Abbildungen der Seite
PDF
EPUB

WHO SHOULD BE WITNESSES?

We have a word to say in regard to the act pending before the state legislature repealing the law allowing parties in law suits to testify as witnesses. We borrowed the reform from England, where it has received the sanction of parliament, of the judges and of the bar, bodies slow to depart from the established usages of the realm, or to adopt innovations not founded on common sense and deliberate forethought. Though in direct conflict with the rules of evidence and the theories of conducting trials, as established for centuries, the new system has been found to work admirably in the courts of Great Britain. We have the authority of several of her best jurists and her leading journals for saying, that it has shortened and simplified trials, accomplished, in some cases, the ends of justice, which could have been accomplished by no other method, and reached with directness the facts of the case, which could not have been reached except by the examination of parties the most directly informed of those facts. The opinion of our judges and lawyers is almost unanimous in opposition to the repeal, as was shown by the very respectable and numerously signed memorial recently transmitted to Albany.

The opposition to the present law is based principally upon the ground that it is said to encourage parties to suits to swear falsely. Now, we believe willful and corrupt perjury to be a very rare offence, in civil actions at least. The chances of detection are a thousand to

one against the perjurer; and the party to a suit who offers himself as a witness must stand up before a jury who scrutinize him all the more closely because he is a party to the controversy. He must also submit to the rigors of a cross-examination; and it will fare hard with him if the collateral circumstances and details of his story do not harmonize with the naked facts as stated in the direct examination. It is easy to invent the skeleton of a falsehood, but it is a terribly difficult task to clothe it with flesh and blood, and make it live and move and have the being of truth. On the other hand, there is no resisting the story of an honest man, who tells it with frankness and with that minuteness of knowledge which every person is presumed to possess, with regard to his own case. In no other way can a man of integrity sometimes refute an attack upon his character, or repel the plots of conspirators.

In fact, it is the carelessness, forgetfulness and innocent (because unconscious) prejudices of third parties, acting as witnesses, which most complicate and injure the truth of a case. Let those in full possession of the facts state them; and if they willfully lie, they must have a long memory to escape detection.

We will conclude by giving one or two illustrations of the happy manner in which the present law has operated, illustrations all the more interesting to our readers, because they arose out of commercial cases.

A capitalist of this city assigned to an insurance company, at the time of its organization, a bond and mortgage for $5,000, with the understanding that he should receive in return, fifty shares of their capital

stock, as soon as the company should commence business. The company took the bond and mortgage and collected the interest regularly, but never delivered any stock to the assignor. He brought suit for the value of the bond and mortgage, which was defended, the company averring that they had loaned the plaintiff $5,000 in consideration of the assignment. When the case came on for trial, the plaintiff found himself unable to establish his case. The business had been transacted hastily and with entire but misplaced confidence in the good faith of the company. At this stage of the case, the law in question was passed; the plaintiff came forward as a witness, told a perfectly straightforward story, which the defendants did not attempt to contradict, and so recovered a just judgment.

In a case recently tried in the supreme court (and reported in these columns), the plaintiff sued the defendant as the maker of a note for $3,000. The defence was that the note originated in a fraud practiced on the defendant, was wholly without consideration, and that the plaintiff, who was endorsee, knew these facts when he took it, and was suing for the benefit of the payee, who had fraudulently obtained the note. The burden of proof was of course on the defendant, and his own testimony was the only evidence he could furnish. He testified to conversations with the plaintiff, which proved clearly the knowledge of the plaintiff of the circumstances in which the note originated, and of its fraudulent character. The plaintiff did not dare to contradict him, could only say that he "did not recollect," and so the defendant gained his cause.

In both these cases, it will be noticed that the plain narrative of the truth teller was not contradicted. It is a daring act to invent a wholesale lie and to insist upon it before a jury. In fact, these two cases are so complete an answer to the objections of the friends of the repeal, and so fair an illustration of the principle upon which our present law is founded, that we here "rest our case."

Since the above remarks were written, the assembly has stricken the enacting clause from the bill to repeal, which probably disposes of the matter for the session.

VISITATION AND SEARCH ACCORDING TO THE LAW OF NATIONS.

The letter of Mr Cass, then minister to France, to M. Guizot in 1842 against the quintuple treaty of 1841 (which letter, in connection with an essay published in Paris about the same time "concernant le droit de visite," and ascribed to the same source, probably had much influence in preventing the ratification of that treaty by the French government), and Mr. Webster's letter to Lord Ashburton, Aug. 8th, 1842, (Works, vol. v, p. 142; vol. vi, p. 329), are familiar to the public. They have lately been extensively copied by the press, and the principles they set forth have not only been reaffirmed by the present administration, but have also met the cordial approbation of both houses of congress now in session, and of the bulk of the American people.

But it is not alone upon the authority of these dis

tinguished statesmen, that our government is preparing to resist the right of visiting American vessels, now claimed by the British cruisers in the gulf. Their view is supported by a uniform course of practice on the part of our own government from the earliest period, and by the well ascertained principles of international law.

Vattel, one of the oldest of modern writers on the law of nations, discusses "the right of searching ships" exclusively under the title of war, nor is there a word in his voluminous treatise to justify search or visitation in time of peace.

Kent, with his usual perspicuity, lays down the principle which covers the whole subject, in the following language:

"No nation has any right of jurisdiction at sea, except it be over the persons of its own subjects, in its own vessels; and so far territorial jurisdiction may be considered as preserved, for the vessels of a nation are, in many respects, considered as portion of its territory, and persons on board are protected and governed by the law of the country to which the vessel belongs. This jurisdiction is confined to the ship; and no one ship has the right to prohibit the approach of another at sea, or to draw around her a line of territorial jurisdiction, within which no other is at liberty to intrude. Every vessel in time of peace, has a right to consult its own safety and convenience, and to pursue its own course and business, without being disturbed when it does not violate the right of others."-II Kent's Commentaries, p. 26.

« ZurückWeiter »