The Portland daily press., 1883-10-11

5uugment the wisdom of the legislator is in
vain, his will is unheeded his statutes IN
1OTced, his penalties unimposed.
VI the rules of evidence as existing in the
past 1t may be said without exaggeration that
/ tne knaves and criminals had taken sweet
counsel together to establish code affording
tne maximum of protection to themselves and
the minimum of security to the public giving
as py accident an occasional chance for cor
rect decision thay could hardly have i'm
proved upon the law as it was before the
searching criticisms and the unanswerable ar
| guments of Bentham detected and exposed
| the absurd fallacies upon which il rested
True it might have been worse, for they might
have borrowed from the civil law its exclusion
ary rules and thus have almost assured impun-
| lty. But the systems were antagonlstic and
tne borrowing was not had.
| Think for moment of the old rules, the
parties to the litigation, the parties to the con-
tract litigated; the contract maker and the
contract breaker, those making it and know
/, ing why made and how far performed, the ex-
| tent Oh performance and the reasons for nom
performance; the wrong-doer and the wrong
suHerer, knowing the extent of the wrong
committed and the justification, If one there be
oi the act, one OF those pecuniarily interested
| IN the result, for the common law looks only at
pecuniary interest regardless of the ties of
| friendship or blood, the husband or the wife of
either party or the attorney, all those who in
Ihe ordinary course of business would be like
" to know anything about the matter litigated;
-
restored by the gubernatorial pardon, though
sell tadmitted guilt was readily received
wnen 20 the intamy of the criminal is
ADDED the infamy of the traitor to
the recognized theology were unwilling to
affirm belief of what they had, they had no
knowledge; the respondents in criminal pro-
ceedings presumed by law to be innocent and
refused by the same law permission to testify
TO their innocence. were all unhesitatingly ex-
| cluded
Such were some OF the exclusionary rules of
the common law based first upon the assump-
tion that men are presumably liars, else in an
issue when one is right and the other wrong,
truth might be expected from the party in the
right as truth would best subserve his purpose;
and, secondly upon the further assumption
that all judges of fact by whatever name call
ed are hopeleSsly imbecile preferring to decide
as to the trustworthiness of witnesses without
hearing, and excluding them because with self
convicted imbecility they neither dared trust
! themselves nor any other tribunal to hear and
after hearing to weigh the testimony; or be-
cause they, unable to distinguish between
truth and falsehood, might give the prefer
ence to the latter.
But all reforms are slow. The rules to which
have called your attention have been either
modified or repealed. Originally proposed
they met the sturdy opposition of bench and
bar. Proposed by Brougham in 1920 disci-
pie OF Bentham, they received partial adopt
ion in 1843 by Lord Denman's act In this
country bar and bench, the last entertainments
of conservatism, looked askance and with
averted face at the profaneness of these inno-
vations. By way ofzillustration, wrote let
ter to my friend Charles Sumner on the eauali-
ty of all before the law therein advocating the.
right of our fellow citizens of African descent
to be received as witnesses, which sent to one
of our Law journals for publication. But the
idea that negro as slave could be heard as
q witness, was notion SO dangerously radical
that its publication on this side OF the Atlantic
was refused, while on the other it was deemed
worthy ofinsertion in the leading law journals
o. London.
But the Bar were not alone smitten with the
terror of change. Many years ago sent the
editor of the North American Review, a learn
ed professor of the leading university on this
continent, review of Greenlesf's Treatise on
Evidence, criticsing the work and advocating
the general principle that all who can, by any
OF the orgrns of sense, perceive, and perceiving
can make known their perceptionssto others,
should be received as witnesses to
make known such perceptions, leaving
their force and effect to the tribunal whose du-
ty it might be to judge of the trussworthness
Of testimony. The article was sent back as
dangerous and infiammatory in its character,
with the courteous and complimentary sugges-
ton on the part of the professor, that he
should as soon think of turning mad bull
loose III q crOckery shop as aid in spreading
such heresies. But it was published in anoth-
or review, where the editor was less timorous.
has been demolished, more should be; the Chi
ma is safe. The article was not without its Of
feet. Read and concurred in by Mr.. Fisld, the
chairman of the committee of codifcstion, it
was communicated to his associates, by whom
its leading principles we're adopted and incor-
porated in the statutes of New York.
have called your attention to these impor-
tant changes in the law; changes, slowly and
with difficulty accomplished; changes in the ac-
compishment of all which have taken part;
changes, the Importance of which you can
hardly appreciate; changes which lie at the
successful administration of justice. Other
reforms are needed. There is no reason why
| an attorney should not be a witness, or why
| confessions made to him should be held more
| sacred when required for the purposes Of JUS
| tice than those Of patient to his physician,
| principal to his agent, father to his son,
| cestui que trust to his trustee: or, when the
principal is subject to examination, why his at
| torney, his agent, should be exempt, or why
the knave and the criminal should be permit
| ted to enjoy the aid of one on whose secrecy
| they may implicitly rely, whatever the fraud
| to be committed, or the crime to be defended
| But have already wearied you with the
| consideration of past reforms. More are need
| ed but [ must desist. The abors of the bench
are continuous and unceasing, the responsi
| bilities grave, the duties onerous. The subject
matters of litigation are .co-extensive with the
| domain of the material and intellectual
world. No branch of learning which may
| not be needed, no amount of labor which NAV
| not be required. The great end of judicial
| proceeding is that Justice be done to the par
| ties litgant. The care of the judge should be,
to use the words of an eloquent divine, "when
| he goeth up to the Judgment seat to put on
| righteousness as a glorious and beautiful robe
/ and to render his tribunal a fit emblem of that
eternal throne of which justice and judgment
| are the eternal habitation." He should seek
/ for the truth; he should present facts as they
| exist. He would be unfit for his position if
| With the added experience of the bar and the
| bench he could not better appreciate the force
and effect Of testimony and the deductions le-
| ultimately deducible therefrom than any
| tribunal by lot composed of men of different
| pursuits and various dwellings, not disciplined
| by habits of accurate reasoning and unaccus-
toned to weigh testimony or the degree of
credence to be given 1t, and he would be dere-
! lict OF his duty ii he omitted to clearly state
| to them the evidence and its bearings on the
rights of parties, thus aiding the jury in arriv-
| ing at the truth.
| One side of every litigation is in the right
| and the other in the wrong The Judge should
| SO present cause that the right and the
| wrong should appear, the tower of Pisa lean
| ing Justice can hardly be promoted by af-
| tirming its perpendicularity. The less is not
| equal to the greater, and the attempt to give
| the appearance Of equality is but injustice.
But must cease. My judicial life is of the
| past. Those with whom was associated when
| first took my seat on the bench are no more
Honored in life, lamented in death, they have
l EOhO " IeG0lN0 bucsE IcWdFu. OD bu0 D0QCH
| have had no friendships and no enmitles |
| have endeavored to mete out impartial justice,
protecting the young and inexperienced in
his beginnings and giving to the veteran, ex-
| perienced in forensic strife, no more than his
| just rights. | have shrunk from no labor nor
evaded any responsibility. Whatever may be
the worth of the judgments of any court they
owe their value in no slight degree to the
researches of the bar. The learning of the
bench is but the reflection of that of tho bar.
| But 1t is not for me to speak of my judicial
career. Its memory may exist for brief time
IN the kind recollections of friends soon with
| them to lapse into forgetfulness. The labors of
/ the bench have not been irksome, its investi-
CATION not without its pleasure. The severing,
and forever, of the occupations and associa-
| tions of nearly third of century cannot
| happen without its pains and its regrets; but
there comes an end to all things terrene.
My successor enters upon the high position I
have filled, with the good wishes of all. His
abundant learning, his unquestioned ability
and integrity, his genial manners and that
| rare tact by which his adverse rulings are
made more favorable to the losing party than
the favorable ones of anybody else to the win
ming, give ample assurance of brilliant
career, alike honorable and useful
| From otoa On the hAnnh I bnUa