Page:Harvard Law Review Volume 9.djvu/29

1 HARVARD LAW REVIEW. VOL. IX. APRIL 25, 1895. NO. 1, A CHAPTER OF LEGAL HISTORY IN MASSACHUSETTS. THE matter of which I shall write has to do with the com- petency of witnesses. The main features of the common- law doctrine on this subject, the general course of its development, and the fact of its substantial disappearance in England and else- where, are fairly well known. To these matters, therefore, and the history of them, I need merely allude, — to the ancient common- law jury, at once witnesses and triers ; to their necessary qualifica- tions, determined by those of witnesses in the canon law ; ^ to the slow coming in and the strange development of the practice of receiving witnesses to testify to these juries ; ^ to the simple begin- nings of the rules relating to the disqualification of these new wit- nesses, not at all identical with the disabilities of the civil or canon law, and so not the same as those of jurymen, but originating quite naturally in the requirement of an oath, in natural incapacity, in proved untrustworthiness, and in great and obvious danger of per- jury; to the working out of these rules in the course of the seventeenth and .eighteenth centuries into technical details which greatly perplexed the administration of justice ; to the advent of Bentham, and his keen and truculent attacks upon the system ; ^ 1 Glanville, II. c. 12; Bracton, p. 185; Ayliffe, Parergon Jur. Can. Angl. (ist ed.), 536; Oughton, Ord. Jud. (1738) 156; 3 Bl. Com. 361-364. 2 5 Harvard Law Review, 249, 295, 357. 3 The first publication of his writings on this subject was in Paris in 1823. Traiti des Prenves Judiciales. Ouvrage extrait de M. JerStnie Bentham, Jurisconsulte Anglais ^ I