Rules of Evidence--As Affected by Religious Belief,

Probably no branch of the law has been so much changed in the past thirty years, as that of evidence; and an investigation into the establishment and subsequent modification of a limited number of the rules of evidence, can scarcely fail of being both interesting and practically beneficial to those members of the Bar who tend to view Jurisprudence from a philosophic standpoint. It has frequently impressed itself that the law, either in its details or as a whole, is too rarely considered in its scientific bearings; and too little attention is t bestowed upon the causes that have influenced its growth and change. To an exposition of a single rule of evidence, as it has been affected by the religious opinions of the past, this article will be principally devoted; and in addition,, two other rules will be noticed, which, being once firmly established, are now fast disappearing from among the laws of every civilized State.

In pursuance of this design, it will be expedient to notice these three rules themselves; to trace the method and cause of their original establishment, and, especially, to analyze the process of the rise and decay of the rule of exclusion of witnesses by reason of a defect of religious belief. Into this investigation, many facts and speculations will properly come which may seem to be beyond the pale of a strictly legal paper; but, in extenuation of this plan, it is conceived that most law articles are too strictly confined to statements of what the law is, and not sufficiently indicative of how it came to be as it is.

Doubtless, the highest and most engaging expression of knowledge is to be able to predict; but it is a labor, neither of ease nor one devoid of utility, to designate the means by which have been established certain legal principles, and to elucidate the causes, and trace the social phenomena, that afterwards influenced their modification or repeal. To accomplish these results, with even a small degree of satisfaction or accuracy, it is necessary to search beyond the meagre and uninteresting information contained in the ordinary works designed for the students and practitioners of the law, and somewhat to acquaint ourselves with the institutions, beliefs, characteristics and history of the people among whom these legal principles were founded, from whom they were transmitted, and by whom they have been developed, modified and improved.

The subjects to which attention is now to be directed, are the three following rules of evidence as they existed at Common Law:

I. The exclusion of the partics to actions from testifying.

II. The exclusion of those pecuniarily interested in the result of the suit.

III. The disability to testify by reason of a defect of religious belief.

As will be noticed, the first two of these rules formed a portion of the Roman law, and while the causes that led to their adoption by the builders of that wonderful and complex frame of Jurisprudence, are worthy of deep and extended research, yet the limits of this arti cle will permit only a slight allusion to them. Even in the treatment of these three rules, as they related to the common law, there will be excluded any inquiry in so far as the criminal and chancery courts were peculiarly concerned; as by such treatment it is deemed that the investigation will be greatly simplified, and that little will be lost in the illustrations requisite for a tolerably clear understanding of the social, political and religious conditions that first inaugurated and has since tended to subvert them.

The earlier rules of Roman Judicature permitted to be given at the trial of a cause the testimony of all persons who were acquainted with the matter in issue; but the later rules were far stricter, and sedulously excluded as witnesses not only the parties to suits their relatives and servants, but also all those in any manner interested in the event of the cause. The English common law, as written by Blackstone, while it dropped the rule excluding relatives and servants, added the third now under discussion.2 Great alterations have been made since were spoken those somewhat more elegant than erudite lectures of Blackstone, upon a system of laws wherein the courtier rather than the judge, must have prompted the opinion that they were almost perfect; and the rules now of force in England, and in many of the United States, are such as to admit all evidence deemed pertinent to the issue, and which is not obnoxious to the charge of being hearsay, or secondary, or of coming from one incapacitated by defect of understanding. This last rule, so obviously necessary and logical-and depending so largely for its proper enforcement upon the mental condition and even idiosyncracies of each witness-should prevail in all systems of evidence, however it may 11 Vol. Mommson's Hist. Rome, p. 205.

2 Blackstone's Com., p. 369, and note; 1 Starkie on Ev., p. 85, and note; 1 Greenleaf on Ev., ? 327.

be modified to meet the exigencies of cases and the advance of technical and psychological knowledge.

Not until a little more than twenty-five years ago was the common law rule excluding the testimony of the parties to actions, abolished in any of the United States; and this was first done in Michigan, in 1846, soon afterward in Connecticut, and then in other States. The rule of exclusion on account of defect of religious belief, was first abolished in Missouri in 1845, and the exclusion by reason of interest was first removed in Connecticut as late as 1849. Prior to these radical changes, however, is to be traced the modifications that these rules underwent in construction, at the hands of liberal and learned judges. Among these may be mentioned the important ruling in Ormich und vs. Barker, Willis, 245; 1 Ark., 21, S. C., where it was settled that a simple belief in a God who will reward and punish, is sufficient to remove the exclusion on account of defective religious opinion. Subsequently, by the course of decision, it became to be doubted, if it were even settled law, whether a belief in a future state were necessary, provided accountability to God in this life were acknowledged. This certainly was a great relaxation of the old rules, which had their very foundation in the doctrines of immortality and future accountability, and clearly prognosticated the yet larger views that are finally to put an end to all inquiry made to any person for the purpose of imposing the slightest disability on account of any opinion held upon any subject, religious or otherwise.2

These restrictive measures have been most reluctantly and tardily removed, and their repeal may be pointed to as an example of that negative legislation which is so highly commended by Mr. Buckle. Probably it is the most remarkable peculiarity of the history of modern legislation, that many of the best laws are those whose only office is to remove the restraints applied by former lawmakers. Aside from the laws of evidence, the usury laws, revenue laws, regulations governing marriage, and the property of married women, and many others, were all the result of that protective policy which has so long been the bane and specialty of legislative occupation. The largest reforms and the highest wisdom have been shown when our legislators have turned their invaluable attention toward the removal of old, rather than the adoption of new, regulations. The greatest duty of those called to govern, would be to give liberty by displacing the burthens that the lauded, yet foolish, past has imposed upon society;

11 Greenleaf on Ev., 369, and note.

2 Const. of Ga., of 1868.

and which have so long, and so painfully, impeded its upward and onward march.

However, the statement may engender dispute, yet it is, probably, susceptible of proof, that those men who are commonly delegated to make the laws of a country are, as a class, owing to their peculiar habits of life, considerably in the rear of the true thinkers and reformers of the age. Almost all the salutary changes in the laws of a people arise from the theories of the more learned and profound, who are out of public life, being adopted by those who are mainly engaged in the activities of life and the practice of governing. Indeed, so true is this of all classes and professions, that it is found in the department of jurisprudence that the greatest and most voluminous law writers have rarely been either large or successful practitioners. So, too, those men who have originated and given expression to the ideas which, being adopted by legislatures, have wrought the most beneficent changes in the polity of nations, have, with few exceptions, been those who were seldom, or never, engaged in the turmoil and business of practical government.

To think out correctly what should be done, is an easier task for a quiet and philosophic reasoner, than for one who, engaged in the conflicts and policies of life, has his sympathies and prejudices always blended with, and too often controlled by, his daily avocations.

Leaving, however, these interesting speculations, let the real merits of this investigation be stated thus:

By what process were these rules of evidence evolved, and through what influences have they been modified and abolished?

In seeking a solution for this question, it is requisite to go beyond purely legal knowledge, or that information contained in law books. As before intimated, it is the pre-eminent defect of this class of writings that, while they are sometimes accurate and exhaustive in telling what the law is, they rarely attempt to enter into even the slightest explanation of how the law came to be as it is. They show the changes wrought by statutes and decisions, but they fail to examine or designate those social and political aspects from which these statutes and decisions themselves arose. It is conceded that an extended view of this branch of inquiry more properly belongs to a History of Jurisprudence, yet, even a slight insight into these causes, given by law writers in the introductions to their treatises, would be of great interest and benefit to their readers; while it would, mayhap, facilitate the labors of the future compiler of that Grand History

which some genius, it is hoped, shall some day write for the edification of mankind, and the glory of his own name.

Neither in Coke, Blackstone, nor the various works specially devoted to Evidence, is to be found any elucidation, or even mention, of the causes that operated to annul the old laws relating to the admission of testimony under the Anglo Saxon and Norman governments. And it is a further fact, which at once points the character and the deficiency of law books, that none of them contain other than a most superficial discussion of the causes which wrought that important change in the history of the English law, when the methods of conducting trials as in existence before the Conquest, fell into disuse, and there became adopted those rigorous rules that were in existence when Blackstone compiled his Commentaries.

As it is now proper to consider the manner in which these rules of evidence became established, it will not carry us beyond this plan to arrive at the rules of force in England prior to the full development of what is now known in America as the common law. It is quite well settled that the mode of conducting judicial investigations among the Anglo-Saxons, before as well as some time after, the Conquest, was to allow to testify all the parties to the action, as well as all others who knew anything connected with and bearing on the case; and this without any restriction on account of the want of religious belief. Precisely how long these liberal rules continued in force, it is as impossible to say as it has been to determine when the common law restrictions first became settled and fixed as a portion of that fabric, in commendation of which has well nigh been exhausted the vocabulary of enconium.

In the reign of King Stephen, who usurped the English throne in 1135, were introduced into that country the Roman civil and canon laws, and from these were borrowed many rules and forms of procedure, before that time unknown to the simpler modes of AngloSaxon and Norman judicature. While neither history nor tradition enables us to define the precise time when the rules of evidence, as taken from the Roman law, became adopted by the Courts of England, yet it is most reasonable to suppose that they were not established until after the formal introduction of these civil and canon laws. The old rules of Saxon and Norman law may, however, have become greatly modified even before that date, as, until after the Conquest, the civil and ecclesiastical courts were united, being jointly

12d Turner's Hist. Anglo-Saxons, pp. 527 to 531; 1 Hume's Hist. of Eng., p. 164; 1 Craik & McFarlane's Pic. Hist. of Eng., p. 245.