History of the American BAR

Chapter XVII

The Progress of the Law, 1830-1860

THE years 1830 to 1860 constitute a period of legal development in State and Federal law greater than any period in the legal history of the country. During these years, students and practitioners of law were witnessing the slow up-building of many a legal structure now complete.

Two things were especially characteristic of this era the first being the increasing recognition and protection of individual rights under the law. the emancipation of married women; the safeguards thrown around infants, insane and criminals; prison reform; milder forms of criminal punishment; abolition of imprisonment for debt; the treatment of bankruptcy as a misfortune and not a crime; the removal of the bars against the testimony of witnesses and parties in civil and criminal cases; the recognition of labor unions; and the simplification of the law by codes and statutory revisions, for the benefit of laymen as well as lawyers.

The old Common Law bar of interest had become absurd in its application to modern trials. It resulted in many instances in the complete exclusion of the truth as to the facts of a case. In other instances, it was a direct inducement to fraud, as persons desired as witnesses, and likely to be excluded on grounds of interest, made releases of their interest before the trial, only to receive a re-grant of the interest so released, after the trial was over. In many directions the Legislature had removed the bar, quite illogically, as to certain classes of witnesses.

The reform in this direction had started in England in 1843 in Lord Denman’s Act, which abrogated the disability of a witness for interest or infamy. This Act was spoken of by the Law Reporter in 1844 (Vol. VI) “as justly regarded as the greatest innovation of the day,” and termed by Brougham “the greatest measure under the head of judicial procedure since the Statute of Frauds.” New York followed this with an act, in 1846, removing the bar of religious incapacity from witnesses, and, in 1848, the bar of interest. Michigan adopted the English statute in 1846; and Connecticut passed a similar act in 1848.

One further step remained to be taken–the removal of the unreasonable disqualification, as witnesses, of parties to the suit. This reform was bitterly antagonized by the Bar for many years, chiefly on the ground that it would be a tremendous inducement to perjury. England again led the way by the passage of Lord Brougham’s Act in 1850) (1)

By a statute in 1851 known as the Practise Act (substantially a Code of Civil Procedure), Massachusetts allowed the filing of interrogatories to parties to a suit, and abolished the bar of interest and infamy. In 1853, Ohio adopted in full the provisions of Lord Brougham’s Act. Connecticut had already anticipated the English statute by an act passed in 1848. Massachusetts and Maine followed in 1856; New York, in 1857; and Congress passed an act for the Federal courts in 1864.

In 1864, Maine became a leader in this department of the law by allowing defendants in criminal cases to testify. Massachusetts passed a similar statute in 1866, and New York in 1867. Gradually this reform became general over the United States, defendants in criminal cases in the Federal courts being allowed to testify by an act in 1878 (2)

It would be interesting to trace the effect on the doctrines of substantive law, of this exclusion from the Witness stand of parties who had the chief and the best knowledge of the facts in conflict. That the substantive law was considerably moulded by the conditions imposed by this rule


(1) See article on Law of Evidence in Southern Law Review, N. S. (1875).
Disqualification of Parties as Witnesses in American Law Register, Vol. V (1856-1857) saying,
 "We rejoice to see the spirit of reform is at work."
 See a brilliant and interesting series of articles in American Jurist, Vols. I to XIII (1829-1835), advocating these changes in the law of evidence. See also article in 1851 in the Law Reporter, Vol. XIV; and also articles in the same volume explaining the workings of the new English Act of 1850. (2) See A Chapter of Legal History, by James B. Thayer, Harvard Law Review, Vol. IX (1895).


of evidence, there can be no question. The subject may be a fruitful one for some writer of legal history. (1)


(1) A minor illustration may be given of the results of this rule of evidence as applied to the development of modern economic conditions. In 1846, when railroad law was being formulated every day in the courts, as a new branch of law, a plaintiff failed to recover against a railroad company for loss of his baggage due to the railroad's negligence, simply on the ground that he alone knew what was in his trunk, and yet he was barred from testifying, because a party. The court said:
 "The question whether the plaintiff was a competent witness is of much practical importance to the community, as in consequence of the facilities for travelling, the passenger travel is constantly on the increase and railroad companies being carriers of passengers and baggage are liable by the rules of common law for losses .... But the law of evidence is not of a fleeting character."
 To counteract this decision (Snow v. Eastern R. R. Co., 12 Metc. 44), the Legislature of Massachusetts was compelled by public opinion to pass an act (St. 1851, c. 147) allowing a passenger to put in evidence his own schedule or written descriptive contents of his trunk. [See Harlow v. Fitchburg R. R., 8 Gray, 237 (1857).] Similar acts were passed in other States. See Mad. River, etc.., R. R. v. Fulton, 20 Ohio St. 319 (1853); and Livingston's Monthly law Magazine, January, 1853.