 
 several opposing statements. If he is unable to do this, what is it but 
 an admission of his utter incompetency to the duties of his^station ? If 
 he is unwilling to decide, it is only an exchange of improbity for imbe- 
 cility. When the aid of judicial investigation is needed in cases of con- 
 flicting testimony, it fails; or if granted, it is only on condition that 
 the means for correct decision shall be withheld. If either of the rea- 
 sons just stated be correct — and it is difficult to perceive any other — 
 what is to be thought of the course adopted ? The chancellor hears half, 
 and excludes the rest of the case, lest hearing all he should misdecide. 
 What if all the testimony which the defendant might wish to adduce 
 were excluded, from a fear that the judge, after hearing all, might be 
 puzzled in arriving at correct conclusions ? 
 
 Kemembering the special object and peculiar boast of chancery — the 
 discovery and prevention of fraud and the enforcing of trusts, and this 
 more particularly, when the facts are in the exclusive knowledge of the 
 parties — the impropriety of the exclusion seems to be still more glaring. 
 Resort would never be had to the testimony of the parties, except in the 
 absence of other proof. The plaintiff would never offer his own state- 
 ments, because of the evident caution and circumspection and distrust 
 with which they would be received ; he would never call for those of his 
 opponent, because of the danger to his own interests arising from such 
 testimony, unless under circumstances of the most urgent necessity. 
 If there be controversies, and the existence of litigation establishes that 
 fact, a due regard to the interests of truth require, that information to 
 guide and enlighten the judge, should be sought for from every accessi- 
 ble source. When the testimony of the defendant is self-disserving, the 
 plaintiff will never offer his own testimony, nor will it be called for by 
 his opponent; it is only when the defendant is self-serving, that for the 
 purposes of correction or refutation, he will desire the introduction of 
 his own testimony. By rejecting the plaintiff's testimony, implicit trust 
 and unhesitating reliance is placed in the defendant, and when misplaced, 
 the party with the requisite intelligence to correct all errors, whether of 
 intention or inadvertence, is entirely shut out. The rule of equity by 
 admitting one party, assumes the existence of cases, where the examina- 
 tioh of a party is called for by a due regard to the ends of justice; that 
 there are facts, which can only be elicited from this source, and that 
 unless they are elicited, misdecision will ensue. As to facts in the sole 
 and exclusive knowledge of the defendant, the answer must be taken as 
 true ; as to those within their mutual knowledge, the strongest reasons 
 
ADMISSION OP PARTIES IN COUKTS OF EQUITY. 99 
 
 exist for hearing each. They would serve as mutual checks and correc- 
 tives. If the defendant, whether intentionally or not, should testify 
 untruly, the plaintiff can detect and point out whatever of inaccuracy 
 or falsehood may exist. Excluding him, falsehood triumphs; admitting 
 him, its success is less certain. A strict and scrutinizing analysis will 
 detect the truth amid their several conflicting and opposing statements. 
 Dangerous as may be the admission of the plaintiff and defendant (if it 
 be dangerous, which is denied) infinitely more dangerous would be the 
 admission of one alone, whether plaintiff or defendant. Why then should 
 not both, possessing equal information, both — for aught that can be 
 known to authorize the judge to form a different opinion — equally honest, 
 be received. Because they are interested, and the testimony will favor 
 such interest ? The interest of one is counterbalanced by the equal and 
 opposing interest of the other. The defendant, to whom the objection 
 equally applies, has already been heard to support his own interests. 
 The plaintiff, by the supposition, alone knows the falsehood of the tes- 
 timony delivered, and by rejecting him, misdecision is unavoidable. All 
 contracts susceptible only of proof in this mode, all rights acquired in 
 the presence only of the parties, may be annulled, and the very object of 
 equity jurisdiction, so far as this class of cases is concerned, be defeated, 
 whenever the defendant is dishonest. And let it be remembered had he 
 been honest, the suits would never have existed. 
 
 The testimony of the defendant is compelled, and whether favorable 
 or unfavorable, received ; the plaintiff, to subserve his own interests, is 
 not receivable. Is he liable to similar compulsion at the instance of the 
 defendant? There have been instances of partial relenting from the 
 rigor of the general rule on the part of the chancellor, by which he has 
 received the answer of a plaintiff consenting ■,(d'\ but there are no in- 
 stances of his compelling an unwilling plaintiff to be examined. In 
 Fereday v. "Wightwick,M the defendant petitioned that he might be at 
 liberty to examine one of the plaintiffs as a witness ; the plaintiffs were 
 co-partners and had a common interest adverse to the petitioner. " There 
 is," said the master of the rolls, "no rule, which can justify one making 
 the order prayed for ; it would dispense in all oases with a bill of disco- 
 very. In Walker v. Wingfield(/) the plaintiff consented to be examined, 
 which removed the objection of compelling a party in a suit to be a wit- 
 ness against himself."(gr) The loss of a cross bill apparently forms the 
 principal objection to granting the prayer of the petitioner. The recur- 
 rence to any supposed inexpediency in compelling a party to a suit to be 
 a witness against himself can hardly be considered other than (to use a 
 
 (d) Oonsenting to be examined ! Would the plaintiif consent to his own injury ? 
 If nay, wherein differs his case in fact from a plaintiff introducing his own testi- 
 mony, his testimony being self-serving? If yea, why did he assume the hazards 
 of a plaintiff, when thus ready to relinquish any benefits from that station ? 
 
 (e) 4 Russell, Ch. Eep. 114. 
 (/) 15 Ves. 178. 
 
 (g) Eglantyne v. Collins, 31st Oct. 1808. On the application of the plaintiff, 
 and defendant consenting, an order was made to examine co-plaintiffs as witnesses. 
 Reg. Lib. 1817. A. 1281. 
 
 If one of the defendants is examined at the instance of the plaintiff, no decree 
 can be had against him. 1 Hoff. Oh. Pr. 485. 
 
100 APPLETON ON RULES OF EVIDENCE. 
 
 Benthamic word) a post-prandial remark, inadvertently made, and for 
 which the chancellor should not he responsible, inasmuch as such com- 
 pulsion forms the grand distinctive characteristic of his court. The result 
 of the authorities in equity is, that the evidence of the plaintiff, however 
 important it may be, cannot, in any way, be compulsorily extracted at 
 the instance of a defendant. To accomplish this, for it may be done, a 
 cross bill, in which the parties change places, is considered indispensable. 
 The former plaintiff, so untrustworthy as not to be heard, suddenly, by 
 mere change of station, becomes regenerated and purified from any lurk- 
 ing taint or suspicion of mendacity; nay more, he is not merely regene- 
 rated and purified, but receives such an unlocked for and wonderful 
 accession of trustworthiness, that his answer, even though favorable, is 
 considered stronger and more convincing proof than that of any disin- 
 terested witness, no matter how exalted his reputation may be. Directly, 
 whether from the hardship or the danger of perjury, such testimony is 
 not received ; indirectly, by the institution of a new suit, it is receivable. 
 Here, as so often elsewhere, occurs the inquiry, why, if admissible cir- 
 cuitously, it cannot be directly ? Admissible it may be with two sets of 
 fees, at the diminished expense of one, utterly inadmissible. Keluct- 
 ance to resort to compulsory testimony — was it real or fictitious ? Hard- 
 ship being the reason, increase that hardship, perjury the reason — in- 
 crease the motives to perjury, by the augmented expenses of a second 
 suit, and then the witness is compelled to answer. The reasons of a rule 
 being given, increase the strength and cogency of those reasons, and the 
 rule is no longer observed. 
 
 When then the facts necessary to a full defence rests in the bosom of 
 the plaintiff or plaintiffs, a cross bill, by way of defence, is exhibited, for 
 the purpose of procuring such testimony, and in this way only is the 
 answer of the plaintiff obtainable. (A) The evidence being unknown to 
 the parties, the defendant can never know whether the testimony of the 
 plaintiff will be required to sustain his defence, till after publication. 
 The proof taken and concealed, to file a bill in advance and uncertain as 
 to its necessity, would certainly be an uncommon course on the part of 
 the defendant. To ascertain its necessity, it is requisite that he should 
 know all the evidence ; to examine for that purpose, he is not permitted ; 
 so that, if he file a bill, it must be when he is totally ignorant as to the 
 propriety of the step. When he comes, after the publication, to ascer- 
 tain its necessity — and ho could then alone ascertain it, unless gifted 
 with prophecy, he could look into the dark recesses of the examiner's 
 office — it is then too late to file his bill. Finding no hope of redress 
 upon the evidence, and knowing that the plaintiff's testimony, if accord- 
 ing to the tacts, will establish his claims, he is not allowed to call for 
 such testimony. Why ?(t) Because, says Chancellor Kent, " it would 
 be exposing the plaintiff to the most dangerous temptation, if after he 
 
 (A) Barton's Eq. 122. 1 Hoff. Oh. Pr. 345. 
 
 [i) The rules on this suhject will be found in 1 John. Ch. Rep. 252. Field v 
 Schieffelir ; and 2 John. Ch. R. 432, Hamersly v. Lambert. The chancery rules 
 as to the examination, publication, &c., of testimony, are reserved for subsequent 
 discussion. 
 
19: 
 
 ADMISSION OP PARTIES IN COURTS OP B Q U I T tv ]JH.__ 
 
 T^ L 
 has been informed by the history of the suit, that no farther testimony 
 could be produced against him, and, that the cause was absolutely his, 
 unless he swore it away, the defendant was then permitted by a cross 
 bill to fish for his answer." The reasoning, if valid, it will be perceived, 
 is applicable to all original bills to discover facts resting in the know- 
 ledge of both parties, or of the defendant alone ; applicable to all those 
 cases, where more especially the aid of chancery is necessary, and in fact, 
 if adopted, would nearly annihilate the benefits of equity jurisdiction. 
 The temptation to the defendant in one case is as great as to the plain- 
 tiflf in the other ; the matter at stake is equally important to each, and 
 were there any, the most remote approximation to any thing like consis- 
 tency or uniformity, the same course would always be pursued. 
 
 But the reasoning here cited is unsound. Nothing but the extremest 
 necessity will ever induce the defendant to call on one adversely inter- 
 ested, and never till such necessity becomes apparent : when apparent, 
 it is too late; lest the plaintiff may perjure himself, injustice shall he 
 done. Upon the defendant is the risk, upon him is the danger of call- 
 ing for such testimony ; without it, failure is inevitable ; with it, there 
 is some hope. Why then refuse, when necessary, to permit him to re- 
 sort to the only means in his power for redress ? Why permit injustice 
 with certainty to triumph out of extraordinary care for the conscience of 
 another, who, by the assumption, which justifies his exclusion, either 
 has none at all, or one so abandoned as hardly to be worth looking after. 
 
 The evidence of both parties being obtained by bills mutually filed 
 inter sese, and this at the expense of two suits, can the answer of the 
 former defendant be used in the second suit, in which he figures as plain- 
 tiff. No;(/c) unless the now defendant thinking thereby his own interests 
 could be promoted, should see fit to introduce it. In no way can the 
 plaintifi", for the protection or preservation of his own rights, compel its 
 introduction. The chancellor, if it is presented by particular hands, by 
 those least likely ever to offer it, is ready to receive it ; if not offered, so 
 much the better ; the labor of comparison and investigation is saved. As 
 for the result, what cares he ? as for seeking for evidence to aid him in 
 arriving at correct results, why should he be at that trouble ? though it 
 were only to compel the production of papers known to him to exist; 
 known as taken in the same case and as forming or having formed the 
 basis of former action. The case is not his ; decision is all which is 
 required at his hands ; whether the decree be correct or not, is hardly 
 thought deserving of consideration. So he decides, he is satisfied. 
 
 Notwithstanding the authority cited below, it should seem, that by 
 the usual practice, both cases come on together for hearing and ultimate 
 decision, and that the chancellor adjudicates reluctantly, probably, it 
 being such an anomaly, upon the statements and answers of both. 
 
 (A) 1 Johns. Ch. R. 141. Phillips v. Thompson. "The plaintiff cannot read 
 his own answer to the bill of discovery, in the cross suit, unless the defendant 
 choose first to produce it in evidence. The plaintiff cannot testify for himself un- 
 less at the instance, and on the call of the defendants : and it is for the defendants 
 to determine whether the answer is to be admitted as evidence, in this cause or 
 not." 
 
102 APPLBTON ON KULBS OF EVIDBNOB. 
 
 The perverse fondness for hearing causes by the halves is not alone con- 
 fined to equity.(A The plaintiff refuses to contradict the answer ; not 
 hearing him, adverse decision is made on the testimony of the defendant 
 alone. Suppose the answer false, or charged as false, and the defendant 
 indicted for perjury; the plaintiff now becomes a witness to procure the 
 conviction of the defendant, while the defendant's testimony is peremp- 
 . torily excluded. The plaintiff is heard, but not to aid himself ; heard 
 after it is too late to afford any redress. The defendant, a good and ex- 
 ceedingly trustworthy witness, is excluded on the indictment. To the 
 same facts there are two witnesses ; one alone is heard on each trial and 
 in each court ; both never. Thus are withheld the means of correct, 
 and thus are doubled the chances of incorrect decision. 
 
 Objectionable, so far as the ends of justice are concerned, as are the 
 exclusions ; inconsistent as between court and court, and even in the 
 same court, as are the admissions, still worse are the modes of extraction 
 and the uses made of the evidence extracted. 
 
 The testimony of the defendant being delivered only at the request of 
 the plaintiff and to subserve h*s interests, the extent of the answer and 
 the number and variety of the facts disclosed, are thus almost entirely 
 within his control. He calls for those papers, selects those facts, pro- 
 poses those questions, which he imagines will induce results favorable to 
 his own interests. Whether the plaintiff will desire to present a full and 
 accurate view of the case, whether he will frame interrogatories to that 
 end, will depend on his opinion of the merits of his case. The better 
 it may be, the more full and thorough will be the investigation ; the 
 worse it is, the more guarded and cautious will he be in his interrogato- 
 ries, lest they should receive answers, which, though true, should be un- 
 favorable. If he is in the wrong, his wish will be that the favorable por- 
 tion of the facts should be received, and that the residue should be with- 
 held. The defendant, except in his answer to the plaintiff, cannot 
 as a witness introduce any evidence ; he is entirely dependent on the 
 plaintiff as to how many, or how few, of the facts, shall be disclosed. 
 Whether any or all of the facts shall be made known, depends not on 
 the merits of the cause, nor on the truth of the facts, nor on the order 
 of the chancellor, but upon the ingenuity with which his counsel may 
 weave together, in the answer, facts of each description, and upon the 
 necessities which may operate on the plaintiff in making his inquiries. 
 However just the cause of the defendant may be, its justice can never 
 be known if the plaintiff conceive that he has sufficient proof without re- 
 course to the defendant ; or if, calling on him, he can so shape or select 
 his interrogatories that answers pertinent to the interrogatories shall 
 necessarily and unavoidably present a .distorted and incorrect view of 
 the case. Indeed, aided by sagacious counsel, he may so shape his bill 
 
 (l) Hearing causes by the halves is no new device. It leads to the dispatch of 
 business. The Emperor Claudius finding that it facilitated decision adopted it, 
 but not to the satisfaction of the public. Seneca says of him, 
 " Quo non alius 
 Potuit citius discere oausas ; 
 Una tantum parte audita ; 
 Saepe et neutra." — Seneca, Apocol. 11. 
 
ADMISSION OP PARTIES IN COUETS OF EQUITY. 103 
 
 for relief as to deprive the defendant of the benefit of an affirmative 
 answer. The defendant cannot, unless interrogated, state the whole 
 truth. The chancellor never troubles himself whether much or little of a 
 cause be known ; he never asks(m) or thinks of asking a question, but 
 leaves the whole investigation to the one best able and most disposed to 
 conceal the truth. With a portion of the facts presented for adjudica- 
 tion, and that known, decision is made ; he never attempts to increase 
 that portion. The arrangement, though well fitted to protect the plain- 
 tiff, seems ill adapted to the only end that is of importance, correct deci- 
 sion. 
 
 The testimony of the defendant being obtained in the manner above 
 pointed out, the force and effect of the answer comes up for considera- 
 tion. Not satisfied with excluding great masses of testimony indispensa- 
 bly necessary to a correct decision ; and with extracting the evidence 
 received in the worst possible mode, courts of equity have established a 
 set of rules by which to weigh the testimony admitted ; rules formed 
 without the most remote reference to the occasions in which they are to 
 be used, and admirably adapted to prevent correct results. 
 
 Borrowed as chancery jurisprudence is from that of imperial Rome, 
 recurrence to the civil law will aiford at once light and illustration. By 
 the civil law one alone could be heard in a cause ; never at his own 
 choice, but always at that of his opponent. Either might defer the oath 
 to his opponent, who might either take oi refer it back to the party first 
 tendering it. If he should do neither, the decision was against him. 
 The party to whom the oath was referred must either take it or lose his 
 cause. The oath, so taken was considered conclusively true. Though 
 proof were newly discovered, and ever so many witnesses were at hand 
 to refute the assertions in the answer, such proof was rejected. Some 
 of our own States(«) seem to have adopted this rule,(o) The evil of the 
 rule is obvious. The plaintiff's rights are placed entirely at the mercy 
 of one adversely interested, and who by the assurance of successful per- 
 jury is thus afforded extraordinary inducements to swerve from the path 
 
 (m) By the civil law, We, judge, for his more perfect satisfaction, might defer the 
 oath to either party ; which, unlike the oath deferred by the party, must be taken 
 by the party to whom it was deferred, upon pain of the loss of his cause. 1 Evans' 
 Poth. 514, et seq. 1 Hoff. Ch. Pr. 505. 
 
 (n) Swift's Evidence, 118. 
 
 (oj All laws have their fictions. In none can the purposes of jurisprudence be 
 answered by the truth alone. A mutual contract obligatory on the party referring 
 and deferring, by which each agrees not to disprove or deny what may be so sworn, 
 is assumed as the foundation of the rule. Ey, pactione ipsorum litigatorum . . . 
 deciduntuT coniroversise, says Justinian. Pothier assumes the existence of the same 
 contract, and thinks it a matter of good faith, that as the parties have made such 
 an agreement, they should abide by it. That the law is thus; that the judges 
 having so determined, will act as if there were such a contract, cannot be doubted. 
 But was there any such voluntary agreement of the parties? "Would any man of 
 sane mind enter into a contract or agreement, the effect of which would be to 
 prevent his disproving falsehoods prejudicial to his own interests ?■ — would any 
 one agree to give falsehood the force and effect of truth ? and that to his own in- 
 jury. If not — if no one would ever think of entering into such an agreement — 
 then the basis of the rule fails. The contract is a mere figment of the imagina- 
 tion, and all supposed assent of the party is at once at an end. So much for the 
 only reason assigned for the rule. 
 
104 APPLBTON ON RULES OF EVIDENCE. 
 
 of integrity. By guarantying success to mendacity, so far as human 
 foresight could provide, the best means are adopted to ensure its exist- 
 ence. 
 
 The rules of equity are somewhat variant from the rules of the civil 
 law, which, as has been seen, absolutely exclude contradiction or refuta- 
 tion to the answer. In equity it receives a modified trustworthiness. 
 It may be contradicted or disproved, but equity, not daring to trust the 
 chancellor, who may hear, to decide when it is disproved, centuries ago 
 laid down rules establishing the precise quantum of credence to be given 
 to all future answers, by all future chancellors. The rule laid down in 
 the earliest chancery reports and confirmed by successive decisions, is, 
 that two disinterested witnesses are necessary to do away the force and 
 effect of the answer.(p) Mr. Chief Justice Marshall, in laying down the 
 rule, lays down, likewise, the reasons on which it is based, so that the law 
 and its logic are together presented to the consideration of the reader : 
 
 " The rule that an answer must prevail unless contradicted by one 
 witness as well as by circumstances, is said to be so inflexible, that the 
 strongest circumstances will not themselves be sufficient to outweigh an 
 answer." 
 
 tt The general rule that either two witnesses, or one witness with pro- 
 bable circumstances, will be required to outweigh an answer asserting a 
 fact responsive to a bill, is admitted. The reason upon which the rule 
 stands is this : The plaintiff calls upon the defendant to answer an alle- 
 gation he makes, and thereby admits the answer to be evidence. If it 
 is testimony,(j) it is equal to the testimony of any other witness : and 
 as the plaintiff cannot prevail if the balance of proof be not in his favor, 
 he must have circumstances in addition to his single witness to turn the 
 balance. "(r) Error, when sanctioned by the authority and reasoning of 
 a mind of such deep penetration, strength and logical grandeur as that 
 of Mr. Chief Justice Marshall, requires a scrutiny rigid and severe for 
 its detection. 
 
 "The plaintiff calls upon the defendant to answer, &c., and thereby 
 admits his answer to be evidence. If it is testimony, it is equal to the 
 testimony of any other witness." Because the answer is evidence, it 
 does not necessarily follow that it is true : because evidence, it does not 
 follow that it is either inferior, equal, or superior to any other testimony. 
 The plaintiff calls on the defendant and thereby admits his answer to be 
 evidence — and suppose he does — he admits it as evidence to be judged 
 of according to its weight. He cannot by any implication be considered 
 as voluntarili/ admitting that it should receive an undue and improper 
 
 {p) 3 Ch. Ca.l23, Allane v. Jourdan, 1 Vern. 161. Mortimer v. Orchard, 2 Ves. 
 Jr. 243. 9 Cranch, 153. Clarke's Ex'rs v. Van Ramsdyck, 5 Pet. U. S. Rep. 111. 
 Bank of Georgetown v. Gray, 10 Johns. 24, Glasen v. Morris, &c. 
 
 (y) Where an answer is positive, no decree can be naade against it, upon the 
 testimony of a single witness. If, however, there are circumstances, which 
 strengthen the_ witness and entitle him to greater credit, this forms an exception. 
 In weighing circumstances, equal credit is to be given lo each witness, and it is to be 
 forgotten, that one is disinterested. Sturtevant v. Waterbury, 1 Edwards, Rep. 
 442. Witnesses balance as in a contra dance. 
 
 (r) Per Marshall, 0. J., in Clarke's Bx'rs v. Van Ramsdyck, 9 Cranch, Rep. 163. 
 The rule in equity is not adopted in Admiralty. 3 Sumner, 130. 
 
ADMISSION OF PARTIES IN COTJETS OE EQUITY. 105 
 
 credence. By calling on the defendant and making his answer evidence 
 he does not voluntarily assent, though the law may compel him to assent, 
 that this testimony, when false, should be received and acted upon as 
 true ; or that the question of its truth should be discussed on any other 
 than the ordinary rules of belief. 
 
 If this be true, how stands the rule "i ^' If it is testimony, it is equal 
 to the testimony of any other witness." Because it is testimony the 
 inference is not the most logical, that for i/ia*. cause it is equal to the 
 testimony of any other witness. Are all witnesses, because they occupy 
 that station, equally trustworthy ? The hypothesis upon which the argu- 
 ment is founded, is, that all men, when witnesses, are possessed of equal 
 veracity, and that in case of the opposing statements of an equal number 
 of witnesses, as they mutually balance each other, oath for oath, there 
 must be judgment for the defendant. Are all men equally honest ? all 
 deserving equal credit ? If so, eounting(s) the number of witnesses is 
 all that is requisite to arrive at correct decision. Would the chief justice, 
 who, for his own guidance, adopts this rule, ever give similar directions 
 to guide a jury in their investigations ? 
 
 In case of extraneous and disinterested witnesses, the doctrine is seen 
 to be utterly absurd, It is still worse to assume the same equality as 
 between interested witnesses and disinterested extraneous witnesses. 
 Were this all, it might be tolerated. But this rule says that a party, 
 interested as he is, with all the feeling and passion consequent on litiga- 
 tion, is more trustworthy than Sny disinterested witness, and impera- 
 tively requires decision in conformity with this principle. It says that 
 interest, passion, revenge, all those feelings called forth by a judicial 
 contest, not merely exert no sinister influence, but on the contrary, that 
 they exert a most marvellously truth-inducing influence. At common law, 
 perjury is presumed to be the necessary and inevitable consequence of 
 receiving the testimony of a party ; in equity, the same judge eschews 
 his own words, says the party is more entitled to confidence than any 
 witness however honorable and upright he may be. This rule is appli- 
 cable, too, not to one party merely or to one suit, but is uniform in its 
 application to all defendants, past, present, and to come. 
 
 Mr. Justice Thompson supports the propriety of the general rule in 
 the following language : " When the answer and testimony are at vari- 
 ance, it then becomes a question of credibility. The answer is not to be 
 discredited, nor any presumption indulged against it, on account of its 
 being the testimony of a party interested. He is made a witness by his 
 adversary, and it would be unjust to compel him to testify, and then 
 consider his testimony unworthy of credit, because he is a party in the 
 amt."{t) 
 
 " It then becomes a question of credibility." If so, why not treat it 
 as a question of credibility — as in every other case it is treated. How 
 can that be a question of credibility to be considered, when the precise 
 
 Is) "If there be contradictory evidence let the Idng decide by the plurality of 
 credible witnesses : if equality in number by superiority in virtue." Institutes of 
 Menu, c. 8, § 73. 
 
 {t) Clason V. Morris, 10 Johns. Rep. 342. 
 
106 APPLETON on EULBS OF EVIDENCE. 
 
 value of the testimony, the credibility of which is to be discussed, is in 
 advance set forth by metes and bounds ? How can there be a question 
 of credibility, when in the outset discussion is utterly and entirely pre- 
 cluded ? What mathematician can ever expect correct results, when the 
 very elements upon which alone correct decision can be based are ex- 
 cluded from consideration. Remembering the conclusions of common 
 law, one would have supposed that the situation of the witness as party 
 might have been deemed worthy of notice, to ascertain whether, from that 
 circumstance, some reason for deduction might not arise ? The inquiry 
 might seem worth making. The judge had evidently thought of the 
 matter and his conclusions, after mature deliberation, are, that no pre- 
 sumption should be indulged against the answer, as it would be unjust to 
 compel him to answer, and then judge the answer unworthy of credit, 
 because the answer of a party.^ 
 
 To give to the testimony of a party its just and due degree of reliance 
 cannot certainly be considered unjust. If unworthy of credit, the in- 
 justice of so considering it, is not very obvious. All that the opponents 
 of the rule desire, is, that this testimony should receive that precise de- 
 gree of trust to which it is justly entitled; that, if true, it should be 
 credited ; that, if false, it should be disbelieved. The fact of the wit- 
 ness occupying the station of a party should be taken into consideration 
 as one affecting his testimony, but not conclusively. Its effect may be 
 more or less, but it is at any rate worth noticing, and there can be no in- 
 justice in considering every fact which 'may conduce, however remotely, 
 to correct decision. If, as is obvious, there is any difference in the rela- 
 tive trustworthiness of witnesses, then the basis upon which the rule rests 
 fails at once. No reason can be assigned for ascribing undue weight to 
 testimony which might lead to misdecision, without at the same time 
 justifying misdecision, which is its necessary consequence. 
 
 At other times the rule has been based upon a supposed equitable 
 principle, "that if the defendant be put on oath hi/ his adoersary, credit 
 should be given to his declarations, unless contradicted by at least two 
 witnesses, or written documents." An equitable principle ! If by equit- 
 able be meant a principle established by a court of equity, and therefore 
 equitable — that all rules of equity are therefore equitable — then it 
 amounts to nothing but the child's logic, that it is so, because it is so. 
 But the equity of the rule seems to consist in this, that the party called 
 by his adversary should receive, because so called, peculiar credence. («) 
 
 The object of the judge is, or should be, to arrive at correct results; 
 to arrive at such results the truth is requisite. A rule violating all ordi- 
 nary principles of evidence is established, and the reason assigned, is, 
 that the testimony was called for by the plaintiff. Injustice must be 
 done because the testimony was called for by the plaintiff. A peculiar 
 and extraordinary trustworthiness is ascribed — and ascribed by compul- 
 sion — to testimony, not because it is true, or believed to be true, but be- 
 cause it happened to have been elicited at the instance of the plaintiff. 
 This is a new element in the investigation of truth. The testimony of 
 
 [u) 9 Pick. 212, Farnnm v. Brooks. 
 
ADMISSION OF PARTIES IN COURTS OF EQUITY. 107 
 
 the witness is true or false, according as it may be required by one party 
 or the other — true, if required by plaintiff — if by defendant, false ; so 
 false as not even to be heard. Is the testimony true or probably true ? 
 is a question immaterial to the issue ; and so utterly unworthy of con- 
 sideration as not even to be asked. The important question is, by whom 
 is the witness called ? as if, because the plaintiff was so unfortunate as 
 to call for testimony, which turns out to be false, that afforded any rea- 
 son why it should be considered and acted upon as true. The real ques- 
 tion is the truth of the testimony, and that can only be ascertained by 
 minute and attentive examination of the facts contained in the answer ; 
 of their relative probability and improbability, compared with whatever 
 may be obtained from other sources ; not by inquiring who called a 
 particular witness. The doctrine of estoppel, odious as it is, affords no 
 valid reason. The judge ought never to be estopped from doing justice. 
 An estoppel should never be interposed to prevent correct decision. The 
 judge should never be compelled for any reason to decide on what he 
 should consider false testimony, as if it were true. 
 
 The rule and the reasons of the rule have already been noticed, but 
 so important is it in the administration of justice, that a more minute ex- 
 amination seems required even at the risk of repetition. The answer 
 uncontradicted should obviously bind the parties. When contradicted, 
 then the question of the truth of the conflicting statements occurs ; a 
 question only to be solved with any hope of correctness, by an attentive 
 examination of the statements of the witnesses — of their situation and 
 standing generally, and more particularly with reference to the cause, and 
 the several motives, which might reasonably be supposed to influence 
 their several testimonies. In ordinary cases these things are necessary, 
 and the reason is not very obvious why the conflicting statements of par- 
 ties and witnesses should not be investigated in strict conformity with 
 the ordinary principles of testimony and belief applicable to human con- 
 duct generally. To decide in perfect ignorance as to the truth of testi- 
 mony, but in accordance with the probabilities afforded by the several 
 situations of the witness, might lead to misdecision. An invariable 
 rule, which should say, that at all times and in all cases, a disinterested 
 witness should receive more credence than one interested, would be an 
 improper rule, and either useless or injurious. Every one, the veriest 
 child, knows the effect of interest, and when known to exist, it will natu- 
 rally be presumed to have influenced, and if it be presumed to have in- 
 fluence, the disinterested witness will ordinarily be considered more 
 trustworthy. So far, therefore, the rule would be inoperative. But 
 when the interested testimony from the high and exalted character of 
 the individual giving it, or from the probability of his statements com- 
 pared with the testimony of a degraded and abandoned disinterested wit- 
 ness, is seen and acknowledged to be most worthy of belief, in such 
 case, the rule,. if adhered to, would lead to inevitable injustice. Every 
 general principle has its exceptions. Pecuniary interest is not the only 
 operating agent ; and when it influences human conduct, it may as well 
 act in one direction as another , and even when acting in a sinister direc- 
 tion, may at any time be controlled by higher and purer motives. To 
 
108 APPLETON ON KULES OF EVIDENCE. 
 
 consider it as the only motive^ and that sinister, would therefore be erro- 
 neous. Directions and cautions may be laid down, but no rule should 
 ever be established requiring the judge to decide without hearing, or 
 contrary to the results of his judgment on the hearing. No rule assum- 
 ing the uniform and equal action of human motives, however plausible it 
 may be, should ever be adopted — it cannot do good, it may produce evil. 
 
 But, as has been seen, equity does worse. It not merely gives judg- 
 ment without the trouble or delay of investigation, but lays down rules 
 for the guidance of the chancellor, having neither probability nor plausi- 
 bility to recommend them. All ordinary principles of belief, all the 
 ordinary rules by which others, by which they, have been usually guided, 
 are trampled under foot as of no value. Common law by undue mis- 
 trust, equity by undue confidence, seem united only as competitors in a 
 common attempt to render injustice triumphant; each striving in its re- 
 spective sphere to render the chance of correct decision as remote and 
 contingent as possible. As pecuniary interest may be considered as in- 
 fluencing human action, and when a person is in the station of a party, 
 united as it is with the passions, and as when such party is in the wrong, it 
 may be supposed to act in a sinister direction proportionate to his wrong- 
 doing ; a directory rule, which, based on these premises, should require 
 reference to these circumstances in all judicial investigations, would ob- 
 vioiisly be proper. Were the rule even to require, in case of a disagreement 
 between the testimony of a party and that of a disinterested witness, that 
 the latter should always be credited, the rule, though unnecessary in pro- 
 portion to its correctness, (the same results ensuing without as with it) 
 would still, being in accordance with ordinary experience, in most cases 
 lead to correct decision. Equity, considering a rule like this as leading to 
 incorrect results, has established one directly the reverse, requiring the 
 chancellor, (as has been seen) in all cases of conflicting testimony, to give 
 the preference to the testimony of the party over that of a witness with- 
 out interest. 
 
 If there be any proposition which commands uniform acquiescence in 
 its truth, it is that the self-serving testimony of a party, is inferior in 
 trustworthiness to that of an extraneous witness who has no interest 
 that belief be accorded to or withheld from his assertions. So much 
 more than fully satisfied are judge and chancellor of the truth of this 
 proposition, that they unite in excluding extraneous witnesses, who 
 may have an interest. In the same case the chancellor excludes the 
 plaintiff, who may wish to testify in his own favor. But by this rule, 
 interest is assumed as having no sinister efi'ect ; the station of party as 
 furnishing no grounds for mistrust; not merely so, but as aflFording reasons 
 for great and extraordinary confidence. Were this an isolated decision 
 of the chancellor, after a full and careful investigation of the facts in a 
 particular case, it would be presumption in one ignorant of these facts 
 to contest the propriety of his judgment. But this is a rule imperative 
 and binding at all times, and between all parties. The witness and the 
 party are heard ; the extraneous witness may be implicitly believed ; yet 
 decision is made as if he were not believed. An invariable and super- 
 ordinary trustworthiness is peremptorily ascribed to the defendant ; and 
 
ADMISSION OF PARTIES IN COURTS OF EQUITY. 109 
 
 whether rightfully or wrongfully ascribed it matters not. Were this a 
 decision made after full investigation, though erroneous, it might be par- 
 doned. But it is the decision of another caus^ and of another age, 
 ordained as " a pattern for that of future causes and future ages. 
 Though the decision might be right as between A. and B., what certainty 
 is there that it will be so as between other parties and in different cir- 
 cumstances ? It is absurd to consider it a precedent. We arrive at the 
 climax of judicial absurdity when the opinion of a chancellor ages ago is 
 held to be conclusively binding as to the trustworthiness of all future 
 defendants and witnesses. What is it but ignorance triumphing over 
 intelligence ? an unnatural joining of the living and the dead after the 
 example of Mezentius ?(«) Were the legislature to prescribe that the 
 bill and answer should be duly filed ; the depositions taken ; that every 
 preliminary, however burdensome or expensive, should be gone into be- 
 fore hearing; that the chancellor should hear all the evidence, and re- 
 ceive all the instruction attainable by arguments of counsel, and apply 
 his time and talents to the deliberate investigation of the facts, and that 
 his decision should in the end depend on chance, and be determined by 
 a black ball or white,^^) and his decree be given accordingly j such en- 
 
 («) Mortua quin etiam jungebat corpora vivis, 
 
 Componens manibiisque manus, atque oribus ora ; 
 Tormenti genus ! 
 (v) "Nee vero bee sine sorte datas, sine judice, sedes." 
 " Qusesitor Minos urnam movet." 
 Classical and inspired authority coincide in favor of the lot as a mode of settling 
 controversies. 
 
 The aleatory mode of deciding causes, seems to have tickled the fancy of 
 Rabelais. For " mark," says Judge Btidlegoose, Book 3, c. 39, "that chance and 
 foftune are good, honest, profitable, and necessary, for ending of, and putting a 
 final closure to, dissensions and debates in suits at law, * * my practice 
 therein is the same with that of your other worships, and as the custom of the 
 Judicatory requires, unto which our law commandeth us to have regard, and by 
 the rules thereof, still to direct and regulate our actions and procedures : un. not. 
 extra, de consuei, C. ex Uteris, et ibi Innoc, for having well and exactly seen, sur- 
 veyed, overlooked, reviewed, recognized, read, and read over again, turned and 
 tossed over, seriously perused and ezamined the bills of complaint, accusations, 
 impeachments, indictments, warnings, citations, summonings, comparitions, ap- 
 pparances, mandates, commissions, delegations, instructions, informations, in- 
 quests, preparatories, productions, evidences, proofs, allegations, depositions, &c., 
 &c., &c., and other such like confects and spiceries, both at the one and the other 
 side, as a good judge ought to do, conform to what has been noted thereupon. 
 Spec, de ordination. Paragr. 3, et Tit. de off. omn. jud. ^ragr. fin. et de rescriptie 
 praesent, Paragr. 1, I posite on the end of a table in my closet, all the pokes and 
 bags of the defendant, and then allow unto him the first hazard of the dice, ac- 
 cording to the usual manner of your other worships. * * * * That being 
 dont, I thereafter laid down, upon the other end of the same table, the bags and 
 satchels of the plaintiff (as your worships are accustomed to do,) Visum raw, just 
 over against one another, * * * Then do I, likewise and semblably throw 
 the dice for him, and forthwith' livre him his chance. * * When there are 
 many bags on the side and on the other, I then use my small dice, * I have 
 other large, great dice, fair and goodly ones, which * * I employ when the 
 matter is more plain, clear and liquid : that is, when there are fewer bags, * * 
 and when all these fine things are done, I give out sentence in his favor unto whom' 
 hath befallen the best chance of the dice: judiciary, tribnnian, pretorial, what 
 comes first : so our laws command." 
 
 Lord Eldou commences his decision in the Earl of Radnor, with the remark, 
 " having had doubts upon this will for twenty years, there can be no use in tak- 
 March, 1859.— 9 
 
110 APPLBTON ON KULES OF EVIDENCE. 
 
 actments would probably be little complimented for their wisdom. A 
 looker-on would smile at the judicial gravity and patience with which 
 the judge should hear an infinity of discussion which it is predetermined 
 shall not have the most remote eifect on his judgment ; and the sobriety 
 with which the counsel should read, and the zeal and energy with which 
 they should discuss the testimony, while it was perfectly understood that 
 all this was but vainly beating the air. The idea seems to be ludicrous, 
 and yet, by rendering the chances of correct decision equal, it would be 
 an improvement upon the rule now under discussion. A rule is good , 
 or bad only as it leads to right conclusions. Now if interest have any 
 effect, if the station of party have any influence on testimony ; then a 
 rule requiring that these effects should never be taken into considera- 
 tion, a rule the reverse of ordinary experience, would most usually lead 
 to misdecision. Such an one therefore, would manifestly be inferior to 
 the above supposed legislative method. 
 
 The peculiar unfitness of the means used to the end proposed, is here 
 as elsewhere strikingly illustrated. The doors of chancery are thrown 
 open for the redress of injured suitors, while the only evidence by 
 which the wrongs sustained can be substantiated, is unhesitatingly dis- 
 regarded. One witness, unless he can bring his fellow, is excluded; or, 
 what amounts to the same thing, is heard and believed, and decision is 
 made as if he had not been heard, or not believed. No rights can be sub- 
 stantiated, no contracts can be enforced, no justice can be administered, 
 unless the facts in issue can be proved by two witnesses ; thus excluding 
 from equity jurisdiction, the very cases, for which it was specially created. 
 
 It is not satisfactory trustworthy evidence that is desired, for the 
 extraneous witness may be most implicitly credited in every assertion, 
 and still no more regard is to be paid to his statements than if he had 
 been reputed to be the greatest of liars. Justice is denied unless a 
 given amount of proof can be obtained; and that amount neither neces- 
 sary nor obtainable. The obligation of contracts is made dependent 
 on the number of those who may be present when they are entered into. 
 Such is the wisdom of equity. 
 
 But the invariable rules of equity are like the equally invariable 
 rules of common law. Accordingly, the force and effect of an answer 
 and the testimony requisite to its disproof, vary with the purposes and 
 objects of the bill. Facts or papers necessary to the institution of a suit, or 
 for the prosecution or defence of one already instituted, may be obtained 
 by aid of a bill of discovery.(w) (x)In ordinary cases, bills are instituted 
 
 ing more time to consider it." " Time," says Bridlegoose, " ripeneth and bring eth 
 all things to maturity : by time everything cometli to be made manifest and 
 patent : and time is the father of truth and virtue." Howmuch would the learned 
 chancellor have been relieved from his eternal dubitations, had he like Bridlegoose, 
 resorted to " the fatal hazard of the dice." 
 
 (w) In the civil law this sort of proof was not obtainable, on account of its 
 hardship. Nimis grave est, quod peiitis, urgeri partem diversam ad exhibitionem 
 vorum per quos sibi negotium fiat, ^c. Code, 4, 20, 7. 
 
 {x) At common law it is sometimes obtained by way of motion to produce 
 papers, sometimes not. "When it is not obtainable, the reason assigned is the 
 loss of a bill of discovery. 2 Oowen, Rep. 582; 6 Cowen, R. 62: 2 J. C. R. 
 429 ; 1 Taun. R. 167 ; 3 J. 0. R. 45 ; 1 Taun. R. 157, &c. 
 
ADMISSION 0¥ PARTIES IN COURTS OF EQUITY. HI 
 
 tpithout the slightest precautions, that the facts therein alleged shall be 
 true. In bills of discovery, the chancellor, for once, wishing to prevent 
 the institution of frivolous or unnecessary suits, requires the oath of the 
 plaintiff to the truth of the facts set forth in his bill. Such oath being- 
 made, discovery is granted if his allegations are supported by only one 
 witness. (y) The question naturally occurs, why this diversity of pro- 
 cedure ? If truth be necessary in bills for discovery, is it not equally 
 so in all other bills ? If the testimony of the plaintiff be required in 
 these cases, why not in others? Is a defendant any the less trustworthy 
 when only discovery is prayed for, than when a decree is desired ? Is 
 he not in fact under less inducement to perjury, inasmuch as in this 
 case, whether by the facts discovered a bill for relief can be supported, 
 or, if it can be, whether it will ever be brought, is a matter of contin- 
 gency, while in the other, the loss is direct and immediate. What- 
 ever reasons may exist for excluding the plaintiff or for giving extraor- 
 dinary trustworthiness to the defendant, seem equally applicable to both 
 cases. But a rule without exceptions would be an anomaly in judicial 
 proceedings, strange and wonderful. 
 
 The sacredness and extraordinary trustworthiness of an answer have 
 been seen, but this trustworthiness is not coextensive with the answer. 
 Of the same answer the first sentence may be considered true, the 
 second false, according to certain prescribed formulas of the chancellor. 
 "When a defendant admits a fact, and insists on a distinct fact by way 
 of avoidance, he must prove the fact so insisted on in defence. "(2) 
 Here as elsewhere the authorities clash. (a) But the decisions of English 
 chancellors, when corroborated by the profound learning of a Story,(6) 
 and a Kent, must be considered as conclusively establishing the law 
 among us. When the answer states two facts, one of which avoids the 
 effect of the other, the one shall be taken as true, the other as false, or 
 what amounts to the same thing, additional proof is required to substan- 
 •tiate the latter assertion. For instance, the defendant acknowledges the 
 receipt of a sum of money for the plaintiff's use, which sum, he says, he 
 has duly paid over. Both facts being apparent in the same answer, one, 
 the receipt, is taken as true, the other, the payment, must be proved. 
 A witness of special trustworthiness stating two consecutive facts, is 
 
 (y) " When the bill is sworn to, one witness is sufficient, for that is not merely 
 oath against oath, but it is the oath of the complainant and one disinterested 
 witness against the oath of the defendant." 1 Cooke, 110, Seavey v. Pernell and al. 
 
 (2) 2 Johns. Ch. E. 62; Hart v. Ten Eyck, 1 Cow. Rep. Vll ; Woodcock v. 
 Bennett. The same subject is discussed in 2 Pothier on Contracts, 1568, and in 
 Peake on Evidence, 36 ; Gilbert on Evidence, 45. A party charging himself in a 
 schedule in his answer, cannot discharge himself by another schedule stating his 
 disbursements. Boardman v. Jackson, 2 B. and B. 385. If the plaintiff is charged 
 by an answer, he must discharge himself by proof, and cannot do it by reading 
 the whole answer. 2 Atkyns, 383. 
 
 (ffl) The indivisibility of confessions is ably discussed in 10 TouUier, | 335; 
 Bonnier, Traits des Preuves, ^ 296. 
 
 (6) " So far as the answer sets forth new facts by way of discharge or avoidancl 
 of the matter of the bill, or alleges separate and independent agreements, they 
 are not evidence for the defendant, but all such allegations must be established 
 by proof aliunde." Per Story, J., 3 Mason, Rep. 383 ; Per Kent, Chancellor, 2 
 John. Ch. Rep. 90. 
 
112 APPLBTON ON RULES OF EVIDENCE. 
 
 believed as to one, disbelieved as to tbe other. The court say that "he 
 imisf prove his discharge, otherwise it would be to allow a man to swear 
 for himself, and to he Ms own witness." (c) The chancellor is afraid 
 of the testimony of a party — the very object of whose court was, to 
 obtain such testimony. To swear for one's self, a terrible evil unques- 
 tionably. But as to every other fact, is he not equally his own witness ? 
 An answer denying facts or avoiding the effect of them by the statement 
 of others, which tend to exonerate the witness, differ not at all so far as 
 the ricfhts of third persons, or those of the witness are concerned. "It 
 would enable him to defeat the plaintiff's just demands by stating evi- 
 dence in avoidance." Such are the fears of the chancellor, that a dis- 
 honest defendant would swear away the effect of his admissions. But if 
 perjury is to be feared, why admit the defendant at all ? He may deny, 
 and then the necessity of stating facts in avoidance at once ceases. If 
 the defendant be dishonest, the only effect of the rule is to shift the 
 perjury. For he, who will state false facts by way of avoidance, will 
 hardly scruple to deny true ones by way of bar. 
 
 If the defendant be unscrupulous the rule will be little likely to be 
 useful, merely shifting the perjury from one fact to another. If he is 
 honest, then the rule is productive only of pure and unmixed evil. The 
 defendant is compelled to answer; such answer is fully and entirely 
 true; no fact is concealed, none evaded, none denied; yet, of such 
 facts, all being true, a selection has been made, a part adjudged true, 
 the rest false. If the fact of payment be known to the parties alone, by 
 ignoring the evidence of the defendant, misdecision is inevitable. The 
 very integrity of the defendant operates to his loss. It is not con- 
 tended, that the fact in avoidance should be treated as true, but only 
 that it should be received as evidence, and should be judged of accord- 
 ing to its probability or improbability. Those portions of the answer, 
 which are self-serving, should obviously receive a more severe scrutiny 
 than those which are disserving. The whole answer should be taken as 
 an entire piece of evidence, and thus submitted to the consideration of 
 the chancellor. 
 
 But here, as elsewhere, distinctions are the order of the day. Had 
 the fact relied on by way of avoidance been stated in the same sentence 
 with the fact which charges, such discharging fact would, for that cause, 
 be considered and acted on as true;((^) if stated in a subsequent sen- 
 tence, it must be substantiated by proof. Charging and discharging 
 themselves in the same sentence, they are men of veracity ; let the inter- 
 vention of a period occur, and they are liars. So much for the magic 
 virtue of periods. The truth or falsity of an answer is thus made to 
 
 (c) 2 John. Ch. Eep. 90. Hart v. Ten Eyck. 
 
 (d) In Kirkpatrick v. Trupp & Love, {Amb. 589,) plaintiffs and defendants had 
 dealings as merchants, and on a decree to account, both parties were examined. 
 On taking the account, the plaintiffs admitted the receipt of some goods, and in 
 the same sentence, said they had paid the defendants for them. The question was 
 whether they were bound to prove the payment ; Lord Ch. Hardwick held that 
 they were not, as they charged and discharged themselves in the same sentence; 
 but it would have been otherwise had the discharge or avoidance been in a dis- 
 tinct sentence. 
 
ADMISSION OF PARTIES IN COURTS OF EQUITY. 113 
 
 depend on the collocation of sentences ; and the decree is based upon 
 their punctuation. Two answers vary only in the termination of sen- 
 tences, one defendant is believed, the other disbelieved. The facts are 
 the same, the justice of the case the same, the difference of ultimate 
 decision arises only from the different punctuation adopted by the 
 respective counsel employed. 
 
 In like manner reference is had to the time when the several facts 
 are stated to have transpired. (e) If the fact discharging be stated to 
 have happened on the same day with the fact charging, the defendant 
 is exonerated; if on different days, the defendant must establish his 
 assertions by other proof. Both facts happening on Monday, the whole 
 and entire answer is true. One happening on Monday, as that the 
 money was then received, the other on Tuesday, as that it was then 
 paid over; extraneous evidence is necessary to support the truth of the 
 latter fact; as if the truth of the facts stated were to be determined by the 
 time in which they are alleged to have happened. The unlucky litigant, 
 when informed that his answer was adjudged false, because he asserted 
 that the disbursement was made on a day subsequent to the reception of 
 the money, would ever after take care, if knavish, that, however the fact 
 might be, there should be no lapse of time to ruin his case. If upright, 
 unless he could from other sources verify his defence, he must submit in 
 silence. To insure belief and avoid injustice, all that is required is that 
 the answer should be false. 
 
 Upon distinctions like these are the rights of the parties made to 
 depend. To count witnesses, to examine the punctuation, to ascertain 
 dates, and then to have decision ready made to your hands, is a vast 
 saving of labor and reflection, and though it be at the expense of justice, 
 and to the ruin of suitors, so it be done duly and hy rule, what cares 
 the chancellor ? Let us be distinctly understood. The courts do not 
 undertake to decide on the facts as they exist, or are believed to exist. 
 In the one case the defendant's answer, false and so considered, is acted 
 on as true ; in the other, though true, it is treated as false. They never 
 investigate. These rules forbid investigation and responsibility. Deci- 
 sion must be given without thought, and the adjudication be mechani- 
 cal. Such are the vaunted rules of equity.(/) 
 
 No rules can ever be established by which to judge of testimony 
 unknown and in the dark. Varying, changing, and uncertain as are 
 the motives which influence testimony, similar to the change of motives 
 must be the rule of belief. Any rule marking and defining in advance 
 the precise degree of credence to be given to any particular portion of 
 testimony, if correct, is unnecessary, just in proportion to its correct- 
 ness; and if incorrect, is injurious just in proportion to its efficiency. 
 
 (e) A party charged by his answer cannot discharge himself by it, unless the 
 whole is stated as one transaction ; as that on a particular day he received a sum 
 and paid it over ; not that upon a particular day he received a sum and on a 
 subsequent day he paid it over. Thompson v. Lambe, 7 Ves. 58T. 
 
 (/) The remark of Cicero, with but the change of a word, would be by no 
 means inapplicable now. " Cancellarius [jurisconsultus) ipse per se nihil nisi legu- 
 leius quidam cautus etaeutus, prcBCO actionum, cantor formularum, anceps syllabarum." 
 De Oratore, Lib. 1, Ch. 55. * 
 
114 APPLBTON ON RULES OF EVIDENCE. 
 
 Let then the whole and entire answer be received and judged of by a 
 living judge, not by one, who, so far as competency is concerned, might 
 as well have lived before the flood. 
 
 Change now the court; pass from the realms of the chancellor to 
 those of the judge. Parties being excluded at common law, is the 
 answer of the defendant ever received in those courts? Yes, provided 
 hardship, vexation, and expense sufliicient are occasioned. A suit being 
 pending at law, if either plaintiff or defendant should wish for the testi- 
 mony of his opponent, to obtain it, to move even a finger for that pur- 
 pose, the judge refuses. The dangers and hardships of such testimony, 
 so vividly pictured forth in the reports, amply justify its rejection. He 
 would shudder at the utter prostration of justice, which would ensue. 
 He would fear that the temple of justice would shate to its very centre; 
 that the ghosts of the venerable fathers of the law, aroused by the 
 shock, would come forth from their long repose to forbid such profane- 
 ness.(5') The common law suit, passing along with its slow and snail- 
 like pace — suppose either party by means of a bill of discovery, should 
 extract the testimony of his opponent, would such answer, thus ob- 
 tained, be received ? Keceived ? certainly, and without the slightest 
 hesitation. Dangers of perjury and the hardship of uttering self-dis- 
 serving testimony at once cease to exist. Institute an extra suit, double 
 the expenses of litigation and the motives for dishonesty, and the common 
 law judge, who has so great a dread of the voluntary and inv51untary 
 testimony of the party, receives it without the slightest objection. If 
 offered or called for in the same suit, he refuses it ; imposing an indefi- 
 nite burden on the parties, the same judge receives the same facts to 
 be used between the same parties and in the same case; and this when 
 the reasons for his original rejection, if valid, are here applicable with 
 increased strength. Will not his own rules estop him ? The judge, 
 like the chancellor, is or is not trammeled by rules and principles, as 
 the whim of the moment governs. 
 
 This same answer, now admitted at common law, produces entirely 
 different effects upon the rights of the parties from what it would have 
 done in equity. Being received at common law, no such peculiar and 
 unmerited credence is given it, as to require two witnesses to disprove 
 the assertions therein contained. The admissions and avoidances are 
 all received as evidence, and to be so treated, (/i) If the answer should 
 be contradicted by one witness, the jury are at liberty to decide between 
 these opposing statements. Whether the several facts charging and 
 discharging are true or false, whether the answer is true or false, are 
 questions they there permit to be decided after hearing. Prom these 
 different rules it follows that the same answer is evidence or not evi- 
 
 (g) It seems that on trial at common law of a case sent from chancery, the defen- 
 dant may be examined and subject to cross-examination by the plaintiff, although 
 called as his witness, his situation being necessarily adverse. 1 Ryan & Moody, 
 126, Clarke v. Saffery. Such the uniformity, the certainty of the law. 
 
 (A) When an answer in chancery is given in evidence in u. court of law, the 
 whole answer is read, and it is received as prima facie evidence of the truth of 
 the facts therein contained, subject, however, to disproof. 1 Gaines' Rep. 15'7. 
 11 Johns. 260. • 
 
ADMISSION OF PARTIES IN COURTS OF EQUITY. 115 
 
 dence, that the same statements are true or false ; not, as should seem 
 probable, from investigation or reflection, but that these conclusions 
 are dependent upon the fact whether the answer is read to a jury or a 
 chancellor. In the case in and for which the answer was obtained, the 
 same statements are acted upon as true or false, which between the 
 same parties in another case, receive a consideration precisely opposite ; 
 so that on precisely the same evidence judgment may be to-day for 
 plaintiff and to-morrow for defendant, and the only earthly reason 
 assigned for the difference is, that the judge, who thus differently weighs 
 it, has in the mean time changed the title of his office, and the name of 
 his court. The same thing is to be and not to be; to be, before the 
 judge, not to be, before the chancellor. Thus the same individual 
 magistrate, when the same rights of the same parties are at issue before 
 him, will refuse evidence, of which, under a change of name, he will 
 compel the production ; when it is obtained, as judge he will believe it, 
 as chancellor he will disbelieve it; with one name, on the same testi- 
 mony, he will give judgment for the plaintiff, with another, for defendant. 
 
 This difference of treatment which the answer receives at equity from 
 what it receives at common law, is stated in the books to arise from the 
 distinction between pleading and evidence. At equity the answer is con- 
 sidered as pleading, and the facts asserted by way of avoidance must be 
 proved ; at common law the several facts asserted in and by the answer 
 are considered as admissions of the party and consequently evidence ; 
 these different results arise from this distinction. (?) The answer, it is 
 said, is mere pleading in equity, and the facts stated by way of avoid- 
 ance or discharge require proof. Pungent pleading that, which gives 
 more credit to the answer of a party on oath than to a disinterested 
 witness. If it be mere pleading, and unavailing in equity, why should 
 it receive such an accession of trustworthiness at law ? If it be but 
 pleading in equity, the words in the paper remaining unchanged, by what 
 necromancy does it at once become evidence ? If it be evidence at law, 
 why not equally so in equity ? The sole reason for this difference is found, 
 not in things, but in words. " To-day I preside in a court of equity," 
 would be the answer to the inquiring suitor who might wish to know 
 why his assertions yesterday considered as true were to-day disbelieved. 
 " They call me by different names, and as they change my names, so 
 change I my opinion of your testimony." 
 
 From the utter incompetency of common law to do justice, the more 
 important and complicated suits are at once thrown into the courts of 
 equity. The more valuable and important the rights of the parties are, 
 the greater are the evils of misdecision ; the more numerous the parties, — 
 the more numerous are the percipient witnesses, and the more neces- 
 sary is it, in case of diversity of statement, that their several testimonies 
 should be forthcoming for the thorough elucidation of the matters in 
 dispute. In the case of few parties, and where there is little of complexity, 
 the importance of general admission has been seen ; increase the number 
 of parties, and the extent and complication of the cause, and the pro- 
 
 (j) Tide cases before referred to. Woodcock v. Bennett, 1 Cow. Rep. '743. Ten 
 Eyck V. Hart, 2 John. Cli. Rep. 89. 2 Evan. Poth. 157. Peako 87. 
 
116 APPLETON ON RULES OF EVIDENCE. 
 
 priety of admission is proportionally increased. Where there are nu- 
 merous parties to a suit, whether plaintiffs or defendants, or both, let us 
 examine the rules adopted. In case of one plaintiff it has been seen that 
 his testimony is in no way admissible ; enlarge the number to any ex- 
 tent, still the rule remains unchanged The same reason which excludes 
 one excludes any number, however large. Where there are numerous 
 defendant.?, the first question which occurs is whether a codefendant is 
 examinable at the instance of the plaintiff, and to the intended and ex- 
 pected disservice of another codefendant. Against themselves and for 
 the plaintiff's benefit they are each liable to examination, no matter how 
 great the hardship may be. Against each other .can the plaintiff compel 
 the testimony of any of the defendants ? Yes and no seem to be the 
 proper answers : i/es, if by so doing he will release all claims against the 
 witness introduced; no, if he still wishes to enforce his claim. 
 
 " The plaintiff, by examining defendant as a witness, precludes himself 
 from obtaining any relief by decree against him ; and if, from the nature 
 of the case, the defendant would be primarily liable, and another defend- 
 ant only in a secondary degree, the plaintiff has lost his remedy en- 
 tirely.'Y/i;) So that if the plaintiff have claims against several codefend- 
 ants, and the testimony of one be necessary to substantiate the case as 
 against another, and such defendant, whose testimony is desired be 
 solvent, he must either lose his cause through defect of testimony, or, 
 if by examining the defendant he obtains the desired proof, incur the 
 risk of losing all beneficial results from his testimony by releasing the 
 solvent defendant. If the defendant's testimony be proper as against 
 himself, is it not equally, nay, much more proper as against another 
 defendant, for whose interests he must obviously feel less than for his 
 own ? The reasons which in his own case required the production of his 
 testimony, equally exist in this, while the objections to the admission of 
 a codefendant's testimony are diminished just in the proportion which 
 exists between the interests one feels in himself and in his neighbor. 
 
 " If the plaintiff has replied to the defendant's answer, it seems he 
 cannot be examined, for it cannot then be said he is not interested. "(A 
 So that if a codefendant is called as a witness, he ceases to be a party; and 
 if examined as a party, he ceases to be a witness. 
 
 The defendants being numerous, are they mutually examinable for 
 each other, and against the plaintiff or another codefendant ? " The 
 rules as to evidence are exactly the same in equity as at common law." 
 Such is the law as laid down by one of the ablest of the English chan- 
 cellors ;(m) and so follows on the file of his successors, each repeating 
 the response of his predecessor, and at the same time directly contradict- 
 ing it. Were the remark true, chancery would never have existed ; though 
 notoriously not true, it is still laid down as the law. Were it true, the 
 answer would be easy; not being true, it becomes a question of difficulty. 
 
 (k) Thompson v. Harrison, 1 Cox, 344. (l) Winter v. Kent, Dick. 350. 
 
 (m) Per Hardwick, 1 Atk. 453, Manning v. Lakeman, and 2 Atk. 453. " It is 
 repeatedly asserted, by courts of equity, that the rules of evidence are the same 
 in those courts as in courts of law." Per Parker, 0. J. 11 Mass. 324, Dwight T. 
 Pomeroy. 
 
ADMISSION OF PARTIES IN COURTS OF EQUITY. 117 
 
 In equity as well as at common law, it being in the power of the plain- 
 tiff to make as many defendants as he may choose, it is of course in his 
 power to deprive the defendant entirely of all proof by summoning his 
 witnesses as codefendants. To' prevent such disastrous results, the chan- 
 cellor permits a defendant to be examined for a codefendant.(K) The 
 reason for the admission is satisfactory and equally applicable to both 
 courts ; but at law the rule is diametrically opposite, the asserted iden- 
 tity of their rules to the contrary notwithstanding. The evils of exclu- 
 sion, the benefits of admission, being the same, why this diversity as 
 between courts ? 
 
 In the case of Lee v. Atkinson, the defendant was " admitted saving 
 just exceptions." (o) What are just exceptions ? Is he examinable unless 
 interested ? if interested, neither voluntarily nor involuntarily to be ex- 
 amined. A party without interest — (at least to get rid of his case, if 
 he has no other interest) is hardly a conceivable case ; inasmuch as the 
 slightest initiation into the mysteries of equity, is attended with an 
 amount of fees one would think sufficient to create interest, if it can so be 
 created. What constitutes interest is a matter of uncertainty ; on its 
 being determined to exist in the defendant, he is excluded. He is in- 
 terested in his own case directly, in that of his codefendant, but colla- 
 terally — the reasons for exclusion seem to decrease with the consequent 
 diminution of interest. If it be necessary that justice should be admin- 
 istered at the expense of one defendant, it is equally necessary that it 
 should be so at that of another ; and if self-serving testimony should be 
 extracted to the disservice of one's self, it should be equally so, to that 
 of a third person. (p) 
 
 So too a defendant, charged with fraudulently colluding(g') with a co- 
 defendant, is not heard. The legal presumption of innocence is rebutted 
 by counter presumption of fraud ; of fraud without proof, save the mere 
 assertion of the bill, and which may have been made for the very purpose 
 of excluding the testimony of this defendant. 
 
 When and in what cases either the defendant or his answer is receiv- 
 ed, can never be foreseen. The most learned judicial astrologer can 
 only predict. For what purpose, then, shall we penetrate farther into 
 the utter chaos of chancery, where we find neither certainty nor con- 
 sistency. 
 
 We would, then, be understood literally in asserting, that the law of 
 evidence, so much lauded by those whose vocation it is, to praise all 
 existing institutions, is in the worst possible condition, uniting in the 
 
 (ra) " Ground of permitting a defendant to be examined for a codefendant, is, 
 that the plaintiff might unite distinct claims with a view of depriving the parties 
 of each other's evidence." 2 Ves. & Beam. 405. 
 
 (o) An order to examine defendant as a witness saving just exceptions, is an 
 order of course, &c. 2 Gox, 413, Lee v. Atkinson. Order to examine a party 
 saying just exceptions, of course on the suggestion of no interest; if an interest 
 appear, refused. 18 Ves. 517, anon. 
 
 (p) Interest is highest in parties; objections against interested testimony in the 
 case at its maximum; yet they are received. Interested extraneous witnesses, who 
 cannot have more interest ; who may have equal intelligence and whose testimony 
 may be equally important, are rejected, and that by the same magistrate, who re- 
 ceives the party. (?) 3 John. Ch. E. 612, Whipple v. Lansing. 
 
118 APPLBTON ON RULES OF EVIDENCE. 
 
 highest degree the evil of discordant and uncertain law.(r) "By ex- 
 cluding great masses of testimony, by extracting it in the worst possible 
 mode, and by establishing the most dangerous and absurd rules of judg- 
 ing of the evidence received, as far as can be, they render misdeoision 
 necessary and unavoidable. The whole subject is a scene of " confusion 
 worse confounded." The great courts of law and equity proceed in differ- 
 ent and opposing courses. Both cannot be right. Each may, to a certain 
 extent, be wrong. Nor is this contrariety between court and court enough. 
 In each of these courts, exceptions utterly subversive of their very elemen- 
 tary principles, are adopted. Inconsistent with each other, they are equally 
 at war with themselves. The general principle, as has been seen, is 
 broken in upon by exceptions utterly at variance with, and destructive 
 to it. Necessity is the great reason for .this violation ; the golden and 
 invariable rules are so bad that it was absolutely necessary that they 
 should be violated ; and this, when the danger was at its maximum. 
 Under the most inauspicious circumstances for innovation, they have 
 abandoned these general rules; and if rightfully, no reason can be given 
 why they should longer subsist. 
 
 But notwithstanding the extent and variety of their innovations, the 
 united action of the two great courts of equity and law, with the most 
 efficient and energetic co-operation, are unable to effect, what should be 
 a primary and indispensable step, the introduction of the parties with 
 full liberty respectively of making a full statement of the case themselves 
 and of cross-examining their opponents. 
 
 The courts ought to go to the fountain head, and hear the statements 
 of those best acquainted with all the facts ; hear, but receive them 
 with all due caution. They ought to cease from hearing cases by 
 the halves, and hear all the evidence obtainable from every source, and 
 then judge for themselves, and not with the judgment of others living 
 ages ago. Let them decide bi/, not contrary to, the weight of evidence. 
 Let them decide as they honestly believe, and then if they are wrong, 
 their errors may be pardoned ; not contrary to their own opinion, when 
 even correct decision, the result of accident, is not a subject of approba- 
 tion. Such are the rules, which reason and experience dictate, and 
 which equity and common law daily and hourly violate, (s) 
 
 (r) An intelligent writer (2 Evans, Pothier, 210,) in defending the contrarient 
 practices of these several courts, remarks, that they have their several advantages 
 and disadvantages, and that pursuing jour remedy in either, you must take it 
 with its accompanying advantages and disadvantages. The disadvantages, it 
 seems, must be retained. The idea seems never to have occurred that it would 
 be the course of wisdom to lop off the disadvantages as -svorse than useless excres- 
 cences, and retain the advantages. Equity has the advantage of the testimony of 
 the party, common law that of cross-examination. No reason can he given why 
 these advantages should not be united in each court, and the several disadvan- 
 tages relinquished. The slave, whose feet are in fetters and he whose arms are in 
 chains, have each advantages and disadvantages for labor, but the master whose 
 object it was to obtain the greatest benefit from their services, would hardly think 
 it advisable to retain what would impede their labor. 
 
 (s) Different States, as the evils of exclusion become more and more apparent, 
 carve out exceptions and^ modiflcations of the rule suggested by the hardship of 
 some particular case. VirginiS, has recently given common law courts the power 
 of extracting testimony before obtainable only by equity. A further improvement 
 would be, to increase the powers of equity and to change and alter its rules. 
 
OHAPTEE VII. 
 
 ADMISSION OF PARTIES IN CRIMINAL PROCEDURE. 
 
 The end, alike to be attained in civil or criminal procedure by the in- 
 troduction of testimony, is the ascertainment of the truth ; the extraction 
 of the whole portion of facts connected with a given litigated question. 
 The reasons, which show the importance of the admission of the testi- 
 mony of parties in civil, show still greater necessity for it in criminal 
 causes. Necessary as has been seen to be the admission of parties in 
 civil procedure(a) to induce or prevent the imposition of just or unjust 
 pecuniary liabilities ; this necessity is immeasurably increased, when the 
 onerous inflictions of penal law are to be imposed or avoided. Here then, 
 the question acquires a proportionably commanding importance — and is 
 to be discussed with still greater caution. 
 
 In the investigation of truth, the eye of intelligence refers only to the 
 fact in issue. The resulting effect of such fact is, such as the law has 
 seen proper to ordain — and its provisions are to be considered as the best 
 possible. The best means of ascertaining the existence of any facts is 
 simply a question of evidence. The escape of innocence, the punish- 
 ment of guilt, are the only ends to be attained, and the rules of evidence 
 are, or should be, adapted to their most effectual attainment. Whether 
 such rules have been adopted, is the subject proposed for consideration — 
 a subject commensurate in importance with the due administration of 
 penal law. 
 
 In all cases, were the judicial investigator to pursue the course dictated 
 by reason, he would obviously anticipate the fullest information from 
 those best acquainted with all the facts. The eye and the ear witnesses — 
 the accidental spectators of the transaction — moy not, when the matter 
 comes up for judicial investigation, be the most accurate, the best wit- 
 nesses. Their senses may have been deceived — their recollection may 
 have become dim, confused and uncertain — or their memory may have 
 failed. An adequate motive to perceive, treasure up, retain and relate 
 what has transpired, may have been wanting. They may have ceased 
 to exist, or their presence, for the purposes of judicial investigation, may 
 be unattainable — or attainable only with great and undue trouble and 
 expense. The crime, perhaps, may have been committed without the 
 presence of any human being. Not so with the parties to the transac- 
 tion. The actual participators, the actors in the scene, will always be 
 
 (a) There may be much repetition of the argument, but we must be pardoned 
 that fault. 
 
120 APPLBTON ON BULES OF EVIDENCE. 
 
 present — and tlie same interest, whicli induced them to act, will always 
 induce them to recollect. Were the transaction one of recent or remote 
 occurrence — where the rights of persons or property were violated — the 
 reputed sufferer in those rights would best know(6) when, where, how, 
 and in what he may have suffered. The accused, the reputed violator 
 of those rights, would know whether the charge was true, and if true, the 
 precise manner, extent and mode of such violation. They, then, the injured 
 and the injurer, would obviously, so far as accuracy of original percep- 
 tion and recollection are desirable qualities in a witness, be the best 
 sources for instruction. Any supposed danger from want of integrity on 
 their part, or of intelligence on the part of the judge, will hereafter be 
 examined. 
 
 Now the evils of exclusion are obvious. "Were all testimony excluded, 
 the detection of the criminal would be impossible. To the extent of ex- 
 clusion — so far as from that cause crime escapes detection — to that ex- 
 tent it is encouraged and rewarded — by receiving and retaining in safety 
 and without molestation its fruits. Impunity is the necessary and in- 
 evitable result of insufficient proof. Eartial exclusion is partial impunity. 
 When this deficiency of evidence is the result of exclusionary rules, the 
 law aids and abets the criminal. It does on a grand, what the perjured 
 withholder of facts does, on a small scale. Suppression, on the part of a 
 witness sworn to disclose the whole truth, is perjury. The law thus 
 punishes the witness for following with strictness its own spirit. Ex- 
 clusion of testimony ; suppression of the truth are its grand character- 
 istics, punishable in the case of a single individual; when infesting every 
 portion of the law, approved as one of its most important rules. The 
 witness who from feelings of compassion, (c) in a single case suppresses 
 the truth only follow the example of the law. Suppression either by the 
 law or by a witness differs only in the extent of the evil inflicted. In 
 the one case a single individual may suffer unjust or escape just punish- 
 ment; in the other, the evil pervades the whole community. He then, 
 who, wishing to see the law enforced, adopts exclusionary rules of evi- 
 dence, most effectually prevents the accomplishment of his own wishes. 
 
 No line of distinction can with safety be drawn between the rules of 
 evidence in criminal and civil procedure. Whatever, in the one, illus- 
 trates the truth, cannot fail, of being conducive to similar results in the 
 
 (i) In some conceivable cases, of course a violation of property, as larceny may 
 have taken place, and the individual may not know so well who committed the 
 crime as some other person, but still the argument remains in undiminished force 
 in all cases, when he does know. The violator of the rights of others always 
 knows, however reluctant to relate. 
 
 (c) Whether a criminal escapes by reason of exclusionary rules, or the law 
 should in certain cases authorize and prescribe perjury, would be a matter of form 
 merely, not of substance. The English law adopts one, the Hindoo law the other 
 course. The evil, however, is of limited extent in the latter, while in the former, 
 it extends throughout all its domains. " Whenever a true evidence would deprive 
 a man of his life, in that case i? a. false testimony would be the preservation of his 
 life, it is allowable to give such false testimony : and for ablution of the guilt of 
 false witness he shall perform the Poojeh serashlie: but for him who has murdered 
 a Bramin, or slain a cow, who being of the Bramin tribe has drunken wine, or has 
 committed any of those particularly flagrant offences, it is not allowable to give 
 false witness in preservation of life." — Halhed's Oenioo Laws. 
 
ADMISSION IN CRIMINAL PKOCBDURB. 121 
 
 other. Keform in the existing law being the object, an examination of 
 the law as it is, in its several subdivisions, becomes necessary. Not 
 enough is it to notice the hizarre and incongruous state of any portion 
 considered by itself; but its relation to other branches must be consid- 
 ered, for its absurd and contradictory provisions can only be seen by 
 contrasting one portion with another. 
 
 In criminal suits, then, as in all others, there are always two at least, 
 who have an interest in the result : the prosecutor and respondent ; the 
 party inflicting, and the party receiving the injury. Though the suit 
 may be in the name of the government, yet the real moving mind, the 
 inspirer of the whole process, is generally the party who purports to be 
 injured. The prosecutor, when not the party injured, has still an 
 interest of some sort; else, why does he assume the oppressive ex- 
 penditures and onerous labors of the prosecution. ((^) Either ill-will or a 
 pecuniary interest must ordinarily have induced the prosecution ; and 
 to the vision of an unlearned man, the former would be regarded the 
 most likely to lead the witness astray. The prosecutor, whether he be 
 the party injured or not, has at any rate, in the cases to be cited by 
 way of illustration, a pecuniary interest; and in all cases an interest of 
 some' sort. In civil causes, the effects of pecuniary interest have been 
 deemed so deleterious, that the sagacity of the judge has always 
 been on the alert to detect its presence even in the minutest degree. 
 In criminal procedure, the dangers to be guarded against are greater in 
 proportion to the greater importance of the rights involved. It remains 
 then to examine the consistency of this portion of the law. 
 
 In cases of theft, the prosecutor is entitled to restitution of the goods 
 stolen on conviction of the ofFender,(e) and in all cases his civil remedy 
 is in abeyance until the result of the criminal prosecution has been 
 ascertained. Conviction then is either absolute success, followed by 
 the attainment of the possession of the goods stolen, or a necessary pre- 
 requisite(/) to any well-grounded hope of success. Whatever interest 
 as plaintiff' in a replevin suit, the prosecutor might have, the same he 
 obviously has in the issue of the criminal proceedings. Whether he 
 were to obtain the goods directly or by the intervention of a second 
 suit, he would still have an interest in the result of the prosecution. 
 Because the process is termed indictment, rather than writ, his interest 
 
 {d) In the English law, the prosecutor, in a vast many cases, is himself respon- 
 sible for the costs ; which in some instances are so burdensome as almost to 
 amount to a denial of justice. 1 Chitty's Crim. Law, 486, 6Yl. Lord Brougham, 
 in his speech on Reform of the Law, states an instance, when prosecutor's costs 
 were £10,000; p. 58. 
 
 (e) One or two instances, by way of illustration, whether of common or statute 
 law, it matters not : 
 
 " The prosecutor is competent, notwithstanding he be entitled to a restitution 
 of his property on conviction of the thief." 2 Russ. on Crimea, 602. 
 
 " So one from whom goods had been stolen is a competent witness on the trial 
 of the thief; although he is entitled by statute to satisfaction from the future 
 earnings of the convict, and a recompence from the public treasury for the 
 expense of prosecution." 9 Mass. 30, Com. v. Moulton. 
 
 (/) Before conviction of the felon, no dvil action lies at the suit of the party 
 injured for goods stolen. 2 D. & B. 751, Harwood v. Smith. 3 Greenl. 459, Foster 
 V. Tucker et al. 4 Greenl. 164, Boody v. Keating. 
 
122 APPLETON ON EULES OF EVIDENCE. 
 
 in the property will not on that account be any the less. A., receiving a 
 stolen horse, by the verdict of a jury, receives the same value, whether 
 he be termed prosecutor or plaintiff, and his integrity can hardly be 
 supposed to be materially affected by this change of name. 
 
 " In civil oases, if a witness be interested, he cannot be examined. 
 In criminal cases, for the safety of the public, getting rewards does^not 
 in a court of criminal jurisdiction disable a witness from giving testi- 
 mony, though it may go to his credit."(y) Abundantly, yes, super- 
 abundantly aware of the sinister effect of interest, yet not satisfied with 
 its natural existence, the legislator must go out of his path on an errand 
 of crime to foster its increase by artificial means. Those, then, to whom 
 neither revenge nor passion; neither regard to the laws nor their duties 
 as citizens, would be adequate inducements to prosecute, are to be 
 bribed by pecuniary offers to testify. The interest in the reward thus 
 proposed as the result of accredited testimony, how differs it from any 
 other sum of similar magnitude ? Let a hundred dollars be at stake in 
 a civil or criminal suit, and in what would the difference consist. Is 
 the informer's money less valuable ? Does it pay purer debts ? 
 
 " Sound it ; it doth become the mouth as well ; 
 Weigh it ; it is as heavy." ' 
 
 « For the safety of the public." A good reason for admission or 
 exclusion. The safety of the public requires interested witnesses. Bui 
 if the common law has any one principle established and confirmed by 
 the uniform current of authorities, it is, that perjury is the certain and 
 inevitable result of interest. Yet, notwithstanding its own rules, is this 
 evidence received. The safety of the public requires evidence prejudi- 
 cial to its best interest. If this danger be sufiicient for exclusion in 
 civil, by how much is it diminished, when the interests involved are 
 immeasurably increased. Here, as every where else, change only the 
 name of the suit, while the beneficial results enure to the same indi- 
 vidual, and he is accordingly received or rejected. Reason for the 
 distinction ? All the truth-destroying effects of interest vanish ; it 
 becomes pure, sublimated, etherial, untouched, and unstained by aught 
 that is gross or worldly, when the remedy is sought for under the name 
 of the king, or state. Let those eternal litigants, John Doe and Rich- 
 ard Roe, but enter the arena, and the responsible mover of the process 
 is excluded; seeking to attain the same ends under the name of the 
 king, or state, he is supposed to have done it, "impure maintenance of 
 the laws and public justice j" (Ji) and is received. The calm mind of 
 the informer is never swayed by sinister interest, or, it may be, that the 
 atmosphere of the criminal side of the King's Bench exalts and purifies 
 it above the influence of all earthly thoughts and passions. 
 
 Inconsistent as is the admission of the informer and prosecutor with 
 
 (ff) Per George, B., in King v. Geo. Leary. McNally on Evidence, 62. 
 
 It is the constant practice to admit the prosecutors in an indictment for high- 
 way robbery, Ac, &c.; though entitled to a reward. Esp. N. P. 'Tl.^. Informers, 
 whose evidence receives a pecuniary compensation from the law, are not admitted 
 by the code of Napoleon. 
 
 (h) Gilb. Evidence, by Lloft, 221. 
 
ADMISSION IN CRIMINAL PROCEDURE. 123 
 
 tbe general principles of common law in civil, it is none the less so with 
 those adopted in criminal procedure. Intelligent as a witness as may 
 be the prosecutor or party injured, the accused is in nowise his inferior; 
 and the reasons which justify the admission of one, would seem equally 
 to authorize that of the other. 
 
 Is then the accused af his own instance received ? A crime has been 
 committed. In the absence of all proof no greater presumption exists, 
 that A., 'rather than B., has committed the offence. None can exist. 
 The judge can have none. He should proceed to the investigation for 
 the sole purpose of ascertaining loho may be guilty. Who may in truth 
 be the injurer or injured, does not appear, nor should it be presumed to 
 appear, from the relative situations the parties may respectively bear to 
 the cause on trial. 
 
 "Were the law to look with an equal eye on the accuser and the 
 accused, it would form no presumptions in advance, either as to the 
 truth or falsity, of the charge alleged. It would leave the result as a 
 matter for subsequent decision, after all the light receivable from, a full 
 and complete investigation had been obtained. It would neither assume 
 the truth of the charge, nor the innocence of the prisoner. The mind 
 of the judge should be neutral. To assume the truth of the charge 
 would be to the injury of the accused; it would be anticipating the 
 most criminative evidence. To assume the innocence of the accused, 
 would be to pass judgment upon the truth of the charge, and the 
 veracity of the accuser. No presumptions should be formed. ^For if 
 done, it is, to the extent of such presumption, an interference with 
 judicial action; a prejudice assumed without cause; a commencement 
 of the work of investigation with a mind unfitted for the task, from pre- 
 conceived opinions; from judgments preceding even the means of know- 
 ledge, and which, whether right or wrong, are only so from accident. 
 If this be correct, by what process of reasoning can the course of the 
 common law be sustained ? 
 
 There the innocence of the accused is a presumption of law ;(i) a pre- 
 sumption of the practical effect of which in the trial, an observer in 
 criminal cases alone is aware. Innocence of the accused, theii, being a 
 presumption of law — the accusation in the outset being presumed un- 
 true, the accuser's statements false, whether intentionally so or not is 
 immaterial, — the question would naturally arise, whether both, and if 
 not both, which of the two, should be heard as a witness. 
 
 The principle of impartial neutrality — blind justice, holding in her 
 hands the even balanced scales, without prejudice for or against the ac- 
 cuser or accused, would require, that each should be heard. With 
 equal means of knowledge, with equal power to instruct, with motives 
 to truth dependent on their relative situations — motives, whose existence 
 and tendency being seen in advance will be little likely to deceive — both 
 
 (i) In the Scottish law, the presumption was of guilt. " He who of his con- 
 science cannot cleanse or find innocent, he must of necessity find guilty." In other 
 words, he must be presumed guilty ; and if the jury are not convinced of his ab- 
 solute innocence, he must be condemned. Pitcairn's Grim. Trials, 19 West. 
 Eev. 167. 
 
124 APPLBTON ON RULES OF EVIDENCE. 
 
 should be heard and believed, (for truth being oftener found to exist than 
 falsehood, by the greater frequency of its existence, by so much greater 
 is the presumption of its existence,) until, from comparison of their 
 several statements, reasons for belief or disbelief shall be found. A selec- 
 tion of either, would be an infringement of the proposed neutrality of 
 the judge. 
 
 But the common law selects. Whom ? The accused, presumed inno- 
 cent ? No. The accuser, presumed a perjurer, alone is heard. The 
 accused, for whose benefit such favorable presumptions are nominally 
 made ; the accused-innocent, is rejected. It becomes then necessary to 
 examine the reasons given for the admission of the voluntary, self-serv- 
 ing testimony of the informer or prosecutor, to see if these reasons do 
 not equally justify the admission of the accused. 
 
 "The superior interest, which the public have in the punishment of 
 offenders, produces a striking difference, for the party aggrieved is allowed 
 to give evidence against the prisoner, though he is frequently permitted 
 by restoration of stolen goods, by rewards, by reimbursement of costs, 
 or other means, to derive a benefit from conviction. No injustice need, 
 however, arise from this exception, which has been found essentially 
 necessary for the purpose of public justice ; because the credibility of 
 the witness is still left to the jury, and they are able to estimate \h& pro- 
 bable influence of interest or revenge on the testimony, which he de- 
 livers."(7<;) 
 
 Whatever " superior interest," the public may have in the punishment 
 of offenders, if their own maxims are of any force, they have a much 
 superior interest in the acquittal of innocence. Much as public justice 
 may require interested testimony to prove the truth, much more does it 
 require the same testimony to prove the falsity of the charge, if untrue. 
 " No injustice need arise, because the credibility of the witness is left to 
 the jury, and they are able to estimate the probable influence of inter- 
 est." If the accuser can be safely heard, why not the accused ? If the 
 jury, " is able to estimate" the credibility of the one, why not of the 
 other ? What darkness has thus suddenly obscured the intellectual vision 
 of the jury, that with ability to decide correctly on the testimony of the 
 prosecutor, it should suddenly fail, when that of the prisoner's is to be 
 investigated ? Is the credibility of one, a matter so easy ; the other, of so 
 difficult decision ? Does interest vary its effects on their respective tes- 
 timony ? If nay, then whence this inability to decide ? If yea, cannot 
 they estimate the effects of this variation ? Is the intelligence of a jury 
 subject to magnetic influences ; positive and competent for decision, when 
 the interest of the prosecutor — negative, and incompetent, when that of 
 the prisoner is to be estimated ? "It concerneth the commufiity, that 
 crimes pass not wholly unpunished, and if the party suffering might not 
 prosecute, few besides have the certain knowledge of the fact or the dis- 
 position of bringing it to tria]."(Z) Here then may be seen, at last, some 
 slight symptoms of reference by the court, in their reasoning, to the real 
 purposes for which courts are instituted. The reason a good one, why 
 
 (k) 1 Chitty, Crim. Law, 556. Am. edition, 453. 
 {l) 1 M'Nal. on Evidence, 54. 
 
ADMISSION IN CRIMINAL PROCEDUKE. 125 
 
 not elsewhere adopted ? Does it not concern the community, that inno- 
 cence should escape, that they who have committed no crime, should 
 suffer no punishment ? As few, besides the prosecutor, might have the 
 knowledge or the disposition to prosecute ; so few, beside the accused, 
 might have the knowledge of those facts, which constitute a defence. 
 Though by " indictment of law," the informer or prosecutor, is presumed 
 to come ''-in pure m,aintenance of law and public justice ;(m) yet, as it 
 may happen, that interest, or revenge, or malice, may have induced the 
 prosecution, would not the testimony of the prisoner be as important, as 
 that of the prosecutor ? 
 
 These reasons, it has been seen, favor equally the admission of prose- 
 cutor and prisoner. To reject either, is to decide without knowledge on 
 the character and trustworthiness of unheard and unknown testimony. 
 In the absence of all legal presumptions, each should be heard. 
 
 But the innocence of the prisoner is a presumption of law. The in- 
 nocent person presents himself before the judge and demands a hear- 
 ing.(?i) Who dares to exclude the innocent ? Being innocent, he is 
 without motive to falsehood. His answers, being true, cannot deceive. 
 Inasmuch as he has no fears that any possible confusion or agitation of 
 his may be injurious, others certainly need not be alarmed. Having such 
 fears, his obvious course would be, not to offer his own testimony. Being 
 innocent, and his testimony true, proper credence may or may not be 
 given it. True. But as all testimony may be misjudged, there is noth- 
 ing peculiarly alarming in all this. But this result is not to be antici- 
 pated. The prisoner innocent and admitted, the means of right deci- 
 sion are within the power of the court ; innocent and rejected, those 
 appointed to decide have no longer even the means of arriving at cor- 
 rect results. Innocent and believed, justice, the end of all judicial pro- 
 ceeding, is done. Innocent and disbelieved, no evil has ensued by 
 the introduction of the testimony, as without it the same result, with 
 still greater certainty, would have happened, while, at all events, a chance 
 for correct decision has been obtained j a chance important as is the pro- 
 bability which truth has for credence over falsehood. 
 
 The innocent may utter falsehood. If he does this voluntarily to 
 incur punishment, it is nothing more than now he may do, by pleading 
 guilty to an unjust accusation. If, for the purposes of self-defence, he 
 utters falsehood and thereby escapes, still, as a just judgment has been 
 rendered, no very alarming evil has ensued. Justice by falsehood is 
 better than injustice by the same means. But as falsehood will belittle 
 likely to present itself to the honest man as means of escape, its exis- 
 tence in the case supposed is by no means to be presumed. 
 
 He, then, who would exclude the innocent must assume, as the founda- 
 
 (m) Gilb. Evidence, by Lloft, 221. 
 
 (ra) In the old Hebrew law, it would seem, both parties were heard. "The ac- 
 cuser and accused both made their appearance before the judge or judges 
 
 The accuser was denominated jSatore. . . . The witnesses were sworn, and in capi- 
 tal oases the parties concerned." Jahn's Bib. Archaiology, 306. 
 
 So in Greece. . . . After these preliminaries in all cases, the parties swear to 
 speak the truth, and begin personally to discuss the case. 2 Anacharsis' Travels, 
 261. 
 
 March, 1859.— 10 
 
126 APPLETON ON RULES OF EVIDENCE. 
 
 tion of his argument, the dangerous tendency of innocence to truth, and 
 of truth, as a mean of correct decision, to the cause of justice. The lips 
 of innocence are to remain forever sealed, lest perjury and lies should 
 escape. Perjury anticipated from the presumed innocent ; truth from 
 the presumed perjurer. Such is the assumption upon which the exclu- 
 sion of presumed innocence must necessarily be based. 
 
 But the accused may be guilty, and, being guilty, may testify falsely 
 to screen himself. True, but at the bar of his own conscience no guilty 
 man ever escapes. (o) The dangers and the hardships of examination 
 being such as by the common law to excuse the defendant from interro- 
 gation, will the accused voluntarily incur, nay, court those dangers ? 
 Guilty, would he voluntarily expose himself to examination ? But what 
 if, relying on his own hardihood, he should ? Guilty, he is exposed to 
 all the dangers which have been considered sufficient to exempt him 
 from any answers. Guilty, every true answer, by its truth, every false 
 answer, by its inconsistency with the true ones already given, leads to 
 conviction. Guilty, and answering falsely, his situation as accused would 
 induce no peculiar faith in his answers. There is indeed less danger 
 of crediting a perjured party than a perjured extraneous witness, inas- 
 much as the interest, being more obvious, will be less likely to deceive. 
 Guilty and a perjurer — contradicted by the accuser, by the witnesses, if 
 any, to the transaction, by the circumstances of the case, his conscience 
 unquiet — the chance of undue trust would hardly seem very great. 
 
 But suppose him believed. It is only the case of false evidence be- 
 lieved, a danger to which all false evidence is exposed, but a danger only 
 to be averted by omniscience, and therefore affording no grounds for the 
 exclusion of testimony not known to be false. Were it known to be 
 false, its introduction would obviously be harmless. 
 
 In the case above considered, the accused has offered his own testi- 
 mony, self-serving of course, else he would hardly have offered it. But 
 as, if guilty, he will be little likely to do this, shall he, when, as a mea- 
 sure of safety, he would withhold this testimony, be compelled to answer 
 such questions as may be propounded by the court or by those hostile in 
 interest to himself ?(p) 
 
 The principles of common and constitutional law alike throw a pro- 
 tection around the accused. Nemo tenetur seipsum accusare, translated 
 into our own language, has been inscribed among the constitutional pro- 
 visions of the land. The learning of the courts and the prejudices of 
 the people have both conspired to give to it a peculiar sacredness. It 
 then becomes necessary to examine its meaning, its effect, its expediency, 
 and the arguments which have been assigned in its support ; for, sanc- 
 tioned as it has been by the wisdom of antiquity,(5) the advocate of in- 
 
 (o) " Prima est iiEec ultio, quod se 
 Judice, nemo nocens absolvitur, improba quamvis 
 ^ Gratia fallaci Ersetoris vicerit uru^." — Juveual, Sat. xiii. 
 [p] No constitutional objections exist to allowing the accused to proffer his own 
 testimony. When thus offered he would be subject to cross-examination like 
 any other witness. This is now advocated in England, by Lord Brougham and 
 other distinguished jurists, 
 (j) The early state trials show that this was not the original, primitive common 
 
ADMISSION IN CRIMINAL PROCEDURE. 127 
 
 novation must show a strong claim for change, before he can expect or 
 even hope for a hearing : he must examine the question in all its bear- 
 ings ; he must erect, on solid and immovable foundations, the super- 
 structure of his argument; for he has the prejudices, which cluster 
 around whatever is — the fear and danger of innovation — and the cries 
 of the rack or torture — to encounter in his attempts at reform. 
 
 The idea of compelling a witness to prefer charges against himself 
 was never thought of; and the constitutional provision was never intend- 
 ed to guard against any such imaginary danger. The object was to pro- 
 tect entirely the prisoner from any interrogatories adverse to his own 
 interest. 
 
 Should, then, the accused, when his own interests are at stake, in his 
 own cause, in his own trial, against his wish, and for the avowed purpose 
 of establishing his guilt by his own answers, be compelled,(?') not by the 
 rack or torture, but by the ordinary process of court, and under the 
 ordinary penalties for perjury, to answer any and all pertinent questions 
 relating to the cause on trial, which may be proposed either by the pro- 
 secutor or the court ? 
 
 The objections to this testimony will come either from the prosecutor, 
 the accused, or the judge. 
 
 On the part of the prosecutor, by whom and at whose instance the 
 questions have been propounded, no objection can, of course, arise. 
 Having ample evidence to subserve his purpose, he will never call on the 
 prisoner ; without such evidence, he may, from necessity, be obliged 
 to do it. Not desiring this testimony, his obvious course is not to require 
 it ; requiring it, any objection comes with an ill-grace from his mouth. 
 On the part of the accused, the form which his objection would assume, 
 the course which he would adopt, would depend much on his innocence 
 or guilt. 
 
 The accused innocent, he would rejoice at such a rule. To dissipate 
 the clouds which encircle and surround him ; to expose, detect and refute 
 the false and calumnious charges, which have been made against him, 
 would be to him a source of pride. Innocent, he would rejoice at an 
 opportunity of stating, under the most solemn sanctions, the several 
 exculpatory facts by which such innocence would be proved. To him 
 interrogation brings no terrors. To the guilty alone is it a source of 
 dread. Every true statement of his, receiving corroboration from other 
 sources, would induce reliance upon his statements. Innocent, and whe- 
 ther his answers are or are not credited, still he suffers not by this 
 interrogation ; as in the worst event, the same result would unquestion- 
 ably have happened in their absence. 
 
 law of England. The prisoner was frequently, and even as late as the reign of 
 Elizabeth, subjected to the rack, and those whose ofSce it was to handle it were 
 " charged to use it in as charitable manner as such thing might be." In 1614, 
 Peacham, accused of high treason, was examined upon interrogatories " before 
 torture, in torture, between torture, and after torture," by a commission, of which 
 Sir Francis Bacon was a member. To show how and when this change was in- 
 troduced would, had we leisure and the necessary materials, be a labor of great 
 interest. 
 
 (?•) The prisoner should be received and examined like any other witness; com- 
 pelled as far ; examined under the same penalties as any other witness. 
 
128 APPLETON ON RULES OF EVIDENCE. 
 
 But the innocent may be confused, and such confusion may lead to 
 unjust conviction. Confusion, the natural accompaniment of guilt, is a 
 reason, not for excusing, but rather for requiring the testimony of the 
 guilty. As the innocent may be confused, lest improper inferences may 
 be drawn from this confusion, all, says the law, out of regard to the in- 
 nocent alone, should be exempted from interrogation. The danger here 
 apprehended applies only to the innocent. 
 
 Confusion is the result of consciousness of error or mistatement, or 
 inconsistency. The truth is one, uniform, consistent with itself, with 
 every other fact in the case. Ordinarily, what reason can exist for con- 
 fusion on the part of the witness uttering the truth. Hesitate he may, 
 falter he may. The very anxiety to utter the precise truth may cause 
 hesitation ; a wish to keep within the limits of the most exact correct- 
 ness may lead to caution in the operation of memory, or the selection of 
 language in which to express such operations. So that simple hesitation 
 is no sign of guilt. Those most careless of correctness are the most 
 fluent; so that simple hesitancy is no proof of crime. Besides, the witness 
 may have time to collect his thoughts, to revive his memory, and thus 
 escape any inference which might rashly be drawn from any apparent 
 confusion. 
 
 But what is the purport of this argument ? That all should be ex- 
 empted from interrogation, lest perchance the innocent, with truth on 
 their side, should be confused in its utterance, and that confusion be 
 mistaken for guilt ? The very announcement of such a proposition tends to 
 its own refutation. So cautious and regardful are- you of truth, that, 
 lest the utterance of truth should overwhelm her with confusion, you 
 doom her to eternal silence. The innocent, will he say, " True I am 
 innocent, and for that very reason dare not answer, lest I may be con- 
 fused and this confusion of mine be mistaken for guilt." Were the 
 argument valid, confusion would be the result not of guilt but of inno- 
 cence ; the proof not of falsehood but of truth. Let it be so ; confusion 
 a sign of innocence; and still the innocent would be equally anxious to 
 be examined and heard, (s) 
 
 But he may give contradictory or false statements, or may be unable 
 to explain the inculpatory facts alleged by his opponents. True. What 
 then ? Because his answers may be unsatisfactory, or his explanations 
 insufficient, should you therefore refuse to examine him ? What they 
 may be, can only be known by inquiry. And whatever danger there may 
 be in receiving the deliberate answers of a witness prepared for examin- 
 ation, that danger is certainly insignificant compared with that of intro- 
 ducing his loose, casual conversations or unheeded remarks,(A without 
 explanation of the time, manner or circumstances under which they were 
 made. 
 
 Of all assumptions, the most monstrous is that of the dangers of in- 
 
 (s) " The president (by the Code Napoleon) may ask from the witness and the 
 accused all the explanations which he shall deem necessary for the manifestation 
 of the truth." 
 
 {t) Admissions and confessions of the excluded prisoner are every day received. 
 The inconsistency of this admission will be hereafter more fully examined. 
 
ADMISSION IN CRIMINAL PROCBDUEB. 129 
 
 vestigation to innocence j of a reluctance on the part of the honest to 
 exonerate himself, through fear of increasing the chances of conviction 
 by that very attempt. The rule, then, was not adopted for the benefit 
 of the innocent ; for on their part there is no reluctance to testify, because 
 they cannot be endangered by their testimony; not for the benefit of 
 the court, for where there is no motive for perjury there is risk of de- 
 ception. 
 
 The accused, guilty and subjected to interrogation, («) will either be 
 silent, or his answers will be entirely true, or false, or mixed, embracing 
 both truth and falsehood, as may seem most conducive to his own safety. 
 
 If, in answer to interrogation from either the judge or public prose- 
 cutor, he be silent, — for he may be so, — it is at the risk of that inference 
 which is ordinarily drawn from silence. He would obviously answer, 
 were such answer to be favorable to his own interest. If^Jheivwith an 
 opportunity fox-exeulpation, — if exculpation be possible, — if, with tTie 
 opportunity of asserting, and, so far as his solemn asseverations can be of 
 any avail, of establis hing his innocence, hewill_not avail himself of 
 that opportunity, what is it^ but an admission that an answer would be 
 dangerous; that he even~ prefers the natural inference of guilt froih 
 silence" to answering. If, then, knowing this inference will be drawn, 
 he^prefere it should be, what is it but an admission of its correctness. 
 Silence is tantamount to confession. He cannot object to this con- 
 clusion, as a word from his mouth would remove all injurious inferences. 
 He is silent then; because, if he answers truly, he must either convict 
 himself of this or some other crime. If of this, then the inference is 
 just; if of some other crime, that crime must be greater than or equal 
 to that of which he is accused ; for, if less, he would admit such lesser 
 crime in preference to this inference.' If greater, and he chooses 
 
 («) The code of Louisiana authorises the examination of the prisoner by the com- 
 mitting magistrate, notwithstanding their constitution provides " that the accused 
 shall not be compelled to give evidence against himself," bat they are not under 
 oath; thus depriving the courts of that sanction for truth ; a sanction the more 
 necessary in proportion to any supposed tendency to falsehood. But even by this 
 code, the prisoner is not examined on the final trial; thus depriving the jury of 
 all the advantages which can be obtained from publicity of examination ; wnile, 
 at the same time, there is a restriction as to the interrogatories which may be put. 
 " 1st. He must be informed that, although he is at liberty to answer in what man- 
 ner he may think proper to the questions that shall be put therein, or not to an- 
 swer them at all, yet a departure from the truth or a refusal to answer, without 
 assigning a sufficient reason, must operate as a circumstance against him, as well 
 on the question of his commitment as of his guilt or innocence on the trial. 
 
 "2d. The magistrate shall next put the following interrogatories : What is your 
 name and age? Where were you born ? Where do you reside, and how long have 
 you resided there? What is your business or profession ? Where were you when 
 the act or omission, of which you were accused, is stated by the witnesses to have 
 taken place ? Do you know the persons who have been sworn as witnesses on the 
 part of the accusation, or any,, and which of them, and how long have you known 
 them ? 3d. Give any explanation you may think proper of the circumstances 
 appearing in the testimony against you, and state any facts that you think will 
 tend to your exculpation. 
 
 " 4th. These answers shall be reduced to writing by the magistrate," &c. 
 Livingston's Criminal Code — Code of Procedure, ch. 4, art. 173. 
 
 So far all well; but the examination should be unrestricted, in open court, 
 before the jury, and under oath, like those of the accuser or any other witness. 
 
130 APPLE ILON ON RULES OF EVIDENCE. 
 
 silence, it is because he prefers the punishment of the crime charged to 
 that of the crime of which he is really guilty ; so that even here no 
 injustice is done. The prisoner suffers, and justly, though not for 
 the crime committed. For, by the hypothesis, his answers, showing the 
 greater, would disprove the lesser crime. So that he would suffer only 
 for the less by silence. But however that might be, if he prefers this 
 inference, whether it be correct or not, he has the right of choice. He 
 may plead guilty, or he may be silent, when innocent ; but he should 
 not, therefore, he either exempt from pleading or answering. If guilty, 
 and in answer to interrogatories, he discloses his guilt, the causes, 
 motives, time, place and circumstances, — what stronger and more con- 
 vincing proof can be desired ? Prom his own mouth, — in open court, 
 with the result of such avowal distinctly in view, — he unqualifiedly 
 confesses the crime. That such avowal, if false, would be made, is not 
 to be supposed. If there be any principle of human action which never 
 sleeps, which never tires, — which, at all times and places, and in the 
 minds of all, is in unceasing action, — it is that of self-interest. If there 
 be any danger so remote and contingent as not to enter into our calcu- 
 lations of human conduct, it is that an individual of sawe mind will 
 ever deliberately inflict harm on himself. Besides, were this chance 
 ever so great, its existence is neither obviated nor even lessened by 
 excluding his examination ; as the accused here likewise may, if he 
 choose, plead guilty. 
 
 If, unwilling to confess or to hazard the inference arising from 
 silence, he prefers to answer, he will so shape his answers, as they may 
 best conduce to his escape. The prisoner interrogated will naturally 
 state the truth ; for it is easier to resort to the memory than to the 
 imagination; easier to relate what has happened, than, at a moment's 
 warning, to give a consistent story of what has not happened. The 
 accused will never deviate into the regions of falsehood, when his pur- 
 poses can be subserved by truth ; so that the staple, the main portion of 
 his testimony, will be true. Whenever the truth will lead to detection, 
 falsehood may be expected, and that in the least possible quantities, 
 from the danger of an unnecessarily enlarged admixture of so hazardous 
 and difficultly managed an ingredient. It was the remark of a sagacious 
 scoundrel, that a lie was too precious to be used except under the most 
 urgent necessity. As in poetry, "nee deus intersit nisi digniis vindice 
 nodus," so in testifying, the rogue of shrewdness never uses the dan- 
 gerous weapon of falsehood except when under the pressure of the 
 most imminent danger. The fool may be more rash, but his rashness is 
 folly. His story then will present an admixture(t>) of truth and false- 
 
 (v) "When on a trial all the witaesses tell lies, what are you to do? Is the 
 criminal to escape, and are you to employ your time in the trial of the witnesses? 
 In England, you would acquit the prisoner and try the witnesses. , In India, you 
 must convict or acquit the prisoner, on the strength of that portion of truth which 
 you can pick out of the compound mass of truth and falsehood. There is not 
 such a thing known in Bengal as a deposition which does net blend them 
 together." Tytler's Considerations on the Present State of India, vol. 2, p. 106-7. 
 
 Is not human nature the same on the shores of the Ganges, the banks of the 
 Thames, and the Atlantis coast? and could not the grains of truth' be picked out 
 as well by an English and American as an Indian jury? 
 
ADMISSION IN CRIMINAL PEOOBDURB. 131 
 
 hood variously commingled, and new dangers will arise from the con- 
 flicting elements of his story. The truth, by its consistency with other 
 true facts proved ah extra ; the falsehood, by its inconsistency with the 
 true facts asserted, will both unite to convict him. The lie or the truth 
 are both pregnant with dangers. 
 
 Fearing, then, to utter a falsehood, he may attempt evasion. If he 
 evades — question after question is propounded, till from one evasion to 
 another, he resorts either to silence — to silence with the inference 
 arising therefrom, seen and admitted, and preferred to language — or to 
 confession, the strongest and most satisfactory proof — or to falsehood — 
 thus affording another evidence of guilt. Question after question is 
 plied, till the abashed and confounded miscreant is at length driven to 
 his refuge of lies — the last hope — the desperate shift of the self-con- 
 victed delinquent. But to him falsehood is full of peril — is encircled 
 with ruin. He is surrounded by dangers, which as they cannot be 
 foreseen, so they cannot be guarded against. Detection, contradiction, 
 refutation, may spring up from any quarter. Like Orestes, chased by 
 the furies, the false witness, turn whither he may, is still haunted by 
 the lies he has told. 
 
 That then the accused, if guilty, should object being placed in an 
 attitude so dangerous to him, because he is guilty, is what might have 
 been expected. Just as much as he would wish to escape punishment, 
 just so far would he wish to avoid saying or doing, or having others say 
 or do, what might lead to its infliction. His objection to testifying, is 
 an objection to punishment. Whether the testimony, which proves his 
 guilt, should come from his own or the lips of another, is immaterial; 
 or if material, the preference would seem to be, that it should come 
 from his own, inasmuch, as from so friendly a source, it cannot but 
 happen, that his story will be narrated in the most favorable manner — 
 more favorable, than by any other witness, however disinterested he 
 might be; that he will take care, that all facts, which may seem to 
 lessen the appearance of guilt, or if guilty, which tend to lessen the 
 apparent atrocity of the crime, will be fully set for,th. So far, therefore, 
 as condemnation is the result of his own evidence, so far he may be 
 assured, that there will be no misrecollection, no forgetfulness, no mis- 
 statement of what may serve, or be thought to serve his interest ; he 
 being judge of those interests. Adverse interests, prejudices, perjury, 
 may be urged against all other testimony; but the prisoner can never 
 urge these against his own statements. 
 
 If then the hardness of giving this testimony, if any supposed pun- 
 ishment, its probable consequence, be a valid argument against requiring it 
 from the prisoner — it is an argument equally valid, against requir- 
 ing it from any other source. The punishment is the result of the ( 
 facts proved, and whether those facts come to the cognizance of ' 
 the court from one source or another, from the accuser, the accused, 
 or from extraneous witnesses, it makes no difference. Whatever 
 objection he may have to testifying himself as to facts, which may 
 lead to his punishment, he will have the same to this testimony 
 
132 APPLETON ON ETJLBS OF BTIDENCB. 
 
 from any other source. This argument, if valid, would exclude all 
 testimony. 
 
 Further, if the prospect of punishment, resulting from the disclosure 
 of facts, be a valid reason for excusing from, or not compelling such dis- 
 closure, much more should it excuse him from all punishment. If the 
 hardship of disclosing excuses, why punish at all ? The hardship of 
 suiFering the punishment of the law is greater than that of disclosing 
 such facts, as may lead to such suffering. He who would exonerate the 
 prisoner from the lesser, most unquestionably should from the greater. 
 The hardship of disclosing is only the fear, the anticipation of its 
 onerous results; but, if the fear of such results be a ground of exemp- 
 tion, much more are the results. The punishment is greater than the 
 fear of it. If the dread of it be a valid reason for withholding the 
 means requisite to obtain the necessary proof to authorize its infliction, 
 much more is it a reason, why such punishment should never be borne. 
 The more burdensome punishment is than its anticipation, so much 
 stronger the argument for exemption from all punishment — than that 
 for excluding the proof by which guilt may be established. 
 
 Evidence is offered for the purpose of punishment — the punishment, 
 the object of its introduction is urged as an argument for not receiving 
 it. The law punishes for the omission, or commission of certain acts — 
 this punishment is hard to be borne, else it would cease to be punish- 
 ment — therefore, because of its hardness, you are excused from disclos- 
 ing, what may lead to such unpleasant consequences. The law, the 
 reason for its own nullification. A man is tried with the avowed intent 
 of subjecting him to punishment — the means of ascertaining guilt are 
 withheld, lest they should lead to the infliction of the punishment de- 
 sired. Because punishment is hard to be borne, therefore, it need not 
 be inflicted. Were punishment not punishment — something pleasant 
 and desirable — it would be otherwise. 
 
 The punishment to be imposed, let it be remembered, must in all argu- 
 ments on the subject be considered as just and expedient — the offence 
 for which it is inflicted, as deserving the precise penalty imposed. Were 
 it otherwise — did the act, whether of omission or commission, deserve a 
 milder, or were it entirely undeserving any punishment, the proper 
 remedy would be a repeal of such injudicious law. 
 
 The giving of testimony is attended with trouble and vexation. 
 The delivery of testimony by the prisoner is attended with no greater 
 hardship, than that of any other witness, save to the extent of fear of 
 punishment arising, or to arise from such testimony. The witness, then, 
 by the assumption. guilty, but reluctant to disclose such guilt, on account 
 of the punishment consequent thereon — for when there is no punish- 
 ment,the simple labor of utterance, a reason applicable to all witnesses, 
 is the only objection, might be supposed to address the judge, or the 
 legislator in something like the following language.(«)) 
 
 (w) In Hardre's Reports may be seen an edifying argument on this subject, in 
 tlae case, Ttie Attorney-General v. Samuel iMico. Demurrer to a bill to discover 
 certain forfeitures to the commonwealth. Hardres for defendant. " I shall con- 
 
ADMISSION IN CEIMINAL PEOCEDTJKB. 133 
 
 " 1, and not I alone, but the whole tribe of criminals — for in this 
 matter, there is a wonderful union of sentiment — I am averse to pain, 
 to suffering, to punishment. All wrong-doers have a similar aversion. 
 By subjecting me to examination, as I am guilty, it could hardly happen, 
 that I could adopt any course, which should be free from danger. In- 
 deed, were it not for the expected proof against me, you would hardly 
 inquire. What is very obvious, a matter you cannot help perceiving, is, 
 that my path would be beset with peril. Silence, you would consider 
 as a mark of guilt — falsehood, when detected, would excite your sus- 
 picions and the truth would assuredly condemn me. This prying into 
 my conduct — this investigating my doings — this eternal questioning I 
 abhor, it cannot do me any good. I should prefer the exclusion of all 
 testimony, by which my guilt, could be established. Indeed, consider- 
 ing the hardship, the law should be so ; but, if this cannot be granted, 
 deliver me from all examinations, all questionings as to any transactions 
 of mine. Thei/ will not bear it. In fine, I wish to avoid all punish- 
 ment. Truism, though it be, I have great reluctance to enduring suf- 
 fering, and wish to avoid whatever may lead to it."(a3) 
 
 The argument of hardship pre-supposes the testimony uttered true. 
 It is hard, because truth will condemn him. If false, the prisoner 
 would hardly beg to be excused from answering, lest he might commit 
 perjury. " Inquire of me, and I shall most assuredly commit perjury — 
 therefore, to save me from this sin, I beseech you, put no questions." 
 
 The legislator, or the judge, usurping the place and functions of the 
 legislature, having thus heard the reasons, why the law should not be 
 enforced — at once, from mistaken humanity, — mistaken, so far as the 
 body of ofi'enders is concerned, inasmuch as uncertainty of punishment 
 leads to increase of crime — mistaken, so far as the public are concerned, 
 
 sider the demurrer consistent with and agreeable to all manner of laws, — the law 
 of God — the law of Nature — the law of the land. 
 
 " 1. For the law of God. That not only allows, but rather commands, every 
 man to preserve himself from hurt and damage; as appears by the case of St. 
 Paul, mentioned in the Acts of the Apostles, who being accused by the orator 
 Tertullus for sedition and other crimes before the governor, answered, I am not 
 careful to answer thee about these things : in that I am not bound to answer 
 thereto. And when Pontius Pilate asked our Saviour some questions, he answered 
 nothing; whence it appears what the law of God and the god of law allows in 
 such cases of crime. 
 
 " 2. For the law of Nature. That is of the same stamp; hence the rule, N'emo 
 
 tenetur, ^c The second head I insist on is reason. 1. It is against the 
 
 common practice of all courts of justice to enforce men to answer in such cases. . 
 .... 2. There is no precedent of any such practice for twenty years and upwards 
 last past ; and disuser renders a thing absolute .... 3. By third reason it is ab 
 incongruo. It is a very incongruous way of proceeding ; for by this way the ordinary 
 way of proceeding by information and indictment would be interrupted, and the 
 rule is, Non est decurrendum ad extraordinaria ubi valet ordinarium. 4. If this were 
 allowed, what need would there be of searchers and officers to look after such things ? 
 5. Because the matter charged is a direct crime, &c., &c 
 
 "So it appears the ecclesiastical court cannot examine men upon their oaths 
 against their wills only in two cases : but not in criminal cases, as iuconti- 
 nency, &c., &c. For as the civilian says, that was inventio diaboli ad destruendas 
 miserorum animas ad inferum," ^c, S^c, S^c. 
 
 (x) " Let them prove it," says the scoundrel ; " Aye, let them prove it," is the 
 responsive echo of the judge. 
 
134 APPLBTON ON RULES OP EVIDENCE. 
 
 for they suffer by every guilty man, thus thrown upon the community, 
 and by the incitement to crime, arising from every additional instance 
 of escape from punishment — excuses the reluctant scoundrel from testi- 
 fying. Aye, not merely excuses, but if perchance in a spirit of unwonted 
 honesty, the accused should admit his guilt, he is advised, encouraged, 
 and entreated to retract his plea, and substitute a lie, and the jury com- 
 pelled to declare it the truth, even against the evidence of their own 
 senses. Nor is even this enough, but the whole armory of quibbles is 
 placed within his control and their use sanctioned, and approved, by the 
 ablest and wisest judges. (y) 
 
 Of these rules the effect is to screen the guilty, by exempting them 
 from what they most dread — ^interrogation. Were the criminals to frame 
 a code for their own special protection, their first provision would be to 
 protect themselves from all inquiry into their conduct. The present law 
 benefits the criminal, by exempting him from the dangers of detection, 
 and injures the innocent by depriving him of the benefits arising from 
 an inquiry into his conduct. 
 
 As for the judge, the only reason he could urge, would be the fear of 
 deception — for, if not deceived by testimony, no harm, so far as relates 
 to correct decision, has ensued. But as deception would only be the 
 result of incompetency, as this evidence can as well be weighed as any 
 other, he will hardly exclude the evidence for that cause. The judge, 
 who is fit for his station will never exclude any witness through fear, that 
 after hearing, he may erroneously decide — to do so, would be saying, 
 that he can decide upon the truth of a witness, better without than with 
 hearing him. (a) 
 
 The prisoner, then, should be examined, unless guilt on his part, or 
 imbecility on the part of the judge, should be considered as affording 
 valid grounds of exemption. 
 
 (y) " Whatever may be the degree of guilt, how strongly soever proved, yet if 
 the defendant is entitled to a legal advantage from a literal flaw, Ood forbid he 
 should not have the full benefit of it." Per Lord Mansfield in Rex v. Home, Cow. 
 Kep. eTS. 
 
 (z) This subject has already been discussed in previous chapters on the rules of 
 evidence. 
 
CHAPTER VIII. 
 
 THE ADMISSION OF THE AOOOMPLIOE AND OF THE PARTY TO THE 
 RECORD IN CRIMINAL PROCEDURE. 
 
 The accused, it has been seen, is not compelled to testify against, nor 
 is he received to testify in favor, of his own interests. In case of many 
 defendants, a question arises, whether, though not examinable in their 
 own cause, when their interest is to be affected, they may yet be exam- 
 ined severally, for or affainst each other. (a) 
 
 In civil causes no motives for secrecy exist. At the time of making 
 a contract it is the mutual wish and expectation of the parties that it 
 should be performed — and as a measure of precaution, its terms and 
 conditions are either reduced to writing or stated in the presence of 
 some one in whom mutual confidence is reposed. Whatever interest 
 the parties have in a contract — an equal interest they have in being 
 able to prove it — so that any deficiency of proof may, in ordinary oases, 
 be imputed to accident, rather than design. In the counsels of the 
 criminal, secrecy, the most complete and entire, is a necessary ingre- 
 dient. Self-preservation teaches him that the fewer his associates, the 
 less each know of the designs and acts of the others, the greater 
 the common security. If the crime itself, or any acts anterior or subse- 
 quent to its commission, are known to others, it is because the utmost 
 vigilance, caution and sagacity of knaves are but feeble and inadequate 
 securities against detection. If then any proof of crime exists save in 
 the bosom of those who committed the deed, it is the result of causes 
 above and beyond control. A witness may be called to attest the terms 
 of an agreement, but never to the torch of the midnight incendiary or 
 the dagger of the assassin. Contracts seek, crime shuns all proof of its 
 existence. 
 
 Important, then, as is the admission of parties as witnesses in civil, 
 still more important is their admission in criminal procedure. If testi- 
 mony be required, it must be sought for where alone it is attainable. 
 Unless those who are guilty are called on to give testimony, unless the 
 officer of justice enter the hiding-place of the vagabond and explore the 
 secret retreats of knavery for the associates of crime, he is without 
 evidence or the hope of evidence. The presence of the actors is as 
 certain as the act — that of others a matter of uncertainty. As well 
 
 (a) Some are prohibited to accuse, as women, — because of the revengeful nature 
 of the sex — pupils, soldiers in pajf, that they may not be absent from the service, 
 infamous persons, those that are bribed, &c., &c. Wood, Civ. Law, 329. 
 
136 APPLBTON ON RULES OF EVIDENCE. 
 
 might the judge anticipate the presence of the chaste and dignified 
 matron at the licentious orgies of an impure and polluted metropolis, as 
 that the crimes of the outlaw and felon should be proved by honest and 
 trustworthy witnesses alone. Testes lupanares m re lupanari, was a 
 maxim of the Roman law, arising from the necessity of the case and 
 involving principles, which should always guide in the investigation of 
 truth in similar cases. Were then the accomplice excluded, one of the 
 most important means of detecting crime and bringing it to punishment 
 would be lost.(J) 
 
 But the exclusion of the testimony of an accomplice for or against his 
 associates cannot be placed entirely on those grounds, which are sup- 
 posed to justify the exclusion of a party when his own interests are 
 directly in issue. When the testimony of a party was called for against 
 his own interests, the hardship of uttering such self-disserving testimony 
 was considered a sufficient reason for not requiring it. The accomplice 
 may testify against his associates without in any degree criminating 
 himself So far, no conceivable reason for exclusion exists. Were the 
 evidence necessary, and were he compelled to testify, he would be 
 without any motive to testify xtntruly, in favor of or against his associates. 
 Were no results beneficial to himself to ensue from his testimony, he 
 would obviously be devoid of any sinister bias in delivering such testi- 
 mony. To receive him was seen to be necessary. Receiving him, all 
 that remained was to deteriorate as far as possible the trustworthiness of 
 his testimony. It will be abundantly evident, on examination, that the 
 law on this subject is alike in direct opposition with its own recognized 
 principles and with the ends of justice. 
 
 " The evidence of the accomplice has at all times been admitted, 
 either from a principle of public policy or judicial necessity, or from 
 both."(c) * * " The pledge of the government is given that the State's 
 witness shall not be prosecuted if he make and testifies to a full disclo- 
 sure of all matters in his knowledge against his accomplices. * * In 
 England as well as in Massachusetts, those who are admitted as witnesses 
 for the government may rest assured of their lives, if they perform their 
 engagements.((^) 
 
 Were the parties in all cases subject to examination, no such rule 
 could ever have existed. The inevitable consequence of freeing the 
 parties from personal examination is, that resort is necessarily had to 
 this most suspicious evidence. Lest the tender and delicate sensi- 
 bilities of the criminal (for if not a criminal the objection is inappli- 
 
 (b) Obvious as this necessity is, yet in some countries they have attempted to 
 administer the law without resorting to this evidence. 
 
 * * " To avoid the danger of false swearing, we enlarge the provisions of the 
 law, by which it was forbidden to put the accused upon his oath as to himself hut 
 not as to others. Now we absolutely /oriW in future that any one who is proceeded 
 against at law, should be put on his oath, whether as regards himself or others— 
 whether those others be accomplices or not, in any case or circumstances whateeer, 
 even though the accused should desire to be put on his oath to clear himself." 
 Beform of Criminal Legislation in Tuscany, 1786. 
 
 (c) 9 Oowen, 709, The People v. Whipple. 
 
 {d) 10 Pick. 493, Com. v. Knapp. Unless he be the first contriver of the plan- 
 in which case he shall not be pardoned. 3 Ellis, Polvnesian Researches, 140. 
 
ADMISSION OF ACCOMPLICE, ETC. 137 
 
 cable) should be wounded by the importunity of interrogatories, 
 another whose guilt is admitted, is turned loose on society. To procure 
 the chance for the conviction of one, whom the law assumes to be 
 innocent, another, whose guilt is unquestioned, is pardoned. So that 
 to the punishment of one malefactor, the acquittal of another is an 
 indispensable condition. Prom mistaken humanity the party is ex- 
 cluded. To remedy this mistake the pardoned accomplice is admitted. 
 The pardon is granted because "the witness, who is not bound to 
 criminate himself, does so in order to discover greater offenders." (e^ 
 That greater offenders may be discovered — the reason. But as to that 
 fact, should implicit reliance be placed in the self-accusing criminal ? In 
 the case of a joint indictment, the testimony of some one of those thus 
 indicted may be required for the conviction of his fellows. It may fre- 
 quently happen that one is entirely innocent; and if not so, there are always 
 gradations in guilt. The testimony of the supposed guilty, but really 
 innocent defendant, is receivable only on condition of his admitting his 
 guilt. To qualify himself for a witness he must commence with a lie.(y') 
 Were he guilty, or, being innocent, would he only acknowledge guilt, 
 he is received. Innocent and assisting innocence, he is excluded. Ad- 
 mitting his guilt, that furnishes an unanswerable ground for admission. (^) 
 But this is not all. Who of those indicted will offer his testimony ; 
 The guilty or the innocent ? The guilty most assuredly. The innocent 
 never. The guilty man has every motive, the innocent none. Being 
 innocent, what can he disclose ? Or if it should so happen that any 
 facts transpired within his knowledge, will he assert a falsehood, the 
 only terms upon which he is admissible, or will he not rather rely on 
 his innocence ? The guilty having every thing to gain and nothing to 
 lose, and the greater his guilt the greater his inducement, will proffer 
 his testimony against his supposed fellows. The real thief utters the 
 loudest cry and is the most zealous in the pursuit, hoping thereby to 
 avoid any suspicion of his own delinquency. Thus is it, innocence, 
 unwilling to bear the imputation of crime, is excluded. Guilt, enticed 
 to further crime by impunity for the past, is received, pardoned and 
 heard. 
 
 (c) 9 Cowen, 911, People v. Whipple. 
 
 (/) " In Sir Peter Crosby's case in the Star Chamber, it was ruled, that if two 
 defendants be charged for a crime, one shall not be examined against the other 
 unless the party examined confess himself guilty, and then he shall be examined " 
 1 McNally's Ev. 195. 
 
 (g) It would seem some had intimated that they were hardly trustworthy wit- 
 nesses. See how indignantly the law frowns at such a suggestion I 
 
 " It is said, they are not probi testes. (Some folks will say any thing.) They 
 are probi testes et honesti too ; for in case of an approver, that man that accuses his 
 brethren upon the same treason, of merit and Justice, the king ought to grant him 
 a pardon; for they that discover the traitors against the commonwealth are cer- 
 tainly ^roi? testes, and this is no objection to them in that, but as before they 
 were legates testes, so they are probi testes : and good and competent in this case " 
 1 McNally, Ev. 193. 
 
 Where there are many defendants — and one does not accuse himself but 
 accuses a co-defendant, he is not a competent witness to condemn his compan- 
 ion — but if he had accused himself, then he should be received to condemn his 
 companion. Anon., Noy, 154. 
 
138 APPLBTON ON KULES OF EVIDENCE. 
 
 Nor is this all. Where the reason, such as it is, is totally inapplica- 
 ble, the law is the same. In the case of a verdict against one of several 
 defendants, the defendant thus convicted is not compelled to testify 
 against the others except under the implied promise of a pardon. (A) 
 The witness being convicted, the results of the most self-criminating 
 evidence have ensued. No conceivable motive to perjury, no sinister 
 interest — no supposed hardship exists. Falsehood for or against the 
 prisoner will in no way subserve his interests, yet the witness so situated 
 is excluded, unless to procure his evidence, a sinister interest adverse to 
 the prisoner is created specially to authorize his admission — unless the 
 convicted felon is pardoned with the hope and upon the contingency that 
 he may by his testimony convict one whom the law itself presumes in- 
 nocent. 
 
 The pardon is granted, provided, in the opinion of the judge who pre- 
 sides, he mate a '■^full and fair disclosure," in other words, provided 
 the testimony be adverse to the prisoner, for if the witness vary in his 
 statements or refuse to testify as he promised, he is treated as a violator 
 of his contract, and convicted by means of his previous qonfessions^t) — 
 so that it is the necessary result of this provision, that he testify ad- 
 versely to the prisoner. Any different testimony ensures his conviction. 
 The contract is that provided his testimony be adverse to the prisoner, 
 whose innocence is presumed, he shall be discharged. 
 
 The reason of this anomalous admission is founded in the presumption 
 that, after and as a consequence of this pardon, he will speak the truth. (/■;) 
 If correct, a reason of unquestioned validity; but whence arises this 
 presumption ? Is it any greater before than after this implied promise 
 of pardon ? Is the testimony different, when delivered under this hope of 
 pardon, from what it would have been without such promise ? If nay, 
 if the expectation of pardon does not vary the testimony of the witness, 
 then it follows that the pardon has effected no good whatever. 
 
 Is his testimony different ? If the promise of pardon afford any pre- 
 sumption of truth, then he is to be believed who, by the supposition, 
 regards not the obligation of an oath, and who utters the truth only as 
 he is rewarded. In all cases he is without any legal, that is, pecuniary 
 
 (A) This is not because of the conviction — for until judgment, the conviction 
 does not exclude. The law on this subject is fully examined in the People v. 
 Whipple, before cited, where the court decided, that if Strange, who had been 
 convicted, should be called against Mrs. Whipple, that it would be necessary to 
 pardon him. 
 
 (i) 10 Pick. 484. Com. v. Knapp, 
 
 {h) " The law presumes that if admitted to testify, he will speak the truth." 
 9 Cow. 715. 
 
 A presumption, the meaning and effect of which may be judged by the follow- 
 ing authorities. 
 
 "It is an invariable rule, that unless some fair and unpolluted evidence corro- 
 borate and give verisimilitude to the testimony of an accomplice to recommend to 
 the mercy of the crown, a prisoner convicted under such circumstances." McNally'a 
 Bv. 204. In this way both escape. 
 
 " It is not usual to convict upon the evidence of one accomplice without con- 
 firmation : and in my opinion it makes no difference that there are more than one!^ 
 Per Littledale, J., in Rex v. Noakes, 5 Carr. & Paine, 326. Tide 6 C. & P. 391, 
 
 Rex V. Addis. Such is the confidence reposed in the testes legates et probi such 
 
 the value of this presumption. 6 C. & P. 681, Rex v. Webb. 
 
ADMISSION OF ACCOMPLICE, ETC. 139 
 
 interest in the result of the trial of his associates, for the dignity of the 
 crown forbids the paying or the receiving costs. What then has caused 
 this supposed difference of testimony ? Before the promise it would have 
 been favorable; after, it becomes adverse to the prisoner. Without the 
 promise, he has no motive adverse to the truth ; with it, he stands pledg- 
 ed to a particular course of testimony, caused by the assumption, by this 
 very promise — so that the law prefers bought to unbought, bribed to un- 
 bribed testimony, and that too where life is the premium for perjury. 
 
 If it should be said that this is the only mode in which this evidence 
 can be obtained — lamentable indeed would be that administration of jus- 
 tice, when the law, neglecting the means of its own enforcement, should 
 stoop to bribe the assassin and malefactor, and to extinguish the last 
 vestige of honesty by rewarding them with impunity. But it is not so. 
 If the testimony of one defendant, when called for against his codefend- 
 ants, should in no way affect his interest, then no reason for exemption 
 can be given, which does not equally apply to every other witness. If 
 it should in any degree be self-criminative, it has already been seen that 
 the hardship of uttering such testimony affords no reason for exemption 
 when one's own case is on trial, and still less does it when the fate of 
 another is in issue. The benefits of general admission in this case are 
 incalculable. In this way alone, all conflicting and opposing interests are 
 heard, and the several acts of each as stated by himself, by his associates 
 and by the witnesses of the prosecution, accompanied by every palliative 
 suggestion that self-interest, by every criminative assertion the zeal and 
 animosity of the prosecutor can suggest, are fully and distinctly set forth. 
 By this course all is made known — and the judge or jury decide after 
 being enlightened and instructed by all the information which exists in 
 relation to the facts — the only proper course to be adopted unless the 
 truth bewilders — unless a knowledge of the facts be considered undesira- 
 ble — a position which, unfortunately for the cause of justice, receives too 
 much the sanction of the common law. 
 
 The common law removes all interested witnesses ^^ from testimony^ 
 to prevent their sliding into perjury ; as it can be no injury to truth to 
 remove those from the jury whose testimony may liurt themselves and 
 can never induce any rational belief."(Z) It removes the criminal, " be- 
 cause the credit of his oath is overbalanced by the stain of his ini- 
 quity."(TO) Such the law and its reasons. By way of enforcing and 
 illustrating these principles, the prosecuting oflScer selects an avowed 
 criminal, with whom a contractfn) is made for the delivery of certain 
 specified testimony, under the severest penalties of the law in case of 
 failure to perform the engagements thus entered into. The judge, mean- 
 while, aware as he is of the dangers of perjury in the witness, of decep- 
 tion in the jury, scruples not to sanction and approve this very course by 
 his own recommendations. 
 
 As it is in the power of the prosecutor to determine by whom the 
 
 (Z) Gilbert's Ev. by Lloft, 224. (m) McN. Ev. 207. 
 
 (n) The manner of making, tlie terms and conditions of the contract referred 
 to, and the fate of the raore-performing criminal, may be seen by referring to 10 
 Pick. 491. Com. v. Knapp. 
 
140 APPLETON ON RULES OF EVIDENCE. 
 
 station of defendants shall be occupied — as it is one never voluntarily 
 assumed, and in which there is no choice of associates — as the innocent 
 and guilty are alike liable to accusation — the innocent and those by whom 
 such innocence can alone be proved — the law in relation to the admission 
 of defendants as witnesses for each other acquires a commanding im- 
 portance. 
 
 The accomplice, from '^ judicial necessity and puhlic policy," is re- 
 ceived and examined against all his supposed associates — if being a party 
 to the record, the prosecuting officer enters a nol. pros, to procure his 
 testimony. The policy of committing evident wrong to effect a possible 
 and contingent good, has received the approbation of the law. Admit 
 the policy of calling the accomplice against his associates — the admitted 
 guilty against the presumed innocent, is it not equally necessary for the 
 purposes of acquittal to call those without interest ? The accomplice is 
 pledged to a particular course of testimony. One defendant testifying 
 for his associates has no pecuniary interest to subserve, but the reverse; 
 for wherever costs and penalties are to be paid, the more there are among 
 whom such costs and penalties are to be subdivided, the easier is their 
 amount to be borne. Infamy a reason for exclusion, yet, guilt or its 
 admission has alone procured the accomplice a hearing. The defendant, 
 whose guilt is yet a matter of proof, is excluded. The judge, wishing 
 for instruction, bribes the traitorous accomplice with life to testify against 
 the presumed innocent — without fears as to the result, and when, if decep- 
 tion ensues, innocence must perish. Misdecision against the prisoner 
 brings no terrors. No judicial necessity, no public policy interposes 
 to exclude admitted guilt, lest thereby innocence may be endangered. 
 Judicial fear is only on the alert to prevent the escape of the accused. 
 
 In case of numerous defendants, they are severally excluded from 
 testifying in favor of each other, (not because any supposed interest 
 exists, nor because any presumed infamy destroys their veracity, but 
 simply) because they are parties to the record, (o) The only ground 
 for any such rule which has any pretence to support it, is, that that fact 
 indicates, or may be presumed to indicate, some interest. When that 
 ceases to be so, when there is no interest,(p) the exclusion amounts 
 to this — that the party to the record is excluded because he is a party 
 to the record, and for that reason alone. In this case of numerous de- 
 fendants the exclusion is unsupported by any supposed interest on their 
 part — for their interest is to have as many associates as possible. Neither 
 is the witness refused because any well-grounded presumption exists that 
 he is a party to the crime, for avowed guilt is every day admitted. No 
 
 (o) 10 Pick. 57, Com. v. Marsh. "It is an inflexible rule of evidence that 
 parties to the record are not admissible as witnesses. * * The rule is raoi founded 
 exclusively on the ground of interest but on that also of public policy." 
 
 10 John. 95, People v. Bill. It is his being a party to the record that renders 
 him incompetent. 
 
 (p) 'I The circumstance of the person offered as a witness being a party to suit or 
 record is prima facie evidence of his having an interest. If it be shown, — the evi- 
 dence of interest not being conclusive, but presumptive merely, — that he has no 
 interest in the case or the result of it, it would seem to follow, as a natural conse- 
 quence, that he may be a competent witness." 3 Rawle, 409, Hart v. Hulm ; 
 Patten v. Ash, V S. & E. 116; 1 Bing. 3lQ ; Worrall v. Jones et al.; 3 Binney. 306. 
 
ADMISSION OE ACCOMPLICE, ETC. 141 
 
 matter how innocent or trustworthy the witness may be, provided his 
 name be on the record, he is, for that cause, excluded. The records of 
 a court, like the touch of the leper, are infectious. The party to the 
 crime is received — the party to the record refused. The vision of the 
 judge never extends beyonds the tautological verbiage of his own records 
 to the reasons and foundations of a rule. Interest, infamy, perjury, 
 weigh but little before the technical dangers of the truth-destroying re- 
 cord. Eegard you guilt ? No, records, lying records exclude — records, 
 too, of accusation merely — not of conviction. (§') Follow precedents, is 
 the rule, always preferring, in case of variety, those of a barbarous age, 
 of a tyrannical judge, of a despotic reign. 
 
 Party to the record a valid reason for exclusion. So be it. The reason 
 suffices only while the parties unite in asserting their innocence, and are 
 free from any proof of guilt. Let one of the accused only confess his 
 guilt, or let it be established by the conclusive proof of a verdict, and 
 the insane fear of the record vanishes. Conviction,(r) instead of in- 
 capacitating, renders the individual convicted a competent witness — a 
 meet and acceptable offering to the dainty palate of the judicial epicure. 
 It even overcomes the leprous stain of the record — like a pardon, makes 
 the felon a new creature, and renders him trustworthy. Such the won- 
 drous effects of conviction. For if not such the effect, why does the law 
 vary before and after the conviction ? The party, to be received, must 
 be convicted; convicted and judgment rendered — the purifying remedy 
 of a pardon becomes necessary. It is only while in the chrysalis state — 
 after conviction and before judgment — that he is received — and whether 
 he is then to be received is by no means so certain, for Lord Ellen- 
 borough, (s) fearing lest defendants might suffer judgment by default, re- 
 fused to admit such defendant. That from sympathy, one felon would 
 assume the guilt and bear the penalties of the law, for the purpose of 
 procuring his own admission as a witness for his associates, is a far-fetched 
 ■ami improbable supposition. Suppose it were possible that one of many 
 delinquents would thus sacrifice himself for the general good, it is by 
 no means a necessary consequence that he would be believed. The 
 friendship of Damon and Pythias one would suppose a scene of every 
 day life amid the felons of Newgate, and that to prevent its re-enaction 
 at the king's bench the witness must not be heard. 
 
 Sympathy a reason. It would seem that this sympathy is supposed 
 only to exist when the parties are bound together by the ligament of an 
 indictment. Let there be several indictments, (<) and the chain of that 
 romantic friendship is tarnished, the ties which bind these culprit 
 
 [q) One of several indicted, not admitted a witness though no evidence adduced 
 to criminate hina. Coxe's N. J. Rep. 1 ; State v. Carr et al., 1 Dev. Rep. 363. 
 
 (r) " A party in the same suit or indictment cannot be a witness for his co-defen- 
 dant until he has been first acquitted or at least convicted." 1 J. 95, People v. Bill. 
 
 (s) 5 Esp. 155, Rex v. Lafine et al. " If two were indicted, one by suffering de- 
 fault, might protect the other." The sky might fall and his lordship catch larks. 
 
 On an indictment against two for felony, and a separate trial of one of the de- 
 fendants before the other on motion of the prosecutor, the defendant not arraigned 
 is not a competent witness for the other. People v. Williams, 19 Wend. 377. 
 
 {t) An accomplice separately indicted is a competent witness either for or against 
 a witness indicted for the same offence. U. S. T. Henry, 4 Wash. C. 0. Rep. 428. 
 Maech, 1859.— 11 
 
142 APPLBTON ON RULES OF EVIDENCE. 
 
 friends in indissoluble union are broken, and the fears of the judge 
 vanish. They vanish, too, when the dangers are the greatest. For great 
 as maybe the probability of perjury in joint, it is none the less so in several 
 indictments, while the chance of deception is greater in the last case, 
 because the danger is less apparent. 
 
 But distinctions without a difference are emphatically part and parcel 
 of the common law. In case of one of several defendants being defaulted 
 or convicted, " there seems to be no good reason why he should not be 
 permitted to testify for or against the other defendants : for after convic- 
 tion he is no longer a party to the same issue."{u) If, instead of being 
 defaulted or convicted, a defendant procures a continuance, for himself, 
 he ceases to be a party to the issue which is raised between the common- 
 wealth and his fellows equally as if he had been defaulted or convicted, yet 
 in this case he is excluded. (i>) If being party to the issue is what excludes, 
 no reason can be shown why in the one case the rule should be admission, 
 in the other exclusion, Party to the record, party to the issue, — such the 
 magic terms, by which the judicial sorcerer opens or closes the temples of 
 justice as he lists. Such the cant phrases, the skilful and adroit use of 
 which gives a man the reputation of learning without the reality. 
 
 Exceptions. — The symmetricalinconsistency of the common law would be 
 marred, were there no exceptions to its general principles. Some of the most 
 important violations of those principles will now receiveabrief examination. 
 
 Trials hy information. — In this case the preliminary trial is by affidavit 
 for the purpose of determiningwhether there shall be atrial before the jury. 
 Upon a rule to show cause, the prosecutor and defendant respectively pre- 
 sent their own and the affidavits of others to the consideration of the 
 court,(«)) who grant or discharge the rule as in their view the evidence pre- 
 ponderates. Now, whatever may be the danger of hearing the parties in 
 public, and when subjected to the perils of cross-examination, it is obvious 
 that those dangers are immeasurably increased, when the same parties de- 
 liver their testimony in language carefully and deliberately studied, present- 
 ing all favorable, concealing all adverse facts, with every opportunity for 
 premeditation, without check to indistinctness, evasion, concealment or 
 falsehood, under the guidance and direction of an hired attorney, whose 
 ingenuity is brought in aid of their own to deceive, if need be, the judge. 
 Both parties present, but no questions asked. Such is the character of 
 
 {u) 10 Pick. 58, Commonwealth v. Marsh, 1 Yer. R. 431, State v. Mooney et als. 
 
 («) Though several be jointly indicted for the same oSfence, yet the indictment, 
 when the nature of the oifence is several, is also several as to each — so that it 
 would seem, that if separately tried they would be competent witnesses for each 
 other. 2 St. Bvi. 762. Although it would so seem, yet the authorities, as has been 
 seen, are otherwise. In People v. Bull, 10 Johns. 95, where two person were indicted 
 jointly for an assault and battery, one of them being tried first, it was held that the 
 other defendant was not a competent witness for him. So it was held in Com. v. 
 Marsh, 10 Pick. 57. But where two persons are jointly indicted for house breaking, 
 and one of them pleads guilty, he is a competent witness, before sentence, on the 
 trial of the other, Com. v. Smith, 12 Met. 238. So if one of the defendants being 
 fined, ^as/s it, he is admissible " the matter being now at an end as to him." Eex 
 V. Fletcher, 1 Strange, 633. 
 
 (w) 1 Ohitty, Cr. Law, 700, et seq. After trial affidavits again are offered when 
 the question of punishment comes up for adjudication. 
 
 This was intended as part of the preceding chapter. The exceptions therefore are 
 such as exist in reference to the rule by which parties are excluded in criminal 
 proceedings. 
 
ADMISSION OF ACCOMPLICE, ETC. 143 
 
 the species of evidence which, without scruple, is every day offered to 
 the consideration of the court. Is the party anxious for a verdict ? he 
 can be none the less so that there shall be no trial. Important as may be 
 the final, still more important is the preliminary trial — because success 
 in this puts an end to all further proceedings. With one cause depen- 
 dent on his testimony he is rejected, with two, received. 
 
 Attachments for contempt. — But a still more striking instance of a 
 total disregard to the general principles of the law is to be seen in the 
 case of attachments for contempt. 
 
 " It only puts the complaint into a mode of trial where the party's 
 own oath will acquit him,, and in that respect it is certainly a more 
 favorable trial than any other; for he cannot he convicted if he is inno- 
 cent, which, by false evidence, he may be by a jury; and if he cannot 
 acquit himself, he is but just in the same position as he would be in if 
 he was convicted upon an indictment or information ; for the court must 
 set the punishment in one case as well as the other : they do not try him 
 in either case; he tries himself in one case, and the jury try him in 
 the other."(x) A favorable mode of trial for the accused — but the last 
 mode to be adopted by one who has such fears of interested witnesses. 
 '< Se tries himself." ^) Is he fit trier of himself? No one should sit 
 as judge in his own case. Yet here the defendant, by his own uncon- 
 tradicted assertions, determines the cause. If he answer falsely, he is 
 acquitted. The guilty and the innocent are alike acquitted, provided 
 they will only assert innocence. In other trials, even in the perjurious 
 litigation of affidavits, falsehood may be disproved by conflicting evi- 
 dence. Here all disproval is prohibited. That this course is sufficiently 
 favorable is plain enough. The party's answer is taken as conclusively true. 
 No matter though the contempt were ever so gross and palpable — ^yet on 
 condition of simple denial, the defendant is acquitted. Were this wit- 
 ness, whose testimony is received as verity itself, called to testify before 
 a jury, they would one and all shudder at trusting their twelve 
 co-workers with such dangerous testimony. The same judge, who, 
 anticipates perjury in every word uttered by a party with all the pre- 
 cautionary means afforded by counsel, interrogation and counter-evi- 
 dence, dares not even trust a jury enlightened by the caution of his own 
 sensitive imagination with the same evidence, which he is ready and will- 
 ing to hear himself. The dangers of deception are greater in this case, 
 because, by the hypothesis, he is an incompetent judge of evidence when 
 compared with a jury. As for degrees of testimony, the j udge knows none. 
 Too false to be heard, or too true to be contradicted, are his rules. Were the 
 question to be asked if a criminal is to be heard, the answer would be, yes, 
 provided no precautionary measures are taken to prevent perjury : no, when 
 every aid to protect the jury from deception is at hand. If the road to per- 
 jury only be smoothed and made easy, a general and unlimited entrance 
 is given to the testimony of the criminal ; when there would be any 
 danger of detecting and disproving perjury, if it existed, the compassion- 
 ate sympathy of the judge refuses to receive him. 
 
 (x) Wilmot's Opinions, p. 257, 258. 
 
 (y) Una et eadem persona non potest diyersas sustinere partes. Sed alius debet 
 este Judex, alius actor, alius Reus, alius Testis. Laulerbach, Lib. 22, tit. 5, § 21. 
 
CHAPTER IX. 
 
 THE ADMISSION Or HUSBAND AND WIFE.(a) 
 
 The Roman law, and, as derived from that source, the law of Scot- 
 land and of all continental Europe, jealous of testimony, excludes all 
 
 (a) Since this was -written I am happy to find the concurrence of high judicial 
 authority. 
 
 In Stapleton v. Croft, 18 Ad. & El. (N. S.) SGT, Erie, J., in reference to the Subject 
 under consideration, remarks as follows : " It is said in Taylor on Evidence, 899, 
 that the admission of such testimony would lead to dissension and unhappiness, 
 and probably to perjury, and that the confidence subsisting between husband and 
 wife should be sacredly cherished. There is no doubt that the law most carefully 
 protects the interests connected with marriage, and that it established the union 
 of interests above mentioned for the purpose of domestic union, and excluded the 
 testimony of the wife when the husband was excluded on account of this union ; 
 and the expressions above cited, if confined to the exclusion of the wife when the 
 husband is excluded, have a definite meaning, capable of a practical application j 
 but if they are carried beyond this limit, and are supposed to introduce the ten- 
 dency to domestic discord as a ground of exclusion, they will be found to be 
 contrary to the known principles of evidence, and to be incapable of being con- 
 sistently applied. For if this ground of exclusion existed, it would apply to other 
 witnesses as well as to parties, their domestic peace being equally important. But 
 it is clear with respect to witnesses not parties, that they cannot refuse to be exam- 
 ined on any ground derived from marriage, and that husbands and wives may mutu- 
 ally contradict and discredit each other upon matters full of family dissension as 
 If the marriage was null. Even if it could be supposed that the law regarded 
 only the domestic peace of parties, and protected their confidence, still the sup- 
 posed ground of exclusion is not consistently applied : for if a husband is assaulted 
 or libelled, he may seek redress either by action or indictment. In either form he is 
 in substance the party. If he proceeds by action, he and his wife are incompe- 
 tent I if by indictment, both are admissible either to corroborate, or contradict or 
 discredit each other. Now, if the principle of excluding the wives of parties was 
 the protection of domestic peace and confidence, the wife ought to be excluded 
 equally in both cases : but she was excluded only in the action, where, as the 
 husband was also incompetent, it seems better reasoning to attribute her exclu- 
 sion to the uniform principle of union, than to suppose a regard for domestic 
 peace in the civil court to be neglected in the criminal court." 
 
 " If the question may be considered with reference to the interest of truth, it is 
 clear the exclusion of essential information as a means for finding truth is absurd. 
 It is not doubted that wives often possess essential information as to matters 
 within the usual province of a wife, and as to those conducted by her as agent 
 for her husband, and as to those which she has happened to witness. If essential 
 witnesses are excluded, there is the certain evil of deciding without knowledge, 
 and there is the probable evil of shaking confidence in the law; these evils are 
 certain, and if the notion of a compensating good in the promotion of domestic 
 happiness by rendering the wife powerless as a witness be analyzed, I believe it 
 will be found illusory. The idea that husbands generally would suborn their 
 wives to perjury, and persecute them if they spoke truth, is to my mind unworthy 
 of the time ; there is no reason for supposing that wives, if admitted, would be 
 worse treated in respect of their testimony than in respect of any other part of 
 their conduct, or be more prone to untruth than any other class of witnesses. 
 
ADMISSION OF HUSBAND AND WIFE. 145 
 
 ftom testifying who are united by the ties of relationship, of friendship, 
 or of mutual dependence and support.(6) The host and his guest, the 
 friend and enemy, the master and servant, the landlord and tenant — 
 all those connected by consanguinity or affinity — all, in fine, from whom 
 information as witnesses would be most probably derived, seem, as if for 
 that very cause, rejected. 
 
 Reasoning from that inordinate fear of pecuniary interest, which forms 
 so striking a characteristic of the English Law, it might naturally be in- 
 ferred, that its rules of exclusion would be as rigid as those of the civil 
 law. Error may be scientific — madness may be logical, erring only in 
 the premises upon which its false reasoning is based. The common law, 
 formed by the accidental opinions of difierent minds in isolated cases — 
 and without the slightest attempt at generalization — precludes all reason- 
 able expectation of science or logic in its principles, or of symmetry or 
 consistency in its several parts. While, therefore, the slightest pecu- 
 niary interest is excluded, all the relations of life, with but one and that 
 perhaps an accidental(c) exception, are received as witnesses in all cases 
 and under all circumstances. 
 
 Husband and wife "are not allowed to be evidence for or against 
 each other * * * principally because of the union of person ; and there- 
 fore, if they were admitted to be witnesses for each other, they would 
 contradict one maxim of law, " nemo in propria causa testis esse debet :" 
 and if against each other, they would contradict another maxim, "nemo 
 tenetur seipsum accusare." {d) 
 
 And if by reason of the exclusion of the wife, the husband has to suffer an adverse 
 judgment contrary to truth, and the consequent loss, he would dissent with much 
 reason from the zealous declarations that such a means for protecting the peace 
 of his family and the sanctity of his marriage was better than administering the 
 law according to the truth." 
 
 (6) Quam nemo censeatur testis idoneus in causa ubi interest ejus alterutrum 
 vincere : consequens est, ut nemo admittendus sit in causa vel propria, vel socii. 
 Ut merito repellantur pater in causa filii, filius in causa patris, aliique potestati 
 vel imperio alterius subjective, vel domestic!. Dt patroni, tutores, curatores in 
 causa clientis, pupilli, miuorisve sui testimonium dicere uon possunt. Ut suspecti 
 etiam sint amici et inimici nee non, qui jam antea in eum reum dixerunt testimo- 
 nium. Heineccii Elementa Pandectarum, pars IV. J CXL. 
 
 By the old Scotch Law, those of the same clan, the baillie, he that wore the 
 livery or was of the counsel of his lord, his servant, or tenants, &c., were excluded, 
 as well as those connected with him by consanguinity or affinity within the fourth 
 degree. Glassford's Evidence, 420, 421. 
 
 By the Mahommedan Law, evidence in favor, whether of a son or grandson, of 
 a father or grandfather, cannot be received. Uncles and brothers are not excluded 
 from giving testimony for or against each other. 
 
 The Sonnites reject all testimony between husband and wife, but the Shiites 
 adopt a different course. Slaves cannot be witneses, because testimony is of an 
 authoriiative nature ; and as a slave has no authority over his person, he can have 
 none over others. Mills' History of Mahommedanism, ch. 5, p. 359. 
 
 (c) Accidental — How near the wife came to being received as a witness may be 
 seen in one of the earlier cases. 
 
 " It is informed that C. , one of the defendants examined his own wife as a vntness ; 
 it is therefore ordered, that the plaintiff may take a subpoena against her in his 
 behalf; and if 0. will not suffer her to be examined on the plaintiff's behalf, then 
 her examination on said C.'s part is suppressed." Gary's Rep. 135. 12 Vin. Abr. 
 Evi. 2. 
 
 ((?) 1 Blacks. Comm. 443. 
 
146 APPLETON ON RULES OF EVIDENCE. 
 
 In the ease of the party, it has been seen that his interest afiFords no 
 sufficient ground for exclusion or exemption.(e) The affection one feels 
 for another, whatever may be the relationship subsisting, can never be 
 presumed greater than, or even equal to, that which he feels for himself. 
 The common law assumes its equality. Were it so, the reasoning, which 
 justifies the admission of the party, equally justifies the admission of the 
 husband or wife of the party. 
 
 But the common lawyer, not satisfied with this fanciful and imaginative 
 union of person,(/) would rest his argument on views of public policy 
 and general expediency, derived from the relationship itself. 
 
 " There are some instances where the law excludes particular evidence, 
 not because in its own nature it is suspicious or doubtful, but on grounds 
 of public policy and because greater mischief and inconvenience would 
 result from the reception than from the exclusion of such evidence ; on 
 this account it is a general rule that the husband and wife cannot give 
 evidence to afiect each other, either as it seems civilly or criminally. 
 For to admit such evidence would occasion domestic dissension and dis- 
 cord ; it would compel a violation of that confidence, which ought, from 
 the nature of the relation, to be regarded as sacred ; and it would be 
 arming each with the means of offence, which might be used for very 
 dangerous purposes." [g\ 
 
 It may then be worth our while to scrutinize with some little care the 
 grounds of that supposed policy, which requires the exclusion of evidence 
 in its own nature neither suspicious nor doubtful. 
 
 The testimony of the wife will be either for or against the husband. 
 If /or the husband and true, or if /or the husband and/a&e, there would 
 seem to be no danger, from that cause, of discord or dissension — the 
 danger to be guarded against by the exclusion. 
 
 What is assumed in and by the reason of exclusion, is that the testi- 
 mony of the wife, (if she be the witness,) in the case supposed, will be 
 adverse to the wishes and interest of the husband, and vice versa, and 
 that being adverse, its utterance will induce discord and dissension. 
 
 (e) " L'un des fepoux ne peut gtre appel6 en tSmoignage dans un cause qui de- 
 vient la sienne, des qu'elles int^resse son conjoint : Nullus idonms testis in re svA 
 intelliffitur." 9 Toallier, § 286. 
 
 " They cannot be witnesses because the law will not acknowledge any diversity 
 between them." Tait on Evidence, 363. 
 
 (/) A feme covert cannot be a witness against her husband quia sunt animae 
 duae in came una — for it would be if admitted an occasion of perpetual dissension 
 between man and wife. 12 Viner, Abr. 2. 
 
 {g) 2 Stark. Bvi. 103. The reasons for exclusion, as laid down in the several 
 text books on the subject, differ but little. 
 
 Phillips says, (vol. 1, p. 63,) " the reason is founded partly on their identity of 
 interest, partly on a principle of public policy, which deems it necessary to guard 
 the security and confidence of private life, even at the risk of an occasional failure 
 of justice." So Coke says, "it might be the means of implacable discord and dis- 
 sension between them, and the means of great inconvenience." Co. Lit. 6, b. 
 
 In the civil law, the same exclusion exists with a somewhat analogous reason. 
 
 "Wives and children are not admissible against husband and parents, ob feve- 
 rentiam personarum etmetum perjurii." 2 Ersk. Ins. 979. 
 
 It would seem, however, that the wife was examined in preliminary examinations 
 in criminal cases. 8 For. Quar. Rev. 281. 
 
 So too, according to the Dutch commentators. Vanderlinden's Institutes, 259. 
 
ADMISSION OF HUSBAND AND WIFE. 147 
 
 The testimony here proposed, being assumed to be adverse to the in- 
 terest of the husband, and to that of the wife, so far as their identity of 
 interest extends — will be either true or false. 
 
 If false, and against the interests of the wife so far as her interests are 
 coincident with those of the husband — then, most manifestly, domestic 
 felicity must have passed away — the twain must long ago have ceased to 
 be one flesh. The very hypothesis of perjury by the wife — of perjury 
 with all its dangers, for the express purpose of disserving the husband, 
 shows that all the reasons urged for exclusion have lost their applica-' 
 bility. 
 
 Their interests being usually identical — whenever dissension is pre- 
 sumed to arise from the circumstance that the testimony of one is adverse 
 to the interest of the other — such testimony, being that of an unwilling 
 witness and being true, is manifestly evidence upon which the utmost 
 reliance may be placed. The testimony of the wife being against her 
 own and her husband's interests and true, and known by him to be true, 
 will it introduce or even tend to introduce implacable dissension ? The 
 father or the son, the brother or the sister, are every day called as wit- 
 nesses, and no evil whatever ensues. Litigation necessarily implies testi- 
 mony variant from and opposed to the respective interests of the several 
 parties in the cause ; yet how rarely does a witness excite any ill will by 
 uttering the truth. Were the supposition correct, the peace of society 
 would be destroyed by the very means adopted for its preservation. The 
 testimony in this case being uttered in accordance with the fact and in 
 obedience to the law, and being known to the husband to be true — will 
 domestic peace thereby be destroyed — implacable dissensions arise ? Is 
 the husband one whose affections are lost or even weakened by uttering 
 the truth ? If so, they are hardly worth preserving. If so, his children, 
 who are equally under his control while under his roof, should be ex- 
 cluded. 
 
 But if the proposed reforms are carried into effect, the husband will 
 likewise be a witness. Being a witness, his testimony coincides or con- 
 flicts, in a grtater or less degree, with that of his wife. If they testify 
 truly and in accordance with each other, no dissension, unless from such 
 coincidence of testimony, can arise. If they differ, then the presumption 
 is that the husband will perjure himself, and oppress and abuse his wife 
 for not doing the same. The evil thus dreaded, what is the probability 
 of its occurrence ? The truth is known to both, and from the intimate 
 relations subsisting between them, neither can have any question, as to 
 what will be the testimony of the other. What greater check on men- 
 dacity, if both are witnesses — and if not, on dishonesty, than the know- 
 ledge that all attempts at either may be exposed, and that too from a 
 source entitled to the utmost confidence. The husband knows that his wife 
 will state the truth — that such statement, being against her own as well as 
 his interests, will be entitled to and will receive super-ordinary credit — 
 that, if a witness, his own testimony, besides being false, will, from its 
 tendency, as well as from his own station in the cause, be looked on with 
 suspicion — knowing this, will not this very knowledge deter hi^ alike 
 from perjury or dishonesty ? 
 
148 APPLETON ON BULES OP EVIDENCE. 
 
 Suppose a brutal and wicked husband, irritated because his wife has 
 uttered the truth, (what a cause for irritation !) should on this account 
 abuse his wife, is that a reason for her exemption from testifying ? Be- 
 cause the wife may be abused for performing a legal duty, is that a 
 reason for excusing her from its performance ? If it answers for one, it 
 may for all duties ; if for one person, it may equally for all persons. Is 
 the law to yield to the temper of an abandoned man ? Suppose ill treat- 
 ment may occur in rare and casual instances, will it be the usual and 
 ordinary result ; for the law is framed to meet the general and usual 
 course and not the exception ? If it may be reasonably anticipated to 
 occur in the majority of cases, what is the moral situation of that com- 
 munity, where eternal dissension in families is presumed usually to arise 
 from the utterance of truth by either adverse to the other ? If these 
 anticipations are not correct, then such legislation would be for the ex- 
 ception and not for the rule. 
 
 If correct, then arises a contest between the supremacy of the law and 
 the supremacy of a wicked and tyrannical husband, and the law yields 
 because it cannot adequately protect the wife in the discharge of this 
 legal duty. Because, while able to afford that protection in every other 
 case, in this, it finds itself weak and inefficient ; and therefore the family 
 peace of the wrongdoer is to be protected at the avowed and deliberate 
 expense of justice? What, stripped of all disguise, is the argument? 
 The husband wishes to do wrong ; the wife, by her testimony, can pre- 
 vent it, she alone knowing all the facts ; the law excuses her — does in- 
 justice — for fear, if its own decrees are carried into effect — if, what of 
 all things is desirable, justice be done — that the peace and happiness of 
 the family of the objector, so averse is he to such results, will for ever 
 be destroyed. "What is the law from which, or what is the people among 
 whom, such results from such a cause are anticipated ? 
 
 " It would compel the violation of that confidence, which ought, from 
 the nature of the relation, to be regarded as sacred." Confidence, which 
 ought to be regarded as saored, ought not to be violated. Such is the 
 truism which lies at the foundation of the rule. The argument assumes 
 the truth of the testimony proffered, for if not true, no confidence is 
 violated. The contract, whether entered into in the presence of the wife 
 or any one else, should be enforced alike in each case. The crime, 
 whether committed in the presence of the wife or the stranger, equally 
 deserves punishment. No matter by whom the facts are established — 
 when once established, the law should take its course. The reasoning 
 admits that the truth can, but asserts that it is inexpedient that it should 
 be proved by this evidence. The objection to hearing this evidence, 
 the reason for nullifying the law, is that the confidence between the 
 parties to the marriage contract should not be violated. The facts to be 
 proved are such as may be legally established by all other witnesses — 
 such as are necessary for the enforcement of the law and the preserva- 
 tion of the rights of others — such as are required in a judicial investi- 
 gation — and such as, if proved by others, violate no confidence whatever 
 arising from this relation. The objection is not to the matter proved, 
 but to the manner by which it is proved. The violation, if any, consists 
 
ADMISSION OF HUSBAND AND WIPE. 149 
 
 in the simple utterance of truth onerous to the party objecting, and es- 
 tablishing facts, the proof of which will be followed by such results as 
 the law has ordained. Whose is the confidence thus violated ? That of 
 wrong-doers or of felons — it may be. Is it desirable that the wrong-doer 
 or the felon should have either confidants or accomplices? The law 
 should afi'ord no aid direct or indirect; it should oppose every obstruc- 
 tion, every hindrance to the commission — every facility for the detec- 
 tion of fraud and crime. By its exclusion of testimony it encourages 
 fraud and crime and their concealment. Were the law otherwise, the 
 very reluctance, with which such testimony would be delivered, would of 
 itself tend to deter fraud and crime ; and the greater the reluctance, the 
 greater would be the security afi'orded the public. By this rule, one of 
 the strongest safeguards to society is at once abandoned, and the fire-side 
 converted into the asylum of rogues and felons. 
 
 "It would be arming each with means of offence, which might be used 
 for dangerous purposes." The means of offence thus dreaded, what are 
 they ? Admissibility as a witness for those who may need such testi- 
 mony — the liability to testify at the call of others — means of offence, 
 which, if sufficient for the exclusion of the husband or wife, should ex- 
 clude all, because, from the relationship subsisting between the parties, 
 they will be less likely to be dangerous in this than in any other suppos- 
 able case. If it be meant, that testimony unattainable from any other 
 source may be elicited, it is the reason of all others why it should be 
 compelled. The means of offence being in this case the truth, for what 
 purposes can it be used ? For those for which all testimony is used and 
 for those only. The testimony is true, necessary for the protection of 
 the rights of others, and would be called for to protect those rights, but 
 is excluded because the law considers such a purpose dangerous. 
 
 An unwillingness to do justice is considered a valid objection to re- 
 ceiving testimony by which alone it may be done. The peace and 
 happiness of felons is thus openly preferred to the enforcement of con- 
 tracts and the preservation of the laws. The contract made — the crime 
 committed in the presence of the son or daughter — ^the one is enforced, 
 the other punished; in that of the wife, dishonesty succeeds and crime 
 escapes. Nor is this all. The very relation may be entered into for the 
 purpose of evading the law.(/) A debt is due — a crime is committed-^— 
 the only witness by whom the facts in the case can be established, is a 
 female, — the cause presses — the female is subpoenaed — the dishonest 
 gains of the scoundrel are about being disgorged — the halter is already 
 in imagination pressing the neck of the criminal — there is but one way 
 of escape, — he marries the witness and laughs at the law with impunity. 
 
 (/) The wife of the defendant in a suit cannot be examined as a witness for the 
 plaintiff without the defendant's consent, though it appear he married her after 
 she was actually subpoenaed to give evidence in the case. 
 
 Best, C. J. " I will allow the witness to be examined if the defendant consents, 
 but not without." 3 Oar. & Payne, 558. Pedley v. Wellesley, Esq. Best, J., was 
 more liberal than Hardwick, Cb., who would not suffer a woman to be a witnesa 
 though her husband consented. Rep. Temp. Hard. 264. There was no danger in 
 the permission, as having married to exclude the truth, he would be little Ukely 
 to consent. 
 
150 APPLETON ON RULES OF EVIDENCE. 
 
 Thus far the testimony of the husband(^) or wife, as the case may 
 have been, has been assumed as adverse to the respective interests of 
 each other. But they may either require the testimony of the other for. 
 the purposes of self-protection. If so, the danger of perjury suffices for 
 exclusion. In the case of the party, its insufficiency as a reason has 
 been seen ; in the case of the wife of that party, it is still more apparent. 
 The danger, therefore, arising from this source, will not be any further 
 considered. 
 
 But whether the reason, such as it is, exists or not, the law still re- 
 mains unchanged. The marriage relation is dissolved either by divorce 
 or by the death of one of the parties ; the husband or wife are equally 
 incompetent to testify to any occurrences which happened during the 
 existence of that relation, as if qo such fact had intervened. In the case 
 of Munroe v. Twisleton,(A) which was an action of assumpsit for the 
 board and lodging of an infant child of the defendant, Mrs. Sanddon, 
 who, at the time of making it, was the wife of the defendant, but who 
 had since been divorced from him by act of Parliament and had married 
 again, was called as a witness for the plaintiff, but rejected. Whatever 
 might be the testimony of the witness, it is obvious that no domestic dis- 
 sension could arise, if adverse to the former husband ; that no reasonable 
 fear of perjury, if in his favor, existed as reason for exclusion. If then 
 she were the only witness by whom the facts could be proved, here is a 
 failure of justice — with what justification is yet to be seen. 
 
 " Miserable indeed would the condition of the husband be, if, when a 
 
 {g) " A woman living with a man as his wife has precisely the same interest as if 
 she were his wife. * * After Lord Kenyou refused in a case of life and death to 
 permit a woman living with a man as his wife to give evidence to protect her 
 life, I shall not admit her as a witness for the purpose of protecting his property." 
 Per Best, C. J., at Nisi Prius, 3 Oar. & Payne, 238. This case was overruled in 4 
 Bing. 610, Bathers v. Golendo, where it was decided, that a kept mistress is com- 
 petent to give evidence for her protector, although she has appeared in the world 
 as his wife. 
 
 If the law of husband and wife le correct, the decision, by which the mistress 
 is received, is most clearly erroneous. The more legal ties, which bind the hus- 
 band and the wife, are not easily dissolved. Not so with the mistress ; the exis- 
 tence of that union is entirely dependent on the whim and caprice of her protector. 
 The danger of falsehood from a witness so situated is infinitely greater than from 
 the wife, because her inducements are greater. She knows that the slightest act 
 on her part may dissolve their union — and if anxious to preserve it, she has 
 stronger motives to swerve from the truth to aid him, than the wife, who is less 
 dependent upon her husband. The greater the dependence on one part, the 
 greater the likelihood of perjury — to say nothing of the absurdity, of investing a 
 woman in this situation with a degree of credit, which the law refuses to the 
 wife. 
 
 It would seem that if the mistress can be safely received, a fortiori can the wife 
 be admitted. 
 
 (A) Peake on Ev. App. xlv. " I remember, in a case in which I was counsel, 
 Lord Alvanly refused to allow a woman after divorce to speak to conversations 
 which had passed between herself and her husband during the existence of the 
 marriage. I am satisfied with the propriety of that decision, and I think that the 
 happiness of the marriage state requires that the confidence between man and wife 
 should be kept for ever inviolable." Best, 0. J., in Ryan & Moody, N. P. Eep. 198, 
 referring to the case of Munroe v. Twistleton above cited. In the case last referred 
 to, Doker v. Easier, it was decided that the widow could not be asked to disclose 
 conversations between herself and her late husband. 
 
ADMISSION OF HUSBAND AND WIFE. 151 
 
 woman is divorced from him, perhaps for her own misconduct, all the 
 occurrences of his life, entrusted to her while the most perfect and un- 
 bounded confidence existed between them, should be divulged in a court 
 of justiee."(i) Nothing but the truth is here to be divulged — they being 
 occurrences entrusted by the husband to the wife. There is nothing in 
 the occurrences themselves, which forbids their proof in a court of jus- 
 tice. Indeed the law is solicitous that they shall be divulged. The 
 situation of the husband, is no more miserable when unfavorable circum- 
 stances, which are required in a judicial investigation, are proved by one 
 than another. The fact, that these circumstances were entrusted, while 
 the most perfect confidence existed, proves that they are entitled to the 
 highest credence ; it shows the value of the testimony. The misery, so 
 pathetically deplored, is neither more nor less than that which a dishonest 
 man must feel, at hearing the truth and receiving justice — misery amply 
 sufficient, in the eye of the learned judge, for exclusion — in that of the 
 unlearned layman, the most convincing argument for admission. 
 
 Notwithstanding the supposed friendship between husband and wife, 
 that friendship may pass away, and they may litigate inter sese, as well 
 as against others. Excluded when the rights of others are involved, is 
 either received when his or her own interests are concerned ? 
 
 A refusal to hear would be to permit the severest injuries to be 
 inflicted with impunity by each on the other — unless by some fortunate 
 accident a witness should be present. The wife, accordingly, in case of 
 personal abuse, is now(A) received as a witness in all stages of the pro- 
 ceedings — as otherwise she would be unable to protect herself from her 
 husband's ill usage. Were the wife called as a witness for another, the 
 danger of implacable discord and dissension would be regarded by the 
 law as a reason for exclusion. But is not the danger of dissension 
 greater, when the wife swears against her husband in her own than in 
 the cause of another ? In the one case she would be compelled, though 
 reluctantly, to testify — in the other, it is her voluntary act. Whether 
 she succeeds or not in her own case, will not ill feeling necessarily 
 arise ? The offence being the same — the punishment the same — which 
 would the husband be most likely to forgive — voluntary or compulsory 
 testimony, by means of which the same amount of suffering is to be 
 inflicted? The latter unquestionably. Nor is this all. The wife, 
 received as a witness to support her own charge, has all the feeling 
 which interest and revenge ever give — when called for a stranger, her 
 situation is widely different — whatever interest or feeling she has being 
 in favor of her husband. The bias, under the influence of which her 
 testimony would be delivered, would vary in the two eases — in the one 
 against — in the other, in his favor. He would sooner forgive her testi- 
 mony in the latter than in the former case. Yet in the latter case,, the 
 witness is carefully excluded. 
 
 Admissible and proper as may be this evidence for the protection of 
 
 H) Per Lord Alvanly in Munroe v. Twistletou. 
 
 \k) 6 Greenl. 407. Scale's case. The earlier authorities permitted the wife to 
 be a witness to ground the prosecution — but refused to receive her as a witness 
 on the trial. 1 Ves. 49. Sedgwick v. Watten, T. Ray, 1, Mary Grigg's case. 
 
152 APPLBTON ON RULES OF EVIDENCE. 
 
 the wife — the object proposed may not be obtained — the ill treatment of 
 the husband may be so great, that a divorce is the only remedy which 
 will effectually protect the wife. Litigation for protection. Litigation 
 for divorce — the latter is far the most important in its results. The wife 
 applies to the law for protection from the personal abuse of the hus- 
 band — the marriage relation is not thereby dissolved. The abuse of the 
 husband can be no longer endured-^and she applies for a divorce. 
 Heard in the first instance as a witness to facts, which, whether true or 
 false, cannot but increase the ill will of the husband — and which, not 
 being followed by a separation, expose her more than before to his 
 abuse — now, when if a divorce is granted, a separation ensues, and she 
 will be beyond his reach and control — now, when if successful, there 
 will be an end to all family dissension by the dissolution of the family 
 tie, — she is not permitted to testify. 
 
 The wife has received — the husband may require — the protection of 
 the law. The rights of the husband may be violated, and he may be 
 the only witness to their violation — he may see the adulterer in the 
 arms of his wife, and see in vain,(?) unless he will bring another to wit- 
 ness with him his own dishonor. Personal abuse may be passed over 
 and forgotten — this never. That abuse may take place in the presence 
 
 (I) State V. Gardiner, 1 Root, 485. It was decided that in a prosecution against 
 the adulterer, the husband could not be a witness, because " it is certainly diffi- 
 cult to perceive how, that discord and dissension will fail to arise, when in col- 
 lateral proceedings, testimony should be given by one, which charges directly 
 upon the other, the same crime, for the commission of which the party on trial is 
 indicted." State v. Welch, 26 Maine, 30. If the commission of the offence failed 
 to produce discord and dissension, it would seem late in the day to expect them to 
 arise from the mere giving of testimony in relation thereto. 
 
 The common law refuses to permit the husband or the wife to prove the adultery 
 of the other, whether on the trial of an indictment against the adulterer, of a libel 
 for a divorce, or when the question relates to the legitimacy of offspring. 
 
 The Mahometan law prohibits proof of this offence, or what amounts to the same 
 thing, requires four witnesses to establish it, as if it were to be expected that those 
 about to commit adultery would court publicity and invite witnesses. 
 
 " Le l^gislateur exige ici quatre t^moins, dans I'intention de rendre la verifica- 
 tion judiciaire plus dificile et plus imposaute, parce qu'ilvent, au point de vue de 
 la morale, que le musulman couvre et respecte I'honneur de son prochain, ne jette 
 pas de honte sur les deux individus coupables et sur leurs families. Le Proph^te 
 a dit ; ' Celui qui couvre le musulman son fr^re, celui-la verra aussi, son honneur 
 convert de la bonte divine au jour de la ressurrection.' D'autre part, quoique le 
 meurtre soit un plus grand crime que la cohabitation illicite, deux tfemoins sufB- 
 sent pour etablir une preuve judioiaire, par la raison que I'on ne peut se figurer 
 de cohabitation illicite sans le concours de deux coupables et d^s lors, la culpa- 
 bilite de chacun d'eux doit etre attestee par deux temoins. 
 
 " Les quatre tSmoins (pour que leur declarations soient admissibles) doivent 
 6tre parfaitement d'accord sur le moment et sur le lieu 6u ils out vu (les coupa- 
 bles et sur les autres circonstanoes de detail du fait. Si done les t6moins ne sent 
 pas d'accord sur le lieu du crime, sur le resistance de la femme, sur I'exactitude 
 du fait de cohabitation illicite, sur le lieu a I'ost ou a I'ouest de la maison, sur le 
 moment ou les coupables out ^te vus en action, sur le mode d'accomplissment de 
 la copulation, la femme, 6tant debout ou couch^e, ou tournge sur le c6te guacbe 
 on sur le c6te droit, ou placfee dessons ou dessus I'homme, etc., le tSmoiguage est 
 nul.") Jurisprudence Musulman, par Khalil Ibn-Ish'ak' traduit par M. Perron, 5 
 tome, 23 Y. 
 
 But what matters it whether a percipient witness is excluded because he or she 
 is husband or wife, or is disregarded because he cannot bring three witnesses to 
 corroborate every £kct seen by him. In either case the guilty escape. 
 
ADMISSION OF HUSBAND AND WIFE. I53 
 
 of his family, whose testimony may be used against him — but adultery 
 is emphatically the crime of concealment. The fear of destroying do- 
 mestic peace(m) and of introducing discord, which loses its influence as 
 a reason for exclusion, when that peace has been destroyed by a pas- 
 sionate and despotic husband, is seen to be all powerful when the wife 
 has inflicted deeper wounds than are ever caused by personal violence. 
 
 The husband excluded — the adulterer and the adulteress exempted 
 from testifying, when the adulterer is on trial or the husband is liti- 
 gating for a divorce — how stands the law when the question of the 
 legitimacy of the issue of that adulterous intercourse is to be settled ? 
 Why, as might be anticipated, when the law, like the offspring, is of 
 uncertain paternity. The husband not admitted to convict the adulterer 
 or the adulteress, " because it would be against common decency and 
 good manners that such evidence should be received," (n) — the wife, proba- 
 bly for the same reason excluded, when the husband applies for redress, — 
 when the question of paternity is raised, — is received from the necessity 
 of the case to prove the criminal connection. (o) The wife, a witness 
 from necessity to prove this connection, yet is not a witness to prove 
 non access — it being against "decency, morality and policy" that she 
 should be permitted to prove that factj(p) or perhaps the exclusion 
 may arise from some danger of disturbing the family peace by proving 
 that negative fact. Necessity v. common decency. The fact to be 
 proved the same, to prove the child illegitimate, necessity requires the 
 admission of the husband or wife for that purpose ; common decency 
 forbids that they should either testify to the conviction of the adulterer. 
 Necessary to bastardize the issue of that adulterous intercourse, the 
 necessity ceases when the husband prays for relief from the bonds of 
 matrimony. Decent, moral and politic, as it may be in the former — it 
 becomes the height of indecency, immorality and impolicy, to receive 
 this evidence in the latter case. The use to be made of the fact — the 
 purpose for which it is required — renders the testimony of the same 
 witness competent or otherwise, as the case may be. 
 
 The duties of the paternal relation should not be imposed when that 
 relation does not in fact exist; and when existing, the father should not 
 be relieved from their performance. The rights of inheritance are 
 based on descent. The illegitimate should not inherit as if legitimate, 
 
 (m) 5 Greenl. 408. Soule's case. 
 
 {n) 11 Mass. 442, Canton v. Bentley. The husband is not received as a compe- 
 tent witness to prove adultery on the part of the wife, even in a case inter alios, 
 because " it would be entirely against good manners and common decency that such 
 evidence should be received." It is undoubtedly against good manners and common 
 decency that such facts should exist — but the crime having been committed, it is 
 difficult to perceive why it is any more an outrage on good manners, for the hus- 
 band to prove them than any one else I The outrage is in the thing proved — not 
 in the witness. 
 
 (0) 6 Binney, 286, Comm. v. Shepherd. The mother is not a competent witness 
 to prove non access by the husband, but that being proved by other evidence, she 
 is a competent witness to prove the criminal conversation. ParJier v. Way, 
 15 N. H. 45. 
 
 {p) Cowp. 594, Goodright v. Moss. Still she is competent to prove access. 
 B. N. P. 113. 
 
154 APPLBTON ON BULBS OF EVIDENCE. 
 
 nor should the legitimate be wrongfully deprived of what of right belongs 
 to them. In the grave and important questions of paternity and inheri- 
 tance the law dimly gropes in search of the truth, aided only by the 
 feeble and flickering light of conjectures and presumptions, while the 
 husband and wife, with sealed lips, await the dubious and uncertain 
 result. If there was access, the fact is known to the parties, and its 
 avowal would little tend to the disturbance of domestic harmony. If there 
 was not, that is equally well known, and the disavowal of access would 
 hardly produce discord, for the peace of the family must long before 
 have been destroyed. 
 
 "It is a rule," remarks Lord Mansfield, (j) "founded on decency, 
 morality and policy, that they shall not be permitted to say after mar- 
 riage, that they have had no connection, and therefore that the offspring 
 is spurious, more especially the mother, who is the offending party." 
 But if the offspring be spurious, why not say it ? If the fact be one in 
 issue, why more indecent, immoral and impolitic for the mother than 
 for any one else to sayit ? It is a fact to her disgrace, and one she would 
 be little likely to admit if not true. She might assert it when it did 
 not exist, but she would never deny it when it did. The indecency, 
 the immorality, the impolicy is in the thing done. The offence is 
 neither aggravated nor diminished by the circumstance that proof of its 
 existence comes from one rather than from another. If the wife, who is 
 " the offending party," is to be excluded, no reason is perceived for the 
 exclusion of the husband, who is the offended party.(»-) But the facts 
 in cases of this description rest especially in the knowledge of the hus- 
 band and wife — and the necessity of their admission is abundantly ap- 
 parent, unless the "decency, morality and policy" of the law require that 
 spurious offspring should inherit the estates of those who never begat them, 
 or that legitimate children should be deprived of what is of right theirs. 
 
 The admission of the wife de facto, in case of an indictment against 
 the husband for forcible abduction and marriage, is another striking 
 exception to the general law on this subject.(s) 
 
 (j) Goodright v. Moss, Oowper, 591. 
 
 (r) It was held in the King v. Inhabitants of Sourton, 5 Ad. & El. ItS, that 
 neither husband nor wife could be admitted for the purpose of proving non 
 access. 
 
 " Suppose," remarks Littledale, J., " in a dispute respecting legitimacy, it were 
 an issue directed by the Court of Chancery, whether the husband and wife had 
 not had access to each other at such a time : I should say that neither of them 
 could be required to answer any question tending to prove the negative or affirma- 
 tive of that issue." 
 
 In Patchell t. Holgate, 3 Bng. L. & Eq. 100, eight years after separation the 
 wife had a -child. The court refused to receive the affidavit of the husband that 
 he had had intercourse with the wife since the separation. 
 
 The mother of a bastard child — who is a married woman — though competent to 
 prove the illicit intercourse, is not competent to prove non access. People v. 
 Ontario, 15 Barb. 286. 
 
 In an indictment for fraudulent abduction and marriage, the wife is received. 
 Eegina v._ Yore, 1 Jebb & Symes, 563 ; People v. Carpenter, 9 Barb. 580. 
 
 According to some authorities, in such case the wife would be admissible for 
 the husband. State v. Neil, 6 Ala. 685. 
 
 (s) The wife is admissible notwithstanding her subsequent assent and cohabi- 
 tation. 1 Greenl. Bv. ? 347. 
 
ADMISSION OF HUSBAND AND WIFE. 155 
 
 Whether the marriage be legal or not is the question to be established. 
 The wife de facto is received. Being the wife de facto, the probability 
 in the absence of all proof is, that she is the wife dejure — a probability 
 strong in the ratio of marriages with consent to those by force. The 
 cause comes on for trial. To admit the wife de facto to prove that she 
 is not the wife de jure — is to assume in the outset the guilt of the de- 
 fendant — to assume the competency of an incompetent witness by whom, 
 when admitted, her competency is to be established. The laws of war 
 go on the ground that neither party has a right to assume its antagonist 
 absolutely in the wrong and itself in the right. The conflicting parties 
 stand in -pari as to right by its laws. The parties litigant stand differ- 
 ently before the court. The wife de facto, for the purpose of rendering 
 her admissible, is assumed not to be the wife de jure — the husband 
 guilty of the charge — and on this assumption the wife testifies. If this 
 assumption can be made in one, why not in all cases ? If to convict the 
 husband, the marriage may be assumed to be null and void, why not 
 make the same assumption, to lay the foundation for establishing his 
 civil or criminal liability ? 
 
 In this as in all disputed cases, there are two sides ; if the wife be re- 
 ceived to prove certain facts, because by the hypothesis, which justifies 
 the exception, the knowledge of the facts to be proved by her is confined 
 exclusively to the husband and wife — then the argument arising from 
 this necessity equally establishes the propriety of permitting the husband 
 to disprove in this, as in all other cases, where the exception has this 
 foundation, the testimony of the wife against him. Necessity, however, 
 never applies to but one side of a cause. The defendant must disprove 
 the necessary but false testimony of his wife as best he can, by other 
 testimony than his own. 
 
 But the wife may fail — and the marriage be established, or the assault 
 may be disproved. The wife has in these cases testified against her hus- 
 band — and will not implacable dissension arise ? or, is it to be assumed, 
 that all complaints a,re true — and will be credited — for if not true, or if 
 being true they are not believed, then the danger which lies at the 
 foundation of the rule, applies here with extraordinary force. 
 
 The rule and its exceptions have been considered. The administra- 
 tion of the law must depend on the rules of evidence by which the facts 
 are to be elicited. The importance of the subject, therefore, affords 
 ample justification for its extended discussion. 
 
CHAPTER X. 
 
 ATTORNEY AND CLIENT. 
 
 We have already seen the felon, through the mistaken clemency of 
 the law, exempted from the dangers and terrors of personal cross-ex- 
 amination, and his domestic fireside converted into an asylum of secrecy 
 and protection. To give him entire or almost entire impunity, it only 
 remained to afford him the aid of an hired defender, (jr. accomplice ?) 
 upon whose skill, energy, and secrecy, the most implicit reliance might 
 be placed, whatever the fraud to be perpetrated, the crime to be com- 
 mitted or the punishment to be avoided ; who should not merely be un- 
 trammelled by any fears of -legal consequences or of loss of public repu- 
 tation, but whose very reputation and emoluments should depend upon 
 and be in the proportion of the number and the atrocity of the crimes of 
 those who should escape through his agency, and who should neither be 
 compelled nor even received to testify to any facts communicated to him 
 by his guilty principal. More than this, if consulted in the enactments 
 of the penal code, he would hardly dare to ask, unless the whole penal 
 legislation of the land were to be repealed. 
 
 That such should not be the law would seem to be the obvious will of 
 the legislature, as expressed by the terms of the formula, in which each 
 attorney, previous to his admission, swears that " he will do no false- 
 hood nor consent to the doing of any, and if he know of an intention to 
 commit any he will give knowledge thereof to the justices of the court 
 that it may he prevented ; that he will not wittingly nor wilfully promote 
 or sue any false, groundless, or unlawful suit, nor give aid or consent to 
 the same ; — that he will conduct himself according to the best of his 
 knowledge and discretion, and with all good fidelity as well to the courts 
 as to his clients.'Va) The words of the oath indicate most clearly the 
 intention of the legislature. They cannot mean that he shall give 
 knowledge to the court of all falsehoods and crimes, except those of the 
 client, or except those, which may be professionally communicated, for 
 that is the duty of the attorney in common with every other citizen ; and 
 it can hardly be supposed, that the attorney is so much more neglectful 
 of the ordinary duties of good citizenship — that he alone needs an oath 
 to remind him of his duty. He alone of all citizens cannot be supposed 
 
 [a) St. of Maine, 1821, c. 89, § 1. By the code of Justinian the advocate was 
 required to take an oath in every cause in which he was engaged that he would use 
 his utmost endeavors to procure for his client, that which he conceived to be just 
 — that he would not advocate a cause that he knew to be unjust, and that he 
 would abandon a defence which he should discover to be supported by falsehood 
 or iniquity. Cod. Just. 3, 1, 14. 
 
ATTORNEY AND CLIENT. 157 
 
 to require the extraordinary obligations of an oath, to expose such crimes 
 as are within his observation, whoever may be the criminal. The only 
 falsehoods or crimes, which an attorney would be loath and unwilling to 
 expose, are those of his client ; and these are what are specially provided 
 for by this oath. That he should for gain lend himself to the dishonest 
 and fraudulent purposes of his clients, seemed sufficiently probable, to 
 require special legislative interposition to prevent. Nevertheless, this 
 oath, thus express and explicit in its language — not forbidding but on 
 the contrary expressly commanding the disclosure of any falsehood, or 
 the intention of doing of any, in order to its prevention, by some magical 
 interpretation, has been construed as indicating something the reverse 
 of its obvious meaning. Fidelity to the client is required ; but is it not 
 fidelity in asserting his honest claims ? Is more than that his duty ? 
 Fidelity to the court too is required; and the very terms of the oath 
 assume there is no necessary incompatibility between them. But if there 
 were, it would seem that the duty one owes the court, as the guardian of 
 the great interests of the public, would be paramount to any duty one 
 could possibly owe a client seeking to defeat those greater interests — to 
 evade the laws or commit fraud. With the language thus explicit, to con- 
 ceal the fraud or crime of a client, would seem to be a violation of the oath 
 taken. But not merely is it not so, but from some supposed great prin- 
 ciple of public policy, the attorney is not merely exempted from, but the 
 court refuse, even if he be willing, to receive his disclosure. The sworn 
 officer of the court is the only citizen,(6) into whose not reluctant ears, 
 all fraud and crime may be poured with impunity. However willing he 
 may be, if he " know of any intention to commit falsehood, to give 
 knowledge thereof to the court ;" he gives knowledge in vain, the court 
 will not hear.(c) To admit him, to use the language of Viner, would 
 
 (6) This privilege has been extended to any person employed to manage a cause 
 as counsel. Bean v. Quinby, 5 N. H. 94, oontra, Holman v. Kimball, 22 Vermont, 
 555. 
 
 (e) An attorney, consulted as to a fraudulent transaction, is exempt from testi- 
 fying to it. In Skinner's Kep. 404, an attorney, who had drawn an agreement be- 
 tween a sheriff and his under-sheriff, was examined to prove it a corrupt one ; but 
 the Ld. Oh. Justice held him not bound to answer. See also Cromak v. Heathcote, 
 2 Bro. & Bing. 4 ; Foster v. Hall, 12 Pick. 89. 
 
 Whether such evidence would be received in equity is somewhat doubtful. In 
 Clay v. Williams, 2 Munf. Kep. 105, the marginal abstract is " Quere. Whether 
 the evidence of a person employed by both parties as an attorney or scrivener, to 
 write a bond for a fraudulent purpose, be admissible to prove the fraud ?" To this 
 quere the reporter has appended a note, most strikingly indicative of the certainty 
 and precision of legal rules. " It seems from Brookes, J., and Tucker, J., opinions 
 in this case, that they considered such testimony admissible. Eoane, J., h pointedly 
 contra; and Flemming said nothing on the point. Ideo Qucere?" Quaere — in seter- 
 numque qusere — and the inquirer gets no better solution of his doubts. 
 
 Such is the law in civil cases. The criminal law is the same. In 8 Mass. Rep. 
 370, Mr. Dane, having been summoned by the grand jury to testify in relation to 
 a forged note in his hand, which the solicitor genera] was desirous to lay before 
 the grand jury, believing that public justice might thereby be promoted, declined 
 testifying and afterwards came into court- and offered to deliver the paper to the 
 clerk to remain in his keeping, if the court should advise him that it was his duty 
 so to do. 
 
 The court say, " We can give no such advice." See 1 Phill. Bv. 132, Smith's 
 
 IVUnoH, 1859.— 12 
 
158 APPLBTON ON RULES OF EVIDENCE. 
 
 be a "manifest hindrance to all society, commerce, and conversa- 
 tion."{d) 
 
 It is obvious, that this evidence will consist ordinarily of the con- 
 fessorial statements of the client — that it will partake of the nature of 
 confessions ; and that to the extent, in which it exists and may be re- 
 quired for judicial purposes, it is precisely as important as the same 
 amount of similar testimony, coming from any other source ; and that 
 the reasons, which justify the admissions or confessions of the party, 
 apply equally in this, and would equally require the testimony of the 
 attorney, unless they are counterbalanced by important considerations of 
 expediency. 
 
 The question to be considered is not the limited or unlimited right of 
 defending all — it is the expediency or inexpediency of exempting all 
 communications made by the client, from being divulged in the course of 
 any judicial investigation whatever, in which they might be important 
 in producing correct decision. Professional prejudice as well as legal 
 authority protecting with inviolable sanctity all communications made 
 to the attorney professionally, it is for us to investigate the reasons, 
 policy, and extent of the rule. For while all the authorities agree in its 
 existence, they all differ more or less in the reasons on which it is based, 
 and the extent of its application. 
 
 " Neither counsel nor attorneys ought to be permitted to discover the 
 secrets of their clients, though they offer themselves as witnesses for that 
 purpose. This is the privilege of the cKent and not of the attorney ; and 
 it is founded on the policy of the law, which will not permit any person 
 to betray a secret with which the law has entrusted him."{e) 
 
 case. In 3 Burr. 1687, the court advised the attorney to give it back to the client; 
 but quare, as to that, where could it be in safer keeping ? 
 
 The law would seem to be different in Scotland, see Alison's Prac. Cr. L. S. 473. 
 In 6 Ves. 281, Wright t. Mayer, per Ld. Eldon, " I have never heard at law of a 
 subpoena duces tecum upon an attorney to produce the papers of hig client. I re- 
 member, in a case of forgery at Durham, a man served with a subpoena to produce 
 a forged deed. It has sometimes been done in criminal cases, but it is not a pre- 
 cedent to be followed." 
 
 The earlier authorities show the court to have doubted on this point; see 12 
 Mod. 341. Question was whether one who had been an attorney for defendant 
 should be compelled to be a witness ; Damrill, J., said, " this being a criminal 
 matter he might — but not so in a civil matter ;" but Pratt, J., overruled it. After 
 a very elaborate review of the authorities in The Bank of Utica v. Mersereau, 3 
 Barb. Ch. 535, Walworth, Oh., expresses the opinion that the privileged rela- 
 tion of attorney and client ought only to exist for honest purposes, and not to enable 
 the client to perpetrate a fraud, or to violate the laws under the advice of counsel or 
 through any professional aid, and his regrets that the law is settled otherwise. Contra 
 Follet V. Jeffery, 1 E. L. & Bq. 172. Tait on Ev. 385. 
 
 (d) 12 Vin. Ab. Ev. 38. 
 
 (e) M'Nall. on Ev. 239. 
 
 In the Roman law, " tutors and curators are, from a suspicion of parental favor, 
 accounted improper witnesses for their minors, and advocates and agents for their 
 clients, in the causes in which they are employed, but not in other causes — but 
 they may be against them — but they are not permitted to discover on oath the 
 secrets of their cause." 2 Ers. Ins. 980. Desquiron, Traits de la preuve' par 
 t^moins, 393; see Cox v. Williams, 17 Mart. Rep. 141. 
 
 The advocate, attorney, or guardian, cannot be witnesses in causes which they 
 shall defend in the name of the parties, unless produced or called by the opposite 
 party. Institutes of Spain, 324. 
 
ATTORNEY ASJ) CLIENT. 159 
 
 If then it be the client, whose interests are alone to be consulted, to 
 ascertain when and on what occasions he will object to the disclosure of 
 confidential communications, it is only required to ascertain, when and 
 on what occasions he would himself be unwilling to testify. 
 
 If the client is in the right, it can hardly happen but that his confi- 
 dential communications will show that fact. The attorney, if called, 
 will aid, and cannot injure his client, who cannot possibly have any ob- 
 jections to having his own favorable statements laid before the jury, at 
 the instance of his opponent. 
 
 It is urged, by way of argument against any change, by one of the ablest 
 as well as most liberal advocates of the rule, that many evils would 
 result from its alteration, and among others he instances the case 
 of a flaw in the title of a client, and then asks, is he bound to secrecy 
 or not?(/) The necessary implication from the supposed case is, that 
 except in cases of that class, the objection does not exist. The reason 
 of the exclusion is, lest the rightful owner should lose his title from 
 some supposed merely technical defect, having no relation to the intrinsic 
 merits of the case, which the attorney, having learnt in the course of 
 his professional intercourse, might divulge. But Ao flaws, mere techni- 
 cal flaws, vitiate just and honest titles ? If so, the obvious remedy 
 would be to repeal the law, which defeats honest titles by mere flaws. 
 The existence of a bad. law is no argument for introducing another bad rule 
 to modify or diminish its injurious effects, when it causes other evils still 
 greater than those to be remedied. The fear is, that the law will be 
 carried into effect. The law ought not to be such, that it is a result to 
 be lamented, that the title is ultimately placed where the law designs it 
 to be. If it be a real defect of tftle", so far as the ends of justice are 
 concerned, it is not, nor does this reasoning suppose it to be, a valid ob- 
 jection, that the evidence places the title in the hands of the real owner. 
 It is only the danger of the destruction of titles by flaws, that excludes. 
 Repeal that rule of law, which thus absurdly defeats the ends of justice, 
 and the objection at once ceases ; for it is not in fact an objection, so 
 much, to the admission of the attorney, as to a had rule of law, which is 
 thus made effective in consequence of his testimony. The evil is that 
 the law is carried into efl'ect. 
 
 " If he be not bound to secrecy he may without blame immediately 
 communicate his discovery to the party interested."(^) To this danger 
 an answer has already been given — repeal the law. But, flaws out of 
 the case, there is another one equally obvious ; though compelled to an- 
 swer, it by no means follows that he should volunteer his information. 
 The friend, the brother, the son, may be, nay, are, compelled to disclose 
 the most sacred and confidential relations ; but there is a manifest and 
 recognized difference, between proffering this testimony uncalled for and 
 testifying in obedience to the law, one which justifies the physician, 
 the clergyman or the friend, and would equally justify the attorney. " It is 
 
 (/) Liv. Grim. Code of Lou. 211. " It would be most mischievous if it could 
 be doubted whether or not an attorney, consulted upon a man's title to an estate, 
 was at liberty to divulge a flaw." 2 B. & B. 6. 
 
 [g] Liv. Grim. Gode of Louis, ill. 
 
160 APPLBTON ON RULES OP EVIDENCE. 
 
 founded on the policy of the law, which will not permit any person to 
 betray a secret, with which the laio has entrusted Mm." The friend, who 
 should voluntarily betray the communications of a friend, would for ever 
 forfeit confidence ; the attorney, who should voluntarily do the same, 
 would forfeit the confidence of his clients. But suppose he should, it 
 would no more prevent confidence being reposed, than would the single 
 instance of one friend becoming a Judas destroy all friendship among all 
 men. An instance of one or the other event would not interfere with 
 or change the ordinary conduct of men, but would only designate par- 
 ticular instances of mistrust. 
 
 It might be difficult to discover, how these are any more " entrusted" 
 by the law, than any other communications. But suppose they are so 
 " entrusted," it by no means follows that they should be. This is merely 
 another mode of stating the law as it is, but it furnishes no argument 
 whatever in favor of its existence. Like all the logic of the lawyer, it 
 consists in an assumption of the question at issue, which being assumed, 
 the desired inference very naturally follows. Were the law changed, no 
 confidence could be betrayed ; all communications would be in subordi- 
 nation to the general law of the land, and there could be no breach of 
 confidence, when the law compels the disclosure. The friend, who tes- 
 tifies in obedience to the law, though ever so much to the injury of a 
 friend, betrays no confidence. The same answer, which Lord Mansfield, 
 in the Duchess of Kingston's case, gave to Mr. Hawkins, would apply 
 equally here. " A surgeon has no privilege to avoid giving evidence in 
 a court of justice, but is bound by the law of the land to do it. I take 
 it for granted if Mr. Hawkins understands that, it is a satisfaction to 
 him, and a ale&x justification to all, the world. If a surgeon was volun- 
 tarily to reveal these secrets, he would be guilty of a breach of honor, 
 and of great indiscretion ; but to give that information in a court of jus- 
 tice, which, by the law of the land he is bound to, will never be imputed 
 to him, as any indiscretion whatever." Were the law changed, the same 
 reasoning would equally apply to and justify the disclosure of communi- 
 cations made to an attorney. 
 
 The writer, whom we have before referred to,{h) Mr. Livingston, puts 
 the case of an innocent individual who has been accused of theft. 
 Money, consisting of uncommon coins, has been stolen. The accused 
 has passed coins of that description. There are other circumstances 
 against him. He has no proof of the manner in which he acquired the 
 pieces in question. He is innocent, but confessed to his counsel, that, 
 about the time of the loss, he was in the chamber where it occurred. 
 The other circumstances would not be sufficient for his conviction, but 
 this added, would have that efifect. Shall it be disclosed ? Were it 
 morally certain an incorrect inference would be drawn, it should not in 
 that particular case. Were it certain in all cases of this description, 
 incorrect inferences would be drawn, the evidence is properly excluded. 
 The argument assumes that evidence will be misjudged, Is that a cor- 
 rect assumption ? 
 
 (h) Liv. Or. Code of Lou. 278. 
 
ATTORNEY AND CLIENT. 161 
 
 The fear is, that, being innocent, he will disclose certain facts, which 
 would not be otherwise known, and which would lead to an unjust con- 
 viction. It may be safely assumed, that, if innocent, his disclosure to 
 his counsel, if believed, will show that fact. The fear is, that it will not 
 be credited. The danger is of incorrect infer.ence from true testimony. 
 The argument, if good for anything, would exclude all testimony, 
 except that which excludes the possibility of error — in other words, of 
 all testimony, as there is none, about which some error may not arise. 
 The argument, if good, applies with peculiar force to the exclusion of all 
 confessions, by whomsoever related — for there is no more danger of 
 error from the same confession, coming from the lips of an attorney 
 than from the lips of a friend. 
 
 But this is the privilege of the client. Would he oppose the exami- 
 nation of his attorney, for fear his very defence, being true, and coming 
 from his own lips, would lead to his conviction ? If the facts disclosed 
 are not susceptible of proof from other sources, and he objects, (and his 
 objections are what the law considers,) to having his own explanations 
 go as evidence to a jury; were the facts proved, it would be what he 
 would of all things desire. If without proof, would he object to his 
 own statements going before a jury, because a part taken by themselves 
 might lead to his conviction ? If believed, it will be what he wishes ? 
 Will they not be believed ? Is it to be assumed, that with the pre- 
 sumptions of law in his favor, any danger could arise from the admission 
 of his statements, equal to a total exclusion of all the facts, upon which 
 he relies for defence. It is to be remembered, that the very writer who 
 would exclude the attorney, would receive the party. 
 
 The client in the wrong, his confidential communications will be 
 either true or false. If false, by the very assumption they will be 
 favorable to himself, and "being so favorable, will the client object to his 
 own favorable, self-excusing, self-acquitting statements, however false 
 they may be, for though false, they are his only reliance? The client in 
 the wrong, and his confidential communications disclosing that fact, he 
 will obviously object, but his objection is that already considered, of the 
 guilty to punishment, and of course to any evidence which may lead to 
 punishment, an objection, which if of any avail, applies with more 
 force to the punishment, after conviction, than to the evidence which 
 may be supposed only to lead to it, (an objection, the very statement of 
 which is an absurdity.) 
 
 " The foundation of the rule(i) it is not difficult to discover. It is 
 not on account of any 'particular importance which the law attributes 
 to the business of the legal profession or any particular disposition to 
 afford them protection, — but it is out of regard to the interests of justice, 
 which cannot be upholden, and to the administration of justice, which 
 cannot go on, without the aid of men skilled in jurisprudence, in the 
 practice of the courts, and in those matters affecting rights and obliga- 
 tions which form the subject of all judicial proceedings. If the privilege 
 did not exist at all, every man would be thrown on his own legal 
 
 (i) Per Lord Brougham, in 1 Mylne & Keene, Ch. Rep. 98. Greenough v. Gaskell. 
 
162 APPLBTON ON RULES OF EVIDENCE. 
 
 resources; deprived of all professional asistance, a man would not ven- 
 ture to consult any skilful person or would only dare to tell Hm half of 
 Ms case." 
 
 Suppose it be true, as is assumed, "that the administration of justice 
 cannot go on without the aid of men skilled in the law," yet as there is 
 no " particular importance which the law attributes to the business of 
 the legal profession, nor any disposition to afford them protection," this 
 affords no reason for the granting any privilege. The ability of the 
 profession may be admitted, the importance of men learned in the law 
 may be conceded, but all that affects not the privileges to be granted. 
 There is no necessary nor conceivable connection between them. The 
 privilege affords neither learning nor skill. Nor is it material for whose 
 supposed benefit it may be granted, the result is thereby in no way 
 altered. 
 
 " If the privilege did not exist, every one would be thrown on his 
 own resources." Such would be the case were there no such profession; 
 but if the profession existed, it would not. Why the loss of a privilege 
 conferred on the client should destroy the profession, is not very apparent. 
 Professional skill would as well exist, professional aid as will be given, 
 without as with the privilege. The necessity of this advice, the value 
 of his services, would be neither lost nor diminished, nor would the 
 client be any more thrown on his own resources, in the one case than 
 the other, unless he should choose voluntarily to waive resorting to the 
 profession for aid. 
 
 " Deprived o/allprofessional assistance, a man would not venture to 
 consult any skilful person, or would only dare to tell his counsel half." 
 If deprived of all professional assistance, it would be because there was 
 no skilful person to consult. If there was a skilful person to consult, 
 he could hardly be said to be deprived of all professional assistance. If 
 skilful, why should he not venture to consult him ? His skill would be 
 the same, whether law should remain changed or unchanged. 
 
 " He would not venture to tell half." (A) Why not ? Certainly not, 
 because the assistance to be obtained would be any the less skilful or 
 efficient. The counsel, to whom application was made, could render the 
 same amount of service, whether his instructions were given without or 
 with the pledge of secresy. Are the instructions withheld ? Is but 
 half told ? If so, the reason is not that the professional skill is any the 
 less, as is taken for granted it would be, but that no more than half 
 will bear telling. 
 
 " This privilege ... is the privilege not of the attorney but of the 
 client, and is founded on this consideration, that there would be no 
 safety in dealings with mankind,{l) if persons employed in transactions 
 
 {k) " It would be destructive of all business if attorneys were to disclose the 
 secrets of their clients." M'Nall. Ev. 240. Is the maximum of business the 6nly 
 object? That it would be destructive of business, if the attorney should be com- 
 pelled to disclose the secrets of his clients, may be admitted, but it would be of 
 that precisely which should be destroyed. All business is not to be encouraged. 
 The business destroyed would be that which the client dare not disclose to his 
 attorney ; and is such business to be encouraged ?' 
 
 {I) " It would not be safe for clients to communicate to the attorney all proper 
 
ATTORNEY AND CLIENT. 163 
 
 were compelled to state that whicli they have learned only by this spe- 
 cies of confidence."(m) 
 
 " No safety" the reason for exclusion. Whether there is safety or 
 not would depend on the dealings, which would form the subject 
 matter of the disclosure. As, however, there should be no dealings 
 which will not bear disclosing, and as, if there should be any such, they 
 ought to be disclosed, there would seem to be no legitimate ground for 
 exclusion, unless there should be found some great principle of public 
 policy, in concealing falsehood and protecting injustice. True, there 
 would be no safety to the corrupt,(ra) and why should there be ? The 
 honest, having nothing to conceal, would be safe; the proof of corrup- 
 tion and fraud is his only safety — its concealment, that of the dishonest. 
 Whose safety should he preferred ? Whose is ? 
 
 "No safety, if persons employed in transactions were compelled to state 
 that which they have learned only by this species of confidence \" And 
 should there be safety, if the transactions when disclosed would destroy 
 it? Are the transactions, which are learned only by this species of 
 confidence, of such a character as at once to destroy the safety of the 
 client ! If so, what transactions ! What a client ! What an attorney ! 
 What a law, avowedly to conceal for the protection of guilt. 
 
 The argument likewise assumes, that there is something peculiar to 
 this "species of confidence," which will justify a departure from the 
 ordinary principles of law. Professional aid may be required and confi- 
 dence may be necessary in the interchange of facts and opinions between 
 client and counsel. But confidence and assistance of some sort is neces- 
 sary in the ordinary and multiplied afiairs of life — in the exchanges, 
 sales, and contracts of every description, which occur in the daily trans- 
 actions of business, yet that does not exclude from courts of justice, facts 
 which may have been ever so confidentially communicated — if necessary 
 for the purposes of justice.(o) "As the law attributes no peculiar im- 
 portance to the business of an attorney,"(p) it is difficult to perceive, 
 wherein consists the difierence between the confidence which exists 
 between the physician and patient, between the confessor and penitent, 
 the trustee and cestui que trust,(^q) and indeed in all fiduciary relations, 
 
 instructions," ^c. M'Nall. 244. Not safe to communicate proper instructions! 
 They are the very ones which it would be safe to communicate. Proper instruc- 
 tions could harm no one, improper ones might. Is not the rule made to conceal 
 improper ones, the instructions of unjust clients to unscrupulous attorneys, dis- 
 honorable alike to the giver and the receiver? Who but such would object ? 
 
 (m) Per Lord Bldon, in Parkhurst v. Lowter, 2 Swanston's Rep. 216. 
 
 (n) As there is now. See 12 Pick. 89 ; 2 B. & B. 4. 
 
 (o) In the Duchess of Kingston's case. Lord Harrington objected to testify, 
 because as a man of honor and regardful of the rules of society " he could not 
 reveal what had been confidentially communicated to him." Lord Camden, in 
 answer, expressed to the court a hope that "they should not think it befitting 
 their dignity, to be debating the etiquette of honor, at the same time they were 
 "trying lives and liberties," and he was compelled to testify. 
 
 (p) Per Lord Brougham, as before cited. Broad v. Pitt, 3 U. & P. 518 ; C. J. 
 Best, — " I think this confidence in the case oi attorneys is a great anomaly in the law." 
 
 (q) By recurring to the earlier authorities it will be perceived how much exclu- 
 sion or admission is a matter of accident : 
 
 In Vent. R. Wl, Jones v. Countess of Manchesterj the witness, as trustee for his 
 
164 APPLBTON ON BULBS OF EVIDENCE. 
 
 from that subsisting between the client and attorney, and why different 
 rules should obtain in the last from those adopted in the former cases. 
 
 " They are considered identified with their clients and of necessity 
 entrusted with their secrets;"(r) "and standing in loco of the client," 
 and as the client is not examinable, the attorney, who is his legal repre- 
 sentative, is likewise exempt from examination. The unprofessional 
 agent, though equally representing his principal, and that too when the 
 most important questions are involved, is received. It would seem 
 obviously to follow, that, whenever the client is received, the attorney 
 should likewise be a witness — the reason of the rule ceasing. The rule 
 is nevertheless preserved with equally inviolable integrity. 
 
 In ohancery,(s') the party is compelled to produce his deeds and 
 papers, to utter his secret and unuttered thoughts, his knowledge, his 
 impressions, his belief. The party and his unprofessional agent exam- 
 ined, an objection would hardly seem to arise, on his part, to the exam- 
 ination of his professional agent; but such is not the csise. Instead of 
 that, the objection seems to apply with redoubled force,, 
 
 "The course of justice must stop if such a right exists, (f) No man 
 will dare to consult his professional adviser with a vie\5f to his defence 
 or the enforcement of his rights. The very case which he lays before 
 
 counsel may contain the whole of his evidence If it be said that 
 
 this court compels the disclosure of whatever a party has at any time 
 said respecting his case ; nay, even wrings his conscience to disclose 
 the belief, the answer is — that admissions not made or thoughts not 
 communicated to professional advisers are not essentially necessary to 
 the security of men's rights in a court of justice."(M) If the course of 
 justice is to stop, the argument is unanswerable. The objection relied 
 on is, that each party will be enabled to know the case of his opponent. 
 Were it so, the advantage or disadvantage would be equal and reciprocal. 
 Were the parties in the outset, before litigation had progressed, to dis- 
 close to each other their several claims and counter-claims, and the proof 
 relied on severally to sustain each ; would not innumerable lawsuits be 
 prevented ? Would it not be infinitely more conducive to the ends of 
 justice, that parties should litigate understandingly, than at every step 
 of the proceedings to incur the risk of injustice by the introduction of 
 some unexpected and perhaps untrue evidence? Why do courts of 
 equity exist ? Why are bills of discovery granted and disclosures com- 
 pelled, but that the party seeking may ascertain, and the party answer- 
 ing may give, facts which can in no other way be obtained. If the 
 party is compelled to disclose, why exonerate his agent ? The argument, 
 
 sister, had a key to a box in the custody of a stranger, containing writings impor- 
 tant for the plaintiff, which he refused to deliver up, because, as he said, they 
 would impeach the estate of his sister, and it would be a breach of his trust imposed 
 on him, which he held inviolable. 
 
 The court told him they could not compel him to deliver up the key; but Hale 
 said it would be more advisable for him to do it, &c. 
 
 M 4 Munf. Rep. 286, Parker v. Carter, M'Nal. Ev. 239. 
 
 (s) The attorney may be made a party to a bill in case of fraud ; see Bowles v. 
 Stewart, 1 Sch. & Lef. 227. Why not equally well at common law? 
 
 (i) Per Lord Brougham, in Bolton v. Liverpool. 1 Mylne & Keene, 94. 
 
 (m) Walton v. Ingolby, 1 Mylne & Keene, 61. 
 
ATTORNEY AND CLIENT. 165 
 
 if valid, applies with equal force in case of the principal as that of his 
 agent. 
 
 « The answer is, that admissions not made, or thoughts not communi- 
 cated, to professional advisers, are not essential to the security' of men's 
 rights in a court of justice." It is very obvious, that the professional 
 adviser cannot^very easily disclose " admissions not made, and thoughts 
 not communicated." But the party can, and is compelled to, commu- 
 nicate not merely all facts within his knowledge, belief or impression, 
 but " admissions not made and thoughts not communicated;" that is, 
 all that, and more than his attorney could by any possibility disclose. 
 In other words, increase the objection which is urged against the attor- 
 ney's admission, and it vanishes. If certain facts are disclosed by the 
 client, the course of justice runs smoothly on — if by the attorney, "the 
 course of justice must stop." The difference is in the lips which utter. 
 
 Were the party a witness, as in equity, the admission of the attorney 
 would be a matter of less importance than in the case of his exclusion. 
 But even then the right to his testimony would be valuable, as ope- 
 rating as a check on the client — on the attorney — conducive to the 
 mutual integrity of each. 
 
 " The attorney is obliged to conceal his client's secrets, and every 
 thing he is entrusted with is sub sigillo confessons.(y^ Being so, is the 
 confessor a witness to disclose the secrets of his confessional ? Reforma- 
 tion, not the escape of the criminal, is the object. It is the confidence 
 between man and the minister of God. The religion, and its rites, 
 being authorized by law — the permission of this evidence would be, in 
 effect, to repeal the law by which the confessional is sanctioned — would 
 be to debar the penitent from the exercise of a religious duty enjoined 
 by his faith. Are these secrets entrusted by the law ? Shall secrets 
 entrusted by the law be betrayed ?" Who does not perceive that the 
 argument for the attorney's admission applies with increased force 
 here.(w) Who does not perceive, that " policy," " entrusted by law," 
 " betraying of secrets," are the magical terms, which are potent to 
 exclude or admit, according as the judicial sorcerer lists ? — that had 
 
 (k) Bac. Abr. Ev. A. 3. The exclusion of the priest is the only one sanctioned 
 by Bentham. 
 
 (w) The common lawyer almost protects communications made to a clergyman. 
 " I for one," says Best, C. J., " will never compel a clergyman to disclose commu- 
 nications made by a prisoner; but if he chooses to disclose them, I shall receive 
 them in evidence." 3 C. & P. 518. It would seem that they are exempted from 
 testifying by statute in New York. See 13 Wend. 533. 
 
 The same reasoning, which would justify the exclusion of the attorney and 
 priest, would lilsewise justify that of the physician. The confidence reposed in 
 him is that of the sick and dying bed, it is the confidence of the chamber of death. 
 It is not reposed for purposes hostile to the best interests of society ; yet he too is 
 received as a witness, the lamentations of the jurist to the contrary notwith- 
 standing. See M'Nall. on Ev. 252 ; I M. & K. 98. 
 
 So too the friend. "It is hard in many cases to compel a friend to disclose a 
 confidential communication, and I should be glad, if, by law, such evidence could 
 be excluded." Per Buller, J., in Lendzay v. Talbot. Had the learned judge but 
 lived a century or too earlier, who can doubt that the reformer would have had 
 more exclusive rules to war against ? 
 
 By the law of Scotland the secret of the agent is the secret of the party, and 
 even when called in a court of justice, the court will shut his mouth. Kerr v. 
 Duke of Roxburgh, 3 Mur. 141. 
 
166 APPLBTON ON RULES OE EVIDENCE. 
 
 these been applied some centuries ago to the confidence of the confes- 
 sional, to that of the physician, or even of friendship, that exclusion 
 would have obtained in all those cases. 
 
 Were the law changed, what consequences would follow. The com- 
 munications of clients would be unreserved or not. If unreserved, so 
 far as regards the intercourse between client and attgrney, it would 
 remain unchanged. If all facts were not disclosed, it would be because 
 the client, being guilty, would not dare tell all. The confidence between 
 the guilty and his legal coadjutor would be restricted or destroyed. Is 
 it the interest of the public that it should exist ? The criminal, know- 
 ing that his disclosures may be divulged, will withhold them. He may 
 thus lessen his chance of escape — he may thus be crippled in his 
 attempts at eluding justice. Is that a source of fear or regret? Were 
 the attorney examinable, the relation either would not exist, or it would 
 exist within the bounds of integrity and of an enlightened public policy. 
 
 If the testimony of the party is to be received, the reception as wit- 
 nesses of those connected with him, however close the connection, would 
 seem necessarily and inevitably to follow ; for however strong the tie, 
 whether domestic or professional, its pressure would never be so great in 
 intensity upon others as would be that of the personal interest of the party 
 upon himself; nor could he be so injuriously affected by the disclosure 
 of communications made to others as by what he might be compelled to 
 disclose ; that is, the derivative interest of the attorney or the wife in 
 the affairs of the client or the husband, would never equal the original in- 
 terest of such client or husband in his own ; — and the danger to such 
 client or husband from the disclosure of communicated information will 
 not equal that from the examination and cross-examination of the party 
 confidentially making the communications disclosed — as he may be com- 
 pelled to state alike what has been withheld as well as what has been 
 disclosed. Hence, when once the primary interest ceases to be a ground 
 for exclusion, much more should all associated or derivative interest be 
 received. If fear of falsehood, dread of perjury, hardship in uttering 
 self-disserving testimony, do not suffice to exclude the party as a witness, 
 certainly no reasons can justify the exclusion of any facts he may have 
 communicated, no matter to whom nor under what circumstances the 
 communications may have been made. 
 
 The design of the law is said to be " to encourage confidence and pre- 
 serve it inviolate." That under certain limitations, confidence should 
 be encouraged and preserved inviolate, may be and undoubtedly is true. 
 But the compulsory giving of testimony in accordance with the require- 
 ments of the law, can, in no just sense, be considered a violation of con- 
 fidence. In certain relations, with or without legal encouragement, con- 
 fidence will naturally arise. The very fact of the existence of the relation 
 of husband and wife, attorney and client, confessor and penitent, and 
 physician and patient, necessarily implies antecedent confidence. With- 
 out it, the marriage contract is never made, the attorney is without a 
 client, spiritual consolation is unsought, and the aid of the physician is 
 never required. Precedent confidence is implied in the inception of 
 those relations, and their duration rests upon its continuance. 
 
ATTORNEY AND CLIENT. 167 
 
 The preservation of confidence may be right ; that will depend on the 
 confidence to be encouraged, and being encouraged, to be preserved in- 
 violate. The confidence should be that between those in the right — be- 
 tween those seeking no wrong and violating no right ; — a confidence 
 compatible with the great ends of justice, — none other. It may be 
 wrong. The confidence between associates in fraud, between accomplices 
 in crime, is not of such a nature that the interference of the law in its 
 favor is either necessary or desirable, for any of the objects of good govern- 
 ment. The knave or the criminal reposes confidence, no matter in 
 whom. What claim has the confidence of guilt or fraud to legal inviola- 
 bility ? Is not the protection of this sort of confidence the encourage- 
 ment of crime, the support and aid of fraud ? In the right, all confi- 
 dential communications being true, will, if communicated, subserve the 
 right ; that is, they will be in accordance with and favorable to the great 
 ends of justice. The exclusion of confidential communications does not 
 rest upon any doubt as to their truth ; it assumes, their truth, and for 
 that cause excludes. It is the wrong-doer, civil or criminal, alone, whose 
 interests will be jeoparded by the disclosure of such confidential relations 
 as he may see fit to make ; and it is difficult to perceive what claims he 
 has to the protection of his interests over those of the party in the right. 
 
 The exclusions are for the benefit of the wrong-doer, and for his benefit 
 alone. In the right, all confidential communications necessarily estab- 
 lishing, as they must, the truth, for a confidential communication of 
 falsehood by the party in the right is not supposable, the party so com- 
 municating them could have no objection to their introduction. No 
 matter how confidential the communications, their judicial promulgation 
 would never be to him a source of regret. It is only when the facts 
 communicated being true, are self-disserving, injurious to the communi- 
 cant, he being in the wrong, that he would grieve at the disclosure of 
 such communications. 
 
 Judge-made law, overruling the statute of the legislature, veils from 
 the public eye all communications for whatever purpose made. The 
 attorney may advise how the law may be evaded — if evaded, how the 
 criminal may escape ; and such consultations, which if made with others 
 would be criminal, made with him, are protected. The confidence of the 
 accomplice is less dangerous to society and more deserving its protection. 
 He is the child of circumstances — the creature of revenge or passion. 
 The attorney is the skilled, sagacious, cool-blooded, and ever-prompt ac- 
 complice. The legal Dugald Dalghetty, like his unscrupulous namesake, 
 is ready, for the forty pieces of silver, to hire out his services for any 
 purpose or object ; but, unlike his prototype of arms, he plies his occupa- 
 tion, unquestioned and in safety, behind the impregnable rampart of 
 legal irresponsibility and professional secrecy. 
 
 The rule contended against is bad, in every aspect in which it can be 
 viewed ; useless to honest and useful to the dishonest clients, and for 
 that reason to be withheld ; adverse to the best interests of the public, 
 by fostering a spirit of unscrupulous and reckless litigation — encouraging 
 the commission and facilitating the escape of crime — dishonorable to the 
 bar as making them the recipients of dishonest secrets — diminishing the 
 
168 APPLBTON ON ETJLBS OF EVIDENCE. 
 
 confidence of the public in their integrity, concealing from public 
 scrutiny all intercourse between client and attorney, and shielding the 
 attorney from that public reprobation, which would justly follow the 
 avowed accomplice. 
 
 This rule of privilege, though resting " on very obvious principles of 
 convenience and polioy,"(a;) yet, " being a great anomaly and in contra- 
 vention to the general rules of law/'(y) and "having a tendency to pre- 
 vent the full disclosure of truth,(«) ought to be construed strictly."(ti) 
 The policy of anomalous rules, of rules in contravention with each other, 
 being established, the next labor of the judge is to limit and restrain the 
 operations of his politic rules, so that they may be as little injurious as 
 possible. The consequence is, that exception after exception is carved 
 out, till it becomes a matter of doubt, whether the rule or the exceptions 
 shall prevail. 
 
 The attorney, besides being an attorney, may be a friend, and the ques- 
 tion then occurs, in which capacity the communications were made. (6) 
 The attorney has separate, distinct, and divisible existences. Like the 
 bi-faced god of the Romans, or that miraculous incarnation of contend- 
 ing powers, the judge-chancellor, according as the witness is addressed, 
 he is heard or excluded. . The words spoken in his dexter ear, he hears 
 as a friend and is a competent witness ) in his sinister, as an attorney, 
 and his testimony is refused. A loop-hole for evasion is now found. A 
 metaphysical separation of the attorney is made, but made at the peril 
 of the client. The separation is purely ideal, and the attempt to deter- 
 mine the character of the communications would be .as absurd, as the 
 attempt to resolve the individual into separate and distinct persons. 
 
 But who is to determine, whether these communications are made to 
 him as a friend or as an attorney ? The client alone knows. The rule 
 is made for his benefit, and he, it should seem, ought to determine; but 
 such is not the law, " the court judge from the particulars of the con- 
 versation ;"(c) and according as they judge, he is received or admitted. (c?) 
 Before they can judge they must first hear; so that the communication 
 must be disclosed, to ascertain whether it be admissible or not ; the con- 
 fidence must be violated, and the question of the correctness of that vio- 
 lation settled afterwards. If, from " the particulars of the conversation," 
 as disclosed by the attorney, the court should be satisfied that it was a 
 professional communication — ^then has that most sacred confidence been 
 betrayed by their order. How is the evil to be repaired ? Is not the 
 course pursued " doing evil that good may come ?" 
 
 (a:) 1 Stark. Bv. 103. (y) 3 C. & P. 518. 
 
 (z) la Balguy v. Bi'oadhurst, 1 Sim. (N. S.) 112, Lord Cranworth, V. C, says, 
 " Judges have differed ia their opinions as to the general policy pf the rule as to 
 privileged communications. Some of them have thought that there should be no 
 such rule. Others have been of a contrary opinion, and have said that truth may 
 be purchased too dearly. The rule however is now established and acted upon, 
 and whatever may be thought of it, I am sure that it is most inconvenient to 
 have a rule laid down and the courts struggling to avoid it." 
 
 (a) 12 Pick. 98, Hale v. Poster; 14 Pick. 422, Hathorn v. Robinson. 
 
 tb) 2 Stark. Ev. 396. (c) Annesley v. Earl of Anglesea, 8 St. Tr. 142, 380. 
 
 (d) An attorney cannot be asked whether A. asked his advice for a lawful or an 
 unlawful purpose. Shellard v. Harris, 5 C. & P. 592. 
 
ATTOBNET AND CLIENT. 169 
 
 The attorney being ttus twofold in his nature, so that the friendly 
 portion of him may be received, one would hardly suppose, that when 
 the relation never existed, when the attorney refused to act as such, that 
 the exclusion would then take place. An attorney is consulted as to the 
 commission of some fraud ; he is a man of integrity and declines becom- 
 ing a participator ; the disappointed client seeks some more congenial 
 counsel ; the fraud is perpetrated, the individual who acts, and, who 
 refuses to act, are alike considered as attorneys and excluded. The de- 
 frauded party calls on the minister of justice in the temple of justice; 
 though sworn if he know of any falsehood, &c, to give knowledge thereof 
 to the court, his testimony is unheard. Whether the consultation be for 
 a lawful or an unlawful purpose,(e) the law regards it with an equal 
 eye. The minister of the law is the only individual, who is compelled 
 to keep secret from the court and public all falsehoods, or all intention 
 of committing any, with the most scrupulous fidelity. 
 
 Cautious as the client must be, as to the ear which he addresses, that 
 it be the one, or that portion of each appropriated and set apart for liti- 
 gants, he must be still more on his guard, lest his rights suffer from the 
 too keen vision of his attorney, " the effect of his eyes not being a com- 
 munication of his client ;"(/) — and of course what is seen, being un- 
 privileged— ^what is heard — that portion of it which is not communicated 
 as a friend — being privileged. 
 
 So too the attorney may be admitted to prove a receipt of a particular 
 paper from the client, because that is a fact.(^g'\ The existence of the 
 paper, and that it is in the hands of the client, may be the very/ocis to 
 be tried, or if not the facts directly in issue, they may still be of great 
 importance, in their bearing on certain portions of the cause. It is evi- 
 dent that the fact is important, else it would not be inquired into. Being 
 important, does not the same rule of professional secrecy, which with- 
 holds all oral or written communications, equally require that this should 
 be withheld ? If a part of that intercourse is to be protected, why 
 should not all ? Why allow the veil to be partially withdrawn, when a 
 partial withdrawal may be as injurious as a total ? Because it is a fact, 
 is that any reason ? Is not the utterance of certain communications, 
 the disclosing of secrets, a fact, and a fact of precisely the same nature 
 as entrusting deed or other papers ? 
 
 But it would seem, that while it may be shown, that the papers are in 
 the hands of the attorney and delivered by the client, the law does not 
 
 (e) See 2 B. & B. 4; 4 Moor. 357, Oromak v. Heathcote. 
 
 (/) The following question was put to an attorney. Did you ever see a certain 
 paper bearing date, &c., between, &c. ? If yea, when and in whose hands ? 
 
 The Court. " This is an interrogatory he must answer. The effect of his own 
 eyes is not a communication of counsel.". O'Gorman v. M'Namara, Hayes's Irish 
 Exchq. Rep. 174. In Brown v. Foster, 1 Hurls. & Nor. 736, Martin, B., says, that, 
 " with respect to matters which the counsel sees with his own eyes, he cannot re- 
 fuse to answer." 
 
 {ff) Euke v. Notes, M. & M. 304. But he cannot be permitted to state whether 
 it was then in the same state as when produced on trial — as whether stamped or 
 not. Wheatley v. Williams, 1 M. & W. 533. Or altered since, Brown v. Payson, 6 
 N. H. 443. But he must state whether it is in his possession or elsewhere in court. 
 Dwyer v. Collins, 12 E. L. & Bq. 533. 
 
170 APPLBTON ON BTXLES OP EVIDENCE. 
 
 admit him to produce them or to disclose their contents.(^) The con- 
 tents known, that he has them, is the all-important fact. If the client, 
 without producing papers, discloses their existence, it is a privileged 
 communication, and however important it may be, it can never be known. 
 
 If, with the same objects and for the same purposes, instead of stoitm^r 
 that fact, that he has the papers, he produces them for the inspection of 
 his client, all professional confidence ceases. 
 
 Uncertain as it is seen to be, when the privilege exists, and what, if 
 it exists, is privileged, equally uncertain is the duration of its existence. 
 " If the client chooses, after this relation has ceased, to volunteer any 
 communications, he is not protected, though they be in substance the 
 same as they were given while that relation subsisted. The reason of 
 the rule ceases.fi) But does it cease ? Is " the reiteration of what had 
 been communicated, whilst the relation of client and attorney subsisted," (€j 
 a new communication ? Is it a communication ? Does it give any new 
 information to the attorney ? The communications of the client first 
 made are to be kept inviolate through all coming time. None others are 
 made. Which does the attorney disclose, the original communication, 
 or its subsequent reiteration ? If the former, it was privileged, if the 
 latter, being the same in substance, is not his confidence as much be- 
 trayed by its utterance, as it would have been, had there been no repeti- 
 tion ? The subtle metaphysician, who decides according to the sense 
 addressed, or who resolves the individual into testifying and jioji-testify- 
 ing parts, sees no diflBculty here. The principle is obvious ; the repeti- 
 tion of what is confidential absolves from all confidence, and unseals the 
 lips of the attorney. 
 
 No especial and protected legal confidence is required in the ordinary 
 business relations of life. The relations of partners, of principal and 
 agent, of banker and clerk, of trustee and cestui que trust, of physician 
 and patient, are of the most confidential nature, — may require the 
 highest degree of mutual trusts, may involve the greatest pecuniary and 
 personal interests; yet when needed for the purposes of judicial inquiry, 
 communications ever so confidential should be disclosed. The secrets 
 of friendship, the confidential relations of the parent to the child, of the 
 brother to the sister, are not permitted to be withheld. Now the rela- 
 tion of attorney and client is purely a business relation, having neither 
 the sacredness nor the mutual confidence of friendship nor of kindred, 
 involving, to be sure, great pecuniary interests in reference to which 
 the attorney is to act as an agent for his principal. In all other cases, 
 communications, however confidential, are compulsorily required by the 
 law, when deemed necessary or important for the preservation or pro- 
 tection of the legal rights of parties litigant, and they should be equally 
 so in this. 
 
 The rule of law by which the confidential communications of the 
 
 (A) Jackson v. M'Vey, 18 John. 330. The attorney would seem to be a safer de- 
 pository of papers than the client himself, as the client, by bill in equity, might be 
 compelled to disclose their contents, the attorney never. Lynde v. Judd, 3 Day, 
 499. 
 
 (i) Yordan v. Hess, 13 John. 494. 
 
ATTORNEY AND CLIENT. 171 
 
 client to Lis attorney are clothed with inviolable and compulsory seoresy, 
 is dishonorable and degrading to the legal profession — injurious to the 
 public, and entirely unnecessary to the client for any proper and legiti- 
 mate purpose. Were the rule abolished, the relation between the client 
 and the attorney, wherever it existed, would be confined within the 
 bounds of integrity and enlightened public policy, as it should be. 
 
 But it would be an useless labor to examine all the cases of excep- 
 tions from the rule. We have now examined the different rules for 
 exclusion known to the common law, and the reasons on which they 
 are based, and by that examination have satisfied our readers, as we 
 trust, of their impolicy. Numerous and important as are the exclusions 
 of the common law, they are small compared with those of other nations. 
 No unimportant argument against exclusion arises from the fact, that 
 while all codes exclude, there are no two codes, which agree in the 
 cases proper for exclusion, the incompetent in one being competent in 
 the other, and the reverse ; while if all the exclusions of the different 
 codes were adopted, it would amount to a total denial of justice, from 
 the utter impossibility of obtaining proof.(^) 
 
 (h) The comparative jurisprudence of different nations, or of the same nation, at 
 different periods of its existence, is a subject well worthy the attention of the 
 philosophical investigator. A slight sketch of the exclusive rules of different 
 codes, will give the reader some notion of what would be the situation of a party, 
 were they all adopted by any one code. By the Mahommedan code, "in all 
 matters of property or the common transactions of life, two men, or one man and 
 two women can prove a fact. In all criminal cases, except adultery, (which 
 requires /0M»- witnesses,) the testimony of two men is sufficient. The moral cha- 
 racter of the witnesses is to be regarded. Thus the testimony of drunkards, game- 
 sters and usurers is inadmissible. Evidence in favor, whether of a sou or grandson 
 of a father or grandfather, cannot be received . . . Slaves cannot be witnesses, 
 nor can a master testify for his slave. Infidels and apostates cannot be witnesses 
 in a cause, when a Mussulman is a party, though in some cases, not involving the 
 punishment of death, the evidence of infidels is admissible. When received, the 
 Jew must be sworn by the Pentateuch, the Christian by his Gospel. See Mills' 
 Hist, of Mahommedanism, ch. 5, p. 359. 
 
 The testimony of women is not admitted to prove a charge of wilful homicide, 
 on the ground of a tradition, that in the time of the prophet and his two immediate 
 successors, it was an invariable rule to exclude the evidence of women in cases 
 of the greatest magnitude. In cases of homicide not wilful, the evidence of one 
 man and two women, is considered equivalent to that of two men. If the person 
 accused be a Mussulman, the witnesses must be of the same religion. The testimony 
 of Zimmees or infidel subjects is admissible as respects each other. 
 
 By the laws of Menu, " Those must not be admitted as witnesses who have a 
 pecimiary interest, nov familiar friends, nor menial servants, nor enemies, nor men 
 perjured, nor men grievous by disease, nor thbse who have committed heinous 
 offences. The king cannot be a witness, nor cooks, nor the like 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 he be distinguished for virtue, nor a 
 wretch of the lowest mixed class, nor one who has lost the organs of sense, nor 
 one grieved, nor one intoxicated, 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." Laws of Menu, 197. 
 
 " A slave of either sex, a blind man, a woman, a minor till of the age of fifteen 
 years, an old man of eighty years, n leper, one guilty of murder, theft, adultery, 
 of false abuse, a man who, enticing another by treachery, kills him, or who is 
 employed in games of dice and chance, a wrangler, a juggler — such persons are not 
 
172 APPLBTON ON RULES OF EVIDENCE. 
 
 witnesses in affairs of murder, theft, adultery, and false abuse. In those four 
 oases only, one man of veracity, and good disposition, and love of truth, can alone 
 be examined as a vritness. Translation of Gentoo Laws, 126. 
 
 One single person, a woman, a man of bad principle, a father, or an enemy, 
 may not be witnesses : but if the father and enemy are men of good disposition,' 
 and men are acquainted with their veracity and the goodness of their disposition, 
 they may be received. lb. 124. 
 
 The Jews excluded all women, " on account of the levity and boldness of the sex." 
 3 Home's Intro. 112. 
 
 In all our Southern States, slaves are excluded, in some, all Indians, and even 
 the free negro is excluded, when the rights of the white man are involved. See 
 Laws of Georgia, and 1 M'Cord, 43. 
 
 The exclusions of the Koman Law are almost as numerous and important as 
 those of the Gentoo Code, and are or were substantially adopted as the basis of 
 the law of all Continental Europe. They seem to proceed on the principle, that 
 the slightest inducement to falsehood is stronger than every motive to truth. 
 
 Ob setatem non admittendos infantes et infantiae proximos. Pubertati proxi- 
 mos quidem non prohiberi dicere testimonium, si de rebus testentur, quas intelli- 
 gunt ; non tamen cogendos esse invitos, nee semper omni exceptione majores 
 haberi. Minores admitti in causis peouniariis ; in criminalibus, non aliter quam 
 si sint majores viginti annis. 
 
 Ex eodem consequi videbatur, non magis quam infantes testes esse posse 
 furiosos, et mente captos. Neo servorum testimonio credendum esse, nisi ubi alia 
 desit ratio eruendi veritatem, et testimonium in eculeo, vel sub tormentis, dicant, 
 modo non adversus dominum, vel pro eo interrogate 
 
 Denique ex eodem sibi recte coUigere videbantur, vacillare fidem judicio publico 
 damnatorum, criminis accusatorum, vel in vincula publica conjectorum, calumnise 
 in publicis judiciis damnatorum, senatu motorum, paganorum, apostatarum, hsere- 
 ticoTum, damnatorum ob carmen famosum, vel ob corruptionem, acceptamve 
 pecuniara, ut testimonium vel dicerent, vel non dicerent, mulierum, quse qusestum 
 corpore fecerunt, eorum, qui vitam ad cilltrnm, depugnandasve bestias locarunt, 
 omnium denique viliorum et pauperum, quamdiu aliorum est copia. 
 
 Nemo admittendus sit in causa vel propria vel socii. Ut merito repellantur 
 pater in causa filii, filius in causa patris, aliique potestati vel imperio alterius 
 subjecti, vel domestici. Ut et patroni, tutores, curatores in causa clientis, pupilli, 
 minorisve sui testimonium dicere non possint. Ut suspecti sint amid vel inimici, 
 nee non qui jam antea in eum reum dixerunt testimonium. 
 
 Parcendum tamen sanguini et aflBnitati, nee cogendum aliquem testimonium 
 dicere adversus socernm, generum, vitricum, privignum, sobrinum, sobrinam, 
 sobrino natum, eosve, qui priore gradu sunt, nee libertos cogendos adversus 
 patronos, vel hos adversus libertos testimonium dicere. Heinn. Elem. Jiir. Civ. 
 Sec. Ord. Pand. B 138-141. 
 
CHAPTER XI. 
 
 HEARSAY EVIDENCE AND CONFESSIONS OR ADMISSIONS OP THE PARTY. 
 
 Hearsay evidence is that whioh comes through the lips of a deposing 
 witness, who swears that he has heard the facts to which he deposes, 
 from some other individual, either the original percipient witness, or 
 some one to whom such witness has related them. He vouches only for 
 the accuracy of his narration, not for the truth of the facts narrated. 
 The assumed statements of the supposed original percipient witness, 
 (supposed we say, for there may not have been such witness) constitute 
 the real evidence upon which the judgment of the court is based. The 
 credit is given not to the deposing, but to the percipient witness, whose 
 statements, when they constitute the grounds of the decision, are received 
 not only as true, but as truly reported, although they are obtained 
 without any of the ordinary securities for testimonial trustworthiness. 
 An unseen, unheard, unsworn, unquestioned witness, guides the mind 
 and controls the judgment of the court. This testimony, from the 
 necessity of the case, is manifestly inferior to that of the original wit- 
 ness, delivered under the usual securities for truth. 
 
 The reported confessions or admissions of the party to a suit or pro- 
 cess, are none the less hearsay, because they are the statements of such 
 party. They are liable to the same deductions, they are infected with 
 the same inherent defects, which are considered as weakening to a very 
 great degree the probative force of any other instance of hearsay. Hear- 
 say as against another — it is none the less hearsay as against the party. 
 The common law recognizing it as the " first and most signal rule of 
 evidence, that the best evidence of which the case is capable shall be 
 given,"(a) the inquiry naturally arises, why secondary evidence, deli- 
 vered without any of the essential tests and guaranties for truth, should 
 be thus preferred to primary, delivered under and with every security 
 known to the law ; and why the hearsay confessions of the party are 
 received against his interest, while the party who is supposed to have 
 made such confessions, is excluded. 
 
 The reason assigned for this apparent anomaly is, that the confession 
 of the party is the best evidence,(6) which can be given ; and though 
 
 (a) Roscoe on Evidence, 1. 
 
 (6) The confession of the party is the best evidence, Norris's Peake, 36 n. ; 
 Hendrickson v. Miller, 1 Rep. Cons. Ct. (S. 0.) 296 ; and 2 Rep. Cons. Ct. (S. 0.) 
 215. It is the weakest and most unsatisfactory testimony, 1 Wend. 625-652; 
 Proof of confessions are to be received with great caution, Morehead v. 
 Thompson, 1 Lou. 286. The cases are about even. The oracle nttereth an 
 uncertain sound. Its votaries receive with equal awe, the dubious and con- 
 tradictory responses, from which the judicial soothsayer selects, as the pressure of 
 the case may require ; each being, for the time, the perfection of human wisdom. 
 
 March, 1859.— 13 
 
174 APPLBTON ON RULES OP EVIDENCE. 
 
 the hardship of compelling the party to state facts against his own inter- 
 est is a sufficient reason for excusing him, that hardship it is considered 
 would vanish the moment similar statements of his are disclosed to the 
 court through the lips of another. The real value of this testimony is 
 to be considered. 
 
 In all cases of hearsay, the effective witness is the individual, whether 
 party or not, whose supposed statements the narrating witness relates. 
 The individual testifying is merely the conduit or pipe, through whose 
 agency the impressions of some one else are conveyed to the court. The 
 real proof is the hearsay statement, and the credit which the testimony 
 should receive, depends on such extraneous witness. In case of con- 
 fessions, it is the party who testifies in his own cause against himself, 
 without oath or examination by or before any competent judicial au- 
 thority, and without the power of altering or explaining his testimony — 
 thus affording another exception to the supposed inviolability of that rule 
 of law, by which the party stands excluded. 
 
 Confessions are either judicial or extra-judicial — voluntary or involun- 
 tary — intentional or unintentional. (c) 
 
 Voluntary, intentional, judicial confession is when the party accused, 
 without external influence or coercion, after being fully examined by the 
 judicial authority, confesses his guilt with a knowledge of the use subse- 
 quently to be made of it, and of the adverse results which will ensue 
 from his statements. Being uttered as and for confessions, they will be 
 correct and complete, and if not correct and complete, judicial interro- 
 gation will supply all deficiencies ; being heard by the judge, no error 
 from misapprehension or misrecollection need exist, or if existing, it may 
 be corrected on the spot. The intervention of a testifying go-between 
 ceasing, they cease to be hearsay. Judicial confession, as known in the 
 civil, is unknown in the common law.(cZ) Notwithstanding the great 
 precautions which the civil law adopts to prevent false or erroneous con- 
 fession, still the whole history of judicial trials is replete with instances 
 of the utter uncertainty of this species of testimony. Confessions, self- 
 criminative, of unreal, impossible crimes, at impossible times and places, 
 have been again and again made, and the supposed guilty, because con- 
 fessing, have been executed. The motives of such a course have been 
 as various as the individual pursuing it. Melancholy, ennui, the wish 
 to save a friend or relative — or to divert the attention of the judge from 
 a real and greater to an unreal or less crime, a desire to please the 
 officer of justice, the hope to lessen punishment— to obtain a removal 
 
 (c) Voluntary and intentional, and their opposites. The confession may be volun- 
 tary, there may be a perfect freedom from coercion, and yet no intention or ex- 
 pectation that what is said shall ever be used as an article of confessional evi- 
 dence, — as casual street conversation, uttered with no design that they shall ever 
 be used as confession, yet perfectly voluntary. So the confessions may be inten- 
 tional, designed to be confessions, yet not voluntary. As confessions uttered upon 
 compulsion, they are uttered as and for confessions, they are intentional, yet they 
 may be obtained by force, and so far not voluntary. 
 
 ((2) The examinations of prisoners by and before magistrates are by virtue of cer- 
 tain statute provisions in England. The only instance of judicial confession in the 
 common law, is the case of the prisoner's pleading guilty upon his arraignment, 
 upon which, as a matter of course, sentence is passed. 
 
HEARSAY EVIDENCE AND CONCESSIONS. 175 
 
 from one prison to another, are and are proved to have been motives 
 sufficiently powerful to induce false confessions. (e) 
 
 Confessions, as they are ordinarily obtained in common law courts, are 
 never in civil and but very rarely in criminal cases, made on the part of 
 the individual whose confessions they purport to be, with the intention 
 or expectation that they will ever be used as evidence. Were they so 
 intended, were they meant to be what the relating witness reports them 
 to be — in civil cases an admission of the rights of the adverse party and 
 in criminal an acknowledgement of the guilt of the accused — it would 
 rarely happen after such an open abandonment of one's cause, that the 
 individual so abandoning would be induced to sustain a defence, the non- 
 existence of which he had admitted. They are ordinarily made acciden- 
 tally and not with any intention of their ever being subsequently used 
 in a court of justice. The confessions thus obtained, though unpre- 
 meditated and so far trustworthy, being mere casual remarks, may be 
 incomplete to any supposable extent ; or, sufficiently complete for the 
 purpose of their utterance, they may be utterly incomplete in relation to 
 all the facts, of which they may constitute but an insignificant portion. 
 
 The confession extra-judicial, — involuntary, — unintentional, — its subse- 
 quent judicial use and importance unimagined, its connection real or im- 
 aginary with other facts unanticipated, it can hardly happen otherwise, 
 than that the statements thus made should be deficient in clearness, cor- 
 rectness and completeness. Indistinct, incorrect, or incomplete — to the 
 extent of such deficiency, error, and its unavoidable result, misdecision, — 
 to the injury of the party making such statements, must ensue. All 
 casually made confessions will ordinarily partake in a greater or less de- 
 gree of these defects. In case of a conversation accidentally overheard, 
 or entered into, in relation to any given subject matter, it not being fore- 
 seen for what purpose it may at some future time be used, the party 
 speaking is not full and complete in his statements ; or being so in rela- 
 tion to the subject matter of the then present conversation, he may be 
 incomplete in reference to the collateral bearing of his remarks upon 
 something else, to which as a matter of confessorial evidence, they may 
 be transferred. Made as the statements may be in relation to different 
 objects and for different purposes, they may be true and the whole truth 
 as far as the matter then under consideration is concerned — and yet not 
 
 («) The civil law adopts the greatest precautions to secure the rights of the 
 prisoner confessing. 
 
 To constitute a perfect confession it must appear : 
 
 1. That the crime has been committed. 
 
 2. That the confession has been taken before a proper judge. Extra-judicial 
 confession, though it may raise a presumption, yet does not constitute full proof. 
 
 3. That it be simple, clearj in plain terms, and voluntary. 
 
 4. That the information, obtained aliunde by the judge, agree with the confes- 
 sion. 
 
 5. That the special circumstances, stated by the party in his confession, be 
 found on subsequent examination to be correct. 
 
 6. That the confession contain such circumstances, as the party, in case he were 
 innocent, could by no possibility have known. — Vanderlinden's Ins. 362. 
 
 A confession made before two competent witnesses in the absence of the judge 
 is only AaZf proof, and requires to be confirmed by other evidence. 
 
1J6 APPLBTON ON RULES OE EVIDENCE. 
 
 the whole truth as viewed in their subsequent, distorted connection with 
 other matters. The conversation too may be in relation to the cause in 
 which they are used, and being partial, incomplete, or defective, the 
 omissions of true facts, the result of negligence or any other assignable 
 cause, may be as dangerous to the cause of truth as the most perverse 
 and deliberate mendacity. 
 
 To elicit the whole truth, requires skill, power, and adequate motive. 
 Effective, successful interrogation is the work of labor, and will never be 
 undertaken except when some duty requires it. The casual auditor, who 
 afterwards becomes the narrating witness, without motive to put the 
 necessary questions or power to compel an answer, is content to receive 
 what may be offered. He never seeks to ascertain the whole. What is 
 the whole or a part to him ? Why should the accidental auditor of a 
 narration, to him unimportant, assume the labors and duties of counsel 
 or judge and cross-examine the individual with whom he is conversing? 
 
 But if there be interrogation, who will guarantee propriety of manner, 
 integrity of purpose, and the requisite knowledge ? The interrogator is 
 whosoever he may be. His qualifications are as accidental as his person 
 or his presence. His purpose is known only to himself — unknown it 
 may be to the person interrogated. His object may be sinister — his 
 questions oaptious(/) or ensnaring.(^) How this process may be con- 
 ducted, can only be known from the lips of one, who, if dishonest, will 
 be little likely to condemn himself. Not made judicially, the judicial 
 power — that of examination — is abandoned to chance. The chance-ex- 
 aminer willing to undergo the labors of examination, how will he know 
 that a crime, and if any, what, has been committed, when, where, and 
 in what manner, — and thus unexpectedly assuming new duties, how will 
 he be able to follow fraud or crime through all its circuitous meander- 
 ings? If, without the requisite information, and when will he obtain 
 it, he attempts, he stumbles at the very threshold of his investigations. 
 Attempting it, the power to enforce an answer is wanting. Accidental 
 disclosures only are obtained. The will of the party bounds the limits 
 of the information received. 
 
 (/) The German law, while permitting the necessary examinations of the pri- 
 soner, lays it down, that no questions either captious, (thereby meaning such as 
 may involve the party in admissions, without his perceiving their tendency,) or 
 suggestive in their nature, are to be put to the prisoner, nay, the name of an ac- 
 complice or of any special circumstance connected with the fact but not yet proved, 
 shall not be suggested to him, otherwise the confession so taken shall be of no 
 effect. Foreign Quarterly Review, vol. viii. p. 298. 
 
 The examinations of the prisoner, however, are repeated so frequently, so long 
 a time elapses between the commencement and termination of the process, as to 
 appear almost incredible to one conversant only with common law process. The 
 trial of Riembaur, a German priest, accused of a murder of almost unprecedented 
 atrocity, wascontinued through a period of over four years, during which he under- 
 went one hundred personal examinations, at each of which he protested his inno- 
 cence, till on the hundredth, moved by the serenity which another criminal who 
 had confessed displayed on his execution, he confessed his guilt. The records of 
 the proceedings in the case filled forty-two folio volumes. lb. 
 
 {g) " Who," asks Morton, J., in Faunce v. Gray, 2 1 Pick. 243, " ever heard the con- 
 fessions of a party objected to, as inadmissible, because his adversary artfully and 
 designedly drew him into conversation on the subject of a controversy, for the 
 purpose of using the declarations he might make, as evidence against him ?" 
 
HEARSAY EVIDENCE AND CONFESSIONS. 177 
 
 The conversation at the time unimportant, but by subsequent events 
 acquiring an unexpected importance — what motive has the narrating 
 witness to note the precise words used. Of the ordinary street conversa^ 
 tion, who ever attends with suflGicient care to hear accurately the whole — 
 or, hearing, makes the efifort to remember. Without inducement, which, 
 by the hypothesis there is not, what probability is there, that there will 
 be the requisite care to understand, or if understood, that it shall be re- 
 collected, or if recollected, that it shall be accurately repeated. Lan- 
 guage,r^) though the best, is but an inadequate and imperfect means of 
 conveying thought. Of any given conversation heard by different wit- 
 nesses, the reported accounts vary. Yet if the exact language be not 
 used, misconception arises. The purport, substance, tenor, or effect, as 
 understood and recollected by one witness, will be different from it as 
 understood by another, and neither convey the real meaning of the party. 
 Where the intention is to remember the identical words used, as in the 
 act of committing to memory, there are few instances, where the object 
 is accomplished by one perusal or one hearing of the words to be remem- 
 bered. It is a process of labor, where remembrance is the design in 
 view; but in all cases of casual conversations, there is no such design. 
 The pretended recollection is rather the result of a process of reasoning 
 or imagination than of distinct remembrance. 
 
 Had the supposed conversations been uttered for the very purpose of 
 being reported as testimony, and heard by the witness with the intention 
 of so reporting, the chance of exact and verbal repetition may be under- 
 stood, by hearing any given sentence read, or hearing any conversation, and 
 then attempting after a lapse of time to repeat the same as a set and ap- 
 pointed task. Even with the aid of memoranda made at the time, as in 
 the case of notes taken by the court or by counsel, in the trial of a cause, 
 complete accuracy is rarely attainable, it being found, that the notes of 
 each somewhat vary from those of the other, and probably both from the 
 exact words used. Where then with every effort to be accurate — dis- 
 agreement^error creeps in — what reliance can be reasonably placed on 
 the half-smothered recollections of days or years, coming through the 
 lips of some uninterested witness, who reports himself as having been at 
 some time past the accidental auditor of certain casual and to him unim- 
 portant conversations. 
 
 Much depends upon the state of mind of the narrating witness, whether 
 you refer to the time of the supposed conversation, or of the delivery of 
 his testimony. In the case as yet considered, the state of mind was that 
 of indifference. But the witness may have gone, to procure confessions, 
 to garner up what he could, for judicial use. That fact unknown to the 
 party, whose confessions- are thus obtained, the information elicited is 
 only on such points and to such extent, as the extrajudicial examiner 
 thinks best adapted to accomplish his sinister purpose. The object in 
 view is not the whole truth but the reverse; the object unsuspected by 
 
 (A) " The lower orders of men," says Best, J., in Rex v. Sexton, 6 Petersd. Abr. 87, 
 " have but few words to convey their meaning ; and they know as little of expres- 
 sions that they are not in the habit of using, as if they belonged to another lan- 
 guage." 
 
178 APPLETON ON RULES OF EVIDENCE. 
 
 the party-witness, he answers only to the inquiries ; and thus answering, 
 much if not all, which might go to exculpate, is withheld. The witness 
 adverse to the party, he hears with no friendly ear. The explanations 
 and qualifications, if heard, are heard only with inattention, to be for- 
 gotten. The questions are oue-sided, captious ; one-sided results are 
 sought after ; and the means to obtain them pursued, and the end accom- 
 plished. 
 
 The extra-judicial confession may be voluntary and intentional, that 
 is, there is the intention that it shall be a confession. If so, if made 
 extra-judicially with the intention to confess, what objection is there to 
 a repetition by the party in open court, subject to judicial interrogation ? 
 If willing to confess extra-judicially, if the supposed extra-judicial con- 
 fession was in truth as it is reported, the party would be little likely to 
 deny such confession. The judge would certainly rely with more secu- 
 rity on the testimony heard by himself, than on the reported conversa- 
 tions, related by whomsoever they may be. 
 
 So too the casually written documents of the parties in civil or criminal 
 cases may be offered as the confessions of the individuals whose writing 
 they purport to be. The degree of credence, to which they may be en- 
 titled, depends on the time, circumstance, and occasion of there being so 
 written. Written for other purposes, they are obviously wrested from 
 their intentional and legitimate use. Were they written for the very 
 purpose of giving an account of the subject-matter of discussion, they 
 would be ordinarily incomplete. The process of interrogation would be 
 required, to develope more fully much that is dark and uncertain. Ex- 
 planations, additions to, subtractions from, or modifications of, the literal 
 words used, would be required. In the case of the witness testifying 
 under oath, with the intention to relate the whole truth, it rarely happens 
 that the examination in chief is not essentially modified, restricted or 
 limited, by the subsequent cross-examination. Here there is neither the 
 original nor the cross-examination. When the papers, letters, whatso- 
 ever they may be, are written for other purposes, but are subsequently 
 diverted from such original purpose, neither correctness, clearness, nor 
 completeness, can be expected. It is at best mere written hearsay. 
 
 Even where the intention to narrate every important fact may be 
 supposed to exist, that importance will be relative to the mind of the 
 individual so narrating, and the use which he expects will be made of 
 those facts. His impression of the material or the immaterial may vary 
 from that of another — it may be erroneous. If so, an imperfect devel- 
 opment of facts inevitably follows. The importance of a fact is relative 
 to the use to be made of that fact ; the use unforeseen, the means of 
 ascertaining such importance are withheld ; and the best intentions to 
 relate what would be thus important, would be of no avail. 
 
 Extra-judicial testimony reported to the court through the lips of 
 whomsoever it may be, and with accuracy howsoever great, is thus seen 
 to be the mere fragment of testimony, a fragment larger or smaller as it 
 may chance to be, but still a fragment. Received as it is, correction 
 or explanation may be required. The confession may have been made 
 
HEAKSAT EVIDENCE AND CONFESSIONS. 179 
 
 under an error of fact on the part of the individual confessing j(i') there 
 may be misconception, misrecollection, misrelation on the part of the 
 witness. Erroneous from any or all these causes combined, is the party, 
 whose supposed but not real confessions have been heard, to be admitted 
 to correct or explain ? 
 
 By the rules of the common law, a confession or admission, however 
 erroneously made or incorrectly reported, is irrevocable, unalterable, 
 unexplainable. Its supposed original import, as related by the nar- 
 rating witness, can never be varied or contradicted by the conflicting 
 testimony of the party. True of casual extra-judicial confession at 
 common law, it is not true of advised judicial confession. The accused, 
 ' who pleads guilty, advised by counsel and cautioned by the court, acts 
 understandingly, with a full knowledge of the consequences of such a 
 plea. Cautious, vigilant that life or character may be protected, blend- 
 ing mercy with vigilance, the judge watches over the rights of the 
 prisoner. The plea of guilty is a deliberate, conscious, advised act. 
 The reported extra-judicial confessions are made to whomsoever may 
 happen to be present, made when there is no one to advise or caution, 
 made unconsciously, not intended to be confessions, erroneous, mistaken, 
 falsely reported, yet they are received. The judicial one-worded con- 
 fession, the answer of guilty, may be changed for its reverse by permis- 
 sion of the court, the confession the least dangerous because deliberately 
 made by him, may be recalled, the confession, the import of which can 
 neither be misunderstood nor misrecollected by the judge, may be 
 revoked. The confessional fragment must remain for ever imperfect, (/c) 
 The common law, stern in the barbaric majesty of cumbrous forms and 
 antiquated precedents, hears neither correction, nor receives explana- 
 tion. The huge car of judicial precedents is driven on, careless of 
 results, crushing all who may be in its path. 
 
 All other falsehoods may be detected and refuted. Here detection 
 and refutation are denied by the law itself. Excluding all attempts td 
 explain the original or the supposed original tenor of the confession, 
 though the innocent party is unjustly condemned^ unless, which is im- 
 possible, in every casual conversation with all men, at all times, in every 
 letter or written document which he may chance to write, no matter 
 when, where, or on what occasion, he state every explanatory or excul- 
 patory fact, which may have either a direct or collateral bearing on the 
 subject-matter of his discourse; unless, in fine, gifted with omniscience, 
 he should be able to foresee all possible contingent uses, which in all 
 coming time should be made of his testimony; and thus foreseeing, 
 
 (j) Confessions must be made voluntarily by a competent person, and if made 
 through error, may be revoked before the suit is terminated. Institutes of 
 Spain, 328. 
 
 {k) What is said at one time as explanatory of a previous conversation, is not 
 admitted, because, says-Mr. Justice Washington, "What a party has said at one 
 time, which makes against him, cannot be explained by declarations made at 
 another time, which possibly were made to get rid of the effect of former decla- 
 rations." 1 Peters' Circuit Court Rep. 16 ; 5 Conn. 224. If the admissions first 
 made were erroneous, why should not the party get rid of them 7 How can that 
 be done but by explanation ? Why not permit the jury to determine on the origi- 
 nal confessions with the explanation? 
 
180 APPLBTON ON KULBS OF BVIDENCB. 
 
 should SO adapt it that it shall be clear, complete, and correct, in rela- 
 tion to every possible use thus to be made of it. Thus much he must 
 do, for there is no remark, which may not, as an article of confessional 
 evidence, be used adversely to elucidate directly or indirectly some 
 transaction, in which the party making it may have an interest. The 
 selection of such statements or admissions for use is made by the indivi- 
 dual, whose interests they will subserve, and at the risk of the individual 
 confessing or supposed to confess. 
 
 In all other instances of hearsay, the primary proof, which by the 
 hypothesis once existed, is unattainable; and for that cause alone, is the 
 secondary, inferior evidence received. Here the presence of the party 
 or the means of enforcing his presence excludes that as the reason of 
 admission. Hearsay, is it the more inexcusable when it ceases to be neces- 
 sary ? Does it become the best evidence, when a party is the supposed 
 primary, and the worst, when some extraneous individual is the original 
 witness ? Hearsay testimony, unreliabte from its recognized deficiencies 
 in the mode of extraction, and in the securities for trustworthiness, is 
 its intrinsic probative force increased by the mere accident of the sup- 
 posed original percipient witness being a party to the cause? Of the 
 same person, party or not, does the same reported evidence rise or fall 
 in the judicial scale, as his relation to the cause varies ? 
 
 The argument is not for the exclusion of confessional testimony (for 
 that evidence would always be proper, were the party a witness,) as one 
 mode of ascertaining truth and checking falsehood, but against its ad- 
 mission, if the party be not received. As the law now is, one can only 
 litigate safely with sealed lips. The party nominally excluded but 
 really admitted — excluded for all purposes of explanation, is received 
 when most dangerous to his interest. The judge sees with another's 
 eyes — hears with another's ears. His eyes have become dim, his ears 
 deaf. To meet the witness face to face, he dares not; enough for him 
 is it, to hear somebody who has or who will say he has heard him. 
 
 Hearsay, hy the very law of its existence, is inferior to direct, secon- 
 dary to primary, uaoriginal to original evidence. If the party be 
 excluded for any cause, either of supposed hardship to himself or of 
 danger to the interests of justice, whatever be the reason assigned, it 
 applies with increased force against receiving his confessions. Thus are 
 the dangers of hearsay superadded to those of the testimony of the 
 party. The exclusion of the party is the exclusion of his confession, or 
 rather would be so were there aught of logical consistency in the law. 
 
 But the law, not happening to be logical, if either were to be admit- 
 ted, selects the testimony most detrimental to the ends of justice. Having 
 selected, the inquiry arises, what, if any, danger would arise, and to 
 whom, from admitting the explanations of the party. 
 
 The danger of admission will be one afi'ecting injuriously the great 
 interests of the public or of the party. 
 
 The only fear on the part of the public is, that too much credit will 
 be given to the explanation, and too little to the extra-judicial confes- 
 sion — a danger the very perception of which almost destroys the proba- 
 bility of its occurrence. But who will thus err ? The judge of fact, 
 
HEARSAY EVIDENCE AND CONFESSIONS. 181 
 
 competent to decide when the evidence is surrounded with so many 
 . circumstances prejudicial to truth, when every security recognized by 
 the law as valuable is wanting, is he any the less competent when those 
 securities are applied by himself, to promote the trustworthiness of the 
 testimony ? The Athenians, fearing the effect of beauty on the judicial 
 mind, required that females should be veiled when delivering their 
 testimony. The sight of the party creating mental imbecility — might 
 not the common law judge, following somewhat the analogous precedent 
 of his Athenian brother, veiling his jury, admit the party ? 
 
 Were the party received, would not the judge of fact, veiled or not, 
 as should be deemed advisable, be more competent to decide, upon com- 
 paring the reported hearsay with the actual answers of the party upon 
 his own interrogatories ? The time, the occasion, the manner, the look 
 of the eye, the readiness of response, the motion of the body, the intona- 
 tions of the voice, are each and all circumstances of such importance, in 
 weighing the credibility of testimony, that without these attendant cir- 
 cumstances, the words may be truly reported and the substance be want- 
 ing. Would not the chances of correct decision be more numerous, when 
 the whole evidence should be before the court, than when part only is 
 offered for consideration ? 
 
 Would the party be injured by being received ? The confessions, not 
 made as confessions, diverted from their original purpose, made under an 
 error of fact, erroneously reported, the selection of such as are required 
 for judicial* use, made not merely without consultation, but expressly of 
 such as maybe adverse to his interests, liberty of explanation is not allowed 
 him. Without it error is inevitable. Does he claim the privilege, who 
 is to deny him ? Is he satisfied with the language reported — what 
 stronger presumption of its truth ? The guilty man attempts to explain. 
 He dares not, fearing his attempts, undergoing as they must the scrutiny 
 of cross-examination, will develope facts more injurious to his cause than 
 have already appeared. The liberty to explain being allowed — if at- 
 tempted or not, a new piece of circumstantial evidence of no mean force 
 is obtained. Now, legal silence covers the whole field of confessions, and 
 whether true or false, admitted or contested, they alike receive credence. 
 
 The common law, placing great reliance on the truth-compelling power 
 of the religious sanction in other cases, voluntarily abandons it in this. 
 Not merely abandons, but if the original confessions, of which the sup- 
 posed import is related to the judge, had been obtained under the sanc- 
 tion of an oath,(Z) they are for that cause excluded. The sanction, 
 powerful in one case, is it totally powerless in another ? Its efficiency, 
 is it varying according to the relation the party sustains to the cause ? 
 
 Were the testimony of the party delivered judiciously, subject to the 
 process of interrogation with the legal securities of trustworthiness, he 
 would be cautious; if misapprehension existed, it would be corrected. 
 The several parts in all their bearings and relations would be before the 
 court. Deficiencies would be supplied, doubts removed, explanations 
 
 {I) After all,i there is no rule on the subject. It is just as it happens, — sometimes 
 received, as in Rex v. Haworth, 4 0. & P. 254 ; sometimes rejected, as in Rex v. 
 Smith, 1 Starkie's Rep. 242. 
 
182 APPLETON ON RULES OF EVIDENCE. 
 
 rendered. If the admissions or confessions were really as they are re- 
 lated, no reason exists why they should not be made on the stand, with 
 all the securities which so pre-eminently distinguish testimony thus de- 
 livered, from loose and casual remarks, still more loosely reported. If 
 the party state on oath as the narrating witness has already related, his 
 testimony is obtained in the best form ; if differently, if the party denies 
 the reported admissions, it is for him to explain in detail the real facts 
 of the c^e and the apparent discrepancy between his present and his 
 supposed anterior statements, regarding the same subject matter. If 
 satisfactorily explained, justice ensues, where before it was hopeless ; if 
 unsatisfactorily, then this inability constitutes a circumstance of great 
 importance in arriving at correct decision. 
 
 Extra-judicial confessions in the English law, subject to so many in- 
 firmative circumstances as they are seen to be, and without the possibility 
 of correction, are yet by the judge considered as sufficient proof upon 
 which, in civil or criminal cases, to base a decision, which may be fol- 
 lowed by the severest penalties of the law. The civil law, on the other 
 hand, never grounds a decision on extra-judicial, nor in some instances 
 even on judicial confessions; a fact which may well deserve the considera- 
 tion of those interested in jurisprudential investigations, (m) 
 
 Pa7'ties to the cause, either plaintiffs or defendants, numerous. — Here, 
 besides the dangers already considered, new and additional evils arise. 
 The party, whose statements may be offered as evidence, though appa- 
 rently, may not be really interested ; or, being interested, there may exist 
 an adverse interest of greater magnitude, so, that the apparent loss, 
 which chiefly creates confidence in the confession, may be overbalanced 
 by a greater gain elsewhere. It may happen in case of numerous con- 
 tracting parties, that one ignorant of important facts known to the others, 
 or of the real state of the negotiations, may make statements, which, being 
 incorrect, though delivered with the most perfect integrity, may still be 
 as injurious as the most intentional perjury. Those errors, the other 
 parties if received might correct, but excluded, they remain at the mercy 
 of all those, with whom they may happen to be or to have been associated 
 by the plaintiff in his writ. The dangers of receiving this kind of testi- 
 mony and of excluding those by whom, if erroneous, it might be con- 
 trolled, increase in proportion to the number of parties and the complexity 
 of the cause. 
 
 The common law presents a striking contrast to the rules of equity on 
 this subject. In equity, when the defendant's premeditated answers are 
 given on oath and with the aid and advice of counsel, the answer of one 
 
 (to) a confession duly made and satisfactorily proved, is sufficient alone to war- 
 rant a conviction without any corroborating evidence aliunde. Wheeling's case, 
 1 Leach, 311 ; Rexv. Eldridge, Euss. & Ey. 440, 481. 
 
 The law of Scotland does not authorize a conviction upon the evidence of an 
 extra-judicial declaration alone, however explicit and however well attested as the 
 free act of the accused, &c. Glassford on Evidence, 344, 345. 
 
 By the Bavarian law, confession is not sufficient to convict independent of other 
 corroborative proof. 8 For. Quarterly Rev. 299. 
 
 The confession of a party, in order to have the effect of full proof, must be free, 
 express, and taken before a judge. Extra-judicial confessions may raise a pre- 
 sumption, but they never constitute full proof. Tand. Ins. Dutch Law, 261. 
 
HEARSAY EVIDBNCB AND CONFESSIONS. 183 
 
 co-defendant is not received against the other, because, " there is no 
 issue between the parties and there has been no opportunity for cross- 
 examination. 'Yn) The confessions of a party are answers, differing only, 
 that they are answers taken in the worst possible shape, and reported to 
 the judge in the most dangerous mode j answers elicited without any 
 security, without any regard or reference had to the rights of the indi- 
 vidual answering, or of his associates, without even knowledge on his 
 part that an answer is being obtained, and without the slightest efforts 
 for accuracy, correctness or completeness. The reason good in equity, 
 why permit at common law, when there is no " issue between the parties 
 and no cross-examination," the unguarded, incomplete and casually 
 uttered remarks of one plaintiff or defendant to he used to the prejudice 
 of his associates ? Why, in criminal cases, whenever life is at stake, 
 allow a defendant, to be a witness against his associates, without oath or 
 cross-examination, and against their consent ? Where the party, whose 
 supposed confessions are given, suffers alone, the principle that consensus 
 tollit errorem, may, if he mean to confess, be considered as a justification 
 such as it is, of the admission of the testimony. Here, others against 
 their will and without the power of explanation or of cross-examination, 
 may be bound by confessions either false or erroneous in themselves, or 
 falsely and erroneously reported. 
 
 Exceptions. — The confession is heard — the explanation refused. 
 Heard — but when and under what restrictions and limitations — and, 
 if any, for what cause are they imposed ? and how do they comport 
 with the integrity of the general rule on the subject? 
 
 " Confessions made under some circumstances are not admissible. 
 When they are entirely voluntary, they are to be received ; but when 
 they are drawn out by any{o) expectation of favor or by menaces, they 
 are to be rejected. The reason on which confessions so drawn out are 
 excluded, is not because of any breach of faith in admitting them, nor 
 because they are extorted illegally (though there may be cases in which 
 this would exclude them, as when a magistrate puts the accused upon 
 his oath,) but the reason is, that in the agitation of mind in which the 
 party is supposed to be, he is liable to be influenced by the hope of 
 advantage or the fear of injury, to state things which are not true. In 
 this connection it may not be improper to state that this influence 
 which is to exclude the party's confession, must be external influence 
 and not the mere operations of his own mind. It may be that his own 
 reasonings may induce him to think that he will derive advantage from 
 a confession, and he may be thus led to state things which are untrue, 
 but there can be no evidence of that fact." 
 
 (n) GresIey'B Equity Br. 24. 
 
 (o) By Morton, J., in Comm. v. Enapp, 9 Pick. 497: "The slightest influence 
 is sufScient to exclude them." By Wilde, J. -. " In China, the accused is directed 
 to be tortured to extort a confession, if tlie case appears suspicious. The merit 
 of a voluntary confession seems prodigiously overrated ; for any one, who comes 
 to a magistrate and freely confesses a crime before he has been charged with it, 
 is entitled to a free pardon, provided it be a first offence." 16 Ed. Rev. 489. How 
 could it be possible to have a confession without influence — the torture or the 
 promise of impunity?" 
 
184 APPLETON ON KTJLES OF EVIDENCE. 
 
 "A free and voluntary confession is deserving tlie Hghesticredit, . . . 
 but a confession forced from the mind by the flattery of hope or the 
 torture of fear, comes in so questionable a shape that no credit ought to 
 be given it; therefore it is rejeoted."(p) Without hope or fear, gain or 
 loss, when was ever a confession obtained. The confession voluntary — 
 it is an act of the will. To confess or to withhold confession ? The 
 mind, in a state of suspense, will, as in every other case, be governed 
 by the balance of opposing motives. The confession without or against 
 motive — -without hope or fear — ^the expectation of gain or loss ! — credat 
 Judceus Apella, nan ego. The common law judge, exceeding, in the 
 prominent characteristic of his nation, the all-credulous Jew — with full 
 faith expects action not according to, but against motive, and is on the 
 alert to prevent evil from the miracles of his own imagining. He takes 
 no thought, lest the descending waters, rushing over the banks, should 
 devastate the surrounding plains. His fears are, that, by some new 
 law of nature, ascending the hills, they should sweep away all the 
 labors of man. 
 
 The motive internal, the confession is received ; external, rejected. 
 So the motive be not verbally suggested to the mind of the prisoner, no 
 harm will arise. But the hope or fear may exist and not be perceived 
 in its actual workings. It does exist, whenever there is confession. No 
 confession exposing the individual to dishonor or danger was ever made 
 without some adequate inducement, some hope or fear, some gain or 
 loss, some pleasure or pain, which it was anticipated would ensue there- 
 from ; a hope or fear arising either from the suggestions of the indi- 
 vidual's own mind or from those of another, but equally existing and 
 acting, wherever may have been their origin. Whether this inducement 
 arise ah extra vel ah intra, its effect is none the greater or less for that 
 cause. The only difference is in the ease with which its existence can 
 be established. The hope or fear ah extra — the individual whose lips 
 uttered the inducement was external to the party confessing, but the 
 mind of the party confessing was responsive to these suggestions, else 
 confession would not have ensued. It arises ah intra. The prisoner 
 has arrived, from his own course of reasoning, to the same result, which 
 in the former case was presented to his mind by some one else. Will 
 then his convictions be the less forcible because they are his own and 
 not another's ? In each case the motives and their action are identical, 
 the person upon whom they act, and the result the same ; yet, evident 
 as all this is, the common law acts upon this ideal distinction between 
 external and internal motives, excluding in the one and receiving in the 
 other, as though all were not equally internal, and none the less so, 
 because suggested by some one external to the party confessing. The 
 mind is the seat of action. And all motives there act and are internal, 
 howsoever or by whomsoever presented. 
 
 Confessions, obtained " by the flattery of hope or the torture of fear," 
 are excluded, not from any regard to public faith or the illegal mode in 
 which they may be obtained, but solely from a fear lest they may not be 
 true. If not true, the individual confessing guilt, is innocent. The 
 
 (p) 2 Russell OQ Crimes, 645. 
 
HEARSAY EVIDENCE AND CONEESSIONS. 185 
 
 danger guarded against is, that of innocence falsely confessing guilt. 
 The confession of guilt without motive, is as probable as gravitation re- 
 versed. The voluntary confession can only be heard. Innocence, it is 
 feared, against every motive of self-regarding nature, will confess unreal 
 crimes. Guilt comes in for no favor, for confessions obtained even by fraud 
 or artifice, are received. ( q^ It is assumed, to lay the foundation of the rule, 
 that in the majority of cases, or at any rate in so great a proportion of them, 
 that preponderant evil will result from admission rather than rejection, 
 that whenever external inducement is oiFered, as in the greater propor- 
 tion of instances, the party to whom it is offered, is innocent, and being 
 innocent, will still, carried away by the inducement offered, confess 
 unreal crimes — the evil for the prevention of which this rule of law is 
 established. 
 
 But what is the probability of the occurrence of this evil? In all 
 cases, where a confession is made upon an intimation that it would be 
 better to confess, the guilt of the individual addressed is implied, on the 
 part of the person offering the inducement. The basis of the suggestion, 
 the hypothesis upon which the advice is predicated, is guilt. No advice 
 is offered, no inducement held forth, to induce innocence to confess 
 unreal crimes. Each party, the individual to whom the inducement is 
 offered, and the individual offering, acts toward the other on the suppo- 
 sition of the existence of guilt. Would then such advice, assuming 
 guilt and advising escape through the means of true confession, induce 
 innocence to jeopardize itself by a false one? or, if not to jeopardize — 
 to aid itself by a false one? Is the admission of guilt the natural course 
 by which innocence would seek to escape ? The individual to whom 
 the inducement is held forth, knows that it is addressed to him as 
 guilty, being innocent, would he be likely, for any the slightest induce- 
 ment, to permit that implication to remain undenied ? 
 
 Absurd as such a reason for exclusion is, its absurdity is more fully 
 manifested upon examining some of the instances in which, in pursu- 
 ance of this exception, confessorial testimony has been excluded. 
 
 In Kex V. Shepherd,(r) the constable who apprehended the prisoner 
 for larceny, asked him what he had done with the property, and saying, 
 " You had better not add a lie to the crime of theft." A confession 
 thereupon made to the constable was held inadmissible. Why ? The 
 advice is to do what ? not to lie. Fearing lest the innocent, moved by 
 such strong inducements, should falsely confess, what was said is ex- 
 cluded. To the unlearned in the law, the advice would seem proper • 
 by learned eyes it is looked upon as dangerous in the extreme, ensnaring 
 innocence within the meshes of guilt. Had the advice been to add an 
 additional offence to that committed, would the confession have been 
 received or not ? 
 
 "I should be obliged to you if you will tell us what you know about 
 it : if you will not, of course we can do nothing.'Ys) The threat therein 
 contained seems not very apparent ; the hopes or fears .excited in the 
 mind of the prisoner, imperceptible save to legal vision; whatever of 
 
 (g) The court in Rex v. Danington, 2 0. & P. 418, received as evidence against 
 the prisoner, a letter purloined by the turnlsey. ' M 7 C. & P. 579. 
 
 (s) Bex V. Partridge, 7 C. & P. 557. The confession thereupon made was excluded. 
 
186 APPLETON ON RULES OF EVIDENCE. 
 
 inducement there may be, is not to confess, because if lie will not, the 
 prisoner is told that nothing can be done. Unless he will admit crime, 
 he is distinctly informed he is safe. Would such language induce 
 guilt, certain of impunity if silent, to turn self-accuser ? Would it induce 
 innocence doubly safe, safe from its own purity, safe from the admitted want 
 of inculpatory evidence, falsely to acknowledge the commission of crime? 
 
 ",He only wanted his money, and if the prisoner gave him that, he 
 might go to the devil if he chose," — thus courteously entreated, the 
 prisoner took lis. 6rf. out of his pocket, saying, " it was all he had left of 
 it,"— .-but the confession was excluded. (;) The intimation here is guilt. 
 There was guilt, else the money could not have been refunded ; yet the 
 common law adjudges its exclusion. For fear of untrue confessions, 
 true ones are rejected. 
 
 " Give me a glass of gin and I will tell you all about it."(7{) The 
 glass of gin given, the confession is inadmissible. For such motives, 
 the common law assumes, innocence will put on the soiled robes of guilt. 
 Such the inducements which judicial wisdom considers as adequate to 
 produce false confessions. From what source does it draw such conclu- 
 sions? From the recesses of the human heart? 
 
 Such are some few instances taken as mere illustrations of the practi- 
 cal workings of the exception already considered. In each case, was 
 there not guilt ? Would not one imagine that the criminal had " friends 
 at court ?" That here, as everywhere else, over the whole field of 
 judicial legislation, the judge was the sworn accomplice — leagued by 
 the strongest ties to aid — always on the watch, seeking for reasons or 
 the pretence of reasons for the exclusion of what, if admitted, would disserve 
 the guilty. Judge-made law, iinot made, is as if made, by and for him. 
 
 But " the inducement must ]>e of personal nature. It may be sup- 
 posed that a desire to benefit a child or other near relation, may hold 
 out as strong an inducement to falsify, as when the advantage contem- 
 plated is entirely personal. "(i)) True it might be so supposed; it would 
 be by any one but a common lawyer. But these judicial weighers and 
 gaugers, knowing of no feeling but that of self, abstracted from all con- 
 necting links with the rest of humanity, by their scales give the prepon- 
 derance to a farthing in money or in gin, when compared with the 
 honor, reputation or even life of a father, brother, or child, — and this 
 estimate they call "the perfection of human reason." 
 
 But the supposed inducements may not have been offered, or notwith- 
 standing they were, the confessions may be true. 
 
 The danger feared is of false confessions. The danger evident, so be 
 it; the man of the law should watch. But to what purpose? To 
 
 (t) Rex v. Jones, R. &R. 0. C. 152. (u) Rex v. Sexton, 2 Russ.C. &M. Rep. 645. 
 
 " The prisoner ought not to be dissuaded from making a perfectly voluntary 
 confession, because that is shutting out one of the sources of justice." By Gurney, 
 J., in Rex v. Greene, 5 C. & P. 312. 
 
 " Now I think as the witness did not caution the prisoner not to confess, it would 
 he unsafe to receive such confessions." By Patterson, J., in Eex v. Swatkins, 
 4 0. & P. 548. 
 
 Such is the advice of the judge, as to the duty of all, and magistrates as well 
 as others, in case of confessions. When thus clearly set forth who could expect 
 error? (w)' By Morton, J., in Comm. v. Knapp, 9 Pick, 497. 
 
HEARSAY EVIDENCE AND CONFESSIONS. 187 
 
 ascertain whether in fact the supposed inducements were oifered ; if 
 offered, whether they were to any, and if to any, to what extent effective ; 
 and to see that he be not thereby deceived if they be false. But be- 
 cause improper inducements may be offered, or false confessions made, 
 are all to be excluded ? If the confession be true, does any inducement, 
 whatever it may be, destroy its verity? If true, its exclusion is of just 
 so much truth. It would be received, were it not for the supposed 
 sinister action of the motive. Because hope or fear exist, who will say 
 its action is of necessity in that direction ? Its sinister action ipust be 
 assumed, else the reason fails. But whatever the direction of the 
 motive, it may be overbalanced by other motives, acting in an opposing 
 direction ; if so, the testimony should be received. What the direction 
 of the motives — what their strength — what the opposing forces in any 
 Sjiven case, would seem the proper subjects of inquiry. Such are not 
 the inquiries of the common law judge. He can see but one motive, 
 acting in one uniform direction on all men and at all times. Wherever 
 he sees a motive, which he conceives may act in a sinister direction, he 
 infers that it can act in no other. The many-sidedness of man, the 
 infinite complexity of his internal nature, the innumerable, varying, 
 opposing motives which may operate upon that nature, never occur to a 
 mind which has established as an axiom, the universally perjurious power 
 of a farthing, whether in possession, reversion, or remainder. 
 
 Whether the confession of guilt be caused by hope or fear, and 
 whether, if so caused, it be true or false, are, or rather should be, ques- 
 tions of fact,(w) to be determined in the same mode as all other similar 
 questions. The visionary and theoretic judge, ignorant of the parties, 
 of the motives inducing, and the attendant circumstances, decides 
 before hearing, that all confessions thus obtained will be false. How 
 can his judgment compare with the practical man, who perceives not 
 merely the insulated fact, but the circumstantia — the surrounding and 
 concentring facts. Why not permit the jury to decide on this as on any 
 other evidence, and to determine from the whole submitted, whether the 
 confessions are false or not? Because centuries ago it was judicially 
 foreseen, with more than prophetic vision, that through all coming time, 
 confessions extorted by hope or fear, or the slightest inducement of any kind 
 would be false, and being false, their future exclusion was foreordained. 
 
 Notwithstanding the rules of law on the subject, the testimony thus 
 excluded, in some very important respects, is more entitled to confi- 
 dence than the supposed voluntary but unintentional confession, of the 
 prisoner, which the law considers the " highest evidence," because it is 
 
 (w) State V. Jenkins, 2 Tyler's Vt. Rep. 377. " The confession of a person on 
 trial for a crime, must be submitted to and weighed by a jury; if extorted by per- 
 sonal suffering, it ought not to weigh in the least, — if produced by fear or flattery, 
 the jury must determine whether it is true or not; but if unsupported by corrobo- 
 rating circumstances, it cannot operate to convict." 
 
 " Indeed, I have sometimes doubted whether confessions, with their accompany- 
 ing circumstances, ought not always to be received in evidence ; but the law is settled 
 otherwise." By Morton, J., in Oomm. v. Knapp. 
 
 The expediency of the law as it is, does not seem to commend itself to the clear 
 head and sound and discriminating mind of Mr. Justice Morton. Indeed, nothing 
 but the inviolability of precedents sustains much of what is laid down as law. 
 
188 APPLBTON ON RULES OF EVIDENCE. 
 
 a confession made and uttered as such, — and very little likely to be 
 made unless true; while much of what is received is mere casual, 
 thoughtless remark, and entitled to little weight. Confessions, " influ- 
 enced by the flattery of hope or the torture of fear," it is seen, have 
 been excluded in criminal cases, because instead of " accelerating and 
 clearing," they "impede and foul the current of justice. "(a;) But the 
 same confessions of the same individual, excluded in a criminal trial,^j() 
 transferred to the civil side for judicial use, are unhesitatingly received. 
 To preserve an apparent self-consistency, the judge has found it neces- 
 sary to change either his wig or his title, when he reversed the rules of 
 law on the same subject; but in this instance the formality is dispensed 
 with. Excluded in a criminal case, because the confession was caused 
 by hope or fear, and consequently untrue, the same reason should apply 
 with equal cogency in a civil cause, unless it be that truth is less desira- 
 ble in that class of actions, or that the same statement varies from truth 
 to falsehood, and back, according to the use to which it is appropriated. 
 But it would seem, that with the most utter inconsistency, the same 
 reason, with the same testimony of the same individual, and in relation 
 to the same facts, ceases to be applicable in case the process is changed 
 from the state as plaintiff to that of the individual injured. 
 
 Disastrous as is the action of hope or fear on innocence, excluded as 
 are confessions obtained through their action, lest the current of justice 
 should thereby be " impeded and fouled," it would seem that their sin- 
 ister effect ceases when applied to guilt. The accomplice, testifying 
 under a hope of pardon, dependent upon his testimony, is received. In his 
 case, the desire of self-preservation may induce falsehood to the injury of 
 innocence. That it should, is as, if not more, probable, than that innocence 
 should attempt escape through the devious path of false confession. If 
 those motives will induce innocence to state untruth, will they not be 
 likely to have more power over guilt ? and will not guilt sooner testify 
 falsely to the injury of innocence, than innocence turn its own destroyer? 
 
 We have thus analyzed and compared some of the inconsistencies of 
 the law on this subject. Were it more fully examined, those inconsistencies 
 might be still more clearly developed. But the object in view will be fully 
 answered, if the attention of others should be called to the subject.(2;) 
 
 (x) 6 Pet. Abr. 83, Confessions. 
 
 (y) Parol evidence of a confession, made under a promise of pardon, is admissible 
 in a civil action : tiie public ofiBcer cannot, by such engagements, aifect the rights 
 of individuals. Patten v. Freeman, 1 Cox, N. J. Rep. 113. 
 
 If untrue, the rights of individuals require the exclusion of such testimony, in 
 civil equally as in criminal cases. 
 
 («) The Mahometan law prefers confession before all other evidence ; but to found 
 a conviction of murder, the confession mustdeclare the deadly act to have been wil- 
 ful. Whatever may be stated in explanation, is to be taken as part of the confession. 
 
 In case of fornication, the confession requisite to establish the charge must be 
 made by a person of sound mind and mature age, at four different times, at four 
 different sittings of the Kazee, who is directed to turn the party away, without re- 
 ceiving the confession till the fourth time, and is authorized to suggest a denial or 
 the mention of circumstances which may exculpate or absolve from the legal penalty. 
 
 Confessions may be retracted at any time, even during the infliction of pun- 
 ishment, and the party must then be set free. A conviction cannot be founded 
 partly on confession and partly on evidence. 
 
 Report on the affairs of the East India Company to the House of Commons, in 
 1832, Judicial. Part 2, p. 699. 
 
CHAPTER XII. 
 
 HEARSAY EVIDENCE. 
 
 In the case of confessional hearsay, the party, whose supposed hear- 
 say declarations were used, was or might have been present and subject 
 to confrontation and judicial interrogation. No reason, no sufficient 
 reason, it has been seen, exists for not enforcing his attendance and pro- 
 curing his testimony under the best possible forms and with the highest 
 securities for trustworthiness. Instead of which, rejecting his testimony, 
 the common law receives his hearsay, confessional declarations under 
 circumstances the most dangerous to the interests of justice, and in utter 
 disregard of the true principles of correct judicial administration. 
 
 In the ordinary case of testimony, it is the testifying witness on whom 
 reliance is placed and upon whose testimony judgment is formed. In 
 the case of hearsay, whether confessional or other, there are at least two 
 and may be more witnesses, whose conjoint testimony, original and re- 
 ported, serves as the foundation of judicial decision. When the per- 
 cipient and the narrating witness are united in the same person, if he 
 speak the truth and be believed, he determines the cause. In hearsay, the 
 narrating is avowedly not the percipient witness ; he speaks or purports to 
 speak from the narration of others and those others are the efficient witnes- 
 ses. There may have been no such supposed relators, whose alleged con- 
 versations the testifying witness reports ; or, being such, their relations 
 may have been partially or entirely false, either from simple incorrectness, 
 incompleteness, temerity or design ; or, being true, they may have been 
 misunderstood, misrecollected or misreported. 
 
 The same evidence is designated by different names, according as the 
 person, whose rights are thereby to be affected, varies; confession, when 
 used against the party from whose lips it is supposed to have proceeded; 
 hearsay, when offered to affect the rights and interests of individuals 
 other than the party uttering or supposed to have uttered such state- 
 ments or those succeeding to his rights. As confession, the party, the 
 real witness attainable and excluded, the propriety of its reception has 
 been examined. As hearsay, the witness dead or unattainable, the ques- 
 tion of admission is presented under very different conditions. This ques- 
 tion we propose to consider. 
 
 Hearsay being an inferior species of evidence should never be received, 
 except in those cases, when from death or other sufficient cause, better 
 proof is unattainable. This subject will therefore be examined in re- 
 ference only to such cases, for if better evidence is attainable, no suffi- 
 cient reason for withholding it can be imagined. 
 
 Maboh, 1859.— 14 
 
190 APPLBTON ON RULES OF EVIDENCE. 
 
 In the case now proposed for examination, the real witness, whose 
 supposed statements, verbal or written, constitute the proof offered, has 
 deceased, and his presence and judicial examination are unattainable. 
 In the case of confession, the party being examinable if required, his 
 hearsay declarations are not the best evidence ; but here the original wit- 
 ness being unexaminable, they are. 
 
 It is desirable, that all evidence offered in judicial proceedings should be 
 true ; but all evidence offered is not true ; yet that circumstance furnishes 
 no sufficient argument for the exclusion of any testimony, unless it can 
 be judicially foreseen and foreknown that such testimony will be false. 
 To exclude, is to assume such falsehood as certain, before the evidence 
 excluded has even been heard. 
 
 It is equally desirable, that all testimony should have all possible and 
 conceivable securities for trustworthiness, but if from any cause, the at- 
 tainment of one or more of those securities becomes physically imprac- 
 ticable, that will not suffice for the rejection of such evidence thus ob- 
 tained, if it have any the slightest probative force. No circumstance, 
 which gives the least clue to the detection of crime, is to be disregarded ; 
 nor should any evidence, howsoever weak if of any force, be, rejected. 
 
 The best evidence, the highest securities for testimonial veracity are 
 required ; but the best theoretic evidence, the best theoretic securities, 
 may be unattainable. The best evidence, and the best attainable evi- 
 dence, mean or should mean one and the same thing. " The mean- 
 ing(a) of this rule is, not that courts of law require the strongest possible 
 assurance of the matter in question, but that no evidence shall be given, 
 which from the nature of things supposes still greater evidence behind 
 in the party's possession or power." " It(6) never excludes evidence, 
 which is the best that can then be produced by the party." 
 
 If then, these principles be adopted, it would seem to follow, that 
 when the witness is dead, his declarations in whatsoever form attainable 
 should be received. But logical conclusions, from principles ever so 
 well established, will generally be viewed by the court as legal non sequi- 
 turs. Accordingly, this evidence logically admissible, legally is ex- 
 cluded. 
 
 Evidence may be true, whatever or howsoever much the securities for 
 trustworthiness may be wanting. It may be true without, it may be 
 false with them all. Whether it will be true or false is given to no pro- 
 phetic vision to foresee. 
 
 The utmost possible securities for trustworthiness should be ob- 
 tained, but if from any cause these securities are unattainable, the argu- 
 ment thereby afforded is for caution and circumspection, not exclusion. 
 When evidence with all known securities for truth can be had, nothing 
 will justify the reception of that which is inferior in strength and trust- 
 worthiness. These securities unattainable, and the evidence excluded, 
 it being the only existent proof of the subject-matter to which it refers; 
 injustice, misdecision, irremediable, inexcusable, is the inevitable conse- 
 quence. 
 
 (a) 1 Phil. Bv. 176. (j) 1 gtark. Ev. 39. 
 
HEARSAY EVIDENCE. 191 
 
 While then on the one hand, no evidence should be received without, 
 if obtainable with the highest securities for Veracity, so on the other hand 
 no testimony should be excluded on account of any deficiencies, which 
 are unavoidable. 
 
 The whole conduct of life, its ordinary transactions, the most impor- 
 tant mercantile negotiations, all historical facts, the proofs of our religion, 
 are based on evidence, which no court of common law would receive as 
 deserving of any — the slightest reliance. It is then abundantly mani- 
 fest, that the judicial mind is governed by rules which are entirely dis- 
 regarded in the ordinary transactions of life. 
 
 The epistles of Paul, the journal of Columbus, the letters of Washing- 
 ton, would not be adjudged competent to establish any fact, which being 
 in issue might be determined by their production ; not because, if re- 
 ceived they would not satisfy every individual of the facts therein con- 
 tained ; but because, while having probative force sufficient to command 
 the belief of every mind, to which they should be communicated, it 
 is feared danger would be likely to arise from submitting such testimony 
 to the consideration of the tribunal, by which rights are to be adjudicated 
 upon. Were Paul, or Columbus, or Washington living, the reasoning 
 by which this testimony would be excluded might be considered as un- 
 answerable ; dead, their evidence thus delivered satisfactory to every 
 body else, to the judge alone seems without force. (c) 
 
 " In the common concerns of life, evidence of this nature is frequently, 
 nay, usually acted upon without scruple ; but in the ordinary affairs, there 
 is, in general, no considerable temptation to deceive ; on the contrary, a 
 legal investigation of a fact which involves the highest and dearest in- 
 terests of the parties concerned, property, character, nay liberty or life 
 itself, presents the greatest possible temptation to deceive ; and therefore 
 that evidence, which is admitted before a jury must be guarded and se- 
 cured by greater restraints and stricter rules than those which are sufficient 
 for the common purposes of life.^fci) Hearsay then is evidence " acted 
 upon without scruple in the ordinary affairs of life," evidence of " great 
 moral weight," evidence from which men of " common sense and experi- 
 ence derive much assistance" in coming to just conclusions ; but which 
 judicially has no moral weight, and from which judicially no assistance 
 could be derived in coming to just conclusions, or, if any, the danger 
 from such aid exceeds the probability of good, so that practically the law 
 says no aid can be derived from this kind of proof. Acted upon without 
 
 (c) Not without force, but still worse, having force and excluded. " By the rules 
 of evidence established by the courts of law, circumstances of great moral weight 
 are often excluded, from which much assistance might in particular cases be 
 afforded in coming to a just conclusion lest they should produce an un- 
 due influence upon the minds of persons unaccustomed to consider the restric- 
 tions and limitations which legal views on the subject would impose." Wright v 
 Totham, 34 E. C. L. R. 114. S. C. 33 E. C. L. R. 456. S. C. 28 B. C. L. R. 11." 
 S. C. 2 RusB. & Mylne, 19. "There are many acts involving a great sacrifice of pre- 
 sent interests . . . and therefore as moral evidence, they may be very cogent; yet 
 does the law more rigid and inflexible resist the weight of such moral evidence 
 although in the ordinary transactions of common life, common sense and experi- 
 ence might possibly yield to it." S. C. 33 E. C. L. R. 456, 457. 
 
 (d) 1 Stark. Ev. 43. 
 
192 APPLBTON ON KULES OF EVIDENCE. 
 
 scruple and to advantage in the ordinary affairs of life, why is or should 
 there be a different rule in judicial investigations ? 
 
 Judicial investigations may involve " the highest and dearest inter- 
 ests," yet such cases are rare; — its usual and common action is upon the 
 " ordinary affairs of life," in which it would seem this testimony is de- 
 serving of credence. When cases of this description are brought before 
 the court why not receive testimony thus proved and approved ? How 
 or why does the probative force of the same fact, proved in the same 
 way, change, whether used as the foundation of a judgment judicial or 
 extrajudicial ? How or why does the ability of the individual to weigh 
 it vary, whether it is used for one purpose or another ? Even in impor- 
 tant cases, oases involving the highest interests, why adopt rules different 
 from those which serve for guidance in the " common and ordinary 
 affairs of life ?" This species of evidence is " very cogent" — has " moral 
 weight" — and justly or not; if yea, the more important the cause, the 
 greater necessity of its introduction ; the force of the same proof is un- 
 changed, whether used in an important/e) or an unimportant cause, — 
 one involving larger or smaller interests ; if nay, why ever trust to a 
 broken reed, why ever rely on such evidence ? 
 
 Two reasons have been assigned for the rejection of this testimony, 
 first, its inherent defects, as testimony, and, secondly, the character of 
 the tribunal which is to decide upon it. 
 
 A distinguished writer on evidence,^/) an exclusionist upon principle, 
 thus illustrates this subject. " Suppose that A., a person of undoubted 
 credit, had asserted, that he saw B. inflict a mortal wound upon C. ; a 
 party who knew A. to be a man of the strictest veracity, and who was 
 also convinced that he had gravely made that assertion, would necessarily 
 attach some degree of credit to it, and its effect might be to turn the 
 scale and to create in his mind a conviction of the truth of the fact, of 
 which he might otherwise have doubted. In such case, therefore, if A. 
 be dead and B. charged with the death of C, why should not the de- 
 clarations of C. be admitted as evidence ?" Were the proposition gene- 
 ralized to all cases of the declarations of deceased witnesses which have 
 a bearing on the cause, the same question occurs. The question thus 
 generalized is answered in the negative. The reasons therefor are now 
 to be considered. 
 
 « It may be answered," the same writer proceeds to add, '< that the 
 law must proceed by general and by certain rules. If, therefore, the 
 mere declarations of A., in this case, were to be admitted, it would 
 follow, that the declaration of every other person, with respect to every 
 other disputed fact, would be admissible. The consequences would be 
 to let in numberless wanton, careless, and unfounded assertions, un- 
 worthy of the least regard. The principle would extend to all the loose, 
 idle and contradictory conversation, that had taken place upon the sub- 
 
 (e) Important— unimportant — no case without importance ; important to one 
 from the amount, it may be unimportant to another. A dollar is important to the 
 day-laborer, unimportant to the millionaire. Do principles therefore change ? Is 
 the property basis to determine the admissibility of evidence 7 
 
 (/) 1 Stark. Bv. 44. 
 
HEARSAY EVIDENCE. 193 
 
 ject in dispute, to none of which any degree of credit could be safely 
 attached ; and, above all, the evidence would be wholly unsupported by 
 those tests of truth which the law in general requires ; it would not rest 
 upon the obligation of an oath : there would be no certainty, either as 
 to the means of knowledge or as to the faithful transmission, by the 
 asserting party, of that which he knew." 
 
 « The law must proceed by general and certain rules." True, but the 
 generality of those rules, the certainty of those rules, is the same, whether 
 they are rules of admission or of exclusion. They may be as general, as 
 certain, receiving as excluding the testimony. The true question is, not 
 the certainty or the generality, but their logical propriety, their fitness 
 to promote the real purposes of justice. They may be ever so general 
 and ever so certain, and as bad as they are general and certain. 
 
 "If, therefore, the mere declarations of A., in this case, were to be 
 admitted, it would follow, that the declarations of every other person 
 with respect to every other disputed fact, would also be admissible." 
 Admissible, but only in analogous cases, not under dissimilar circum- 
 stances. If the declarations of A. were received, it would by no means 
 follow, that the declarations of B., a witness living and subject to the 
 process of the court, should be received as to any or every other fact, 
 when better evidence is within its power. If the admission of the de- 
 clarations of A. be in themselves proper, though that admission be 
 followed by ever so many similar ones, it would be no objection to the 
 first precedent. The danger feared is not so much in the case cited by 
 way of illustration, as in the illegitimate inferences, which it is feared 
 may be drawn from the premises. 
 
 " The consequence would be to let in numberless wanton, careless, and 
 unfounded assertions, unworthy of the least regard." The evidence 
 proposed by way of sample has none of the qualities suggested. Why 
 the admission of evidence of that description is necessarily to be followed 
 by the consequences suggested, is not so easily perceived. If "unworthy 
 of the least regard," if wanton, careless and unfounded," they would 
 probably receive but little regard. The receiving the declarations of de- 
 ceased percipient witnesses, does not justify the admission of " wanton, 
 careless, and unfounded" assertions. The inference exceeds the premises. 
 The premises are the admission of relevant, the inference the admission 
 of irrelevant evidence. 
 
 Whether thus " wanton, careless and unfounded" would seem to be a 
 question which could best be determined after the evidence was heard — 
 not before. If the evidence should be of the character anticipated, it 
 would hardly be offered, for it would be undeserving of credit ; if not, 
 then the anticipated objection would not arise. 
 
 " The principle would extend to all the loose, idle, and contradictory 
 conversations, that had taken place upon the matter in dispute, to none 
 
 of which could any degree of credit be safely attached." The principle 
 
 what principle would thus extend ? The reported testimony of the sup- 
 posed percipient, but now deceased witness, consists only of such facts 
 as could have been proved by him, if living; of facts seen, heard, known 
 by him. The hearsay would be of competent evidence. It involves no 
 
194 APPLETON ON RULES OF EVIDENCE. 
 
 new rules. " Loose, idle, contradictory, conversations" of deceased wit- 
 nesses would no more be received, because the witness, whose conversa- 
 tions they purport to be, is dead, than if he were living. The difference 
 in the two cases consists only in the medium, through which it comes ; 
 in the one case immediately from the living, in the other, mediately, 
 through the lips of the reporting witness. What is or is adjudged to be 
 pertinent, in either case, is alone to be received. The only difference is 
 in the mode of proving the same facts. 
 
 " Above all, the testimony would be unsupported by those tests, which 
 the law in general requires : it would not rest upon the obligation of an 
 oath." So far as those tests are valuable and are wanting, so far just 
 ground is afforded for deducting from the weight of testimony thus defi- 
 cient. The value of those tests established, their absence is the loss of 
 a corresponding degree of credibility. What is that value is a question 
 hereafter to be considered, when they shall form the subject matter of 
 discussion. But the admitted inferiority of this testimony is no ground 
 for its utter exclusion. 
 
 " There would be no certainty as to the means of knowledge or as to 
 the faithful transmission by the asserting party of that which he knew." 
 The means of knowledge on the part of the percipient witness, the 
 grounds of his statements, are partially or fully disclosed to the narrat- 
 ing witness, and those means, as disclosed, are by him made known, and 
 as far as they existed, to that extent alone, should credit be yielded to 
 them. Their faithful transmission by the percipient witness (fraud ex- 
 cepted, which is to be hereafter considered) so far as transmitted, is es- 
 tablished by that presumption of the general truth of testimony, which 
 experience has sanctioned. Its faithful transmission by the narrating 
 witness is guaranteed by the same securities, which suffice for all other 
 testimony. The certainty as to the means of knowledge and its faithful 
 transmission is the same as of every fact extrajudicially reported, and is 
 sufficient " for reasonable beings to form their judgments and act 
 upon,"(g') in the ordinary business of life. If no fact, unless judicially 
 proved, was sufficient to authorize human action, the whole fabric of 
 society would stop. 
 
 " If the circumstance, that the eye-witness of any fact be dead, should 
 justify the introduction of testimony to establish that fact from hearsay, 
 no man could feel safe in any property, a claim to which might be estab- 
 lished by proof so easily obtained. "(A) 
 
 The witness, by whom, if living, it might have been proved, that a 
 contract, note, deed or will, had been obtained by imposition, fraud or 
 duress, or, by whom any supposable fact important in its bearing to the 
 cause might have been shown, is dead. No occasion, where this testi- 
 mony could have been u.'sed, occurred during the life-time of the witness. 
 That a supposititious will existed, how, when, or in what manner procured, 
 that his name had been forged to a note, or that a deed, by which his 
 rights were impaired, had been obtained by duress ; the existence or need 
 of testimony, by which such facts might have been established, were all 
 
 (g) Wright and Totham, 33 E. 0. L. R. 431. 
 
 (A) By Marshall, 0. J., in Mima v. Hepburn, 7 Oranch, Rep. 290. 
 
HEARSAT EVIDENCE. 195 
 
 unknown to the party whose interests were thus endangered. There was 
 no existent cause, in which, if known, it could have been taken ; no 
 future cause foreseen in which its future use would be needed. The wit- 
 ness dies. Litigation arises. It is ascertained, that in a letter or memo- 
 randum made at the time, or in a conversation, casual or otherwise, the 
 witness had detailed facts, upon which important rights are subsequently 
 made to depend ; or that in a deposition in a cause between other parties, 
 in which similar or different rights were at stake, proof might be had 
 materially relevant to the cause now pending before the court. The de- 
 ceased was the sole witness of a fact now for the first time known, or, 
 known to be important. Death has closed the door to his production. 
 His conversations, his letters, his ex parte, his alia in causa depositions 
 exist. Without this proof, fraud with certainty succeeds ; without it, 
 total darkness reigns. With it, light uncertain, wavering, but light, 
 through a mere crevice, be it so, is obtained. Is it not preferable to 
 total darkness ? 
 
 " If, when the eye-witness is dead," his declarations, however clearly 
 made, however distinctly reported, are not received, how can any one 
 feel " safe" in his property, a claim to which " can only be supported 
 by proof of this description." Is not every such person " safer," are 
 not his rights " safer," are they not utterly insecure, save by the recep- 
 tion of this testimony? The feeling of "safety" in one's possession 
 more fully requires its reception than its rejection. It may as well be 
 necessary for the protection of right, as fabricated for the enforcement 
 of wrong. 
 
 " Proof so easily obtained,"(4) ..." evidence which may so easily 
 and securely be fabricated. "(/c) Why thus easily obtained, thus se- 
 curely fabricated? The narrating witness relates what he has gathered 
 in conversation from the deceased witness, with the same degree of 
 caution ; the proof is the same with which the court are satisfied in 
 relation to the reported statements or confessions of a party, or the extra- 
 judicial statements of any witness, when adduced to contradict his 
 judicial and sworn testimony. The witness, whether narrating the 
 statements of one living or dead, or any other fact in the cause, is sub- 
 ject alike to' the same penalties, bound by the same oath, scrutinized by 
 the same cross-examination, and would not, therefore, seem more to be 
 distrusted in the one case than in the other. He is as much a witness, 
 as credible a witness, when testifying to one set of facts as another. 
 Whether he relates his own perceptions or the reported perceptions of 
 another; the securities for testimonial veracity are the same in each. So 
 far as the public are concerned, the protection against perjury, so far as 
 the witness is to be regarded, the guaranties for his trustworthiness, are 
 as strong, the temptations to mendacity as weak, when testifying to 
 hearsay as when testifying to any other fact. Whence then -the ease, 
 the security ? It is the general ease and security of perjury, nothing 
 more. The ease of fabrication is not on the part of the judicial witness. 
 
 (i) " The frauds which might be practised under its cover " &c. 7 Oranch, 290. 
 (k) 1 St. Ev. 46. 
 
196 APPLBTON ON RULES OP EVIDENCE. 
 
 How is it as to the deceased witness. By the hypothesis, true in 
 every case except that of deliberate and preconcerted fraud, there is 
 integrity on the part of the deceased individuals, whose supposed decla- 
 rations are offered for admission, and, if so, reliance may be placed in 
 such declarations. 
 
 That this evidence might be fabricated, that letters stating false facts 
 might be written, that false entries might be made, that conversations 
 rehearsing non-existent acts, and designed for deception, might be held, 
 is established by judicial experience j for the forms of fraud are as 
 various as are the minds of those conceiving or committing it. But, by 
 the same experience, the still more frequent existence of perjury is 
 proved ; and shall, therefore, all testimony be shut out ? 
 
 The supposed witness, whose statements are offered, honest, the idea of 
 fabrication is at once precluded. The present or future importance of the 
 facts, their subsequent use, the case in which, the person for whom, the 
 time when, they are to be used, are alike unknown and unforeseen. 
 They are then the undesigned casual remarks of a percipient witness ; 
 incomplete, incorrect in detail, perhaps, but nevertheless deserving 
 consideration ; the same consideration which the statements of an honest 
 individual, extra-judicially delivered, should ever receive. The declara- 
 tions designed for future use, deliberately made, their value is thereby 
 enhanced. If incorrectly reported, by design, it is not fabrication, but 
 simple perjury. 
 
 The extra-judicial deceased witness dishonest ; in his lifetime pres- 
 cience was not vouchsafed him ; yet without the foreknowledge of such 
 future cause, the need of such fabricated testimony will not be per- 
 ceived, nor will the motive to its fabrication exist. 
 
 Future litigation anticipated, the need of this testimony foreseen, its 
 deliberate fabrication the result of preconcerted design, and in support 
 of an unfounded claim. Such the supposition. The alleged real wit- 
 ness, whose false declarations are prospectively made for future use, and 
 whose opportune death before the testimony will be required is not an 
 accidental but an essential prerequisite to its consummation, the party 
 to gain by the fraud, and for whose advantage these fraudulent prelimi- 
 naries have been concerted, and the intended narrating witness from 
 whom the evidence is to be received, are all interested in the success 
 and associated in the accomplishment of this scheme. It must be sea- 
 sonably entered into, ante litem motam, for if not according to law, 
 however good a plot, however excellent a plot, it must fail ; the fact 
 falsely asserted must be one unsusceptible of disproof, else it might be 
 contradicted ; and the cause one which will quietly Wait till all needed 
 arrangements shall have been made, and come, when being made it 
 shall be called for.(Z) 
 
 The individual, whose interests are thus to be subserved, is necessarily 
 a party, for mere speculative, abstract fraud, committed without motive 
 and for the benefit of another is not to be supposed. He must live and 
 
 (Z) " The purpose you undertake is dangerous, the friends you have named 
 uncertain, the time itself unsorted, and your whole plot too light for the counter- 
 poise of so great an opposition." 
 
HEARSAY EVIDENCE. 197 
 
 outlive, or dying, he must by nuncupative will or otherwise, bequeath 
 to some heir or devisee, equally unscrupulous, his false claim and his 
 fraudulent devices, else the false claim will never be asserted, nor the 
 fabricated proof, by means of which, its successful result is anticipated, 
 be known. 
 
 The supposed percipient and deceased witness was without legal or 
 personal interest, (except so far as he was induced by " the value 
 received," by which his aid was purchased) in the post mortem decep- 
 tion, hereafter to be effected. The consummation of the plot is to be 
 postponed till after his decease, whenever that may be, and if he be the 
 longest liver, it must entirely fail, unless some new and longer living 
 witness can be found to testify, who will supply the place and discharge 
 the duties of the deceased narrating witness. It was the duty of the sup- 
 posed percipient and deceased witness^m) to make certain declarations 
 either verbally or in writing, in and by which he asserted certain 
 facts false in themselves, and known to him to be false as having been 
 done to his knowledge, or certain conversations which were never had, 
 as having been held in his presence, with the intention and in the 
 expectation that at some period of time subsequent to his decease, they 
 would be used in the cause for which they had been thus studiously 
 prepared. Being exempt from the fear of punishment and the danger 
 of cross-examination, he makes these fraudulent and false statements to 
 some individual, who, after his decease, was to bear witness to them as 
 having been received from him, thus incurring the moral turpitude of 
 perjury without a risk of its legal penalties. 
 
 To be available, the selected narrating witness must not merely outlive 
 the supposed real witness, but he must live till the time shall arrive, 
 when this evidence shall be needed. A party to the fraud, restrained 
 by the sanctions of an oath, exposed to the risk of detection, probed by 
 the rigid and unsparing scrutiny of examination and cross-examination, 
 fabrication, and this peculiar mode of fabrication foreseen as probable, 
 foreseen as so proiahle, that the court would not wait till it should 
 occur, but in advance prejudged its future existence, and acted upon 
 such judgment, what is the danger of a fabrication like this, or if fabri- 
 cation be supposed pro|)able, what is the danger of its successful termi- 
 nation ? 
 
 Future litigation anticipated, that anticipation known to the party and 
 the narrating witness, what is the fact to be proved by these declarations; 
 one known to many, if so, they are liable to contradiction and disproof 
 by them, if living, by their reported declarations, if dead ; known to thq 
 deceased alone, or so alleged, why then was not his deposition so neces- 
 sary for the preservation of the rights in danger, taken ? Why not take 
 measures to preserve in the best form what it was so desirable should be 
 perpetuated ? Is such knowledge falsely denied, then is the narrating 
 
 (m) . . . . " It may be feared that persons who have as little regard to truth 
 may be induced to make false declarations, when they run no risk of punish- 
 ment in this world, as no use can be made of their evidence till after death." 
 Berkely peerage case, 4 Camp. R. 411. 
 
 (ra) 13 Pet. 209. 
 
198 APPLBTON OK EULES OE EVIDENCE. 
 
 witness guilty of perjury ; is it admitted, what satisfactory answer can 
 be given to the inquiry ? 
 
 The deceased witness a party to the fraud thus attempted, the narrat- 
 ing witness a party, the person calling him a party, the more individuals 
 cognizant of the scheme, the greater the chances of detection and failure. 
 Some one may repent of the intended fraud, death may intervene, or the 
 remembered declarations or preserved letters of some deceased or the 
 judicial testimony of some living witness may expose and defeat this 
 triple scoundrelism. 
 
 If there be fraud only on the part of the individual to be benefited, 
 and of the supposed percipient witness, how can it be known that this 
 predestined judicial witness will remember what, being innocent of de- 
 sign, may to him seem little worthy of recollection, or that if the fact be 
 one of apparent importance, he may not disclose it and thus prevent the 
 plans ever reaching maturity. 
 
 This species of testimony, from its inherent and unavoidable weakness, 
 presents no suflGicient motive for fabrication. The course is too devious, 
 the machinery too complicated, too liable to miscarriage, and too power- 
 less in its results, to be adopted by one studious of fraud though ever so 
 indifferent to the mode by which it is to be effected. A fortunate conjunc- 
 tion of circumstances, of facts unsusceptible of disproof, of trusty con- 
 spirators, of ever ready and judicious perjury, of duly preserved lives and 
 well-timed and obsequious deaths, is necessary, that the desired proof 
 should be ready at its need ; how much more then for its fortunate issue. 
 
 Analysed, the danger of fabrication and of perjury is one no more 
 peculiar to what is avowedly derivative, than to what is primitive, a 
 danger as applicable to any other mode of proving facts as this. Indeed, 
 less so, for fabrication and perjury are means too expensive and danger- 
 ous for the probable gain to be derived from this kind of evidence. The 
 weaker the probative force of this testimony, the less the danger. He, 
 who will resort to perjury or fabrication, to accomplish his ends, will 
 fabricate the best evidence. 
 
 " Another reasonTo) for the rejection of such evidence arises from the 
 nature and constitution of the tribunal whose minds are to be convinced. 
 If it were to be assumed, that one who had been long inured to judicial 
 habitsfp) might be able to assign to such evidence just so much and no 
 greater credit than it deserved; yet upon the minds of a jury unskilled 
 in the nature of judicial proof, evidence of this kind would frequently 
 make an erroneous impression. Being accustomed, in the common con- 
 cerns of life, to act upon hearsay and report, they would naturally be in- 
 
 (o) 1 St. Bv. 45. 
 
 (p) A specimen of what judicial habits will do. " Le parliament de Toulouse 
 a un usage bien singulier, dans les preaves par temoins. On admet ailleurs des 
 demi-preuves, qui au fond ne sont que des doutes ; car en fait qu'il n'y a point de 
 demi-verites : mais S, Toulouse on admit des quartes et des huitiemes de preuves. 
 On y pent regarder, par example, un oui-dire, comme an quart uu autre oui-dire 
 plus vague comme une huitieme : de sorte que huit rumeurs que ne sont qu'un 
 echo d'un bruit mal fonde, peuvent devenir un preuve complete ; et c'est £l peu 
 pres sur ce princips que Jean Galas fat condamne h la roue. Les Lois Bomaines 
 exigeaient des preuves luce meridiana clariores." Oeuvres de Voltaire, Tome xxxiv. 
 320. 
 
HEARSAY EVIDENCE. 199 
 
 clined to give such credit when acting judicially ; they would be unable 
 to reduce such evidence to its proper standard when placed in competi- 
 tion with more certain and satisfactory evidence ; they would, in conse- 
 quence of their previous habits, be apt to forget how little reliance ought 
 to be placed upon evidence which may so easily and securely be fabri- 
 cated ; their minds would be confused and embarrassed by a mass of con- 
 flicting testimony; and they would be liable to be prejudiced and biased 
 by the character of the person from whom the evidence was derived." 
 
 " Being accustomed in the common concerns of life to act upon hear- 
 say and report, they would naturally be inclined to give such credit when 
 acting judicially." Such credit, what credit ? The same which extra- 
 judicially they had given, judicially they would give. Why should they 
 not? 
 
 However little reliance there may be on this evidence, however easily 
 fabricated, the want of reliance, the ease of fabrication, is no greater in 
 judicial than in extrajudicial evidence. Indeed on examination it will 
 be perceived that judicial evidence presents the least opportunity for 
 fabrication, and the greatest means of detection. The situation of the 
 supposed percipient and deceased witness is not varied by any subsequent 
 fraud to be perpetrated through his testimony, in whatever mode it be 
 effected. The narrating extrajudicial witness fabricating or reporting 
 the fabrications of others, is neither under the obligation of an oath nor 
 subject to the scrutiny of adverse interrogation. Not so when judicially 
 a witness. Oath and cross-examination are operating on his mind. He 
 is liable to detection and consequent infamy and punishment. The hear- 
 say witness quoad the facts related by him is equally under the whole- 
 some restraints of law, whether the facts related by him are his own per- 
 ceptions or the reported perceptions of another. The securities are the 
 same as exist as to all testimony. The danger is anterior to the last 
 witness, the narrating witness. The percipient or alleged percipient 
 witness, is in each case alike free from legal restraint. The difference 
 between the two cases consists in "this, that while in each the real witness, 
 as from the nature of the case he must be, is unseen and unscrutinized; 
 in the one case you have the narrating witness testifying under the 
 known and recognized securities for trustworthiness, in the other under 
 none. Now, unless those securities are positively pernicious, if this evi- 
 dence may be acted upon without danger in their absence in the ordinary 
 concerns of life, why not judicially, with their presence ? If a certain 
 degree of credit can be given to this testimony extrajudicially, why 
 should not such, nay, why should not more credit be given to it judi- 
 cially ? 
 
 " Unable to reduce such evidence to its proper standard." How or 
 why does this inevitably arise ? Does sudden inability seize the judge 
 of fact ? Is the investiture of the judicial function followed by judicial 
 blindness and mental imbecility. Competent with safety extrajudicially, 
 does his capacity vanish, as the securities for truth increase and the 
 dangers of falsehood diminish ? 
 
 " When placed in competition with more certain and satisfactory evi- 
 dence." Evidence of the highest and lowest character for trustworthi- 
 
200 APPLETON ON RT/LBS OF BVIBENCB. 
 
 ness, to be compared, and the jury incompetent to this task ? For what 
 are they competent ? " More certain and satisfactory" yielding to less 
 certain and satisfactory ? Unable to distinguish between more and less, 
 what can they do ? What possible case is there, where there is not this 
 comparison between the more and the less trustworthy to be made? 
 What easier to be done ? If it can, it is to be done ; why is the difficulty 
 greater in this than in other cases ? 
 
 " They would be apt to forget how little reliance ought to be placed 
 upon evidence which may be so easily and securely fabricated." They 
 know, it seems, but when specially called on to adjudicate upon a mass 
 of conflicting evidence, memory would fail then. Remembering out of 
 court, they forget in court. 
 
 " Confused and embarrassed by a mass of conflicting evidence." 
 What, then, should none but ex parte evidence be received ? To save 
 the judge of fact from embarrassment, shall all conflicting evidence be 
 excluded ? Shall causes be heard by the halves, lest if heard by the 
 whole there should be embarrassment and confusion on the part of the 
 judge ? Conflicting testimony excluded, decision is freed from embar- 
 rassment. All testimony excluded, and decision by lot, it is still less 
 embarrassing. Such the reason, the character of the judge of fact cor- 
 rectly given ; change your judge, not reserve all your sympathy for his 
 weakness, and none for the litigant. 
 
 " Because no man can tell what effect it would have on their 
 minds. "(j) Then no man can tell that it will have an undue and 
 improper effect on their minds. What effect ? The right effect pro- 
 bably. 
 
 In all controverted cases, there is much of conflicting evidence, some 
 of which is false, intentionally or not ; but of such testimony, of all testi- 
 mony delivered to a jury, the effect on their minds cannot be foreseen. 
 If this impossibility to foresee was a good cause for rejection, what proof 
 would be received? Must the effect of testimony be known by anticipa- 
 tion, before it can be introduced ? Because they cannot tell whether 
 this testimony would produce its just effect or not, must they shut it out 
 entirely ? Could they tell the effect, they would receive it. If they 
 cannot tell, why act as if they could tell, and tell, too, that its effect 
 would always be wrong ? Uncertainty as to the just appreciation of 
 testimony a reason for its exclusion ! Of what testimony can any one 
 be certain, that he will truly and accurately appreciate its force ? Is 
 there any ? How then can he, assuming infallibility, dare to determine, 
 that the judgment of others will always be erroneous. Is one's judg- 
 ment without the means of knowledge, better than with ? 
 
 A great fallacy is it to imagine, that, " whatever is morally convinc- 
 ing and whatever reasonable beings would form their judgments and act 
 
 (?) 4 Camp. Bep. 415. " The judges think there is uo danger in listening tQ 
 evidence of hearsay, because when they come to consider of their judgment on 
 the merits of the case, they can trust themselves to disregard the hearsay, or to 
 give it any little weight it may seem to deserve." Why not then receive it in 
 equity ? 
 
HBARSAT EVIDENCE. 201 
 
 upon may be submitted to a jury."(?-) Why not ? Is it because a jury 
 is not composed of "reasonable beings," or because the common law 
 presumes them not to be reasonable, and therefore will not submit to 
 their consideration what is "morally convincing?" Or is it that they 
 who prescribe these rules are not reasonable beings ? Want of reason 
 either in the court or the jury lays most manifestly at their foundation. 
 Is it in those who make, or those for whom, without fault on their part, 
 such rules have been made ? 
 
 The argument considered has no relation to the probable force, but 
 simply to the reception of the evidence. Its acknowledged inferiority 
 from the absence of certain securities in themselves desirable, will obvi- 
 ously detract much from the weight which this evidence would obtain, 
 but will not impair the positiop, that it affords some grounds for reliance 
 and should therefore be received. It may be laid down as a canon of 
 evidence, that no circumstance, however slight, no relevant testimony, 
 howsoever weak, which by any legitimate process of reasoning can aid 
 the jury in arriving at correct results, which can have any bearing on 
 the cause, should be rejected. 
 
 Of no testimony, of no witness, can the precise value and trustworthi- 
 ness be predetermined by any set and prescribed rules.(s) Of this, as 
 of all other testimony, the real value in each instance can only be ascer- 
 tained by a careful examination of the attendant circumstances. The 
 time when, the place where, the person to whom, the purposes for which, 
 the supposed declarations were made ; the situation and means of know- 
 ledge, of the witness making them, the mode in which made, whether 
 oral or written, the relation of the person making them to the party to be 
 benefited, — to the acts declared; — theaccuracy of his original perceptions, 
 his memory and the motives for such accuracy and recollection, the 
 mode of transmission, the number and situation of the individuals through 
 whom transmitted, their recital of them to the narrating witness and 
 the reasons of such recital ; whether designed or undesigned ; voluntary 
 or involuntary, interrogated or uninterrogated, whether made in expecta- 
 tion of future use or not; are facts to be carefully canvassed in determin- 
 ing the degree of confidence to be placed in this testimony. 
 
 To a similar scrutiny is the narrating witness to be exposed. His 
 account to the party calling him — when, where, by whom and for what 
 purpose was this supposed conversation, which he purports to detail, 
 commenced, how conducted, the attention of the witness, his recollection, 
 the reasons therefor, when was this knowledge made known to the party 
 by whom be is called, all, every fact, by which his situation can be 
 determined, is to be carefully examined, as on these depends the reliance 
 to be placed in his testimony. 
 
 (r) By Coleridge, J., in Wright v. Totham, 33 E. C. L. E. 431. This case, which 
 has for several terms undergone full discussion in the several courts of England 
 well deserves and will amply repay attention and consideration. ' 
 
 (s) How those interest-dreading, perjury-fearing chancellors weigh evidence is 
 seen in the rule by which such extraordinary confidence is required to be reposed 
 under all circumstances, in the wrong-doing defendant's answer. How civii 
 lawyers prescribe, is seen in their half, quarter, eighth proof, &c., &c. 
 
202 APPLBTON ON RULES OF BVIDBNCB. 
 
 The form in which the testimony was first embodied, or subsequently 
 transmitted, materially affect its value, not its admissibility. The per- 
 manence of written communication, its superiority as a mode of trans- 
 mission over oral, is abundantly apparent. The defects of oral hearsay, 
 defects of perception or transmission, have no existence in written hear- 
 say. If the original entry, letter, or document be produced, which 
 written years before purports to relate events as having then transpired, 
 the documents genuine, they are manifestly as the casual and undesigned 
 acts of those having the means of knowledge, entitled to much consi- 
 deration. 
 
 That, upon a careful scrutiny, this, as well as any other evidence, can 
 receive its due measure of confidence, must be conceded. The dangers 
 of this species of testimony, so distinctly perceived, the causes of distrust 
 so well known and appreciated, there seem slight grounds of apprehen- 
 sion, that it will receive an undue and unmerited or unlimited confi- 
 dence. 
 
 It will however be found, that the common law judges, though thus 
 acutely sensitive to the evils of this kind of proof, are yet willing to 
 receive it under every variety of form and with every imaginable ground 
 of distrust. A cursory examination of the several exceptions to this 
 rule, will show most fully, their little regard either to general principles, 
 to their own rules, or to logical consistency. Those rules, the best pos- 
 sible — " rules matured by the wisdom of ages," "revered from their an- 
 tiquity and the good sense in which they are founded," are yet from 
 necessity violated by innumerable exceptions equally wise, equally 
 matured and equally revered. How these exceptions to the best possi- 
 ble rules comport with each other and with those rules, remains to be 
 seen. 
 
 Exceptions. Dying declarations. " The dying(<) declarations of a 
 person, who has received a mortal injury, that is, declarations made 
 under the apprehension of death, are constantly admitted in criminal 
 prosecutions, and are not liable to the common objection against hearsay 
 evidence. The principle of this exception to the general rule is founded 
 on the awful situation of the dying person, which is considered to be as 
 powerful over his conscience as the obligation of an oath, and partly on 
 a supposed want of interest on the verge of the next world, which dis- 
 penses with the necessity of cross-examination." 
 
 Incompleteness and incorrectness arising from the want of cross- 
 examination by the individual against whom the testimony is adduced, 
 has been urged as a reason for the exclusion of hearsay. It is one un- 
 doubtedly entitled to much consideration. But giving it its due weight, 
 how or why is the objection, arising from the absence of that security, 
 removed by the "supposed want of interest" in the individual whose 
 statements are offered ? Does that dispense with cross-examination ? 
 Does that induce accuracy and fulness of detail ? If so, why ever cross- 
 examine those who are without interest ? 
 
 Nor is this all. The declarations to be received must be of a person 
 
 {t) 1 Phil. Bv. 215. Donelly v. State, 2 Butcher, 463-601. 
 
HEARSAY EVIDENCE. 203 
 
 in extremiSfM and of oneM who is without any hope of recovery ; for if 
 that exist in ever so slight a degree, the evidence will not be received. 
 But for effective cross-examination, the person accused, or some one re- 
 presenting his interests, is required. The attendant of the dying man, 
 the future witness, has neither the requisite knowledge, nor any suffi- 
 cient motive to pursue the needed inquiries. Adverse interrogation by 
 the party whose rights are involved, by him against whom the testimony 
 is to be used, is then out of the question, as to him it is uninterrogated 
 testimony. 
 
 The situation of the dying man is not that best fitted to give, what 
 alone is wanted, a full, accurate, and detailed account of the transaction. 
 His body is weakened by disease, his mind participates in the decrepi- 
 tude of the body. The mind of a dying man and the mind of a man in 
 the full vigor of health and intellect, and their respective statements, 
 may vary as much in clearness, distinctness, and correctness, as their 
 bodies vary in physical strength. Yet the only legal prerequisites for 
 admission seems to be that state of mind and body least justifyingjt. 
 The bed of death affords no opportunity for examination and cross-exami- 
 nation. The dying man may be from weakness unable to give a detailed 
 acoount,(M;) yet his answers, mere monosyllabic responses to such sug- 
 gestions and ex parte interrogations as may be put by the future witness 
 — a witness adverse it may be in feeling — are received. To scrutinize 
 these statements, to require explanations, to propose the proper questions, 
 and thereby to elicit the whole truth, the examiner cannot, from igno- 
 rance of the attendant facts ; and if he could, the bed of death is not 
 the place, nor the dying man the person upon whom is to be spent the 
 probing rigor of examination. The detailed, deliberate, cautious and 
 full statements of a man in health, giving and intending to give a full 
 report, (a;) are excluded after his decease; while those of one weakened 
 by disease, excruciated by pain, unable, if wishing, to be accurate, are 
 admitted ; not but that they are rightly admitted, but, that the others 
 are erroneously rejected. 
 
 But on examination it will be found that the admissions and exclu- 
 sions of death-bed declarations are not co-extensive with the reasons upon 
 which the exceptions are based, that they are neither consistent with 
 themselves, nor with the general rule of which they are a violation. 
 
 The case of homicide (accident or mischance excepted) assumes one 
 party to be in the wrong, but it by no means assumes the other to be in 
 the right ; nor does the result show which, if either, was in the right. 
 The deceased may have been the original aggressor, or without having 
 
 [u) Thej must be under an impression of almost immediate dissolution, &c., 
 Rex v. Van Butchell, 3 0. & P. 629. 
 
 (v) His belief must be of the required standard for admission. 
 
 The dying declarations of a disbeliever in God and a future state are not ad- 
 missible. Donelly v. State, 2 Dutcher, 464. 
 
 (w) The witness may be unable to relate the transactions. The evidence may 
 be only of answers to such leading questions as somebody present may choose to 
 put, yet the law admits them. Vass v. Commonwealth, 3 Leigh's Va. Rep. 786. 
 
 (x) That too, though " all the bishops on the bench should be ready to swear 
 to what they heard these witnesses declare, and add their own implicit belief of 
 the truth of the declarations." 4 Camp. 414. 
 
204 APPLBTON ON EULBS OB BVIDBNCB. 
 
 commenced the attack, he may yet not have been without fault. If the 
 aggressor, and in the wrong, then are received his accusatory declara- 
 tions, uttered on the bed of death, without fulness or completeness — 
 without cross-examination ; while the exculpatory testimony of the ac- 
 cused, in the right, delivered if required, under oath, in public, and 
 with every possible security, is rejected. Even if the dying man were 
 in the right, it will hardly happen other than that somewhat of the bit- 
 terness of death should be infused into his narrative of the circumstances 
 attending the fatal event. The declarations of the dying man, whether 
 in the right or in the wrong, whether the party attacked or the party 
 attacking, and without even an inquiry as to that fact — the declarations 
 of the dying man, oppressed with the pangs of death are received ; while 
 the accused, the sole living witness of the transaction it may be, is re- 
 fused a hearing. 
 
 Take by way of illustration a case still stronger. There was a witness 
 to the homicide. The dying declarations of the deceased have been 
 offered and received. The witness, by whom all the facts constitutive 
 of a perfect defence might have been shown, has died, but dying he 
 gave a full and detailed account of the afiFair. He was a chance witness, 
 the clearness of his eye undimmed by passion, the integrity of his mind 
 unobscured by prejudice, a cool, dispassionate, and honest observer, 
 without bias, hatred, malice or revenge — one, who if living would have 
 been much more deserving of credence than either of the parties to the 
 transaction. His death-bed declarations, exonerating the accused, are 
 offered, but rejected. (y) The dying declarations of the party injured, 
 trustworthy to charge, similar declarations of a witness without interest 
 in fact, as well as without interest from his situation, untrustworthy to 
 discharge. Why this difference ? The absence of interest, the solemnity 
 of the occasion is equally great in each case. The necessity of the evi- 
 dence the same,(«) unless punishment, whether deserved or not, but at 
 all events punishment, be considered of more importance than the escape 
 of innocence. 
 
 " Evidence of this sort is admissible in this ease from the fullest 
 necessity. For it often happens that there is no third person present to 
 be an eye witness to the fact.'Ya) But the same thing often happens as to 
 other crimes. They are done in secret; witnesses are not called as spec- 
 tators to the commission, nor are they ever present except by accident 
 and against the intention of the criminal. The dying declarations of 
 the deceased in case of homicide, are received "lest the ends of justice 
 may otherwise by his death be defeated ;'Ya) but in every other case, when 
 such declarations are the only attainable proof, those ends will be equally 
 defeated by exclusion. Not heard — when the accused is indifted for 
 robbery — increase only the atrocity of the crime — let the robbery end 
 in murder and the dying declarations are received. (6) What is the 
 
 (y) The very case supposed by way of illustrating the rule in 1 Stark. Ev. 44. 
 The dying declarations of the accomplice are excluded when offered for the same 
 purpose. Resp v. Langcake, 1 Teates, 415. 
 
 (s) Wilson v. Boemer, 15 Johns. 291. (a) Jackson v. Kneffen, 2 Johns. 35. 
 
 (b) The dying declarations of the party robbed have been held inadmissible. 
 Rex Y. Lloyd, 4 C. & P. 239. 
 
HEARSAY EVIDENCE. 205 
 
 offence technically charged ? Such is the inquiry. Is the charge that 
 of administering poison for the purpose of procuring abortion ; the dying 
 mother's declarations, though death as well as abortion is the conse- 
 quence, are refused admittance.(c) Let the indictment be for murder, 
 and poison the mode of its accomplishment, and the same decla- 
 rations of the same person are as unhesitatingly received, as in the prior 
 case they were rejected. Properly admissible for one offence, why not for 
 another ? Why should one species of proof suffice for the conviction of 
 one and the greater criminal and be insufficient for that of another and 
 the less guilty ? Why should one suffer punishment and the other es- 
 cape with impunity '{(d) 
 
 The death-bed declarations of the person killed in the case of homi- 
 cide have been received. Similar declarations of a disinterested witness 
 are tendered in a civil case. Were the evidence rejected, from any sup- 
 posed danger likely to arise from the deficiencies necessarily incident to 
 this testimony, the peril arising therefrom would be in proportion to the 
 interests at hazard. (e) In the one case the highest penalties of the law 
 are involved in the issue, in the other an amount of property larger or 
 smaller, as the case may be. The testimony dangerous, the common 
 law judge does not hesitate to receive it, when its effect will be to doom 
 to infamy and death — if thereby a farthing's value may be in peril, his 
 scruples forbid it should be heard. If " the situation of the dying 
 man," if " the absence of interest" remove the dangers of hearsay, if 
 they supply the place of oath and cross-examination in criminal, why 
 
 (c) On the trial of an indictment for the murder of A. hj poison, which was also 
 taken by B., who died in consequence, the dying declarations of B. were held 
 admissible. Eex v. Baker, 2 Moody & Robinson, 53. In this case, Ooltman, J., 
 after consulting Parke, B., was of opinion, as it was all one transaction, that the 
 declarations were admissible, and allowed them to go to the jury. 
 
 In Eex T. Hutchinson, 2 B. & C. 608, n., the prisoner was indicted for adminis- 
 tering poison to a woman pregnant, but not quick with child, with intent to pro- 
 cure abortion. The woman was dead ; and for the prosecution, evidence of her 
 dying declarations on the subject were tendered. The evidence was rejected by 
 Bailey, J., who observed that although the declarations might relate to the cause 
 of the death, still such declarations were admissible in those cases only where the death 
 of the party was the subject of the inquiry. 
 
 Dying declarations are not received in an indictment for perjury. Rex v. Mead, 2 
 B. & C. 608. Nor in an indictment for robbery, Rex v. Lloyd, 4 C. & P. 233, nor 
 in civil cases. But death-bed declarations m/auorof the prisoner are not received. 
 
 In an indictment for murder, the prisoner was not allowed to avail himself of 
 the statements of a stranger, who on his death bed confessed that he had committed 
 the crime. Rex v. Gray, Irish Circuit Reports, 76. 
 
 But while the dying declarations of the real criminal, confessing his guilt on the 
 verge of eternity, are rejected, those of the deceased will be received, as they may 
 have an influence on the amount of punishment to be inflicted upon his murderer. 
 Rex v.Scaife, 1 M. & R. 551; Moore v. The State, 12 Alabama, 764. 
 • {d) " Multi 
 
 Committunt eadem, diverso crimina fato ; 
 
 lUe crucem pretium sceleris tulit, hie diadema." 
 
 Juv. Sat. xiii. 104-107. 
 ' (e) This question, of the admissibility of the declarations of the deceased in 
 civil cases, has frequently arisen, and the testimony has always been excluded. 
 A remarkable case of the tenacity of the common lawyer to decision — of his pre- 
 ference to precedent over reason — of his utter iadifference to tl)e consequences of 
 his rules — may be found in Jackson v. Kniffen, 2 Johns. 31 ; Wilson v. Bowman, 
 15 Johns. 287 ; Duncan v. Seaburn, 1 Rice, 37. 
 
 Maech, 1859.— 15 
 
206 APPLETON ON RULES OF EVIDENCE. 
 
 should they not be equally effective in civil cases ? If there be testi- 
 mony under oath and interrogated in one case, why not in the other ? No 
 assignable difference can be pointed out between these instances, except 
 the greater or lesser interest, pecuniary or other, at stake ; and no prin- 
 ciple can be found justifying this alternate admission and exclusion, 
 unless it be one based on the position, that the more important are the 
 rights involved, the less material is the trustworthiness of the proofs by 
 which those rights are to be maintained. 
 
 In private life they would command belief; in judicial proceedings 
 they are rejected, not because they are not evidentiary, but from a fear 
 lest they will receive too much credit. ..." This species of proof is an 
 anomaly and contrary to all the rules of evidence. . . . and if received, 
 it would have the greatest weight with the jury."(/) Such the descrip- 
 tion of this kind of evidence by an eminent judge. Were it likely to 
 have less weight, it might perhaps have been received. Has it the 
 greatest weight ? If so, whether anomalous or not, why not receive the 
 testimony ? If not entitled to weight, why permit the anomaly? Proof 
 contrary to " all the rules of evidence," receiving the greatest weight; 
 is it from the badness of those rules or the imbecility of the judge ? 
 Would it have weight without cause ? If not, that weight does not, 
 and cannot arise from the fact to be proved, nor from the term by which 
 the process in which it is used may be designated ; nor from the legal 
 consequences, which may result. 
 
 Pedigree, marriages, births, deaths, &c. " Courts of law are obliged 
 in cases of this kind to depart from the ordinary rules of evidence ; as it 
 would be impossible to establish descents according to the strict rules by 
 which contracts are established and subjects of property are regu- 
 lated ■.(jj'j ... in cases of pedigree, recourse is had to a secondary sort 
 of evidence : .... it is not necessary that this evidence should have 
 the correctness required as to other facts.'V^) 
 
 The common law seems to proceed on the ground that some facts 
 may be proved any how ; that to prove one fact important in its bearing, 
 legally competent evidence is required ; that to prove another, hearsay, 
 however loose, will suffice. That every alternate link in the chain which 
 binds together facts and rights may be ever so brittle without weakening 
 the strength of the whole. 
 
 But descentthe question — and the determination of the cause dependent 
 upon its proof, what reason can be assigned why that fact should be sub- 
 stantiated by evidence, which the law considers dangerous in its tendency? 
 If the impossibility be one arising from the remoteness of time in 
 which the marriage or birth (t) upon which the title is founded, took 
 place ; the more remote and traditional, the more media througi which 
 it has been transmitted, the stronger the objection to the evidence. The 
 very remoteness of these facts, the difficulty of detecting and refuting 
 
 (/) By Coleridge, J., in Rex v. Spilsbury, T 0. & P. 187. And therefore was the 
 evidence excluded, for cause, and such a cause ! 
 
 (ff) Vowles T. Young, 13 ,Ves. 149. (A) Ibid. 164. 
 
 (i) Hearsay as to marriage, time of birth, admitted ; the hearsay declarations 
 of the mother denying the legitimacy of the child, are excluded. Is she not the 
 best witness ? where else can knowledge be obtained? is not the confession aeainst 
 her interest? 2 Brook. C. C. E. 256. 
 
HBAKSAT EVIDENCE. 207 
 
 fraud or deception, of unveiling error, increases in proportion to the 
 distance of time from tte happening of the event. The evidence is 
 dangerous in the ratio of its antiquity, for in that degree are the means 
 of detection and refutation wanting. 
 
 " The whole goes upon that : declarations in the family, descriptions 
 in wills, descriptions upon monuments, descriptions in bibles and registry 
 books, all are admitted upon the principle that they are the natural 
 effusions of a party who must know the truth, and who speaks upon an 
 occasion when his mind stands in an even position, without any tempta- 
 tion to exceed or fall short of the truth. "(A) 
 
 Here then is no oath, no cross-examination ; but knowledge, and the 
 even position of the witness sanction the reception of hearsay. The 
 entries of a witness deceased, provided "there is a total absence of 
 interest in the person making them to pervert the fact, and likewise a 
 competency in him to know it,"(J) are received. Without such compe- 
 tency to know, the admission would not be required by any one. But 
 the fact of competency to know must be derived from the witness him- 
 self. Knowledge, or a competency to know something about the subject 
 matter of one's testimony, a reason for admission, it applies with the 
 same force to every witness of every fact. If the even position of the 
 witness, by which we suppose is meant absence of interest, be considered 
 a satisfactory reason, it is difficult to perceive why the admission should 
 not be co-extensive with the principle upon which it is founded. 
 
 Marriage, births, deaths — upon the proof of which titles to estates of 
 any conceivable magnitude may depend — whatever their relation and 
 importance in the cause, would appear as much to require legal and 
 competent proof as any other facts. Yet, important as they may be, 
 hearsay will answer, except where they are "substantive," "specific," 
 and " particular" facts, in which case hearsay is insufficient. Blarriage, 
 the begetting of sons and daughters, their births and deaths — are they 
 not " substantive," (m) " specific" (ra) and " particular" (o) facts. If not 
 
 (k) Whitelock v. Baker, 13 Ves. 614. Such the reason here, but in Vowles v. 
 Young, 13 Ves. 146, the chancellor there says that " the law resorts to hearsay 
 upon the principle of interest in the person from whom the descent is to be made 
 out, . . . and that it is evidence from the interest of the person in knowing the 
 connections of his family." So that the hearsay declarations of a deceased witness 
 are received, for the same reason, interest, which would have been considered 
 satisfactory for rejecting the witness, if living, and subject to all the securities by 
 which integrity of conduct can be guarded. 
 
 " The presumption of accurate knowledge on the part of the speaker . . . rests 
 on the interest, pecuniary and general, which every man must be supposed to have 
 in knowing the connections of his family." Gres. Ev. 227. 
 
 (Z) Doe V. Robson, 15 East, 32. But knowledge in the person from whom the 
 hearsay is derived, is not required ; coming through ever so many degrees it is 
 none the less received, in cases of pedigree. There is no certaiJity that the rule 
 will be adhered to. Knowledge — even position — will not justify the admission 
 of hearsay as against an archbishop. In 2 Esp. 648, Culvert v. Archbishop of 
 Canterbury, the plaintiff's servant entered the terms of an agreement in which he 
 had no interest, and died ; his entries of such agreement were excluded. 
 
 (m) The declarations of deceased members of a family as to marriage as well as 
 birth and deaths are admitted. " The evideucehowever of the marriage . . . is but 
 incidental to the proof of pedigree. Where marriage is shown as a substantive 
 and independent fact, it is within none of the exceptions to the general rule and 
 
 (n) For note (n) see'iext page. (o) For note (o) see next page. 
 
208 APPLETON ON RULES OF EVIDENCE. 
 
 in one case, how come they to be in another. Marriage, the fact 
 contested, the final fact, it must not be proved by hearsay; a fact prior 
 in time to the final fact, but therefore none the less important, for 
 without marriage, no birth, no heirship, no title to the estate demanded, 
 it may be. The same marriage may be proved in different modes 
 according as its relation in the cause may alter. Prefix only the adjec- 
 tive^let the marriage be a substantive, a particular or specific fact — 
 the admission of hearsay is fraught with inconceivable danger. Remove 
 the adjective, and with its removal all danger passes away. 
 
 The claim of the demandant resting on his pedigree, and his pedigree 
 provable only by hearsay, the status, the civil condition of the respon- 
 dent,(p) whose liberty is in issue, is attempted to be proved by the same 
 kind of evidence. The marriage of the ancestor, from whom the plain- 
 tiff makes out his descent, is not a specific fact — the civil condition of 
 the ancestor of the slave is. Hearsay to aid the master is received — 
 for the protection of the alleged slave refused. The pedigree of the one 
 need not be established by the " strict rules " of the common law — the civil 
 condition of the other must be ; as though the lapse of time, by which 
 proof is lost, and which renders a resort to secondary evidence necessary 
 in the one case, would not render it equally so in the other. Birth, death, 
 when not substantive facts, may be proved by hearsay. The freedom of 
 the defendant's ancestor cannot be shown by the same kind of proof by 
 which the demandant's right to the defendant, as a mere chattel, is made 
 out. One rule when the defendant's property, a different one when his 
 liberty, is claimed. Or does the distinction depend on color ? 
 
 Parentage, birth, and the time of birth proved by hearsay, the ques- 
 tion of where born may become important ; the place of an undisputed 
 birth may be contested. The principal fact, the birth, the time when, 
 has been proved by hearsay, from necessity, because no better proof could 
 be had. But if no better can be had of the birth or the time when born, 
 no better can be had of the place of birth. If the birth were proved by 
 one present, the same proof would give locality to that birth. Proof of 
 the place of birth implies proof of the birth ; for a knowledge of a place, 
 of the place, is nothing, apart from the fact, birth, which happened there. 
 " The controversy was not as in a case of pedigree, from what parents the 
 child has derived its birth, but in what place an undisputed birth derived 
 from known and acknowledged parents has happened. The point thus 
 
 hearsay evidence cannot be received." By Erving, C. J., Overseers of Westford 
 v. Overseers ofWarren, 3 Hals. 250. 
 
 (n) " Hearsay evidence is incompetent to establish any specific fact, which fact 
 is in its nature susceptible of being proved by witnesses who speak from their own 
 knowledge." By Marshall, 0. J., Mina v. Hepburn, 1 Cranch, 290. 
 
 Are not all facts constitutive of a pedigree susceptible of being proved, by wit- 
 nesses speaking from their own knowledge ? 
 
 (o) " Hearsay is in like manner evidence to prove general repute in a matter of 
 antiquity, although it would not be competent for Tiroving particular facts to estab- 
 lish the same conclusion." Glassford, Ev. 358. 
 
 [p) Mina v. Hepburn, 1 Cranch, 290. Mr. Dane's account of the law of hear- 
 say is inimitable, for its calm but cutting sarcasm. Referring to Gregory v. Baugh, 
 4 Rand. 611, 659, he says, "in this case, of forty-eight pages, there is much law 
 and learning respecting hearsay and reputation, as to pedigree; the nature and 
 principles thereof, &c. . . . But, on the whole, the decision in this case is 
 doubtful, especially on the point of hearsay evidence." 9 Dane, 291 292. A 
 fair sample of what forty-eight pages of law will do, towards inducing 'certainty. 
 
HEARSAY EVIDENCE. 209 
 
 stated turns on a single fact involving no question but of locality; and 
 therefore not falling within the principle of or governed by the rules ap- 
 plicable to cases of pedigree ; and is to be proved therefore as other facts 
 generally are proved, according to the course of the common law ; that 
 is by evidence to which the objection of hearsay does not apply."(o) A 
 second Daniel come to judgment. The birth proved by hearsay, because 
 of the impossibility of obtaining living proo;f, the place where, to be 
 proved by living witnesses, as though a witness could know of the 
 place where the birth happened without knowing of the birth. Birth, 
 the main fact, without which there could be no inquiry, — where 
 born, — place, — a secondary fact of accidental importance; the one to 
 be proved by secondary, the other requiring primary evidence to substan- 
 tiate it. The law of evidence changes as the question is of time or of place. 
 
 The place of birth is not to be proved by hearsay, because it is a mere 
 question of locality. The terminal bounds of an estate,(p) ancient monu- 
 ments may be, either because they are not local, or because the judge 
 chooses to say they are not local; or, being local, because the judge 
 elects to form a new rule, by which he permits one class of local facts 
 to be proved by hearsay, and refuses that mode of proof to another. 
 The rules of evidence changing, according to the variations of the fact 
 contested, hearsay is received, when the controversy relates to the boun- 
 daries of coterminous estates ; excluded, when offered to prove the time 
 of birth, or that the will upon which the title of either party rests was 
 obtained by fraud or duress. 
 
 But distinctions, arising from the fact to be proved, whether of pro- 
 perty or liberty,(2) whether relating to time or to place; if to place, 
 what is the nature of the fact, where an undisputed birth took place, or 
 where a disputed monument was located, whether the fact be substantive 
 or not — idle, futile as they are seen to be, are all merged in the surpass- 
 ingly ridiculous inquiry, of when made ; and the declarations of the same 
 individual in relation to the same fact are admitted or not, as they are 
 before or after a given point of time, which is designated by the term 
 lis mota. Ante litem motam, "what is thus dropped in conversation, 
 may be presumed to be true. But after a dispute, the presumption in 
 favor of declarations fails."M But if true before, why not after ? Ante 
 litem motam, the relations might have been loose, careless, indefinite, for 
 the simple reason, that then there existed no call whatsoever for parti- 
 cularity or accuracy. But litigation is commenced, then first does the 
 evidence become important — then first is the witness particularly called 
 on to remember — then first are called up by-gone events and conversa- 
 tions. The question is of moment. The statements are made after due 
 
 (o) By Lord EUenborough, Rex v. Erith, 8 East, 542. " The reason is not alto- 
 gether satisfactory. It is better to uphold the rules of evidence, than to admit 
 testimony of a doubtful character." By the court in Wilmington v. Burlington, 
 4 Pick. 176. The court says the question of birth-place presents a distinct fact. 
 A distinct fact I "What then, are new rules to be formed for each distinct fact ? 
 
 [p) 2 Am. Com. Law Dig. 294, and cases cited. Gabriel, sur la nature des 
 preuves, § 122,123. 
 
 (q) How true the remark of Thomson, J., in Jackson v. Cooley, 8 Johns. 101, 
 that testimony as to pedigree is not to be tested by the ordinary rules of evidence." 
 
 (r) 4 Camp. 416, by Mansfield, 0. J. Why are the droppings in conversation 
 more true relating to pedigree than to anything else? 
 
210 APPLBTON ON RULES OP EVIDENCE. 
 
 care and reflection — when, and as it is expected they will be substanti- 
 ated by oath. The witness is summoned to trial, but dies before it takes 
 place. His loose conversational declarations have been received — his 
 deliberate and well advised statements, the result of much reflection, and 
 to which he was ready or declared himself ready to adhere under the 
 solemnities of an oath(s) — statements materially varying those already 
 received, are offered to control their effect; but because vaside post litem 
 motam, they are excluded as if the Us mota destroyed the truth of hear- 
 say and of no other evidence ; and destroyed it so effectually, that the same 
 individual, honest before, is at once thereby corrupted, and that to admit 
 his declarations " would lead to the most dangerous consequences."^^) 
 
 But dangerous as is the Us mota, truth destroying as are its effects, 
 the deceased witness may not have known of its existence. Lis mota 
 unknown, it could have had no effect on the mind of the declarant, un- 
 less like the miasma, it permeates the atmosphere and infects all within 
 its range. The evidence true, if the Us mota were unknown, it is never- 
 theless shut out as if it were known, because if an inquiry were to be 
 instituted as to that fact, " much time would be wasted, and great con- 
 fusion would be produced."(M) To save the time of the court, to prevent 
 the confusion of their minds, the rights of litigants are to be sacrificed 
 by the random exclusion of testimony, which, for aught that is known, 
 might have been in the highest degree entitled to confidence. 
 
 Nor is this all, were the declarations of the witness made under oath, 
 in a cause then pending, subject to cross-examination by the respective 
 parties therein interested, yet the declarations in that form so peculiarly 
 entitled to confidence would be excluded, because as declarations they 
 are post Utem motam, because as depositions, they are made aUa in 
 causa, while if made without scrutiny, without oath, by the same indi- 
 vidual, in the same words and in relation to the same cause, they would 
 have been received. This was an absurdity so striking, that even lord 
 Eldon admitted, that " it might appear remarkable that a declaration 
 under no sanction was receivable, and a declaration upon oath not."(«) 
 
 («) Berkely peerage case, 4 Camp. 401. 
 
 {t) Berkelj peerage case, 4 Camp. 415, by Mansfield, C. J. These declarations 
 are rejected " because of the possibility, nay probability, that they may have been 
 made to serve either of the contending parties." By Wood, B., 4 Camp. 406. But 
 the witness living would not thus serve either party. Standing in an " even 
 position," ante Utem motam, how or why does the lis mota destroy that evenness ? 
 The cause of action existing, lis nan mota, the witness without interest, his situa- 
 tion in that respect unchanged, why or how does the lis mota affect the credibility 
 of his statement. Is fraud, fabrication, perjury, the presumptive consequence of 
 litigation — if so, what is to be received ? 
 
 (m) By Mansfield, 0. J., in the Berkely peerage case. " The line of distinction" 
 (as to the admission of declarations) " is the origin of the controversy, and not the 
 commencement of the suit. After the controversy has originated, all declarations 
 are to be excluded, whether it was or was not known to the witness. If an inquiry 
 were to be instituted in each instance, whether the existence of the controversy 
 was or was not known at the time of the declaration, much time would be wasted 
 and great confusion would be produced." 
 
 The case criminal, of homicide, the accused arrested, the dying declarations of 
 the deceased are received. Is this an instance of lis mota. or not ? If yea, why 
 are these declarations received, if nay, why not? Is there' no Us mota in criminal 
 cases ? If there be, and if this is not that case, it is difficult to perceive what is ? 
 
 («) Berkely peerage case, 4 Camp. 419. The petitioner in this case presented a 
 petition praying that he might be summoned to parliament by the title of Earl of 
 
HEARSAY EVIDENCE. 211 
 
 Entries and admissions against interest.(w)) The admission of entries 
 or statements, verbal or written, against the interest of the party making 
 them at the time when made, is supported by the reasoning upon which 
 confessional testimony is received and credited, the improbability of 
 suicidal mala fides, of entries being untrue and adverse to the interest 
 of the party making them, and hence, being made, the probability of 
 their truth. But here too, it will be perceived, as in all other exceptions, 
 the rights of third persons are to be affected by testimony, upon which 
 the same law, which admits it, says no reliance should be placed. 
 
 While the propriety of the exception is not contested, it may not be 
 inexpedient to notice briefly some of the cases marshaled under this head 
 by those, who so strenuously deprecate the general rule, and to ascertain 
 what is the character of that opposition to the interest of the person mak- 
 ing them, on account of which their reception is justified. 
 
 All entries made by stewards(x) or others, of payments to them made, 
 and in general all entries in and by which, the payment of a sum, 
 whether in discharge of an antecedent debt, or for and on account of 
 some other individual, in and by which the person so charging himself 
 is rendered the debtor of such other person, are received, as being against 
 the interest of the person so making them. If not against such interest, 
 the inference is, they would not be received. That an admission of the 
 receipt of money would not be made, unless true, is in the highest degree 
 probable, but being true, the money having been received, the acknow- 
 ledgment of such receipt by making the customary entries, would not 
 be against the interest of the person so receiving, unless it be against an 
 interest founded on a dishonest and fraudulent suppression of such re- 
 ceipt. The fact of such receipt being true may be proved at the time 
 ah extra ; the concealment of such fact, the absence of such entry, would 
 
 Berkely, and as eldest son of the late Earl by Mary, Countess of Berkely. The 
 petitioner was born in 1786, and alleged that the marriage between his parents 
 had been privately celebrated before that time. It was admitted, that in 1796, the 
 marriage had been publicly celebrated, after which they appeared in public as 
 man and wife. The question before a committee of the House of Lords (the matter 
 being referred to them), was as to the reality of the first marriage. In 1799, (see 
 6 Ves. 251,) a bill to perpetuate testimony in relation to that point had been filed, 
 and the deposition of the then Earl of Berkely had been taken, by which it appears 
 that the first marriage had taken place , and when. 
 
 The petitioner claimed that this deposition thus taken should be received to es- 
 tablish his legitimacy. The judges, and chancellors Eldon and Redesdale decided 
 it was not admissible, Graham, B., alone dissenting. To the opinion delivered by 
 the judges, the House of Lords yielded, and the petitioner, who had as good a right 
 to a seat in that house as one of that body, if his father's oath was deserving credit, 
 was denied one. 
 
 What makes the case still more remarkable is the fact, that, (says Lord Eldon,) 
 there was no possible way in which the claimant could have availed himself of 
 this testimony. The lis mota did not relate to the title. Had the claimant made 
 no efforts by bill to perpetuate testimony, and had he not obtained the testimony 
 in the best mode to protect his rights of property, the hearsay declarations of his 
 father would have been received. Preserving the testimony in the best mode, and 
 under the sanctions of the Lord Chancellor, thus serves as a reason why the 
 secondary evidence, otherwise receivable, should be rejected. That rejected, the 
 evidence taken was excluded, because it was a deposition, alia in causa, &ndpost 
 litem, and when there neither was nor could be a cause in which it could have been 
 taken for the purpose for which it is offered. 
 
 The case is well deserving perusal, as a most remarkable instance of judicial 
 juggling, (m) Gresley on Bv. 291, 292. (x) Gabriel, Traite desPreuves, | 120. 
 
212 APPLETON ON KULBS OF EVIDENCE. 
 
 be against interest as it would lead to detection and disgrace. How then 
 is the making such entry against interest, save on the hypothesis that 
 interest and dishonesty are identical, that the only interest known to or 
 recognized by the law is of a sinister nature. The entry would be 
 against interest only when false, in which case its falsehood would be the 
 reason of its admission to aifectthe rights of third persons. Being true, itis 
 no otherwise against interest than as fraud and dishonesty are for interest. 
 
 Another exception is that of the hearsay statements of the tenant,(y) 
 that he is tenant, which are received to affect or control the rights of 
 others on the ground that they are against interest. If the individual 
 asserting his tenancy were tenant, how are such assertions against his 
 interest ? His tenancy might have been in contest ; if so, the assertion 
 was in support of his interest. It was an interest of greater or less value, 
 but still an interest, sufficient to be the matter of litigation, and it is not 
 very easy to perceive how a statement in support of a claim which is 
 denied is against one's interest. The time when the admission is made, 
 the situation of the party when making it, is to be regarded; and if at 
 that time, the declaration were self-disserving, then so far as that. fact 
 affords a valid reason, the admission is justifiable. But that the common 
 law never deigns to do, but receives the admission, when, for aught that 
 appears, it was made in support of an existing and valuable estate. 
 
 So entries of charges made are evidence, provided the charges have 
 been paid.(z) Such entry being considered against interest, on the pre- 
 sumption, that all interest is sinister, and that had the individual making 
 such entry acted according to the common law notion of interest, he 
 would have received and pocketed the money without passing it to the 
 credit of the person charged. " That the books would be evidence in 
 themselves, as recording this event of births and other similar events, at 
 the several times when they took place, I am by no means prepared to 
 say." " I think the evidence properly admitted on the broad principle 
 on which receivers' books have been admitted; namely, that the entry 
 was in prejudice of the party making it.(a!) Such is the language of 
 Lord Ellenborough in Higham v. Ridgway, and with the concurrence of 
 the rest of the court. 
 
 That the word " paid" would, as against the party charging, be good 
 and sufficient evidence of that fact, may be conceded. But the fact in 
 dispute was the time of birth, and to that issue payment or no payment 
 was irrelevant. Birth, — the time when, — is the question contested, and 
 the entry of the time when is the only entry judicially important. The 
 charge, stating the time of the event in dispute was one in favor of the 
 person making it. It may be admitted, that the entry of " paid" was 
 against the party making it, but that entry proves nothing. Suppose 
 the word "paid" be taken with the "context," why should the admis- 
 sion of the context depend on payment or non-payment. The entry 
 
 (y) 1 Phil. By. 197. 
 
 (z) Higham y. Ridgway, 10 East, 109. " An entry made by a man mid-wife in 
 a boolt, of having delivered a woman of a child on a certain day, referring to his 
 ledger, in which he had a charge for his attendance, which was marked paid, is 
 evidence upon an issue as to the age of the child, at the time of his afterwards 
 suffering a recovery." The decision here is grounded on the fact of payment. 
 
 (a) 10 East, 120. See remarks of Lord Ellenborough. 
 
HEARSAY EVIDENCE. 213 
 
 received, and effective, is one in support of the interest of the party 
 making it, and its reception is placed not on the absence of interest in 
 the party making it, not on his peculiar means of knowledge, but on 
 the utterly immaterial fact of subsequent payment. But what peculiar 
 trustworthiness does subsequent payment give to the original entry ? 
 If never paid, would it not have been entitled to equal confidence ? If 
 paid, evidence ; if not paid, or if being paid, the entry is omitted, it 
 ceases to be evidence. A new rule established, the same entries are 
 evidence or not, according to the punctuality of the individuals with 
 whom the dealings are had ; if with paying customers, it is admitted ; 
 if with non-paying, it is excluded. The credibility of the testimony is 
 thus dependent not on the character of the person making the entry, 
 not on the appearance of his book, but on his having been paid by the 
 person for whom the act was done. (6) 
 
 Hearsay declarations are received because they are in support(c) and 
 in prejudioe(c^) of the interests of the individual making them, and be- 
 cause they neither serve nor disserve(e) such person's interest. These 
 reasons satisfactory, what instance can be conceived, which is not within 
 their scope ? 
 
 While hearsay, through ever so many media, (and the more numerous 
 the media of transmission the less the probative force of the evidence 
 transmitted,) is received, let it primarily and originally have been deliv- 
 ered under the most effectual securities for testimonial veracity, and its 
 rejection is inevitable. In questions of pedigree, the declarations of de- 
 ceased persons, related to or connected by marriage with the family, are 
 receivable in evidence. (/) Let them be dying deelarations,(^) or, the 
 deliberate answer(A) under oath of a father asserting the legitimacy of 
 his son, and notwithstanding the sanctions for truth afforded by the pros- 
 pect of immediate dissolution, or by the oath administered and the pen- 
 alty attached to its violation, they cease to be evidence. The weaker 
 the reasons for, the greater the certainty of the rejection of testimony. 
 
 Depositions, &o. " Depositions of witnesses, though made under the 
 sanctions of an oath, are not, in general, evidence to the facts which 
 they contain, unless the party to be affected by them has cross-examined 
 the deponents, or has been legally called upon and had the opportunity 
 to do so ; for otherwise one of the great and ordinary tests of truth 
 would be wanting.'Vi) 
 
 (b) Suppose they be paid by services in offset, and not credited, or that the 
 credits are sufficient to pay a part only of the charge, would the books, in which 
 these entries are made, be admissible ? 
 
 (c) Gresley, 227. (d) 1 Stark. Ev. 319. (e) 13 Tes. 154. 
 
 (/) la Doe v. Randall, 2 M. & P. 20, it was held that the declarations of a per- 
 son connected by marriage, were receivable in cases of pedigree. So the declara- 
 tions of the husband of one of the family. Doe v. Harvey, 1 R. & M. 297. 
 
 ^ff) In the proof of a pedigree, the dying declarations of A. as to the relation- 
 ship of the lessor of the plaintiff to the person last seized, are not admissible. 
 Doe V. Ridgway, 4 B. & A. 53. 
 
 (A) Berkely peerage case, 4 Camp. 401. 
 
 (i) 1 Stark. Ev. 261. 'Sometimes received, as to prove pedigree, but no other 
 fact. Bondenan v. Montgomery, 4 Wash. C. C. R. 186. The question is the fact 
 to be proved, not the principle of admission. The admission of depositions, and 
 judgments of courts, &c., is a question of much importance, and the rules in relation 
 thereto deserve a more searching examination, than we have been able to bestow. 
 
§14 APPLETON ON BULBS OF EVIDENCE. 
 
 One would be wanting, but only one. In the exceptions already con- 
 sidered, tbe courts of common law, for such reasons as to them seemed 
 sufficient, have dispensed with cross-examination and abandoned the 
 security of an oath. 
 
 The testimony here to be considered, depositions, taken in other causes, 
 between other parties, before different or the same tribunals, and for 
 similar or different purposes, possess few of the characteristic disqualifi- 
 cations of hearsay. The evidence is taken with the sanction of an oath, 
 with all the guaranties thrown around testimony by the law. The state- 
 ments made, deliberate, guarded, reduced to writing, signed by the wit- 
 ness, leave no room for misapprehension, or misrecollection of his memory. 
 The evidence is delivered not casually, but for a different purpose; 
 reported not by some accidental and indifferent auditor, but preserved 
 in its original shape, it reports itself. 
 
 In this testimony, the important element of cross-examination by the 
 party to be affected by the evidence, is wanting. It was taken to sub- 
 serve other and perhaps opposing interests. But notwithstanding this, 
 it is free from the errors of misconception, misrecollection, and misnar- 
 ration, to which all other cases of hearsay are exposed. 
 
 The depositions taken in one cause are offered for judicial use, under 
 some one of the following circumstances : 
 
 1. The deposition was taken in another cause in which neither party 
 to the suit, to which it is to be transferred, was present or interested, 
 and where of course there was neither examination nor cross-examin>ation 
 by them or by any one representing their interests. 
 
 It is, then, as to each of the parties, judicially delivered testimony, 
 authentic, trustworthy to the facts therein related, though uninterro- 
 gated. The danger is not of falsehood in what is related, for it is all 
 delivered under all the securities of testimony, but of incompleteness 
 and incorrectness, the peculiar dangers of hearsay. 
 
 2. Offered by the party who was present at their caption. The dan- 
 gers here are of one-sided and unfair cross-examination. But that dan- 
 ger seen, the mode and extent of such examination perceived, this case 
 presents comparatively satisfactory reason for exclusion. 
 
 3. The deposition offered by one not present, nor a party, against one 
 who was both present and a party. 
 
 Here the reasons arising from inability to cross-examine no longer 
 apply. The party being present had full power to examine on such 
 subjects as he should choose. 
 
 A stranger « cannot use them against a party, because he could not 
 have been prejudiced by them, and, therefore, for want of mutuality, 
 ought not to take advantage of them.'Yc/) 
 
 It assumes the correctness of the first exclusion, and upon that as- 
 sumption, bases the propriety of the second ; because one cannot use the 
 testimony, the other shall not. Though it were conceded, that in the 
 first case they could not be used ; the inferenca, that therefore they 
 should not be used in the second, by no means follows. 
 
 By the laws of the United States and of Maine, depositions taken in other States, 
 without notice and without cross-examination, are vet received 
 {g) Stark. Bv. 265 ; Welles v. Fish, 2 Pick. 11. 
 
HEARSAY EVIDENCE. 215 
 
 Mutuality a reason for the admission of proof. Is all testimony mu- 
 tual ? Must the plain tifi" offer none except such as the plaintiff might 
 use ? The plaintiff offers the declarations of the defendant. The de- 
 fendant is not allowed to offer his own, yet who ever heard of the want 
 of mutuality as a reason for their exclusion ? That no one should gain 
 by the throw of a die, unless he were to be prejudiced by the same throw, 
 if adverse, is sufficiently clear ; but there appears no very good reason 
 for incorporating the laws of the gaming table with those of the courts, 
 or forming rules of evidence analogically in accordance therewith. 
 
 Reputation, custom, ancient facts, &c.(/i) While, as in the cases just 
 examined, hearsay but one step removed from the percipient witness, 
 hearsay under oath or on the bed of death has been excluded ; in an- 
 other class of cases, and as if for the very object of making more strik- 
 ingly apparent the incongruities of the law, ancient facts, passing through 
 ever so many succeeding lips, coming from nobody knows whom, and 
 originating nobody knows how, are received, and form the subject mat- 
 ter of judicial proof. 
 
 One thing is certain, that the more media through which any fact has 
 been transmitted, the greater the dangers of deception. In these cases, 
 who or what was the original witness, when he lived, to whom he first 
 narrated his extrajudicial testimony, through how many media it has 
 passed to the narrating witness — the character, quality, trustworthiness of 
 the original source and of each intervening narrating witness, their means 
 of knowledge, their integrity — all, that it is desirable to know, in rela- 
 tion to it, is enveloped in darkness ; but, for all that, it is unhesitatingly 
 received, as if the more ancient a fact the less material was the trust- 
 worthiness of the evidence, by which it is to be established ; as if old 
 facts required less proof than recent ones. 
 
 The ground here taken is not that hearsay through ever so many 
 media may not be properly receivable, but that the propriety of its reception 
 depends not on the antiquity of the fact thereby to be proved, but on the 
 impossibility of proof from other sources; and when no other proof can be 
 had, it is as properly admissible in more recent as in ancient events.(i) 
 
 Thus much for the law of hearsay,(A;) where 
 
 " Chaos umpire sits, 
 " And by decisio.ii more embroils the fray, 
 " By which he reigns." 
 
 (h) Gresley, Er. 219; 1 Phil. Ev. 204; 2 Am. Com. Law, 494. 
 
 (e) Si I'on admet le temoignage de auditu alieno, a I'egard des faits anciens, qui 
 excedent I'Age et la m^moire des hommes, les auteurs exigent nedumoins plusiears 
 conditions pour donner de la force a ce temoignage ; et en faut quatre. 
 
 1 . Que le temoin qui depose d'un fait ancien, I'&it appris de personnes presentes, 
 et qui I'ont vus elle-memes: 
 
 2. Que le temoin nomme les personnes que le lui ont appris : 
 
 3. Que ces personnes soient digues de foi, et qu'il y enaitplusieurs : au moins deux : 
 
 4. II faut qu'il ait impossibilit'e de les entendre elles-mSmes en temoignage. 
 Avec ces conditions cette preuve ne pr6sent§ point d' inconvenients, et elle est 
 
 n^cessaire ; mais il f^ut surtout qu'elle soit soutenue par la possession actuelle. 
 9 Toullier, g 255. 
 
 (k) " Res gesta," what it is, or is not, the decisions of courts in relation thereto, 
 and a comparison of those decisions with other branches of the law — presents a 
 subject of much interest, but to which the length of this chapter forbids more 
 than an allusion. 
 
CHAPTEE XIII. 
 
 EXAMINATIOlSr OF WITNESSES AT COMMON LAW. 
 
 It has been seen, tbat neither want nor defect of, nor error in religious 
 belief, nor infamy of character, nor pecuniary interest in the result 
 of a cause, nor position in the same as plaintiff or defendant, nor rela- 
 tionship to the parties by consanguinity or affinity, afford any sufficient 
 reason for the exclusion of witnesses; and that no communication, 
 whether professional or otherwise, however sacred as between the parties, 
 is privileged from disclosure when required for the purposes of justice. 
 
 The present inquiry relates solely to the best mode of extracting evi- 
 dence at common law, — to the surest method of obtaining from the 
 witness, whether extraneous or a party to the cause, whether honest or 
 dishonest, whether friendly, hostile, or indifferent to the person calling 
 him, the facts as they exist, with the single purpose of promoting or 
 securing correct decision. The most efficient and reliable mode of ex- 
 traction, whatever it may be, is equally the best and most reliable, 
 whether it be to extract testimony from a witness willing or reluctant, 
 before a jury or a chancellor, at common law, in equity, or in admiralty. 
 Whatever mode is most efficient in one case, is equally so in another, — 
 in all cases. It is equally desirable that a juryman, as well as a chan- 
 cellor, should have the evidence upon which he may be called to act, 
 correct and complete. Is it important that a juryman should have the 
 evidence extracted in the most trustworthy shape ? — it is none the less so 
 for the chancellor or the judge in admiralty. No matter, then, what the 
 relation, the person whose testimony is to be extracted, may sustain to 
 the cause in which it may be needed ; nor what the character of the 
 cause, whether civil or criminal, whether at common law, in equity or 
 in admiralty; nor what the process or proceedings, whether by suit, in- 
 formation, indictment;, bill, or libel ; nor whether the court in which the 
 proceedings may be pending be a court of common law, equity, or admi- 
 ralty ; nor what the stage of the proceedings, whether preliminary, inter- 
 mediate, or final; that mode of extracting evidence, which reduces to 
 the minimum the dangers of falsehood and increases to the maximum 
 the probability of truth, which affords the readiest and surest ways of 
 diminishing or removing the dangers of incorrectness or incompleteness, 
 should be adopted; unless and except when the expense, delay, and 
 vexation consequent upon adopting the best mode, overbalance and 
 exceed its benefits, — when the collateral evil exceeds the direct good, — 
 in which case only resort may be had to a less effective mode of extrac- 
 tion. 
 
EXAMINATION OP WITNESSES AT COMMON LAW. 217 
 
 Whether existing and attainable proof is shut out by reason of exclu- 
 sionary rules as to the witnesses, from whom it might have been had, 
 and who are not permitted to testify, or it is not made available and 
 forthcoming in consequence of an inefficient mode of extraction, the 
 results to the cause of justice are the same. The means for a just deci- 
 sion are wanting, and misdecision must inevitably ensue. A failure in 
 extracting existing evidence is as disastrous as its exclusion. A defect 
 in the mode of extraction may be as injurious as the most perverse 
 exclusionary rules. Important, then, as are the rules regulating the 
 admission of evidence, hardly less so are those by which it is extracted. 
 
 The correctness and completeness of testimony are the objects to be 
 desired. Incomplete in detail, to the extent of such incompleteness it 
 fails to present a true picture of facts as they occurred. If incorrect in 
 generals or particulars, to the extent of such incorrectness there is a 
 variance from truth, — fatal, it may be, to the cause of justice. It is not 
 enough that the testimony be correct, as far as given, if incomplete. 
 Either incorrectness or incompleteness, equally with intentional menda- 
 city, may lead to misdecision. 
 
 The leading modes of extracting testimony are those eiftployed at 
 common law and in equity, — modes utterly at variance with each other, 
 and each modified by further variations in admiralty. Common law has 
 its different ways of extracting, conflicting with each other, and variant 
 from those in equity or admiralty. Equity has its different modes of 
 extracting proof. Each in its own administration of the law is incon- 
 sistent with itself and in conflict with others. 
 
 The differing processes of extraction adopted by the different courts, or 
 by the same court on the different occasions in which testimony may be 
 required, would seem to afford satisfactory proof that there must be error 
 in some of the modes in use. This conflicting variety suggests the 
 obvious idea that there must be divers degrees of excellence and adap- 
 tation to the ends of justice, and that the best mode, whatever it may 
 be, should be adopted as the general course of procedure. 
 
 In the ordinary narration of events by the fireside, it rarely happens 
 that all the facts and circumstances accompanying the transaction nar- 
 rated, are so fully and particularly related as not to require further in- 
 terrogation on the part of those who may be auditors of the narration. 
 Interrogation affords the only natural, obvious and indispensable means for 
 the attainment of that correctness and completeness so requisite in the 
 testimony of a witness, and so necessary for the judge, for the purposes 
 of correct decision. If you wish to ascertain the truth, inquire. If 
 you wish to know, ask. Without the opportunity of inquiry, you are at 
 the mercy of the narrator. 
 
 In judicial proceedings, the importance and necessity of interrogation 
 is then unmistakeably apparent. Grave results, important rights, are 
 determined by the evidence received, and the just decision of those 
 rights is dependent upon the correctness and completeness of the state- 
 ment of the facts to which the witnesses may attest. 
 
 The witness, honest and indifferent as between the parties litigant, 
 may be ignorant as to what are the material facts in a cause, and from 
 
218 APPLBTON ON EULES OE EVIDENCE. 
 
 indifference may omit what is important. Ignorant alike of the material 
 and the immaterial, the relevant and the irrelevant, he may disclose the 
 immaterial and the irrelevant, and suppress the material and relevant, 
 disregarding or misapprehending the relative importance of the facts 
 within his knowledge. He may err by omission, indistinctness, or in- 
 completeness. Whatever the cause of the error, whether indistinctness, 
 incompleteness, or incorrectness, interrogation is the only sure and recog- 
 nized remedy for the correction of any such errors, however originating. 
 
 Is the witness dishonest and adverse to the party interrogating, the 
 necessity of interrogation, as a means of extracting the truth, is at once 
 perceived, and its value indefinitely increased. By this, self-protection 
 is readily obtained. Is the witness indistinct, the needed inquiries remove 
 indistinctness. Is he incomplete, interrogation is the natural and obvi- 
 ous mode of obtaining the desired fulness and completeness of detail. Is 
 he incorrect, suitable questions are proposed to rectify incorrectness when 
 existing. Searching interrogatories pursue the dishonest and reluctant 
 witness through the mists of indistinctness, the errors of incorrectness, 
 the omissions of incompleteness, the evasions of dishonesty, or the false- 
 hoods of intentional mendacity. Does he answer truly ? The true 
 answers at once furnish the means of correct decision. Does he answer 
 evasively ? Question follows question, till the lying witness, driven from 
 , one evasion to another, either confesses the truth or resorts to silence, a 
 hardly less explicit admission of the truth. Does he answer falsely ? 
 Each false answer, each untruth uttered, at variance from, in opposition 
 to, or in conflict with the truth, exposes him to contradiction by the true 
 facts disclosed, and by its very falsehood furnishes an article of circum- 
 stantial evidence of no ordinary probative force. Does he refuse to an- 
 swer ? Silence is equivalent to confession. Edbis reum confitentem. 
 The refusal to answer, the evasive, the false answer, the not less .signifi- 
 cant and expressive silence, are each circumstances of no slight force in 
 their effect upon the minds of those who may be called upon to decide. 
 
 Is the witness honest and friendly to the party interrogating, the com- 
 pleteness and particularity of his answers will somewhat depend upon 
 the interrogations in and by which they have been extracted. The party 
 interrogating cannot be expected, by his inquiries, to seek for answers 
 other than such as will favor him — as will tend to establish the facts as 
 he claims them to exist. He will answer only the questions proposed, 
 and the answers to the one-sided interrogation of the party calling, will, 
 to an extent more or less limited, be incomplete and partial — the natural 
 and inevitable consequence of the incomplete and partial inquiries pro- 
 posed. 
 
 Even if there be entire integrity on the part of the witness, and com- 
 plete indifference to the parties litigant, the necessity of cross-examina- 
 tion is apparent, for without it facts adverse to the party calling may be 
 withheld. The attainment of correct decision will be endangered unless 
 the right of interrogation, in its fullest extent, be conceded to both par- 
 ties, to enable them to elicit such facts as from inadvertence, want of 
 memory, inattention, or sinister bias, may have been omitted. 
 
 All persons interested in ascertaining the truth, and whose rights 
 
EXAMINATION OB WITNESSES AT COMMON LAW. 219 
 
 may be affected by its ascertainment in any particular case, sbould be 
 permitted to propose all relevant and pertinent inquiries. The parties, 
 the counsel who aid them, the jury who are to decide, the judge who 
 presides over the trial, should have full liberty of interrogation, for the 
 elucidation of the facts and the ascertainment of the truth. 
 
 But there can be no useful nor effective interrogation, except when 
 the testimony is orally delivered, and in the presence of those who are 
 to interrogate. (a) No interrogatories, however general, can anticipate 
 the answers which have been given to preceding inquiries. The inter- 
 rogator may travel over the illimitable regions of the imagination, and 
 guess in vain the words which have been given by way of answer, when 
 the inquiries have been proposed to an absent witness. If, indeed, all 
 supposable questions are put to meet all unknown and contingent 
 answers, the only limit to the inquiry is the greater or a lesser fertility 
 of imagination of the person inquiring. The time, delay, expense, and 
 vexation of thus darkly groping after the truth, are only avoided by 
 requiring the presence of the witness before the individual or individuals 
 upon whom the power of interrogation is conferred. 
 
 Whether the witness be honest or dishonest, friendly, hostile, or 
 indifferent, to one or both of the parties, of clear perceptions or of weak 
 understanding, it matters not. The facts can only be extracted by 
 interrogation. 
 
 If the witness be dishonest, the instant question follows the answer. 
 Invention is the result of labor, of thought, of premeditation. The only 
 opportunity afforded for invention is the brief interval between the 
 question and the answer consequent thereupon. The witness can never 
 foreknow the interrogatories which may be propounded. The direction, 
 tendency, nature, or purpose of the unknown interrogation, he cannot 
 foresee. Not foreknowing, not foreseeing, though ever so mendacious 
 in intent, no time for invention is allowed. (7>) 
 
 Indistinctness is one of the great defects of testimony, whether caused 
 by a design to evade, and therefore indicative of dishonesty, or through 
 want of clearness of perception, and therefore evidentiary of want of 
 intelligence. Interrogation furnishes the obvious remedy, for its removal. 
 
 (a) By the French law in criminal cases, witnesses are examined publicly, in 
 presence of the judge, but not in civil cases. " Dans les matiferea criminelles, aux 
 assises, au tribunal de police correctionelle, ou mgme de simple police, enfin, dans 
 les matiferes sommaires portees aux tribunaux civils, les t^moins sont entendus k 
 I'audienee en presence des juges et du public." * * 
 
 Mais, dans les matiferes civiles ordinaires, lestemoinsne sont entendus &, I'audi- 
 enee ; leur deposition est refue par un commissaire accompagnfe de son grefSer ; 
 les parties, et leurs avou^s peuyent, S. la v^rite, y assister j ils peuvent proposer des 
 reproches sur lesquels le temoin est tenu de s'expliquer. * * 
 
 Les reproches, les explications, les interpellations, et les r^ponses, sent con- 
 signees dans le procfes verbal du commissaire, qui redige les depositions et les fait 
 ecrire par son grefBer ; elles sont ensuite lues ^ I'audienee du tribunal, mais sans 
 appeler les t^moins pour expliquer ce que pent s'y trouver d'obscur, d'equivoque 
 ou de contradictoire. 9 TouUier, g 324. 
 
 (A) L'ordinance et le code exigent qu'il soit donn6 copie des faits et articles sur 
 les quels la partie doit Stre interrog^e, et au moins vingt-quatre heures aHparavant, 
 suivant le code de procedure comme pour lui donner le temps de m^diter ses 
 r6sponses, et de les preparer aveo plus d'^rt. 10 Toullier, g 276. 
 
220 APPLETON ON RULES OF EVIDENCE. 
 
 The indistinct answer occasions tlie demand for a new inquiry to remove 
 the indistinctness, and the party interrogating being present, it is at 
 once perceived whether the object in view has been attained. 
 
 Interrogation and cross-interrogation, the questioning of witnesses by 
 all interested in the result, the inquiring by those who know what informa- 
 tion is needed, are the only effective modes of eliciting the facts, — im- 
 portant, if the witness be friendly, to remove uncertainty and indistinct- 
 ness, and to give fulness and clearness, — doubly important if the witness 
 be dishonest and adverse, to extract from unwilling lips facts concealed 
 from sympathy, secreted from interest, or withheld from dishonesty. 
 The delays to answer, the withholdings, the reticence, the evasions," the 
 innumerable indications of reluctance to answer, or of knavery, on the part 
 of the witness, can only be detected and exposed by public examination 
 and cross-examination. 
 
 All the securities for trustworthiness in testimony are found in their 
 highest efficiency on a trial of a cause at common law before a jury. 
 The zeal, interest, and knowledge of the party, the instructed sagacity 
 of counsel, the experienced skill of the judge, the calm sense and cool 
 judgment of the jury, furnish the best guaranties that incorrectness and 
 incompleteness will be removed, falsehood detected, and truth estab- 
 lished. 
 
 The witness present, the promptness and unpremeditatedness of his 
 answers, or the reverse, — their distinctness and particularity, or the 
 want of these essentials, — their incorrectness in generals or particu- 
 lars, — their directness or evasiveness, are soon detected by those who 
 extract the evidence, and by those who are to determine upon its force 
 and effect. The appearance and manner, — the voice, — the gestures, — 
 the readiness and promptness of the answers, — the evasions, — the reluc- 
 tance, — the silence, — the contumacious silence, — the contradictions, — 
 the explanations, — the intelligence, or the want of intelligence, of the 
 witness, — the passions, which move or control, — fear, love, hate, envy, 
 revenge, — are all open to observation, noted and weighed by the jury. 
 The answers ready? — is this readiness the simple and spontaneous utter- 
 ance of truth, the language of nature, the response correspondent to the 
 facts, or the deliberately prepared answers of determined mendacity? 
 The answer prompt? — is it the promptness of self-sustaining integrity, 
 or the impudent audacity of hardened guilt ? The answer evasive ? — is 
 it the evasion of cowardice, the reluctant response of self-conscious crime, 
 or the diffidence of innocence, distrustful and anxious from its unwonted 
 position ? 
 
 The answers given, there is no intervention of the transcriber with 
 his possible errors of inattention of misunderstanding, or of design. 
 There is no language of the scribe, with the unavoidable variations of 
 words or ideas from those of the witness testifying. The tribunal which 
 decides, is the tribunal which hears. If the meaning of the witness is 
 doubtful, the doubt is at once removed. If there be any misunderstand- 
 ing, the means of correction are at hand. 
 
 The mode of extracting testimony before a jury in trials at common 
 law, may be regarded as the most perfect, as attended with the least 
 
EXAMINATION OF WITNESSES AT COMMON LAW. 221 
 
 danger to the cause of justice, and as affording the greatest securities 
 for correct decision. 
 
 The extraction of evidence in the presence of the parties, the judge 
 and the jury, with full liberty of examination and cross-examination, 
 being recognized as the mode best fitted for eliciting the truth from all 
 witnesses, willing or unwilling, most instructive to the jury and most 
 conducive to the purposes of justice, nothing but a regard to its collateral 
 ends can ever authorize or excuse a deviation therefrom. 
 
 In opposition to, and in direct contrast with this best and most 
 effective, is the worst and most defective mode of proof by way of 
 interrogated and spontaneously delivered testimony, prepared and offered 
 by the party, with the aid and co-operation of counsel, which obtains to 
 such an extent in common law procedure. AfSdavits cautiously and 
 deliberately prepared, carefully worded, vague when particularity is 
 desirable, particular and specific when unimportant, evasive when cer- 
 tainty is demanded, certain as to the immaterials, suggesting or imply- 
 ing falsehood, not uttering it, concealing the truth, giving special and 
 peculiar prominence to all facts important to the affiant, withholding all 
 adverse or injurious, without cross-examination, with no opportunity for 
 contradiction, present the evidence in the most deceptitious and untrust- 
 worthy form, yet they are the bases specially selected for judicial action 
 in most if not in all cases which are submitted to the determination of 
 the judge alone. (c) 
 
 In the progress of a cause, there arise, not unfrequently, causes 
 within a cause, trials preparatory to or during the final trial; — each 
 important in itself, each important in its bearing upon the result of the 
 cause in which they occur ; — trials to determine the loss of a paper for 
 the purpose of admitting secondary evidence, to procure the continuance 
 by reason of the absence of material testimony, and a variety of similar 
 questions, which are to be heard and determined by a single judge. 
 
 Now correct decision is desirable, no matter what the question to be 
 decided, nor what the stage of the proceedings in which the decision is 
 to be made, whether primary, intermediate, or final. But correct deci- 
 sion can only be expected upon evidence, and evidence for whatsoever 
 purpose required, should be extracted in the most eflScient manner. 
 The truth is none the less needed or important, because the decision, 
 based" upon the proofs received, is to be made by a judge and not by a 
 jury, because made at an early rather than at a late day of the cause. 
 The judge, who is to decide, none the less requires the truth when the 
 proof is for his own use, than when for that of a jury. 
 
 But in the variety of questions presented for judicial determination, the 
 judge acts mainly if not entirely upon evidence in the shape of affidavits. 
 The statements of a party reduced to writing by counsel, are received, 
 though the witness is present in court, ready for interrogation, though 
 never to be interrogated. The studied phraseology of counsel, adroitly 
 worded to conceal the truth, elaborately suggesting falsehood, is received 
 and acted upon without inquiry. The opposing party can neither ex- 
 
 (c) See the remarks of the court on this subject in Johnston v. Todd, 5 
 Beavan, 597. 
 
 Maboh, 1859.— 16 
 
222 APPLETON ON RULES OF EVIDENCE. 
 
 amine the witness, nor contradict nor disprove his testimony ; unques- 
 tioned, uncontradicted, it passes for verity itself. 
 
 Nor is this all ; jealous as the law is of the sinister effect of interest, 
 or of the position of a party upon the truth of testimony, this most ineffi- 
 cient and unreliable mode of extraction is resorted to, when, if ever, all 
 attainable securities for veracity are demanded. Position in a cause as that 
 of a party cannot be expected to exist without giving the favorable col- 
 oring of self-interest to the testimony. The more apparent this, the 
 more needed the securities of publicity and adverse examination ; securi- 
 ties the most efficient for detecting or preventing falsehood, designed or 
 undesigned, of deliberation or inadvertence. The common law denying 
 testimonial veracity to parties or interested witnesses, and excluding them 
 for that cause, when both grounds of exclusion co-exist in one and the same 
 person, receives his testimony only on condition that all the recognized 
 securities for trustworthiness are abandoned, and that the dangers of de- 
 ception shall be the greatest. When the witness knows there is to be 
 no subsequent adverse interrogation, then, if ever, there is most to be 
 feared from uninterrogated testimony. 
 
 Examination, friendly or adverse, before a jury, being and being seen 
 to be indispensable for the purpose of developing the truth, why should it 
 not be so before the judge ? The party, the affiant, present, there is no 
 delay, no increased expense ; why, then, when the case is before the 
 court, this sinister sympathy for the worst, and this perverse antipathy 
 to the best mode of eliciting testimony ? Why not abolish this inefficient 
 and deceptive mode of proof, and resort to the party present, and let him 
 be examined and cross-examined, as on trials before a jury ? Why, with 
 the best mode of extracting the truth so obvious, without reason or neces- 
 sity resort to the worst ? 
 
 The witness to be examined, the right on the part of all to whom in- 
 terrogation is intrusted, to propose all pertinent, material, and necessary 
 inquiries, would seem to be unquestionable. But such is not the law. 
 Restrictions and limitations for various reasons, and in different direc- 
 tions, are imposed upon this right, the expediency of which we propose 
 to consider. 
 
 In most cases the witness is the fortuitous, not the selected and pre- 
 appointed observer of the facts, to which his testimony relates. This is 
 peculiarly so in criminal cases. Rarely is the selection of witnesses made 
 in advance. The lawsuit is not anticipated. Litigation is not expected. 
 If foreseen, the contract in which it originated would not have been 
 made, for contracts are made with the expectation of their voluntary per- 
 formance on the part of those contracting, not of their enforced ^per- 
 formance through and consequent upon a judicial contest. If the crime 
 was foreseen at the time and place of its commission, the effort of the law 
 would be to prevent rather than to permit and then punish. Most 
 crimes are accidental, the result of sudden impulse, unexpected, and the 
 witnesses by whom they are proved, are neither called, nor selected, nor 
 present, for any purpose of witnessing and testifying to the facts. Whether 
 it be the making or the breaking of a oonti^ct the commission or the at- 
 tempted commission of a crime, whether the facts tend to charge or ex- 
 
BXAMINATIOK OF WITNESSES AT COMMON LAW. 223 
 
 onerate, the witnesses called are ordinarily those happening, not those 
 specially selected to be present. Witnesses, therefore, should be re- 
 garded, — not as belonging to the one side or the other, but as the wit- 
 nesses of the law, as witnesses of the truth, indifferent to the parties. 
 Yet from a loose use of language, the witness has come to be regarded 
 as the witness of the party calling him, and rules as to his examination, 
 cross-examination, and impeachment, have been established, resting for 
 their foundation upon a sort of possessory right each party is supposed 
 to have in and to all witnesses called by him, and upon an imaginary 
 bias each witness has in favor of the party calling him. 
 
 The reasons of the rules upon this subject are thus stated by Grreen- 
 leaf,((Z) in his work on Evidence : " When a party offers a witness in 
 proof in his cause, he thereby, in general, represents him as worthy of 
 belief . He is presumed to know the character of the witnesses he ad- 
 , duces ; and having thus presented them to the court, the law will not 
 permit the party afterwards to impeach their general repv,tation for 
 truth, or to impugn their credibility by general evidence tending to show 
 them to be unworthy of belief. For this would enable him to destroy 
 the witness if he spoke against him, and to make him a good witness if 
 he spoke for him, with the means in his hands of destroying his credit 
 if he spoke against him." 
 
 What is wanted is the truth in regard to a witness, the truth from a 
 witness. It is equally desirable that the truth concerning a witness be 
 had, whether it be offered by the party calling him or by his opponent ; 
 that the truth be extracted from a witness, whether the adverse interro- 
 gation be by the party first examining him or not. Testimony impeach- 
 ing or contradicting a witness, is equally relevant to the issue, equally 
 important as affecting his trustworthiness whether produced by the one 
 party or the other. 
 
 A witness may be impeached in various ways by the party against 
 whom he is called. The right of impeachment is regarded as indispen- 
 sable for the purposes of justice. Impeached by the party calling him, 
 a witness cannot be. Why not, if his character be bad or his testimony 
 be false ? If his testimony vary from the truth, the party against 
 whom he is called may impeach or contradict the witness. The neces- 
 sity of this course is obvious. But is the necessity less apparent for the 
 purposes of justice, because it is offered by the party by whom the wit- 
 ness was called ? 
 
 The truth or falsehood, the materiality or immateriality, the relevancy 
 or irrelevancy of this testimony, is not the ground of its exclusion. Its 
 admission or its rejection depends upon no such reasons, but upon the 
 person offering it, and his relation to the suit. The party calling a wit- 
 ness, expecting the testimony favorable to his interests, — such testimony 
 being true, — and being disappointed, — expecting truth and finding un- 
 truth, — is precluded from showing the character or the falsehood of his 
 witness, because he has called him, while testimony of this description is 
 open to his antagonist. 
 
 If a party could choose his own witnesses, the rule would be less ob- 
 {d) 1 Greenleaf on Evidence, ^ 442. 
 
224 APPLBTON ON RULES OF EVIDENCE. 
 
 jectionable. But no such selection is left to him. To rely on the testi- 
 mony of the witness who alone is present, and has the knowledge of facts, 
 the proof of which is indispensable, is a necessity imposed upon a party 
 by the emergencies of his condition. 
 
 The evidence is excluded because the party offering the witness there- 
 by " represents him as worthy of belief." Suppose he does, and it turns 
 out that he was mistaken, is that any reason for excluding proof of his 
 unworthiness ? Is it not rather the very reason of all others for its re- 
 ception ? It is required because the witness has lied, and shall the lie 
 be triumphant because the liar was called by one party and not by the 
 other ? Shall one party be permitted to show the truth and the other 
 be precluded ? If it be proper to impeach one witness, why not another ? 
 "Witnesses are called and sworn to testify truly. If they do not, the 
 party against whom they are called may impeach their character. Be- 
 cause the party calling has been deceived, is that a reason why the jury 
 should be misled, and that a falsehood should be imposed upon them 
 as and for the truth ? The ascertainment of the truth is or should be 
 the object of all judicial tribunals, and if evidence of this description is 
 useful for that end, when called by one person, it can be none the less 
 so when called by another. 
 
 The party calling a witness is not allowed to call testimony to impeach 
 his general character because " this would enable him to destroy the 
 witness if he spoke against him, and to make him a good witness if he 
 spoke for him, with the means in his hands of destroying his credit if he 
 spoke against him !" If the witness testify untruly, why should he not 
 be destroyed ? Why give to false testimony the force and effect of true ? 
 He could " make him a good witness if he spoke for him." How so ? 
 How could he make a bad witness a good one ? Evidence as to the 
 "general reputation for truth" of a witness, is not a matter exclusively 
 in the hands of one party, to be used or rejected, as he may choose. 
 This sort of proof is equally open to the other side. The party calling, 
 has no such lien on this species of evidence, that he can, at his option, 
 keep it out of the reach of his opponent. - The reason given assumes that 
 the party calling a witness, who fails him, shall not be permitted to call 
 the same kind of testimony which his opponent may offer, because it 
 would give him an undue advantage. But by the hypothesis upon which 
 the exclusion rests, there can be no undue advantage since this evidence 
 is known and accessible to all. 
 
 Neither, it seems, can a witness be impeached by means of inquiries 
 proposed by the party by whom he was summoned " although he shows 
 a disposition to conceal what he knows," and may deny facts, to the ex- 
 istence of which he has previously sworn, because it would tend " to dis- 
 parage the witness and show him unworthy of credit with the jury."(e) 
 
 (e) A witness, who has testified in chief that he does not know certain facts, 
 cannot, although he shows a disposition to conceal what he knows, be asked by 
 the party calling him whether he did, on a former occasion, before the grand 
 jury, swear to his knowledge of those facts. Com. v. Welsh, 5 Gray, 533. 
 
 " It could only be to disparage the witness," remarks Shaw, 0. J., " and show 
 him unworthy of credit withlhe jury, which is inadmissible." 
 
 In England, it seems that when a witness gives evidence against the party call- 
 
EXAMINATION OE WITNESSES AT COMMON LAW. 225 
 
 But why should not a witness be disparaged, whose testimony deserves 
 disparaging ? Why should not a witness be shown unworthy of credit, 
 who, having sworn to certain facts, now denies their existence ? Why, 
 if such be the case, should an inquiry, for the purpose of proving it from 
 the lips of the recusant witness be forbidden ? What reason can be as- 
 signed for permitting such a witness to retain a character for integrity, 
 when his want, of it may be made so conspicuous ? Is the party so in 
 fault for calling a witness to prove facts, to which he has previously tes- 
 tified, that he shall be prevented from showing the truth ? Why should 
 he be punished by the loss of a just cause, because a dishonest witness 
 may have deceived him ? For what purpose courts ? For what juries ? 
 To determine the truth of controverted facts. All relevant interroga- 
 tories, by whom and to whom soever proposed, having that object in 
 view, should be allowed. 
 
 So, too, the party cannot impeach his own witness by proof of con- 
 tradictory statements made elsewhere. " The witness," remarks the 
 court, in a case where this question arose, " was the defendant's own 
 witness, not called of necessity as an attesting witness, but freely at the 
 party's own option. By offering her, he offers her as a person entitled 
 to belief, and therefore is not allowed to go into proof merely to discredit 
 her."(/) But the urgency for the proof may be as great when the wit- 
 ness is not as when he is an attesting witness. The necessity for calling 
 a witness may be more or less stringent ; but all are called because re- 
 garded as necessary. If not so regarded, their presence would not be 
 required. The attesting witness is called " freely at the parties' own 
 option," as are all other witnesses, though in each case the failure to call 
 may be followed by the loss of the cause ; but the freedom of calling is 
 the same in each. 
 
 The witness offered, may be offered " as a person entitled to belief." 
 But if the party offering be mistaken, why should not his mistake be 
 corrected ? That different testimony was expected, is satisfactorily 
 proved by the fact that the witness was called. If there was deception 
 or fraud, why should the party be mulcted by the loss of his cause, be- 
 cause he may have been deceived ? Why should a person not " entitled 
 to belief" have the credit of one thus entitled ? Does justice require 
 that falsehood should be credited and truth rejected ? 
 
 But it is said this testimony " is not competent, because not under oath 
 and because the party against whom it operates, has no power to cross- 
 examine the parti/ making it." 
 
 ing him, he may be asked whether he has not given a different account of the 
 matter in question before the trial ; but if the witness denies it, the person to whom 
 he gave the account cannot be called to contradict it. Per Patterson and Cole- 
 ridge, J. J. Mellnish t. Collier, 14 Jur. 621. 
 
 (/) Com. V. Starkweather, 10 Cush. 60. 
 
 " Evidence "that contradictory statements have been made by a witness, is only 
 allowable with a view to his impeachrnent, a ground not open to the party pro- 
 ducing the witness. The answer to an offer like that from such a party, should 
 be given in the words of Mr. Justice Patterson, in a similar case : " He is your 
 witness, and you must treat him as such." Regina v. Farr, 8 0. & P. 768. Per 
 Beardsley, 0. J., in People v. Safford, 5 Denio, 113. S. P. Thompson v. Blanchard, 
 4 Corns. 311. Hunt r. Fish, 4 Barb. 331. 
 
226 APPLETON ON EUliES OF EVIDENCE. 
 
 But this reasoning, if valid, would equally exclude the evidence in 
 question, when produced hy the party against whom the witness was 
 called, as when offered by the party calling him. In neither case are 
 the statements offered by way of contradiction, made "under oath." 
 "While in each case the witness, the person making them, may be ex- 
 amined and cross-examined by the respective parties to the suit.(p') 
 
 But to these rules it seems there are exceptions. " For when the wit- 
 ness is not of the parties' own selection, but is one whom the law obliges 
 him to call, such as the subscribing witness to a deed or a will, and the 
 like ; here he can hardly he considered as the witness of the party call- 
 ing him,"(7A and he may be impeached by proof that his reputation for 
 truth is bad, or by contradictory statements. (i) Because the law obliges 
 the party to call a witness, is that a reason why there should be a change 
 in the mode of his examination, or as to the extent to which his testi- 
 mony may be impeached ?(A;) All material and necessary witnesses must 
 be called, if a party would hope to succeed, whether attesting witnesses 
 or not. They are called, because without their testimony the party must 
 fail. Some the law regards as his witnesses; such may lie without con- 
 tradiction or impeachment by him. Some "can hardly be considered" 
 as his witnesses, though called by him, and of such truth is required, 
 and if not obtained, the party calling has the fullest license of impeach- 
 ment and contradiction. But why this distinction? The necessity 
 which requires the attesting witness is the same as that which requires 
 any other witness, who alone may know material and important facts. 
 The necessity arising from want of other proof, is one in no way affect- 
 ing the rules of evidence as applicable to the witnesses called. 
 
 So, too, "the party calling a witness is not precluded from proving the 
 truth of any particular fact, by any other competent testimony in direct 
 contradiction to what such witness may have testified," notwithstanding 
 " the evidence may collaterally/ have the effect of showing that he was 
 generally unworthy of belief."(?) But if the untrustworthiness of a wit- 
 ness may be shown collaterally, why not directly? Is not a collateral 
 impeachment of one's own witness as much an impeachment as when it 
 is direct? Is not its effect upon his testimony the same in one case as 
 in the other ? 
 
 (g) 10 Cush. 60. 
 
 (A) In England, under the common law procedure act 1854, (11 & 18 Vict. c. 
 125, J 22,) the party in civil cases may, under certain conditions, contradict by 
 other evidence the statement of a witness who has proved, unexpectedly, adverse 
 to the party calling him. The 2d section enacts " that a party producing a wit- 
 ness * * may, in case the witness shall, in the opinion of the judge, prove ad- 
 verse, contradict him by other evidence, or by leave of the judge, prove that he has 
 made, at other times, a statement inconsistent with his present testimony ; but before 
 such last-mentioned proof can be given, the circumstances of the supposed state- 
 ment, sufficient to designate the particular occasion, must be mentioned to the wit- 
 ness, and he must be asked whether or not he has made such a statement." 
 
 This extends to civil cases in England and Ireland, by J 103, but not to criminal 
 courts. But it seems the witness may be interrogated about his contradictory 
 statements. Powell on Evidence, 380. 
 
 (i) 1 Greenleaf, Evidence, g 443. 
 
 (A) Dennet v. Dow, 11 Maine, 19. 
 
 (?) 4 Ooms. 311. 
 
EXAMINATION OF WITNESSES AT COMMON LAW. 227 
 
 The rule that you shall not lead your own, but may your opponent's 
 witness,(m) rests upon a presumed partiality on the part of the witness 
 in favor of the party calling him, a partiality so great that perjury in 
 his favor may be regarded as a reasonable inference. 
 
 The end proposed in extracting testimony, is the obtaining the actual 
 recollection of the witness, not the allegations of another person, sug- 
 gested to and adopted by the witness, and falsely delivered as his. It 
 is apparent that suggestive interrogation leads to the despatch of busi- 
 ness, and that sometimes it may be absolutely necessary to recall the 
 attention of the witness to facts which have passed from his memory. 
 
 The objection exists in full force, when on the part of the interrogator 
 there is a disposition to afford information for the purpose of eliciting a 
 false answer, and a corresponding design on the part of the witness to 
 make use of the information thus obtained for such sinister purpose. 
 The real danger is that of collusion between the witness interrogated and 
 the counsel interrogating, that the counsel will deliberately imply or 
 suggest false facts with the expectation on his part, and with an under- 
 standing on the part of the witness, that he will assent to the truth of 
 the false facts thus suggested. Unless the person interrogating have a 
 sinister purpose, he will not suggest falsehood as and for the truth. 
 Unless the witness be dishonest, he will not affirmatively respond to the 
 falsehood suggested. 
 
 The space thus afforded for dishonest concert, the time intervening 
 between the question and its prompt answer, is so brief, that little danger 
 need be apprehended. But if there should be concert and conspiracy, 
 adverse interrogation may be safely relied upon to reduce the dangers 
 therefrom to its lowest degree. The danger from misrecollection, or 
 from a failure to recollect without the aid of suggestive interrogation, is 
 greater than from perjurious testimony consequent upon leading ques- 
 tions. Accordingly the original strictness of the law has been abandoned, 
 and the right of proposing leading questions has been accorded to each 
 party, subject to the discretion of the court, under the peculiar circum- 
 stances of each case.(») 
 
 (m) Iq Scotland, " leading questions, that is, such as instruct the witness how- 
 to answer on a material point, are not allowed" to either party. Tait on Evi- 
 dence, 427. 
 
 («) Parsons T. Huff, 38 Maine, 131. Greenleaf v. Stokes, 3 Gilman, 201. 
 
CHAPTER XIV. 
 
 EXAMINATION OF WITNESSES IN EQUITY. 
 
 Fraud, trust, mistake and accident are the principal objects of equity 
 jurisdiction. That the defendant has been guilty of fraud ; that he has 
 violated some trust reposed in him; that he has taken some undue 
 advantage of a mistake or accident, are the ordinary allegations in a bill; 
 and if the bill be sustained, these charges so alleged, are to be regarded 
 as true. The peculiar boast of equity is, its efficiency where the common 
 law fails ; and this efficiency is mainly attributable to the virtues of its 
 searching interrogatories by which the defendant is, or is expected to be 
 purged, (a) 
 
 In discussing the modes of examining witnesses and extracting their 
 testimony, regard must be had to two classes, — witnesses who are par- 
 ties, and those who are not parties in the cause. Accordingly as the 
 witness may belong to the one class or the other, different modes of ex- 
 tracting testimony have obtained, which severally require special con- 
 sideration. 
 
 In equity, the defendant — interested to the extent of the amount 
 involved in litigation, — a wrong doer by the allegations in the bill, — 
 rejoicing in his fraud, — denying his trust obligations, or refusing to exe- 
 cute them, — taking dishonest advantage of mistake or accident, — with- 
 holding needed proof — unwilling either to do justice to those whom he 
 has wronged, or to disclose the facts when needed for judicial purposes, 
 and who can only be coerced by the compulsory power of the court to 
 do the one or disclose the other, — is, from the necessity of the case, a 
 witness, and an appeal is made to his conscience. No one but a lawyer 
 would imagine that resort to a court for its aid to compel the perform- 
 ance of what should have been done without its intervention, would be 
 considered the best evidence of integrity on the part of the individual 
 refusing, or that it would be construed into " an emphatic admission, 
 that in that instance the party is worthy of credit, and that his known 
 integrity is a sufficient guaranty against the danger of falsehood."(&) 
 Still less would he suppose that under such circumstances trustworthi- 
 ness surpassing that of witnesses of average integrity, and without in- 
 terest, would be predicated of and_ accorded to all defendants in equity 
 whenever their reluctant testimony should be needed. The credit due 
 a witness is usually left to the intelligence and judgment of those who 
 are to hear and decide. In equity, the law measures in advance the 
 credibility of all defendants, and without reference to, or a knowledge of 
 
 (a) 3 Bl. Com. 437. " When facts or their leading circumstances rest only in 
 the knowledge of the party, a court of equity applies itself to its conscience and 
 pwges Urn upon oath with regard to the truth of the transaction." 
 
 (6) 1 Greenl. Bv. 329. 
 
EXAMINATION OP WITNESSES IN EQUITY. 229 
 
 their testimony, of its truth or falsehood, in utter ignorance of what may- 
 corroborate or detract from its weight ; and by an unvarying rule, values 
 the testimony of every defendant as uniformly exceeding in probative 
 force, that of one disinterested witness, however great his integrity, and 
 determines that it shall always be regarded as true, unless disproved by 
 two witnesses,(c) or by their equivalent, one with corroborating circum- 
 stances. The party who could not be heard before a jury, whose testi- 
 mony it would be thought dangerous to receive, is judicially adjudged 
 to possess not merely the average veracity of a disinterested witness, but 
 to be clothed with superordinary trustworthiness. All defendants in 
 equity, indeed, by virtue and in consequence of being defendants, in all 
 time past, present, and to come, are thus decreed to be men of extraor- 
 dinary integrity. 
 
 Such being the position of a defendant in equity, — his pecuniary in- 
 terest at stake, — his personal integrity in issue, — the unmerited reliance 
 placed upon his statements would seem especially to demand that one thus 
 situated should be subjected to a severe and rigid examination, and that 
 whatever securities the law affords against mendacity in testimony, and 
 for efficiency in its extraction, should be afforded. If an occasion could 
 be imagined in which the most stringent and efficient securities for 
 trustworthiness should be demanded, it would be when the witness to 
 be examined is adverse in position, feeling and interest to the person in 
 whose behalf he is to be interrogated. The emergencies of the case 
 would seem to require the adoption of the most searching and rigorous 
 interrogation under all those conditions most favorable for eliciting truth 
 
 (c) "Simili modo sanximus, ut unius testimonium nemo judicum in quacunque 
 causa facile patiatur admitti. Et nunc manifeste sancimus, ut unius omnino testis 
 responsio non audiatur eiiamsi prceclarae curiae honore praefulgeat." Code 4, 20, 9. 
 
 The maxim unus testis nullus testis seems incorporated in the civil law. 
 
 By the Mahommedanlaw, two men or their equivalent, four women, make full proof. 
 
 By the Mosaic law, there must he two witnesses in criminal cases. Deut. 19, 
 15. But in civil cases the law is otherwise. 4 Michaelis Commentaries, art! 399. 
 
 By the law of Scotland, it is a fixed rule, that the unsupported evidence of a 
 single witness is insufficient either to prove a criminal act, so as to warrant a 
 cO^nviction, or to establish the ground of action in a civil case. Tait on Ev. 437. 
 
 The canon law requires two witnesses. The pope alone can -mzka full proof . 
 
 " Mais cette rfegle, utile chez un peuple grossier, qui avait besoin d'etre guidS 
 par des prescriptions positives et litterales, ne m^ritait pas plus d'etre transportee 
 chez les peuples modernes, que tant d'autres pr^ceptus de la loi mosaique dont le 
 caractfere local et temporaire n'est pas contests. Ce fut oependant d'apres ces au- 
 torit^s que les D^crfetales 6rigferent en rfegle absolue I'exclusion d'un t^moiu unique, 
 fut il 6vgque on meme archevSque ; le pape seul avait le privilege d'en 6tre cru 
 sur sa declaration." Traite des Preuves par Bonnier, 257. 
 
 A rule of law more prejudicial to the ends of justice, than that by which two 
 witnesses are needed in all cases to constitute full proof of a fact, can hardly be 
 conceived. By it all men as units are decreed to be unworthy of belief. Testify- 
 ing in couples, witnesses may or may not be believed, according to the probabili- 
 ties of the truth of their testimony. Testifying alone, one witness, though in fact 
 the court and the jury may place unhesitating confidence in his statements, yet 
 they are prohibited from deciding in accordance with their convictions. Judg- 
 ment is peremptorily given as to the credibility of each and every single witness, 
 in advance of and without hearing, and for all coming time. Believing the wit- 
 ness, the decision must be as if he were disbelieved. All crimes may be com- 
 mitted with impunity, unless in the presence of two witnesses, or unless their 
 commission can be proved by the required testimony. No contracts can be en- 
 forced without the requisite evidence. Justice is denied unless the witness brings 
 his fellow. 
 
230 APPLBTON ON EULES OF EVIDENCE. 
 
 and detecting falsehood. Instead of this, it will be found that the testi- 
 mony of witnesses thus invested in advance with underserved trustworthi- 
 ness is received not merely without the ordinary securities for a truth, but 
 that every facility which mendacious and unscrupulous knavery could de- 
 sire is afforded for the successful triumph of fraud, evasion and falsehood. 
 
 Oral interrogation and cross-interrogation, in public, by the parties 
 respectively, or their counsel, as well as by all interested in the question, 
 in the presence of the judge by whom the decision is to be made, adopted 
 by the common law and recognized by the civil law, as the only proper 
 and the most efficient mode of extracting the truth from unwilling, wil- 
 ling or indifferent lips, is hardly known in the trial of a cause within the 
 domain of equity. 
 
 The problem is how best to extract the truth from the dishonest, re- 
 luctant, evasive or adversely interested ; for where the reverse is the case, 
 the difficulty becomes almost imaginary. The solution which equity 
 gives, — first ascribing to all defendants extraordinary trustworthiness, — 
 is to send a long, tedious, circumlocutory letter, termed a bill, to the 
 party from whom redress is sought, replete with that cumbrous and ver- 
 bose technicality in which equity and common law alike rejoice, — to 
 which generally, or to the specific interrogatories of which, he is required 
 to answer. The truth is what is desired. The only interrogation is in 
 and by the bill, or the specific inquiries constituting a portion thereof. 
 Ample time is given for premeditation, for evasion, with counsel learned 
 and adroit in all those resources of language by which the truth may be 
 skilfully concealed or suppressed, or falsehood artfully suggested to aid 
 in preparing a reply to every inquiry, which, apparently without sup- 
 pressing the one or directly uttering the other, may, by the use of words 
 specially adapted to conceal or evade, approximate to the limits of con- 
 cealment, suppression or falsehood; an answer which may defeat the 
 very objects of the inquirer. 
 
 The examination of the defendant is by a wholesale and general in- 
 terrogatory, in and by which "he shall be required to answer as fully, 
 directly and particularly, to every material allegation or statement in the 
 bill, as if he had been thereto particularly interrogated," Cc) or certain 
 definite interrogatories are filed, to each of which a definite answer is 
 required, ((i) A general interrogatory, or a series of specific interroga- 
 tories, "give ample room and verge enough" for concealment or evasion. 
 The whole interrogation is known in advance, so the dishonest and frau- 
 dulent may thus avoid all the dangers of an open and public examina- 
 tion. The answers, deliberate, premeditated, are prepared with ample 
 time for reflection ; the skill of the counsel co-operating with the sinister 
 interest of the party defendant, when in the wrong, to foil and baffle the 
 inquiries of the plaintiff. Adverse interrogation to any good purpose, — 
 none ; for none such can be, except when the interrogator and the in- 
 terrogated meet face to face, and the sudden and unexpected inquiry 
 must be followed by the prompt answer, — by evasion, or refusal to an- 
 swer. Write to one whom you assert has wronged you, whom you fear 
 will answer untruly; pre-ordain undeserved credence to his unknown 
 
 (c) 1 Hoff. Pr. 46. [d) Chancery Rules,—? 1, 37 Maine, 581, 
 
EXAMINATION OF WITNESSES IN EQUITY. 231 
 
 answers ; allow him ample time and leisure for evasion, concealment, 
 indirection, and counsel to aid in accomplishing and perfecting those 
 purposes so disastrous to the ends of justice; abstain from all direct and 
 personal oral inquiry, either for your own information or for the instruc- 
 tion of the court, by whom the cause is to be determined, — and you have 
 the system which equity adopts as the perfection of human wisdom. 
 The mode of extraction, absurd as applied to any witness, becomes espe- 
 cially so as to one adversely interested. The wonder is, not that the 
 truth is occasionally obtained, but that the plaintiff desirous of the truth 
 should ever resort to so hazardous an experiment, or should hope or ex- 
 pect to obtain it by means so ineffectual ; not that an answer is false and 
 evasive when such encouragement is given to the wrongdoer, but that 
 with means and processes so impotent for good, justice is ever done. 
 
 The answer given may be evasive, indistinct, or incomplete. The 
 evasion may be designed, the indistinctness unintentional. The prompt 
 inquiry and the instant answer are the natural and obvious modes of 
 defeating the sinister designs of evasion, or the negligent omissions of 
 incompleteness, or the indefinite vagueness of indistinctness. The only 
 mode recognized in equity is the tedious and dilatory one of exceptions 
 and reference to a master, with delay for the purposes of argument and 
 decision, and a new opportunity, if the exceptions are sustained, of 
 smothering the truth in the verbiage of a new answer, to be again the 
 subject of exceptions and further delays and expense. 
 
 Does the answer disclose new facts in discharge or avoidance, in refer- 
 ence to which the plaintiff may require further information, — an amended 
 bill, charging new facts, proposing new interrogatories, with further time 
 allowed for an answer, is necessary to accomplish this desired purpose. 
 Thus delay is added to delay, expense is heaped upon expense, which 
 might all be avoided were the party forthcoming for oral examination in 
 public and in the presence of the court. 
 
 ■ The mode of examination being thus obviously objectionable, no less so is 
 the rule by virtue of which restrictions are placed and limits imposed upon 
 the subject-matter to which the witness defendant is permitted to testify. 
 
 The examination of the defendant in and by the bill, is, not to ascer- 
 tain "the truth, the whole truth, and nothing but the truth," but only 
 such special facts as may be deemed important to the interests of the 
 party inquiring. The plaintiff, controlling the interrogatories as far as 
 possible, limits and restricts them to those matters as to which he hopes 
 or anticipates favorable answers. The requirements of his case, not the 
 requirements of justice, are the limitations upon inquiry. 
 
 The defendant, though a witness, is only one so far as required by his 
 opponent. In no respect is he a witness for himself and on his own mere 
 motion. His power of effective answer is only so far as the same may be 
 responsive to the bill. He cannot as a witness assert new facts for any 
 of the purposes of evidence, facts by way of defence, — excusatory, 
 self-exculpatory, or inculpatory of the plaintiff, — ^if they do not relate 
 to his inquiries and are not responsive thereto, are not evidence in his 
 favor, but must be established by proof from without his answer, (e) The 
 
 (e) Hart v. Ten Byck, 2 John. Ch. 62; ■Woodcock v.Bennet, 2 Cow. 711; Board- 
 man v. Jackson, 2 B. & B. 385. 
 
232 APPLBTON ON RULES OF EVIDENCE. 
 
 defendant, practically, is only to be examined as to those facts as to 
 which the party examining expects favorable answers. He is only 
 allowed to utter fragmentary portions of the truth ; at liberty to answer 
 all inquiries made, not to assert facts in self-exoneration, not responsive 
 to the inquiries of his antagonist ; a witness so far as the plaintiff may 
 choose to inquire, not a witness so far as the ends of justice require; not 
 examinable by the court, who are to decide ; examinable only by the 
 plaintiff, without liberty of spontaneous testimony on his own part, or 
 of examination or cross-examination by counsel. (/) • 
 
 Not merely are the only reliable securities for the trustworthiness of 
 testimony disregarded in eliciting the testimony of the defendant, but in 
 extracting that of extraneous witnesses, a similar disregard is shown to 
 the only efficient mode of extraction. All the benefits of oral examinar 
 tion and cross-examination in public and in presence of the tribunal 
 which is to decide, are deliberately and unnecessarily surrendered. 
 
 In equity, the evidence of extraneous witnesses, upon whose testimony 
 the chancellor rests his judgment, was, and in some cases now is, ex- 
 tracted by written interrogatories duly filed by the respective parties; — 
 the answers to which, reduced to writing in secrecy in the absence of 
 parties and their counsel by a commissioner or examiner, are by him 
 transmitted to the court ; and until publication the proofs thus taken are 
 entirely unknown to the parties litigant. 
 
 The witnesses are examined by written interrogatories filed by coun- 
 sel, — each interrogatory proposed in entire ignorance of the answers to 
 each preceding inquiry. If the answers are indistinct, that indistinct- 
 ness is permanent; if incomplete, that incompleteness is unchangeable; 
 if incorrect, that incorrectness must ever remain ; if evasive, evasion is 
 triumphantly successful. No question can be put, based upon or arising 
 from a preceding answer. If the witness is favorable to the plaintiff, 
 intelligent, aware of the question at issue, with fortunate interrogation 
 the truth may be elicited ; if adverse in feeling and interest, when, if 
 ever, the plaintiff should be entitled to all the benefits of adverse inter- 
 rogation, the chance of extracting the truth is almost hopeless. 
 
 Cross-examination there can be none. Whether the inquiries pro- 
 posed embrace all the facts within the knowledge of the witnesses, can- 
 not be known. The solicitor filing his direct, the solicitor filing his cross 
 interrogatories, alike ply their labors, each in utter ignorance of the do- 
 ings of the other, of the several interrogatories filed,((/') and of the an- 
 
 (/) This rule is rigidly enforced when testimony is taken before a master. It 
 was held, in Armsby v. Wood, Hopk. 229, that a party examined before a master by 
 order of court, in the matter in reference, has a right to give every explanation in 
 relation to the matters inquired about ; but he is not thereby made a witness for 
 himself as to other and distinct matters. " When a party is examined as a witness 
 against another party in the cause, he stands in the same situation as any other 
 witness, and may be cross-examined by the party against whom he is called ; but 
 his testimony cannot be used as evidence in his own favor. There can be no cross-ex- 
 amination by his counsel ; and he cannot give testimony in his own favor, except so far 
 as his answers may be responsive to the questions put by the opposite party." Per Wal- 
 worth, Oh., in Benson v. Le Roy, 1 Paige, 122. 
 
 (g) "And it is an imperative rule that until examination has been completed 
 and the entire depositions given out, which is technically termed passing publi- 
 cation, neither party shall be made acquainted with his adversaries' interrogatories, nor 
 with any part of the answers on either side ; and that after publication, no further 
 
EXAMINATION OF WITNESSES IN EQUITY. 233 
 
 swers to their interrogatories. The solicitor, ignorant of the answers 
 given upon the direct examination, — still worse, ignorant even of the 
 questions proposed — cross-examines only upon guessed at and anticipated 
 answers. The interrogatories must be numerous, and in the alternative 
 to meet the possible and contingent replies which may have been made. 
 The answers given on the direct examination, — whether affirmative or 
 negative, direct or qualified, and if qua,lified, to what extent, and in what 
 direction ; whether relevant or irrelevant ; complete or partial and in- 
 complete J clear, definite and responsive, or confused and evasive, — can- 
 not be known till after publication ; and when thus known, the infor- 
 mation comes too late for any beneficial purpose. The party cross- 
 examining, utterly and hopelessly ignorant of all testimony as extracted 
 by the questions of his opponent, if he cross-examines at all, it is in the 
 dark and about he knows not what. So miserably, so deplorably ineffi- 
 cient is the chancery mode of examining witnesses, that the shrewdest 
 solicitors never cross-examine a witness, unless it be one whom the party 
 cross-examining would have called and examined in chief.(A) 
 
 The duty of the examiner is limited to reducing to writing the an- 
 swers to the particular inquiries proposed, not to the proposing of new 
 ones, however naturally they might arise from preceding answers. He 
 has neither the zeal prompting to extract from the witness all he may 
 know ; or if possessing the zeal, he is without the requisite knowledge 
 as to the inquiries which may be needed ; or if possessing both, he is 
 without the power and authority to propose questions and compel answers. 
 
 In all testimony, unless the exact words of the answer are given, there 
 is obviously a danger of .misunderstanding the witness. But the exact 
 words of the question may not be understood, and if not, a misunder- 
 standing corresponding thereto may occur in the answer ; or the witness 
 may omit to mention, or the examiner to take down a material statement ; 
 or the answer may be misapprehended or misunderstood, or the exact 
 words being understood may not be given. Different language from that 
 of the witness, intending thereby to convey the same meaning, but actu- 
 ally conveying one materially variant therefrom, may be used. The 
 collocation of the words may vary, and the meaning conveyed by the 
 transcriber may unintentionally differ from that intended by the witness. 
 But whether the difference of meaning or of language is the result of 
 negligence or design, there is no one present by whom it will be per- 
 ceived, or who perceiving, will have any adequate motive to correct it. 
 The effect, therefore, upon the interests of justice will be quite as dis-' 
 astrous and irremediable as if the mistakes and misunderstandings of 
 the examiner originated from the most perverse design. 
 
 By the more modern practice in England'aud in this country, the ori- 
 ginal rigor of equity proceedings is somewhat modified, and the depositions 
 of extraneous witnesses may be taken in the presence of parties and coun- 
 sel, and with the benefits of examination and cross-examination by them. 
 
 witnesses can be examined witliout special leave." Adams' Equity, 361 ; Gresley, 
 Et. 58. 
 
 (A) " I never," says Mr. Bell, " in my later practice ventured to cross-examine 
 a witness, unless he were a witness whom I would otherwise have examined in 
 chief; or to extract some fact to show that he was interested." Ch. Com. App. 
 p. 6, Q. 49. Gresley, Et. 58. 
 
234 APPLETON ON RULES OF EVIDENCE. 
 
 Whether the testimony of the parties be extracted on bill and answer, 
 that of extraneous witnesses upon written interrogatories duly filed, and 
 in secrecy answered, or upon oral examination in the presence of the 
 parties, the answers reduced to writing, the judge of fact is alike with- 
 out opportunity to see, hear, observe and interrogate the parties and wit- 
 nesses upon whose statements decision is to be made. Now among those 
 upon whom in an especial manner the power of interrogation should be 
 conferred, is the judge by whom the cause is to be determined. Indeed, 
 it may be regarded as an axiom, that, except when prevented hy prepon- 
 derant delay, vexation and expense, the evidence should in all cases be 
 extracted in the presence of him upon whom is devolved the responsi- 
 bility of decision. His view of the cause, of its merits, of the weight of 
 evidence, of the inferences deducible therefrom, may differ from that of 
 counsel. He may require further and additional questions for the cor- 
 rect understanding of the cause, or for its complete elucidation. He 
 may perceive doubts, he may see occasions for inquiry which counsel 
 fail to perceive or see. He may need explanations to remove doubt, 
 uncertainty, indistinctness or incompleteness ; he may wish to make 
 inquiries for that purpose, — yet as to all this he is powerless. The 
 chancellor by whom a cause is to be tried, brings to the performance of 
 his duty integrity and intelligence. As the trial proceeds (or as it should 
 proceed, the parties and witnesses being examined in his presence,) he 
 acquires a knowledge of the facts on both sides. He perceives where 
 there is doubt, where indistinctness, where contradiction, and what in- 
 quiries may be needed to elucidate doubt, to remove indistinctness, to 
 explain contradiction, yet indifferent to parties, not indifferent to the 
 just decision of their rights ; he is precluded from making any and all 
 inquiries. By such an interrogator no questions can be asked. The 
 day of interrogation is over, or rather as to him it has never dawned. (i) 
 
 The appearance and manner of a witness, the readiness and prompti- 
 tude of his answers, their fulness, clearness, and distinctness, or the re- 
 verse, afford no slight indications of the truth or falsehood of his testi- 
 mony. All this is lost where one collects and another decides. The 
 judge, to decide, neither sees nor hears the witnesses; — all the instruc- 
 tion demeanor can give is lost upon the person before whom the proof 
 is taken, and withheld from him whose duty it is to decide upon its 
 trustworthiness when taken ; — useless to the one collecting, indispensable 
 to him for whose use it is collected, but whom it never reaches. 
 
 The rude legislation of early ages(/<;) regarded the appearance and 
 
 (i) Quant aux inconvmances d'entendre les temoins a I'audience, ce language est 
 vraiment etonnant. 
 
 L'empereur Adrien, loin de croire la majesty du trSne blessed par Taudition 
 des temoins, pensait qu'il etait de son devoir de les interroger ; Namqueipsos inier- 
 rogan soleo. Les convenances sont elles done bless^es par I'audition des temoins 
 devant les cours d'assisses ?" 9 Toullier, ^ 324. Alia est auctoritas testium pre- 
 sentium alia testimoniorum quae recitari sclent. 
 
 (k) " Let the king or his judge having seated himself on the bench, his body 
 properly clothed, and his mind attentively fixed, begin with doing reverence to 
 the deities who guard the world ; and then let him enter on the trial of causes. . . 
 By external signs let him see through the thoughts of men ; by their voice, color, 
 countenance, limbs, eyes and action. Prom the limbs, the look, the motion of the 
 
EXAMINATION OF WITNESSES IN EQUITY. 235 
 
 manner of the witness as the surest means of instruction to the judge of 
 fact however named ; and the polished and refined civilization(Z) of later 
 ages has recognized and sanctioned its wisdom. But appearance and 
 manner are not all. The exact words used, the change of a word, the 
 emphasis of the witness, the gesticulations of the body, the play of the 
 the features, may be important in ascertaining his meaning, and in de- 
 termining his trustworthiness. Of the precise words spoken, their order, 
 the appearance and manner of the person uttering them, the judge of fact 
 can only be assured by the eye and the ear, not at all by the written report. 
 
 How weak and powerless the testimony of depositions compared with 
 that of a living and speaking witness, seen, heard and examined. How 
 difi'erent the eloquence of the written speech and that of the spoken 
 oration. The chancellor delighteth in the deaf and dumb testimony of de- 
 positions, — surda et muta testimonia, testimony which cannot hear, which 
 cannot see, which cannot answer, — deaf to inquiry, dumb to answer.(mi) 
 
 By the original rules of chancery practice, neither party was permit- 
 ted to know the testimony in a cause till after publication ; after which 
 no one could be examined without special leave of the court, for the 
 correction of mistakes on the part of other witnesses, or even of those in 
 his own testimony. " The protracted nature of a written examination 
 necessarily involves the risk that defects of evidence might be discovered 
 in the course of taking it, and false testimony procured to remedy 
 them."(m) To avoid this risk witnesses are examined privately, and 
 until publication passed, neither party is acquainted with the interroga- 
 tions filed or answers given, and " and after publication no further wit- 
 nesses can be examined without special leave."(o) 
 
 When evidence is extracted in a mode so defective, the risk is un- 
 doubtedly great, " that defects might be discovered in the course of 
 taking it." The remedy for this evil would naturally seem to be the 
 providing a better mode for its extraction. But if that be denied, and 
 if defects exist, why not correct them by new and additional proof. 
 The answer is, because of the danger of " false testimony procured to 
 remedy them," — lest " people seeing where a cause pinched, they 
 should then be at liberty to look out witnesses to bolster up the faulty 
 ' part of the cause ; the necessary consequence of which would be per- 
 jury.(oo) But whatever the defect, whether of omission or commission, 
 of incompleteness or of falsehood, wherever the cause pinches, the 
 defect may be remedied, the faulty part may be bolstered up by true 
 testimony; and if so, what harm can arise ? Whether the new testimony 
 will be true or false, cannot be known in advance. To refuse to receive 
 it because it may possibly be perjurious, is to presume falsehood rather 
 than truth. If there be falsehood in the original testimony, it cannot 
 be known till after publication, and when known it is too late to correct 
 or disprove it. The fear of perjury secures its triumph, for until its 
 
 body, the gesticulation, the speech, the changes of the eye and the face, are dis- 
 covered the internal worliings of the mind." Institutes of Menu. Ch. 8, § 23, 24, 26. 
 
 [l) 9 Toullier Droit Civil Francais, § 324. "Entin, il est reconnu que I'audi- 
 tion des t^moins, en presence desjuges, est la voie la plus sure, la seule peut fetre 
 de d^couvre la v^rite." 
 
 (m) 9 Toul. I 324. {n) Adams, Equity, 367. (o) Adams, Equity, 367. 
 
 {oo) Per Lord Nottingham in Jones v. Purefoy, 1 Vern, 47. 
 
236 APPLETON ON RULES OF EVIDENCE. 
 
 existence is known its refutation is not perceived to be necessary, and 
 when known it becomes impossible. Indeed, so reluctant are courts to 
 receive new testimony, that Story, J., in Wood v. Mann, 2 Sum. 335, 
 says, "if I were called upon to frame a rule, it would be to exclude all 
 testimony of newly discovered witnesses to any facts unless connected 
 with some newly discovered documents." 
 
 In some instances witnesses are re-examined for the purpose of cor- 
 recting errors or mistakes in their testimony, but never as a matter of 
 right. " This witness," says Sir John Leach, in Bott v. Buck, 6 Mad. 
 66, " having been examined on the part of the plaintiff, has since seen 
 a written paper signed by himself, which is in possession of the defend- 
 ant, which he admits is at variance with his testimony. He now desires 
 to be examined to correct his former evidence. A re-examination would 
 be dangerous to justice and cannot be 'permitted. (j>^' But why not 
 correct mistakes? why not receive explanations ? The mistakes of mis- 
 recollection, indistinctness or incompleteness, — why should they not he 
 corrected ? "A re-examination would be dangerous to justice !" Is 
 not the refusal to re-examine still more dangerous? Fear of perjury the 
 reason why no new inquiry should be had of a witness who may have 
 made a mistake and is desirous to correct the same ! But what more 
 danger of perjury in the second than in the first answer ? If a 
 witness wishes to correct or alter his statement, because erroneous or 
 incomplete, is not the correction or addition not merely permissible, but 
 in jihe highest degree desirable, due alike to the integrity of the witness, 
 the rights of the parties, and the cause of justice ? 
 
 The inefficiency of the modes of extracting evidence in equity, their 
 entire unfitness, their utter worthlessness for, their opposition to the 
 great ends of justice; "the deficiency of trial by written evidence," are 
 so fully recognized by the court " that it will not bind the parties 
 thereby, but will direct the matter to be tried by a jury."(g) The court, 
 with full authority to decide all controverted questions, dissatisfied with 
 its own rules,(r) fearful of a failure of justice when it is administered in 
 accordance therewith, will in general direct an issue in order to relieve 
 and ease its own conscience, and to be satisfied, by the verdict of a jury, of 
 the truth or falsehood of the facts controverted, lest, " taking upon itself ' 
 to pronounce decidedly upon a matter of such uncertainty, it might do 
 injustice to one of the parties by determining against the truth of the 
 fact."(s) The cause is therefore sent to another tribunal, the special 
 and peculiar excellence of which is, that its mode of weighing and com- 
 paring evidence, and its course of procedure, is utterly variant from 
 that adopted by the court, which from its own incompetency to decide, 
 sends its disputed issues to another jurisdiction for determination, with- 
 out however being bound or intending to be bound by its decisions. 
 
 {p) "No more dangerous mode of proceeding can take place than permitting 
 parties to make out evidence by piecemeal, and to make up the deficiency of 
 original depositions by other evidence." Whitelock v. Baker, 13 Tes. 54. But 
 what is the. harm in making out evidence by piecemeal, so it be true ? Why not 
 make up deficiency in original depositions ? Is it not the very thing of all others 
 especially desirable? (j) 2 Daniel, Ch. Prac. 1192. 
 
 ' ) " Considering the inefficiency of written testimony." Adams, Eq. 376. 
 I 2 Dan. Ch. Pr.l286. 
 
EXAMINATION OF WITNESSES IN EQUITY. 237 
 
 The cases specially selected for this procedure, are those cases where 
 " there is a want of evidence, or the testimony is contradictory and so 
 nearly balanced, that it is necessary there should be an open and rigid 
 cross-examination before a jury,'YA "where there is contradictory evi- 
 dence between persons who are of equal credit," where the evidence is 
 so equally balanced on both sides that it becomes doubtful which scale 
 preponderates,(M) " when there is no contradictory evidence or any 
 matter to embarrass the court or prevent its coming to an immediate 
 decision upon the question before it,"(w) where the case is not suffi- 
 ciently proved, or the question turns upon conflicting presumptions of 
 factj'Yw) or when the chancellor would shirk the responsibiliti/ or fears 
 the unpopularity of a Just decision. (x\ But are not these cases spe- 
 cially requiring the enlightened judgment of a learned and able judge ? 
 If the evidence is neither contradictory nor equally balanced, nor needing ■ 
 cross-examination, any body may decide. But if the evidence is con- 
 flicting, if a comparison of the testimony and carefully weighing and 
 determining its efiect be required, such are the cases when the expe- 
 rience and ability of the chancellor are most needed. But in these it 
 seems he is incompetent to the discharge of the duties he has assumed, 
 and the trial must be transferred to another tribunal. The chancellor 
 throned in his seat of power, fearing lest justice may be unpopular, and 
 dreading the responsibility of doing it, refuses to discharge his duty, 
 and devolves its performance upon a tribunal evanescent and feebly 
 resistant to the fluctuating counsels of the popular mind. 
 
 The principal reason for sending a cause to be tried by a jury at 
 common law, is the inefficient and unsatisfactory mode of examining 
 witnesses in equity.(?/) But if the chancery mode of examining witnesses 
 and extracting testimony is the reason for sending the cause to another 
 tribunal, the proper course would seem to be to abolish the rules in 
 equity which have proved so unsatisfactory, and adopt those of the 
 common law. If the conscience of the chancellor is so dissatisfied with 
 the rules of his own court as to deem it dangerous to decide questions 
 upon depositions, why are not they changed, and the witnesses heard ? 
 By the Roman law parties and witnesses were examined and cross- 
 examined in public, and before the judge by whom the cause was to be 
 determined. (21) The imperial majesty of Eome did not disdain to seek 
 
 («) Townsend v. Graves, 3 Paige, 453. («) 2 Dan. Ch. Pr. 1285. 
 
 (v) 2 Dan. Ch. Pr. 1287. (w) 2 Dan. Oh. Pr. 1291. 
 
 (x) The chancellor directs an issue among other reasons, " where he thinks it 
 better that the responsibility and perhaps unpopularity of deciding should be 
 thrown upon that evanescent tribunal, a jury." Gresley, Bv. 401. 
 
 (t/) In Burford v. Domett, 4 Ves. T60, the JMaster of the Eolls says, " Then it is 
 impossible to sit here any time, without seeing that a viva aoceexamination of wit- 
 nesses is much more satisfactory than deposition where a possibility of doubt can 
 be raised. * * * I should do a most dangerous thing if I was to decide this ques- 
 tion upon these depositions." 
 
 (2) " Et meme anciennement les interrogatories des tfemoins etoient tellement 
 en usage, que non-seulement les juges, mais mime les parties et leurs avocats, 
 pouvoient les interoger en presence du juge, comme a fort bieu remarque Budee, 
 contre I'opinion de Bartole, ainsi qu'il le prouve par plusieurs exemples des 
 anciens, et principalement par le tgmoignage de Quintilien et Ciceron: Est-ce-ld 
 un si grand sujei de louange pour un avocat? (dit il.) II a interrogi le timoin d 
 
 March, 1859.— 17 
 
238 APPLETON ON EULBS OF EVIDENCE. 
 
 the truth by the natural and only direct mode of interrogation. In the 
 early days of equity procedure, the examination of witnesses was in 
 open court, and there is an original authority inherent in courts of 
 equity, " always asserted but very seldom exercised, of calling on a wit- 
 ness to give his evidence in open court."(ii) But if existing, why 
 should not the authority be exercised when it is seen and perceived to 
 be so necessary and indispensable to the purpose of justice ?(6) 
 
 The issue directed, the chancellor orders, or may order,(c) the oral 
 examination and cross-examination of the parties before the jury, thus 
 requiring the use of testimony alike inadmissible by the rules of equity 
 and the common law. The general course of equity procedure remains 
 intact. When the order is made for a trial by jury, the rules of equity 
 are changed, not for the court, but for the special cause to be tried. 
 " An issue directed by a court of equity is directed solely for the infor- 
 mation of the court, and is in the hands of the court. It may be 
 modelled in any shape. And the court may compel the parties to 
 admit evidence which is not strictly legal evidence, and it has other 
 distinguishing incidents." (d) The defendant, whose evidence in equity 
 is available for himself only so far as the same is responsive to the bill, 
 ineffectual as to aught else ; the plaintiff, excluded entirely, — both inad- 
 missible at law, because of the perjurious tendency of their testimony, — 
 are both heard when information is sought to relieve the anxious con- 
 science of the chancellor. The reason is, they are not witnesses for 
 themselves, but for the court. (e) Not witnesses for themselves? Why 
 not ? If their testimony be self-serving, why are they not witnesses for 
 themselves equally with other witnesses ? How witnesses of the court, 
 which refusing to see or hear them, sends them to another tribunal 
 equally reluctant, but which from comity unwillingly receives and acts 
 
 propos ; il Va engage avec tant dadresse & lui repondre, qu'il s'est entrecoupe dans ses 
 responses ; il lui a fait dire la veritS malgri lui, il I'd convaincu, il I'a rendre muet. Ce 
 qui marqufe que Vauoien usage etoit de permettre aux avocats des parties d'inter- 
 roger les ttooins ; ce que le meme Bud^e estime avoir aussi et^ observe par Justi- 
 nien. "Traite de la preuve par t^moins. — Preface de Boiceau, 21. Essai sur la 
 nature des preuves, par Gabriel, 293. 
 (o) Gresley, Ev. 43, 379. 
 
 (b) " Peut etre encore, un autre raisou que Ton n'oserait avouer, 8, secretement 
 influe sur ce pointde notve legislation ; I'ennui que fait ^prouver aux juges I'audi- 
 tion des t^moins, qui, en accelerant le cours de la justice, allonge neanmoins, les 
 audiences ; la perte de temps dont se plaiguent les avocats, quoique bien hors de 
 propos, puisqu'ils peuvent trouver dans les interpellations qu'ils out la faculty de 
 faire aux t6moins par I'interm^diaire du president, les moyeus les plus surs de 
 faire triompher la justice de leur cause." 9 TouUier, § 324. 
 
 (c) 2 Dan. Ch. Pr. 1298 ; Hofif. Ch. Pr. 505. "The court will sometimes order 
 the examination of both the parties." 
 
 (d) Per Richards, B., in Bullen v. Michel, 2 Price, 254, n. 
 
 («) In De Tasfet v. Bordeuave, 1 Jao. 516. In this case both parties were 
 ordered to be examined upon the trial of the issue directed by the Master of the 
 Rolls. Upon appeal, the chancellor. Lord Eldou, says, " This order is imperative, 
 making it necessary that both should be examined; if ft only gave liberty to examine 
 them, it would be different. In that case there would be no default in not calling 
 them. But this order is as plain as possible : both are to attend and be examined. 
 The matter is often mistaken at common law. When the parties are to be exam- 
 ined, it is not meant that they should be witnesses for themselves or the other side, but 
 they are witnesses for this court." « 
 
EXAMINATION OF WITNESSES IN EQUITY. 239 
 
 upon evidence which its own rules forbid ? If witnesses for the court, 
 why does the court, for whose instruction they are called, refuse to 
 hear and examine, them ? Why, if witnesses of the court, send them 
 to another court when they might have been heard and examined in 
 his own ? 
 
 If there is any rule well settled, it is that a court of equity will not 
 make a decree against an answer, when the bill is only supported by one 
 witness. The rule is recognized in all the reports. It is lauded, absurd 
 though it be, by the whole series of chancellors, by whom equity has 
 been administered. Yet it seems, when an issue is directed, " the an- 
 swer will be ordered to be read and to receive such credit as the jury 
 shall find it deserves,"(/) thus reversing the invariable rule of equity, 
 which accords such undeserved credence to an answer. 
 
 The chancellor, it has been seen, where an issue is directed annuls or 
 reverses pro hac vice his own rules of evidence, of the weight of evi- 
 dence and of its extraction. He orders the parties to be examined, so 
 that when an issue is tried, it is tried upon evidence not admissible by 
 the rules of the court trying the issue. He orders the witnesses to be 
 examined orally, thus disregarding the rules of the court, for whose in- 
 formation the trial is had. In equity, a preordained credit is given to 
 the answer of the defendant. At law, his credibility is submitted to 
 the jury. The decree resting upon the issue is based upon a violation 
 of the rules of the court by which it is made. The conscience of the 
 chancellor refuses to be informed, save by a violation of his own rules. 
 Nor is that all. He equally requires a violation of those of the court to 
 which he sends the cause for trial, and through whose aid he expects 
 the information so needful to his conscience. 
 
 The chancellor, one would suppose, should either determine the facts 
 for himself, or should be bound by the decision of the jury to whom he 
 has referred the cause. But he does neither. He refuses to decide the 
 • facts himself. He may or may not adopt the verdict of the jury. If 
 the verdict is not satisfactory, it does not bind the conscience. The 
 conscience of the chancellor refuses to be thereby informed, and will not 
 abide the result. " This court," says the chancellor, in Stace v. Mab- 
 bott, 2 Vesey, Sen., 552, " directs issues to be tried at law, to inform 
 the conscience of the court as to facts doubtful before, and therefore 
 expects in return such a verdict and on such a case, as shall satisfy the 
 conscience of the court to found a decree upon. If, therefore, upon any 
 material or weighty reason, the verdict is not such as to satisfy the court 
 that it ought to found a decree upon it, there are several cases in which 
 this court has directed a new trial for further satisfaction, notwithstand- 
 ing it would not he granted in a court of common law, because it is 
 diver so intuitu, and because the court proceeds on different grounds." (^) 
 
 (/) In De Tastet v. Bordenave, Jac. 521. The chancellor, Lord Eldon says, "It 
 is difficult to know on what principle the court proceeds in these cases. If there be 
 only the evidence of one witness against the answer, the court will not make a 
 decree upon it ; and yet the cause is sent to an issue, and if it appears upon the postea 
 that one witness was examined, the court will make a decree founded upon it." 
 
 {g) " He will pay no attention to the most flagrant misdirections of the judge, or 
 mistakes as to the admission of evidence," &c. &c. Gresley on Evidence, 405. 
 " The rules for granting a new trial are extremely indefinite." lb. 
 
240 APPLBTON ON RULES OF EVIDENCE. 
 
 But to know whether to be satisfied with the verdict or not, the chan- 
 cellor must read the evidence. But he sent the cause to a jury for 
 trial because he perceived the absolute necessity of the public and oral 
 examination of witnesses, which his own rules forbade to be done. But 
 reading a report to determine whether he will or will not be informed 
 by the verdict, he loses the benefit of oral examination to a great extent, 
 for no report can do entire justice to a witness. The language may 
 vary, the manner, the appearance, the unmistakable indications of deport- 
 ment, are lost. But if " the deficiency of trial by written testimony" 
 be such that the chancellor refuses to try causes upon such proof and 
 therefore sends them abroad for trial, — how can he, if incompetent in 
 the first instance to decide for himself, be more competent to determine 
 whether others, with better means, with the very means the want of 
 which induced him to refuse to try the cause, have rightly decided, — to 
 weigh and compare the evidence, and see on which side it preponderates ? 
 How is he better fitted after to determine its correctness, than he was 
 before to decide for himself? If competent to decide, why send abroad 
 for the enlightenment of his conscience? A verdict found, he re- 
 examines the case or not. If not, then he cannot determine the right 
 or the wrong of the verdict. If he does examine the evidence, and 
 upon such examination determines the verdict to be erroneous and there- 
 fore orders a new trial, with inferior opportunities of judging, he sets 
 aside the action of those, who must have heard the case under the most 
 favorable circumstances. Why should he send a cause to a tribunal 
 before whom the evidence is extracted in the best mode, and then, with 
 inferior means of forming an opinion, determine against the judgment 
 of that tribunal ? 
 
 The evidence after publication must first be examined to ascertain if 
 the cause be one in which the conscience of the chancellor will need 
 information. If it be such, for it will not be sent without knowing that 
 fact, he sends the cause to be tried by a jury. The issue tried by a jury 
 and a verdict rendered, to determine whether it shall be the basis of 
 judicial action, the evidence must be again examined. (?;.) The evidence 
 must be three times examined; it may be more if the verdict be not 
 satisfactory. Twice examined by him whose duty it is to decide — who 
 refuses to receive evidence extracted in the best mode and act upon it, 
 but is not unwilling to overrule the decisions of those whose means for 
 forming a correct opinion infinitely exceed those, which have fallen to 
 his lot. 
 
 Now why should not the cause originally have been heard and deter- 
 mined by the chancellor? Could not he better perform the duties he 
 transfers to and imposes upon others ? Desirous of having the parties 
 heard by the jury, why did he not hear them in his own court? Sensi- 
 ble of the importance of examination and cross-examination, why does 
 
 [h] " When the verflict is returned, the equity judge does not look barely to the 
 wording of it * * but he inquires into all that passed during the proceedings. 
 For this purpose he listens to the statenaents of counsel, detailing what occurred 
 at the trial ; and if he sees occasion for it, he sends to the judge who tried the 
 issue, for his notes. After all, he may, if he thinks fit, make no use of the verdict 
 but treat it as a mere nullity." Gresley's By. 405. 
 
EXAMINATION OF WITNESSES IN EQUITY. 2il 
 
 he not require it in his own court ? Will it oocupy too much of his 
 time ? But somebody must hear and determine ? He examines the 
 cause to determine if fitting for a jury. He examines the evidence to 
 ascertain if the verdict be in accordance with the proof. The time of 
 the judge and of the jury is occupied ? Would not time, delay and ex- 
 pense be saved, if the chancellor, in the first instance and with the 
 evidence extracted in the best mode, should decide for himself? Why 
 then does he not satisfy his own judgment by seeing and hearing the 
 witnesses and weighing the testimony,(i) rather than by deferring to the 
 judgment of any twelve men accidently selected by lot? Is he not as 
 competent as any twelve men ? Why does he not see, hear and decide, 
 instead of basing his decree upon the verdict of men, strangers to him, 
 of whose intellectual fitness and capacity for the task he is utterly ignor- 
 ant? Yet he acts upon the judgment of a jury when it coincides with 
 his own. When otherwise, he sets it aside. In no case where an issue 
 is ordered does he judge for himself, and decree upon his own judg- 
 ment. 
 
 Courts of equity, recognizing the worthlessness of their own rules for 
 the extraction of evidence; yet defend them notwithstanding they are so 
 bad, that when a question of controverted facts arise, they are trampled 
 under foot. 
 
 " The trial and determination of disputed issues are not the principal 
 objects of evidence in equity; for the nature of the cases there litigated 
 does not generally give rise to such issues; and those which do occur, if 
 they present any serious difficulty of trial, are generally referred to the 
 verdict of a jury. The power therefore of sifting and comparing testi- 
 mony, which is the primary requisite at law, becomes comparatively 
 unimportant in equity; and the principal objects there contemplated 
 are, first, to elicit a sworn detail of facts, on which the court may adjudge 
 the equities ; and secondly, to preserve it in an accurate record for the 
 use, if needed, of the Appellate Court." 
 
 " For this reason it is required in equity that all witnesses shall be 
 examined before the hearing, and their answers taken down in writing, 
 so that when the cause comes on for decision the judge may not be dis- 
 tracted by the trial of separate issues on evidence then brought forward 
 for the first time, but may give his undivided attention to the decree, 
 which the facts admitted or proved will warrant ; and that, if his decree 
 
 (i) " What ia really wanted, is the oral examination and cross-examination of 
 the witnesses; and the assistance of a jury is, as it seems to me, only incidental to 
 this important object. I for one should be quite as well, and perhaps better satis- 
 fied, if instead of directing issues, the trial of which often miscarries and causes 
 infinite expense to the parties, it were competent to this court, in such cases, 
 either to direct an issue or to require the oral examination of witnesses to take 
 place before itself, on an issue previously defined. The conscience of the court, I 
 should apprehend, would be quite as well satisfied by its own immediate conclusion on 
 the evidence as it could be mediately through the opinion of the jury, who in cases of 
 this description are sometimes not altogether free from prejudice." Per Mr. Baron 
 Alderson, in Barnes v. Stuart, 1 You. & Col. 139. In Margareson f. Saxton, 
 1 You. & Col. 532, the same learned judge says, "I wish I had the power of 
 examining witnesses in this court. If the parties by consent will give me that 
 power which I wish all courts of equity had, I will examine them." 
 
242 APPLBTON ON RULES OF EVIDENCE. 
 
 be appealed from, the Court of Appeal may have in an authorized record 
 all the materials upon which it is founded. "(7c) 
 
 " The trial and determination of disputed issues are not the principal 
 objects of evidence in equity, for the nature of the question then liti- 
 gated does not generally give rise to such issues." But ail litigation 
 involves disputed issues. The question in equity for determination 
 necessarily gives rise to disputed issues. Contracts unperformed, trusts 
 denied or unexecuted, fraud alleged and denied, accidents or mistakes 
 asserted, of which the complaint is that the defendant unjustly avails 
 himself, — are not these disputed issues, and of the greatest moment, and 
 are not these the usual and ordinary topics of equity jurisdiction ? If 
 there be no issue, there is nothing to dispute about. The plaintiff al- 
 leges a breach of trust. The defendant denies it. The plaintiff asserts 
 a fraud to have been committed, or that advantage is taken of some mis- 
 take or accident. The existence of the fraud, accident or mistake are 
 the questions in controversy; questions in issue, as much put in issue 
 by the answer denying the allegations of the bill as by any general issue 
 whatever. When there is no assertion nor denial, there is no issue. 
 Then there is nothing about which to litigate, unless it be some matter 
 of law arising upon the admitted allegations of the bill. If the bill be 
 true by the admissions of the defendant, there need be no question of 
 evidence. If the answer deny the assertions contained in the bill, then 
 and then only is there an issue. It is none the less an issue, to the proof 
 of which evidence may be required, because the technical issue of the 
 common law has not been adopted ; and in lieu thereof, the answer di- 
 verging from or denying the allegations in the bill is the mode adopted 
 for presenting the grounds of the controversy and the facts controverted. 
 
 " The power of sifting and comparing testimony, which is the primary 
 requisite at law, becomes comparatively unimportant in equity." But 
 if there be disputes ; if controversies arise ; if the evidence be contra- 
 dictory and conflicting, — is it not desirable that the contradictory and 
 conflicting testimony be sifted and compared, so that the due and just 
 measure and degree of credence may be given to the several witnesses, 
 from whose variant and opposing statements contradiction and conflict 
 may have arisen. If there be opposing and conflicting proof, the spe- 
 cial need of sifting and comparing exists equally in equity as at law — 
 exists whenever and wherever there is conflict and opposition of proof — 
 exists whenever and wherever just decision is desirable. When the facts 
 are admitted, then the controversy relates only to the law upon the facts 
 as conceded. 
 
 " To elicit a sworn detail of facts on which the court may adjudge the 
 equities," seems to be one of " the principal objects there contemplated." 
 " A sworn detail of facts," where the facts are not detailed, is all equity 
 pretends to accomplish. A sworn detail, with the indistinctness, incom- 
 pleteness, inaccuracy and omission necessarily incident to the unsatis- 
 factory and imperfect mode of extraction adopted in equity, would 
 hardly seem to be an object. The inefficiency of the equity mode of 
 
 (4) Adams' Equity, 367. 
 
EXAMINATION OF WITNESSES IN EQUITY. 243 
 
 extracting testimony conceded, a sworn detail, thus obtained, would be 
 valueless where the evidence is conflicting, for the chancellor never sifts 
 or compares evidence, but sends it elsewhere to be done. A sworn de- 
 tail, when there is no contradiction, is a case when the facts are undis- 
 puted; when they are disputed, equity, with its mode of procedure and 
 practice, is hopelessly incompetent to ascertain, amid the conflict of con- 
 tradictory statements, where the truth may be. 
 
 One of the reasons why written testimony only is used in equity, and 
 oral examination of witnesses is forbidden, is, "that when the cause 
 comes on for decision, the judge may not he distracted hy the trial of 
 separate issues on evidence there brought forward for the first time, but 
 may give his undivided attention to the decree, which the facts proved 
 or admitted will warrant." But if separate issues arise, why should not 
 the judge be distracted by their trial, so far as that may be the necessary 
 effect of trying them ? What shall be the decree, is the final question. 
 The evidence is only material so far as it bears upon the decree. Every 
 controverted fact may present a separate issue, more or less important as 
 affecting the final judgment. Whatever and however great the distrac- 
 tion of separate issues, it is the unavoidable distraction necessarily inci- 
 dent to litigation. If the chancellor is to decide anything, it is sepa- 
 rate issues as they may arise, nothing else. Somebody must determine 
 them. Is the distraction any the less for a jury than a chancellor ? 
 And is the distraction incident to determining a disputed issue, a reason 
 why it should not be determined, or why he whose duty it is to do it 
 should shrink from and transfer its performance to others ? 
 
 Another reason assigned is, " that if his decree be appealed from, the 
 Court of Appeal may have, in an authorized record, all the materials on 
 which it is founded." In other words, the reason why proof must be 
 defectively taken is, that it may be preserved, and be forthcoming in 
 case of an appeal. But why provide for an appeal ? This reason only 
 applies when there is one. But suppose an appeal, how far and to what 
 extent does this reasoning apply ? Why take evidence in a mode admits 
 ted to be bad because of a possible and contingent appeal. If there be 
 an appeal, is that any reason for a defective mode of proof before the 
 court from whose decision the appeal is taken ? Why should the record 
 be made from such defective materials ? If an appeal there must be, 
 would it not be better that the court of original and appellate jurisdic- 
 tion should alike have the proof extracted in the most reliable and trust- 
 worthy manner for the ends of justice ? 
 
 A rule of evidence without its exceptions utterly inconsistent with the 
 rule itself, would be a legal anonlaly. Accordingly, at the hearing, wit- 
 nesses are orally examined for the purpose of proving exhibits and for 
 other causes. When a reference is made to a master for any purpose, 
 he disregards the rules which guide the court whose servant he is, and 
 orally examines the parties and witnesses, whenever their testimony is 
 needed for his own instruction. Desirable as correct decision may be on 
 his part, is it any less so on the part of his superiors ? Desirable as it 
 may be, that the servants of the court should receive evidence in the 
 
244 APPLETON ON RULES OF EVIDENCE. 
 
 best form, is it any the less desirable that the chancellor should do the 
 same? 
 
 The conclusion is, that the existing rules of extracting evidence in 
 equity are inconsistent with each other, and with those of the courts of ■ 
 common law — are at variance with, and opposed to the ends of justice, 
 and are intrinsically bad ; that the chancellor needs the best evidence, 
 extracted in the most reliable manner, and that the parties and witnesses 
 should be heard and examined orally before him, as at common law, and 
 that he should decide the causes submitted to him, instead of shirking 
 responsibility and labor by devolving his own duties upon a jury. 
 
 In other words, whether testimony be desired in equity or at law, 
 before a chancellor or a jury, before a chancellor or his master, all attain- 
 able and forthcoming proof should alike in all cases be received; and 
 being received, should be extracted in the most eifective and trustworthy 
 mode. 
 
CHAPTER XV. 
 
 THE EXAMINATION AND CROSS-EXAMINATION OP WITNESSES IN LAW 
 AND EQUITY, AS TO EAOl'S WHICH MAY TEND TO EXPOSE THEM TO 
 PENALTY, EORPEITDEE OR PUNISHMENT. 
 
 In the examination and cross-examination of witnesses on a trial at 
 law or in equity questions are proposed, the answers to which at some 
 future time and in some other process, might expose or tend to expose 
 the witness truly answering to penalty, forfeiture or the severest inflio^ 
 tions of the penal law. Such inquiries the witness not unnaturally ob- 
 jects to answer. Shall he answer ?(a) 
 
 In all controversies between parties litigant, rights are asserted and ' 
 denied. The object of the law is to ascertain the facts. The claims 
 and counter claims of the parties rest only on the facts. Without their 
 ascertainment the law cannot be rightly administered. If the facts neces- 
 sary for correct decision are suffered to be withheld in whole or in part, 
 then the law is applied to a different set of facts from those actually ex- 
 isting, — to non-existing facts, — and justice is not done. 
 
 The question proposed is material, relevant, important, pertinent to 
 the issue, seeking facts necessary to the maintenance of the just rights 
 of the party inquiring. The fact sought to be proved is known to the 
 witness to exist, — is one, which may legally be proved, and which being 
 proved, is essential to the true understanding of the cause and its correct 
 decision. It is no fault of the party needing this testimony, that the f 
 witness may have committed an offence of greater or lesser magnitude. I 
 The party seeking the proof has done no act deserving or requiring pun-4 
 ishmeut. He has violated no law. He demands only the enforcement \ 
 of his rights in accordance with the law as applied to the facts as they 5 
 exist and may be proved. The proof sought is indispensable to the main- i 
 tenanee of his claim or the establishment of his defence. If permitted \ 
 to be withheld, he is punished without fault on his part by the loss of ' 
 his cause or the failure of his defence. The answer would be true. The 
 objection of the witness assumes it would be, and hence his reluctance. 
 If the reluctance of the witness to answer is to excuse him from so doing, 
 then the proof by which the claims of the party in the right might be esta- 
 blished, will be withheld. True, the answers if remembered would furnish 
 proof, which on some future occasion might lead to the conviction and pun- 
 ishment of the witness, but the inquiry is made with no such purpose and 
 with no such intention. The party asking needs the answer now — in 
 
 (a) See chapter VII., on the admission of parties in criminal procedure. 
 
f • 
 
 246 APPLETON ON RULES OF EVIDENCE. 
 
 the present case. The issue Is between justice and injustice — between 
 right and wrong. By requiring an answer the needed proof is obtained, 
 and in that way alone justice may be done to the party, and a chance be 
 afiforded for doing justice to the witness hereafter. Shall then the evi- 
 dence be furnished so that a correct decision may be had in the case on 
 trial, or shall it be withheld and injustice knowingly and wittingly be 
 done, for fear lest if the witness were compelled to answer, the facts thus 
 reluctantly disclosed might hereafter possibly lead to his conviction of 
 an offence acknowledged to have been committed by him ? 
 
 It may be urged that the constitution protects the witness from an- 
 swering. But a recurrence to the words of that instrument will show 
 that it furnishes no ground for the exemption of a witness from answer- 
 ing any inquiries which may be proposed. It provides that(i) " in all 
 criminal prosecutions the accused * * shall not be compelled to furnish 
 or give evidence against himself." This has relation only to criminal 
 prosecutions and to those — the accused — against whom such prosecutions ' 
 have been instituted. It was intended to prohibit the star chamber prac- 
 tices of the olden time, and the inquisitorial procedure of the civil law 
 in the investigation of crime and the trial of the criminal. It refers only 
 to the interrogation of the defendant in the criminal prosecution to which 
 he is a party. It does not apply to the case of a witness, nor was it in- 
 tended so to apply. It does not provide, that a witness, when the pro- 
 perty, liberty or life of another is in peril, shall be privileged from dis- 
 closing true and needed facts, from a fear that those facts may hereafter 
 in some possible and contingent prosecution be used to his prejudice. 
 It does not mean that right and justice shall be postponed to crime, — 
 and that a witness shall be exempted from giving testimony when the 
 life of an honest man is in jeopardy, lest the answer might possibly lead 
 to his conviction. It only means that when one is a party to a criminal 
 prosecution, he shall not in that cause be subjected to examination in 
 relation to the offence with which he is charged. It is in the common 
 law, that is to be found the rule of evidence imperilling the honest man 
 from an absurd and exaggerated sympathy for wrong doers. 
 
 The court perceives, it is apparent to all, that justice is unattainable 
 unless the witness answer. The sole object of the inquiry is to procure 
 evidence bearing upon the rights of the parties. If the answer may here- 
 after be injurious to the witness, such was not the purpose of the party 
 interrogating, nor should he be held responsible for, or be made to suffer 
 in consequence of, any supposed collateral results, which may contin- 
 gently happen in consequence of his inquiry. Other witnesses free from 
 crime and the perils of crime are required — compulsorily required — to 
 answer. Why should one witness be exempted from answering, while 
 others are compelled to answer ? What the reasons for this distinction ? 
 What the grounds of special exemption from the performance of a duty 
 common to all citizens — that of answering pertinent inquiries, when 
 proposed in the course of judicial proceedings ? The witness has violated 
 
 (i) Constitution of Maine, Art. 1, § 6. The constitutions of the United States 
 and of the several States have a similar provision and using nearly the same lan- 
 guage. 
 
EXAMINATION OB WITNESSBS, ETC. 247 
 
 the law. He has committed a crime. Suppose he has ; is that a reason 
 why the party in the right, needing his testimony, should be denied jus- 
 tice, or why the party in the wrong should prevail, as he will, unless the 
 answer be given ? It will be hard for him to answer ! But it is no more 
 hard for one witness to state a particular fact than for another. The 
 hardness then is not in the answer, but in the consequences, which the 
 unwilling witness fears may follow from his answer. Whether conviction 
 will even take place is uncertain. If the fear of possible punishment is 
 a sufficient reason for exempting a witness from answering, because of 
 the conviction which may ensue from such answer — much more is it a 
 reason for exempting from the punishment which actually follows, — a 
 reason stronger in proportion as the punishment is harder to be borne, 
 than the fear of its contingent and possible infliction. The reluctance 
 of a witness to answer can never be so great as his reluctance to suffer, — 
 and if reluctance to suffer be deemed a valid ground for exemption from 
 punishment, it is obvious enough that it will never be inflicted. Shall 
 then the witness answer ? Not unless he chooses. It is the privilege 
 of the witness. He need not answer " where the answer will have a 
 tendency/ to expose the witness to a penal liability or to any kind of pun- 
 ishment, or to a criminal charge. "(c) The witness claims his privilege((i) 
 and declines answering. What has he done to entitle him to privi- 
 leges over other citizens ? He has committed a crime, and is reluctant 
 to disclose what hereafter may tend to prove the offence of which he is 
 guilty. The party, whose rights are endangered, has no privileges ; un- 
 just burdens may be imposed, unmerited punishments may be inflicted 
 if he fail in obtaining the needed answer to his inquiry. The privilege 
 of testifying or not, as he pleases, is accorded to the knave and the felon. ' 
 The rights of the State and of the citizen are postponed. Why, and for ' 
 what is this privilege granted. Because of crime and for its impunity, 
 lest by means of and in consequence of the proof furnished by the an- 
 swer, the witness may hereafter be subjected to the penalty or the pun- 
 ishment which the law has affixed to his misconduct. It is the privi- 
 lege of crime. 
 
 But suppose the witness answers, it by no means follows that the future 
 suit will be brought or the future indictment found — that the penalty or 
 forfeiture will be enforced or the crime punished. The answer does not 
 directly lead to loss or punishment. The anticipated danger to the wit- 
 ness is uncertain, remote, contingent, the actual loss to the party inquir- 
 ing, certain, instant and unavoidable. 
 
 But if the answers are given, the suit for the penalty is brought, the 
 indictment for the crime is found, the judgment rendered for the penalty, 
 the conviction of the criminal had, by and in consequence of the answers 
 given and the proof furnished by such answers, are these results to be 
 regretted ? No more than justice is done. There can be no error nor 
 
 (c) 1 Greenleaf, Evidence, § 451. 
 
 (d) In case the witness is compulsorily required to testify, it is not a cause for 
 a new trial. It is the privilege of the witness. " If ordered to testify in a case 
 where he is privileged, it is a matter exclusively between the court and the wit- 
 ness." Cloyes V. Thayer, 3 Hill, 564. Ward v. People, 6 Hill, 145. 
 
248 APPLBTON ON EULES OF EVIDENCE. 
 
 mistake. The proof is most satisfactory. The law is enforced, and that 
 can afford no cause of grief to the public, however much it may to the 
 witness whose disclosures have led to its enforcement. 
 
 In the last case, justice is twice done, to the party asking and to the 
 witness answering. If the privilege of silence be given the witness — 
 then is there twice a failure of justice ; to the party asking — to the wit- 
 ness declining to answer. 
 
 The practical effect of this rule may best be illustrated by a recurrence 
 to cases in which the witness by invoking its aid, has been enabled to 
 deprive the party of the evidence necessary for the just decision of his 
 cause. 
 
 A suit is brought for the breach of a promise to marry. The defendant 
 alleges that he is absolved from the performance of his promise by reason 
 of the unchastity of the plaintiff. The fact, if proved, would establish 
 a perfect defence, for her dissolute conduct would fully justify the de- 
 fendant in abandoning her. A witness is called, by whom the defendant 
 expects to prove criminal connection with her. " The fact that the wit- 
 ness had criminal intercourse with the plaintiff was one which the de- 
 fendant had an undoubted right to establish." But "the witness was 
 not bound to answer the question," (if he ever knew of any person hav- 
 ing criminal connection with the plaintiff,) " so far as the answer would 
 criminate himself."(e) It is his privilege. If there had been criminal 
 intercourse between the witness and the plaintiff, the defence was es- 
 tablished. That there had been, the refusal to answer clearly indicates. 
 There was no claim for damages. But the privilege of the witness takes 
 precedence of the right of the party, and he is compelled to pay dam- 
 ages for not marrying an abandoned woman, and that too, when if the 
 existent proof had been required and given, a perfect defence would have 
 been shown. 
 
 Proceedings under the Bastardy act are instituted, in which the com- 
 plainant seeks to impose on the defendant the burden of supporting a 
 child, of which he denies that he is parent. Whether parent or not is 
 the issue. To prove it the mother is admitted as a witness. The in- 
 quiry whether about the time the child is alleged to have been begotten, 
 and on the same day, the mother had not had criminal intercourse with 
 others than the defendant, is most material as affecting the question of 
 the paternity of the child. (/) The fact is one within her knowledge, — 
 material, relevant, yet the mother is excused from answering it lest it 
 might criminate herself It is the privilege of unchastity — conceded to 
 unchastity at the expense of justice. But the offence of criminal inter- 
 course is one of secreoy.f^') If the mother and her paramour are both 
 
 (e) Southard v. Rexford, 6 Cowan, 254. 
 
 (f) Tillson v. Bowley, 8 Greenl. 163. Low v. Mitchell, 18 Maine, 3li. 
 
 (g) By the Mahometan law, the more secret the oflfence the greater the amount 
 of proof required. In case of adultery four witnesses are necessary for the con- 
 viction of the accused — while in case of murder, two are sufficient. 
 
 " La preuTe de la cohabitation illicite * * ne s'acquiert et ne s'^Iablit que par 
 la deposition judiciaire de quatre tSmoins ayant les qualitgs voulues par la loi. * * 
 Les quatre t^raoius doivent §tre parfaitement d'accord sur le moment etsur lelieu 
 ou ils out vu, &c,, les coupables, et sur toutes les autres ciroonstances de detail 
 
EXAMINATION OP WITNESSES, ETC. 249 
 
 permitted to be silent, because answering would be unpleasant, from what 
 source can the accused obtain proof. The guilty parties do not call wit- 
 nesses to their shame. 
 
 The consideration or the want of consideration of the note in suit, is 
 the question for judicial determination. The facts constitutive of the 
 defence would show a failure of consideratioQ of the note, or that it was 
 fraudulently obtained, or that it was given in contravention of some statute, 
 and is void by its provisions. No matter what the defence — it suffices 
 that it is one the judge is bound to regard. The defence perfect, a wit- 
 ness is called who refuses to answer(A) because if he answered truly, his 
 answer, while it would show a perfect defence, would disclose facts ex- 
 posing the witness to a penalty for the violation of a statute, which might 
 be used to his disadvantage in some possible suit hereafter to be com- 
 menced. The refusal of the witness receives the approval of the court, 
 and the reason given, its sanction. 
 
 But the witness is compelled to answer notwithstanding his answer 
 may expose him in a civil suit to pecuniaiy liability and loss, however 
 great. But what is the exposure to a penalty or a forfeiture other than 
 an exposure to pecuniary loss. To the reluctant witness, equally unwill- 
 ing to admit his civil or his penal liability, what matters it in which form 
 the loss may arise. The penalty if paid is but money. The forfeiture 
 if enforced is but money or money's worth. What differs it whether the 
 suit be debt or assumpsit, or trespass; upon a statutory indebtedness 
 arising from violated law, upon a promise broken, or upon the wrongful 
 acts of the defendant? The unwillingness to answer the same — the ex- 
 posure to loss the same, what cares the witness whether he is exposed to 
 liability for a penalty, a trespass, or a violated contract. The answer 
 is required when the exposure of the witness is to pecuniary liability, 
 arising from the non-performance of a contract or from the commission 
 of a tort.(i) Is it more onerous to the witness to answer, because the 
 liability to which he may thereby be exposed, is termed penal ?[k) When 
 
 du fait." Jurisprudence Musulman, par Khalil Ibn-Ish'dli' traduit de I'Arabe, par 
 M. Perron, 5 tome, 237. 
 
 Nothing but the most earnest efforts on the part of an adulterer can ever se- 
 cure his own conviction. 
 
 It is among the maxims of the civil law, that a virgin is to be believed in pre- 
 ference to a widow. " Magis creditur virgini quam viduae." Parinacius, quest. 65, 
 § 180. The common law, lest one not a virgin — j'Ct a mother without being a 
 wife or a widow, — ^shouId be disbelieved, or lest her tender sensibilities should 
 be wounded, refuses to allow any questions, however necessary or important they 
 may be, to be put, the answers to which would tend to criminate. By the civil 
 law, chastity has its preference over widowhood. Unchastity, by the common 
 law, has its privilege of freedom from interrogation. 
 
 (A) Bank of Salina v. Henry, 2 Denio, 156. 
 
 (i) Bull V. Loveland, 10 Pick. 9. Naylor v. Semmes, 4 Gill. & Johns. 213. 
 
 (k) During the trial of Lord Melville, before the House of Lords, (1806,) the 
 opinion of the twelve judges was asked as to whether witnesses should be com- 
 pelled to answer when their answers would expose them to pecuniary loss. Eight 
 judges with the chancellor held that the answer of the witness should be given. 
 Four thought otherwise. Mr. Justice Grose said, " that by the mild laws of this 
 country, no man was bound to criminate himself, or to give evidence against his 
 own pecuniary interest, and perhaps to his utter ruin. It was allowed that neither 
 in courts of equity nor at law, was a man bound to answer what might expose him 
 to penalty or forfeiture. He could not see the reason why a man should be ex- 
 
250 APPLBTON ON RUIES OF EVIDENCE. 
 
 judgments have been rendered for the tort and the penalty — the amounts 
 in each case the same — is there any distinction between them ? They 
 are alike debts. No reason can be assigned, none exists, why in the one 
 case the answer of a reluctant witness should be compelled, and in the 
 other the refusal to answer should be permitted. 
 
 The defendant is on trial charged with the commission of a crime. 
 He is innocent, but the circumstances proved tend to show his guilt. 
 The proof is or may be sufficient for his conviction. He calls a witness, 
 "who stated that he knew the respondent to be innocent, but that he 
 could not state how he knew it without implicating himself, and inquired 
 of the court if he was bound to testify at all," to which the court replied 
 that he "would not be compelled to answer any question if the answer 
 will tend to expose him to a criminal charge. "(?) The innocent man is 
 on trial. ' The proof of his innocence — the witness by whom it may be 
 proved, is in court. Being guilty and reluctant to state the facts by 
 which the innocence of the prisoner would be shown, he is excused from 
 answering. It is the privilege of crime. Innocence is without sympathy, 
 without privilege. ' ' 
 
 This exemption from testifying — this privilege of crime — extends alike 
 to parties as to witnesses. (m) Courts of equity have special jurisdiction 
 over cases of fraud and trust. The peculiar boast of equity jurisprudence 
 is its power of extracting truth from the dishonest and the fraudulent. 
 For this purpose it has its bill of relief and discovery and its bill of dis- 
 covery in aid of a suit or defence at law. The defendant has defrauded 
 the plaintiff. The contract sought to be enforced is without considera- 
 tion, or in violation of law. The plaintiff seeks a discovery of the facts 
 showing its invalidity or its criminality. The defendant has violated 
 the provisions of a statute or committed a crime, ai5d answering truly 
 the interrogatories of the bill, his answer, while destructive of his unjust 
 claim, would disclose facts tending perhaps to his future conviction. 
 He therefore claims the privilege of not answering. The plaintiff if 
 without discovery is without remedy. Whatever exonerates from an- 
 swering exonerates from liability. The facts which constitute a bar to 
 discovery, constitute a bar to relief. The possibly injurious tendency of 
 a true answer to the criminal, excuses him from answering. But why 
 should the defendant be suffered to defraud the plaintiff because he 
 has committed a crime. Why should justice be denied the plaintiff 
 because the defendant has violated the law. If the defendant were to 
 
 cused from answering questions which might expose to the penalty of five pounds 
 for killing a hare, and yet be obliged to answer questions, which might expose 
 him to ten thousand pounds in damages, or to lie in jail all his life if he should be 
 unable to pay those damages." 
 
 Mr. Justice Rooke coincided with Mr. Justice Grose. " He mentioned an ex- 
 treme hard case. It was that of Lord Keith, who by an answer he gave in an in- 
 surance case where he was called as a witness, subjected himself to an action in 
 which £10,000 damages were given against him." 1 Hall, American Law Journal, 
 223. That Lord Keith answered truly is to be presumed. If the truth showed his 
 liability, is it not rather a source of congratulation than of regret, that the judg- 
 ment was rendered against him, it being just. 
 
 (/) The State v. K., 4 N. H. 562. 
 
 (m) Hare on Discovery, 131. Parkhurst v. Lowton, 2 Swanst. 215. 
 
EXAMINATION OF WITNESSES, ETC. 251 
 
 plead his own crime in bar of relief, the absurdity of such a plea would 
 be obvious to all. But if it be a bar to discovery when discovery is 
 essential to relief, wherein consists the difference ? 
 
 In equity, when discovery is sought of a knave, his crime affords his 
 best protection from answering. If the fraud be one not punishable by 
 law, not exposing to penalty, he must answer. Let the fraud ripen into 
 crime, and the magnitude of the crime is the security of the criminal. 
 
 If one has defrauded another he is unwilling to make restitution. If 
 unwilling to make restitution, it would be hard for him to discover those 
 facts upon proof of which he would be compelled to make it. It would 
 be hard if the facts thus discovered should have a tendency to expose 
 the dishonest party hereafter to penal liability. The party alleging such 
 possible tendency is privileged from answering. 
 
 What seems never to have occurred, or if it occurred, seems never to 
 have been deemed worthy of consideration, is the greater hardship which 
 the party defrauded must suffer in the deprivation or denial of his rights 
 in consequence of the privilege of silence thus accorded to the defraud- 
 ing defendant. No matter what the claim — what the defence — the de- 
 fendant successfully interposes his criminal conduct as a bar to justice — 
 or to the delivery of that testimony — the discovery of those facts, — by 
 which alone justice is attainable. 
 
 But the privilege of the witness — of the party — favorable to the dis- 
 honest — injurious to the honest litigant— prejudicial to the cause of 
 justice — the extent of the evil may be limited by the rigor with which 
 its allowance is restricted. The disastrous efficiency of the rule will de- 
 pend in no slight degree upon the tribunal by which the criminative 
 tendency of the answer is to be determined. " The rale of law is, that 
 a man shall not be obliged to discover what may subject him to a pen- 
 alty not what must only."(ra) "It is sufficient that it have a tendency 
 to prove such a result" (o) " either directly or eventually."(p) " It is 
 difficult to say how little or how much is required, but this at least will 
 satisfy the rule ; if a party states circumstances, which on the face of 
 them are not only consistent with the existence of the peril which he 
 states, but which also render it extremely probable * * * or which 
 render it possible,"(5) or " which constitutes a link in a chain of proof 
 that is to affect him,"(j') " or would supply a link,"(.s) "even though but 
 a single \vak,"{t) " or which may furnish a step in the prosecution,"(tt) 
 "or which however remotely connected with the fact would have a ten- 
 dency to prove guilt,"(t)) "whether there be or be not a probability that 
 the defendant may be indicted,"(w) or that there may be a prosecution, 
 the party and the witness alike are entitled to protection. 
 
 (n) Per Lord Hardwicke, in Harrison v. Southcote, 1 Atk. 518. 
 
 (o) Per Sutherland, J., in Bellinger t. The People, 8 Wend. 595. 
 
 {p) Per Kent, Oh., in Livingston v. Tompkins, 4 Johns. Ch. 432. 
 
 (q) Per Lord Truro, in Short v. Mercier, 1 Bag. Law & Bq. 208. 
 
 {r) Per Lord Eldon, in Paxton v. Douglas, 19 Ves. 225. 
 
 (s) Per Marcy, J., in People v. Mather, 4 Wend. 230. 
 
 U) Per Eastman, J., in Janvren v. Soammon, 9 Poster, 280. 
 
 hi) Per Lord Eldon, in Olaridge v. Hoare, 14 Ves. 65. 
 
 \v) Per Lord Eldon, in Parkhurst v. Lowton, 2 Swanston, 215. 
 
 (w) Per Lord Chief Baron Alexander, in Maccalum v. Turton, 2 T. & J. 183. 
 
252 APPLETON ON RULES OF EVIDENCE. 
 
 As there is no fact which may not constitute a "step" or a "link," 
 which may not " directly or eventually/' probably or possibly, expose or 
 tend to expose a party or a witness, if guilty, to penal liability, so there 
 is no fact however important, the disclosure of which the party or wit- 
 ness may not avoid by alleging such possible tendency. "As the rule 
 is one always admitted to be of the greatest importance, it is a serious 
 duty upon every judge who is called upon to act under the administra- 
 tion of the rule to see as far as he can, that it is not one of the occasions 
 in which the party asks to evade doing that which justice requires, 
 under pretence of the rule,"(a:) it being very manifest that there are 
 "very extensive opportunities for evasion of doing that which justice 
 calls for, under pretence of the rule. "(a;) As not less than one hun- 
 dred cases are to be found in the reports, in which the question was, 
 whether the defendant was or not bound(7/) to answer to any facts which 
 may tend to criminate him or subject him to penalties or forfeitures, 
 besides those at common law, where the same question has arisen as to 
 witnesses, it would seem that the rule ought by this time to be definitely 
 settled. 
 
 " If he (the witness) were obliged to show how the effect would be 
 produced, the protection which this rule of law is designed to afford, would 
 at once be annihilated. "(z) Accordingly, "the witness must be allowed 
 to judge for himself, though no doubt there may be some difficulty and 
 possible inconvenience in the application of the rule. "(a) If he thinhs{l\ 
 it will tend to expose him hereafter to criminal liability, he will be ex- 
 cused from answeringjTf) " unless the court can see that he is in error or 
 that it is a mere pretext on the part of the witness to avoid answering, 
 and that his answer cannot, from the nature of things, criminate him." 
 So that the ultimate conclusion of the law would seem to be that whe- 
 ther the facts sought for shall be discovered, whether the questions 
 proposed shall be answered, will depend upon what the party desirous 
 of withholding shall think or shall say he thinks will be the probable or 
 possible tendency of the facts withheld, unless the liability of the wit- 
 ness should be barred by the statute of limitations. The witness answers 
 or not, as he chooses. His own good pleasure is the law of the case.((Z) 
 
 The privilege is that of the witness. Commencing his answer and 
 stating a fact or facts, he cannot stop midway when he perceives their 
 criminative tendency.(e) The rule, a good one, it is difficult to per- 
 
 (x) Per Lord Truro, in Short v. Mercier, 1 Eng. L. & Eq. 208. 15 Jur. 93. 
 
 (y) Per Shadwell, V. C, in Green v. Weaver, 1 Simons, 404. 
 
 (s) 1 Greenl. Ev. | 451. 
 
 (o) Per Jaryis, 0. J., in Fisher v. Ronalds, 12 C. B. 762. "But there are 
 stronger opinions the other way," remarks Mr. Baron Parke, in Osborne v. Lon- 
 don Dock Co., 29 Eng. Law & Eq. 380. People v. Mather, 4 Wend. 232. But al- 
 tliough a witness is his own judge as to whether his answer is to criminate him- 
 self, he is nevertheless liable to the party for a refusal to testify if his refusal be 
 wilful and his excuse false. Warner v. Lucas, 10 Ohio, 336. It would seem that 
 if it be an error of Judgment, the party requiring the answer is without remedy. 
 
 (b) Coles V. Hardacre, 3 Taunton, 424. 
 
 (c) Per Eastman, J., in Janvren v. Scammon, 9 Poster, 280. Coburn v. Odell 
 10 Poster, 540. 
 
 (d) Roberts v. AUatt, 1 M. & M. 192. 
 
 (e) If the witness voluntarily state a fact he is bound to state all he knows about 
 
EXAMINATION OF WITNESSES, ETC. 253 
 
 ceive why its allowance is not as proper in one stage of the inquiry as 
 another. 
 
 The answer may tend to degrade the character of the witness — to 
 show that he has suffered an ignominious punishment, and to expose 
 him to obloquy and ill will. Shall he answer ? 
 
 Certainly, if the inquiry be relevant and material to the issue. The 
 answer may disgrace. But the truth of the answer may be assumed. The 
 truth then will disgrace him. Why then should he not be disgraced. (/) ■ 
 It is the consequence of his own act, and his feelings should not be re- ' 
 garded in preference to the rights of the party inquiring. Without cha- 
 racter(^) he should not be permitted to stand before the jury as if he ; 
 had it. The trustworthiness of the witness depends upon his character. 
 A sympathy for the feelings of the witness should not exempt him from 
 disclosing any and all facts, which being competent and admissible, are 
 material in enabling the jury to arrive at a correct decision. (A) 
 
 The result is, that there is no inquiry, which is material and relevant, 
 which may not be proposed, and which being proposed should not be 
 answered. 
 
 it, though in so doing he expose himself to a criminal charge. State v. K., 4 N. 
 H. 562. If he disclose part he must the whole. Coburn v. Odell, 10 Foster, 540 ; 
 Poster V. Pierce, 11 Gushing, 437 ; Chamberlain v. Willson, 12 Verm. 491 ; Low v. 
 Mitchell, 18 Maine, 374. Bat in Cozzens v. Worrall, Buck. 531, Lord Eldon said, 
 if a man has gone on answering questions he may stay whenever he chooses. 
 In Garbett's case, 2 0. & K. 474, the court held " that the witness was entitled to 
 his privilege at any stage of the inquiry." 
 
 In The King of The Two Sicilies v. Wilcox, 1 Simons, (N. S.) 310, the Court 
 say, " he may stop at any time." 
 
 (f) By the Scottish law, a question tending to degrade and injure the character 
 of a witness, though not to subject the witness to a criminal charge, is allowed 
 to be put, the witness being previously told that it was optional to her to answer 
 or not. King V. King, 4 D. 591. 
 
 The maxim has been received into our law, Quod nemo teneiur jurare in suam 
 turpitudinem. Tait on Evidence, 427. 
 
 {g) "Every question on cross-examination of a witness," remarks Lord Abinger 
 in Regina v. Overton, 1 C. & M. 655, " which goes to his credit, is material." But 
 see Lohman v. People, 1 Oomstock, 380. 
 
 (h) If the law should be changed so that the witness is required to disclose all 
 facte, howsoever self criminative, such disclosures not to be used as evidence here- 
 after against him, in any criminal proceeding, it would be a great improvetoeut 
 upon the existing law. 
 
 March, 1859 18 
 
CHAPTER XVI. 
 
 JUDICIAL OATHS. ' 
 
 It is a noticeable fact, that in the earliest stages of civilization the 
 belief of the special interference of the Deity in the affairs of men, is 
 a prevailing and all but universal idea. Man, it was thought, by certain 
 mystic forms and hallowed ceremonies, could compel the interference of 
 the Divinity either to establish innocence, or to detect guilt. Hence 
 came ordeals and trials by battle and by lot; hence the belief that by 
 the eating of bread, or the drinking of water, by walking barefoot over 
 burning ploughshares, by thrusting the hand amid poisonous serpents, 
 or throwing the accused, bound hand and foot, into the water, amid 
 prayers and the imposing forms of antique superstition, God would 
 manifest the truth by a miraculous violation of the laws of Nature. So 
 extensively diffused was this idea, that it was alike believed by the 
 polished Athenian on the banks of the Ilissus, the stern Israelite amid 
 the hills of Judea, the African dwelling under the burning heat of the 
 torrid zone, and the Scandinavian worshipper of Thor or Odin, amid the 
 fastnesses of the North. All nations, barbarous, or just emerging from 
 barbarism, have resorted to the Divinity for the decision of disputed 
 questions with somewhat similar ceremonies, and undoubtedly with like 
 success. 
 
 Part and parcel with ordeals, whether of bread or of water, of poisons 
 or of ploughshares, whether of Grecian, Jewish, Hindoo, or Scandina- 
 vian form and origin, based upon the same principle, involving the same 
 leading idea, is the oath by which divine vengeance is imprecated upon 
 falsehood, and, by the use of which ceremony, if it be effective, the Deity 
 is, specially and for that cause, bound to inflict the requisite and appro- 
 priate punishment, in case of its violation. As the analogies traceable 
 amid the radical words of different languages all point to a common origin, 
 — a primal language, — so the innumerable resemblances discernible amid 
 the elemental forms of jurisprudence, among nations diverse in their local 
 habitations, with varying customs, and sympathies, and languages, would 
 equally seem to indicate a common source, from which, at some point of 
 time, now uncertain or lost in the darkness of a remote antiquity, they 
 originally sprung. 
 
 Theoath,(a) either assertory or promissory, is found among all nations, 
 with the exception of those so barbarous as to have no conception of the 
 
 (a) See Junkia on Oaths. Tyler on Oaths. Bentham's " Swear not at all." 
 
JUDICIAL OATHS. 255 
 
 existence of a God, Its antiquity seems almost coeval with man's ex- 
 istence. Indeed, according to classical mythology, its antiquity is still 
 greater; for as the Gods and Goddesses swore more or less according to 
 the emergency of the case, after, so it is fairly inferrible, that they did 
 before his creation. At any rate, the custom reaches back to the earli- 
 est recorded history. 
 
 An oath is a religious asseveration, by which " we either renounce the 
 mercy, or imprecate the vengeance of Heaven, if we speak not the truth." 
 Oaths have usually been divided into promissory or oaths of office, and 
 assertory or oaths uttered judicially or extrajudicially, for the purpose of 
 compelling truth on the part of the witness, and enforcing belief on the 
 part of the hearer. 
 
 So extravagantly profuse and wasteful is the use of oaths amongst us, 
 so utterly at variance are they with the command, " Swear not at all," 
 so powerless are they for all good, so potent for much evil, that we have 
 thought it might not be uninteresting briefly to notice the purposes for 
 which, and the occasions upon which they have been in use, their dif- 
 ferent forms and ceremonies, the various punishments for their violation, 
 the theory which justifies and requires their adoption as a sanction for 
 truth, and their real force and efficiency in the administration of judicial 
 affairs. 
 
 In the earliest records of the Jews, we find not only oaths but the 
 very form of the uplifted hand, which is every day witnessed in courts. 
 It is the form adopted by the Deity : " I lift up my hand to Heaven and 
 say, I live forever." To swear and to lift up the hand, are indifferently 
 used as translations of the same Hebrew word. " The Lord lifted up 
 His hand to the House of Israel," or "sware," as is subjoined in the 
 margin. So in Revelations, " the angel which I saw, lifted up his hand 
 to Heaven, and sware by him that liveth forever, who created Heaven 
 and the things that therein are, and the sea and the things that therein 
 are, that there should be time no longer." 
 
 The person to be sworn did not pronounce the formula, but the words 
 of the oath were repeated to him, or, when heard, he ratified them by 
 uttering the words " amen, amen ;" — thus imprecating upon himself the 
 curse. The most solemn oaths were taken amid sacrifices, the person who 
 imposed the oath dividing the victim, and the person who took it passing 
 between the divided parts, with an imprecation, expressed or understood, 
 to the following import : " May God do to me if I am perjured, what 
 has been done to these victims, or punish me still more, in proportion to 
 his greater power." 
 
 The first instance of a judicial oath is to be found in Exodus, xxii. 
 10, 11; where, in case of the loss of animals, delivered by one to his 
 neighbor to keep, and they die, or be hurt, or driven away, no man see- 
 ing it, it is decreed, that " then shall an oath of the Lord be between 
 them both, that he hath not put his hand unto his neighbor's goods ; 
 and the owner of it shall accept thereof, and he shall not make it good." 
 
 Perjury, by the Mosaic law,(6) was not an offence against the civil law j 
 
 (J) 4 Michaelis Commentaries on the Laws of Moses, 93, 94. 
 
256 APPLBTON ON KULBS OF EVIDENCE. 
 
 to God alone was left its punishment. The civil magistrate had no juris- 
 diction of the offence, except in the case of a false charge of crime, when 
 the punishment for the offence charged, was to be inflicted upon the per- 
 son falsely charging it. The perjurer might expiate his guilt, by mak- 
 ing the prescribed and pre-determined trespass offerings. The misunder- 
 standing or misinterpretation of this, may in later times have led to the 
 doctrines of absolution, and the sale of indulgences; for it is difficult 
 to perceive much difference in principle, whether the oiFerings, made to 
 escape the punishment of the Deity, be in certain specific articles, or in 
 certain money payments. 
 
 The form among the Greeks was by lifting up the hand to Heaven, 
 or touching the altar, adding a solemn imprecation to their oaths, for the 
 satisfaction of the person by whom the oath was imposed, as well as to 
 lay a more inviolable obligation upon the person taking it — in terms 
 something like this : — if what I swear be true, may I enjoy much hap- 
 piness, if not, may I utterly perish. 
 
 In judicial proceedings, the oath was administered to the witnesses 
 before an altar erected in the courts of judicature, and with the greatest 
 Bolemnity. The parties were likewise sworn — the plaintiff, that he would 
 make no false charge, the defendant, that he would answer truly to the 
 charge preferred. 
 
 An ancient form among the Eomans was, for the juror to hold a stone 
 in his hand, and to imprecate a curse upon himself should he swear 
 falsely, in these words : " If I knowingly deceive, whilst He saves the 
 city and citadel, may Jupiter cast me away from all that is good, as I do 
 this stone." Among the Greeks and Eomans, the oath was not merely 
 used to induce faith in judicial proceedings, but the Gods were invoked 
 as witnesses to contracts between individuals, and treaties between nations. 
 
 When the shrine of Jupiter gave place to that of St. Peter, when the 
 innumerable gods and goddesses of ancient superstition were converted 
 into the equally numberless saints and saintesses of Catholicism, when 
 the Pontifex Maximus of consular and imperial, became the Pontifex 
 Maximus of papal Eome — without even the change of his sacerdotal 
 vestments, when the rites and ceremonies, the whole ritual of the pagan 
 worship was transferred bodily to the worship of the papacy, the oath, 
 which was essentially a religious ceremony, was adopted as it had here- 
 tofore been administered, except so far as was required by the alteration 
 in the names of the object of worship, and in its purposes and beliefs. 
 As before this change, the altar, or the sacred things upon it were 
 touched or kissed, as the more gods one swore by the stronger the oath, 
 so we find after this change similar forms and ceremonies were adopted, 
 with slight variations. The very form of the imprecation used is of 
 pagan origin. "So help me Jupiter and these sacred things," became 
 " So help me God and these sacred relics, or, " these holy Evangelists. "(c) 
 The Elamen of Jupiter, from the sacredness of his office, was not com- 
 pelled to take an oath, and the word of the priest, " verbum sacerdotis," 
 in conformity to the old superstition, has sufficed. 
 
 (c) " So help me Freyre Njord and the Almighty, as I shall testify truly, &c.," 
 was the Scandinavian formula. 
 
JUDICIAL OATHS. 257 
 
 Justinian prescribes the following form : — " I swear by Grod Almighty 
 and by his only begotten Son, our Lord Jesus Christ, by the Holy Ghost 
 and by the glorious St. Mary, mother of Grod, and always a virgin, and 
 by the Four Gospels, which I hold in my hand, and by the holy Arch- 
 angels, Michael and Gabriel, &o.," closing with an imprecation upon his 
 head of the "terrible judgment of God and Christ, our Saviour, and 
 that he might have part with Judas and the leper Gehazi, and that the 
 curse of Cain might be upon him." 
 
 Besides oaths on solemn and judicial occasions, the ancients were in 
 the habit of making use of them, as nowadays, as " the supplemental 
 ornament of speech" — "as expletives to plump the speech, and fill up 
 sentences ;" — swearing by the patron Divinities of their cities, as in later 
 days by patron saints; by all manner of beasts and creeping things, by 
 the fishes of the sea, and by stones and mountains. 
 
 Per Solis radios, Tarpeiaque fulmina jurat, 
 Et Martis frameam, et Cirrhaei spicula Vatis ; 
 Per calamos Venatricis pharetramque Puellffi, 
 Perque tuum, pater Jilgaei Neptune, tridentem; 
 Addit et Herculeos arcus, hastamque MinerviE, 
 Quidquid habent telorum armamentaria coeli. 
 
 Indeed, the world-famous " God damn," of the English is but a trans- 
 lation of the " dii me perdant" of classical antiquity. But the oaths of 
 antiquity, however absurd or ridiculous, were infinitely exceeded in 
 absurdity by the exuberant and grotesque profaneness of the Christians 
 of the middle ages. They swore by " Sion and Mount Sinai," "by St. 
 James' Lance," "by the brightness of God," "by Christ's foot," "by 
 nails and by blood," " by God's arms two," — they swore 
 
 " By tlie saintly bones and relics. 
 Scattered throngh the wide arena ; 
 Yea, the holy coat of Jesus, 
 And the foot of Magdalena." 
 
 Menu,. the great lawgiver of the East, the son of the Self-existent, as 
 he is termed in the sacred books of the Hindoos, ordains that the judge, 
 having assembled the witnesses in the court, should, in the presence of 
 the plaintiff and defendant, address them as follows : — (c) 
 
 " What ye know to have been transacted in the matter before us, be- 
 tween the parties reciprocally, declare at large and with truth, for your 
 evidence is required. 
 
 "The witness who speaks falsely, shall be fast bound under water, in 
 the snaky cords of Varuna, and he shall be wholly deprived of power to 
 escape torment during a hundred transmigrations; let mankind give, 
 therefore, no false testimony. 
 
 "Naked and shorn, tormented with hunger and thirst, and deprived 
 of sight, shall the man who gives false testimony go, with a potsherd to 
 beg bread at the door of his enemy. Headlong and in utter darkness, 
 shall the impious wretch tumble into hell, who, being interrogated in 
 a judicial inquiry, answers one question falsely. 
 
 " The priest must be sworn by his veracity; the soldier by his horse, 
 or elephant, or weapons ; the merchant by his kine, grain and gold ; the 
 (c) Institutes of Menu, c. 8, H 82, 83, &c. 
 
258 APPLBTON ON ETTLES 0¥ EVIDENCE. 
 
 mechanic, or servile man, by imprecating on his head, if he speak falsely, 
 all possible crimes." 
 
 In this code, the guilt of perjury varies in intensity, according to the 
 subject matter of testimony. 
 
 " By false testimony concerning cattle in general, the witness incurs 
 the guilt of killing five men ; he kills ten by false testimony concerning 
 kine; he kills a hundred by false testimony concerning horses j and a 
 thousand by false testimony concerning the human race." 
 
 But what is human life compared with gold, or with land ? The scale 
 rises,— the atrocity increases. 
 
 " By speaking falsely in a cause concerning gold, he kills, or incurs 
 the guilt of killing, the born and unborn; by speaking falsely concern- 
 ing land, he kills every thing animated. Beware, then, of speaking 
 falsely concerning land. Marking well all the murders which are com- 
 prehended in the crime of perjury — declare the whole truth, as it was 
 heard and as it was seen by thee." 
 
 Notwithstanding all this, pious falsehood, for instance, perjury to 
 save life, which would be forfeited by the rigor of the law, is not merely 
 allowed, but approved, and eulogistioally termed " the speech of the 
 Gods."(rf) 
 
 " To a woman, on a proposal of marriage, in the case of grass or fruit 
 eaten by a cow, of wood taken for a sacrifice, or of a promise made for 
 the preservation of a Brahmin, it is no deadly sin to take a slight oath." 
 
 Ever famous has been the lubricity of lovers' oaths. The lover swore, 
 indeed, but, as was said by the G-reeks, oaths made in love, never enter 
 into the ears of the Gods. This, probably, is the only code not only al- 
 lowing and approving falsehood by lovers, but by others. 
 
 Various are the modes of administering an oath. A cow is sometimes 
 brought into court, that the witness may have the satisfaction of swear- 
 ing with her tail in his hand ; the leaf of the sweet basil and the waters 
 of the Granges are swallowed; the witness holds fire, or touches. the head 
 of his children or wife — while the less orthodox followers of Brahmin, 
 those of the Jungle tribes, impressed with the belief that if they swear 
 falsely they shall be food for tigers, are sworn on the skin of one. 
 
 Among the Mohammedans, the oath is administered with the Koraji 
 on the head of the witness; but it is not binding unless taken in the 
 express name of the Almighty, and then it is incomplete unless the wit- 
 ness, after having given in his evidence, again swears that he has spoken 
 nothing but the truth. The oath is not worthy of credit unless taken 
 in the name of God ; and the swearer must corroborate it by reciting the 
 attributes of God, as, " I swear by the God besides whom there is no 
 other righteous God, who is acquainted with what is hidden," &c. 
 
 No one, who has read the inimitable works of Sterne, will forget the 
 all-cursing excommunication of the Catholic Church — cursing the un- 
 happy ofi'ender in the exercise of every function of living nature, and 
 through all the joints and articulations of his members, from the crown 
 
 (d) "In some cases, a giver of false evidence from a pious motive, even though 
 he Icnew the truth, shall not lose a seat in heaven. Such evidence wise men call 
 the speech of the Gods." Institutes of Menu, o. 8, § 103. 
 
JUDICIAL OATHS. 259 
 
 of his head to the sole of his foot. The oath of the Burmese, though 
 falling infinitely short as an effusion of maledictory imprecation, is still 
 worthy of being brought to mind. 
 
 " I will spreak the truth. If I speak not the truth, may it be through 
 the influence of the laws of demerit, viz : passion, anger, folly, pride, 
 false opinion, hardheartedness, and scepticism ; so that when I and my 
 relations are on land, land animals, as tigers, elephants, buffaloes, poison- 
 ous serpents, scorpions, &c., shall seize, crush, and bite us, so that we 
 shall certainly die. Let calamities occasioned by fire, water, rulers, 
 thieves and enemies, oppress and destroy us, till we come to utter 
 destruction. Let me be subject to all the calamities that are within the 
 body, and all that are without the body. May we be seized with mad- 
 ness, dumbness, blindness, leprosy and hydrophobia. May we be struck 
 with thunderbolts, and lightning, and come to sudden death. In the 
 midst of not speaking truth, may I be taken with vomiting black clotted 
 blood, and suddenly die before the assembled people. When I am going 
 by water, may the aquatic genii assault me, the boat be upset, and the 
 property lost ; and may alligators, porpoises, sharks, or other sea-mon- 
 sters seize and crush me to death ; and when I change worlds, may I 
 not arrive among men and nats, but suffer unmixed punishment and 
 regret in the utmost wretchedness among the four states of punishment, 
 Hell, Prita, Beasts and Athurakai," &c. 
 
 "' Small curses. Dr. Slop, upon great occasions,' quoth my father, 'are 
 but so much waste of our strength and soul's health, to no manner of 
 purpose.' ' I own it,' replied Dr. Slop. ' They are like sparrow shot,' 
 quoth my uncle Toby, ' fired against a bastion.' ' They serve,' continued 
 my father, ' to stir the humors — but carry off none of their acrimony — 
 for my part, I seldom swear or curse at all. I hold it bad ; but if I fall 
 into it by surprise, I generally retain so much presence of mind as to 
 make it answer my purpose — that is, I swear till I find myself easy.' " 
 The Burmese, at any rate, fire no sparrow shot at falsehood — and might 
 be easy in the sufficiency of the metal with which their oath is loaded. 
 
 Much of the judicial proceedings of our Anglo-Saxon ancestors rested 
 upon oaths, and the punishment for their violation was severe. The 
 perjurer was declared unworthy of the ordeal, was incompetent as a wit- 
 ness, denied Christian burial, and classed with witches, murderers and 
 the most obnoxious members of society. 
 
 Oaths were administered to the complainant in criminal proceedings, 
 and to the accused. The oath of the complainant was as follows : " In 
 the Lord, I accuse not N. either from hate, or art, or unjust avarice, nor 
 do I know any thing more true ; but so my mind said to me, and I myself 
 tell for truth that he was the thief of my goods." 
 
 The accused swore as follows : " In the Lord, I am innocent, both in 
 word and deed, of that charge of which P. accused me." 
 
 The oath of the witness was : " In the name of Almighty God, as I 
 stand here a true witness, unbidden and unbought, so I oversaw it with 
 mine eyes, and even heard it in my ears, what I have said." 
 
 From this, it would appear that, in those early days, before the inve- 
 terate chicanery of Norman Jurisprudence had cursed English soil, that 
 
260 APPLETON ON RULES OF EVIDENCE. 
 
 it was usual to swear the parties, — those who know something about 
 the matter. 
 
 The different oaths of modern Europe, ordeal oaths, oaths of compur- 
 gators, decisory oaths, oaths of calumny, oaths military, masonic, might 
 well deserve attention ; but we have already, perhaps, occupied too much 
 attention in reverting to the forms and usages of the past.(c?) 
 
 There are but two instances of nations among whom oaths have not 
 been adopted in judicial proceedings. Among the Chinese, no oath is 
 exacted by the magistrate, upon the delivery of testimony. When they 
 question each other's testimony, appeals to the Gods are only made by 
 cutting off the head of a fowl and wishing they may thus suffer — or blow- 
 ing out a candle and wishing they may thus be extinguished, if they do 
 not speak the truth. The other instance is to be found in the code of 
 laws formed, with great judgment and much discrimination, by the mis- 
 sionaries at Tahiti — where, we believe, oaths have, for the first time, been 
 abolished by a Christian people. (e) 
 
 Whim and caprice seem to have governed men in selecting the punish- 
 ment to be inflicted for a violation of the truth. Among some nations, 
 fines, confiscation of goods, and imprisonment have sufiSced. The Hin- 
 doos, cut out the tongue, as being the offlending member, while the 
 Spaniards, sparing the tongue, extracted the teeth, for their share in the 
 formation of sound. Some cut off the hand. The old G-ermans were 
 content with a thumb, while the Danes, using three fingers in the cere- 
 mony, were content with taking only two ; and the Dutch, still more 
 merciful, thought the jointing of the forefinger a suflBcient expiation for 
 the offence. By the Salic law, a fine of fifteen shillings satisfied the 
 offended majesty of the law; but in case of the decisory oath, according 
 to the laws of some countries, no punishment can be imposed on the false 
 swearer beyond what Grod will infiict.(/) 
 
 With us, the oath is used on so many occasions, that a stranger would 
 imagine it was a precept of our religion, to swear always, at all times and 
 on all occasions. Not an executive ofiicer, from the President to a Mar- 
 shal, from a Governor to a Constable ; not a judicial officer, from the 
 chief justice to the lowest magistrate known to the law; not a member 
 of our numerous legislative assemblies ; not an ofl&cer of the army or navy, 
 nor a soldier or sailor, enlisting, but is sworn in certain set and prescribed 
 formulas. A sworn assessor is required to assess our taxes ; a sworn 
 collector to collect, and a sworn treasurer to receive the money collected. 
 Not a lot of land is levied upon, without the intervention of oaths. The 
 whole custom house department is rife with them. Through all the in- 
 
 (d) The Roman law dominates over the civilization of continental Europe. It 
 is found to control in no slight degree Mussulman jurisprudence. The various 
 kinds of judicial oaths are strikingly similar in the civil and Mahometan law. 
 Compare 10 Toullier,'Droit Civil Fran9ais, ch. vi., sec. v., Du Serment, with Juris- 
 prudence Musulmane, 5 tome, 265, Du Serment suppl^tif, dans le case de t^moign- 
 age isol6, 323, Du Serment judiciaire. 
 
 For the oaths of compurgators, see Tyler on Oaths, 263 ; for the ordeal oaths, 
 p. 2V2. 5 Jurisprudence Musulmane, 460, Du Serment cinquantenaire. 
 
 (e) " No oath is administered on any occasion ; deliberate assertion is regarded 
 as evidence, and false evidence is regarded as equally criminal with false accusa- 
 tion, and is, I believe, punished accordingly." 3 Ellis, Polynesian Researches, 150. 
 
 (/) Tyler on Oaths. 
 
JUDICIAL OATHS. 261 
 
 numerable gradations of life, official, civil, military, executive and judicial, 
 the oath is the established security, by which, in their respective spheres, 
 they are all bound to the performance of their several duties — and 
 that, too, by a people, one of the clearest precepts of whose religion is, 
 " swear not at all ;" and when, in many of the above instances, the vio- 
 lation of the several duties sworn to be done and performed, is not pun- 
 ishable as perjury. 
 
 Nor are these the only occasions in which the oath is used. No 
 testimony is received in any judicial proceeding until after its adminis- 
 tration. As a security for official faithfulness, or as a preventive of 
 official delinquency, it is notoriously worthless and inoperative. What 
 may be its value in the preserving and promoting of trustworthiness of 
 testimony, we propose to consider. 
 
 Eor the purposes of Justice, it is perfectly immaterial whether the 
 testimony uttered be sworn or unsworn, provided it be true. Before 
 considering the supposed efficiency of an oath, it may be advisable to see 
 what other, and how powerful securities for testimonial veracity are 
 attainable without resort to this supernatural agency. 
 
 Truth is the natural language of all ; it is the general rule, falsehood 
 the rare and occasional exception. Even of those least regardful of 
 veracity, truth is the ordinary and common language. The greatest 
 liar, no matter how depraved he may be, usually speaks the truth. And 
 why ? Invention is the work of labor. To narrate facts in the order 
 of their occurrence, to tell what has been seen or heard, is what obviously 
 occurs to any one. To avoid doing this, is a work of difficulty. Falsely 
 to add to what has occured, carefully to insert a dexterous lie, requires 
 ingenuity, greater or less, according to the greater or less degree of skill 
 with which the lie is dovetailed among the truths which surround it. 
 No matter how cunning the artificer, the web cannot be so woven that 
 the stained and colored thread shall not be perceived. Love of ease, 
 fear of labor, the physical sanction, are always seen cooperating in favor 
 of truth. Any motive, however slight and even infinitesimal, is, or may 
 be sufficient to induce action in a right direction, except when overborne 
 by other and superior motives, in a sinister direction. By a sort of im- 
 pulse, by the very course of nature, the usual tendency of speech is in 
 the line of truth. 
 
 Eegard for public opinion, the pain and shame universally attendant 
 upon the ignominy attached to falsehood detected, the disgrace of the 
 liar, in other words, the moral and popular sanction, with but rare and 
 accidental exceptions, is found tending in the same direction. Much 
 the greater part of what is known, is known only from the testimony of 
 others. Oar necessities, the necessities of others, and of social inter- 
 course, require, that for our own preservation as well as for that of others, 
 the truth should be told. Hence among all nations, barbarous and civil- 
 ized, and among civilized in proportion to their advancement, the term 
 Liar has been one of deep reproach ; never used without inflicting pain 
 on the person to whom it is applied. However great the disgrace, it is 
 immeasurably increased, when the occasion upon which the falsehood is 
 uttered is a judicial one. The more important the occasion, the greater 
 the public indignation and scorn attached to its violation. 
 
262 APPLETON ON RULES OF EVIDENCE. 
 
 The law regarding veracity, which is peculiarly desirable in judicial 
 investigations, may impose severe penalties for false testimony, — men- 
 dacity, — penalties varying in degree of severity, according to the aggra- 
 vation of the offence — and thus may furnish additional sanction to, and 
 security for testimonial trusworthiness. 
 
 It may happen that the statement of a witness, while true in part, may 
 be defective in detail, either by the omission of true, or the utterance of 
 false facts. Correctness and completeness are both included in perfect 
 veracity. Incorrect in part, incomplete to any material extent, — the 
 evils of such incompleteness and incorrectness, when not the result of 
 design, may be as great as those of deliberate and intentional falsehood. 
 How best to attain those indispensable requisites, is the problem, the 
 solution of which becomes so important in the practical administration 
 of the law. How best to compel the reluctant and evasive witness, how 
 to quicken the careless and indifferent, how to check and restrain the 
 rash and presumptuous, how convict the deliberately and wilfully false, 
 how to extort from reluctant lips the truth, the whole truth, and noth- 
 ing but the truth — by what processes to accomplish these results, is the 
 great question. 
 
 Interrogation and cross-interrogation, rigid, severe and scrutinizing, 
 under a proper system of procedure, confirmed and strengthened by the 
 sanctions already alluded to, are the securities upon which all real and 
 substantial reliance must be placed. The ordinary motives to veracity, 
 without the aid of cross-examination, and unaccompanied by fear of pun- 
 ishment in case of falsehood, are found sufficient in the common affairs 
 of life to produce veracity. The extraordinary securities afforded by 
 punishment, compulsory examinations and cross-examinations, would 
 seem to suffice in the case of evidence judicially delivered. 
 
 As, however, testimony is judicially delivered only upon and after the 
 ceremony called an oath — it is only punishable if false, after the oath 
 has been legally administered. This is not necessarily so — for, if the 
 legislature should so will, the temporal punishment might as well be in- 
 flicted without, as with an oath. 
 
 Having briefly considered the temporal securities for truth, it now 
 remains, to ascertain the real significance and true value of the oath, as 
 a preventive of testimonial mendacity. 
 
 " What is universally understood by an oath," says Lord Hardwick, " is, 
 that the person who undertakes, imprecates the vengence of God upon 
 himself, if the oath he takes be false." 
 
 " An oath, " says Michaelis,(e) "is an appeal to God as a surety and 
 the punisher of perjury ; which appeal as He accepted, He of course 
 became bound to punish a perjured person irremissibly. 
 
 " Were not God to take upon Himself to guarantee oaths, an appeal 
 to Him in swearing, would be foolish and sinful. He undertakes to 
 guarantee it, and is the avenger of perjury, if not in this world, at any 
 rate in the world to come." 
 
 By the use, then, of this ceremony, the Deity is engaged, or it is as- 
 sumed that He is engaged, in case of a violation of the oath, to inflict 
 
 punishment of an uncertain and indefinite degree of intensity at some 
 
 (e) Oommeutaries on laws of Moses, 4 vol, p. 99, I 256. 
 
JUDICIAL OATHS. 263 
 
 remote period of time, in some indefinite place, according to the varying 
 and conflicting theological notions of those holding this belief — notions 
 varying according to the time when, and place where, they are enter- 
 tained, and the education and character of those entertaining them. 
 
 It cannot be questioned, that the Deity will punish for falsehood, 
 whether judicially or extrajudicially uttered ; nor that such punishment, 
 whatever it may be, whensoever, wheresoever, or howsoever inflicted, will 
 be just, fitting and appropriate. 
 
 Were the ceremony not used, were unsworn testimony delivered, sub- 
 ject to temporal punishment, were all oaths abolished, false testimony, 
 so far as this world is concerned, would be as injurious as if uttered under 
 the sanction of an oath. The injurious effects in the administration of 
 justice, would be the same. The unsworn witness would be amenable 
 to the penalties of the law, as the sworn witness is now. 
 
 Now what is accomplished by the oath ? The falsehood and its dis- 
 astrous effects to the cause of justice are the same, whether the oath has 
 been taken or not; the temporal punishment is, or may be made the 
 same. The oath, if effective, therefore, is only effective so far as future 
 punishment is concerned, which, in consequence of its administration, 
 will thereby be increased or diminished, — for, if the future punishment 
 were to remain the same, then nothing would have been effected ; the 
 oath would be a mere idle cefemony — telumque imhelle sine ictu. 
 
 That punishment hereafter will thereby be diminished, no one will pre- 
 tend, certainly not those who repose confidence in the eflScacy of this 
 sanction. If it be increased, then, and then only is the ceremony effec- 
 tive — then, only, is a valid reason given for its adoption. 
 
 The falsehood being the same, whether the testimony be sworn or un- 
 sworn, the punishment for the falsehood itself, must necessarily be the 
 same. For, if falsehood be a proper subject of punishment, when the 
 effects are the same, the lie will be punished without, as well as with any 
 ceremony preparatory to its utterance. If, then, an increase of punish- 
 ment will be inflicted — it must be for the profanation of the ceremony, 
 and nothing else. 
 
 If the future punishment is increased in consequence of the admin- 
 istration of the oath — then what follows ? That man by the use of cer- 
 tain words and ceremonies, can compel the Deity to inflict other, and 
 increased, and different punishments; that man can control the Deity. 
 The punishment for the falsehood is one thing; the punishment for the 
 falehood would be just without the ceremony, and the falsehood being 
 the same, the punishment, for that cause, must be the same. If there 
 be an increase, it is for the profanation, and for that alone. 
 
 The perjury committed, the falsehood judicially uttered, as by the 
 Quaker, the temporal punishment the same, the evil the same, is the 
 future punishment the same ? If so, then the oath is utterly valueless. 
 Is it increased ? Then, for precisely the same temporal offence, for the 
 same identical violation of truth, there is a different future punishment 
 and that arising from, and caused by the utterance of certain words and 
 the performance of certain gestures, previous to uttering such falsehood ! 
 The Quaker suffers equally in this world for his crime, but hereafter he 
 is to be a gainer by having his suffering diminished. 
 
264 APPLETON ON RULES OF BVIDBNCB. 
 
 All that is alleged, then, to have been accomplished is, that an in- 
 creased amount of punishment is hereafter to be inflicted, simply for the 
 violation of a ceremony, and entirely irrespective and regardless of any 
 evils flowing from the falsehood. No sanction for truth is really obtained. 
 
 But in what does the binding force of an oath consist ? When Jep- 
 thah, returning in triumph, was met by his daughter with timbrels and 
 dances, was Jepthah under any obligation to perform the vow he had 
 made, "to offer up for a burnt offering whatsoever should come forth 
 from the doors of his house to meet him ?" If yea, such obligation arose 
 not from the rightfulness or propriety of the matter vowed, for that was 
 a dark and atrocious murder, " for she was his only child ; besides her 
 he had neither son nor daughter."(e) The performance, if required, was 
 required solely in consequence of the vow. " For I have opened my 
 mouth to the Lord, and cannot go back." If nay, if the vow was not to 
 be performed, then does it not follow, that it is the fitness of the thing 
 sworn to be done or not, which is the basis of the obligation, and upon 
 which its binding force rests ? 
 
 When Herod, pleased with the dancing of the daughter of Herodias, 
 "promised with an oath to give her whatsoever she would," and when 
 she requested the head of John the Baptist in a charger, was he thereby 
 bound to give it her? "Yet for his oath's sake and them that sat with 
 him at meat, he commanded it to be given her." 
 
 Mahomet says when you swear to do a thing, and afterwards find it 
 better to do otherwise, do that which is better, and make void your oath. 
 
 The very definitions of an oath show that, by reason and in conse- 
 quence of the oath, the Deity becomes bound to punish a perjured per- 
 son irremissibly. History, too, shows that obligations upon man, and 
 so, too, upon the Deity, arising from the oath, varied, or were supposed 
 to vary in intensity, according to the changing forms and circumstances 
 attendant upon its administration. When Robert, the pious king of 
 France, abstracted the holy relics from the cases upon which the oath 
 was taken, and substituted therefor the egg of an ostrich, as being an 
 innocent object, and incapable of taking vengeance on those who should 
 swear falsely, he might have been correct as to the incapacity of the egg; 
 but did he thereby save his subjects from perjury, or avert the punish- 
 ment of the Deity. When Harold shuddering saw the bones and relics 
 of saints and martyrs, real or fictitious, upon which he had uncon- 
 sciously sworn, were the obligations he had assumed, increased by their 
 unknown presence ? Or was it the unreasoning fear of abject supersti- 
 tion, which led him to believe that he had thus immeasurably increased 
 the dangers of superhuman punishment ? 
 
 Indeed, when men consider they are under obligation to utter the 
 truth or not, as they stand upon a tiger's skin or hold in their hand the 
 tail of a cow, as they have their hat on or off, as certain spurious relics of 
 fictitious saints are enclosed in the pyx or not ; as the lips touch the 
 thumb or the book ; as the book has, or not, a cross upon it, who does 
 not see that the virtue resides, or is considered by those thus believing, 
 to reside in the ceremony and in that alone ; that the thing sworn to be 
 
 (c) Judges, chap, xi., v. 34. 
 
JUDICIAL OATHS. 265 
 
 done or not done, and its propriety, are not even matters deemed worthy 
 of thought ? 
 
 But is the obligation to utter truth thereby increased ? Is not that 
 eternal, immutable 't Is not the duty to utter truth paramount and 
 prior to all oaths ? The oath may be the same so far as the ceremony is 
 concerned, either to utter the truth or a falsehood, but is the obligation 
 the same ? If the obligation rests on the oath, e^ch alike must be per- 
 formed as sworn. If it rests on the rightfulness of the thing to be done, 
 then why add the oath 1 
 
 The oath is not without its accompanying evils. By imposing pun- 
 ishment only when it has been administered, it lessens the importance 
 of, and the respect due to truth, in statements uttered extrajudicially, 
 and gives an implied license to falsehood, out of court. The truth seems 
 only to be specially requisite in case of an oath, otherwise it is compara- 
 tively immaterial. 
 
 Charles Lamb, in his quaint and quiet way, and with great humor 
 and truth, says, " the custom of resorting to an oath in extreme cases, is 
 apt to introduce into the laxer sort of minds, the notion of two kinds of 
 truth; the one applicable to the solemn affairs of Justice, and the other 
 to the common proceedings of daily intercourse. As truth, bound upon 
 the conscience by an oath, can be but truth, so, in the common afSrma- 
 tions of the shop and the market, a latitude is expected and conceded 
 upon questions wanting this solemn covenant. Something less than the 
 truth satisfies. It is common for a person to say, you do not expect me 
 to speak as if I were upon my oath. Hence, a kind of secondary or 
 laic truth is tolerated, when clergy truth, oath truth, is not required. 
 A Quaker knows none of these distinctions." 
 
 Not very dissimilar was the idea of St. Basil, that "it is a very foul 
 and silly thing for a man to accuse himself as unworthy of belief, and to 
 proffer an oath for security." 
 
 The oath, too, is a disturbing force in giving the just degree of weight 
 to testimony. It tends to place all testimony upon the same level, to 
 cause equal credence to be given to all, because all have passed through 
 the same ceremony. The attention of the jury or the judge, is with- 
 drawn from the just appreciation of the grounds of belief or disbelief in 
 the evidence. The same ceremony for all, the tendency is, to believe 
 that its force is the same upon all, and thus the bad receive undue cre- 
 dence, while the good are reduced to the standard of the bad. 
 
 In what does the difference consist between judicial and extrajudicial 
 falsehood ? The consequences of the latter may be more or less injurious 
 than those of the former; the injury greater, the loss, in the latter case, 
 of property, reputation or even life, in the former of a few shillings, it 
 may be ; is the falsehood judicially uttered the greater offence ? To 
 suifer the same loss by the utterance of the same words in court or out 
 of court, in the street or on the stand, with or without assenting with 
 upraised hand to certain words, in what is the difference to the loser, 
 or the general injury to the community? Why in one ease punish, in 
 the other exempt from punishment? Does it not degrade the general 
 standard of veracity ; does it not create the notion that truth is not expect- 
 ed on ordinary occasions, but is only required as a sort of court language ? 
 
266 APPLBTON ON ETJLES OF BVIDBNOB. 
 
 What are the lessons of experience ? To determine the real value of 
 this sanction, one must abstract all those concurring and co-operating 
 securities, which alone are of real importance, but which, not being es- 
 timated at their value, give this an unnatural and undeserved efficiency. 
 Take away public opinion ; let falsehood be regarded with as much in- 
 difference as among the Hindoos; remove all fear of temporal punish- 
 ment in case of testimonial falsehood ; abolish the test of cross-examina- 
 tion ; leave it to the willing or unwilling witness to state more or less, 
 according to the promptings of his inclination, and you then see the 
 measure of security for trustworthiness derivable from the oath. When 
 the oath sanction is in accordance with the other securities of trustworthi- 
 ness, its weakness is not perceived. Let the religious cease to be in con- 
 formity with the popular sentiment or even with convenience, and its 
 violation is looked on with indifference or even complacency. " If you 
 wish," says Bentham, " to have powder of post taken for an efficacious 
 medicine, try it with opium and antimony j if you wish to have it taken 
 for what it is, try it by itself." 
 
 Definite, certain, immediate punishment alone is powerful to restrain , 
 or coerce. The future, enshrouded in darkness, yields to the present. 
 The fear of punishment, hereafter to be imposed for falsehood without 
 oath, or with oaths so far as it may be increased thereby, is a motive of 
 little strength. The uncertainty whether any will be inflicted, the 
 unalterable ignorance as to what the amount may be, or when in time, 
 or where in space it is to be inflicted, render it a security unreliable and 
 powerless in its action upon even the most intelligent and conscientious, 
 when unaided and unsupported by other sanctions. 
 
 The oaths of Oxford University have been taken by the most cultivated 
 minds of England, by those, who in after life attained the highest digni- 
 ties of the Church or the State, by those, who from their station, their 
 education and intelligence, would be least likely to disregard their obli- 
 gation. These oaths required obedience to statutes framed centuries 
 ago by and for a set of monks, and are about as consonant to the pre- 
 sent state of society as the monkish costume would be to a General in 
 Chief at the head of his army. Consequently, they are not merely not 
 observed, but their observance would be a matter of astonishment to 
 all, equally to those sworn to observe and to those sworn to require 
 their observance. 
 
 Another instance of habitual violation of oaths, has been seen in the 
 conduct of English judges and juries, in the administration of the 
 criminal law. The English code was written in blood. Draco would 
 have shuddered at the multiplicity of its bloody enactments. Death was 
 inflicted in cases of larceny, dependent upon the value of the thing 
 stolen. With greater regard to the dictates of humanity than to their 
 oath-obligations, juries, at the suggestion of the Court, and for the ex- 
 press purpose of evading the law, have intentionally returned the article 
 stolen as of less than its true value, to avoid the punishment of death, 
 which otherwise would have been the penalty in case of conviction. 
 
 Unanimity, too, is required in juries. A difference of opinion exists; 
 in most contested cases of much complexity, it is likely to exist. The 
 really dissenting minority yield to the majority. The court aid or advise, 
 
JUDICIAL OATHS. 267 
 
 and if advice will not serve, compel agreements by partial starvation — 
 thus bringing physical wants to their aid, to coerce real opinion. 
 
 The open and profligate violation of custom-house oaths, has attracted 
 so much attention, that in England they have been abolished. In this 
 country, a bill to that effect, with the approbation of the late John 
 Quiney Adams, was introduced, but we believe it was defeated. 
 
 The Jews had no temporal punishment for perjury, and they have 
 descended to posterity as a nation of oath-breakers. It will be fully 
 understood how little effect the fear of future punishment had over the 
 G-recian mind,(e) when it is remembered that the wit of Aristophanes was 
 directed against the very idea of Jove's interference for the punishment 
 of this crime. 
 
 " Dunce, dotard, were you bora before the flood, 
 To talk of perjury, whilst Simon breathes, 
 Theorus and Kleonymus, whilst they, 
 The perjured villians, brave the lightning's stroke, 
 And gaze the heavens unshact, .would these escape? 
 Why, man, Jove's random fires strike his own fane, 
 Strike Sunium's guiltless top, strike the dumb Oak, 
 Who never yet broke faith or falsely swore." 
 
 The caustic and vehement pen of Juvenal affords an equally true and 
 
 vivid picture of Koman want of belief and truth. 
 
 " Who dreams that oaths are sacred ; that the shrine 
 Of every God has something of divine ; 
 Dreams of Old Times, when Saturn first forsook 
 His diadem, and grasped the reaper's hook ; 
 When Juno was a spinster, and when Jove 
 Lived still in private, in the Mean Grove ! 
 Oh Golden times I When Gods were scarce and few, 
 And not as now, a mix'd and motley crew! 
 Wheels, furies, vultures, quite unheard of things, 
 And the gay ghosts, were strangers yet to kings." 
 
 The habitual disregard for truth — the little security which the oath 
 gives to testimony — induced a committee of the British Parliament,(/) 
 
 (e) The Greeks, according to Cicero, seem habitually to have disregarded the 
 obligations of an oath. " Grsecus testis cum ea voluntate processit, ut Isedat ; non 
 jurisjurandi, sed laedendi verba meditatur * * Num illos item putatis ? quibus 
 jusjurandumjocusest: testimonium Indus; existimatiovestratenebrae; laus,merces, 
 gratia, gratulatio proposita est omuis in impndenti mendacio." Oratio pro L. Flacco. 
 
 (/) Eeport in affairs of the Bast India Company, partlV., Judicial, to the House 
 of Commons, 1832. "The great cause of failure in the administration of crimi- 
 nal as well as civil cases, is the habitual disregard for truth which unhappily 
 pervades the bulk of the native community, and the little security which the 
 obligation of an oath adds to the testimony of witnesses. 
 
 "False testimony is in certain cases directly encouraged and approved by the 
 sanctity of the great lawgiver of the Hindoos, and the offence of perjury can be 
 expiated by very easy penances. Under these circumstances, the inhabitants of 
 India generally must undergo a great moral regeneration, before an evil, which 
 saps the very foundations of justice, and bars all confidences between man and 
 man, can be effectually remedied. This subject has been very fully and ably 
 treated in a presentment made by the grand jury of Calcutta to the Supreme 
 court, in the fourth term of 1823, and the expediency of abolishing oaths, as con- 
 nected with native evidence, has been forcibly urged. 
 
 " Our own impression is, that generally speaking, the moral sanction of an oath 
 does not (especially among the lower classes,) materially add to the value of 
 native testimony, whether of Hindoos or Mahomedans ; that the practical restraint 
 on perjury is the dread of the punishment prescribed by law for that offence, and 
 that the fear of consequences in a future state, or the apprehended loss of charac- 
 ter and reputation among their countrymen, has little effect upon the great majo- 
 
268 APPLETON ON RULES OF EVIDENCE. 
 
 in tlieir report on the judicial affairs of British India, to recommend its 
 abolition, on the ground that its moral sanction does not add to the value 
 of native testimony, Hindoo or Mahommedan ; that the only practical 
 restraint on perjury is the fear of punishment, imposed by law for that 
 offence, and that the fear of consequences in a future state, or the loss 
 of character or reputation among their own countrymen, has little effect 
 upon the great majority of the people, in securing true and honest testimony, 
 when they may be influenced by the bias of fear, favor, affection, or reward. 
 
 The legal exclusion consequent upon, and caused by the oath, affords 
 an unanswerable argument against its use. Most nations, in the spirit 
 of religious bigotry and barbarian exclusiveness, so characteristic of 
 unenlightened legislation, have excluded as witnesses, those whose faith 
 differed from their own. The Government, determining what shall be 
 the faith, — decrees that all dissidents shall be branded as infidels. 
 The term infidel expresses merely dissent or disbelief, without reference 
 to the truth or falsehood of the thing disbelieved. It is the epithet 
 which majorities apply to minorities, and', consequently, one of reproach. 
 Justinian excluded infidels. Hindoos and Mahommedans excluded 
 Christians, because of their infidelity, and, by way of reprisal, they in 
 their turn were excluded by Christians, for the same cause. Such was 
 the common law, as drawn from its purest fountains, — from Fleta and 
 Bracton. Coke, its great expounder, excludes them as unworthy of 
 credit ; for, said he — they are perpetual enemies — " for as between them, 
 as with the devils, whose subjects they are, and Christians, there is per- 
 petual hostility, and can be no peace ; for, as the Apostle said, ' and what 
 concord hath Christ with Belial, or what part hath he that believeth with 
 an infidel V " 
 
 It was not until the East India Company commenced that splendid 
 career of conquest, by which they acquired dominion over millions of 
 subjects, and it was seen that an urgent necessity required the testimony 
 of the natives — that the Court, overruling the well established law of 
 ages, threw Bracton and Fleta overboard, because they were papists, and 
 because in their day " little trade was carried on but the trade in religion ;" 
 and in the suit of Omichund,(gr) the great Hindoo Banker, whose mel- 
 ancholy fate reflects little credit on British faith, against Barker, by an 
 act of judge-made law decided that all infidels, without reference to their 
 religion, might be received and sworn, according to the customs of their 
 respective countries ; — not because such was the law — but because to 
 exclude them, would be a " most impolitic notion, and would tend at 
 once to destroy all trade and commerce." Even judicial optics, with 
 dim and beclouded vision, saw that, if the whole population of a country 
 were excluded as infidels, proof might be deficient ; — but, as it was 
 thought to " the advantage of the nation to carry on trade and commerce 
 in foreign countries, and in many countries inhabited by heathens," it 
 
 rity of the people, in securing true and honest testimony, when they may be influ- 
 enced by the bias of fear, favor, affection or reward. 
 
 " With these impressions we should have no objection to try the experiment of 
 dispensing with oaths in all civil and criminal cases of minor importance in the 
 first instance, if our most experienced judicial of&cers, including the court of 
 Sudder Dewanny Adawlut entertained the same opinion " 
 (g) See Wille's Rep. 538. 
 
JUDICIAL OATHS. 269 
 
 was judged advisable to trample the law under foot. A judicial caveat, 
 however, was at the same time entered against giving the same credit, 
 either " by court or jury, to an infidel witness as to a Christian." 
 
 Provided only the wrath of God be imprecated, it mattered little to 
 the common law, the wrath of what God was imprecated, whether Vishnu 
 or Fo, or any other of the innumerable Gods of heathenism. But in 
 none of them does the Christian repose faith. The witness imprecating 
 the vengeance of false Gods, of Gods who will not answer, what is the 
 belief of the Christian ? That the true God will as much hear and pun- 
 ish in consequence of the use of this ceremony, and for its violation, as 
 if the adjuration had been in His name ? If so, then are the magic vir- 
 tues of the oath still more enhanced — being compulsory upon the Deity, 
 even when his name is not invoked. If not, then why swear the wit- 
 ness in the name of false Gods ? Why give a judicial sanction to super- 
 stition and idolatry, by invoking false Gods ; why not rather let testimony 
 be delivered under the pains and penalties of perjury, and let that suffice ? 
 
 Yet by the common law, the swearer by broken cups and saucers, or 
 he who thinks truth obligatory only as he has held the tail of the sacred 
 cow when the oath was administered, was heard, while the intelligent 
 and pious Quaker, who, in the simplicity of his heart, was so heretical 
 as to believe that the command " Swear not at all" meant what its obvi- 
 ous language imports, was excluded, because he believed the divinity of 
 the command he w^s anxious to obey. He was thus left without pro- 
 tection to his person or property, unless he should be able to find a witness 
 without the pale of his sect, by whom bis legal rights could be establisted. 
 
 By that patcliwork legislation, so eminently distinguishing all law re- 
 form, an act was passed, and the law so amended that a Quaker, when 
 property was endangered, was admitted to testify, — but in cases of pro- 
 perty alone, — his testimony not being admissible in criminal cases. In 
 this country, however, the legislature have removed the disqualification 
 entirely; the absurdity is, that it should ever have existed. 
 
 These limited reforms do not afi'ord a complete remedy for the evil. 
 The incorrectness of religious belief is not the ground of exclusion — for 
 if so, one would think Hindooism sufficiently erroneous for that purpose. 
 The theological jurist views with more complacency the worst forms of 
 Paganism than a questionable variety of Christianity or entire unbelief. 
 The only required qualification in his view, is belief in 2i future punish- 
 ment, of which, in every aspect, he must be unutterably ignorant. If, 
 believing the general doctrines of Christianity, he is so unfortunate as 
 to believe that the carSs, and sorrows, and misfortunes of this life are a 
 sufficient punishment for transgressions here committed, and that God, 
 in His infinite goodness and mercy, will hereafter receive all into a state 
 of happiness, the common law excludes his testimony.(A) The judicial 
 
 (A) The doctrine as now established in this country and in England, is, that if 
 a person believes in a God, the avenger of falsehood, in & future state of rewards 
 and punishments, he may be a witness and not otherwise." Per Daggett, J. in 
 Atwood v. Welton, 1 Conn. 66. But authorities on this question clash. ' In 
 Pennsylvania, it has been held that a belief in & future state of rewards and pun- 
 ishments is not essential to the competency of a witness. Nor is it a cause of ex- 
 clusion that he does not believe in the Inspired character of the Bible. The test 
 
 Mabch, 1859.— 19 
 
270 APPLETON ON RULES OF EVIDENCE. 
 
 dabbler in theology in tbis country, has generally followed the lead of 
 transatlantic jurisprudence. 
 
 But whether the Universalist be a witness or not, all authorities agree, 
 that he who disbelieves in the existence of God, who, in the darkness of 
 his beclouded reason, sees not God in the earth, teeming with its various 
 and innumerable forms of animal or vegetable life, sees him not in the 
 starry firmanent, — nor yot in the existence of man, the most wonderful 
 of his works, — is excluded. Atheism is always rare, yet we have, three 
 times in one county, known the attempt made to exclude for that cause. 
 The general bad character of the witness for truth and veracity, affords 
 no ground for exclusion, however much it may for disbelief in testimony; 
 but even if it did, it would not have been established in those cases. Er- 
 roneous belief was the only reason urged. The error of such belief, or 
 want of belief, may not merely be conceded — but the entertaining of 
 such sentiments may be deemed the misfortune of his life. But because 
 one of the securities for truth may be wanting, it is difficult to perceive 
 why, all others remaining in full force and vigor, the witness should not 
 be heard — and then after, not as the common law does, before such 
 hearing, some judgment formed by those who are to decide upon the 
 matter in dispute, of the truth or falsehood of his statements. He is 
 rejected only because he is believed. If he is to be believed, when the 
 truth uttered would expose him to reproach and ignominy, why not hear 
 him under more favorable circumstances, when the rights of others may 
 be involved, and then judge ? Exclude him, and any outrage may be 
 committed upon him — his property may be robbed — his wife may be 
 violated — his child may be murdered before his eyes, and the guilty go 
 unpunished, if he be the only witness; not because he cannot or will 
 not tell the truth, but because the law will not hear him. Practically 
 the law is, that provided a man's belief be erroneous, any body, whose 
 belief is better, and it matters little what it be, Hindooism or Eetichism, 
 may inflict any and all conceivable injuries on his person and property, 
 and the law will permit such a criminal to go unpunished, unless there 
 happens to be present some witness whose belief should square with the 
 judicial idea of competency. 
 
 Let the witness testify under the pains and penalties of perjury, and 
 the great argument for the wholesale exclusion of testimony by the law 
 is done away with. No intelligent judge or juryman ever relied upon 
 the security of an oath alone. Judge of the witness by his appearance, 
 manner, answers, the probability of his statements, comparing them with 
 the lights derivable from every source. Punish falsehood injuriously 
 affecting the rights of others, in proportion to the wrong done, not with 
 one uniform measure of punishment, as if the offence in all cases were 
 the same. Tolerate not two kinds of truth, the greater and lesser, else 
 both are lost. Elevate the standard of veracity, by requiring it on all 
 occasions, and in this way public morality is increased, and the real 
 securities upon which the social fabric rests are strengthened. 
 
 of competency is whether the witness believes in the existence of a God, who will 
 punish him if he swear falsely ; but whether the punishment will be temporary or 
 eternal, — in this world or in that to come, — is immaterial on the question of com- 
 petency. Blair v. Seaver, 2 Casey, 2Y4. Butts v. Swartwood, 2 Cow. 431. 
 
APPENDIX, 
 
 CONTAINING. THE LEGISLATION OF THE DIFFERENT STATES 
 IN RELATION TO THE LAW OP EVIDENCE. 
 
 Thinking it might not be without interest, a brief abstract of the 
 statutes of the several States on this subject is added. 
 
 The common law may be taken as the existent law of evidence, except 
 so far as the same may be modified by the statutory provisions of the 
 several States. Those modifications it was no part of the object of this 
 Treatise to discuss. But there will be found one class of exclusions, so 
 enormous in its extent and so disastrous in its results, that it absolutely 
 requires notice and consideration. I refer to the exclusions of the blacks 
 and those of mixed descent, whether bond or free, and of Indians; by 
 the former of which, in some of the States, the majority of the popula- 
 tion are deprived of all right to testify as against the dominant race ; by 
 the latter of which, the original occupants of the soil are denied by the 
 higher civilization, which has wrested from them their lands, even the 
 right to bear witness in the courts of, and against those who now possess 
 them. 
 
 The rightfulness of slavery — its patriarchal antiquity — its constitu- 
 tionality — its christian graces, and its moral beauties may, by way of 
 argument, be fully admitted; it may be conceded to be an institution 
 alike beneficial to master and slave — sanctioned and approved by the laws 
 of Grod and man — the first realization in practice of the golden rule — 
 " that all things whatsoever ye would that men should do to you, do ye 
 even so to them," — still the enormity of the exclusion only thereby be- 
 comes more strikingly apparent. 
 
 In some of the States, according to the existing statutory law, in all 
 
 cases between those of the dominant race, whether civil or criminal 
 
 between them and one of the degraded race, — whether relating to person 
 or property, — where the now excluded testimony exists, and is the only 
 attainable proof of the truth, the failure of justice is sure and unavoid- 
 able. By its admission, a chance for justice, greater or smaller, according 
 to the reliability of the evidence, -is obtained. Without it — it being the 
 only evidence — the means of correct decision are unattainable. 
 
 While this remains the law, any and all conceivable wrongs and in- 
 juries may be inflicted by any one of the dominant upon any one of the 
 servient blood — by the minority, it may be, upon the majority — and this 
 
272 APPLETON ON RULES OF EVIDENCE. 
 
 without fear of punishment, if those of the proscribed race only are pre- 
 sent. Those of African or Indian descent are thus without the protection 
 of the law, as against the whites. 
 
 The exclusion of witnesses, or absurd and illogical rules for the ascer- 
 tainment of facts, are unmistakable proofs of deficient civilization. Bar- 
 barous nations resort to the ordeal or to lot. They shut out witnesses 
 from some prejudice — because they are of a different religion or of differ- 
 ent complexion. The principle is the same in each case. They judge 
 of testimony by count, not by weight. As civilization advances, these 
 rude methods of investigation, one by one, pass away. The ordeals, 
 whether by fire or by water, like the oracles of the Pagan priesthood, 
 vanish into thin air. The sacred lot loses its significance. Witnesses 
 cease to be excluded. It is seen that the credit of witnesses can be more 
 satisfactorily determined after than before a hearing. All are received 
 as witnesses, and the various corroborating and discrediting circumstances 
 are weighed and considered. 
 
 Why then exclude the black man — whether free or slave ? Why ex- 
 clude the Indian ? Because of color ? Certainly not. Because of 
 deficient moral sense and probable falsehood ? Is he generally false and 
 mendacious ? Granted ; men do not lie without motive. It is a reason 
 in each instance, for more carefully scrutinizing his statements — for 
 guarding against too implicit credence. The common law receives the 
 liar, however notorious he may be, and permits the credit of his state- 
 ments to be impeached by the worthlessness of his character. The con- 
 victed perjurer is received in some of the States, and should be in all, 
 subject to the deductions necessarily incident to his conviction. 
 
 Will it be false ? No one can know in advance of its delivery. Will 
 it be true, who would shut out the truth ? 
 
 Is there reasonable ground of apprehension that this testimony, if false, 
 would receive undue credit ? Is not the danger rather that when it is 
 true, it may not have its just weight? One of the grounds of exclusion 
 is the fear, that being untrue, it will be acted upon as true. The ex- 
 istence of the present laws show how ill founded that fear. The argu- 
 ment runs thus : — The negro and the Indian are unworthy of credit — 
 all know this — yet for fear all will believe them, we will not permit them 
 to be heard. Hence, whole nations and races are branded in advance, 
 as liars, by statute, and are not even heard. 
 
 Revised Statutes of Maine, 1857, chap. 82. — Sect. 77. No person 
 shall be deemed an incompetent witness on account of his religious be- 
 lief, but shall be subject to the test of credibility ; and any person, who 
 does not believe in the existence of a Supreme Being, shall be permitted 
 to testify under solemn affirmation, and shall be subject to all the pains 
 and penalties of perjury. 
 
 Sect. 78. No person shall be excused or excluded from being a wit- 
 ness in any civil suit or proceeding at law, or in equity, by reason of his 
 interest in the event thereof, as party or otherwise, except as is herein- 
 after provided, but such interest maybe shown for the purpose of affect- 
 ing his credibility. 
 
APPENDIX. 273 
 
 Sect. 79. Parties shall not be witnesses in suits where the cause of 
 action implies an offence against the criminal law on the part of the de- 
 fendant, unless the defendant offers himself as a witness, and in that 
 case the plaintiff may be a witness, and such defendant shall be held to 
 waive his privilege of not testifying, where his testimony might criminate 
 himself. 
 
 Sect. 80. Nothing in section seventy-eight shall in any manner affect 
 the law relating to the attestation of the execution of last wills and 
 testaments, or of any other instrument, which by law is required to be 
 attested. 
 
 Sect. 81. Where a party to a suit resides without the State, or is absent 
 from the State during the pendency of the suit, and the opposite party 
 desires his testimony, a commission, under the rules of court, may issue 
 to take his deposition; and such non-resident or absent party, upon such 
 notice to him or his attorney of record in the suit, of the time and place 
 appointed for the taking his deposition, as the court orders, shall appear 
 and give his deposition. Tf he refuses, or unreasonably delays to do so, 
 he may be non-suited or defaulted by order of court, unless his attorney 
 will admit the affidavit of the party desiring his testimony, as to what the 
 absent party would say, if present, to be used as testimony in the case. 
 
 Sect. 82. When one of the plaintiffs or defendants is used as a 
 witness by the opposite party, testimony may be introduced by his co- 
 plaintiffs or co-defendants to contradict or discredit him, as if he was 
 not a party to the suit. 
 
 Sect. 83. The provisions of the five preceding sections shall not be 
 applied to any cases, where, at the time of taking testimony, or at the 
 time of trial, the party prosecuting or the party defending, or any one 
 of them, is an executor or an administrator, or made a party as heir of 
 a deceased party ; but the deposition of a party may be used at the 
 trial after his death i^ the opposite party is then alive ; and in that 
 case he may also testify. 
 
 Sect. 87. A person, to whom an oath is administered, shall hold up 
 his hand, unless he believes that an oath administered in that form is not 
 binding — and then it may be administered in a form believed by him to 
 be binding. One not believing the christian religion may be sworn 
 according to the ceremonies of his religion. 
 
 Sect. 88. Persons conscientiously scrupulous of taking an oath may 
 make affirmation as follows : "I do affirm under the pains and penalties 
 of perjury," which shall be deemed of the same force and effect as an oath. 
 
 Sect. 89. Persons convicted of an infamous crime, and sentenced in 
 this State, are not competent witnesses, unless restored by a pardon ; 
 and a conviction out of the State, of such crime, may be given in evi- 
 dence, to affect his credibility. 
 
 Acts of 1859, chap. 102. — Jn Act in relation to the competency of 
 witnesses. — Be it enacted hy the Senate' and House of Representatives 
 in Legislature assembled, as follows : — Sect. 1. In the trial of civil 
 causes, the husband and wife of either party shall be deemed competent 
 witnesses, when the wife is called to testify by or with the consent of 
 her husband, and the husband by or with the consent of his wife. 
 
274 APPLETON ON RULES OF EVIDENCE. 
 
 Chapter 104. — An Act relating to witnesses and evidence. — Be it en- 
 acted hy the Senate jxnd House of Representatives in Legislature assem- 
 bled, as follows : — No respondent in a criminal prosecution, or proceeding 
 at law, for libel, nuisance, siiwple assault, simple assault and battery, or 
 for the violation oi any municipal or police ordinance, oiFering himself as 
 a witness, shall be excluded from testifying, and all laws inconsistent 
 herewith are repealed. 
 
 New Hampshire, 1853. — No person believing in a Supreme Being is 
 incompetent on account of his opinions on matters of religion. * * * 
 Members of corporations can be witnesses in cases affecting the interest 
 of corporations. 
 
 Vermont, 1840. — Inhabitants of towns, &c., competent, where such 
 town is party or interested, unless otherwise disqualified. 
 
 Massachusetts, 1860. — "No person shall be excluded by reason of 
 crime or interest from giving evidence as a witness, either in person or 
 by deposition, in any proceeding, civil or criminal, in court or before a 
 person having authority to receive evidence. But the conviction of any 
 crime may be shown, to affect the credibility of any person testifying. 
 
 " Parties in civil actions and proceedings, including probate and insol- 
 vency proceedings, suits in equity, and divorce suits, (except those in 
 which divorce is sought on the ground of alleged criminal conduct of 
 either party,) shall be admitted as competent witnesses for themselves or 
 any other party ; and in any such case in which the wife is a party, or 
 one of the parties, she and her husband shall be competent witnesses 
 for or against each other ; but they shall not be allowed to testify as to 
 private conversations with each other : Provided, That where one of the 
 original parties to the contract or cause of action in issue and on trial, is 
 dead, or is shown to the court to be insane ; or when an executor or ad- 
 ministrator is a party, the other party shall not be admitted to testify in 
 his own favor, except in the last named case, as to such acts and contracts 
 as have been done or made since the probate of the will, or the appoint- 
 ment of the administrator." 
 
 Rhode Island, 1857. — Witnesses are not excluded by reason of incapa- 
 city from interest. Parties to civil suits may testify, and may be com- 
 pelled to attend, as other witnesses : Provided, in suits where adminis- 
 trators and executors are parties, the other party may be called, but he 
 cannot offer himself. Husband and wife are not compelled to testify for 
 or against each other. 
 
 Connecticut, 1849. — Persons believing in a Supreme Being are not 
 incompetent, because of religious opinions. (Chap. 10, § 140.) No 
 person is disqualified by interest, as party or otherwise; or by reason of 
 conviction of a crime ; (the same may be shown to affect his credit.) 
 Sec. 141. The adverse party may be compelled to testify, or one having 
 an adverse interest. (See 4 Day, 51 ; 7 C. R. 66.) 
 
 New York, 1852. — Witnesses are not incompetent because of religious 
 belief; nor excluded by reason of their interest in the event of the action. 
 (This is not to apply to a party to the action; 7 Barb. 120; 2 San. 
 680, 732.) Persons convicted of perjury, or subornation of perjury, are 
 excluded till the judgment is reversed. Persons sentenced upon a con- 
 
APPENDIX. 275 
 
 viotion of felony are incompetent. Conviction of other offences not to 
 disqualify. Offenders in duelling competent, and may be compelled to 
 testify; (but such testimony cannot be used against 'witnesses.) Impri- 
 soned convicts are competent, respecting offences in prisons. Ministers 
 and priests not to disclose confessions made under rules of their denom- 
 ination. Physicians not to disclose information acquired in their profes- 
 sional capacity ; (4 Paige, 460; 14 Wend. 637 ; 21 Wend. 79.) Members 
 of corporations, not named in the record as a party, are competent to 
 testify against the interest of such corporation. Creditors are competent 
 witnesses to a will, and admitted to prove the same. 
 
 New Jersey, 1847. — P.ersons convicted of (enormous) crimes, and of 
 larceny above six dollars, are not admitted as witnesses, unless pardoned. 
 Persons convicted of perjury, or subornation of perjury, not admitted, 
 even if pardoned. In action brought against collectors, sheriffs, &c., for 
 money not paid over, inhabitants may testify, " notwithstanding their 
 liability to taxation, or being interested." The person whose name is 
 forged is competent, on the trial of an indictment for the forgery. 
 
 Pennsylvania, 1857. — Inhabitants of school districts are competent, 
 when the school district, or an officer thereof, is party ; also, generally, 
 persons are competent, even if the result may increase taxes or diminish 
 the same. The prosecutor on indictment is competent, and the owner 
 of stolen goods, &c. 
 
 Maryland, 1840. — No prisoner convicted or attainted of perjury, or 
 subornation of perjury, is received as a witness, until the judgment is re- 
 versed. In criminal prosecutions, the testimony of slaves, &o., is received 
 for or against slaves, &c. 
 
 North Carolina, 1837. — The testimony of colored persons is inad- 
 missible against white persons ; but it is admissible against each other. 
 
 Georgia, 1851 Crrand jurors are competent to give an account of 
 
 evidence delivered before them as a body. No one is disqualified as a 
 witness, by reason of any religious opinions such person may entertain or 
 express; (yet his belief may go to the jury to affect his credit.) 
 
 No attorney is allowed to give testimony of any matter, either for or 
 against his client, the knowledge of which he obtained by means of their 
 relationship. 
 
 The prosecutor may be a witness. Convicts are competent, on trials for 
 the escape or mutiny of fellow prisoners; (infamy of character or crime, 
 shall be exceptions to their credit only.) Legatees are competent wit- 
 nesses to a will, but the legacies are void. Creditors allowed to testify 
 in proof of will, and their interest only affects their credit.- 
 
 Alabama, 1852. — Sect. 2302. No objection must be allowed to the 
 competency of a witness, * * * because ha has been rendered in- 
 famous by a conviction for any crime, (except perjury, or subornation of 
 perjury,) or because he is interested in the event of the suit, or liable 
 for costs, unless the verdict and judgment would be evidence for him in 
 another suit; but such objection goes only to his credit. 
 
 Sect. 2276. Negroes, mulattoes, Indians, and all persons of nixed 
 blood, descended from negro or Indian ancestors, to the thij-d generation 
 included, though one ancestor of each generation may have been a white 
 
276 APPLBTON ON RULES OF EVIDENCE. 
 
 ■person, whether bond or free, cannot be a witness in any cause, civil or 
 criminal, except for_or against each other. 
 
 Arkansas, 1858. — Constitution, article 7, sect. 3. No person who 
 denies the being of a God, shall hold any office in the civil department 
 of this State, nor be allowed his oath in any court. 
 
 No minister or priest is permitted to testify as to confessions made to 
 him, in accordance with the rules of his denomination. 
 
 Physicians and surgeons are not to testify as to disclosures of patients. 
 (Sect. 22, chap. 181, Eevised Stats.) 
 
 No attorney or counsellor at law shall be required or allowed to testify 
 in relation to facts communicated to him by his client, in his professional 
 character. (Revised Stats., chap. 181, sect. 23.) 
 
 All persons believing the existence of a God, may be sworn, if other- 
 wise competent. (Revised Stats., chap. 120, sect. 6.) Sect. 7. And he 
 cannot be required to declare his belief or unbelief; but the same may 
 be proved by other competent testimony. 
 
 The mother is competent in case of bastardy, (except otherwise incom- 
 petent.) 
 
 Persons engaged in duelling are competent witnesses against others. 
 
 The printer or publisher, in case of libel, is competent against the 
 writer of the publication ; (but such testimony cannot be received against 
 such witness on his trial.) 
 
 The witness in any cause must answer, though such answer will sub- 
 ject him to a civil suit. 
 
 Negroes and mulattoes are only competent as witnesses in cases where 
 negroes or mulattoes are parties. 
 
 Persons detained in prison may be brought out to testify, on writ of 
 habeas corpus, except where such persons may be imprisoned under a 
 sentence which renders him incompetent to testify in any case. (But 
 quaere, what crimes make him incompetent ?) 
 
 Texas, 1850. — Inhabitants of a county are not incompetent, when 
 county is a party. 
 
 Kentucky, 1852. — The mother of the child and the party accused, 
 may be witnesses in bastardy cases, if otherwise competent. 
 
 Persons killing ravenous, mischievous dogs, going* at large, may be 
 competent witnesses to make out their justification for doing so. 
 
 A witness in a prosecution for gaming is not excused from testifying 
 on the ground of criminating himself; yet he is discharged from liability 
 therefor. 
 
 Slaves, negroes, and Indians, are not competent, except where they 
 are parties, or the State may be. Indians, however, speaking the Eng- 
 lish language, and understanding an oath, are competent. No person 
 is incompetent because liable to be assessed for levies for counties, 
 towns, &c. No person incompetent because liable for costs, in com- 
 mon with others assessed for levies. 
 
 '< In suits at law, either party, at the instance of his adversary, may be 
 compelled to give evidence upon the trial." 
 
 A fiduciary may be a witness when he has no personal interest from 
 being a party to the case, or being liable for costs. 
 
 No person convicted of felony is competent, unless pardoned ; nor is 
 
APPENDIX. 277 
 
 one convicted of perjury, or subornation of perjury, competent, even if 
 pardoned. 
 
 Wisconsin, 1858. — Inhabitants of a county competent, when the county 
 is interested. 
 
 The mother of a bastard child is competent, unless otherwise incom- 
 petent. 
 
 Members of corporations are competent, where the corporation is in- 
 terested. 
 
 No person is disqualified by reason of his interest in the event of the 
 suit, as party or otherwise, (excepting in certain suits of administrators, 
 assignees, &c.,) but their interest may go to affect their credit. 
 
 Notice must be given that the opposite party is to testify. 
 
 Party to an action may be compelled to testify by the adverse party. 
 
 Party thus testifying may testify in his own behalf; if he testify to 
 new matter, not responsive to the questions of the adverse party, the 
 adverse party may be a witness respecting such matters. 
 
 "No person shall be deemed an incompetent witness by reason of 
 having committed any crime, unless he has been convicted thereof." 
 
 Physicians cannot be compelled to disclose information acquired in 
 their professional character. 
 
 Witness not excused because his testimony will show him liable for a 
 certain debt. 
 
 Illinois, 1856. — In criminal cases, the party injured may testify, 
 unless rendered incompetent by infamy, or otherwise than by interest ; 
 yet his credibility is left to the jury. 
 
 No black or mulatto person shall be a witness against any white per- 
 son whatsoever. 
 
 Indiana, 1852. — Persons are not incapacitated by reason of crime or 
 interest. But this shall not render competent a party to an action, or 
 the person for whose use it is brought, or the husband or wife of any 
 such party. 
 
 Children under ten years of age pronounced to be incompetent ; if 
 over ten, pronounced to be competent. Persons of unsound mind at the 
 time of being produced are incompetent; but the court may examine 
 persons of tender age and of alleged unsound mind, and decide upon 
 their competency. • 
 
 Husband and wife are incompetent witnesses for or against each other, 
 and they cannot disclose any communication made from one to the other 
 during the existence of the marriage relation, whether called as a wit- 
 ness while the relation exists, or afterwards. 
 
 No attorney, physician, surgeon, clergyman, or priest, shall be allowed, 
 in giving testimony, to disclose any communication entrusted to him in 
 his professional capacity, and necessary to the discharge of his duties, 
 except with the consent of the party. 
 
 No want of belief in a Supreme Being, or in the christian religion, 
 shall render a witness incompetent ; but the want of such religious belief 
 may be shown on the trial ; and in all questions affecting the credibility 
 of a witness, his general moral character may be given in evidence. 
 
 The party to an action may be examined at the instance of the ad- 
 verse party. 
 
278 APPLETON ON RULES OF EVIDENCE. 
 
 Ohio, 1854. — No person shall be disqualified as a witness, in any 
 case, action, or proceeding, by reason of his interest in the event of the 
 same, as a party or otherwise, or by reason of his conviction of a crime ; 
 but such interest or conviction may be shown to affect his credibility. 
 
 Any party may compel the adverse party to testify. 
 
 No party shall testify where the adverse party is executor or adminis- 
 trator of any person, when the facts to be proved occurred before the 
 death of such person ; nor shall he testify, unless he gives notice of 
 such intention to the adverse party, his agent or attorney. 
 
 The following are incompetent : — persons of unsound mind ; children 
 under ten, who appear incapable of receiving facts and relating them truly; 
 husband and wife, for or against each other ; attorneys, in their profes- 
 sional capacity, except with their client's consent ; clergymen and priests, 
 without such consent. 
 
 California, 1853 No person is excluded by reason of his interest, or 
 
 on account of opinions on matters of religious belief; but this shall not 
 apply to parties to an action, nor to the person for whose immediate benefit 
 a suit exists. A party to a suit may be examined, at the instance of an 
 adverse party, and his examination rebutted by adverse testimony. A 
 party examined by the adverse party, may be examined on his own be- 
 half, in respect to matter pertinent to the issue ; but if he testify to 
 new matter, such adverse party may offer himself as a witness in his own 
 behalf, relating to such new matter. 
 
 A party maybe examined on the partof his co-plaintiff or a co-defendant. 
 
 The following cannot be witnesses : — persons of unsound mind; chil- 
 dren under ten, who appear incapable of understanding facts and relating 
 them ; Indians, against white parties ; negroes, against white persons ; 
 husband and wife, for or against each other, (this does not apply to an 
 action by one against the other;) attorneys, without consent of the client; 
 physicians, without the consent of the patient; priests and clergymen,, 
 without the consent of those confessing. 
 
 A judge or juror may be called as a witness by either party. 
 
 New York. — Code of Procedure, 1848. — Chap. 6. — Sect. 344. — 
 A party to an action maybe examined as a witness at the instance of the 
 adverse party, or any one of several adverse parties, and for that purpose 
 may be compelled in the same manner, and subject to the same rules of 
 examination as any other witness, to testify either at the trial, or condi- 
 tionally, or upon commission. 
 
 Sect. 345. The examination, instead of being had as provided in the 
 last section, may be had at any time before the trial, at the option of the 
 party claiming it, before a judge of the court or a county judge, on a pre- 
 vious notice to the party to be examined, and any other adverse party, of at 
 least five days ; unless, for good cause shown, the judge order otherwise. 
 
 But the party to be examined, shall not be compelled to attend in any 
 other county than that of his residence, or where he may be served with 
 a summons for his attendance. 
 
 Sect. 346. The party to be examined, as in the last section provided, 
 may be compelled to attend, in the same manner as a witness who is to 
 be examined conditionally ; and the examination shall be taken and filed 
 in like manner, and may be read by either party on the trial. 
 
APPENDIX. 279 
 
 Sect. 347. If a party refuse to attend and testify, as in the last three 
 sections provided, besides being punished himself as for a contempt, his 
 complaint, answer, or reply, may be rejected. 
 
 Sect. 348. The examination of the party, may be rebutted by adverse 
 testimony. 
 
 Sect. 349. A party examined by an adverse party, as in this chapter 
 provided, may be examined on his own behalf, in respect to any matter 
 pertinent to the issue. But if he testify to any new matter, not respon- 
 sive to the inquiries put to him by the adverse party, such adverse party 
 may offer himself as a witness on his own behalf in respect to the new 
 matter, and shall be so received. 
 
 Sect. 350. — A person for whose immediate benefit the action is pro- 
 secuted or defended, though not a party to the action, may be examined 
 as a witness, in the same manner, and subject to the same rules of exam- 
 ination, as if he were named as a party. 
 
 Chapter 7. — Sect. 351. No person offered as a witness shall be ex- 
 cluded, by reason of his interest in the event of the action. 
 
 Sect. 352. The last section shall not apply to a party to the action, 
 nor to any person for whose immediate benefit it is prosecuted or defended, 
 nor to any assignor of a thing in action, assigned for the purpose of mak- 
 ing him a witness. 
 
 Sect. 353. No person residing more than one hundred miles from the 
 place of examination, shall be obliged to attend as a witness before any 
 court or judge, except as provided in section 355. 
 
 Sect. 354. Whenever either party desires the examination of a wit- 
 ness, who shall reside more than one hundred miles from the place where 
 the trial or hearing is to be had, he may apply to a judge of the court 
 for an order to examine such witness. Whereupon the judge, on due 
 proof, to his satisfaction, of the materiality of the witness, may make att 
 order for his examination, at a specified time and place, before the county 
 judge of the county where the examination is to be had, or before a jus- 
 tice of the peace or referee residing therein, to be designated by the 
 judge making the order. 
 
 Sect. 355. A copy of such order shall be forthwith served on the 
 adverse party, and notice of the time and place of examination given 
 according to the provisions of section 374. 
 
 The examination may thereupon be taken by such county judge, jus- 
 tice of the peace, or referee ; and being certified by him to have been 
 written and subscribed in his presence, and sworn to before him, and 
 being filed with the clerk, may be read by either party on any trial or 
 proceeding in the action, if the witness be dead, or do not reside within 
 one hundred miles of the place of trial, or be unable to attend. But the 
 court may, on special application, order either party to produce his wit- 
 nesses, and any such witness to attend in open court, though residing more 
 than one hundred miles from the place of trial ; and after such order is 
 made, the written deposition of any witness so ordered to be produced 
 shall not be read. 
 
 Sect. 356. If any witness served with such order, or an order for his 
 examination out of court, disobey it, he may be punished by the court 
 or judge as for a contempt, and shall be liable to all the penalties to 
 
280 APPLETON ON RULES OF EVIDENCE. 
 
 whioK a witness is liable, who is duly served with process for his attend- 
 ance at court, and neglects to attend. 
 
 Laws of New Tork,\9,bQ. — Passec? 4pnn 6, 1859.— Sect. 9.— Sec- 
 tion three hundred and ninety-nine of the Code of Procedure, as here- 
 tofore amended, is hereby amended so as to read as follows : 
 
 Sect. 399. A party to an action or proceeding may be examined as a 
 witness in his own behalf the same as any other witness, but such exam- 
 ination shall not be had, nor shall any other person, for whose immediate 
 benefit the same is prosecuted or defended, be so examined unless the 
 adverse party or person in interest is living, nor when the opposite party 
 shall be the assignee, administrator, executor, or legal representative of 
 a deceased person. And when in any action or proceeding the opposite 
 party shall reside out of the jurisdiction of the court, such party may be 
 examined by commission issued and executed as now provided by law ; 
 and whenever a party or person in interest has been examined under the 
 provisions of this section, the other party or person in interest may offer 
 himself as a witness in his own behalf, and shall be so received. 
 
 When an assignor of a thing in action or contract is examined as a 
 witness on behalf of any person deriving title through or from him, the 
 adverse party may offer himself as a witness to the same matter in his 
 own behalf, and shall be so received, and to any matter that will dis- 
 charge him from any liability that the testimony of the assignor tends to 
 render him liable for ; but such assignor shall not be admitted to be ex- 
 amined in behalf of any person deriving title through or from him against 
 an assignee, or an executor, or administrator, unless the other party to 
 such contract or thing in action whom the defendant or plaintiff repre- 
 sents is living, and his testimony can be procured for such examination, 
 nor unless at least ten days' notice of such intended examination of the 
 assignor shall be given in writing to the adverse party. 
 
 It will thus be perceived, that by the common law and the statutory en- 
 actments of some of the several States, persons of defective religious 
 belief, those who are infamous by reason of conviction, the parties to a 
 suit and those interested in its event, husband and wife, persons of 
 unsound mind, children under the age of ten years, negroes, mulattoes, 
 Indians and all persons of mixed blood descended from negro or Indian 
 ancestors to the third generation, though one ancestor of each generation 
 may have been a white person, whether bond or free, cannot be wit- 
 nesses. Neither shall an attorney, physician, surgeon, clergyman or 
 priest, be permitted to disclose any communications entrusted to them 
 professionally, except with the consent of the party so entrusting, while 
 of those admitted to testify no question can be asked, the answer to 
 which would in the opinion of the witness tend to expose him to penalty, 
 forfeiture or punishment, or perhaps even to disgrace. 
 
 The aggregate of these exclusions, compare in extent and vie in absurd- 
 ity with the capricious laws of the Siamese. (Ante, p. 20.) 
 
 Note. — The above is a brief abstract of the legislation of several of the States as 
 to the admission of proof There may be inaccuracies. But whether literally 
 exact or not, it sufficiently indicates the variations from the common law, and 
 shows the necessity of further reform. 
 
INDEX. 
 
 ABDUCTION, 
 rule that wife is competent to prove, 
 155. 
 ACCOMPLICES, 
 when admissible as witnesses, 39. 
 reasons why they should be admit- 
 ted as witnesses, 136-140. 
 when admitted, 136. 
 ADMISSIONS. 8eeConfessions,113. 
 ADULTERY, 
 not to be proved by husband or wife, 
 
 153. 
 Mahometan law requires four wit- 
 nesses to prove, 152, 248. 
 AFFIDAVITS. 
 
 objections to, as evidence, 221. 
 atheist allowed to make, 28. 
 persons infamous allowed to make, 
 
 38. 
 parties allowed to make, 80. 
 ANSWER, 
 in chancery, 103. 
 what evidence required to disprove, 
 
 104. 
 this rule examined, and inconsisten- 
 cies of shown, 104, 110, 239. 
 ATHEIST, 
 reasons for excluding as witness 
 examined, 23. 
 fear of Divine punishment, 24. 
 mode of ascertaining whether wit- 
 ness is, 25. 
 by examination in court, 26. 
 by statements made out of court, 
 27. 
 presumption that he would swear 
 
 falsely, wrong, 28. 
 can make affidavits, 28. 
 exclusion of in criminal cases, 28, 
 29. 
 ATTORNEY AND CLIENT. 
 
 communications of client to attorney 
 excluded, 156. ■ 
 
 reasons of this rule, 156. 
 
 character of oath taken by attorney, 
 156. 
 
 attorney consulted as to fraudulent 
 transactions, exempt, 157. 
 
 reasons for the rule of exclusion, 
 158, 162. 
 
 same reasons should exclude com- 
 munications to friend, clergyman, 
 and physician, 163. 
 
 consequences if this rule of evidence 
 were changed, 166. 
 
 evils of the rule, 167, 168. 
 
 BIRTH. 
 
 proof of time and place of, 208, 209. 
 
 inconsistency of law in regard to 
 
 proof of time and place of, 209. 
 
 CHANCERY. See Uquity. 
 CONFESSIONS. 
 
 reasons for admittingasevidence,173 
 
 judicial, 175. 
 
 rule of civil law in regard to, 175. 
 rule of German law, 176. 
 
 extra-judicial, 175. 
 
 are indistinct, incomplete evi- 
 dence, 175. 
 
 testimony of party should be re- 
 ceived to explain, 180, 181. 
 
 extra-judicial considered sufficient 
 proof, 182. 
 not in civil law, 182. 
 
 when parties, plaintiffs or defend- 
 ants, are numerous, 182. 
 
 when not admissible, 183. 
 
 must be free and voluntary, 184. 
 
 fear or hope induces every confes- 
 sion, 184. 
 _ some cases examined, 185. 
 
 whether induced by fear or hope, 
 should be a qufestion of fact, 187. 
 
 excluded in criminal cases, admitted 
 in civil, 188. 
 
282 
 
 APPLETON ON RULES OF EVIDENCE. 
 
 CONFESSIONS, continued. 
 inconsistency of this rule, 188. 
 Mahometan law in regard to, 188. 
 CREDIT OF WITNESSES. 
 
 no general rule can be established 
 in advance, to pre-determine the 
 degree of credit to be given to 
 every witness, 11. 
 See Witnesses. 
 CRIMINAL CASES. 
 
 reasons why accused should be wit- 
 ness in, 123. 
 See Witnesses and Parties. 
 
 DECLARATIONS. See Admissions 
 
 and Hearsay. 
 DEPOSITIONS. 
 
 taken in other cases, should be re- 
 ceived, 210, 214, and notes. 
 DISCOVERY, BILL OF, 111. 
 
 EQUITY, 
 rules of evidence in proceedings in, 
 
 examined, 98. 
 plaintiff's bill not received as evi- 
 dence, 98. 
 this rule examined, 99. 
 exception to rule, 99. 
 when cross bill is brought, 100. 
 answer in equity, 103. 
 rule requiring two witnesses to dis- 
 prove, examined, 104-110, 239. 
 t answer not proof of everything stated 
 
 therein, 110. 
 inconsistency of this rule, 112. 
 answer, when received in common 
 
 law courts, 114. 
 when co-defendant can be witness, 
 
 116. 
 difference between rules of evidence 
 
 in equity and at common law, 
 
 118. 
 EVIDENCE, 
 importance of rules of, 9. 
 absence of rules of, in early state of 
 
 law, 9. 
 rules of common law, 10. 
 sources of, 11. 
 arguments for exclusion of, stated, 
 
 13, 14. 
 rules of, in ordinary affairs of life, 
 
 15. 
 rules of, among other nations, Jews, 
 
 Romans, &c., 17, 18. 
 EXAMINATION OP WITNESSES. 
 
 See Witnesses. 
 at common law, 216. 
 in eqnity, 228. 
 EXCLUSION OF WITNESSES, 
 rules of different codes in regard to, 
 
 171, l'?2. 
 
 HEARSAY, 
 what it is, 173, 189. 
 declarations of witness, when dead, 
 
 190. 
 reasons for excluding, considered, 
 
 191. 
 inherent defects, 192. 
 declarations of deceased should be , 
 
 presumed true, 196. 
 presumption against any fraud, 197. 
 character of tribunal, to decide upon, 
 198. 
 
 this reason examined, 198-201. 
 exceptions to rule excluding declara- 
 tions, 202. 
 dying declarations, 202. 
 reasons for restricting admission of, 
 
 examined, 204. 
 pedigree, marriages, births, deaths, 
 
 &c., 206. 
 inconsistencies of rules making these 
 
 exceptions, 208. 
 entries and admissions against in- 
 terest, 211. 
 hearsay statements of tenant, 212. 
 depositions in other oases, 214. 
 ancient facts, custom, reputation, 
 
 215. 
 declarations ante litem motam and 
 
 post litem, 309. 
 reasons for this distinction examined, 
 
 209, 210. 
 when lis mota is unknown to de- 
 ceased witness, 210. 
 HUSBAND AND WIFE, 
 reasons for excluding as witnesses, 
 for or against each other, 145. 
 
 on account of union of persons, 
 145. ♦ 
 
 on account of poMcy, 146. 
 
 on account of violation of confi- 
 dence, 148. 
 reasons why they should be admit- 
 ted, 147. 
 incompetent after divorce to testify 
 
 to occurences during marriage, 
 
 150. 
 reasons of this rule examined, 151. 
 not competent to prove adultery, 153. 
 when legitimacy of issue is to be 
 
 proved, 153, 154. 
 in cases of forcible abduction by 
 
 husband, 155. 
 
 INCOMPETENCY. See Witnesses. 
 INDIANS. 
 
 reasons for excluding, considered, 
 271. 
 
 should be witnesses, 272, 
 INFAMY. 
 
 renders witness incompetent, 30. 
 
INDEX. 
 
 283 
 
 INFAMY, continued. 
 
 reasons of this rule examined, 31, 32. 
 
 evils of the rule, 30, 34, 36. 
 
 disability, how removed, 35. 
 
 by pardon, 36, 3Y. 
 
 exceptions to rule, 38. 
 
 case of accomplice, 39, 40. 
 
 case of one convicted under foreign 
 jurisdiction, 40. 
 INTEREST. 
 
 rule excluding witness on account 
 of, 41. 
 
 reasons of this rule examined, 42. 
 
 Starkie's reasons considered, 49. 
 
 must be certain, 51. 
 
 example of father and son, 51. 
 
 case of subsequent interest, 53, 
 
 case of informers, 53. 
 
 in record and exceptions, 54. 
 
 agent and servant, 54. 
 
 accessary, when excluded, and rea- 
 son of, examined, 55. 
 
 modes of discovery, 56. 
 by voir dire, 57. 
 statements out of court, 57. 
 
 restoration of witness excluded on 
 account of, 58. 
 by release, 58, 59. 
 
 JEWS, 
 rules of exclusion of witness 
 
 among, 19. 
 judicial oaths among, 255. 
 
 LEADING QUESTIONS, 227. 
 LIS MOTA. See Hearsay, 209,210. 
 
 MARRIAGE.* See Hearsay. 
 
 NEGROES. 
 
 should be received to testify, 271. 
 NOLLE PROSBQUL 
 
 effect of, to make accomplice com- 
 petent, 140. 
 
 OATHS, JUDICIAL, 
 antiquity of use of, 255. 
 among Jews, 255. 
 among Greeks and Romans, 256. 
 by civil law, 257. 
 by laws of Menu, 257. 
 of Burmese, 259. 
 of Anglo-Saxons, 259. 
 among Chinese no oath exacted, 
 
 260. 
 nor in Tahiti, 260. 
 punishment for violation of, among 
 
 Hindoos, &c., 260. 
 nature of, 262. 
 evils of use of, 265. 
 violation of, 266. 
 
 judicial report in affairs of East 
 India Company in regard to viola- 
 tion of, 267. 
 
 exclusion caused by use of, 268. 
 
 PARDON. 
 its. effect to restore competency, 36, 
 37, 138. 
 PARTIES. 
 
 incompetency as witnesses, 61. 
 reasons why they are excluded ex- 
 amined, 62-65. 
 interest of, makes more careful ob- 
 servers, &c., 63. 
 arguments for excluding considered, 
 
 65-68. 
 motives for parties to testify truly, 
 
 68. 
 when competent as witnesses, 74. 
 in initiatory proceedings, 75, 
 in- continuances, 76. 
 in proving loss of papers, 78. 
 in affidavits, 80. 
 from necessity, 81. 
 statutory exceptions to exclusion of, 
 considered, 84. 
 under usury and gaming acts, 84. 
 under bastardy act, 87. 
 co-plaintiff and co-defendant, when 
 
 admitted, 88. 
 admission of, in courts of equity, 93, 
 admission of, in criminal procedure, 
 
 119. 
 prosecutor admitted, 120. 
 reasons why, 122-124. 
 reasons why accused should be wit- 
 ness, 123. 
 only objection would be from the 
 
 guilty, 129. 
 present rule screens the guilty and 
 
 injures the innocent, 134. ' 
 
 exception to rule of exclusion df, 
 considered, 142. 
 in trials by information, 142. ^ 
 in attachments for contempt, 143. 
 PEDIGREE. See Hearsay. 
 PERJURY. 
 
 for the king, not punishable, 56, 
 
 note (o). 
 not an offence against law, by Mosaic 
 
 law, 255. 
 punishment for, by laws of Menu, 
 258. 
 among other nations, 260. 
 PRIVILEGED COMMUNICA- 
 TIONS. See Attorney and Client. 
 QUAKERS. 
 
 afiSrmation by, 269. 
 
 RELIGIOUS BELIEF. See Atheist. 
 incompetency from defect of, 21-28. 
 
284 
 
 APPLBTON ON RULES OF EVIDENCE. 
 
 RELIGIOUS BELIEF, continued. 
 degree of, required in witness, 22. 
 
 SLAVES. 
 
 should be witnesses, 271, 
 
 consequences of their exclusion, 
 271. 
 STATUTORY EXCLUSIONS OP 
 TESTIMONY IN THE SEVE- 
 RAL STATES. 
 
 Maine, 272. 
 
 New Hampshire, 274. 
 
 Vermont, 274. 
 
 Massachusetts, 274. 
 
 Rhode Island, 274. 
 
 Connecticut, 274. 
 
 New York, 274, 278. 
 
 New Jersey, 275. 
 
 Pennsylvania, 275. 
 
 Maryland, 275. 
 
 North Carolina, 275. 
 
 Georgia, 275. 
 
 Alabama, 275. 
 
 Arkansas, 276. 
 
 Texas, 276. 
 
 Kentucky, 276. 
 
 Wisconsin, 277. 
 
 Illinois, 277. 
 
 Indiana, 277. 
 
 Ohio, 278. 
 
 California, 278. 
 
 TRIAL BY BATTLE, 19. 
 
 VOIR DIRE, 57. 
 
 WITNESSES. 
 
 exclusion from defect of religious 
 belief, 21-29. 
 
 exclusion from infamy, 30-40. 
 
 exclusion on account of interest, 41- 
 60. 
 
 exclusion of parties, 60. 
 
 examination of, at common law, 216. 
 
 oral examination, most effective and 
 perfect, 219. 
 
 rule that one cannot impeach his 
 own witness, 223. 
 
 exceptions to this rule, 226. 
 
 leading questions, 227. 
 
 examination of, in equity. 
 
 by answer of defendant, 228-231. 
 rule requiring more than one wit- 
 ness, considered, 229. 
 by written testimony of witnesses, 
 
 232. 
 objections to written testimony, 
 234. ^ 
 
 when court directs issue to be tried 
 by jury, 237. 
 
 when their verdict can be set aside 
 by judge, 240. 
 
 inconsistency of rules of evidence in 
 equity, 243. 
 
 rule that witnesses are not compel- 
 led to answer, because it would 
 expose to penalty, or forfeiture, 
 245. 
 
 constitution does not protect from 
 answering, 246. 
 
 reasons why this rule should be 
 
 abolished, 247. 
 when it exposes him to loss in civil 
 
 action, 249. 
 defendant in equity, when not com- 
 pelled to answer, 251. 
 is made his own judge, as to crimi- 
 nality, 252. 
 
KP 8935 
 
 A86 
 
 
 Author 
 
 Appleton, John 
 
 Vol. 
 
 Title 
 
 The Rules of Evidence 
 
 Copy 
 
 
 
 Date 
 
 Borrower's Name