The Burlington weekly hawk-eye. [volume] (Burlington [Iowa]) 1860-1876, 1860-04-07

sepfenbersu Neaauhile, Il eng,.a vi ~ srsst
= psinsed, and peaetd Into thc l,ania II ss nj
: Iaw5ers and jndsta - possible Tt ptoyis
v valoh permits parties ~ = sheir eun ultass
y the nsst radical reeosni, dare say, IN shs g
. y tsAcsice Act. II net ,wish serious opposisi
. especially by Some members of the bar Who hs
y tbeeomA bys~soa of loaesxperieace. devoled
the EaleS q e0muoM llaN. Any asguisenes WI
. ] might think of would not 81 entitled Is m
> stight hut dasing ~ discussion On thia u
4 sint In - House, took down the re,na,
, nAde BY * Darwin, in short hand, and desie
, ed sending them At once, but was prevented frt
reducing them 70 old.faahioned EnRlish ~ I,
count q sprsss Of bssiaesar shah now 4
oeavcf to give at least fair abstract Of Nj. b,
wins Argument The question being, should
party 70 : ssits be allowed to testify at his 0.
inseance. Mr.. Darwin said: s We
The object Of testimony is 70 establish fac
in dispute induce : desired belief in i
court or the jury. Common sense aays produ,
all the fscts, hiring forward him who best knov
sheas-gget gel oil the light--exclude none, for Il
reason merely that il mighf deceive. WHY il II.
common scnse regarded in ahis particular by
court OF jastaces Because, Rfst, in early tim,
jurors were ignorant men, and on that accouI
| thought liable to be easily deceived Hcnc
so0e testimony was excluded from them lcst
4 shonld impose upon them. Secondly, juries d
| cidcd under the personal peril of an sssa;as, an
that danger led to the careful exclusion Of wha
might augment the danger. Third, the uasoun
philosophy Of that day deemed tie mind capahl
Of being torced to exclusions rather than Of bein
convinced by testimony. s.E 81
f. " The advantages Of letting the parties testif
are: First. it will often prevent failure of jus
tice. Second, it will greatly expedite business
IN courts. Third, twill save expense, and fourth
viii diminish the aggrcg ate total of swearing
reason, however, which is only good to those
who object to much oath-taking. All these
points were elaborately considered, and strongly
urged by Mr. Darwin. He then proceeded "a
speak to the objections which were urged asains,
the rule. .
They are, said he, first, that witness who il
also party will be tempted to swear to lie-to
comasit perjury, and thus immortality will be aug.
mented. All will not, certainly do so. II YOU
will, and will not. should my rights he defeated
to keep you from becoming an immoral man p
Keeping him from swearing only keeps him from
exposure. A right productive of prompt and
cheap justice should not be denied me and socie.
ty, because you might use it to your moral preju-
dice.s ShallI not own a horse, lest some villain
be tempted TO steal him? To say that some par
f'es who are witnesses, may commit perjury, is
only to say what is true of all men who swear.
and does not advance your argument but by de-
fsating all swearing. If you say perjury, in the
swearing Of the party, is more probable than in
the swearing Of anotl,er, I ask how you know p
Ifyou reply, because such party is interested in
the result, ask again, how can you know the
stranger Is not equally interested A stranger
to the record mag bare as great an interest, un.
discoverable to you. II you say, however, the
stranger is less frequently interested to swear
falsely, answer, that may he true, and yet, as
you are not able, in any given casc to say wheth-
cr the interest exists or not your position is of
no practical concern to the cause Of Justice. In
the testimony Of the party, the jury can more
nearly and certainly than in any other case esti-
mate the value of the testimony, because they
can at once see and measure the interest. But I
insist that perjury from party is not more prob
able than in many cases from one not party
Look at the case ofemp!oyee for an employer; of
one party for the other when called of the child
fov the parent, or Dice versa +; of a person who is
not in fact interested, but swcars under the be-
lief that he is; Of aperson having great hostil-
ity to party. Indeed, will go further, and say
that party will be less likely to swear to lie
The chances ofhis doing SO with success, diminish
as attention is drawn to the probability of perju
~. lie knows that he is suspected and watched.
4 prudent villain would put the lie in another's
mouth las he can now if he wanted to win BY
,erjupy. Besides, even ifa party we're more like
y to commii perjury than stranger, that would |
rot besconclusiye against letting him testify
fou allow, without objection, u hundred cases |
shere the same probability at'aias, as in motions
or continuances. changes OF venue, affidavits, |
answers in chancery, books of account, contents
If losa trunk, etc. The necessity Of justice de-
msnds That's pDty shoph testify in cases where |
Ne knows the facts, az it does that hs do so jim |
hesc instances.
:" Moreover, this alleged probability of perjury
saecsmx; and, as it exists in all testimony, to be |
consistent, YOU shaul1 e4c!4de all testimony. or
slse admit the party, and let the jnsy find ont Of
III the circumstances Of each case measure of !
he credibility Of the testimony. Shall the judge
oge mani say that the jury shall not have the
eetimony 'ast i should deceive, or shall the ju-
y twelve men) determise :sor themselves wheth-
r it is deception or not? That Is the question.
prefer thetwelve men Of practical business and
actjudgtng s.nse.
"Ths section is law Ia s.sEy States 1t be-
'ame law in Connecticut in 1913, In Vermont |
u 1859, in Minnesota in the same year, in Ohio
n 1853, in New York in 1851, Wisconsin, in 1858.
I is now also the law In Na;Ns and Aassachu-
e.ss, end has been the lay AZ gland siEee 1851.
The experiences Of all thess Stases, ~ shoSa by1
he report accompanying the Civil Code Of Prac-
ice, approves it. Letters, too arc given there in
lnswer to myinquiries, from the English Judses,
nd from those of many ofthc States nearly all I
it Universal experience, may |
vel sag, approves it-lct iowa then try it."
J. more sosract and asansxsrabis argans1t
svery rarely heard. believe IT, change in the |
svSill be universally approved, after II has bsfE
aisly tried. The other changes provided BY the
,ode are net 20 vast, and have not met with 20 |
much oppcsition. The oae in regard to impeach- |
ny . xitness's testimony by evidence Of bad moss
/ character, though opposed by good many,
a In fart, no more than corslary from other
principles in the Code, and will be fosgd 70 work
well Impeachments by reason Of bad reputation
IRE not often rcsosted to, at any ratAsx II man
violated ains lAvs in the decalogue, md half the
,enal code daily, be cannOt be tapeached sndef
Inc prescut rule ifhe have not acquired = tcncr- |
i rers.ation - liar. A man may have fhnt |
too, aud yet bs perfectly truthful =
! sworn wjtness Either will work hardkhips in
roma DsrHicrilar cneea (and ther0 h ne GuIo Of