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transacted business as his agent, and, the other party to the transaction being a witness against the husband, she is the only person who can protect his rights in court. What has the protection of confidential communications to do with the exclusion of such a witness? Ratione cessante, cessat ipsa lex; where the reason for a rule ceases, the rule itself fails. It will not be found difficult in practice to draw the proper distinction, and apply it intelligently.
The rule is plainly stated as follows in the present code of the State of New York: "A husband or wife shall not be compelled, or, without consent of the other, if living, allowed, to disclose a confidential communication made by one to the other during the marriage." We think decidedly the same shield should be thrown over such confidences after the death of either party, as before, and that such disclosure should not be allowed in any case after such death.
It may be said that it would be subversive of sound policy to compel a wife, living with her husband, to come into court to testify against him in any case, at the instance of his adversary. Practically this is rarely if ever attempted. Litigants in their senses would not, under ordinary circumstances, adventure quite so far into the enemy's camp. Especially in Church trials it would be impossible for this evil to occur, because the witnesses appear only of their own accord.
Lord Denman, whom we have already cited, though in favor of allowing parties to testify, was still of opinion that husband and wife should be disqualified as witnesses for or against each other. First, on the ground already discussed, that the confidence between married persons makes their whole conversation an unreserved confession:
But (he says) our stronger reason is, that the passions must be too much alive, when the husband and wife contend in a court of justice, to give any chance for fair play to the truth. It must be expected as an unavoidable consequence of the connection by which they are bound that their feelings, either of affection or hatred, must be strong enough to bear down the abstract regard for veracity, even in judicial depositions.
This is certainly not a flattering view of human nature, and if it does not somewhat underestimate the average regard for truth, judicial tribunals have very little solid ground upon which to stand. The contrary view prevailed in England as early as 1853, when an act was passed making husbands and wives of parties in civil suits competent and compellable to testify, they being privileged, however, from disclosing any communication made to them during the marriage. In 1867 the Legislature of this State (New York) enacted a similar law, and this was followed, in 1876, by an act making husband or wife competent, but not compellable, to testify in all criminal proceedings against the other. The drift of opinion is now in favor of admitting all witnesses who are able to throw light upon the questions to be tried, leaving it to the jury to make all reasonable allowances for their interest or feelings, and determine the credit to be given to their testimony. Although perjury is too common in our courts, it is doubtful whether it is more so in consequence of the removal of the restrictions which shut out all interested witnesses; and it is certain that courts now have much greater facilities for arriving at the truth. All these reforms have encountered opposition, and have been adopted not without misgivings, but experience is demonstrating their wisdom. It is a common notion that the science of law is mainly the following of precedents, but there is nothing that better marks the progress of civilization than the history of jurisprudence; and our greatest jurists have been liberal, though judicious, reformers. More than two centuries ago Sir Matthew Hale condemned "the over-tenacious holding of laws, notwithstanding apparent necessity for, and safety in, the change." Nothing much better than the following passage has been written since:
He that thinks a State can be exactly steered by the same laws in every kind as it was two or three hundred years asro, may as well imagine that the clothes that , fitted him when a child should serve him when he was grown a man. The matter changeth; the custom, the contracts, the commerce, the dispositions, education, and tempers of men and societies change in a long tract of time, and so must these laws in some measure'be changed, or they will not l>e useful for their state or condition; and, besides all this, time is the wisest thing under heaven. These very laws which at first seemed the wisest constitution under heaven have some flaws and defects discovered in them by time.
What an illustration we have of the truth of this, when we remember that this same upright and immortal judge, under a statute of the realm, tried and sentenced to death two women as witches, and the following Sunday, in allusion to the matter, wrote a " meditation concerning the merey of God in preserving us from the malice and power of evil angels." One of his successors, we are told, put an end to witchcraft by directing prosecutions against the parties who pretended to be bewitched, and punishing them as cheats and impostors.
An interesting and important chapter of the book before us is devoted to the consideration of presumptive, or circumstantial, evidence. This has long been a subject fruitful of debate, it may be said of controversy. It is stoutly contended by many that it is dangerous to convict of crime in any case, especially so of capital offenses, upon merely circumstantial evidence. Mr. Phillipps, a writer on evidence, to whom reference has already been made, has published a collection of " famous cases of circumstantial evidence," in many of which persons were convicted who afterward appeared to have been innocent. 'These cases have served as a sort of arsenal from which to draw weapons of defense against all accusations resting upon presumptive proof, and, doubtless, juries have often been deterred from acting upon their own firm belief by the recital of some well-selected instances of mistaken verdicts. But, granting that the cases are all well-authenticated, they make no real argument against the propriety, nay the necessity, of proceeding, even to extremes, upon this species of evidence. Of many of the cases stated by Mr. Phillipps it may be said that no jury should have found a verdict of guilty upon the facts proved; and under our present benign administration of law, with the aid of counsel to the accused, (a right formerly denied,) with eveiy facility afforded to him for the production of his evidence, and with the right given him to testify in his own behalf, there would be slight danger of his conviction.
But if sometimes the innocent have been condemned upon circumstantial evidence, we must remember that they have also suffered upon direct and positive testimony, given by perjured witnesses. We are not, however, to discard either kind of proof because it may occasionally lead us to erroneous results.
The distinction between direct and circumstantial evidence was stated substantially as follows by Chief Justice Shaw upon the trial of Prof. Webster for the murder of Dr. Parkman:
Direct or positive evidence is where a witness testifies to the precise fact which is the subject of the issue in trial; thus, in a case of homicide, that the party accused did cause the death of the deceased. But in case of circumstantial evidence, where no witness can testify directly to the fact to be proved, you arrive at it by a series of other facts, which by experience we have found so associated with the fact in question as, in the relation of cause and effect, that they lead to a satisfactory and safe conclusion; as where footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since its fall, and, from the form and number of the foot-prints, it can be determined with equal certainty whether it was a man, a bird, or a quadruped. Circumstantial evidence, therefore, is founded on experience and observed facts and coincidences establishing a connection between the known and proved facts and the facts sought to be proved.
With the case put by the chief justice we have a good illustration of the two kinds of testimony. If a witness should swear that he saw a man pass across a field it would be direct and positive testimony; if, however, no person saw the man, but we found human foot-prints on the recent snow or the yielding soil, we know from this circumstance, as surely as we could from direct evidence, that a human being has passed that way; and from certain peculiarities of the track, and correspondence with the boot of a particular man, we may be able to identify the individual with considerable certainty. One circumstance after another may be added, all tending to the same result, and each increasing the force of the inference to be drawn, till we arrive at that degree of moral conviction which is resistless. Many a criminal has fancied himself secure in the secrecy of his deed, till some clew has led the way to a train of surrounding facts which have fastened upon him with remorseless certainty.
Careful reflection will show us that in the common affairs of life, whether simple or complicated, we to a very great extent form our conclusions and take our action upon presumptive evidence. The man who is the best discerner of signs, and the best judge of probabilities, will, as a rule, arrive at the most correct results. The facts we gather from absolute and positive evidence are few compared with the ultimate facts which we reach by a course of reasoning, but which we rely upon with confidence. Indeed, it will be found upon the last analysis that much of what we call direct or positive evidence is, after all, presumptive. The following extreme illustration of this is given by Chief Justice Appleton, and was also made use of by the attorney general in Webster's case: You see a man discharge a gun at another, you see the flash, you hear the report, you see a man fall dead, and you infer from all these circumstances that there was a ball discharged from the gun which entered his body and caused his death, because such is the usual and natural cause of such an effect. But you did not see the ball leave the gun, pass through the air, and enter the body of the slain, and your testimony to the fact of killing is, therefore, only inferential; in other words, circumstantial. The judge might have gone further, for even in so plain a case of irresistible inference of fact, we could not without further proof adjudge the man-slayer to be guilty of murder, but for two presumptions which the law supplies; first, that every one is presumed to be sane till the contrary appears, and, second, that every man is presumed to intend the natural consequences of his acts.
It would not be useful for the purposes of this article to attempt to draw the distinction between presumptions of law and of fact; nor would it be possible to enumerate or classify the great variety of inferences which we are constantly drawing from the facts which surround us. In our practical deductions we act upon onr knowledge of the laws of nature, of animal instincts, and of the physical, intellectual, and moral constitution of man. In regard to human conduct, we judge it generally to proceed from the ordinary motives, affections, and passions which animate the human breast. Thus, in a celebrated case, Solomon rightly decided a question where the positive evidence was in direct conflict, upon the simple presumption that a mother's love would prompt her to give up her offspring rather than see it slain; and we are told that the people "saw that the wisdom of God was in him to do judgment."
As Chief Justice Shaw says, it is necessary, owing to the secrecy of crime, "to use all other modes of evidence besides that of direct testimony, provided such proofs may be relied on as leading to safe and satisfactory conclusions; and, thanks to a beneficent providence, the laws of nature and the relation of things to each other are so linked and combined together that a medium of proof is often thereby furnished leading to infer
Fourth Series, Vol. XXXII.—41