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There are two rules in regard to persons in this situation, which ought to be rigidly adhered to; one, that they be never suffered to go abroad alone; and secondly, that they should never be left in the care of female relatives. That both these precautions are often neglected with impunity, we are well aware; but this by no means disproves the existence of the danger; and the occurrence, in a single instance, of the horrible consequences above related, affords a warning which we hope will not be disregarded.' Boston Med. and Surg. Jour. pp. 568–572.
ART. II.-TESTIMONY OF PERSONS INTERESTED IN A SUIT.
Whether persons interested in the event of a cause, ought not to be rendered competent witnesses on the trial thereof before a jury.
THE discovery of truth is admitted by all to be of the highest importance in every department of science and every pursuit of life. The noblest efforts of the human mind have been exerted in innumerable modes to obtain it; and those who have been most successful in their researches, may justly be considered the greatest intellectual benefactors of mankind. The fountain of truth is always pure; the essential difficulty is to find those streams which are least polluted by the thousand channels through which it is conducted to the mind. All channels, however, should be examined for the purpose of finding the treasure of which we are in pursuit; the gold must be separated from the surrounding substance and impurity; and the labor will not be in vain.
Perhaps no department of the law presents a greater variety of questions, often difficult and perplexing, than that which has relation to the competency of witnesses, against whom the objection of interest in the event of the depending suit has been made; and yet new cases are constantly presented for decision; every new volume which appears furnishes new distinctions and refinements; and we seem to be now as far from certainty as we were in the year 1789, when the important and leading case of Bent v. Baker was decided, reported in 1 Durnford & East. That case firmly established a distinction, which different judges often gladly admitted before in
advancement of justice, between an interest in the question in controversy and an interest in the event of the cause. According to the principle of that case, a witness is admissible, although interested in the question, if he is not interested in the event of the cause. Since that decision, the practice has generally been in conformity to it. Still the question is continually recurring, whether a witness who is offered, is, in the peculiar circumstances in which he stands, interested in the event of the suit.
In examining the question at the head of this article, we must remember that witnesses, like all other persons, are under the influence of feelings, wishes, passions, prejudices, principles, education, and respect for themselves and the cause of truth and justice, in a greater or less degree. Some have an exalted sense of religious obligation and are ever disposed to act conscientiously under the influence of virtuous feelings and principles; and as far as in their power, promoting the interests of truth and justice; while others are governed by motives, passions, and principles, which endanger the rights of others and even expose them to ruin, when placed within their control. How far the influence of virtuous or vicious dispositions and principles is felt by a witness, and how far he governs himself by their dictates, is always a question to be settled by a consideration of all attending circumstances; and not by any one uniform and unbending rule of law, however wise in itself or however carefully applied. It is not pretended that in the administration of justice, general principles and rules must not be adopted and applied in a great variety of instances, though sometimes operating severely on individual cases and interests: the true reason is, because the advantages resulting to the community from the establishment of the principles or rules, are superior to, and of more importance than any individual injury which they will occasion.
As, in the investigation of facts, the great object in view is to discover the truth, that process which is best adapted for the purpose must be acknowledged by all to be the most judicious and eligible. Experience has proved that the principle established in Bent v. Baker, is a wise and salutary one. The cause of truth has been promoted by it; and the light which, under its operation, has been permitted to lay open to view many interesting facts in the trial of a cause, has rendered the decision of that cause more conformable to the soundest princi- .
VOL. III.-NO. V.
ples of justice. It cannot be denied that a witness who is interested in the question, often testifies under as strong feelings, wishes, and prejudices, as he who is interested in the event of the suit; yet, as the jury are made acquainted with the circumstances in which he stands, and are at liberty to estimate the value of his testimony accordingly, no evil consequences have followed from the adoption of the principle; and no complaint from any quarter has ever been whispered against its uniform application. As one great improvement has been made in the law of evidence and administration of justice in the instance abovementioned, why is there not as good reason for advancing one step further, and as little danger in so doing, and under the authority of a special statute, admit persons as competent witnesses on trial, although interested in the event of the cause. The fact of such interest would be made known to the jury, and they would weigh the testimony in the same scales in which they would weigh all the other evidence, and with the same accuracy; and fairly estimate its value, taking into consideration his interest, his understanding, his character, his manner, and the agreement or disagreement of his testimony with that of the other witnesses in the cause? The answer given in our law books to this inquiry, is, that interested witnesses are excluded from a supposed want of integrity.' And Chief Baron Gilbert says, 'When a man who is interested in the matter in question, comes to prove it, it is a ground of distrust, rather than a just cause of belief, for men are generally so short-sighted, as to look at their own private benefit, which is near to them, rather than to the good of the world which is more remote: therefore, from the nature of human passions and actions, there is more reason to distrust such a biassed testimony, than to believe it.' Thus we see that this exclusive principle is founded on the assumed fact that all men are equally destitute of that integrity, which is presumed to secure them from perjury and prevarication, when testifying in a cause in favor of their own pecuniary interest. With all due respect, this seems to be a very harsh presumption, and indeed an impeachment of society. To soften the charge, however, and rescue the better portion of mankind from such an imputation, it is said that the principle of exclusion must be general, nay, almost universal in its operation, and applied in those cases where the interest is minute as well as in those where thousands are involved, because it is impossible for the
presiding judge to make distinctions between man and man, admitting one as a competent witness, and excluding another, on account of his character in respect to integrity and moral worth; or to decide how far the amount of interest may affect different minds in a different manner, or to graduate the influence of interest under any circumstances. All this reasoning may be admitted to be correct, without prejudice to the doctrine which this discussion is attempting to maintain. Still it is apprehended that it does not prove the correctness of the exclusive principle. It is true, the presiding judge may not be able to draw the line of distinction and the conclusions abovementioned; and for a very obvious reason, which is simply this, the amount of influence, if any, arising from interest, and its effect on the mind of the witness, is not a question of law, but of fact; and it should, therefore, on principles of analogy, like all other questions of fact, be submitted to the consideration and judgment of the jury-the proper tribunal to settle it. What can be the objection to this course of proceeding? Cannot the jury be trusted as safely with the testimony of the witness when he testifies under the influence of an interest in the event of the cause, as in the question in trial? The same process of reasoning and deciding will be made use of by them in both cases. Could there be any possible danger in permitting a man of unquestioned veracity, integrity, and good morals, to testify to important facts in a cause, merely because his interest to the amount of a dollar may be affected by the verdict? Would not the cause of truth and justice evidently be advanced by such a course? But without multiplying these inquiries, let us see what is the province of the jury where the witness is deeply interested in the question, and of course, testifies under strong feelings and wishes in favor of the party who has called him? In such cases the court observe that the credit of the witness is a subject for the consideration of the jury; and they, as has been before observed, are to judge from all the facts and circumstances of the case, how far the witness is entitled to consideration and credit in the situation in which he is placed. Juries are constantly in the habit of doing this without any difficulty; and it is precisely what they would be called on to perform, if a person interested in the event of the cause should be sworn as a witness. There is no distinction between the cases, either as to the supposed danger of submitting the question of influence and credit to
the jury, or supposed difficulty as to their drawing correct conclusions as to the value of his testimony.
Again. Is there any more danger or impropriety in permitting a witness to testify in favor of his own interest, or in a cause where that interest must be directly affected, perhaps to a trifling amount, than an only son in support of his father's title to a valuable estate which he has every assurance will soon descend to him on the decease of the father? Yet in such a case the son is a competent witness, and the success of the cause and the establishment of the father's title may wholly depend on the testimony thus given. All that can be said is, his credit, under the tempting circumstances of the cause, is a proper subject for the consideration of the jury. The same observations are, to a certain extent, applicable to the case of a parent testifying for or against a child, or a child for or against a parent; or a person laboring under the dominion of malice and revengeful feelings for or against the object of his hatred and resentment. Within the range of this same remark we may also consider the case of a witness, whose general character for truth is assailed; as well as that of an accomplice, whose situation renders him a very suspicious witness. Yet in all these cases, the duty of the jury is very plain, and it is easily performed; and it is believed that the administration of justice is not the less effectual, salutary, and acceptable, because these depreciating circumstances and considerations are allowed to have their proper influence on the tribunal appointed to draw inferences and settle facts.
The more this subject is examined, the more clearly it will be perceived that there is an inconsistency in the theory and practice of the law in relation to it. The strictness of the general principle of exclusion has, by virtue of legal decisions, been dispensed with, in certain cases, on the ground of necessity; and persons interested have been admitted as competent witnesses, such as servants, brokers, carriers, &c. &c. So also in some cases persons immediately interested are by statute declared to be competent witnesses; such as inhabitants of towns and parishes, and members of certain other corporations, in causes where such towns, parishes, or corporations are parties or interested. In all these cases, such witnesses are at once deemed worthy of credit, and they are generally believed, unless disbelieved in consequence of other objections to their moral character. In these instances the reason of the