ples of justice. It cannot be denied that a witness who is interested in the question, often testifies under as strong feelings, wishes, and prejudices, as he who is interested in the event of the suit; yet, as the jury are made acquainted with the circumstances in which he stands, and are at liberty to estimate the value of his testimony accordingly, no evil consequences have followed from the adoption of the principle; and no complaint from any quarter has ever been whispered against its uniform application. As one great improvement has been made in the law of evidence and administration of justice in the instance abovementioned, why is there not as good reason for advancing one step further, and as little danger in so doing, and under the authority of a special statute, admit persons as competent witnesses on trial, although interested in the event of the cause. The fact of such interest would be made known to the jury, and they would weigh the testimony in the same scales in which they would weigh all the other evidence, and with the same accuracy; and fairly estimate its value, taking into consideration his interest, his understanding, his character, his manner, and the agreement or disagreement of his testimony with that of the other witnesses in the cause? The answer given in our law books to this inquiry, is, that interested witnesses are excluded from a supposed want of integrity.' And Chief Baron Gilbert says, 'When a man who is interested in the matter in question, comes to prove it, it is a ground of distrust, rather than a just cause of belief, for men are generally so short-sighted, as to look at their own private benefit, which is near to them, rather than to the good of the world which is more remote: therefore, from the nature of human passions and actions, there is more reason to distrust such a biassed testimony, than to believe it.' Thus we see that this exclusive principle is founded on the assumed fact that all men are equally destitute of that integrity, which is presumed to secure them from perjury and prevarication, when testifying in a cause in favor of their own pecuniary interest. With all due respect, this seems to be a very harsh presumption, and indeed an impeachment of society. To soften the charge, however, and rescue the better portion of mankind from such an imputation, it is said that the principle of exclusion must be general, nay, almost universal in its operation, and applied in those cases where the interest is minute as well as in those where thousands are involved, because it is impossible for the

presiding judge to make distinctions between man and man, admitting one as a competent witness, and excluding another, on account of his character in respect to integrity and moral worth; or to decide how far the amount of interest may affect different minds in a different manner, or to graduate the influence of interest under any circumstances. All this reasoning may be admitted to be correct, without prejudice to the doctrine which this discussion is attempting to maintain.

it is apprehended that it does not prove the correctness of the exclusive principle. It is true, the presiding judge may not be able to draw the line of distinction and the conclusions abovementioned; and for a very obvious reason, which is simply this, the amount of influence, if any, arising from interest, and its effect on the mind of the witness, is not a question of law, but of fact; and it should, therefore, on principles of analogy, like all other questions of fact, be submitted to the consideration and judgment of the jury-the proper tribunal to settle it. What can be the objection to this course of proceeding? Cannot the jury be trusted as safely with the testimony of the witness when he testifies under the influence of an interest in the event of the cause, as in the question in trial? The same process of reasoning and deciding will be made use of by them in both cases. Could there be any possible danger in permitting a man of unquestioned veracity, integrity, and good morals, to testify to important facts in a cause, merely because his interest to the amount of a dollar may be affected by the verdict? Would not the cause of truth and justice evidently be advanced by such a course? But without multiplying these inquiries, let us see what is the province of the jury where the witness is deeply interested in the question, and of course, testifies under strong feelings and wishes in favor of the party who has called him? In such cases the court observe that the credit of the witness is a subject for the consideration of the jury; and they, as has been before observed, are to judge from all the facts and circumstances of the case, how far the witness is entitled to consideration and credit in the situation in which he is placed. Juries are constantly in the habit of doing this without any difficulty; and it is precisely what they would be called on to perform, if a person interested in the event of the cause should be sworn as a witness. There is no distinction between the cases, either as to the supposed danger of submitting the question of influence and credit to

the jury, or supposed difficulty as to their drawing correct conclusions as to the value of his testimony.

Again. Is there any more danger or impropriety in permitting a witness to testify in favor of his own interest, or in a cause where that interest must be directly affected, perhaps to a trifling amount, than an only son in support of his father's title to a valuable estate which he has every assurance will soon descend to him on the decease of the father? Yet in such a case the son is a competent witness, and the success of the cause and the establishment of the father's title may wholly depend on the testimony thus given. All that can be said is, his credit, under the tempting circumstances of the cause, is a proper subject for the consideration of the jury. The same observations are, to a certain extent, applicable to the case of a parent testifying for or against a child, or a child for or against a parent; or a person laboring under the dominion of malice and revengeful feelings for or against the object of his hatred and resentment. Within the range of this same remark we may also consider the case of a witness, whose general character for truth is assailed; as well as that of an accomplice, whose situation renders him a very suspicious witness. Yet in all these cases, the duty of the jury is very plain, and it is easily performed; and it is believed that the administration of justice is not the less effectual, salutary, and acceptable, because these depreciating circumstances and considerations are allowed to have their proper influence on the tribunal appointed to draw inferences and settle facts.

So

The more this subject is examined, the more clearly it will be perceived that there is an inconsistency in the theory and practice of the law in relation to it. The strictness of the general principle of exclusion has, by virtue of legal decisions, been dispensed with, in certain cases, on the ground of necessity; and persons interested have been admitted as competent witnesses, such as servants, brokers, carriers, &c. &c. also in some cases persons immediately interested are by statute declared to be competent witnesses; such as inhabitants of towns and parishes, and members of certain other corporations, in causes where such towns, parishes, or corporations are parties or interested. In all these cases, such witnesses are at once deemed worthy of credit, and they are generally believed, unless disbelieved in consequence of other objections to their moral character. In these instances the reason of the

common law principle of exclusion, as mentioned by Chief Baron Gilbert, seems to disappear and be forgotten in a moment. How is all this to be accounted for? The statute in the cases abovementioned, and the adjudications dispensing with the principle of exclusion in certain cases of necessity, have only changed a pre-existing general principle of law; they have not changed the character of the witness, purified his morals, increased his integrity, or affected his credit; they have left all these subjects as worthy of the consideration of the jury, and proper for their decision.

There is another inconsistency respecting the subject under consideration, which is deserving of particular notice. If there is so much danger in permitting a person, interested in the event of a cause, to testify as a competent witness, as the existing rule of law presupposes, what shall we say of the course of proceeding in chancery, when the defendant himself is obliged to make oath to his answer? A court of equity is considered as better calculated, in numerous instances, than any other human tribunal to eviscerate a cause, unravel its intricacies, and draw forth from concealment and darkness into open day, a great variety of facts and circumstances which are of vital importance in arriving at a just decision. These advantages are often gained by means of those searching interrogatories which a defendant is bound to answer under the solemnity of an oath. Here the appeal is made directly to the conscience of the party himself; and surely no one can be more interested than he is; and yet this is considered as an important privilege, and happily adapted to advance the interests of truth and justice. Here the defendant not only testifies in his own cause, but the allegations contained in his answer the court are bound to consider as true, unless controlled by the testimony and proof on the other side, and effectually disproved. Is not this course of proceeding, and are not the principles by which it is regulated, inconsistent with the theory and the practice in the courts of common law as to the exclusion of an interested witness, on the ground that his testimony is rather a subject of distrust than belief? In one case a man is not permitted to be sworn, because confidence cannot be reposed in his integrity; in the other, the appeal is made directly to his integrity, and he is solemnly called upon to declare the truth under the sanction of an oath. In a court of equity, it is true, the plaintiff by his bill calls on the defendant to an

swer under oath, and of course he must receive the answer as true, unless he can prove it to be otherwise; but still the course of proceeding is founded on the idea that the oath of a party is of high importance, and entitled to high respect, not only from the plaintiff, but from the court.

Some distinguished names might be mentioned in support of the principles contended for in this examination, but they are purposely omitted; the object being to present the question, uninfluenced by any authority, and resting simply on its own merits. It is a question of mere expediency; if it would be an advantage to the community, and contribute to the developement of truth and the consequent advancement of justice, it would be the part of wisdom to abolish the principle of exclusion by statute, and thus render the law of evidence, on this particular subject, more uniform and liberal; and at the same time simplify the administration of justice, by permitting a jury to estimate all testimony according to its value, and, in so doing, make those distinctions as to personal character and moral worth, in a court of law and the trial of a cause, which we are all constantly making in the walks of social life, and according to which we regulate our friendships, limit our confidence, and guard our interest.

ART. III.-SHIPS AND SHIPPING. (a)

DISTRICT COURT OF THE UNITED STATES, June Term, 1828.
MAINE DISTRICT,

Joseph Drinkwater et al. v. The freight and cargo of the brig Spartan; Jacob Quincy and Chs. Fox, Joseph E. Foxcroft, Robt. H. Thayer, Claimants.

A libel on a charter party for freight due is a cause of Admiralty and Maritime jurisdiction; and a court of Admiralty has cognizance of the cause provided the penalty is not demanded.

The circumstance that the instrument is under seal does not take away the jurisdiction which the court has over it as a maritime contract.

The Admiralty has a general jurisdiction to enforce maritime loans. The ship owners have a lien on goods for the freight due for marine transportation, which may be enforced in the admiralty by a libel in rem.

(a) This case and the succeeding one were originally published in the Eastern Argus. As they involve principles of interest and importance, which are discussed with great learning and ability, we have thought that we should be rendering a service to the profession, to present them in a form more convenient for reference, and more likely to ensure their preservation than the columns of a newspaper. Ed. Am. Jur.