Page:Harvard Law Review Volume 12.djvu/184

l64 HARVARD LAW REVIEW. No part of the procedure of the Court of Chancery was copied so closely from that of the civil and canon law as the mode of taking testimony. The only intentional departure was the use of interrogatories instead of articles for the direct examination of wit- .nesses, interrogatories being used in the civil and canon law, only in the cross-examination of witnesses. Yet in making that departure the serious blunder was committed of keeping secret, until the taking of testimony was closed, all the interrogatories upon which witnesses were examined, as well those used on the direct exam- ination as those used on the cross-examination. In the civil and canon law, the testimony of witnesses was kept secret until the taking of testimony was closed, lest the disclosure of the testimony, while there was yet an opportunity to call new witnesses or recall old ones, should lead to perjury and subornation of perjury. In respect, however, to the acts of parties, as distinguished from the acts of witnesses, as the keeping of these secret would tend only to defeat the purposes of justice, the civil and canon law required their immediate and full disclosure. To this, however, there was one exception, namely, the interrogatories upon which witnesses were cross-examined ; and the reason of it is obvious : witnesses are supposed to be more friendly to the party who calls them than to the adverse party ; and hence it is important that they should testify on cross-examination with as little aid as possible from the party who called them, and with as little opportunity as possible to shape their answers with a view to supporting the testimony which they have given on their direct examination, and each of these objects would be defeated if the interrogatories to be put to wit- nesses on cross-examination were made public before the cross-ex- amination took place. None of these considerations, however, have any application to the direct examination of witnesses, and while there may be good reasons why a party should not know, until the taking of testimony is closed, what testimony the witnesses of th6 adverse party have given, there is every reason why he should know what testimony they were expected to give, and, therefore, probably have given. Otherwise, he can neither safely and use- fully cross-examine, nor know what counter testimony to procure. And yet, in the Court of Chancery, the rule applicable to cross- interrogatories was applied indiscriminately to all interrogatories for the examination of witnesses, the fact being overlooked that the articles of the civil and canon law, and not the interrogatories of that system, were the true analogue of the direct interrogatories