South Canterbury Times, SATURDAY, APRIL 1, 1882.

South Canterbury Times, Issue 2815, 1 April 1882, Page 2

South Canterbury Times, SATURDAY, APRIL 1, 1882.

“ The letter- killeth, the spirit giyeth life,” precisely and accurately expresses the state oil our feelings in regard to the law of the land. Our laws are all carefully a nd elaborately framed, and are founded on truth and equity,. We are justly proud of British law because it is founded oh principles of equity and bemevolence. Such is the “ spirit" of the law,' and this it is which gives life and tone to society and fosters bo/th faithfulness to moral obligations, and fair dealing between man and man. But in beneficent, effect the letter of the law has no part or lot. The circumlocution of, deeds and schedules and agreements is but a matter of detail, it may be objected. Truej, bnt it is quite possible for the growth of the details to be so excessive as very soon to impede the action of the spirit. When the form is given an undue prominence, the principle it represents is apt to toe passed by in favor of the empty form. To put it in smother way. People without knowledge of law stand in awe of the imposing and interminable phraseology and the verbal intricacies of . statutes and instruments. The pitiless roll of clause after clause, and provision after provision, of “whereas” and “notwithstanding,” subdues the boldest rebel. His spirit fails before it; for it is like the unceasing roll tof the billows on the sea shore. If a desperate criminal could be got hold of and caused to stand and listen to the reciting of the statute under which he is punishable, rendered in a deep monotone every day for a • week, he would present quite a weak and cowed appearance at the end of the term. Desperation would hay© given way to dejection and he could safely be reliberated, for the prospect of a repeated dose would cause his hair to stand ori end and keep him in the path of rectitude. It is high time some reforms were made in legal documentary proceedure for each succeeding day only serves to show the absurdity of the ever recurring “recitals,” and “ definitions.” Surely a reform might be initiated in this direction, viz., to abolish the useless and cumbrous phraseology which veil the real, meaning of an instrument. We do not advocate a weakening of the arm of the law. We have no desire to cut down its power by leaving it shorn. But we do contend that particular designations of individuals, their occupation and antecedents, —once mentioned in a deed should never afterwards be rea d in full, but a form should be provided for a brief indication of the person referred to. By this means alone legal instruments may be reduced to half their size, and raised to the dignity of common sense documents. The law society must have an opinion of its own on subjects of this kind and we should like to have its deliverance. The re-

form must come eventually, as the charges made by lawyers must eventually come down, and we should be glad to see some practical suggestions by men of professional skill and high authorities.

The refusal of a witness in the R. M. Court yesterday, to take the oath in English form (he preferring to do so in Scotch fashion) calls in itself for no special notice; but itnaturallyleads one to reflect upon our mode of “ swearing ” witnesses. The institution is so timehonoured that we fall into the habit of letting it alone. Whether we are justified in pursuing the “let alone” policy at all times, is very doubtful. That we are not justified in the case of the judicial bath seems plain; and, really,‘when one looks at the thing in actual practice one is impressed with a very strong idea that the oath is not what it ought to be, and does not answer the purpose for which it was designed. A witness entering the box to give evidence is demanded by the Court to give a certain pledge that he will speak the truth in its entirety ; that, in fact, he will not merely state facts, but also .that he will not distort or wilfully place in a particular light, any of the facts. He is expected, not merely to tell the truth but also not to deceive ; which, as everybody knows, he may easily do without committing himself to an actual lie. It is to guard against untruthfulness, concealment and exaggeration, against every species of falsity which can’ be comprehended under the term “ false witness ” that the “oath” was instituted. The ceremony, as originally provided, is a solemn one. Holding in his right hand before all eyes, the Book which, at least when the oath was established, was regarded by everybody as the very Word of God, the witness hears a solemn adjuration administered—and to this he signifies his assent by kissing the book. Immediately thereafter he proceeds to answer questions. We are not now concerned with the rival merits of the English: and Scotch forms of oath, but ,we may take occasion to say that the balance of impressiveness is on the side of the Scotch, and that we should say the crime of perjury was a very uncommon one in, Scotland. Bnt since the institution of this oath mankind has passed a great many stages. We have arrived at this condition Opinions have taken the place of convictions ; speculation that of faith ; doubt, that of credulity. On matters about which only a few years ago everybody virtually was of the same mind, there is how wide-spread and many-sided division. On this we make no comment ; it is not our province to discuss. it. We merely state a patent fact, and we do so for the purpose of calling attention to this oath, which looks strangely out of place in modern days, in which the “ spirit of the age ” has passed into a state altogether foreign to that which instituted the oath. It is not too much to believe that it is absolutely no check whatever on five witnesses, out of every ten. The form of words is rattled off, and as soon as it is over the witness puts the book to his lips, hands it back, and then is ready to do just whatever his natural instincts prompt him, viz., to'tell lies or tell truths, uninfluenced by the ceremony in which he has taken part. The oath may make him more careful because of the prosecution to which detected fibbing would expose him, but that is all, Our opinion is that the credibility of ia witness could be best established by the testimony of his neighbors. If a man were known to be, and generally considered, an honest man, he might be .examined without any ceremonial; while, if a man were looked upon by his neighbors as dishonest, no amount of swearing on bis part could force belief in his evidence. We think the oath might profitably be discarded as a somewhat pantomimic ceremony and a plain declaration substituted, it being understood that detection in deliberate -misstatement would be followed by severe punishment. We believe such a change would be an advantageous one in the interests of justice; for a great many persons who now almost disregard the oath, would 5 pay very particular attention to the declaration they made. The responsibility of discriminating between a true and a false witness is, by the present system, somehow left with the Bible, or the oath or an unseen agency. After the man has taken the oath everybody is, satisfied. ..He has passed into the hands of a higher power. But if there is prescribed a declaration by which the witness directly binds himself to the Court, the Court seems to undertake complete responsibility and straightway proceeds to keep a .very, sharp look out upon him. And this, we believe, would be attended with a very xrmch stricter regard for truth on the part of witnesses.