charged, still the jury only believe his guilt on two presumptions, either or both of which may be fallacious, viz. that the witnesses are neither deceived themselves nor deceiving them (o); and the freest and fullest confessions of guilt have occasionally turned out untrue (p). Even if the jury were themselves the witnesses, there would still remain the question of the identity of the person whom they saw do the deed with the person brought before them accused of it (q); and identity of person is a subject on which many mistakes have been made (r). The wise and humane maxims of law, that it is safer to err in acquitting than condemning (s), and that it is better that several of guilty persons should escape than one innocent person suffer (t), are, however, often perverted to justify the acquittal of persons of whose guilt no reasonable doubt could exist; and there are other maxims which should not be forgotten, "Interest reipublicæ ne maleficia remaneant impunita (u)," " Minatur innocentes qui parcit nocentibus (x)." acts. § 96. Again, the psychological question of the intent Intent in doing with which acts are done, plays a much greater part in criminal than in civil proceedings. "Actus non facit reum, nisi mens sit rea (y)" runs through the criminal law, although in some instances a criminal intention is conclusively presumed from certain acts (z); while in civil actions to recover damages for misconduct or neglect, it is in general no answer that the defendant did not (0) Domat, Lois Civ. part. 1, liv. 3, tit. 6, Préamb.; Rosc. Civ. Evid. 21, 8th Ed.; 2 Ev. Poth. 332. (p) Infra, Part 3, book 2, ch. 6. (9) See 49 H. VI., 19 B. pl. 26. (r) Part 3, book 2, ch. 5. (s) 2 Hale, P. C. 290. (t) 2 Hale, P. C. 289 ; 4 (u) Jenk. Cent. 1 Cas. 59. (y) Co. Litt. 247 b; 3 Inst. (2) Infra, Part 3, book 2, ch. 1, sect. 3, subsec. 1. How far rules consent. intend mischief (a) "Excusat aut extenuat delictum in capitalibus, quod non operatur idem in civilibus (b).” There are, however, exceptions to this, and whether an act were done knowingly often becomes an important consideration in civil suits (c). It may be laid down as a general principle, that so as a man has a right by law to do an act, the intention with which he does it is immaterial (d). All contracts, likewise, are founded on an intention of the parties, either expressed by themselves or implied by law from circumstances. § 97. And here a question presents itself, whether of evidence may and how far the rules of evidence may be relaxed by be relaxed by consent? In criminal cases, at least in treason and felony, it is the duty of the judge to see that the accused is condemned according to law, and the rules of evidence forming part of that law, no admissions from him or his counsel will be received. On the other hand, however, much latitude in putting questions and making statements is given, de facto if not de jure, to prisoners who are undefended by counsel. So, no consent could procure the admission of evidence which public policy requires to be excluded; such as secrets of state and the like. Moreover, no admission at a trial will dispense with proof of the execution of a deed, though the deed itself may be admitted before the trial, with the view to save the trouble and expense of proving it (e). (a) M. 6 Ed. IV., 7 B. pl. 18; Hob. 134; T. Raym. 422; Willes, 581; 2 East, 104; 16 M. & W. 442. (b) Bacon's Maxims of the Law, Reg. 7. (c) 4 Co. 18 b; May v. Burdett, 10 Q. B. 101; Jackson v. Smithson, 15 M. & W. 563; Card v. Case, 5 C. B. 622. (d) See Lucas v. Nockells, in Cam. Scac., 4 Bingh. 729; 2 (e) Infra, Part 3, bk. 2, ch. 6. Subject however to these and other exceptions, the general principles, "Quilibet potest renunciare juri pro se introducto (ƒ)”—“Consensus tollit errorem (g),”—seem to apply to evidence in civil cases; and much inadmissible evidence is constantly received in practice, because the opposing counsel either deems it not worth while to object, or thinks its reception will be beneficial to his client. It has, however, been recently held, that where a valid objection is taken to the admissibility of evidence it is discretionary with the judge whether he will allow the objection to be withdrawn (h). § 98. Whether the rules respecting the incompetency of witnesses can be dispensed with by consent, seems unsettled. In Pedley v. Wellesley (i), Best, C. J., said, that Lord Mansfield once permitted a plaintiff to be examined with his own consent (k); and although some of the judges doubted the propriety of that permission, he (the Chief Justice) thought it was right. In Dewdney v. Palmer (1), where after a witness had been sworn and examined it was discovered that he was the plaintiff, the judge refused to withdraw his evidence from the jury, and this ruling was affirmed by the Court of Exchequer, on the ground that the objection ought to have been taken on the voir dire; but in a subsequent case of Jacobs v. Layborn (m) the same court, consisting of Lord Abinger, C. B., and Rolfe, B., (f) Co. Litt. 99 a, 166 a, 223 b; 10 Co. 101 a; 2 Inst. 183; 4 Bl. Com. 316. (g) Co. Litt. 126 a. (h) Barbat v. Allen, 7 Exch. 609. (i) 3 C. & P. 558, M. 9 Geo. IV. (k) The case here referred to is thought to be Norden v. Wil liamson, 1 Taunt. 378, Lord (1) 4 M. & W. 664. (m) 11 M. & W.685. See however the observations of Parke, B., in Yardley v. Arnold, 10 M. & W. 145. overruled this, and held that objections to competency might be made at any stage of the trial. So, arbitrators are bound by the legal rules of evidence (n); yet on submissions to arbitration previous to the 14 & 15 Vict. c. 99, it was generally made part of the rule of court that the parties might be examined as witnesses. In the case already cited of Pedley v. Wellesley, a female was called as witness for the plaintiff, and it appeared that after being served with the subpoena she had married the defendant. On her evidence being objected to, it was replied that a party to a suit cannot by any act, laudable or otherwise, deprive his adversary of the testimony of his witness; but Best, C. J., said he should allow the witness to be examined if the defendant consented, not otherwise. In a much older case (0), where it was proposed by a man's consent to examine his wife as a witness, Lord Hardwicke, C. J., said, "The reason (p) why the law will not suffer a wife to be a witness for or against her husband, is to preserve the peace of families, and therefore I shall never encourage such a consent;" and she was not examined. Such evidence has been rejected in America, on the ground that the interest of the husband in preserving the confidence reposed in the wife is not the sole foundation of the rule; the public having also an interest in the preservation of domestic peace, which might be disturbed by her testimony notwithstanding his consent, and that there is a very great temptation to perjury in such cases (q). To this latter argument it may be observed, that there is a much greater temptation to perjury when an accomplice in a case of treason or felony is examined (n) Att.-Gen. v. Davison, 1 M'Cl. & Y. 160; Banks v. Banks, 1 Gale, 46. (0) Barker v. Dixie, Ca. temp. Hardw. 264, P. 9 Geo. II. (p) See on this subject, infra, Part 2, chap. 1, sect. 2. (9) 1 Greenl. Ev. § 340, 4th Ed. as a witness against his companions; or an heir apparent comes forward as a witness for his father, the title to whose lands is in question. By the recent statute 16 & 17 Vict. c. 83, husbands and wives are rendered competent witnesses for or against each other in civil cases (r). § 99. All these cases took place before the 14 & 15 Vict. c. 99, had rendered the parties to a suit competent witnesses in general. After the passing of that statute, and previous to the 16 & 17 Vict. c. 83, the question arose whether the wives of such parties were also rendered competent; which, after some conflict of opinion, was resolved in the negative (s). In Barbat v. Allen (t), the plaintiff's case having been proved by a witness, the defendants' counsel proposed to call the wife of one of the defendants, to prove fraud, by the admissions of this witness in her presence. The plaintiff's counsel objected, and Pollock, C. B., refused to admit her testimony. Subsequently the plaintiff's counsel offered to waive the objection; but the judge, notwithstanding, refused to receive the evidence. A verdict having been found for the plaintiff, a rule was granted to set it aside on the grounds, first, that the statute had rendered the wife a competent witness; and, secondly, that, if not, her testimony ought to have been received when the objection was waived. This rule having been argued, and several of the preceding cases with some others cited, the court discharged it: holding unanimously, that the statute had not rendered the wife competent; and, even supposing the objection could be waived by consent, the allowing it to be waived was discretionary with the judge. But the members of the (r) See the statute, infra, Part 2, chap. 1, sect. 2. (s) See Stapleton v. Croft, 16 Jur. 408, and Barbat v. Allen, 7 Exch. 609. (t) 7 Exch. 609. |