D^DstE^/ REPORT OF THE fttiririOT $smmltkt f TO WHOM WAS REFERRED AN ACT RELATIVE TO THE LAW OF EVIDENCE, TO THE SENATE OF THE STATE OF LOUISIANA ««s32!G03Q33*b-=- BATON KOUGE: J. M. TAYLOR, STATE PRINTBS, 1861. REPORT Mr. Hunt, on behalf of the Judiciary Committee of the Senate, to whom was referred " An act relative to the Law of evidence," submitted the followiDg report : At the last annual session of the Legislature a bill was introduced similar to that now before the Senate, for the amendment of the law of evidence in this State. It was referred to the Committee on the Judiciary, who reported it [back favorably to the Senate, but no further action was had upon it. They did not press the immediate consideration of the bill, because the change which it proposed to make in the law of evidence is radical, and overturns rules long established, and which, until comparatively a recent date, received the commendation of the ablest jurists of Europe and America. It is true, the principles embodied in the bill had been thoroughly discussed by Jeremy Bentham and his followers, and had, under the lead *>f Lords Denman, Campbell, Brougham and others, been successively adopted by the British Parliament and made part of the English law. They had been ad- vocated with masterly ability by Edward Livingston, in the introductory report to the Code of Evidence, prepared under the authority of a law of the State, passed in 1822. They had been adopted, too, by States of our late Union, eminent for their polity and the wise administration of justice. But the attention of the legislators and jurists of Louisiana did not appear to have been turned to the subject; and it was deemed prudent to defer final action upon the matter until the present time. The object of the bill is to render large classes of persons competent to testify, whose testimony is excluded by the existing law. The law excludes the testimony of persons in a case who are interested in its result. It excludes the testimony of parties in their own favor. It excludes the testimony of husband and wife for or against one another. It excludes the testimony of ascendants and descendants in civil cases. It excludes the testimony of persons who are deficient in religious belief. It excludes the testimony of persons who have been convicted of an infamous offense. The bill proposes to alter the law in these particulars, and to receive the testimony of the persons now repudiated as witnesses ; leaving its value to be estimated by the judging power. Before entering upon the examination of the several provisions of the bill, the committee desire to advert to some general principles connected with them all. Every person who institutes a suit, is bound to state such facts as will show his claim to be founded in law. The facts may be either admitted or denied. If admitted, it becomes the duty of the Court to determine what the law is upon the facts j if denied, they must be proved, and this proof must be made by evidence. The duty of judicial tribunals embraces the investigation of facts, as well as the application of the principles of law to such as are ascertained. Law, indeed, can be administered only on the as- sumption of the truth of the facts to which it is applied. The object of evidence is the establishment of truth. Courts of Justice employ the same means of investigating and determining disputed facts, as mankind in general make use of — except so far as positive laws interfere. It has been truly said, that the organization of Courts, the enumeration of rights, the means of asserting them, the denunciation of penalties for in- fringing them, and the rules of procedure are only preparatory steps to the trial, which in itself is but the examination of evidence. So that ultimately the whole machinery of jurisprudence in all its branches, is contrived for the purpose of enabling the judging power or tribunal to determine on the truth or falsehood of every litigated statement. This can only be done by hearing and examining everything that will contribute to bring the mind to the determination. If we refuse to hear anything that will produce the effect, we determine on imperfect evidence, and of course are subjected to the chance of making an erroneous decision. All exclusions of evidence, are, therefore, injurious to the object of all investigation — the discovery of truth. In the ordinary affairs of life, in the investigation of truth, no evi- dence is rejected. Suppose you wish to inquire concerning some delinquence that has occurred in your house, and that you have an inmate who saw what occurred ; would you refuse to ask him any questions or to hear him, be- cause you know he has been heretofore guilty of lying ? No, you would hear his statement, and, allowing for his propensity, judge whether it affec- ted him in the case before you. In all other matters of inquiry and investi- gation, everything is examined, every one is heard, and he who is to judge, relies upon his own power to discriminate. In law alone he is taught to distrust that power, and to reject all evidence that may possibly lead him astray. Is this reasonable ? To this question the [common and the civil lawyers answer " yes/' and extol the wisdom of the rules which exclude the testimony of certain classes of persons. In this respect, they argue, " The law follows the common ex- perience of mankind. The purposes of justice require that such evidence as is more likely than otherwise to mislead should be excluded. If this were not the case, a witness, unworthy of credit, might often receive as much consideration as one worthy of the fullest confidence. We must, therefore, guard against incorrect decisions by the absolute rejection of per- sons whose testimony, either from interest in the matter in dispute or any other visible cause, seems likely to prove untrustworthy." On the other hand, it is contended that no kind of evidence, whatever, capable of throwing light on the question agitated, ought to be rejected, unless its exclusion can be justified by the inconvenience and expense of obtaining it, or by the vexation and delay that would attend it. In illustra- tion of the latter part of this proposition, the following case has been put : " By laying a barrow full of rubbish on a spot on which it ought not to have been laid, (the side of a turnpike road,) Titius has incurred a penalty of 5 s. No man was witness to the transaction but Sempronius; and in the station of writer, Sempronius is gone to make his fortune in the East Indies. Should Sempronius be forced, if he could be forced, to come back from the East Indies for the chance of subjecting- Titius to this penalty ? Who would think of subjecting Titius to this vexation ? Who would think of subjecting Sempronius or anybody else to this expense ?" It is obvious that the vexation, expense, and delay in obtaining the testimony, would amount to a preponderant evil, and justify its exclusion. But it is insisted that where this is not the case, all objections to the admissibility of a wit- ness should be at once annihilated and classed under objections to his credibility, varying according to circumstances ; that in many cases the excluding of a casual witness to a fact would be to exclude all attainable evidence on the question in dispute, and offer by impunity a premium to dishonesty, fraud, and crime. If it be said that owing to unsoundness of mind, deficiency of religion, antecedent misconduct, or personal interest, the*evidence is likely to prove unsafe ; the answer is, that any line drawn on the subject must be in the highest degree arbitrary. It is impossible to enumerate a priori the causes which may distort or bias the minds of men to pervert or misstate the truth, far more to estimate their weight in each individual case, or with each individual person. This is the settled opinion of the ablest English writers and jurists, after a careful examina- tion of the arguments concerning the incompetency of witnesses and a practical experience of years ; and the opinion is well founded. Let us consider the matter. For what purpose does the Court sit ? To decide correctly the cause before it. What then is the evil to be guarded against? Erroneous decision, or il misdecision," as Bentham calls it, produced by false testimony. Now, the testimony offered and rejected was 6 either necessary to the cause of the party producing it, or it was not abso- lutely necessary. First, suppose it necessary — the party offering it having no other testi- mony to establish his right. It is plain, in that case, that by excluding it, you certainly produce an erroneous decision, for fear of a possible erroneous 'decision from false testimony, "as a panic-struck bird is said to fly into the serpent's mouth, or as a man jumps overboard for fear of being drowned." If the testimony be admitted, you may be on your guard and correct the evil. If it be rejected, there is no alternative. Misdecisiou is inevitable if testimony, without which a just decision cannot be had, be rejected. You ower] a thousand dollars ; you paid it in the presence of Primus ; Primus is convicted of an offense destroying his competence to testify ; his testimony is rejected ; you lose your cause. Could more in- justice be done if he were admitted ? False testimony is given every day in some cause or other; cross-examination, or counter testimony almost invariably corrects it. The opposite party, the counsel, the judge, the jury are all on their guard, and it is nearly impossible for perjury, suspected be- forehand, to succeed. Suppose next, the evidence excluded to be not absolutely necessary, because the party offering it has other testimony. If the decisien be given on that other testimony, the exclusion can produce no beneficial influence on the decision of the cause; it only puts the party to expense to procure different evidence. A witness knowing the suspicions concerning him and how much every one is on the alert to convict him of falsehood, would not commit perjury gratuitously. If he have any special motive to bear false testimony, this motive is extraneous to the legal motive for rejecting him. Even from a witness, 'desirous of deceiving, examination and cross- examination will generally elicit useful truths. Mr. Best says: " We have read somewhere of a whole nation who purposely gave false answers to all questions respecting the topography of their country. Still a traveler was enabled to ascertain it, by questioning upon incidental facts, when the truth naturally oosing out, supplied him with materials for arriving at the knowledge sought." The rules of evidence by which our Courts are governed, have been borrowed in a great part from the English law. In revising the Civil Code in 1825, it was intended to prepare a separate code of evidence. But this has not been done, and our Civil Code contains only some general leading principles of evidence in civil cases. On the subject of exclusion, which is now under consideration, the systems materially differ, and are more or less uncertain in their provisions. Various classes of persons were rejected k by the civilians of medieval Europe and by the old English lawyers, upon the ground, the giving evi- dence in a Court of justice is a right rather than a duty, and consequently that incompetency to testify is a fitting punishment fur matters to which the law is desirous of attaching the stigma of disgrace. The ancient practice in England affixed the brand of incompetency to holding obnoxious opinions ; thus not only punishing the delinquent, but inflicting ruin on a party to a suit whose life, property or honor might be saved by the evidence of the rejected witness. There can be no doubt that this principle was borrowed from the civil law of the middle ages. In that law, the list of persons liable to be rejected as incompetent to bear testimony was exceedingly large. In some instances entire classes were rejected. The celebrated Constitution of the Greek Emperor Anas- tasius, declared that Pagans, Manichfeans, and members of some other sects were disqualified from giving evidence under any circumstances ; while heretics and Jews were only allowed to do so in causes in which they were parties, and, except in peculiar cases, could not bear testimony against orthodox christians. Similar principles prevailed in the canon law. The law of ancient Home refused the testimony of women in certain cases, and the civil and canon laws in the middle ages carried the exclusion further. In Scotland, until the beginning of the eighteenth century, sex was a cause of exclusion in the great majority of cases. Even the old Eng. lish lawyers occasionally rejected the evidence of women, on the ground, ^ they are frail." The Teason is not unlike that of the civil law which is said to be "because women are usually frauduUntae, faUaces, et dofosac," or the reason assigned by the doctors of the canon law, who declared, in the language of Virgil, " varivm ct mvtahilr, semper frmina" Undoubt- edly there were many exceptions to these rules. But even after women had been admitted to bear testimony in France, their evidence was not considered equivalent to that of a man j and it seems to have been a principle that a virgin was entitled to greater credit than a widow — " mm/h n-editvr tofrgini (jv.ctni vidua\" Under the civil law system, all questions of law and fact were decided by a single judge. The examination of witnesses was secret, and was made by judges unacquainted with the circumstances of the case, without confronta- tion, personal cross-examination, or publicity ; the parties themselves were not allowed to be present. Under such a system, the difficulty of detecting falsehood afforded a plausible pretext for an extended prohibition of sus- pected witnesses, though nothing can give a colorable excuse for the enor- mous extent to which it was carried. How different is the common law system and our own ! Under these, the evidence of witnesses is given viva voce, in presence of the party against whom they are produced, and he is allowed to cross-examine thfun. The great tests of the truth of a narrative, are the consistency of its several 8 parts and the probability of the matters narrated. Stories entirely false are comparatively rare : it is by misrepresentation, suppression of some things, and addition of others, that a false coloring is given to the acts of men ; and it is only by a searching inquiry into the surrounding circumstances that the whole truth can be brought to light. The party against whom false testi- mony is directed, is interested in exposing it, and is the person best acquain- ted with the facts as they really have occurred, and is, therefore, most a"ble to furnish means for the detection of the falseness of the testimony. Be- sides, it is very difficult for a witness to conic prepared with his story to meet every question which may be put to him suddenly on a cross-examina- tion. And further, what is perhaps of still greater importance, courts of justice are, by the common law and by the law of Louisiana, open to all. The publicity of the examination of the witness, operates as a cheek upon mendacity and incorrectness. Environed, as he sees himself, by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up in opposition to him,, from a thousand tongues. Many a known lace, and many an unknown one, presents to him a possible source of detection, from whence the truth he is struggling to suppress, may, through some unsus- pected channel, burst forth to his confusion. Under such a system, the principle of exclusion is wholly misplaced. Ac- cordingly, the inclination of modern judges and lawgivers in England and the North American States, is in favor of receiving the testimony of wit- nesses — leaving its value to be properly estimated. The Committee might rest content with this general statement of the argument in favor of the bill : but they will proceed to examine more par- ticularly the grounds on which the several clauses of the bill are based. And first — the law excludes the testimony of persons who are interested in the result of the suit. The rule, it is said, is founded on the known infirmi- ties of human nature, which the law deems too weak to be generally re- strained by religious or moral obligations, when tempted and solicited in a contrary direction by temporal interests. Its object is to guard against the danger of perjury, and to shut out testimony unworthy of credit in judicial investigations. "There is," said Lord Chief Baron Gilbert, "from the nature of human passions and actions, more reason to distrust such biased testimony than to believe it." The principle upon which the rule rests is altogether unfounded. It assumes that, in the great majority of instances, men are so corrupt, that, from a mere regard to their interest — however small that interest may be — they will violate the duties of morality and religion, and run the risk of incurring the penalties of the law by committing perjury; for the chance of imposing upon the judge and jury, after counter testimony and strict cross- examination, before the public, in open court, where every one who hears them testify is aware of their bias, and on his guard against deception by 9 false testimony : For although other strong motives to produce mendacity may be secret, yet interest — pecuniary motive — before it can render a wit- ness incompetent, must be proved and known to the court and jury. The assumption is contrary to all experience. In general, witnesses are honest, however much interested; and in most cases of dishonesty, the falseness of the testimony is detected and misleads none. Let it be remembered that the great object to which all the rules of evi- dence should be directed is the discovery of truth : and that the only ques- tion is, will the object be better effected by the admission or by the exclu- sion of the witness ? No one who has an enlarged knowledge of human nature, or any respect for the society in which he lives, would hesitate to admit the witness. Undoubtedly, interest may be a motive with some persons for mendacity and perjury, but its influence varies upon different persons. The amount of the interest, the condition of the witness, his standing in society, his fortune, education, sensibility, and other circumstances, may effect and control the influence. Who can believe that the loss or gain of five dollars would have effected the testimony of George Washington or of John Marshall ? On the other hand, suppose, with Mr. Bentham, an ill-educated laborer, with a wife and children on the point of starving : is there any analogy between the cases ? Now the truth is secured among men in their mutual intercourse by powerful sanctions or guarantees : 1st. By the natural sanction, which is a sort of instinct that impels man to speak the truth and makes him do vio- lence to himself whenever he betrays it and injures another. 2d. By the moral or popular sanction, which punishes, with disgrace, the liar. 3d. By the religious sanction, which is founded on the dread of future punishment. And 4th. By the legal sanction, which punishes false testimony in a judicial proceeding, and renders it difficult to devise a falsehood that will pass ex- amination in a court of justice. All these sanctions are in continual opera- tion to secure the truth of testimony before the courts. If it be admitted that men may occasionally be found, in whom motives of interest preponder- ate over the powerful restraining motives just enumerated, it cannot be denied that they constitute a very small number in comparison with those to whom the interest is too trifling to be an object compared to their for- tune and situation in life, — those who under the influence of a strong interest, would be restrained by the stronger motives of religion or morality, — those who would be deterred by the fear of shame or of punishment, — and those who, without these restraints, find their hearts to fail them from the difficulty of framing false testimony so as to give it the semblance of truth. Ought we then to exclude the numerous interested witnesses who would 2 j q 10 tell the truth, because a few interested would commit perjury at the risk of detection and punishment ? Remember, the law has drawn no line of pecuniary interest : it makes no distinction between interests of different amounts, or between interested witnesses of different characters : it quite overlooks the ratio between the sum in question and the pecuniary circumstances of the witness. No matter what the amount of interest is — one cent, one dollar, one hundred, one thousand, one million, the effect is the same, the witness is excluded. It is true, the interest appears, and if the law would permit the witness to be heard, his testimony might be weighed and his motives judged. But no: by the law of exclusion for pecuniary interest, a ceut may render a man venerated for his holy life, of the highest sense of honor, and worth a. million of dollars, a witness too suspicious to be credited on his oath. xVnd this is law: " Founded," says Lord Erskine, "in the charities of religion, in the philosophy of nature, in the truths of history, and in the experience of common life." Who is the person suffering ? The innocent suitor. Suppose the ex- cluded testimony necessary to save the character or life of the party offering- it. One man is presumed to be a perjurer, and, therefore, another man is disgraced for life or punished with death. Our law excludes, in civil cases, all persons from testifying who are inter- ested, directly or indirectly, in the result of the suit. This is imperatively expressed in Article 2,260 of the Civil Code. But our courts have, by a lono- series of decisions, adopted the English rule, and excluded only those who are directly interested : they have admitted all the exceptions contained in the English law. Now the interest which excluded at common law, was a leo-al interest — that is, a direct certain interest in the event of the case, or an interest in the record for the purposes of evidence, however minute that interest may have been. This rule, so wide and extensive in its terms, gave rise to constant questions and doubts, and the courts gradually relaxed it by making numerous and important exceptions to it, irreconcilable with the principle of the rule itself. Thus, a certain legal interest, to the amount of a dollar excludes; a contingent interest, to the amount of a million, is un- noticed. The consequence is, that parties are often competent to give evi- dence who are swayed by the strongest moral interest to pervert the truth. Again, a factor, or any other agent, who is to receive a commission on the amount of a contract or sale, was declared a competent witness to prove the sale or contract for his principal. A servant, employed to deliver goods to a purchaser; or a clerk, employed to pay money to a creditor, is a good witness to prove the delivery, or the payment, as the case may be. But if the cause depend on the question, whether the agent or servant has been o-uilty of neglect or misconduct, he is not a competent witness for his prin- cipal without a release, because he is liable over. Cases, without number, li of a similar character, might be cited, wherein the disqualification from interest was found so inconsistent with public policy, as to cause constant inroads to be made upon the principle of exclusion. These cases are fre- quently entirely contradictory to each other, or supported by decisions abounding in flimsy and subtle distinctions, and occasionally, by their con- trariety, creating much legal doubt. In order to meet the difficulty, various expedients, by means of release, etc., were resorted to, for the purpose of restoring the competency of interested witnesses. Speaking of release, Lord Brougham, then Mr. Brougham, in his celebrated speech on law reform, in the House of Commons, in 1828, said: u Evidence is thus often cooked up for the court, nay, in the court, while the witness is in the box, which, according to the existing rules, is not admissible, without this pro- cess of release. Now, what is the real effect of the release on the mind of the witness ? Just nothing : for if he be an honorable man, he gives it up the moment he leaves the box, and while swearing he knows that he is to do so." The courts in England still further relaxed the rule of exclusion in the case of Bent vs. Baker, in which it was decided that in an action, one un- derwriter of a policy was a competent witness for another underwriter of the same, even though his evidence substantially settled the case as to both. Without dwelling further upon the decisions of the courts, it will suffice to observe that the practical inconvenience of so extensive an ex- clusion of witnesses as that on the ground of interest being found intolera- ble, Parliament at length interfered, and in 1834, by the Statute 3d and 4th, William the IV rendered competent the whole class of witnesses ex- cluded by an interest in the record as an instrument of evidence ; but pro- vided that the record should not be admissible in. evidence in another cause, for or against such witnesses. It would seem that this statute in- troduced no new principle, but merely removed the interest which would otherwise have disqualified the witnesses, like the notable expedient of a release described by Brougham. But this was superseded in 1843, by the Statute 6th and 7th, Victoria 85, commonly known by the name of Lord Denman's Act. After reciting that " the inquiry after truth in courts of justice was often obstructed by incapacities created by the present law, and it was desirable that full infor- mation as to facts in issue, both in criminal and civil cases, should be laid be- fore the persons appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced, and on the truth of their testimony, it enacted: that no person offered as a witness shall be excluded, by reason of incapacity from interest, from giving evidence in any cause, except in certain cases therein afterwards specified." At length came Lord Campbell's Act, 14th and 15th, Victoria, C. 99, August, 1851, to amend the law of evidence, which has effectually ex- 12 punged from English Jurisprudence, the title incompetency of witnesses from interest. The example of England has been followed in the States of America very generally. In Connecticut, New York, Ohio, Massachusetts, Mis- sissippi and other States. The Committee conclude their report on this portion of the bill by citing the uniform testimony of the English lawyers upon the subject, who declare that " of all the acts in their statute book, these which ren- der interested witnesses competent, contain in the smallest compass the greatest amount of good. They settle the law upon an intelligible, rea- sonable and satisfactory basis ; put an end to some of the most intricate perplexities of the law, and reject a principle which was unsound in theory, and in practice often led to results most unfavorable to the due adminis- tration of justice." The time has come when Louisiana should act upon this matter, and gaining wisdom from the experience of others, admit the evidence of inter- ested witnesses without exception, leaving the weight of the evidence to be determined by the judging power. The Committee will next proceed to the consideration of the provision in the bill for the repeal of the rule which excludes the testimony of the parties in a civil suit. This exclusion is substantially embraced in that which has just been considered. It rests upon the ground that it removes the temptation to perjury, and secures judicial tribunals from being de- ceived by false testimony and led into erroneous decisions. To a certain extent our present law has repudiated this argument. It allows one party to the suit to examine the adverse party. A plaintiff' may interrogate the defendant, and the defendant the plaintiff. The bias of a party in his own favor is known, and every corrective is ready to be used against him ; cross-examination, counter evidence, publicity, experienced counsel, judge, and jury. Surely there can be no great danger of being- misled by false testimony under such circumstances. There are two defects in our present law upon the subject. The first consists in the mode of examining, and in the effect given to the evidence ; the second in not allowing a party to be examined whenever he himself chooses. The parties are generally those best acquainted with the facts of the case, and best able to state them. If it be desirable to hear them, there can be no reasonable objection to extract from them the whole truth by a public examination in the same way as we extract truth from other witnesses. The testimony of every witness should be left to have that •weight which his character or other circumstances justly entitle it to. The declaration of a party may not be believed by the judge and jury. He is certainly a suspicious witness, and yet the law declares that his oath shall be conclusive, unless contradicted by two witnesses, or one witness corrob- 13 orated by circumstances or written proof. The true rule is to put his tes- timony on a footing with that of any other witness. The exclusion of a party's testimony in his own favor strikes at the great principle of legal evidence, that the best evidence should be adduced. It renders inferior evidence necessary, at the hazard of delay, vexation, and expense ; parties generally knowing most about the matter in dispute. Why should a party be deprived of the right of being heard, of clearing up doubts, and rectifying errors which may have been produced by the inattention or design of witnesses, or the ambiguity of other evidence? Why exclude that which is calculated to throw most light upon the subject ? The rule of exclusion is broken in upon in all motions upon affidavit — an affidavit drawn by his lawyer, and heard without cross-examination ; in the affidavit to hold to bail ; in the affidavit to attach, and in the affidavit to sequester property ; in the affidavit for an injunction, and in the vari- ous affidavits used in the progress of a cause. It is broken in upon in the oath in litem, first in cases where the party against whom it is offered has fraudulently or unwarrantably intermeddled with the plaintiff's goods, and no other evidence can be had of the amount of the damages ; and second, when on grounds of public policy it is deemed essential to the purposes of public justice. In a word, the exceptions are so numerous that the rule itself serves only the purposes of deception ; it no longer prevails in England. Shortly after the passing of Lord Denman's act, the statute for the estab- lishment of County Courts, which superseded a large number of minor tribunals in England, was promulgated. It provided that parties in those new Courts should be witnesses on either side. This was not an innova- tion, for the old Court of Conscience and Court of Requests, contained similar provisions. By the old bankruptcy acts, passed under James I, every bankrupt was made a competent witness in relation to the bank- ruptcy, and this principle is incorporated into the present bankrupt law of England. By far the greater portion of the numerous demands recoverable in the County Courts were recoverable in the Superior Courts. In the former, the evidence of the party weighed ; in the latter, it was deemed wholly unworthy of trust. It thus appeared as if the Superior Courts had less efficacious means of testing the truth of evidence and detecting falsehood than the inferior tribunals. The plaintiff, (who had his option as to where he would sue,) if his own testimony would be adverse, or he knew the evi- dence of the defendant would establish the defense, sued in the Superior Court, and excluded the evidence. The jurisdiction of County Courts hav- ing been considerably enlarged, and the evidence of parties having proved beneficial to the administration of justice, it was deemed unreasonable to 14 preserve a distinction between the rules of evidence in the tribunals. By the act to amend the law of evidence, passed 7th August, 1851, 14th and 15th Vict. C. 99, all the parties to a suit, and those in whose behalf a suit is brought, are admissible witnesses, on behalf of either or any of the parties to the suit. The Committee have felt and still feel much doubt whether this princi- ple should be extended to criminal cases. They are inclined to think the provision in Lord Brougham's act, which declares that no person shall be compelled to criminate himself, or to give evidence against himself upon any charge brought against him for a criminal offense — is founded in philosophy as it is undoubtedly in clemency. They have, therefore, re- tained the provision in the bill before the Senate. By our code, as well as under the common law, the rule by which parties are excluded from beiug witnesses for themselves, applies to the case of husband and wife; neither of them being admissible as a witness in a cause, civil or criminal, in which the other is a party, or has interests involved. The exclusion is founded partly on their legal identity, and partly on public policy, which requires that the confidence between hus- band and wife should be sacredly protected and cherished as the best solace of human existence. The Committee have stated this exclusionary rule and the reasons assigned for it in the language of Mr. Greenleaf. If the rule were limited to the protecting from disclosure matters communicated in nuptial confi- dence, or facts, the knowledge of which has been acquired in consequence of the relation of husband and wife, the Committee would not recommend its repeal: but it is an absolute prohibition of the testimony of the wit- ness to any facts affecting the husband or wife, as the case may be, how- ever the knowledge of these facts may have been acquired. The rule only applies where the husband or wife is party to the suit, and does not extend to][a collateral suit between third parties. And the declarations of a wife, acting as the agent of her husband, are evidence against him, like the declarations of any other agent. The exceptions to the rule are important. In cases where a personal injury is threatened or inflicted by one on the other, the law does not allow the legal identity of husband and wife to supersede the great principle that the State is bound to protect the life and limbs of its citi- zens; and it generally happens that offenses of this kind cannot be proved without the evidence of the injured party. In such cases, therefore, the injured husband or wife may testify against the other. And yet, with what has been called "a cruel absurdity," in a case of bigamy, the first wife is not a competent witness against the accused, she is prohibited from proving the fact of her marriage, her mouth is stopped against him, 15 while with strange inconsistency she is allowed to prove the fact in a collateral suit between third persons! As early as 21 Jac. 1, C. 19, commissioners in bankruptcy were authorized to examine the bankrupt's wife to discover any property con- cealed by him; and the provision was re-enacted under George IV. The examination of the bankrupt and wife in a modified form was retained under the present Queen of England. The County Courts, act 9 and 10, Victoria, which rendered parties to suits competent witnesses in those courts, extended " to their wives and all other persons:" and finally the statute of 1853, 16 and 17 Victoria, C. 99, (Lord Brougham's act,) not overlooking the temptation, naturally arising out of the marriage connec- tion, to induce husband and wife to favor each other, but considering it, like any other known bias, to be guarded against and allowed for — enacted that husband and wife should be competent witnesses for and against each other in all civil cases, except in proceedings in consequence of adultery; but they were not competent in any criminal proceedings against each other, nor compellable to disclose any communication made by one to the other during the marriage. This statute has been substantially copied and adopted by the leading States of the late Union, and its pro- visions are embodied in the bill referred to the Committee. They are recommended to the adoption of the Senate, as founded in principle and sanctioned by experience. If the reasoning in this report is correct, it necessarily follows that the rule of our Civil Code which excludes the testimony of ascendants and descendants for or against each other, should be repealed. The rule does not prevail in criminal cases. Pride, passion, affection, friendship, blood relationship, the love of parents and of children, are no disqualification of a witness in a criminal prosecution affecting the life, liberty, property or honor of the accused. But let the case be a civil one involving a claim of twenty dollars, and our law will not permit an ascendant or descendant to testify for or against each other when a party to the suit. Are there not the same means of ascertaining whether the father or son tells the truth in a civil suit and in a criminal suit? If admitted as a witness in the latter, ought he not also to be admitted in the former case ? Can not the weight of his evidence be equally considered in each case ? The Committee are of opinion that the proposed alteration, which will admit the evidence of ascendants and descendants in civil as well as in criminal cases, should be made. It remains for the Committee to examine the rules which exclude the testimony of witnesses who do not believe in the existence of a God and a future state of rewards and punishments, and of witnesses who have been convicted of any infamous offense. 16 The sanctions by which mendacity is restrained and truth is secured — natural, moral, religious, and political — have been pointed out already : the difficulty of devising a falsehood that will pass examination in a court, the fear of legal punishment, the fear of disgrace and loss of character, the pain of falsehood and injustice, the dread of future punishment. Of these sanctions, one only — the religious sanction — has no influence on the mind of the atheist. The other sanctions operate with full force upon him. "Atheism," says Lord Bacon, " leaves a man to sense, to philosophy, to natural piety, to laws, to reputation : all which may be guides to an outward moral virtue, though religion were not." Ou"-ht atheism, then, and other forms of infidelity which deny all exor- cise of divine power in punishing falsehood, to be recognized as a sufficient ground to render a person incompetent to testify ? The Committee think they ought not. The law presumes that every man brought up in a Christian land, where God is generally acknowledged, does believe in Him and fear Him. The witness himself cannot be questioned as to his religious belief, because this would be a personal scrutiny into the state of his faith and conscience foreign to the spirit of our institutions. No man is bound to avow his belief; but, if he does avow it, the avowal may be proved like any other fact, by third persons. Now it is argued by Mr. Bentham, and those who have succeeded him, " He who runs counter to the religious persuasions of the community, is sure to meet with much obloquy and great personal inconvenience. Suppose such a man produced as a witness. In a conversation with several persons, he had avowed himself to be an atheist ; and had, by so doing, marred the prospects of success that he entertained for himself and his family. Nothing prevented him from affirming the contrary or concealing his opinion and escaping the injury and the stigma which his avowal fastened on him, but a regard for truth and a respect for his own character in society and in his own family. This is deemed a sufficient ground to disbelieve him, and he is rejected as incompetent to testify. His declaration of atheism renders him utterly incompetent. We read of conspirators in crime, who, in order to secure impunity, bind each other by solemn oaths never to reveal the part taken by any of them in the peipetration of the crime. How much more efficacious is the mode fur- nished by this rule of evidence. Let a man, who proposes to join in com- mitting a crime, make his associates avow themselvas to be atheists, and he will be perfectly secure as against them. In this way, any knot of crimin- als may combine and secure impunity : and any man whatever may get rid of the inconvenience of giving testimony. A man is indicted for a crime. Paul was present at the time of its commission and knows all the circum- stances. He is summoned to testify. He wishes to screen the culprit. He declares to the friends of the prisoner, or to other persons, that he is an iv atheist, aud suggests to the counsel of the accused — u ask Primus, Secundum, Tertius, if I did not avow myself to be an atheist.'' The objection is taken, the witness is dismissed, the culprit is set free. Is it wise to leave it in the power of any man, whose breast is the reposi- tory, perhaps the sole repository, of evidence affecting the lives and fortunes of others, to stifle that evidence by pretending to hold erroneous views on the subject of religion ? But even if we suppose the want of religious faith to be genuine, is it not more properly an objection to the credit, than to the competency of the witness? In England, the statute 6 and 7 Vict , C 22, allowed the unsworn testi- mony to be received of the members of certain barbarous races in the British Colonies, who are described in that statute, u as destitute of the knowledge of God and of any religious belie (," and left but a little more to be done in order to destroy the mischievous principle of the old law, which punished the holder of obnoxious opinions by rendering him incompetent to give evidence. Under the rule which rejects the testimony of persons insensible to the obligations of au oath, the law excludes infamous persons — that is persons who have been guilty of those heinous crimes, which men generally are not found to commit, unless when so depraved as to be unworthy of credit for truth. It is unnecessary, aud it would be somewhat difficult to enumerate with nicety the offenses deemed infamous by law. In order to test the pro- priety of this exclusion, the case of perjury may be selected. Does it follow that a man, because he has been once convicted of perjury and suffered the penalty of the law therefor, will, whenever he may be called on to testify, commit another perjury, and render himself liable to renewed punishment ? And that, too, in cases where no motive could exist or be surmised for his perjury ? Suppose the offense to have been committed in the folly tide of youth, under motives of kindness intermingled with temp- tations, and to have been repented of for fifty years. Ought this to be im- puted to hhn after living half a century of virtue and truth? And must an innocent man, who has no other witness to prove the groundlessness of a charge against him, be unjustly condemned, because the witness was guilty of a delinquency, so many years before ? All exclusions operate as a punish- ment on the parties who need the testimony excluded. A perjured person cannot be a witness on behalf of another person, but may in behalf of him- self. In his own cause, he may make any affidavit necessary to his exculpation or defense, or personal protection ; or for relief against an irregular judg- ment or the like. And in the very teeth of the rule which excludes per- sons infamous, " rcpellitiu- a sacramento infamis" a man may, in legal strictness, be convicted even of a capital offense, on the unsupported evi- dence of a person avowing himself an accomplice in his crime, who is taken out of jail to bear testimony against his companion and gives his testimouy *3 jc 18 in vincnh's, in custody, with a rope round his neck, being liable on his own confession to execution, if the government be dissatisfied with his conduct in this respect/' A witness of depraved and abandoned character — Mr. Starkie says — may not be unworthy of credit, where there is no motive for misrepresentation ; for there is a constant tendency to declare the truth, which is never wholly eradicated even from the most vicious minds; and the danger of detection, and the risk of temporal punishment may operate as restraints upon the most unprincipled, even when motives of veracity of a higher nature are wanting. In England, all objections to the competency of witnesses on the ground of infamy, have been removed by the act on Evidence, 6 and 7, Vic. C. 85, Lord Denman's act, which declared]: " No person offered as a witness shall hereafter be excluded by reason of incapacity from crime, from giving evi- dence in any Court, but every person so offered shall be admitted to give evidence, notwithstanding he may have been previously convicted of any crime." The committee have now laid before the Senate the theory of human nature on which the exclusionary rules of evidence, that the bill proposes to abolish, are based ; and have shown that the theory is false and degrading to the society in which we live, while the rules themselves have been in so many particulars impaired and overthrown by admitted exceptions conflict- ing with them, as to involve the law upon the subject in obscurity, doubt and difficulty — to obstruct the inquiry after truth in Courts of justice — to deny to innocence the proper and natural means of protection, and in many instances to secure impunity to fraud and crime. They have shown that the theory and the rules have been repudiated and repealed in England and in most of the late United States of America, and that the true prin- ciple of evidence is that now adopted in the Courts of those countries — put everybody on the stand who knows anything about the case, and let the persons appointed to decide upon the facts in issue, both in civil and criminal cases, exercise their judgment on the credit of the witnesses adduced, and on the truth of their testimony. In stating the arguments for and against the rules now existing, the com- mittee have freely used the language employed by the Courts, and by the common lawyers, and by the most distinguished advocates of reform. It is time to throw off the trammels and prejudices generated by the long habit of thinking and acting in a legal routine, and to legislate upon correct principles. It certainly would be desirable, if practicable, to have perfect witnesses in every case. " But perfect men do not exist; and if the earth were covered with them, delinquents would not send for them to be witnesses of their de- linquency. The legislator then has this option and no other : to open the 19 door to witnesses, or to give license to crimes. For all purposes he must take men as he finds then. ; and for the purposes of testimony, he must take such men as happen to see and know, what, had it depended on the actors, would not have been seen and known by anybody." F. S. GOOPE, Chairman. RANPELL HUNT, A. L. TUCKER, E. PHILLIPS, J. S. FLOURNOY. AN ACT Relative to the Law of Evidence. Whereas, the inquiry after truth in Courts of Justice is often obstructed by incapacities created by the present law of evidence ; and whereas, it is desirable that full information as to the facts in issue, both in criminal and in civil cases, should be laid before the persons appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced and on the truth of their testimony : Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened, No person shall be incompetent as a witness because of his or her conviction of crime, or his or her interest in any issue or question before any Court or officer authorized to administer oaths. Sec. 2. Be it further enacted, a v., Nothing herein shall render any per- son, who in any criminal proceeding is charged with the commission of any offense against law, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself. Sec. o. Be it further enacted,