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the cause, and whose testimony therefore ought not to be received without the greatest circumspection. Or, evidence might be offered even from still more suspicious sources, from the mouth of a witness, for instance, of notoriously bad character, who had already been convicted of serious offences, and under peculiar circumstances, which might render his testimony almost wholly worthless. It would manifestly be improper to allow such evidence to be received on the same footing as that of ordinary witnesses, or, in other words, to allow it to count as one in the list. To solve this difficulty, the expedient that would naturally present itself would be to strike out the evidence altogether, or rather to refuse to hear it at all. And this plan would be the more likely to be adopted by the judge when he recollected that the evidence was to be weighed, not by himself or by an instructed person qualified to make all the requisite allowances, but by an illiterate jury wholly inexperienced in such matters. He might, therefore, exclude the evidence, not only with the best possible intentions, but probably without any injustice in the particular case. Now, when it is recollected that the common law of England has been framed not with a deliberate and enlarged consideration of the best means of promoting the object in view, but that it has gradually grown up out of the decisions of judges in particular cases; it is not difficult to understand how a number of decisions, like the one we have supposed, would lead to the establishment of a general rule, and how it would thus become a fixed principle of law, that no witness was competent to give evidence who had any pecuniary interest in the event of the suit, or who had been convicted of a serious offence.
In attempting this explanation of the origin of these exclusive rules, we only wish to satisfy our readers that the rules in question have grown out of circumstances quite independent of their merits, that they have not been framed upon any systematic principle, and that they have not been adopted either by legislators or judges with a deliberate consideration of the ends of justice; so that the question of their utility is still quite open to discussion. It has indeed been frequently asserted, and, above all, by members of the legal profession, that it is a peculiar excellence in a system of law, that its rules should have grown up from time to time out of the decisions of the judges, because it is said that, when framed in this manner, they will be found best adapted to the wants of the public. If by this statement it is merely meant to assert that it is impossible to have a perfect code of laws, but that its different enactments must receive continual additions or modifications as new cases arise, the fact is beyond all dispute. But if it be maintained, that these alterations and additions ought not to be framed with a full consideration of all the circumstances which have occurred or may be likely to occur in different cases, and with a view to the general
ends of justice; but that they should rather be deduced from the decisions of individual judges in particular cases, decisions which must often be influenced by the peculiar circumstances of each case, especially when made in uncivilized times or by unenlightened tribunals: if such be the meaning of the argument, the simple statement carries with it its own refutation, and it presents not the shadow of an objection to the present inquiry.
Before we proceed to examine separately the different grounds of exclusion adopted by the law of England, we may mention one erroneous principle which appears to pervade them all. It seems to be assumed that truth and falsehood are, in all cases, a matter of indifference to the speaker, and that mendacity is to be expected as a matter of course, in consequence of the operation of the slightest motive, or even without any motive whatever. Such a conclusion is notoriously contrary to the fact. The most confirmed liar tells truth ninety-nine times out of a hundred. Truth is the general rule; falsehood a rare exception. And this for a very simple reason. The truth is that which naturally suggests itself, whilst falsehood requires invention and premeditation; not to mention that, in a great majority of the ordinary occurrences of life, veracity is the best means of obtaining our objects; and that a habit of adhering ta the truth is thus usually acquired even by persons who are not under the influence of higher motives.
Amongst the different reasons for excluding evidence, pecuniary interest appears at first sight to be one of the most reasonable. It may be said, with perfect justice, that if a witness have a direct pecuniary interest in the result of a cause, that circumstance may afford good ground for distrusting, or even for altogether discrediting, his testimony. But the question is, not whether the pecuniary interest ought to be taken into the account as tending to diminish to destroy the value of the evidence; but, whether the smallest portion of interest of this kind be, in all cases, a sufficient ground for rejecting, or rather, for refusing to hear it. Or, in other words, the question is, whether a man of good character and large fortune will certainly perjure himself, in all cases, for a few pence or shillings. It may be said that this is an extreme case.
It is so; and it is purposely selected, in order to render the absurdity of the rule the more glaring. But it cannot be denied that cases of equal practical absurdity have occurred, and are occurring every day, in our courts of justice. Every one in the least conversant with the practice of the law, is aware that witnesses are frequently rejected on the ground of their possessing some interest in the event of the cause, when that interest is such as would not diminish the value of their testimony in the slightest degree in the opinion of any rational being. Nor can this be otherwise so long as witnesses are rendered incompetent to give evidence by pecuniary interest. For
this is a case in which there is no possibility of drawing a line. The same sum, which would act as a strong temptation to a poor man, might, by a rich man, be esteemed scarcely worth consideration. And, even in the same station of life, there is the greatest possible difference in the moral qualities of different individuals. There are some men who are incapable of being corrupted by any amount of pecuniary interest, whilst there are others, whose virtuous principles are too weak to resist a very slight temptation. It is impossible, therefore, to lay down any general rule by which the operation of pecuniary interest may be prevented, without, at the same time, excluding valuable evidence, which is wholly unimpaired by its influence.
Even were it possible to form a classification of individuals according to fortune and moral character, so as to apply a general rule; still, the utmost that could be accomplished would be the exclusion of the testimony in cases where the interest was supposed to offer a strong temptation to perjury. But it by no means follows that every witness is ready to yield to a strong temptation, or, even were this certain, that his testimony may not prove of considerable value. Nothing is more common in our courts of justice than to see truth extracted by artful questions from the most unwilling lips. And even when the witness comes into the box with a premeditated falsehood, we often see his mendacity exposed by a skilful cross-examination; and the very falsehood itself, with the detection, may form a valuable article of evidence, and prove of essential service in the discovery of the truth. So that even if it were possible to confine the operation of the exclusive rule to the testimony of witnesses supposed to be under a strong bias, this limited exclusion might, in many cases, prove highly injurious to the ends of justice.
The English law, however, is far from succeeding in its object, erroneous as that object seems to be. Not only, on the one hand, does it reject the evidence of persons who are only nominally, and not really, under a pecuniary bias ; but, on the other, it admits the testimony of witnesses, who have in reality the strongest possible pecuniary interest in the result of the cause. For whilst it carefully excludes all evidence which is tainted with what are called legal or vested interests, it admits, without hesitation, all interests in expectancy, which are often, to all intents and purposes, as certain as those which are vested, and must, therefore, form an equally strong ground for bias. To take an example: The title to an estate is disputed; the present possessor is of great age, or afflicted with a fatal disorder, and he has only one son, who has every reason to expect that he will inherit the whole of his father's property, and who, in the meantime, is supported out of the income derived from the estate in question. Under such circumstances, the English law considers the son
a perfectly unexceptionable witness; but if the smallest portion of the estate had been entailed upon him, no matter how remote or uncertain his prospect of succeeding to the property, his testimony would have been rejected as inadmissible. Such are the inconsistencies which must necessarily exist under the exclusive system.
We have thus attempted to show that it is not practicable, by any general rules, to reject the testimony of such persons exclusively as are likely to be biassed by pecuniary interest; and that, if it were practicable, it would not be desirable. But granting for a moment, for the sake of argument, both these points, it may asked, could any useful object be attained without carrying the exclusion much further? Why is it against pecuniary interest alone that it is thought necessary to take these precautions? Is the love of money the only motive which can give birth to mendacity ? May not the same effect be produced, tò an equal or greater extent, by natural affection, love, friendship, revenge, vanity, and a thousand other passions to which human nature is subject ?' Is it reasonable to exclude the evidence of a witness because he may have some insignificant sum of money depending upon the result of the cause, when you admit his testimony without scruple, although the life of his child, his friend, or his mistress, may be at stake? It is unnecessary to attempt to prove the impossibility of providing against these various and indefinable interests by any exclusive rule. Nor is it pretended that any bad effects result from the admission of such evidence. It is true that the existence of a bias in the mind of the witness must of course render his testimony less valuable. But, on the other hand, it must be recollected that there are various securities against misdecision on the part of the judge, even in the case of the most strongly biassed or most mendacious witness. For instance, the nature and extent of the interest should, in all cases where it is possible, be made known, so that due allowance may be made in estimating the value of the testimony. Again, the appearance and manner of the witņess may furnish some useful indications as to the truth of his statements. A skilful cross-examination will contribute still further towards this object, and will serve in many cases to expose mistakes and falsehood. Lastly, a careful comparison of the different parts of his story with each other, as well as with the evidence of other witnesses, will assist the hearer in forming a correct judgment as to the state of the fact. It is true that these securities will not ensure, in all cases, a correct conclusion. The best testimony does not reach beyond a probability. But it may be safely asserted, that they will
, in a very great majority of cases, enable us to form a correct judgment; and that, at all events, the danger of misdecision would be infinitely greater by rejecting the evidence, than by receiving it subject to these securities.
The same principles apply to pecuniary interests, and with still greater force. For it must frequently be quite impracticable to ascertain all the various interests, arising from his private circumstances, by which the mind of a witness may be affected ; and when ascertained, it must be impossible to form even an approximation towards a just estimate of the force with which such passions as love, friendship, or revenge, operate upon his mind. But the exact amount of pecuniary interest is, in general, ascertainable numerically; and we may usually form something like an estimate of the probable force of the motive, by a knowledge of the circumstances of the party, and of his condition in life. When, therefore, the interest is pecuniary, there is the less danger of its being either overlooked or incorrectly appreciated; and the selection of this particular species of evidence for exclusion seems to be a peculiarly unwise provision of the English law.
We need not go farther than the practice of our own courts for a proof of the inutility of the exclusive rule. We have already seen that, whilst the testimony of persons possessing what is called a legal interest in the question in dispute, is in general rigorously excluded, those who have an interest in expectancy are received as unexceptionable witnesses. And we have also seen that these latter interests are often as real as the former, and are equally powerful in their tendency to bias the mind of the witness. Yet it has never been asserted that any injurious consequences have resulted from the admission of such evidence, nor has it ever been proposed to lay any restrictions on its reception
Again, not only have English lawyers and legislators thus tacitly admitted the impolicy of the exclusive rule, but they have gone farther, and have, by express statute, exempted witnesses under particular circumstances from its operation. The fact is, that the absurdity and injurious consequences of the rule were in some cases so glaring, that its continuance could no longer be tolerated; but instead of taking the whole system into consideration, with a view to a rational and effectual reform, the legislature has contented itself with relieving the public from its operation in the particular instances in question : thus, by a system of petty legislation remedying only a part of the evil, and rendering the different parts of our law inconsistent and contradictory. In this way it is that the testimony of informers has been admitted in certain cases, even although they may be directly interested in the recovery of the penalty; and that in certain actions against parishes and hundreds, the evidence of inhabitants has been received. But these exceptions to the general rule have only operated as a partial mitigation to the evils of the exclusive system; and instances still occur of