Page:Harvard Law Review Volume 9.djvu/30

2 HARVARD LAW REVIEW, 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 : ^ "No person of sufficient understanding, whether a party or otherwise, shall be excluded from giving evidence as a witness in any proceeding, civil or crim- inal, in court, or before a person having authority to receive evi- dence, 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 com- pelled 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 per- sons 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 Pub- lic Statutes of Massachusetts, the compilation now in use. It varies from the original statute of 1870 only by the insertion, in the first Hne, 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 evi- dence in court. Although this statute uses the words, ** except in the following cases," the cases named are really not exceptions. The first pro- vision 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 pro- vides that conviction of a crime (any crime) and disbelief in a God may be given in evidence to affect a witness's credit; that far 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. I ; approved June 22. Pub. St. Mass. c. 169, s. 18.