« PrécédentContinuer »
ding remarks, ‘Certainly he ought, for he is pastor of the flock, and he would neglect liis duty were he to be absent, and consequently not know on what law or evidence the judgment is rendered.'” What follows from the text of Bishop Baker shows the unsoundness of this position, though it does not seein to be so intended. He says: “ The preacher under no circumstances should attempt to balance the evidence, weigh the probabilities, determine the credibility of witnesses, or draw inferences from the facts proved, and thus determine disputed questions of fact, even at the request of the parties.” He has no right, then, to be present during the deliberations of the “ select number.” The reason given by Bishop Hedding is certainly a strange one; as if the preacher is to “know on what law or evidence the judgment is rendered” by listening to the discussions of the committee after the case is given to them! The judge who, after charging the jury in court, should retire with them to their room to coach them into a proper verdict, or to overhear their conference so as to ascertain on what the verdict is founded, would probably soon find his way before a court of impeachment. The triers of the facts are entitled to consult in secret, and the question is, Whether their findings are sustained by the evidence as given on the trial, and the known law of the case. Even if the preacher had the power, like a judge in a civil court, to set aside the findings, (which he has not,) it would be bis duty to test them by the record and not by the conversations of the committee room. If it should be said that it is his duty to see that the findings are in due form, the obvious answer is, that when the committee return the findings to him any informality or insufficiency can be remedied before they separate. It not unfrequently happens that a jury come into court with a verdict in improper forin, and the correction is made on the spot, and their assent taken to the same.
Let us now turn to one or two branches of the law of evidence on which the text of the book before us seems to be behind the age. The author says, (p. 129,) “The rule, as we have seen, which excludes parties from being witnesses for themselves, applies to the case of husband and wife, neither of them being admissible as a witness in a case, civil or criminal, and where, by law, the other would be incompetent.” That this was a
rule firmly grounded in the common law is indisputable; and it is just as clear that the drift of modern judicial legislation is toward the free examination of parties, and also the admission of the husband or wife of a party to testify, under certain restrictions, grounded in public policy. The copious notes on this chapter show this in part, but the text adheres to the old rule. We think the more liberal rules now prevailing to a great extent are the more enlightened, and that the ecclesiastical courts should adopt the improvements which the municipal laws have inangurated. The exclusion of parties proceeded upon the theory that the man who had a direct interest in the event of a suit was not to be relied upon to tell the truth even under oath. This principle also shut out persons, not parties, who could be shown to have a pecuniary interest in the result, to the amount of a sixpence. In short, the minutest interest raised a presumption of perjury. And 80, when a jury was solemnly impaneled to well and truly try, and a true verdict give, upon some important question of fact, the law studiously stopped the mouths of the very persons who could tell them most about the subject in hand, and oftentimes the only persons who had any positive knowledge of the matter. As early as 1824 Lord Denman thus exhibited the hardship, not to say absurdity, of the rule then in force :
In other cases the absolute rejection of light because there is a possibility of its leading astray, is difficult to be explained on rational grounds. Take, as example, the case of forgery. Unless the crime has been committed in the presence of witnesses, it can only be proved in the proper sense of the word) by the individual whose name is said to have been forged; yet that person is the only person whom the law of England prohibits from proving the facts. The trial proceeds in the presence of the person whose name is said to have been forged, who alone knows the fact, and has no motive for misrepresenting it. His statement would at once convict the prisoner if guilty, or, if innocent, relieve him from the charge; and he is condemned to sit by, hearing the case imperfectly pieced out by the opinions and surmises of other persons on the speculative question whether or not the handwriting is his. And this speculation, incapable under any circumstances of satisfying a reasonable mind, decides upon ibe life of a fellow-citizen, in a system which habitually boasts of requiring always the very best evidence which the nature of the case can admit.
At length it began to be suspected that parties might tell the truth, no matter how strong their interest, and that those who were
“disinterested witnesses” in the eye of the law, from bias or prejudice or want of moral principle might, after all, be as apt to lie as an honest man who is testifying in his
A great many witnesses who have no legal interest in the issue of a trial are nevertheless so warped by feeling, or testify under such strenuous temptation to deviate from the truth, that they color and prevaricate and conceal as corruptly as even an unscrupulous party who has every thing at stake. The sensible conclusion has been adopted, that as the credibility of all witnesses must be determined by the jury, it is best to let the opposing parties confront each otber and the other witnesses, and undergo such tests as the rules of evidence, the skill of counsel, and the common sense of the jury, may supply, for the discovery of truth and the detection of falsehood. Accordingly, England in 1843 removed the restriction from witnesses, other than parties who had a pecuniary interest in the case, and in 1851 adınitted parties to testify in their own behalf, or at the call of their adversaries. This reform was adopted in New York in 1857, and it is believed that it has found its way into the codes of most of our States; and by Act of Congress it has been made the law in all the Federal Courts. There is one general restriction upon the examination of the party to an action or proceeding which is, in substance, that he may not testify in relation to a personal transaction or communication between himself and a deceased person or lunatic, as against the executor or administrator of such deceased, or a person deriving title or interest through or under him, or against the committee of the lunatic, unless such personal representative, etc., shall have offered himself as a witness to the same matter. The ground of this is obvious, but the restric.tion would not be applicable in any proceeding under our Discipline, except in the case of arbitrations as to “disagreement in business and non-payment of debts."
The policy of allowing defendants in criminal cases to testify in their own behalf was looked upon with greater distrust, and probably has not yet been so generally adopted, though it will doubtless become entirely prevalent. It seems barbarous to compel the accused to sit in silence, while a net-work of evidence is woven round him, which may deprive him of liberty and character, or perhaps of life, and which his word alone can break. He might be able satisfactorily to meet and overcome the case against him if he could open his mouth in his own defense; and yet, if he cannot be heard, he must grope around to gather up a patch-work defense while every thing is in jeopardy.
Of course, under our laws, he cannot be compelled to testify. In the French courts the judge severely catechises the accused, and endeavors to extract from him some evidence of guilt, but it is against the principles and traditions of the English race to constrain a man to criminate himself.
The experience of the courts demonstrates the wisdom of this change. By calling the parties, the debatable ground is very much narrowed, for they generally agree about many things, and where they differ, the aid of other testimony, and the crucible of cross-examination, will generally bring out the facts with reasonable certainty. Cases are not very rare where the cross-examination of the party alone has been decisive of the case against him. The writer at this moment calls to mind an action brought by a gentleman for an injury which maimed and crippled him for life. The brief and general statement called out by his own counsel made a case for an enormous verdict. Upon being cross-examined, he gave the details,
. showing his own vegligence, with such utter fairness and candor, and such rigorous impartiality, that when he hobbled from the stand he had lost his case, but he had won not only the sympathy of all, but our profoundest respect for the stainless honor of his manhood. It is not in the case of honest witnesses alone, however, that the cross-examination is effectual in eliciting the truth.
In regard to the admission of husband and wife as witnesses for or against each other, there is inore ground for hesitation. It has been said " by them of old” that the “foundation of society would be shakened by permitting it.” The exclusion of such testimony proceeded upon two grounds, identity of interest, and public policy. What was meant by the first may be seen by recalling how completely the legal status of the wife was merged in that of the husband. To enumerate a few of the particulars: upon marriage the husband became en
titled to the use of the wife's lands during their joint lives, and if issue were born alive, he took an estate absolutely for his life; if the wife had an estate in lands for life, he becaine seized of such estate and entitled to the profits during marriage, "in right of his wite," as the lawyers grimly said, whatever consolation the phrase might afford her; he took her chattels real, the debts due her, and all her personal property as his own. This was the way he endowed her with all his worldly goods. As an offset to this, he was bound to maintain her, and to pay the debts contracted by her before marriage; but if she died before such debts were collected, he retained her property, but went free of the debts. She could not even dispose of her lands by will. In short, the spirit of the law was that the husband and wife were one, and the husband was
The general current of modern legislation is sweeping away the barbarous rules of the common law, by which the husband absorbed the property and the legal existence of the wife, and her interests and rights are now made separate and independent. One ground of the old rule of evidence is therefore removed. The other ground is thus well stated by the author:
The law, having regard to the happiness of the marriage state, and to prevent invasion of that confidence that husband and wife are required to repose in each other, has wisely provided that communications made by one to the other should be kept inviolate, and that nothing confided by the one should be extracted from the bosom of the other.-P. 125.
This is a solid foundation, and it is to be hoped, an indestructible one.
Communications that are made under the sacred confidence of the marital relation should certainly be held sacred. But this by no means exhausts the possibilities of evidence. The husband or wife often possesses information of facts most vital to the controversy, which was acquired independently of any communication from the other, as any other witness would acquire such information. There is no limit to the cases we might cite from every-day experience illustrative of this. For example, suppose the husband to be accnsed of uttering a slander on an occasion when the wife was present, or that the husband should witness an assault upon his wife, or that, as often happens, the wife, in her husband's absence, has