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and it may fall most heavily upon the innocent and unfortunate suitor, who is thus denied all legal redress.
Entertaining, as we do, a very strong opinion of the absurdity and impolicy of the existing practice, we lament that it should have received the sanction of so distinguished a statesman as the present Lord Chancellor, and still more, that his approval should have been expressed in his justly celebrated speech in the House of Commons on Law Reform. We feel ourselves the more called upon to notice this subject, and express our dissent, as the speech in question abounds in the most excellent suggestions for the improvement of the law of evidence. The passage of the speech to which we refer is as follows:-" There is, in my opinion, no reason for excluding any individual, be he of what religion, sect, or persuasion he may, from giving testimony in cases of every kind, provided he believes in the existence of a God, and a state of future rewards and punishments, and is not openly infamous by sentence of a Court."* Now (not to mention that the exclusive rule, as thus stated, is carried farther than by several of our judges, and would exclude the evidence of some conscientious Jews, and certain other sects, who acknowledge a God the avenger of falsehood, though they do not believe in a future state of rewards and punishments) we cannot but enter our protest against every syllable of the proposed exceptions to the general rule of admissibility, and we are confident that no reason can be given for excluding the evidence in question, which will not apply equally to other testimony, which Lord Brougham is fully prepared to admit. We have already shown that the English law is wholly inoperative in its attempt to exclude the evidence of such unbelievers as are regardless of veracity; and as to the witness who is
openly infamous by sentence of a Court,” we have contended that it is the very openness of his infamy which removes all danger of deception.
Connected with the question of incompetence on account of want of religious principle, is the subject of the incompetence of infants, on account of the want of due instruction. It has been decided that the evidence of an infant cannot be received in a court of justice, unless it appears that he understands the “ nature and obligation of an oath,” that is to say, the religious obligation to speak the truth. This is again a question as to motives; and the point for our inquiry is, whether the religious sanction is likely to be the sole or the most powerful motive influencing the minds of young children in giving their evidence. It cannot be denied that the hope or fear of praise or blame, and of reward or punishment, on the part of their parents or guardians, constitutes the principal moral sanction of young children; and that, at any rate, these motives are much more powerful in influencing their conduct, than any necessarily imperfect notions which they may possess on religious subjects. But even were the case otherwise, how is the existence of any religious principle ascertained under the present system? A child is asked, what will become of him after death if he tells lies, and he answers that he will go to a bad place, or that he will be burnt in fire. This only proves that the child has been instructed to give such an answer to such a question, and affords scarcely an indication of the existence of any religious principle whatever. Indeed, where there is any fraudulent intention on the part of the infant's friends, he will be quite sure to be well tutored on this subject. The fact is, the principal security against the mendacity of children consists in their artlessness, and in their utter inability to maintain a false story under a skilful cross-examination; and the security against their mistakes is in their vivid memory for recent events. It is therefore of consequence that the evidence of children should be submitted to the test of a cross-examination, and that it should in all cases be taken as soon as possible after the occurrence of the event to which it relates. Yet it has been a common practice with our judges, when an infant witness has not given a satisfactory account of the state of his religious belief, to order the trial to be postponed till the next assizes, giving directions that the witness shall in the mean time be instructed in the catechism ; thus at the same time subjecting the accused to the inconvenience of a long imprisonment, and greatly diminishing, in our opinion, the chance of correctness on the part of the witness.
* IIansard's Parliamentary Debates, vol. xviii. (new series) p. 221.
Such are the principal rules by which classes of persons are rendered incompetent to give evidence in English courts of justice. There remain certain other exclusive rules, which apply against particular individuals in consequence of the relation in which they stand with regard to the suit in question.
Of these, the most remarkable is the rule which excludes in all cases the testimony of the parties in the cause. And we may here notice, as a singular inconsistency in the different branches of our law, that in our courts of equity, not only is the testimony of the parties admitted, but it usually constitutes the most important portion of the evidence. Yet in those courts the testimony is received in writing, so as to afford every opportunity to premeditation and deceit, and without the security of an oral crossexamination, as in the courts of common law.
After what has been already said with respect to the exclusion of evidence on account of interest, it is unnecessary to dwell upon the question
of the rejection of the testimony of parties, which may be considered as forming only a particular case under the general rule. There is, however, this distinction to be observed, that in the case of parties, the amount of the interest must be always known, and is necessarily presented to the attention of the court, thus greatly diminishing the danger of deception.
It must have frequently occurred to those who are acquainted with the practice of our criminal law, that the rule of excluding the evidence of parties is often the source of great hardship to the accused; because the prosecutor, not being technically considered to be a party in the cause, or to have any interest in the event, is allowed to give his evidence, whilst that of the accused is altogether excluded. For, although the prisoner is permitted to state any facts in his defence, it is usual to inform the jury that these statements, not being made upon oath, are not evidence, and that it is their duty wholly to discard them from their minds in deciding upon their verdict. Take, for example, a case of assault arising out of a quarrel, and suppose no one to have been present at the transaction except the prosecutor and the accused, and that the question in dispute is, which of the parties committed the first assault. Under such circumstances, it is surely most unjust that the testimony of one party should be heard, and that of the other rejected.' Yet charges of this kind are continually brought before magistrates for summary decision. And we will venture to assert that if in these cases the magistrates should adhere strictly to the rule of law, and should reject from their consideration every thing which is not legal evidence, they would frequently commit the greatest injustice. They would, in fact, be proclaiming to the world, that, in all cases where the parties themselves were the only witnesses, they should decide in favour of him who should contrive to be first in bringing his complaint.
The absurdity of this rule may be further illustrated by a case which recently attracted much attention, we mean that of Mr. and Mrs. Deacle, and Mr. Bingham Baring. In this case a magistrate was charged with having used unnecessary violence in the execution of his office, and in an action at law a verdict with damages was obtained against him. The subject was afterwards brought before the House of Commons, when it was stated that the defendant could have substantiated a satisfactory answer to the charge, had not his witnesses been disqualified by being joined with him as defendants in the suit ; and an opinion seemed very generally to prevail through the House, that, though the verdict was strictly in accordance with the evidence, injustice had been perpetrated by this measure. Whether this opinion were well or isl founded, the case will equally serve to illustrate the
imperfection of the existing system, and yet not a single speaker in the debate adverted to this defective state of our law. Surely the House of Commons would have been occupied in a manner more consistent with its proper functions, and more advantageous to the public, if, instead of canvassing the merits of the parties in a particular case, it had been employed in amending the mischievous law under which the alleged injustice had been perpetrated.
If there be no just ground for rejecting the evidence of parties in their own favour, still less does there appear to be any reason for refusing to take due means to extract their testimony when it is likely to be against themselves. We have seen that scarcely any evidence is more satisfactory than that of a witness whose interest is opposed to the effect of his testimony. And it would seem unnecessary to aud (except that there is no limit to the absurd assertions which have been made on this subject), that there is no reason for apprehension that an innocent person will confess a crime of which he is not guilty, and voluntarily subject himself to an undeserved punishment. The reasonable course with respect to the evidence of accused persons seems to be as follows: that, when they are first put upon their trial, it should be the duty of the presiding judge rather to encourage them to make a full confession of their guilt (in case they seem disposed to admit the justice of the charge), than to persuade them to put in a plea of not guilty; but if they persist in asserting their innocence, that they themselves, as well as the witnesses, should be strictly, but temperately, examined as to the facts of the case; leaving them at the same time entirely at liberty to decline answering at all if they think proper. Out of many objections which have been made to this course of proceeding, there is only one which has any plausibility. It has been said that, under certain circumstances, an innocent man might be unwilling to answer the questions which might be put to him, and that in such a case injustice would be done if his silence were to be construed as a presumption, or as evidence, of his guilt. To such an objection it need only be replied, that the silence of the prisoner would at the utmost be considered only as a circumstance of suspicion, and that it has never been proposed that any man should be convicted, unless his guilt has been satisfactorily established by other evidence. Let it be granted even that the silence of the accused ought under no circumstances to be considered as affording the slightest indication respecting the justice of the charge; still, this is no reason that his evidence should be excluded when he is willing, and perhaps anxious, to undergo an examination, and to give every explanation in his power. To an innocent man falsely accused, it must often be a source of satisfaction to have
the opportunity of undergoing a cross-examination, and of thus proving that the different parts of his story are consistent with each other, and with the known facts of the case. On the other hand, the hope of establishing the probability of his story will often induce even the guilty man, influenced by an overweening confidence in his own skill or good fortune, voluntarily to submit to an examination; and the probable result will be, either that his guilt is established out of his own mouth, or that evidence is obtained calculated to confirm or explain the testimony of other witnesses.
A great deal has been written upon this subject, to which it is very difficult to give any reply, because it is scarcely possible to understand the nature of the arguments intended to be conveyed. When, for example, the examination of a prisoner is seriously compared to the tortures of the Inquisition, and is represented as objectionable on the same grounds; or, when we are gravely informed that “ human beings are not to be run down, like beasts of prey, without respect to the laws of the chace, we are at a loss to comprehend the meaning of the argument, and must therefore confess our inability to reply to it.
It is one of the most glaring defects of our law of evidence, that it resembles too closely the “ laws of the chace,” inasmuch as it too often offers to the accused a certain chance of escape, without reference to that object which ought to be kept constantly in view as the sole aim of the inquiry—the discovery of the truth. We may safely disregard the laws of the chace so long as we strictly observe those of reason and justice.
It seems not improbable that the prejudice, which undoubtedly exists in this country against the examination of accused persons, has arisen from the mode in which these examinations have been conducted in former times and in other countries, where they have frequently been enforced by torture, and when they have been employed not so much for the discovery of the truth, as for the purpose of extorting a confession which might serve as a pretext for the oppressive acts of a tyrannical government. It may
also be ascribed perhaps, in some degree, to a just dislike of the system which is at present practised in France, where the examination is conducted by the presiding judge. It is scarcely possible for one person to cross-examine another in the presence of the audience of a crowded court of justice without his becoming in some degree a party in the cause. It is impossible that he can put the necessary questions without indicating to the audience the nature of the evidence which he expects to extract; and his self-love thus
* See Edinburgh Review, vol. xl. p. 166, and 169.