excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief: although in every case, the credibility of the witness may be drawn in question, as provided in section 1680.

The fundamental difference between this system of evidence and that in common use, consists in this, that the former goes upon the principle of admission, the latter upon the system of exclusion. Admission is the rule here; exclusion is the rule of the common law. Let in all the light possible, we ask. Not so the common law; exclude the light, it says, lest perchance it deceive you; unmindful, as it appears to us, that poor light is better than none. There are many occasions, when you cannot have the pure light of heaven; it sometimes comes through a stained medium; but you should not therefore prefer total darkness.

The code of 1848 abolished incompetency from mere interest, but left parties still incompetent, as witnesses in their own favor. In this completed code, we are for abolishing the remaining portion of the rule of exclusion, and for declaring parties competent as well as others. This has been already done in Connecticut, by a section of the Revised Statutes of 1849, as follows:

"No person shall be disqualified as a witness in any suit or proceeding at law or in equity, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credit." (Revised Statutes of Connecticut, 1849, page 86, sec. 141.)

One of the commissioners has taken occasion to inquire into the operation of this law, and has received the following answer on the subject from the Lieutenant Governor of that state, which we think will serve to remove any apprehension respecting the result of a similar law here : Lyme, Conn., Dec, 10th, 1849.

DEAR SIR.

I have delayed answering your inquiry, respecting the operation of our law allowing parties in civil causes to testify,

partly in consequence of other engagements, but principally for the purpose of enabling me to speak with some confidence on the subject. As the statute is recent, and excepts from its provisions suits pending at its passage, the experiment has not been fully tested. So far, however, as it has been tried, I may safely say, after conversing with eminent gentlemen of the bar, in different parts of the state, and from my own observation, professional and judicial, that the result is highly satisfactory. So important a change in the rules of evidence met of course, at the outset, a very earnest opposition; especially, (with some distinguished exceptions,) from the senior members of the profession. Their fears I believe, are in a great measure quieted, and I am not aware of any intention or desire to attempt a return to the old system.

Many innovations on the principles of the common law, relating to the admissibility of interested witnesses had formerly been made in Connecticut. The most common action with us is book-debt, and in this, the parties and others having an interest in the event of the suit, had always been allowed to testify. The action of account at law is still in constant use here, in which the same rule exists. In other cases special statutes had obviated the difficulties arising from the restrictions of the common law, until it was found that either both of the parties, or one of them, were permitted, or might be required, to testify, in about twenty of the different forms of civil and judicial proceedings. These changes having proved salutary, it was at last deemed safe and expedient to throw open the door entirely. There appears no tendency to go back; and as soon as the new system is firmly established, I think it will be a matter of surprise that any other should ever have obtained.

It would seem to be a principle of natural justice,that a person whose rights are at stake, should at least have the privilege of telling his own story, and making his own explanations--that he should have the right of saying to the law "strike but hear." Generally he must know more of the facts than any body else. The objection of course is, that his testimony is not to be relied upon on account of his interest. But I think the presumption of falsehood from that cause, in the majority of instances, is not

warranted by experience. Such a presumption exists no where except in a tribunal of justice. In the daily transactions of life it finds no place. Business could hardly be done, or society be held together, if men in fact lied whenever it was for their interest. The first persons to whom we ordinarily go, in searching for the true facts of an occurrence, are the parties themselves.

I doubt again whether the new rule will lead to an increase of perjury. Men who would be guilty of that crime themselves, can usually find others to commit it for them; especially when there is no danger of a contradiction. This is frequently exemplified in the proof of pretended declarations and confessions.

Nor do I believe it will increase litigation. Many a suit is brought or defended, solely because the mouth is shut, whose voice would be conclusive to defeat or sustain it. Much of the time of courts, and the property of suitors, is spent in settling questions on this subject, and especially the nice distinctions between credibility and competency. The common law is said to be "the accumulated wisdom of a thousand years. In accumulating its wisdom on this branch, it has probably cost millions of money.

The inconsistencies of the common law, on this point, are too palpable to escape notice. A witness is excluded who is interested to the value of a cent in the event of the suit, but is not, if interested to the amount of thousands, or his whole estate, in the question at issue. The party himself is excluded, but not his father or child, though their bias may be equal, or their interest really identical. A party claiming to be injured may be a witness in a criminal suit instigated by himself, but not in a civil one for the same cause, though his feelings interests and passions may be involved alike in both.

A member of a public corporation, as a town, may testify, but a member of a private one, as a turnpike company, cannot, though each may be interested in the same manner and to the same extent; as for instance, to avoid the liability arising from a defective bridge. There is a large class of cases where a person interested is admitted, from what is called

"the necessity of the case." If this means because he is the best or the only witness, why should not the rule be coextensive with the reason; which would make it universal. But I am expressing opinions and giving reasons, when I suppose you simply expected facts. My excuse is the earnestness of my conviction on the subject. Trusting confidently that here and elsewhere, the change will be found a most important improvement in the administration of justice. I am very respectfully,

Your friend and obedient serv't,

CHARLES J. Mc CURDY.

The distinguished judge of the district court of the United States for the district of Missouri, Judge Wells, writes also on the same subject as follows:

"I entirely concur with you in the opinion, that all rules for the exclusion of evidence are rules for the exclusion of light. I am satisfied, that every sensible man trying a cause, would be glad to hear, and would find great advantages in hearing, every thing that could be said upon the subject. Those who object to juries hearing every thing relative to the cause, object wholly upon the ground that jurors are unable properly to discriminate, between evidence that is credible and that which ought not to be credited The objectors are, however, all perfectly competent to make such discrimination. The truth, however, I believe to be, that jurors, from their business and intercourse with all classes, are much more able to make just discriminations, than are the judges. There is another objection to those rules. In their application, nice distinctions are to be taken, and decisions made, which cause reversals, expense and delay. If I were preparing a Code, I would not, therefore, hesitate in permitting the parties to testify in their own favor."

This subject was brought last year before the "Society for promoting the amendment of the law," in England, a society composed of the most distinguished judges and lawyers of that country, and referred to a committee. The report of the committee is so full, and the subject is one of such great interest, that we are led to insert in this place the entire report.

COMMON LAW COMMITTEE.

THE following reference was made to the Committee:

"To consider whether parties to the record, both at Law and in Equity, should not be competent witnesses in their own favor, and liable to compulsory examination at the instance of their opponents."

REPORT.

Your Committee have considered the above reference, and beg to answer in the affirmative the questions involved therein. When a matter is submitted to the decision of any persons, be they judges or jurors, it is obviously of the last importance, that those persons should be made acquainted with the real circumstances of the case before them; and it is equally obvious, that the real circumstances are usually best known, and are often only known, to the litigating parties themselves. If then, the parties to the record were as willing, as they are able, to narrate events as they really happened, they would of course be the best witnesses that could be produced; but inasmuch as they are often deeply interested in the result of the cause, and are consequently exposed to the temptation of colouring or misstating the facts, it has been hitherto supposed, at least at common law, that their testimony could not be received, without endangering the best interests of morality, and embarrassing the investigation of truth. In other words, the admissibility of the testimony of parties has been objected to, on the twofold ground, that it is calculated to increase the crime of perjury, and to mislead the court or jury.

Let us consider these objections in their order; and first, as to the temptation to commit perjury. The importance of this objection appears to your Committee to be greatly overrated. So long as parties, like other witnesses, are liable to a rigid cross-examination, it matters comparatively little, what amount of interest they may have in withholding or perverting the truth. The dread of detection and of consequent punishment, even in the absence of every moral sentiment, will in the great majority of instances check the commission of perjury. The party knows that his testimony will be sifted with more than ordinary care, and this knowledge must have a tendency