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THE

MASSACHUSETTS.

HE matter of which I shall write has to do with the competency of witnesses. The main features of the commonlaw doctrine on this subject, the general course of its development, and the fact of its substantial disappearance in England and elsewhere, are fairly well known. To these matters, therefore, and the history of them, I need merely allude, - to the ancient commonlaw jury, at once witnesses and triers; to their necessary qualifications, determined by those of witnesses in the canon law; 1 to the slow coming in and the strange development of the practice of receiving witnesses to testify to these juries; 2 to the simple beginnings of the rules relating to the disqualification of these new witnesses, not at all identical with the disabilities of the civil or canon law, and so not the same as those of jurymen, but originating quite naturally in the requirement of an oath, in natural incapacity, in proved untrustworthiness, and in great and obvious danger of perjury; to the working out of these rules in the course of the seventeenth and eighteenth centuries into technical details which greatly perplexed the administration of justice; to the advent of Bentham, and his keen and truculent attacks upon the system; 3

1 Glanville, II. c. 12; Bracton, p. 185; Ayliffe, Parergon Jur. Can. Angl. (1st ed.), 536; Oughton, Ord. Jud. (1738) 156; 3 Bl. Com. 361-364.

2 5 HARVARD LAW REVIEW, 249, 295, 357.

3 The first publication of his writings on this subject was in Paris in 1823. Trait! des Preuves Judiciales. Ouvrage extrait de M. Jérémie Bentham, Jurisconsulte Anglais,

and finally to the melting away in England of almost the whole fabric, under the attacks of Bentham and his followers, during the period between 1833 and 1853 inclusive. Of all these things I will merely remind the reader, and will pass on.

In Massachusetts, as regards the competency of witnesses, we have had for nearly twenty-five years as clean a sheet, probably, as the world affords. The law stands thus: 1 "No person of sufficient understanding, whether a party or otherwise, shall be excluded. from giving evidence as a witness in any proceeding, civil or criminal, in court, or before a person having authority to receive evidence, except in the following cases: First. Neither husband nor wife shall be allowed to testify as to private conversations with each other. Second. Neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint, or other criminal proceeding, against the other. Third. In the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offences, a person so charged shall, at his own request, but not otherwise, be deemed a competent witness; and his neglect or refusal to testify shall not create any presumption against him." I take this from the Public Statutes of Massachusetts, the compilation now in use. It varies from the original statute of 1870 only by the insertion, in the first line, of the words, "whether a party or otherwise." These provisions do not apply to "the attesting witnesses to a will or codicil," — a class of persons, it will be observed, who are required in order to constitute the document, and not merely to give evidence in court.

Although this statute uses the words, "except in the following cases," the cases named are really not exceptions. The first provision as to husband and wife is only a limitation of the range of their testimony; the second secures a privilege; and the third, relating to accused persons, like the second merely secures a privilege.

It may be well to add that the Massachusetts statute also provides that conviction of a crime (any crime) and disbelief in a God may be given in evidence to affect a witness's credit; that

par Et. Dumont, etc. 2 vols. This appeared in an English translation in 1825; and in 1827, John Stuart Mill's edition of Bentham's entire treatise on "The Rationale of Judicial Evidence" was published, in five volumes. It takes a good deal of courage to read it.

1 Stat. 1870, c. 393, s. 1; approved June 22.

Pub. St. Mass. c. 169, s. 18.

a party calling his adversary as a witness shall have "the same liberty in the examination of such witness as is allowed upon crossexamination;" and that "the usual mode of administering oaths now practised here, with the ceremony of holding up the hand [no book being used shall be observed; . . . [yet] when a person declares that a peculiar mode of swearing is, in his opinion, more solemn and obligatory than by holding up the hand, the oath may be administered in such mode." A Quaker may "solemnly and sincerely affirm, under the pains and penalties of perjury," and so may any one who declares (and satisfies the court) that "he has conscientious scruples against taking any oath;" and so must he who is "not a believer in any religion." He who believes in a religion other than the Christian, " may be sworn according to the peculiar ceremonies of his religion, if there are any such.""

In Massachusetts then, all the common-law grounds of witnessexclusion have disappeared: lack of religious belief, pecuniary interest, being a party to the suit or a party's husband or wife, and conviction of an infamous crime; - all, except the lack of natural capacity.

1. As to religious belief and the oath. In this respect, as in others, the change was slow. The two colonies, at Plymouth and Massachusetts Bay, were much distressed by two peculiar classes of people, Quakers and Indians. They regarded the first of these for a long time as the worst sort of intruders, as bringers of a sort of spiritual small-pox; and struggled to be wholly rid of them. To relieve them from the pressure of any hardship, by dispensing, for example, with the necessity of an oath, would have been the last thing likely to be thought of; the effort was to drive them out. In England the Quakers had some relief as early as 1695. It had been found there, after a long contest, that the Quaker was a sort of person who could not be killed off, or put

1 This clause covers the case of some Roman Catholics. See the explanation of the court to Bishop Fenwick, when he inquired why it was proposed to adopt in his case a method different from the usual one: viz. 66 It is well understood, as matter of general notoriety, that those who profess the Catholic faith are usually sworn on the Holy Evangelists, and generally regard that as the most solemn form of oath, and for this reason alone that mode is directed in this court, in case of administering the oath to Catholic witnesses. This is done by the witness placing his hand upon the book whilst the oath is administered, and kissing it afterwards." The Reporter adds; "The oath was then administered to Bishop Fenwick in this form." Com. v. Buzzell, 16 Pick. 153, 156 (1834).

2 Pub. St. Mass., c. 169, ss. 13-31 inclusive.

down, or driven out; he had to be lived with. Here it took longer to find that out. Such well-intending people as these would indeed, here and there, melt in among their neighbors, like other people; and it seems to have required some effort on the part of the authorities to adhere to the orthodox view about them. While, therefore, in the Plymouth Colony, in 1657 and 1658, laws were passed prohibiting and punishing the bringing in or entertaining of Quakers, laws of the same period appear to have recognized some of them as freemen. And although in 1661 several penalties, including whippings, were again imposed on new-comers, yet in 1681 it was enacted, on petition of "several of the ancient inhabitants of the town of Sandwich, called Quakers," that they should have "liberty to vote in the disposal of such lands, and . . . to vote for the choice of raters, and shall be capable of making of rates, if legally chosen thereunto by the town and persons aforesaid, so long as they carry civilly and not abuse their liberty." 1

Quakers, like all others, were early required in the Plymouth colony to take the oath of allegiance, "the oath of fidelity" as it was called, and on refusal were, at first, ordered to leave, and afterwards regularly fined, on being summoned "at each election," five pounds on each refusal.2 It was not until 1719, long after the union of the colonies, that Quakers were allowed to substitute for the oath a solemn declaration of allegiance. On March 5, 1743-4, by a law limited to three years Quakers were, for the first time, allowed, "upon any lawful occasion," instead of taking an oath, to solemnly and sincerely affirm and declare under the pains and penalties of perjury; " but they could not do this in criminal cases, as witnesses or on any juries, nor could they, in general, hold any office where an oath was then required. This law was afterwards renewed for ten years, and, in 1759, it was permanently enacted and made applicable also to criminal cases. Finally, by Stat. 1810,

1 Plym. Col. Rec., vi. 71. In following the course of events, it may be well to notice that George Fox, the Founder of the Quakers, was born in 1624, and began to preach about 1648.

2 Plym. Col. Laws, 76, 130.

3 Province Laws, ii. 155.

4 Province Laws, iii. 126. It is interesting to see by other parts of this statute that provisions had become necessary for cases when a majority or all of “the assessors or collectors of any town" shall be Quakers.

• Province Laws, iv. 180. A passage from the diary of Chief Justice Lynde as to a case before him in Nantucket in July, 1737, shows that Quakers then served on grand

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