cosideration lavis, tenements, or hereditamenta ir nerest ar g them.greement that are performed ace of one year from the make-st be ium or note in wned by the par Burged therewith, or by some other person thereunto by I illy suthorized (n). And by the same statute it is father itted's, that no contract for the sale of any goods, was merchandis, for the price of 17 sterling, or upwards, she allowed to be good, except the buyer shall accept part of the goods o sold and actually receive the same, or give something in earnest to bind the bargain or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by e parties to be charged by such contract, or their agents thereunto fully authorized." In many cases also certain forms are superdded to writing. Thus, it is of the essence of a deed that it he led and delivered (p): and by the 7 Will. 4 & 1 Vict. c. 26, s. 9 xplained by 15 & 16 Vict. c. 24), a will must be in writing, and recuted by being signed at the foot or end thereof by the testator, by some other person in his presence and by his direction; and ach signature must be made or acknowledged by the testator in he presence ALL ARY § 61. As a general rule, when the law prescribes forms for preappointed evidence, the non-compliance with them is fatal to the transaction, and the whole becomes a nullity. "Non observata forma infertur adnullatio actus" (r). "Forma legalis, forma essentialis " (s). "Solemnitates legis sunt observandæ " (t). Bentham recommends that this should be reversed, and that pointed suspicion, not nullification, should be the result (u); but he admits that nullification is just in certain cases (x). It is impossible to deny that the principle under consideration may be, and often has been, extended beyond the limits alike of usefulness and propriety; and the truth and good sense of the entire matter seem contained in the following observations of Sir W. D. Evans (y). "The interest of society is greatly promoted by establishing authentic criteria of judicial certainty, so far as this object can be effectuated without materially interfering with the claims of general convenience. Where the acts which may become the subject of examination will admit of deliberate preparation, and the purposes of them evince the propriety of a formal memorial of their occurrence, more especially when they are from their nature subject to error and misrepresentation, it is reasonable to expect that those who are interested in their preservation should provide for it in a manner previously regulated and established, or that, in case of neglect, their particular interest should be deemed subordinate to the great purposes of general certainty. But it is also certain that this system of precaution may be carried too far, by the exaction of formalities, cumbersome and inconvenient to the general intercourse of civil transactions; the special application of these principles must be chiefly governed by municipal regulations: but, as a general observation, it is evident that the great excellence of any particular system must consist in requiring as much certainty and regularity as is consistent with gen eral convenience, and in admitting as much latitude to private convenience as is consistent with general certainty and regularity. It may be added, that for these purposes every regulation should be attended with the most indisputable perspicuity; and that the established forms should be cautiously preserved from any intricacy or (r) 5 Co. 4 a; 12 Co. 7. The same holds in the French law. See Bonnier, Traité des Preuves, § 418, 2d ed.; Domat, part. 1, liv. 3, tit. 6, s. 2, § vi. (s) 10 Co. 100 a. (1) Jenk. Cent. 1, Cas. 22, and Cent. 3, Cas. 45. (u) 2 Benth. Jud. Ev. 467, 487, 518. (x) Id. 470. (y) 2 Ev. Poth. 142. strictness that may tend to perplex and embarrass the subjects which they were designed to elucidate, and to endanger and destroy the substance which they were instituted to defend." § 62. Another plan, resorted to by the laws of most nations for guarding against misdecisions, consists in the repudiation as witnesses of persons whose testimony, either from personal interest in the matter in dispute, or other visible cause, seems likely to prove untrustworthy. This is the recusatio testis of the civilians, as distinguished from the recusatio judicis, or challenge of the judge, and in our law is called "The Incompetency of Witnesses." Its policy however has been seriously doubted, even fiercely attacked, in modern times; and much has been said and written on both sides of the question (z). Perhaps the true view of this matter is that the principle of repudiation should, at least in general, be confined to preappointed evidence. There is a great difference between the rejection of evidence, and the rejection of witnesses. Evidence may fairly be rejected when it is so remote that to allow tribunals to act on it would invest them with dangerous or unconstitutional power; or when, being derivative instead of original, its very production carries the impress of a fraudulent suppression of better evidence; or when its disclosure would be against public policy. But the testimony of casual witnesses to a fact, i. e. of persons who have incidentally witnessed it, comes under none of these heads. Such witnesses are the original depositaries of the evidence; and in many cases the exclusion of their testimony would be to exclude all attainable evidence on the question in dispute, and to offer, by impunity, a premium to dishonesty, fraud, and crime. If it be said that, owing to personal interest in the matter in question, unsoundness of mind, deficiency of religion, antecedent misconduct, &c., their evidence is likely to prove unsafe, the answer is, that any line drawn on this subject must necessarily be in the highest degree arbitrary. It is impossible to enumerate, a priori, the causes which may distort or bias the minds of men to misstate or pervert the truth, or to estimate the weight of each of these causes in each individual case or with each particular person. But it is very different with preappointed evidence, where parties have the power to select their own (z) See Benth. Jud. Ev. vol. 1, pp. 3, 151, 152; vol. 2, pp. 541, 542, 543, and bk. 9, pt. 3; Tayl. Ev. §§ 1210 et seq., 5th ed.; Ph. & Am. Ev. 43-45; Bon- 1 See § 134, n. 1, infra. LAW LIBRARY witnesses. To such parties the law may fairly say, "You shall for this purpose select persons who, from their station, occupation, or habits, are likely to be of more than ordinary intelligence, knowledge, or trustworthiness: if you do not, you must take the consequences." All this seems a natural and just development of the great principle, - in the English law a fundamental one, that requires the best evidence to be given, and is further recommended by being rarely productive of injury or inconvenience (a). § 63. But whatever the real value of this plan for securing the trustworthiness of evidence, its abuses have been enormous. In the civil and canon laws, the list of persons liable to be rejected as incompetent to bear testimony was so large, that, if the rules of exclusion had not been qualified or evaded, it is difficult to see how, even with the interrogation of parties and the perilous aid of the decisory and suppletory oaths, justice could have been administered at all (b). And these very qualifications and evasions gave rise to a still greater evil, which shall be noticed presently (c). In some instances entire classes were rejected, not from any distrust of their veracity, but as a punishment for offences, or with the view of affixing a stigma on religious or political opinions. The strongest illus tration of this is to be found in the celebrated constitution of the Greek Emperor: by which Pagans, Manichæans, and members of some other sects, were disqualified from giving evidence under any circumstances; while heretics and Jews were only allowed to do so in causes in which heretics or Jews were parties, and, except in some peculiar cases from necessity, could not bear testimony against orthodox Christians (d). Similar principles prevailed in the canon law (e), which also, as might have been expected, rejected the evidence of excommunicated persons, at least when tendered against such as were orthodox (f). Even whole races and nations have occasionally been brought within the pale of exclusion; as in some parts of the West Indies (g), and (a) See on this subject, bk. 1, pt. 1, and bk. 3, pt. 2. (b) See Dig. lib. 22, tit. 5; Cod. lib. 4, tit. 20; Huberus, Præl. Jur. Civ. lib. 22, tit. 5; Heinec. ad Pand. pars 4, §§ 136140; Devot. Inst. Canon. lib. 3, tit. 9, §§ 13 et seq., 5th ed.; Decret. Greg. IX. lib. 2, tit. 20. Bonnier, in his Traité des Preuves, §§ 225 et seq., considers that the positive rejection of witnesses was rare in the ancient Roman law, and that the cam some of the United States of plicated system established in Europe was (d) Cod. lib. 1, tit. 5, 1. 21. (g) Browne's Civil Law, vol. 1, p. 107, note, 2d ed.; Shephard's Colonial Prac tice of St. Vincent, 69, 70. America (h), where the evidence of a negro slave was not receivable against a free person; and in India, where that of a Hindoo seems not to have been receivable against a Mohammedan (2). The following law of the State of Alabama, passed so late as 1852, carried the matter much farther: " Negroes, mulattoes, Indians, and all persons of mixed blood, descended from negro or Indian ancestors, to the third generation included, though one ancestor of each generation may have been a white person, whether bond or free, cannot be a witness in any cause, civil or criminal, except for or against each other" (k). Although the English law never went so far in this respect as those of most other countries, yet even among us the number of grounds of incompetency to give evidence was formerly very considerable. They have been much reduced in modern times, by the decisions of the judges and the interference of the legislature (1). § 64. One of the strangest and most absurd applications of this principle was the rejecting, or at least regarding with suspicion, the testimony of women as compared with that of men. The following law is attributed to Moses by Josephus: "Let the testimony of women not be received on account of the levity and audacity of their sex" (m); - a law which looks apocryphal (n), but which even if genuine could not have been of universal application (o). The Hindoo code, it appears, rejected their evidence generally, if not absolutely(p); (h) Appleton on Evidence, App. 271, 275, 276, 277, 278. (i) See Arbuthnot's Reports of the Foujdaree Udalut, p. 1, and Preface, p. xxiii.; Goodeve, Evid. 113. (k) Appleton, Evid., App. 275, 276. (2) On the subject of the incompetency of witnesses, see bk. 1. pt. 2, and bk. 2, pt, 1, ch. 2. (m) Joseph. Antiq. Judaic. lib. 4, e. 8, No. 15. Γυναικῶν δὲ μὴ ἔστω μαρτυρία, διὰ κουφότητα καὶ θράσος τοῦ γένους αὐτῶν. (a) Independently of the inspiration of the Pentateuch, and its significant silence on the subject, the style of this law is widely different from that of Moses. (0) There is at least one instance in the Pentateuch, where the evidence of a woman was receivable, and this even in a capital case: "If a man have a stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken unto them: then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place; and they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton and a drunkard. And all the men of his city shall stone him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear." Deut. xxi. 18-21. Solomon also, in his celebrated judgment, 1 Kings iii. 16 et seq., seems to have made no difficulty about receiving the statements of the two women. (p) See Translation of Pootee, ch. 3, s. 8, in Halhed's Code of Gentoo Laws, and Goodeve, Evid. 87. |