from those proposed by the legislature. It is the interest of the banks, no less than of the public, that their notes should be so made as to prevent, as far as possible, the successful counterfeiting of them. Persons interested in banks usually understand this, and exert themselves to have the engraving on their notes of a kind which shall render imitation difficult. The number of bank notes used in the country is so great, that it is a great object to devise new means for rendering them more difficult to counterfeit. Great exertions have been made by different artists to effect this object. To render it imperative upon all the banks to engrave their notes from a particular plate, tends to put an end to all competition, and of course to future improvements in the engraving of notes. And not only so, but the using one plate in all bills in the state, makes its counterfeiting a more important object with ill disposed persons, for the counterfeiting one plate will serve for all the banks in the state. The legislature should aim to encourage improvements in bank note engraving, not to discourage them by a monopoly.

Another effect of the provision in question is to make the banks pay a high price for printing their notes; for the proprietor of the Perkins plate, having a perfect monopoly, can of course always charge the highest price mentioned in the act, even should it be more than double or triple the common price of such printing:

If it is proper that the state government should regulate the printing of bank notes, it would seem to be sufficient to require every bank to have the plates which it proposes to use, approved by some officer of the government, as the Secretary of State.

The legislation on banking is one of serious importance in the United States at the present time; for now is the time to fix our currency in its present sound and healthy character, and to prevent forever the recurrence to stop laws, tender laws, and unredeemable paper money. We should pass all reasonable limits, if we should attempt to consider all the various statutes of the several states in regard to banking. We have already noticed some of the leading provisions in these laws, particularly those in the statutes of Massachusetts and New York, which we believe, are the most important acts recently passed upon the subject.

ART. VII.-RULES OF EVIDENCE.

NO. II.

Incompetency of Witnesses from Infamy of Character.

'THERE are many offences which 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.' Individuals convicted of those crimes, upon whom judgment has been passed, are said to be incompetent from infamy of character, and are not even heard.'

The evils of this rule may be enumerated in a few words. To the extent 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, where those rights can only be established through the medium of this sort of evidence. The benefits of a contrary rule would, of course, be the prevention of those evils.

The object of courts being to ascertain the truth, and the only evil to be guarded against being 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 equally likely with any other individual not so convicted, to state the truth, he answers equally well the purpose of his introduction, and should be heard. Infamy of character, no more than 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. But 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 contested transaction but those whose characters are thus tainted with infamy, 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 introduced. It might as reasonably be supposed, that a party would prefer the interests of his opponent to his own, as that he would introduce secondary, when the best evidence was within his reach—a man of less, when one of more credit, might be obtained. question, therefore, is, whether, when as full evidence as by possibility might exist, cannot be obtained, we shall reject that which actually 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.

The

In discussing every question of exclusion, the argument for general admission is so cogent, that the burden of proof undoubtedly lies on the objecting party to support his position; to show a preponderance of evil resulting from the admission of the evidence, which he would reject.

The strongest objections which can be urged against the admission of a witness convicted of crime, are, a presumed1 want of truth inferred from the moral turpitude displayed in the commission of previous crimes, and the inefficiency of moral restraints in such witness, and the probability that, if he should testify untruly, the judge of the facts will, from some cause, place undue reliance on this evidence; for if the witness testify truly, or if no more than 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.

To justify this result, it is inferred, from the commission of one crime, that the individual will commit perjury. 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

1 It cannot reasonably be expected that such a person would regard the obligation of an oath. By the turpitude of his conduct he has shown that he is regardless of all laws, human and divine.' 1 Starkie, 82.

unimpeachable reputation. It is a well known rule of the law, that every man is to be presumed innocent till his guilt is established by satisfactory proof. But this rule reverses that statutory maxim; it excludes not for actual, but presumed want of truth, and on account of supposed prospective guilt. The convict may and can 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 has or that he will violate any or all the laws in 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, he will again court its punishment. Take the case of perjury; and let the inference be, that, because he has once perjured himself, he will 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 past, 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 him to commit the crime; but it furnishes no certainty in a case differently situated. Indeed, unless the present penal code be deplorably inefficacious, even in a case perfectly similar, the probability is, that having once experienced the penalties of the law, he will not again provoke them. The commission of other crimes affords still less proof of this species of guilt.

In all cases, 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 an 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 actions of others. The commission of any given crime shows that under a certain combination of circumstances, he had not sufficient firmness to resist temptation, and affords a ground to believe that where his own interests are in issue (and

in no other case) that he would more readily than another yield to temptation; that preventives to crime have less weight with him than with others—but not that they have no weight. It is a stain on his character, for which a deduction should be made from the credit otherwise to be given to his evidence, and of the force 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, it be rejected, certain evil, inevitable misdecision is the result; while, if admitted, 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 operates only as an argument why there should be a change of judges. The evil, remember, is undue reliance on this suspicious testimony. 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 the proof of his recorded infamy. Would every word he uttered 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 excluded? 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, dare not trust himself to hear it. Strike, but hear. To judge, hear. Would he not be better prepared to judge of the truth of his testimony after its delivery, than before? The evidence, when disbelieved, is the same as if not heard. When believed, the legislator, who establishes such a ław, assumes, on his part, that he is a better judge of the truth