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the hand, as heretofore used, shall be practised, with such exceptions as to Mahometans and other persons who believe that an oath is not binding unless taken in their accustomed manner, as the several courts shall find necessary in the execution of the laws." The practice under this statute appears to have been liberal, and to have followed that of the English court in Colt v. Dutton, 2 Sid. 6 (1657), in allowing a variation from the common form, not merely where this was thought not binding, but where it was thought less solemn. And so the court was able to answer the Roman Catholic Bishop as it did in 1834. This practice was sanctioned by Rev. Stat. c. 94, s. 8 (Nov. 1835), allowing it "when the court. . . shall be satisfied" of a witness's belief as to the greater solemnity of another form, — changed by Stat. 1873, c. 212, s. I, to "when a person shall declare." 2
Regarding the Indians as atheists, they would regularly have been wholly excluded from giving testimony; for atheists, as I have said, were not admitted to testify in this State until the enactment of the General Statutes (Dec. 28, 1859), where it was provided (c. 131, s. 12; now Pub. St. c. 169, s. 17), that "every person not a believer in any religion shall be required to testify truly under the pains and penalties of perjury." But the politic and sensible arrangements about Indians which were actually adopted have been already stated. For such an exception there was not only the usage as to the witnesses of persons accused of high treason or felony, mentioned above (p. 7), but there was the nearer analogy of children too young to take an oath, in rape cases.4 This practice as to young children was, indeed, declared bad, by a divided court, in Powell's Case, Leach (4th ed.), 110 (1775), and by a unanimous court in Brasier's Case, ib. 199 (1779). But it has recently been revived in England, by statute, in a similar class of cases.
2. Passing from the oath and the religious disabilities to those arising from a pecuniary interest in the litigation and from legal
1 Com. v. Buzzell, 16 Pick. at p. 156; supra, p. 3, n. 1. Compare Vail v. Nickerson 6 Mass. 262 (1810) and Bonnier, Preuves (4 ed.), i. ss. 420, 424.
2 And so now in Pub. Stat. c. 169, s. 14. Rev. Stat. c. 94, s. II, had also introduced the express provision previously mentioned, that believers in any other than the Chris. tian religion might be sworn according to any peculiar ceremonies of their religion. • In England, this was partly accomplished in 1854 by Stat. 17 and 18 Vict. c. 125, s. 20; it was completed in 1869, by Stat. 32 and 33 Vict. c. 6, s. 4. See the later comprehensive statute of 1888, Stat. 51 and 52 Vict. c. 46.
4 1 Hale, Pl. Cr. 634; 2 ib. 279.
infamy, these were for the first time attacked and dealt with together in 1851, in the first Massachusetts Practice Act, a statute bringing about extensive reforms in civil procedure at common law. A commission, appointed in 1849 by the Governor, in pursuance of a joint legislative resolve of the same year, moved by B. R. Curtis, then a member of the Massachusetts House of Representatives. and consisting of himself, R. A. Chapman, afterwards Chief Justice of the State, and N. A. Lord, another distinguished lawyer, in a report of permanent value, addressed to the legislature of 1851, recommended, among many other things, the abolition of the disqualification of witnesses for crime or interest.2 The commissioners were unwilling to admit parties to testify, but they proposed allowing the examination of parties, before the trial, upon written interrogatories. In making their propositions as to crime and interest, they said, referring to the English legislation of 1843, "We have been a good deal influenced by the course of legislation in England." At that time a measure for allowing parties to the litigation to testify had been pending in Parliament for two years, but was not yet adopted. It passed, however, in England, almost immediately afterwards, in the very year, 1851,3 which saw the enactment of the commissioners' recommendations in Massachusetts. This Practice Act of 1851 (c. 233) was repealed the next year, in order to change some matters of detail, but was mainly reenacted as Stat. 1852, c. 312; and in all respects material to the present discussion the two statutes were the same.1
3. The case of parties to the suit in civil proceedings was not disposed of until 1856. The Stat. 1856, c. 188, made them competent and compellable in all cases, with qualifications which were abolished from time to time. The case of the husband and wife of the party to a civil suit was dealt with in the Stat. of 1857, c. 305, and in later ones; 5 but the present simple rule which makes the husband or wife of a party competent and compellable in all civil proceedings, and competent but not compellable in all criminal proceedings, was not adopted till the Stat. 1870, c. 393.
1 Abolished in England by Lord Denman's Act in 1843, Stat. 6 and 7 Vict. c. 85. 2 Hall's Mass. Practice Act of 1851, 150-156.
8 Stat. 14 and 15 Vict. c. 99. And see Stat. 32 and 33 Vict. c. 68 (1869).
As regards interrogatories to parties before the trial, this convenient introduction of equitable discovery into common-law practice had long been known in some other States of this country. In England it was not introduced until 1854 by the Stat. 17 and 18 Vict. c. 125, s. 50 et seq.
• In England, in 1853, by Stat. 16 and 17 Vict. c. 83.
4. The admission of the accused person in all criminal proceed ings, with the qualifications stated before (supra, p. 2), was allowed by Stat. 1866, c. 260. This remarkable inroad upon the common law had been first made in Maine by a statute of 1864, c. 280; and it has long been the law in most of our States. It was introduced in the Federal jurisdiction by a statute of March 16, 1878.1
The enactment in Maine of this sensible and very important change, not yet accomplished in England, is understood to have been principally due to the efforts of Chief Justice Appleton, an early disciple of Bentham, and author of a little treatise on Evidence, published in 1860. This book was largely a reprint of an early set of articles published thirty years earlier in the American Jurist, eagerly advocating the English reformer's views. It was mainly Bentham's influence working through younger men, such as Denman, Brougham, and Taylor, the writer on Evidence, that overthrew so rapidly in England the system of witness exclusion. It was the English example that moved us. And as we see, it was the same powerful influence of Bentham that has finally carried the reform on this side of the water to a point not yet reached in his own country. 3
James Bradley Thayer.
120 U. S. Stat. at Large, 30.
2 Beginning in Vol. IV. p. 286.
3 "I do not know," says Sir Henry Maine, “a single law reform effected since Bentham's day which cannot be traced to his influence." Early History of Institutions (London, 1880), 397.
"It seems to me that legal maxims in general are little more than pert headings of chapters. They are rather minims than maxims, for they give not a particularly great but a particularly small amount of information. As often as not, the exceptions and qualifications to them are more important than the so-called rules." - SIR J. F. STEPHEN: History of the Criminal Law of England, vol. 2,94, note 1.
"We believe that not a single law maxim can be pointed out which is not obnoxious to objection." - ToWNSHEND on Slander and Libel, 4th ed., s. 88, p. 71, note I.
ERE is certainly a remarkable difference of opinion. The truth is, that there are maxims and maxims; some of great value, and some worse than worthless. And the really valuable maxims are peculiarly liable to be put to a wrong use. A proposition, in order to gain currency as a maxim, must be tersely expressed. But the very brevity which gives it currency, also, in many instances, gives rise to misconception as to its meaning and application. A phrase intended to point out an exception may be mistaken for the enunciation of a general rule. An expression originally used only to state a truth may be mistaken for a statement of all truth; as comprising in half a dozen words a digest of the entire law on a given topic. As Agassiz was said to be able from the view of a single bone or scale to reconstruct the entire animal of which the fragment once formed a part, so jurists sometimes treat one brief maxim as containing all the materials needed to develop an entire subdivision of the law," a complete pocket precept covering the whole subject."1 How common it is to meet with decisions on important points, where the only hint at an expression of the ratio decidendi consists in the quotation, without comment, of a legal maxim! And, not unfrequently, a maxim implicitly relied on "as covering the entire subject" is one origi
16 HARVARD LAW REVIEW, 437.
nally intended to have only a very limited application, and which "could only do duty as a general exposition by being strangely misinterpreted and strangely misapplied."
Round numbers, it is said, are always false; and purely general criticisms are apt to be unfounded. Those who are wont to eulogize maxims may not unreasonably require their critics to "file a specification." In compliance with this request, we proceed to furnish specific criticisms of some specific maxims. And the objections to these maxims will be stated, so far as practicable, in the words of jurists of acknowledged reputation. One who has the temerity to attack popular idols can hardly expect even to obtain a hearing, much less to convince, if he relies solely on the views "evolved from his own inner consciousness." The convincing force, if any such there be, of this article will consist in its want of originality.
There are phrases, solemn and imposing in form, which seldom or never render any real assistance in the solution of a legal puzzle; but on the contrary actually retard that solution. They are mere truisms; or mere identical propositions; or moral precepts; or principles of legislation; but not working rules of law. "Such sentences are not a solution of a difficulty; they are stereotyped forms for gliding over a difficulty without explaining it." And yet, being mistaken for solutions of the practical legal problem, their use has the effect of preventing a thorough investigation. Prominent in this class is the familiar maxim, Sic utere tuo ut alienum non lædas, and its companion phrase, Qui jure suo utitur neminem lædit. Perhaps no legal phrase is cited more frequently than Sic utere, &c. It is not uncommon for judges to decide important cases without practically giving any reason save the quotation of this maxim, which is evidently regarded by the court as affording, by its very terms, a satisfactory ratio decidendi. Yet in the vast majority of cases this use of the phrase is utterly fallacious.
"The maxim, Sic utere tuo ut alienum non lædas, is mere verbiage. A party may damage the property of another where the law permits; and he may not where the law prohibits: so that the maxim can never be applied till the law is ascertained; and, when it is, the maxim is superfluous." 8
1 6 HARVARD LAW REVIEW, 437.
2 8 Am. Law Rev. 519.
3 Erle, J., in Bonomi v. Backhouse, El. Bl. & El. 622, p. 643.