the most sweeping exclusions on account of a merely nominal interest. Thus, to give only a single example:-An action was tried at the York Lent Assizes, 1829, before Mr. Justice Bayley, to determine a right, claimed by the proprietors of an ancient mill, of preventing the inhabitants within the soke of Wakefield, an extensive and populous district, from making use of any ground corn except such as had been ground at the soke mill; and it was decided that none of the inhabitants of this district were capable of giving evidence for the defendant, because they were supposed to have an interest in the event of the cause. So that in this single instance the rule in question served to exclude the testimony of many thousands of persons, and those the very individuals amongst whom alone the necessary evidence could be expected to be obtained.

Having now concluded the first division of our subject, and having attempted to show that pecuniary interest constitutes no sufficient ground for the rejection of testimony, we proceed next to examine another extensive, and not less important principle, which has been adopted by the English law in the exclusion of evidence, viz. the propriety of rejecting the testimony of a witness on account of improbity of character. The reason which is assumed for this exclusion is very different from the one adopted in the former case. In the one instance, the witness is rejected because he is supposed to have a motive to speak falsely; in the other, because his character is supposed to be such as to render him liable to be acted upon by such a motive. In the one case, strangely enough, perjury is supposed to be the necessary consequence of the slightest motive, whatever may be the character of the party on whom the motive has to act. In the other, it is still more strangely assumed, that all persons of bad character will necessarily perjure themselves, with or without a motive. In other words, we are to conclude that a witness of bad character will speak falsely, not only when it is his interest to do so, but also when he has no interest in the matter, or even when his interest is opposed to the effect of his testimony; and that under no circumstances can his evidence be of service in the discovery of the truth. Take even the strongest case of improbity (at least so far as it is likely to affect veracity): suppose the witness to have been already convicted of perjury; still it does not follow that, because he has once been guilty of falsehood, he will never speak truth again. It would be most unreasonable to conclude that, because he had on one occasion given false testimony, when under the influence of a strong motive, with the view, for instance, of saving the life of a near relation or friend, he would therefore be ever after ready to commit the same offence with or without an object. Yet the English law goes still farther, and excludes the evidence of all persons who

have been previously convicted of a capital felony (or even of any felony, provided they have not undergone the punishment),* including under this term a very extensive class of offences, many of which furnish at best but very slender indications as to the question of the witness's veracity.

Let us not be understood as disposed to undervalue the importance of forming a just estimate of the witness's character, when we are employed in weighing his testimony; nor as under-rating the difficulty of forming a correct judgment upon this subject. In cases where the witness is in any way interested in the result of the cause, or where there is conflicting testimony, it is of the greatest importance to form a just estimate of his moral character, and this is often a point of the greatest difficulty. It is to be hoped, however, that in a great majority of cases an erroneous decision may be avoided, if care be taken to make proper use of the different tests and securities which we have already enumerated. At all events, real danger exists only in those cases in which the character of the witness is unknown, not where it is acknowledged to be infamous. We need be under no apprehension that a judge or jury will attribute too much weight to the testimony of a convicted felon; they are more likely to err on the opposite side.

It is indeed scarcely possible to believe that fear of misdecision has been the real motive for excluding the evidence of convicted malefactors. It is more likely that the exclusion has been intended to operate as a just stigma upon their character; in other words, that it has been imposed as an additional punishment for the offence of which they have been guilty. If such be its object, it is scarcely possible to conceive a punishment more entirely inoperative, or more completely at variance with all the ends of justice. In the first place, it is remote, uncertain, and unequal. It falls exclusively upon those offenders whose evidence may happen to be required in a court of justice, and probably long after the commission of the offence. Secondly, whilst it operates as a deep disgrace to the reformed offender, it is felt as no punishment at all by the profligate and hardened culprit, who may in some cases find it a positive advantage to be disqualified from giving his testimony in a court of justice. Lastly, whilst it is thus wholly in

This rule, that, in cases of felony not capital, undergoing the punishment shall restore the competency of the criminal as a witness, has been adopted by Mr. Peel in his late Acts for the Consolidation of the Criminal Law. It is not, however, very easy to understand on what principle it is founded. Is it really supposed that the criminal is necessarily reformed by undergoing the punishment? Or what is the legal fiction implied? Not that we object to any rule for the admission of additional evidence; but the simple fact that it is impossible to pass measures for the partial reform of this branch of our law, without involving ourselves in numberless contradictions and inconsistencies, is a strong proof of the propriety of revising the whole system.

operative as a punishment to the guilty, it is frequently a cruel infliction upon the innocent suitor, who is thus debarred, by the want of legal evidence, from asserting his rights; upon him, for instance, who has been robbed, or beaten, or injured, and who is denied all redress, because the only witness of the act happens to have been convicted of some offence against the law half a century ago.

Not only is the English law wholly inconsistent with reason and justice in excluding the evidence of convicted offenders and of interested persons, but it is also utterly at variance with itself, as; in some instances, it admits evidence which is tainted in the greatest possible degree both with interest and improbity united. We allude to those cases which are constantly occurring in our criminal courts, where an accomplice is allowed to give evidence against his companions, on the understanding that, in case his testimony shall prove satisfactory to the prosecutor and the court, he will escape punishment; but that otherwise he will be liable to be forthwith put upon his trial for the crime in question, and perhaps also for other offences. So delicate, we have seen, does the law of England profess to be as to the quality of the evidence which it receives, that it refuses to hear a witness, if he be supposed to be under the influence of the slightest motive to mendacity; or even if he be supposed peculiarly liable to be influenced by such a motive, though the motive itself may not exist. It assumes that the most respectable witness will perjure himself in consequence of the slightest temptation, and that a convicted felon will perjure himself without any motive whatever. And yet, in the case before us, it admits the testimony of the most worthless of mankind; of one who has not only lived in the habitual violation of the laws of his country, but has been guilty of the basest treachery towards his own friends and companions; and that too, under circumstances of the strongest possible interest, when his avowed motive for offering his evidence is to save himself from the gallows. Yet it has never been affirmed by any of our judges or lawyers that injurious consequences have resulted from the practice, or that this part of our criminal law is in want of revision. Can it then be denied that this is a perfect practical refutation of the arguments in favour of the exclusive rules; and are we not justified in asserting the propriety of adopting a more consistent and rational system?

It is true that it has been the practice of our courts to receive the evidence of accomplices with suspicion, and that our judges have usually cautioned the jury against giving credit to such testimony, when unconfirmed by other evidence. But this is all that we could desire, and is perfectly consistent with the principles which we have been endeavouring to establish. We only contend that in other cases, where the danger of deception in consequence of interest or improbity is much smaller in amount, the testimony

should be admitted in a similar manner, every means being taken to expose the real magnitude of the danger, and due allowance being made in estimating the value of the evidence.

There remains for our consideration another principle, which has been adopted as a reason for a general exclusion by the English law; we mean, the incompetence of witnesses on account of a want of religious principle. The law upon this subject has not been laid down in a very consistent and uniform manner by different judges; but, according to the most liberal interpretation, it appears that no witness is competent to give evidence in a court of justice, unless he believes in a future state of rewards and punishments, or, at all events, in the existence of a God, the avenger of falsehood. In other words, it is assumed that there are no other motives to veracity, except those which arise from the religious sanction. Nothing can be farther from our wish than to undervalue the influence of religion upon the conduct of mankind. But when we are deciding upon a question of legislation, it is necessary to recollect that there are other motives, which also exert a powerful influence over their actions. For instance, in the particular case before us, that of adherence to veracity, there is, in the first place, a universally acting motive in the love of ease, because recollection requires less exertion of the faculties than invention; and it is much easier to tell the simple truth, than to frame a false story, by which we may be involved in difficulties and contradictions. Secondly, there is the fear of incurring the punishment denounced by the law against deliberate perjury. Thirdly, there is the desire of preserving the good opinion of the persons amongst whom we live, and the fear of incurring public disgrace and odium. Lastly, there is that principle of our nature which is usually known by the name of conscience, a principle which, though it may depend solely upon association, and may have its origin in the motives we have already enumerated, is yet frequently sufficiently powerful to direct our actions in the absence, or even in defiance, of those motives. Now, whatever may be our opinion as to the force of these principles of action, as compared with that of the religious sanction, it cannot be denied that they may, and often do, exercise a powerful influence on human conduct. Indeed it is the common complaint of divines, that even their own followers are too apt to be influenced by worldly motives, rather than by those of a higher order. And, without referring to the history of past ages, our own times may furnish us with numerous instances of avowed unbelievers, who have yet led the most respectable and moral lives. To contend, therefore, that the religious sanction (however great its importance) is the only motive to veracity, and that the evidence of an unbeliever is under no circumstances deserving of credit, is, to say the least of it, a most gross and palpable exaggeration.

But if the general principle of excluding witnesses on account of want of religious belief is considered impolitic and unreasonable, the absurdity will appear still more glaring, when we consider the mode in which this object is effected by the English law. Any objection to the competence of a witness on this ground must be made on his entering the witness box, and before he is sworn. He must then be questioned as to the nature of his religious belief, and in case his answers prove unsatisfactory, he is forthwith dismissed from the box. Let us consider for a moment the effect of this proceeding. The law declares that no unbeliever is worthy of credit, even when upon his oath. Yet in order to ascertain the point, whether the witness be an unbeliever or not, it relies upon his own assertion, unconfirmed even by the usual sanction of an oath. Suppose the witness to be really an infidel, he will either deny the fact or admit it. If the presumption of law, that all unbelievers are regardless of veracity, be well founded, he will of course deny it, and in such case nothing is gained by the question, except the commission of a gratuitous falsehood. But if, on the other hand, the witness should admit his unbelief, this very fact, so far from proving him unworthy of credit, demonstrates in the clearest manner his strong attachment to veracity; for it proves that, sooner than be guilty of a falsehood, he is willing to forfeit an important political privilege, and to incur the odium of the public. To sum up in a few words the nature and effect of this exclusive rule: the law assumes that a certain class of witnesses are unworthy of credit; and, with a view to their rejection, it applies a test by which none are excluded, except those few (if any such there be) who are distinguished by a very uncommon attachment to veracity. It is doubtful whether the whole history of mankind can furnish an instance of a legal rule more pregnant with contradiction and absurdity.

It may possibly be contended that the exclusion of the testimony of unbelievers is intended not so much to serve the ends of public justice, as to fix a stigma upon their opinions; in other words, that the real object of the rule is, not the due decision of the cause, but the punishment of the witness: a mode of proceeding which reminds us of a jury in a country town, who, when called upon for their verdict, acquitted the prisoner, but found the witness guilty! But, to be serious, if it be really determined that speculative opinions are proper objects of punishment, it will scarcely be denied that the offenders ought to be prosecuted according to the ordinary forms of justice, and that the punishment ought to be imposed equally upon all. In the present case, the penalty falls exclusively upon those few persons who are called as witnesses in a court of justice, and even out of that small number, only upon such as have the honesty to declare their opinions;