INTRODUCTORY REPORT

TO

THE CODE OF EVIDENCE.

No branch of jurisprudence requires greater certainty and more simplicity in its provisions, than that of judicial evidence. But there is none in which so little of either is to be found. The reason is, that, with fewer exceptions than exist in any other division of the science, it has been abandoned to the vacillating authority of decisions, for its creation and amendment, without any superintendence of the legislative power. This was a natural consequence of the transition from the semi-barbarism of the middle ages, to the more improved state of the science in modern times. During the period when the divine power was invoked, and supposed specially to interpose in litigated questions, by protecting innocence and making justice prevail in the ordeal and the battle, human testimony would of course be considered of minor importance. In proportion, however, as these miraculous interventions of the Deity ceased to obtain credit, and the agency of human justice and discretion was called in to supply its place, it became necessary to consider what evidence ought to be received in order to direct them. But no legislative provision had been made for this change, which was imperceptibly produced as the mists of ignorance and the veil of superstition were slowly withdrawn. In every case in which the witness was substituted for the champion, and the ordeal of justice for that of the elements, the court was obliged to make some rule for securing the appearance of the witness; interrogating him to come at the truth; determining what persons ought to appear in that character, and what degree of credit, under different circumstances, was due to their testimony.

In the earlier periods of jurisprudential history in Europe, the distinction between oral and written evidence can scarcely be observed. But when literary education became more common, writing was prescribed by the legislative power, in some cases, as a check upon the inaccuracy of testimonial evidence; and as the few laws it was found necessary to pass were couched in general terms, and frequently in obscure language, the judges thought themselves authorized to supply deficiencies, and sometimes to restrict what they deemed the too comprehensive words of the text; and thus the law of written as well as of testimonial evidence became the creation of judicial decisions, not of legislative acts. It is, however, easier to trace its origin with tolerable

certainty than, with any probability, to account for some of the extraordinary features which distinguish it. There is such a moral beauty in truth, it is so necessary to us in all our intercourse with each other, that we have been endowed by our beneficent Creator with a love for it, which, if not innate, is necessarily produced by the circumstances in which he has placed us(a). Man never swerves from truth without some temptation, some real or imaginary good, that he promises himself from the falsehood. Doubt even on matters of little moment, is an uneasy sensation: and there is a corresponding satisfaction in that state of the mind which results from a conviction of truth; so that, as in the ordinary affairs of life, no one makes an assertion of fact, but with the intent of producing belief; so no one hears it without a desire, sometimes imperceptible and involuntary, to be convinced of its truth or falsehood. But this conviction can only be produced by evidence. As long, therefore, as he is deprived of any evidence which is known or suspected to exist, so long will the uneasy state of doubt, in a greater or less degree, continue. If this be true in relation to matters where neither interest nor duty, but a mere love of truth, call upon us to decide; how much more strongly will the desire be felt when life or fortune depends on the correctness of the decision. Yet it is precisely in cases where this longing after truth should be gratified, that is to say, in litigated questions, that the evidence by which it is to be ascertained is most restricted. Every where else, all sources, even the most suspicious, are examined; he who is to judge relying on his own power to discriminate; here alone he is taught to distrust that power, to reject all evidence that may possibly lead him astray, and where he cannot be guided by the full blaze of the noonday sun, to prefer utter darkness to the twilight, in which he might have discovered his path. To trace this leading feature in our law of evidence to its original causes, would be rather a curious disquisition than one leading to important practical results. It most probably is derived to us from the civil and canon law, where this principle is carried to a most extravagant length; and where the secret examination of witnesses by judges unacquainted with the circumstances of the case, made the risk of deception very great; where there was no confrontation, no personal cross-examination, no publicity, and where the parties themselves were 'not allowed to be present, detection was rendered so difficult, that it afforded a plausible pretext for absolute exclusion in all suspicious cases. The compass of this report will only admit of a reference to such restrictions as now exist, and a notice of those which it has been deemed necessary to retain or to abrogate, with the reasons by which the alterations are supported. These will be developed as we proceed with the details of the system.

This code begins, as those which preceded it have done, by an Introductory Title, laying down rules and making explanations to avoid circumlocution, and to give the perspicuity necessary to a full understanding of the subsequent provisions. Two of the articles are of a different character, and demand particular notice. They are intended to check the legislation of the courts, and to provide for the progressive amelioration of the code by the General Assembly, the only legitimate power for that purpose; while the right of pointing out defects, and suggesting improvements, is conferred on the judges. As the law formerly stood, the whole law of evidence, with very few excep

(a) In primis, hominis est propria vERI inquisitio atque investigatio.-Cicero.

tions, was, as we have seen, the work of the court, over which the legislature very rarely exercised even a corrective power; more frequently the courts corrected the statutory provisions; and by their rules of construction, for enlarging and restricting the operation of the written law, assumed and exercised, by whatever name it may be called, a legislative power. As this is a part, nay the very foundation of the common law, the observation is not intended as a reproach to the judiciary of the country from whence that law is derived. But it cannot be too often repeated, that in our constitution(a) it is not only affirmatively declared, that there shall be three separate branches of government-executive, legislative and judiciary; but negatively, that the duties of no two of these branches shall be exercised by the same persons. Every exercise of legislative power by the judiciary is, in this state, unconstitutional, and it is the duty of the legislature to check it. But as all human works are attended with a greater or less degree of imperfection, it must happen that the operation of laws will be found to work injustice; either by embracing, under general expressions, cases not intended to come within them, or, by a too restricted phraseology, not providing for other cases which it was their evident object to include. These defects in laws gave rise to the rules of construction before alluded to, by one of which the court were directed to place themselves in the situation of the legislature(b), to inquire whether, if the case before them had presented itself to the mind of the lawgiver, he would have extended or restricted the words of his law so as to provide for it and others of a similar nature. This is called consulting the spirit of the statute; and the rule, as I have stated it, is every day referred to and received in our courts. While it is evident that this is the exercise of legislative power, inasmuch as it extends or restricts the operation of a statute, it cannot be denied that the defects of all laws are best discovered in their operation, and that, as to all those which relate to jurisprudence, the judges are the persons best qualified to point them out, although, by our institutions, they are not authorized to provide the remedy.

The object of the two articles now under consideration is to secure the advantages to be derived from the experience and wisdom of the judges in the suggestion of defects, while the remedy is reserved to the legislature, the only power to which it can consistently with the constitution be referred. The first of these articles relates to cases in which any positive provision of the code, for the admission or exclusion of evidence, is found to operate improperly, either to the prejudice of the accused, or the ends of public justice in criminal proceedings, or to the injury of any party in a civil suit. In every such case the court is directed to make an accurate report of the same to the legislature, with the reasons for thinking the law imperfect or unjust in its operation. Should the general assembly coincide in opinion with the court, the proper amendment will be made to the code under its appropriate

(a) Art. 1, § 1. The powers of government of the state of Louisiana shall be divided into three distinct departments, and each of them shall be confided to a separate body of magistracy, to wit-those which are legislative, to one-those which are executive, to anotherand those which are judiciary, to another.

§ 2. No person or collection of persons, being one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.-Constitution of the state of Louisiana.

(b) Plowden, 469.

head; and, instead of a judicial decision of doubtful authority, obligatory or not on their successors, or even on themselves, as they shall think fit, and only to be known through voluminous and costly reports, we shall have positive law, easily understood, to be found in in its proper place, comprised in a few lines, and binding on the courts as well as the community. If, in consequence of such imperfection, the accused shall have been acquitted, judgment in his favour must be entered without waiting for any further legislative proceedings, for it would be unjust to subject an individual to the vexation of a second trial for a defect in the law, even if the amendment required, should be one that could not come within the description of a retro-active law. But if the consequence was an unjust conviction, or verdict in a civil suit, it is directed that no judgment shall be pronounced until the end of the session after the report shall have been made; when, if the provision is altered, new trials shall in both cases be ordered. If no change is made, it is evidence the legislature do not coincide in opinion with the court, and do not think the operation of their law improper or unjust; and as theirs is the supreme will, the courts must carry it into execution.

The first of these two articles having thus provided for the reconsideration and amendment of the code, in such provisions as seem unjust or defective in their operation, the second, in like manner, gives the remedy for omissions. In all cases where legislative enactments, or former decisions, gave no rule on the subject of the admission or exclusion of evidence, the courts necessarily, as has been observed, supplied the omission. They were obliged to admit or reject the evidence offered, and, having no legislation provided, were forced to decide according to their discretion, without one. After the adoption of this article, such an anomaly will no longer exist in our law. The legislator and the judge will each perform his proper duties, and no excuse will exist for the one to usurp, or the other to neglect them; for in every case where evidence is offered, and no rule is provided to direct the judge whether to admit or exclude it, legal authority is given him to do that which is now done without it; and in that case alone the rule, on which some animadversions have been made, is sanctioned, and the judge is directed to suppose himself in the place of the legislator, and to ask what would probably be his opinion if the case had been presented to him, and to decide accordingly; but to make report of the case to the legislature in the manner required by the preceding article, who will in like manner, give or refuse their sanction to the principle adopted by the court, and insert the affirmative or negative provision in the code. Whatever the legislature do in this last case, will not affect the decision if in a civil suit; the ends of justice require that the delay, uncertainty and intrigue, incident to the revision by the legislature of an adjudged case should be avoided. The court decides the case before them, but makes no rule for future cases; that is left to the legislature, whose proper province it is. But if the decision takes place in a criminal cause, and in consequence of the admission or rejection of evidence, not directed by any law, the accused shall be convicted, it is clear that his conviction will have taken place under an ex post facto rule, and is, therefore, illegal. The article consequently provides, that, in such case, judgment shall be arrested and the defendant discharged. These provisions are deemed to be of the highest importance. They are new, and the attention of the general assembly is respectfully called