that will suit the demands of society. While in material matters progress is the rule, in all matters which deal with man as man, the case is somewhat different. Human nature is and has been the same ever since Adam fell. The passions that sway the heart of to-day reigned in the lives of men a thousand years ago. The description of the heart that David gave is recognized now as critically accurate, and hence all that can be done in legislation is to enact such laws as most nearly meet the exigencies of society, and which tend to promote healthy development of personal and national character. It will be conceded that many statutes, when viewed in the abstract, when considered without any practical relation to men and society, are far from perfect; and yet these same statutes better subserve the public interest than the ideal law. Society in its ideal state, where all is love, needs no law. The very existence of statutes carries with it the statement that society is imperfect, and must be controlled by rules that experience shows will work the least harm. This principle obtains in the Act of 1866. The exceptions say in emphatic terms that it is best not to hear all the facts in every case. Better injustice in a single instance than to tear down all rule and cause chaos. It is necessary to enact laws that, in isolated cases, may perhaps work hardships. Better this, though, than have no law, no rule of action. The Statute of Frauds is based somewhat on this principle. Says Mr. Roberts, in his preface to his work on this statute, "It (the statute) says, Now that important business is transacted largely in writing; now that every business man can write, and has by him the means of writing; now that the temptation to perjury in fabri cation of claims resting on oral evidence grows in proportion to the growth of wealth exposed to litigation, it is essential to impose a standard which shall require legal proof for the legal establishment of all important claims.'”

Judge Paxson, in the case of McKinney v. Snyder, 78 Penn. St. Reports, page 500, in delivering the opinion of the court, in May, 1875, says: "The practical working of the recent Act of Assembly (Act) 1869), allowing the parties interested in a controversy to be examined as witnesses on their own behalf, admonishes us that it would be unwise to relax any of the rules of law in cases arising under the Statute of Limitations, and of Frauds and Perjuries."

But it may be insisted that oftentimes injustice would result if a party were made incompetent to testify, and anything that works injustice should not be law. It will suffice simply to say that no general law can ever be devised by man that will meet every conceivable case

that may or might arise.

To say the least of it, would it not be well to require the plaintiff, in every case where an issuable defence is filed under oath, to corroborate his evidence with other testimony? Would not such a rule work well in civil cases? By reason of the humanity of the law, no man can be convicted on uncorroborated testimony of the accomplice alone. This is based on the idea of interest. But when a plaintiff or complainant has a large interest at stake, and his evidence alone is sufficient in law, may not that subtle influence, selfishness, which permeates all human interest-that idol which reigns supreme in so many hearts and demands the sacrifice of every noble impulse— may not this influence, unconsciously if you will, cause the plaintiff to either omit telling the whole truth or else to exaggerate the real fact in dispute so that a verdict in accordance with his testimony might be far from real justice? Would it not at least be a measure on the conservative side to require the party to produce other testimony before he could ask a verdict against the defendant? Take the divorce laws for illustration. A files a libel, and asks the most solemn of all contracts to be annulled by reason of cruel treatment. In support of the allegations, the libellant offers his or her testimony, and frequently a total divorce follows. How much better it would be to require further proof. It must be remembered that society at large is deeply concerned and affected by all such proceedings, and a proper regard for its highest interests would seem to demand rigid rules for the setting aside of the marriage contract, at least. If adultery is the ground, the law closes the mouth of the libellant and demands other proof; but for drunkenness, desertion, incompatibility, etc., the unsupported evidence of the libellant is deemed in law, amply sufficient. The continued prosperity of all social life depends on a strict observance of domestic relations, and yet it is a fact that it is becoming a very easy matter to set aside a marriage contract.

Loose laws make loose people. When men know beforehand that they can appear in judicial tribunals and depose, on oath, in any controversy, that may arise between them, they are inclined to depend on memory for the retention of facts and expressions that should be known without doubt by the party, in event of litigation. But suppose the law preadvised them that in case of disagreement they must sustain their allegations by other evidence than their own, would not the effect be wholesome? Would not the very existence of the rule cause men to be careful in their business affairs, and cause them to commit to writing many things now left to memory? Would it be any more

unjust to say to A, you must produce other evidence than your own, than to say to him, B is not legally bound to you for C's debt unless B binds himself in writing? There is great difference between excluding a witness and excluding evidence. It is only insisted that the facts, the evidence, should be received through another channel, so it might not be warped by the passion of self-interest. At best, is there not great danger attending all parol testimony? How hard is it for a party, after the lapse of time, to tell the whole truth of any given transaction, to so state all of the acts that transpired at the time, or to recall all of the utterances of the parties so minutely that the jury in determining the issue between the parties, may render a verdict which fully accords with the truth. How much harder is it, for a party deeply interested, when testifying in his own behalt and against his adversary, to tell the whole truth? Is justice promoted by saying that credibility should be the sole test? A party may not intend to commit perjury, and yet so eager is he to recover the amount claimed by him, that he may unconsciously omit some important fact or exaggerate a slight circumstance in the case, far beyond the bounds of truth. Would not these dangers be averted by requiring, as far as possible, written evidence? In the case of Shumate vs. Williams, decided at the June term, 1866, and reported in 34th Ga., page 245, Judge Lumpkin, in delivering the opinion of the court, said: "The dangers that attend parol testimony constitute the chief reason for requiring private contracts, of any kind, to be manifested by writing. These dangers are three: misapprehension, misrepresentation, and forgetfulness. The witness may have failed, at first, to understand the facts fully and correctly; he may pervert them, now, by perjury; or he may be unable to recite them all with strict accuracy, by reason of a faded memory. To withdraw from these perils recent transactions only, leaving remote ones of precisely the same class exposed to them still, would be a wild freak in legislation. If a witness is cut off from establishing a new promise, made but a single day before the suit was brought, why should he, by the same law, be trusted to set up one made five years earlier? Surely, his past perceptions-his apprehension of what he has seen and heardwould not be aided by the lapse of time; his memory, however retentive, would not be less apt to miscarry; nor his conscience, if inclined to perjury, be more likely to adhere to truth. On the contrary, the soundest fruits, both of memory and veracity, are those gathered early. As a general rule, witnesses are best able to speak the truth immediately after the occurrence; and they know that if they deviate

from it wilfully, detection and exposure are more imminent. This knowledge is some restraint on mendacity."

Are not these weighty words argument sufficient to sustain the point, that on the ground of conservatism alone, the Evidence Act of 1866, goes too far?

Mr. Bentham, in his treatise on judicial evidence, assumes that there is a very close analogy between justice administered by a parent in his family, and justice administered by municipal tribunals between man and man. He says: "Before States existed, at least in any of the forms now in existence in civilized nations, families existed. Justice is not less necessary to the existence of families than of States. One of your two sons leaves his task undone, and tears his brother's clothes; both brothers claim the same plaything. Two of your servants dispute as to whose place it always is to do a given piece of work. You animadvert upon these delinquencies, you settle these disputes; it scarce occurs to you, that the study in which you have been sitting to hear this is a tribunal, a court; your elbow-chair a bench; yourself a judge. Yet you could no more perform these several operations, without performing the task of judicature, without exercising the functions of a judge, without hearing evidence, without making inquiry, than if the subject of inquiry had been the Hastings cause, the Douglas cause, or the Library Property cause." While this extravagant statement of the theorist is true in part, it contains a fallacy, which in a measure runs through his treatise on judicial evidence, viz: That judicial evidence should be received and acted upon as men do in their ordinary business affairs. The man, in his family, has no preappointed rule for determining facts which transpire in the domestic circle, and which may require investigation. He has no fixed time when he will conclude his investigation, or by what method he will conduct his examination. He may decide to-day, and changing his opinion, he may re-open the question to-morrow. While such a course may obtain under the parental roof, will any one seriously insist the differences between men, involving large interests, should be adjusted on a similar plan? Does not the existence of society, and the best interests of men, demand fixed rules, arbitrary rules, by which conclusions may be reached, and a fixed time for their determination? The stability of society, and the security of private interests require preappointed rules. Otherwise, law is a misnomer, for its very essence consists in being a prescribed rule. Says Lord Ellenborough: "There hardly exists a general rule, out of which does not grow, or may be stated to grow, some possible inconvenience from a strict

(

unjust to say to A, you must pr than to say to him, B is not leg binds himself in writing? Th a witness and excluding evide evidence, should be received be warped by the passion danger attending all paro after the lapse of time, to to so state all of the acts the utterances of the pa the issue between the with the truth. How when testifying in hi whole truth? Is ju the sole test? Al eager is he to recov ously omit some the case, far beyo averted by requi of Shumate vs. in 34th Ga., p the court, said tute the chief to be manifest sion, misrepr failed, at firs pervert them all with stric from these precisely the legislation. made but a the same law