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taining the facts has been by taking the statements of witnesses. There is very great diversity, however, in the · methods of taking the testimony, varying all the way from
extracting it by torture on the rack under the holy inquisition, or with the bamboo in China, to the mere statement of the witness, uninfluenced by any other consideration than regard for the truth. In most countries a religious oath or admonition of the penalties of perjury is imposed before taking the testimony. There is no country in which all the people have yet attained sufficient moral strength to entirely eliminate the danger of intentional falsehood. Moral delinquency of this kind varies all the way from the deliberate misstatement of a matter of fact to the mere failure to mention a minor circumstance having some bearing on the issue as to which no pointed question compels a definite answer. Nevertheless an overwhelming majority of all the people of European stock are truth tellers by nature and habit, and in all the ordinary affairs of life in or out of court and with or without an oath their statements can be relied on whenever they are called on for information. A far more common and serious obstacle in the way of determining the facts is the unreliability of the testimony of witnesses due to inaccuracy of observation and expression and defects of memory. These cause witnesses to the same occurrence to give very different accounts of it. Every infirmity in the organs of sense, in mental processes and in knowledge of language and power of expression of the witness is liable to leave its mark on his statements. Passing from the infirmities of witnesses to those of jurors and judges we find that the testimony does not produce the same impression on all of them, and that different ones reason to different conclusions from the same premises. Where witnesses contradict each other, one juror will believe one and another the other. The statement of one may be absolutely true, yet made with hesitation, as if in doubt, while the contradicting statement of the opposing witness may be given promptly and positively. By what token can the juror recognize the truth and detect the falsehood?
These multifarious difficulties in arriving at the truth in judicial investigations have induced the law-makers and courts to adopt an elaborate system of rules of evidence. Some of these absolutely exclude witnesses bearing certain relations to the case or to the parties to it from testifying at all, or limit their testimony to certain exceptional matters. Others require proof of certain facts to be made by a prescribed number of witnesses, or by a certain kind of evidence, as a written document executed in a prescribed manner, a record made in a particular office or a copy of it made by a designated officer and certified to with the required formalities. Generally the title to land must be established by deeds in due form, but in many cases this is impossible and many exceptions and modifications of the general rule are found necessary to prevent the most palpable injustice. Various contracts are required to be in writing in order to be enforced through the courts, on the theory that frauds will be perpetrated in the absence of the requirement, yet to prevent frauds resulting from the requirement numerous exceptions are made. In England and the United States until very recent times persons charged with crimes were allowed to confess guilt and receive their punishment without other proof, but were not permitted to testify at the trial. Torture to extract confessions of guilt has been and still is a favorite method of getting evidence in many places. What is termed "sweating" is a mild form of torture still resorted to without authority of law in many places by over-zealous police officers. The inherent difficulties in obtaining proof of crimes committed in secret tempt the officers to force the truth from those who know the facts. The torture is inflicted before trial on the assumption that the prisoner is guilty but will not admit it. The law now regards a person charged with crime as innocent until he confesses or is convicted, and in many states he is allowed to testify in his own behalf. As civilization and moral standards advance more reliance is placed on the truthfulness and honesty of parties and witnesses and the arbitrary rules, based on distrust of them; are abolished. Parties were formerly excluded from testifying on the theory that their interest in the case would cause them to lie. Wives were prohibited from testifying for their husbands. These restrictions are still retained in some states, but there is a marked tendency to do away with them and assume that even those most interested in the result of the trial will tell the truth in the great majority of cases. There has also been a corresponding relaxation of the rules relating to the reception of private account books and other private writings as · evidence. While there has been and still is ample basis for distrust in particular cases, it may well be doubted whether arbitrary rules excluding witnesses from testifying in any case tend in the right direction. The credibility of witnesses may well be affected by the considerations which have caused their exclusion, but it is grossly unjust to assume that all people will resort to falsehood to further their own interests or that a majority of them will do so. The natural obstacles in the way of the judicial search for truth cannot be remove:1 by closing the doors to any place where it may be found. Arbitrary rules may prohibit its discovery, but cannot promote it.
The controversy may be merely as to the facts, or as to the law, or as to both facts and law. Where the facts only are controverted and the parties are agreed as to the law applicable to them, the verdict of the jury or findings of fact by the court are followed by such judgment as they warrant. Where the parties disagree as to what the rules of substantive law are, or as to which of several acknowledged rules applies to the facts as found or admitted, it is the province of the court to declare what the law is and which of its rules apply to the controversy. Where shall the judge look for a clear statement of the law ? In China to the Penal Code, in India to the Code of Manu, in all Mohammedan countries to the Koran, in continental Europe to the compilations of Roman law made under Justinian and the modifications of it made by the law-making power of the particular nation, in England to the acts of Parliament and the reported decisions of the courts construing them or declaring the rules of the common law, and in the United States to the federal and state constitutions, to the acts of Congress and of the state
legislatures, and to the decisions of the courts construing them and declaring the common law. There is not now and never has been in any country a code of written laws so plain in its terms as to be self-explanatory, or which provided rules directly applicable to every question presented to the courts for decision. The Koran, which perhaps has higher authority among Mohammedans than the code of any other people has with them, contains so few and meager rules that the judicial officers are forced to supplement them with others which they deem in accord with the spirit of the Koran. The wisdom of the prophet was not adequate to the future developments of Mohammedan civilization. So it is with every code of laws, no matter how wise the author of it may be or how great his authority. Advancing and receding civilization each present new forms of human relation, activity and combination, new fields of enterprise and new forms of property. Old customs give way to new ones, and old standards of morality are superseded by better ones. Progress means change in the forms and purposes of human activity, and the law, which is merely the expression of legislative will or established custom, always lags behind the advanced thought of any age.
In the United States the courts have to deal with many kinds of law emanating from different sources, and to determine which has controlling force in the case under consideration. The constitution of the United States is the supreme law to all courts, but its field is relatively very small and it affords rules to solve only a very few of the great number of questions to be answered. Acts of Congress passed under its authority rank next. The constitution of the the state in which the court sits is next in authority. Most of the state constitutions cover more ground and are of more frequent application than the Federal Constitution. Acts of the state legislature which do not conflict with either state or national constitution or a valid act of Congress come next and cover a much wider field. While the whole volume of written law contained in constitutions and statutes is much smaller than that of the unwritten common law, it is within the power of the state legislatures to cover as much or as little of the field by statutes as they see fit. The task of ascertaining what the written law is is often one of great difficulty, owing to different enactments made at different times, under different circumstances and for different purposes, which overlap and conflict as to details. In addition to the constitutional and statutory law there are treaties between nations having the effect of law, and the unwritten principles of international and admiralty law. Below all the foregoing there are municipal ordinances operative as local laws, and the bylaws of corporations and associations binding on their members. While the common law is spoken of as the unwritten law, it is looked for in printed books of reports of decisions of the courts in which its doctrines are discussed in endless detail and numberless cases. These cases are of various grades of authority and persuasive reasoning. Decisions of the Supreme Court of the United States are binding on all courts in their construction of the Constitution of the United States and acts of Congress passed thereunder and as to all matters within its special province, but its answer to any question as to what the rules of the common law are have merely the persuasive force of the opinion of the highest court in the land. Similarly the decisions of the highest court of a state as to the law of the state, written or unwritten, is binding on all inferior tribunals of the state. The leading purpose of the people in providing reviewing courts is to procure and preserve uniformity of construction of statutes and constitutions, and uniform declarations of the rules of the unwritten law. It sometimes happens that the Supreme Court changes its views as to the rules of law and either overrules or ignores its own prior decision. This of course introduces confusion instead of preserving uniformity. When a prior decision is pointedly declared to have been a misstatement of the law and distinctly overruled lawyers and inferior courts may accept the last decision with a fair degree of assurance that the rule last announced will be adhered to in the future, but when a prior decision is merely ignored without comment confusion and uncertainty inevitably follow, for nobody can tell which