
    The State v. Isaac Whitten.
    
      Tried before Mr. Justice O’Neall, (sitting for Mr. Justice Martin,) at Union — Fall Term, 1832.
    On an indictment for forgery, the person whoso name i» alleged to have been forged, is not a competent witness to prove the forgery.
    The prisoner was indicted at common law, for the forgery of a bail bond.
    Robert Young, the person whose signature was alledged to have been forged, was offered as a witness on the part of the State, to prove that the signature was false. He was objected to by the counsel for the prisoner, on the ground that' he was incompetent.
    On this point the presiding judge observes, that “ the English rule appears to be that the party by whom the instrument purports to be made, cannot be called to*prove that it is fictitious, if he would be liable to be sued on it if genuine, or if he would be deprived of any claim upon another by its being established to be valid. 1 Ch. C. L. 597. 2 Stark. on Ev. 582.— This rule of exclusion is founded on interest; yet it is clear, that the verdict of guilty could not be evidence for the party whose signature is forged, in an action against him on the instrument. It is said by some of the English writers that itisarule of the Court of sessions, to order the paper found to be forged by a verdict of guilty in an indictment for forgery, to be impounded or cancelled, and thus prevent the possibility of the assertion of any right at law, or elsewhere, on it. This may constitute a good reason for the English rule ; but I am not aware of any such practice in this State, and in the absence of it, there is certainly no reason in enforcing a rule, which no longer is sustained by the reason which might have made it once proper. But I do not consider the English rule even as beyond doubt. For it will be seen, that the party to the fictitious instrument, is admitted to be a competent witness to all points except the fact of forgery. 1 Ch. C. Law. 598, 2 Taun. 328. 2 Stark. on Ev. 583. If this be so, it fenders the rule purely arbitrary, without a reason to sustain it. For if interest in the event of the prosecution, is the ground of exclusion of the party on the fact of forgery, the same interest exists as an objection to him in relation to every fact which may be necessary to establish the prisoner’s guilt.”
    “In every other case of criminal prosecution, (where the prosecutor is not by statute entitled to a part of the fine) the party injured, is a competent witness; and I never yet have been able to perceive any ground upon which he should be excluded in forgery. In the States of Massachusetts, New-Hampshire and Pennsylvania, he is held to be competent. See note 1, 2 Stark, on Ev. 582. In New York, the English rule was adopted in 1794 ; but in the case of the People against Howell 4 John. R. 296, C. J. Kent, questions the soundness of the rule, and expresses his opinion that it ought not to prevail. Speaking of the New York decision in 1794 he says, “it is probable that the Court assumed the English rule as they found it then existing. But since that time the question of interest in a witness, has been investigated and defined with more precision, both in England and in this state. The rule now in all such cases, and I believe I may say in almost all criminal cases except in the case of a forged instrument, is that the witness is to be received if he be not interested in the event of the suit, so that the verdict could be given in evidence in an action in which he was a party. The interest which the witness may have in the question put, is no longer the test. That degree of interest goes only to the credit of the witness. The exclusion of the witness in the case of forgery has therefore now become an anomaly in the law of evidence, for it is certain that the conviction of the party charged with forgingacheck, cannot be given in evidence in a subsequent civil suit on the check; and as the reason of the old rule has ceased by a sounder definition of the question of interest, and as it is not now applied to other criminal cases, it would seem to be fit and proper, that the rule itsélf, should no longer be applied to the case of forgery.”
    “In this State, the rule that the party whose signature is forged, is not a competent witness to prove the forgery, has been often recognized on the circuit, but it has never been sanctioned by the Court of Appeals. We are therefore forced, so far as authority is concerned, to adopt a rule more consonant to reason by declaring him to be competent.”
    “ In the case of the State v. Hinson, decided May Term 1829, my brother Johnson, after an elaborate review of the English rule, comes to the conclusion “ that upon reason and principle, and in the absence of any authoritative decisions in our own Courts, a, party whose name is forged, is competent to testify even as to the fact of forgery.” It is true in that case this dictum was not necessary to its decision, but notwithstanding it does not conclude the question now made, it is entitled to great weight in settling for the first time a rule of criminal practice in this State.”
    “In this case the prisoner was the only subscribing witness to the bail bond, and it was urged, that as his conviction would render him infamous, andincompe-tent'to testify in an action then pending on the bail bond, this constituted an additional reason, why the party whose name had been forged, ought to be excluded. As is well observed by my brother Johnson in the case of the State v. Hinson, “ the idea that the conviction would create a suspicion of its genuineness, and that it would preclude the accused from being a witness in a civil suit, and that therefore, he whose name is forged, ought to be excluded from giving testimony, has no foundation in reason and has been long ago exploded. To render a witness incompetent, he must have a direct and immediate interest in the event of the suit. It must follow like effects from causes, a contingent or remote interest goes to the credit only.”
    “For these reasons, the objection was overruled and the witness sworn.”
    The jury found the prisoner guilty, and he appealed and moves for a new trial, on the ground, that Robert Young was an incompetent witness.
    Thomson & Dawkins, for the motion.
    Pearson Sol. contra.
   Martin J.

(sitting for O’Neall J.) It is somewhat remarkable, that for the4 last half century, at least, almost every distinguished jurist and elementary writer, who has investigated the question presented by the first ground of appeal, in this case, has pronounced the prevailing rule in England, au anomaly: and yet, such is the reverence for the common law, that, except in some few American cases, it is still adhered to pertinaciously.

At a former period, when the interest of a witness, however contingent and remote, rendered him incompetent, there may have been some plausibility in rejecting a prosecutor, or person whose name was alledged to have been forged. Yet even at that day such a rule was at war with analagous principles never disputed. In larceny, the competency of the person claiming the goods stolen has never been denied: and in indictments for forcible entry and detain-er, the person ejected has always been received as a competent witness: and in the former, restitution of the goods, and in the latter, restoration of the premises, has been exercised, I believe, by every Court having jurisdiction of those offences.

In England, the objection became more reasonable, when the Courts adopted a rule, impounding the instrument the forgery of which had been established by the verdict of a jury. Because the interest of the prosecutor in the conviction of the prisoner, had now become as certain as his oath could render it. The conviction of the offender placed the instrument beyond his control, and that Court which condemned and ordered it to be impounded, could not, without being inconsistent with itself, and derogating from its own character, allow it to become the subject of another controversy. But this was only a rule of practice, the origin of which I have been unable to ascertain, and although it has since been abandoned, the rule of evidence which grew out of it, or was sustained by it, still prevails, notwithstanding the great revolution in opinion as to what constituted a valid objection to the competency of a witness. The propriety and correctness of the distinction which has been established of late years, and now so well understood, as effecting the competency and credibility of a witness is now, I believe universally admitted. And yet that distinction has not reached except in a few instances Cue question now before us. I cannot but suppose, however, that even in England they are desirous of surrendering a ground they are so wholly unable to sustain by reason or argument, since they allow the witness to be sworn as to any fact material to the issue, except the forgery. And as to the soundness of that distinction, I am'sure all must agree with the judge w’ho tried this case, who says on this point, that it “ renders the rule purely arbitrary without a reason tó sustain it: for if the interest in the event of the prosecution is the ground of exclusion, the same interest exists as an objection to him in relation to every fact which may be necessary to the prisoner’s guilt.” See also the State v. Hinson, May Term, 1829.

I cannot suppose it necessary to pursue this view of the subject further. The reasons assigned for the decision on the circuit in the report, and the argument of Mr. Justice Johnson in the State v. Hinson before referred to, and the authorities cited, would seem to divest the question of all doubt.

■ But we are constrained to admit, that the practice on the'circuit since the establishment of Courts of judicature, has been in conformity with the English rule. Before the revolution it was not the habit to scrutinize very closely the reason or fitness of opinions received from the mother .country. The legislature required that the practice should conform as nearly as practicable to that of the Courts of Westminster, and this rule, like many others perhaps, was adopted without much investigation, and has acquired stability by its antiquity. I know of but one exception to this uniform practice. In the State v. Barton at Barnwell, Spring Term, 1831,1 assumed the responsibility of receiving the prosecutor as a witness, and I was anxious that the question should then be made in this Court, but the counsel acquiesced.

This case then presents the question, whether the Court will now declare,what they believe thelaw should be on principle, (but which the counsel says will be new law,) or adhere to a practice which they admit has always heretofore prevailed., The term, new *aW>as use(l hy the counsel, I take to be misapplied* A new law can only originate, I presume, from a source having the power to enact, a power neither possessed nor desired by this Court. But when this Court give their assent to any principle, if they be correct, it is only a declaration of what the law is, and an expression of their belief, that opinions and rules thus denied Avere founded in error.

No one will dispute the great importance of fixed and well-defined principles of municipal law. Some have carried their opinions on this subject so far as to insist, that few changes óf old and well known laws, produce beneficial results; insisting that if the laws be permanent and well known, the objects of society are as effectually promoted as they can be by experiments in legislation. I cannot consent to go so far, but these opinions Avill suggest to every one, the propriety of great caution in the introduction of any principle affecting the liberty, property or life of a citizen.

To adhere to principles well established, and long accjuiescedin, has been a cardinal rule with our Courts, and they have rarely departed from it, never, I believe, but upon conviction after thorough investigation, that they were either not well founded, or Avere inapplicable to our situation and circumstances. It Avas under the influence of the same rule that in the case of Sorter v. S.teene, in this Court, at Dec. Term, 1830, they held the following language :

“It has been strongiyurged that the direct and plain import of the 30th clause, of the act of 1731, is to make the copies of deeds, duly proved and recorded, as good evidence as the originals — that the case of Purvis and Robinson, decided in 1795, was founded on an obvious misconstruction and ought not to be considered as obligatoryon this Court, especially as it has been regretted as inconvenient and injurious to the citizens. Certainly if Ave were for the first time to construe the act, we could not give it the meaning which was attributed to it, in the case of Purvis' v. Robinson. I do not suppose, hoAvever strongly inclined “ stare decisis,” that one or more decisions of this Court can repeal an act of the Legislature. If decisions have been inadvertently made in contradiction to a statute, it is our duty to correct the error on being made aware of it. Our decisions are evidence of the law — a statute makes a law of itself. Yet it is certain that even statutes may be repealed by long disuse, evidenced by decisions in Courts; and it is safer to leave to the legislature the task of bringing back the law, to what they may conceive to be just principles, than to unsettle by our decisions those principles on which the people have been accustomed to rely for their security. For a period of thirty-five years, it has been considered the settled law of th,e State, that an attested copy of a recorded deed, is no evidence, without proof of the loss of the original, and hundreds of decisions have been made in conformity to it. I am not aware that it was questioned, until the case of Peay v. Picket, 3 M’Cord, 328, in which the doctrine was affirmed. I do not conceive that we are at liberty to depart from the settled rule, whatever may be our opinion on the act of 1731.”

These observations are peculiarly applicable to this case. No one, I believe, can refer to a single ease except that of Barton, before cited, and the one now under consideration, where the witness has been received. Here then, I may say, has been an uninterrupted practice for fifty years: the opinion of every judge who has presided on the circuit, and an acquiescence of the bar so universal, that the question has never before been directly made in this Court. Many of the most eminent of the profession, have all this time been members of the Legislature, and although they, as well as the community, were well aware of this rule of evidence, it has not only not been altered, but so far as I know, the attempt has not been made. Then, although I cannot admit the English rule to be founded in reason, to be consistent with general rules, to form properly an exception, or that it is applicable to our society or government, I must say these facts lead me to the conclusion, that those whose business and duty it is, to prescribe a different one, prefer it ft1 any other; and with these impressions, I do not feel at liberty to depart from the ancient and undisturbed practice.

If the point had been directly made in the State v. Hinson, and the Court had been unanimous, I should have felt bound by the opinion, as I am convinced by the argument of the Court. But it was discussed incidentally, and Mr. Justice Nott dissented.

It deserves consideration too, that when put on his trial, the defendant supposed he was to be tried by a rule with which all professional men, at least were acquainted. It is possible, though scarcely probable, that he might be sacrificed in establishing a principle, new at least among us in practice, and for the application of which he was unprepared.

On the first ground of appeal therefore I am of opinion that a new trial should be granted.

Johwsojv, J. concurred.

Hárper, J.

I entirely concur in the argument of the prisoner’s counsel, that neither this, nor any other Court, has power to alter an established rule of law, or to supply a rule, where the law is deficient. That is the business of legislation, and not of Courts, whose office is merely to expound the law. There is, to be sure, a sort of judicial legislation, as it has been called, which is inevitable and legitimate. In the progress of society, from a state of more simple, to one of more complicated relations, general principles must be pursued to their consequences; and subordinate rules deduced from those which are more general. Perhaps no case is decided, which does not furnish grounds for the' decision of other cases, differing in some degree from it, by fair and necessary induction. In this way, a system of laws, once simple may be carried out, and adapted to the infinite variety of human transactions. But this is improperly called legislation ; as new cases arise they must be decided by induction and analogy; this, however, is not the making, but the expounding of law. If the rule be clear and settled, we are not authorized to depart from it, because we may not approve the reason, upon which it was founded; or, because a change of circumstances has rendered that which was once useful and politic, no longer so. The law maxim, ces-sante raiione, cessat et ipa lex, has been often misunderstood. That, is not a rule for determining the authority of laws, but a rule of construction. The case putby Blackstone, 1 Com. 61, will illustrate this. “ There was a law that those who, in a storm, forsook the ship, sho uld forfei t all property therein; and th at th e ship and lading should belong entirely to those whq staid in it. In a dangerous tempest, all the mariners forsook the ship, except only one sick passenger, who, by reason of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now, here, all the learned agree, that the sick man is not within the reason of the law; for, the reason of making it, was to give encouragement to those who should venture their lives, to save the vessel; but this is a merit which he could never pretend to, who neither staid in the ship, upon that account, nor contributed any thing to its preservation.” But suppose, that, in consequence of the encouragement thus given, an abuse of a different sort had arisen, and men had been induced to venture their lives, recklessly out of avarice, to the public detriment. Courts would not have been authorized to disregard the law, while it continued unrepealed, because they no longer approved its policy, or because the reasons which induced its enactment, in their opinion, no longer existed. If Courts were at liberty to disregard settled rules of law, because they had their origin in barbarous times, and were unsuitable to a more refined age; because they were founded on insufficient or mistaken reason, or because a change of circumstances had rendered them useless or inconvenient, this would leave' room for unlimited discretion. Every judge would set his own reason above that of his predecessors, an(^ that miserable servitude would be brought about, which is the result of the law’s being uncertain or un~ known.

Those are generally loudest in their censure of judicial legislation, who are most impatient that Courts do not legislate recklessly, and make the whole system of laws what, according to their conceptions, it ought to be.

It is to be remarked, however, that reports of decided cases, are only evidence of what the law is. If these cases be doubtful or contradictory, we may be aided in coming to a correct determination, by considering the reason of the law, and how far the particular point decided is in conformity to a general principle ; and though a particular course of decision may have obtained, for a long time, in the English Courts, we may be justified on these considerations, in going back to what appears to be the true doctrine. If the decisions however have been always clear, certain and uniform, I do not perceive upon what authority we can be at liberty to depart from them.

With respect to the point, we are more particularly considering in the present case, and which constitutes the first ground of the motion for a new trial, the decisions do appear to me to have been of this character. The cases have differed as to the grounds and reasons of the determination; the decisions have been criticised as being incongruous with the general rule on the subject of a witness’ interest; yet the decisions themselves have been, I believe, without exception, that “the party by whom the instrument purports to be made, cannot be called to prove that it is fictitious, if he would be liable to be sued on it if genuine, or if he would be deprived of any claim upon another, by its being established to be valid,” until it was found necessary to alter the law upon the subject by the Stat. 9, Geo. 4. Such, so far as I can learn, has been the uniform practice of our own Courts, though a different opinion was intimated, obiter, in the case of the State v. Hinson.

Under these circumstances, we think it better to adhere to the rule, leaving to the legislature to amend the law, if it requires amendment.

The motion for new trial is granted. 
      
       An act of the last session of the Legislature (A. A. 1832, p 48) provides “that where an appeal shall hereafter be taken in any case, tried before one of the Judges of the Court of Appeals, sitting, as a circuit Judge or Chancellor, such Judge shall not sit upon the trial of said appeal, undone of the Circuit Judges or Chancellors, shall be called in by the Court, in the room of said Judge of the Court of Appeals.”
      Judge O’Neall having presided on the Circuit on’ the trial of this, and other cases of this Term, Judge, Martin was therefore “called in by the Court,” to sit in his stead, on the hearing- of the Appeals in these cases.
     