« PreviousContinue »
at lawful interest, on the security of land. Neither knows how to examine the title or draw the security deed. If the borrower pays a lawyer to do it-however modest the fee—the deed, under the proposed law, is void, and the debt is bad, even in the hands of a bona fide purchaser, for value without notice.
Such legislation may be had on a sensation ; but can hardly find approval in the considerate law-maker.
Confidence is the basis of all industrial, as well as commercial, success; and whatever strikes at that crushes all nascent enterprises. From every direction comes the call for varying our Southern products, as the sine qua non of Southern prosperity. It will be unfortunate indeed if, when high enterprise is gathering up the conditions of success, the creative money-power is manacled and buried under empirical legislation.
The object of all legal investigation is the discovery of truth. So important was the rule considered, that in all countries, before any testimony was allowed to be received on the hearing of a cause, an oath was administered to the party offered as a witness. Even among the heathen, the solemnity of an oath was required. In every stage of the world, an oath was administered before allowing the witness to give his evidence concerning any matter in dispute.
And the same reason that caused the taking of an oath-the ascer. tainment of the truth-caused men in all ages and in most countries to exclude certain persons from becoming witnesses to determine the truth or falsehood of the fact in controversy. By the institutes of Menu, which for years were the law of India, a party who had a pecuniary interest in the suit could not be received as a witness. A familiar friend, a menial, an enemy, a perjured man, a man who had committed a grievous offense, could not testify. Public dancers and singers, men of deep learning in Scriptures, a dependent, a person of bad fame, and quite a large class were excluded under this law. And while it will not be contended that the law was good in all respects, the point wished to be made is that the heathen thought such an exclusionary rule would tend to secure evidence from a high source that would cause the controversy to end in truth.
The Mahometans excluded, among others, drunkards, gamesters, and usurers. The Roman law excluded apostates, libelers, informers,
those who hired themselves to fight with wild beasts, and many others, when other proof could be had. The son could not testify for his father, nor the father for the son. Such are simply illustrations of the rules adopted by the ancients in the investigation of matters between themselves.
By the Common Law of England, parties to a suit, those interested in its results, husband and wife, the attorney as to all confidential communications from his client, the atheist and the convict, were excluded as witnesses. Later on, when the decisions as to the incompetency of witnesses from interest became so numerous, and the difficulty onciling them became more apparent, Lord Kenyon, in the case of Bent vs. Baker, laid down the rule, that in order to render a witness incompetent on the ground of interest, it must appear that either he was directly interested in the event of the suit, or that he could avail himself of the verdict in the cause, so as to give it in evidence on some future occasion in support of his own claim. No matter how small the interest might be, the witness was incompetent. This incompetency was frequently overcome by releasing the party from liability. The first general statule on this subject in England was enacted in the 3rd and 4th William, which provided that no one offered as a witness should be excluded from testifying on the ground that the verdict or judgment in the action could be used for or against him. Subsequently, by the act of 6th and 7th Victoria, it was provided that no one except a party, or the husband or wife of a party, should be excluded on the ground of interest in the action or event of the trial. The statute of 9th and 10th Victoria provided, that the parties to an action and their wives might be examined on oath, either on behalf of the plaintiff or defendant. Later, by statute of 14th and 15th Victoria, it was provided that parties or persons on whose behalf a suit is brought or defended, shall be competent and compellable to testify as witnesses for either party, except that, in criminal proceedings for an indictable offense, neither the party charged nor the husband or wife of such party could be a witness. This act did not apply to actions founded on adultery, or for a breach of promise of marriage. By act of 16th and 17th Victoria, the husband or wife of a party in a civil action was made competent as a witness except in cases of adultery, but with the proviso that the husband or wife should not be compelled to disclose any con: fidential communications made during marriage. And again, by the 32nd and 33rd Victoria, it was enacted, that parties to any action for breach of promise of marriage shall be competent to give evidence in
such action, with the proviso that no verdict shall be had unless his or her testimony shall be corroborated by some other material evidence in support of such promise. This act also provided that parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceeding, with a proviso that no witness in any such proceeding, whether a party or not, shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness has already given evidence in the same proceeding in disproof of his or her alleged adultery.
By the 22nd and 23rd Victoria, the wife and the husband are competent and compellable to give evidence on a petition by the wife praying that the marriage may be dissolved by reason of the adultery and cruel treatment of the husband, but it will be observed that the 32nd and 33rd Victoria provides that no question or answer shall be propounded to or received from either party, as to the adultery, unless the party has been first examined in chief.
On December uth, 1841, an act was passed by the Legislature of Georgia providing that no person shall be excluded as a witness on account of religious belief, but the fact of such belief might be shown, to be considered by the jury.
As early as the August Term, 1853, in the case of Fohnson vs. The State, Judge Lumpkin, in delivering the opinion of the court, in commenting upon the competency of wilnesses, said: “I would remark that the civil law is a system which abounds in restrictions upon the admission of testimony. It extended its prohibition to relations; parents and children; servants and domestics; freedmen and clients ; advocates, attorneys, tutors, curators; persons who had criminal prose'utions with either party; and those who by eating or drinking with the party, had thrown themselves open to the suspicion of subornation. Still great discretion was given to the judge, both in admitting and excluding testimony, and in judging of its weight.
"And formerly, in England, whole juries were composed of rude and illiterate men—a system of excluding testimony grew up, more techni. cal and artificial than any to be found in the world.
" But as jurors have become more capable of exercising their functions intelligently, the judges, both in England and in this country, are struggling constantly to open the door wide as possible : aye, to take it off the hinges, to let in all facts calculated to affect the minds of the jury in arriving at a correct conclusion. Hence so many modern exceptions to ancient rules of evidence; so many chapters and notes, where the exceptions cover much broader ground than the rule itself.
"By Lord Denman's Act, which received the royal approbation some ten years ago, the objection of incompetency, as far as interest and infamy go, is abolished in Great Britain. Indeed, by a statute of the late Parliament, even husbands and wives may testify for and against each other, except in certain excepted cases. And in this respect the mother country is in advance of her children, though hitherto in legal reforms they have taken the lead of her. But she has stopped infinitely short of the true point.
“ Truth, common sense, and enlightened reason, alike demand the abolition of all those artificial rules which shut out any fact from the jury, however remotely relevant, or from whatever source derived, which would assist them in coming to a satisfactory verdict."
In 1857 the General Assembly provided, that each party might examine the other party as a witness. The last section of the Act, however, provides that nothing in this Act shall be construed to permit any party to be a witness for himself on his own motion.
The law of competency of witnesses which existed in Georgia prior to the Act of 1866 is codified in the Code of 1861, sections 3772 to 3785, as follows:
3772. Witnesses are incompetent who are deficient in understanding; who are infamous by reason of crime ; who are interested in the event of the suit ; who are related as husband and wife; by reason of their ignoble status, such as slaves and free persons of color. Religious belief goes only to the credit.
3773 At fourteen years of age the law presumes a child to have sufficient understanding to testify. Prior to that age the court must decide upon examination.
3774. No physical defects in any of the senses incapacitates a wit. ness. An interpreter may explain his evidence. 3775.
Drunkenness which dethrones reason and memory incapacitates during its continuance.
3776. The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy or insanity, or drunkenness.
3777 Persons convicted of treason or any felony are incompetent to testify in any cause after sentence passed and pending execution thereof, except on criminal prosecution for escape or rescue. If he be a party to a case, necessary affidavits to obtain his civil rights may be made by him.