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EVIDENCE.

the jury.-2. A second ground of incompetency is the want of religious belief. The law, in order to justify the administration of an oath, or a solemn equivalent affirmation, requires that the party should believe, that it is obligatory upon his conscience, and that he becomes thus bound to tell the truth But there is no certain sanction or obligatory force upon the conscience of a man, unless he believes, that his telling or not telling the truth, will, at all events, make him accountable to a Supreme Being for his conduct; and that, if he tells a falsehood, the Supreme Being will punish hiin accordingly. It is not sufficient, by the common law, that a witness believes himself bound to speak the truth from a regard to his own character and the opinion of the public, or his own permanent interests, or the civil punishments annexed to perjury. Such motives (as has been justly said) have their influence, and may be brought in aid of religious obligation; but they do not supply its place. Indeed, they are of so uncertain a nature, so liable to be perverted to wrong purposes, so infirm in their operation, and so mixed up with other motives, of present reward, of future favor, of hatred, or kindness, or prejudice, that they do not afford a solid foundation upon which to rest our confidence. But if a man does believe in a superintending Providence, and in his responsibleness to that Providence for all his conduct; if he feels that the eye of God can search his thoughts, and that he cannot escape his notice or his power, but will receive at his hands according to his deeds, there is a most solemn and affecting influence upon his mind. He may not always, with this belief, avoid falsehood; but he has the highest motives to do so. Our law, therefore, requires that a person, to be a witness, should believe in the existence of a Supreme God, to whom he is accountable for his actions. The rule is usually laid down, in our books, with this additionthat he should also believe in a future state of rewards and punishments. And it has been accordingly held by some Judges, that if he does not believe in a state of punishment, but only of reward, in a future world, he is not a competent witness, although he may believe in punishment in the present world, for all crimes, by the order of Providence. But this doctrine has been doubted and denied by other judges, who think, that if a witness believes in a God, and that he will punish him in this world, if he swears falsely, he is admissible, notwithstanding

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he may not believe in a future state, or if he does believe in a future state, that he will be liable to any punishment in such state. This latter opinion was held by lord chief justice Willes, in the case of Omichund vs. Barker (Willes' R. 538), and he is himself of very high authority." But upon such a question, where very able judges have differed, it becomes us to say no more than that the question may still be deemed unsettled. It was formerly a rule, that infidels, or disbelievers in Christianity, such as Jews, Mohammedans, and the various kinds of heathen, were not competent witnesses. But that rule has been abrogated for a considerable length of time; and it now matters not whether a person be a Jew or a Christian, a Mohammedan or a Hindoo, if he believes in a God, and in his responsibleness to him for his conduct, and that he will be rewarded or punished according to his conduct, he is a competent witness. This has been firmly settled in our law, at least since the great case of Omichund vs. Barker (Willes' R. 538), in 1744-5. But atheists, and such infidels as profess no religion, or do not believe in any responsibleness to any Supreme Being for their actions, are incompetent witnesses.-3. A third ground of incompetency is infamy of character. But this infamy is not that, which is morally attached to a man for his private profligacy and dissoluteness. That is not sufficient to exclude him as a witness, though it may go far to diminish his credibility. But the infamy, of which we speak, is that which results from a conviction of some crime deemed, in the law, infamous. It is not sufficient that a party has been convicted and punished for a crime; nor that the punishment itself is deemed by the public degrading and infamous. But the offence must, in its own nature, be infamous. All capital offences and felonies are deemed infamous; all offences importing fraud and gross moral depravity; every species of the crimen falsi, such as forgery, perjury, subornation of perjury, piracy, bribery, conspiracy to accuse another of a crime or to commit a fraud, swindling, cheating, grand larceny, and uttering counterfeit paper. Many other offences, though very reprehensible in law, as well as in morals, do not carry with them this disqualification; such as libels, riots, assaults and batteries, and other subordinate misdemeanors. A pardon will, in cases where incompetency is thus a consequence of the conviction, restore the party to his competency, at whatever time, it may be granted; and even though the party has suffered under

it an infamous punishment. And it seems that our courts will not exclude a party as a witness upon a mere conviction of an infamous crime in another state or country, though it will form a strong objection to his credit. Accomplices in an infamous crime, who have not been convicted, but who confess their own guilt, are not on that account disabled from giving testimony; but of course it is received with great distrust and caution, and it rarely happens, that any conviction takes place upon such testimony standing alone and uncorroborated.-4. A fourth ground of incompetency is on account of interest. It is, in our law, a general rule, that all witnesses, interested in the event of a cause, that is, such persons as must gain or lose by the event, are incompetent to give testimony in favor of the party, to whom their interest inclines them, but not incompetent to give testimony for the other party. The interest, however, required to exclude a witness, must be a legal interest (that is, a fixed interest, which is recognised in our jurisprudence as such), and not merely a prejudice, affection or bias, or relationship, though these may go to his credit. In respect to relationship, a husband and wife cannot be witnesses for or against each other. They cannot be witnesses for each other, because their interests are, in legal contemplation, one and the same; nor, generally, against each other, because it would destroy the necessary confidence between them, which the law deems of primary and fundamental importance to social life. But all other relations may be witnesses, for or against each other, such as father and child, master and servant, guardian and ward. But an attorney or counsellor cannot be a witness against his client as to any matter of fact, which he derived from his client in professional confidence. This proceeds upon a large ground of public policy. If the interest be strictly a legal interest, it is immaterial whether it is great or small. If it be not a legal interest, it matters not how strong the bias of the party may be, for that goes to his credit only. It is not sufficient, that he has an interest in the question, or has a case of a like nature; he must have an interest in the event of the cause, or it must be such that the verdict may be given in evidence, for or against him. The interest, also, required -to exclude a witness, must be a fixed, present interest, and not a remote, possible, or contingent interest. Whenever, therefore, the interest of the witness is doubtful, he is of course admitted. If a

witness is really interested in the event of the suit, he is incompetent, although he supposes himself not to be. It would seem to follow, that if he believed himself interested, and he were, in fact, not so, he ought to be admitted as a witness. This is the English rule; but, in some of the American courts, it has been otherwise adjudged. A mere honorary engagement will not exclude a witness. If the verdict or record would secure any advantage to the witness, or repel a charge against him, or a claim upon him, in a future proceeding, he is incompetent. A party to the record is generally incompetent. So a person liable to costs; so bail in a suit; so a servant, in an action against his master for negligence or misconduct of the servant; so a tenant, to establish his landlord's title; so a devisee in a will, to prove the will; so a creditor, to increase the fund of a bankrupt's estate. These are merely put by way of example. If a witness have an interest on both sides, so that, on the whole, he stands indifferent, he is admissible. So, although he is interested, if that interest is released or extinguished in any manner, his competency is restored. So where the witness offers to release his interest and the other party refuses. A member of a corporation is, generally, incompetent to testify in a suit, brought by the corporation. But this rule has been, in many of the American states, abolished by express legislation.-There are certain exceptions to the rule, as to the incompetency of witnesses on account of interest, which have been recognised in our law, and which seem justified by a moral necessity. Thus, agents, factors and servants are, generally, if not universally, admissible as witnesses for their principals, as to things within the scope of their agency. So persons entitled to a reward for conviction of other persons of a crime. So informers entitled to share in a penalty; but this is provided for by positive law. So a party robbed, in an action against the hundred (q. v.) for his loss; for otherwise he might not be able to prove the robbery, which is usually a secret thing. So in America the party, whose name is forged, on an indictment for forgery; but the rule is otherwise in England. The rule of allowing interested testimony, ex necessitate, is to be understood not of a necessity in the particular case, but of a general necessity in cases belonging to that class.-If a witness be not interested at the time when the fact occurred, he cannot, by creating a subsequent interest voluntarily on his own part,

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EVIDENCE.

deprive the party of his testimony, as by making a bet, or wager on the event; but it is otherwise if the interest be creuted by act of law, or the act of the party by whom he is called.—This may suffice as a general outline of the law, as to incompetency on account of interest. And cases often arise on this subject, of extreme nicety and subtlety, where the application of the rule is full of doubt and difficulty. But the consideration of such points properly belongs to a full treatise on evidence. In concluding this head, as to witnesses, we may advert to another exception, which has been extensively, but not universally, adopted in America. It is, that a party to negotiable paper shall not be allowed as a witness to prove its original invalidity, although he may be a witness to establish any subsequent fact. The same rule formerly prevailed in England; but it is now abrogated there.

In respect to oral or unwritten evidence, there are some other rules, which it may not be without use to state. And, 1. first, as to admissions. These, when made by the party himself, or by his agent in the particular transaction, are evidence against him, though not for him. If there are several persons having a joint interest, an admission of one of them in respect to the joint interest is evidence against all. So an admission of one partner, as to partnership transactions, is evidence against all the partners. But in cases of crimes and torts (q. v.), the rule is more limited. There, the admission of one defendant does not affect the others, unless it be a part of the res gestæ; or there be proof of a common conspiracy or design, and the declarations of the party respect that design, and are a part of it, or are made in the course of executing it. But the admissions or declarations of an agent are not evidence against the principal, unless they are made in a case within the scope of his employment, or are a part of the res gesta. His admissions at another time, or in another employment, are not so. What he states while he is doing an act, as agent, is evidence; what he states historically, afterwards, as to the acts and proceedings under his agency, is not, because better proof may be obtained, for he may be called to appear personally as ness. There is a distinction in respect to the effect of admissions. In some cases, they are conclusive; in some, not. They are often conclusive, when the party has thereby induced another to act,or give credit. In many other cases they may be contradicted, where they do not operate as a fraud

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on other persons.-2. Secondly; in respect to confessions. The common law seems to have taken a distinction as to the effect of confessions in civil cases and in criminal cases. Generally speaking, they are evidence in civil cases as admissions. In criminal cases, a free, voluntary confession by a party, of his guilt, is also evidence, and is sufficient, per se, to found a conviction; but where a confession has been obtained by duress, or threats, or by a promise of pardon by an agent of the government or the prosecutor, and the promise is not complied with, the confession cannot be given in evidence.

These cases seem clear. But where a party has made a confession by the advice of a friend, or upon the suggestion of a stranger, who had no authority to promise any indulgence or pardon, there seems some contrariety of opinion, whether such a confession is, or is not admissible as evidence. However this may be (upon which it is unnecessary for us to express any opinion), it is certain, that any facts ascertained in consequence of any confession are, in all cases, evidence; as if a party confess, that he has stolen goods, and tells where they are hidden, and they are found, his statement, that they were there, would be evidence against him, coupled with the fact of finding them.-And if a prisoner has been admitted as a witness for the government, and has confessed, and afterwards, upon the trial of his accomplices, he has refused to give evidence, it has been decided, that, under such circumstances, he may be convicted upon his own confession.-3. Thirdly, as to the number of witnesses. erally speaking, by the common law, the testimony of a single witness, if believed, is sufficient to establish any fact. There are, however, certain exceptions: First. On an indictment for perjury, the evidence of one witness is not sufficient to convict, for that would be only oath against oath. There must be either two witnesses, or strong independent evidence by circumstances, to corroborate the testimony of one. Secondly. In cases of treason, by statute, in England, there must be two witnesses to the same overt act of treason, or one witness to one, and another witness to another overt act of the same treason. By the constitution of the U. States, no person can be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. In England, any confession would be sufficient, even when made out of court, if proved by two witnesses. But in regard to collateral facts, a single witness is

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sufficient, even in cases of treason. Thirdly, in courts of equity, the answer of the defendant (being under oath), as to facts which it positively and clearly denies, will prevail, unless disproved by two witnesses or one witness and corroborative circumstances. A single witness, without such circumstances, is insufficient. In suits at law, the rule is otherwise; and a single witness here suffices in ordinary cases. The practice in courts of ecclesiastical jurisdiction is, in this respect, like that of the courts of equity.

III. In respect to written evidence. This is divisible into various sorts:-1. Statutes or acts of the legislature. These, if of a public nature, are evidence without any particular proof, for the judges are -bound to take notice of them as the law of the land. They are deemed records, and of such a high nature, that they cannot be contradicted; for it is a general rule, that a record is conclusive proof, that the judgment or decision was made as is therein stated. But judicial tribunals will not take notice of private acts of the legislature; and therefore, unless made evidence by some special law, they are admissible in proof only by a properly authenticated copy. But when so proved, they, as matters of record, cannot be contradicted. 2. Judgments. Those of the superior courts of law are matters of record, and are also conclusive. Generally speaking, verdicts and judgments are evidence in cases between the parties to the suit and privies; but they are not evidence in cases between strangers. When the judgment is directly upon the point, it is a bar between the same parties, and their privies, and may be pleaded as an estoppel. And in cases, where it need not be so pleaded, it is, as evidence, conclusive between the same parties and their privies. But it is not evidence of any matter, which came collaterally in question in the suit, nor of any matter incidentally cognizable, nor of any matter of inference from the judgment. There are some exceptions to the general rule. The judgment in a suit between strangers is sometimes admissible, as the record of a judgment against a principal, who has been convicted of a felony, may be given in evidence against an accessory. b. Judgments of courts of a peculiar and excluFive jurisdiction are sometimes conclusive upon all persons. Thus judgments in rem, in cases of seizures by the exchequer and other courts having exclusive Jurisdiction, are conclusive. So sentences of courts of admiralty in matters of prize, and in rem, at least as to the direct effect

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of such sentences in changing the property. So sentences of ecclesiastical courts in cases of which they have exclusive jurisdiction. c. Judgments in cases of general rights, as of a right of common, a public right of way, a custon), a pedigree, &c., are admissible as evidence of such right, custom,&c., in suit between third persons.-3. There are other judicial proceedings, which are not strictly matters of record, as decrees in chancery, and judgments in inferior courts, to which, however, the same general principles apply, as matters of evidence, as to judgments of record.— 4. Depositions also, awards, and examinations by magistrates, are often evidence in cases between the same parties. There are also cases, in which public writings not judicial, such as journals of parliament, public gazettes, rate or tax books, ship's registers, rolls of manor courts, corporation books, and books of public entries, &c. &c., are evidence. But to go at large into the distinctions applicable to them would occupy too much space.

V. In respect to private writings, the rules applied to oral testimony are generally applicable here. Such writings are evidence between parties and privies, but not between strangers, except under the limitations already stated. There are some few cases, in which the written statements of the party himself may be given in evidence, in his own favor, such as, for instance, his account books, to verify charges made by him in respect to debts and charges, which are properly matters of account, such as debits and charges for goods sold, for labor and services, and for materials furnished. But the most common question, that arises in respect to written instruments relates to the mode of proving them to be genuine, or what they purport to be. When the original instrument is produced, if it is objected to, and there is a witness, who subscribed it, he must be called to prove the due execution of it by the party, whom it purports to bind. If the witness be dead, or out of the country, the bandwriting of the witness must be proved by some person acquainted with it, and then it will be presumed, that the witness saw the due execution of it; and it is evidence without further proof. If there is no witness who subscribed it, the handwriting of the party who executed it may be proved by some person who is acquainted with it. But it is not sufficient to prove it by comparison of the handwriting with the known handwriting of the party, though such evidence may be admitted in some cases as corroborative

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EVIDENCE,

evidence. And it has been held, that in case of deeds, even the admission of the party, that it is his deed, or that he executed it, is not, at least where there is a subscribing witness, proof of the due execution of it. If the instrument is lost, upon proof of the loss (and the party to whom it belongs may be sworn to prove the loss), the contents of it may be established by a copy or other proper proof. After an instrument has been executed thirty years, and any possession has followed, or right been exercised in conformity to it, it is admissible without any proof by witnesses. In respect to written evidence, a question often occurs, how far parole (oral) evidence is admissible to control or affect it. There are two sorts of ambiguities affecting written instruments. One is called latent ambiguity, and the other patent ambiguity. The latter is such as appears upon the face of the instrument itself, from the doubtful nature of the terms used. The former is where the terms of the instrument are of themselves certain and free from doubt; but the ambiguity arises from some extrinsic matter or fact, collateral to the instrument. As, for instance, if A grant his manor in B to C; and he has two manors in B, the whole difficulty arises, not from the instrument itself, but from the extrinsic fact that he has two manors; for if he had but one, that would surely pass.—If A devise an estate to his nephew B, and he has no such nephew, but he has a nephew C, there is the same latent ambiguity. In each of these cases, and indeed in all cases of latent ambiguity, parole evidence is admissible to show what or who was intended; for as the difficulty arises from parole evidence, that may also be resorted to in order to remove it. But in cases of patent ambiguity, it is otherwise. Parole evidence cannot be admitted to supply a meaning which the words do not, of themselves, import, or to give certainty, where the words are uncertain. Indeed, the general rule in our law is, that no parole evidence is admissible to vary, explain or control written instruments, to add new terms to them, or to limit or restrain the import of the words used in them. The ground of this rule is the general insecurity, which would arise from allowing the deliberate acts of parties in writing to be controlled by evidence so variable, and subject to so much doubt, as that is, which depends upon the recollection of witnesses. Written instruments are presumed to be prepared with caution and deliberation, and to contain the best evi2

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dence of what the parties intend, and of all which they intend. There are, however, some exceptions to the rule, founded on general convenience, which illustrate rather than weaken its original propriety. Parole evidence may be admitted to show fraud or illegality in an instrument. So to show, that a deed, though dated on one day, was actually delivered on another; for this does not vary its legal effect, but only shows, when it began to operate. So a custom may be shown, bearing upon the subject matter of a contract and creating an obligation, though not provided for in it, because contracts are presumed to be made with a tacit reference to the known customs of the place, and to include the customary obligations and rights, if there is nothing in the contract, which controls the operation of the custom. So the usages of trade are, for a like reason, admissible, not to supersede, but, in effect, to expound the real intention of the parties. So, in certain cases, courts of equity will allow parole evidence to establish a mistake in a written instrument; but this they do only upon the clearest proofs in an adverse case, where the mistake operates in fact as a fraud upon the party. So in relation to ancient instruments, such as charters, where there is some ambiguity in the words, a long course of practice under them is considered as good proof of the true original exposition of them; and parole evidence for this purpose is admissible; for though the words are now uncertain, they may have been certain in the age when they were used; and the parties, by their long acquiescence, are presumed to have put the proper construction on them. In all such cases it is the object of judicial tribunals, as far as they may, to uphold rather than defeat instruments.-There are, also, certain cases, in which express statute provisions exist, prohibiting any but written proofs of certain contracts. In our law, the principal statute on this subject is commonly called the statute of frauds, from its object being to suppress frauds. Among the contracts embraced in this statute are contracts for the sale of lands or interests in lands; contracts for the sale of goods above a certain value as in England above £10; contracts to become answerable for the debt, default cr miscarriage of another person; contracts to bind executors and administrators to aftswer damages out of their own estate; and contracts, which are not to be performed within the space of a year after they are made. Probably, in most coun tries, the civil policy has pointed out some

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