Eastern times. [volume] (Bath, Me.) 1846-1857, 1852-03-11
Law Reform - Reorganization
Of the Judiciary System.

tom, in several of our States. thereby freeing
the judiciary from some OF the rubbish Of an
tiouity, with which it has been cumbered.-
Our own State has not been insensible 20 this
movement, for it will be recollccted that a
Committee of legal and learned gentlemen con-
sisting of Messrs. John Appleton of Bangor.
George F. Shepley of Portland, and George
NJ. Chase of Calais, was appointed by the last
Legislature to take into cons liberation the re-
organization of the Judiciary system of the
Stale. We understand that they are about to
report several radical changes to the Lesisla-
ture-but our present object is not to antici-
pate their report, for the purpose of comment
ing upon any of their recommendations, but to
submit few reflections upon one branch of
Law reform which we consider to be of great
importance and interest to the community
that ofrcstoring the competency of parties, as ,cit-
nesses in cir o,rn behalf -- ~ ''' ID
And first, we shall take it for granted that
the consideration of this subject will be of suf-
fcient interest to the general reader to warrant
our dcvotins portion of our columns to it,
The Judiciary department of government like
es than even the Legislative dcpartment-it set
ties the rights of the people. BY the people
consequently all are brought in contact and
connected directly or indirectly. with it.
The ground upon which parties are excluded
as witnesses, is not simply because they are
parties, as formerly held. but on account
of their interest parties. Interest, therefore,
Is the disqualifying principle, as was we'll set
tied almost twenty years ago, in England, ac-
cording to Bingham's reports. Chief Justice
Tindal then laid down the law on this point
that party having no interest. is competent
witness, both when called for himself and
when called by his adversary. 1t is hardly
necessary to say that the philosophy of the
principle Of law objected 10, is based upon a
very low but strongly impelling motive in hu-
man nature. se!fshness. 1t is the bias arising
from self-interest that is sought to be counter
acted. But we must keep in mind that justice
is tho great end aimed at-tte only thing to
be attained, in all judicious Investigations. If
then, any principle of law or rule of evidence
is now in vogue which tends 10 thv art the ends
it for granted that it should be repealed. This
conceded, let US proceed 10 the direct consider
alton Of the subject Of our enquiry which we
will do by glancing, first. at the evils of this
rule of evidence, or principle of law-or what
ever it may be termed. -..
BY excluding the testimony of parties, you
frequently shut out the account of those who
must needs know more of the matter in dis
pute than all the rest of the world-thereby
leading to the manifest failure of justice. Cir
ctonstantial and indirect testimony, consequent
", is resorted to and tortured into use-always
involving more or less uncertainty as to the
correctness of the conclusion arrived at.
The present system operates to the prejudice
of Justice, also, in many cases where one of the
parties, from the nature of his situation, al
ways has witnesses enough to prove what is
desired, as in the case of traders, manufaetu-
rers, and others, who have clerks in their en-
ploy who have more or less knowledge of the
business of their employers, and are conse-
quently available witnesses for them, while the
other party, having his own mouth closed, and
no witnesses to offer, may be entirely preclud-
ed from rebutting or explaining what is brought
against him.
Again, under this system, one party is able,
under certain circumstances, to deprive his OPP
ponent of witnesses by joining them in the suit
with the principal defendant, and thereby clos
ing their mouths. -- -..T -.-
These are some of the evils that may be REM
t,,tl Lot o1,;n he
urged against change. And here the ques-'
ton as to the nature of the change most desra-
bic to be made, may arise. Our own view of
this, is to make clean cork ofit-open the door
wide, and let interest so to persons crcatt in
stead OF his competence. In other words, adj
NIT all the testimony of the parties, and then
give 1t its proper ,Ueigha-gauging it by the in
terest of the witness, the plausibil.ty of the
story, and other circumstances bearing upon
the matter. '-a
Now for the objections-an6 the most serious
one is, that doing away of the present system
would open the door to perjury. The force of
this objection, does not weigh much, in our
mind-for it is by no means clear to us, that
the great bulk of perjury is owing to direct in
terest operating on the mind of the witness =
There are motives springing from zeal, favor,
and affection, hatred and spite, partizanship,
perverted notions of obligation towards EN-.
ployers and others, influencing witnesses, if not
to commit drcc; perjury, to color their state
ments, suppress part, exaggerate the rest,
producing the same effect as direct falsehood
fesides, the testimony of such individuals,
third persons as they arc, is more likely to un-
derso the test of cross examination than would
the testimony of the partics-for while the one
could plead Ignorance, and thus avoid being
drawn out into a long story, the other, know.
ing all the facts in the case, would be com.
PEELED to state them-and the longer and more
minute story is, the more exposed it is to de.
it furnish for detection, by cross-examination,
by comparison ofits parts, and by contrast with
other evidence. Again, by admitting both par
ties to testify, the one will act as check on
: the other, and their compared and contrasted
testimony cannot fail to furnish safe criterion
for the Court to decide upon.
Another objection raised to admitting parties
to testify, is, that it would give advantage to
the able, over the dull. the self possessed over
the nervous Possibly this is true it is an
objection, however, that can weigh but slight.
ly-for it would be folly to attempt to over.
come or counterfeit weaknesses such =. th...