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16 American Law Review 1
A National Codification of the Law of Evidence: Its Advantages and Practicability.
In this article it is proposed to discuss (1) the general advantages of a codification of the law of evidence, (2) the special benefits of having that codification uniform throughout the United States, and (3) the best practicable method of obtaining such a national statutory enactment.
In the first place, a codification of the law of evidence would promote the ends of justice by marring the determination of issues of fact raised in the trial of a cause more dependent upon the legal evidence actually produced by the parties, and less upon the skill displayed by counsel in securing its admission to, or exclusion from, the consideration of the court or jury upon purely technical grounds. The law of evidence may be defined as. a series of rules to determine the admissibility, the proper method of producing before the courts, and the legal effect when produced, of the various proofs offered by the parties to a legal controversy to sustain the issues of fact therein joined. These rules-excepting where, in a comparatively few instances, they have been the subjects of statutory enactmentsare part of that common law, the lex non scripta, which has never been officially promulgated as a whole, in concise and authoritative language, but is supposed to have its seat in the breasts of the judges of the several courts of justice, who, from time to time, in their opinions, pronounce so much of it as may be necessary to sustain their decisions of the particular questions coming up before them for adjudication. The only method of ascertaining the common law upon any given question is by a collation of the reported decisions upon similar or analogous cases, and, after deducing from them the general rule by which they were determined, then applying it to the point under consideration. In evidence, as indeed in nearly every other branch of the law, the labors of practitioners have been greatly assisted by the text-book writers, who, by collecting, arranging, and comparing many thousand isolated decisions, have been enabled to present the law of evidence in the form of scientific treatises, giving in their own language a system of rules applicable to almost every conceivable case, as well as the reasoning upon which these rules are based, with citations of the particular decided cases in which such rules and reasoning appear to have been adopted by the courts. Of course the statement of a rule of evidence in a text-book can only be regarded as authoritative in so far as it is shown to be supported by direct adjudications of the courts, or by correct reasoning deduced from such adjudications, and therefore these treatises must contain not only the rules of evidence, but also a recapitulation of the processes, logical or otherwise, by which these rules have been evolved. It often happens that courts, in explaining why they have decided to admit or reject a specific piece of evidence, do not state the rule of law fully, or in such exact language as would cover every case arising under it, but only state it partially, and so far as it may be applicable to the precise question before them.
Now, when we consider how numerous are the questions of evidence unexpectedly sprung upon counsel in the course of a trial at nisi prius, it is obvious that the number of lawyers who are sufficiently masters of the law of evidence to be always ready to meet those questions upon the spur of the moment, must be, under our present system, comparatively small; for they are not only required to know what the rule of evidence is by which the correctness of their positions is to be tested, but must also be able to state that rule in precise terms, and, if need be, to sustain the accuracy of their statement by reference to the authorities. Such a mastery of the law of evidence is, without doubt, one of the most effective weapons at the command of a skilful advocate; but, as that law now stands, it can rarely be acquired except as the result of long experience at the bar. Upon this subject Mr. Justice Stephen, in the introduction to his Digest of the Law of Evidence, well says,
It becomes obvious that, if a lawyer is to have anything better than a familiarity with indexes, he must gain his knowledge in some other way than from existing books on the subject. No doubt such knowledge is to be gained. Experience gives by degrees, in favorable cases, comprehensive acquaintance with the principles of the law with which a practitioner is conversant; . . . but those who have gained knowledge of this kind have usually no opportunity to impart it to others. Moreover they acquire it very slowly, and with needless labor themselves; and though knowledge so acquired is often especially vivid and well remembered, it is often fragmentary, and the possession of it not unfrequently renders those who have it sceptical as to the possibility, and even as to the expediency, of producing anything more systematic and complete."
It is therefore not at all surprising that the proportion of lawyers, both in this country and in England, who are sufficiently conversant with the law of evidence, to secure the full benefit of it to their clients at jury trials should be very small, especially among the junior members of the profession.
If, however, the entire law of evidence were once enacted in statutory form, the case would be very different. The text of the Indian evidence act of 1872, which was passed "to consolidate, define, and amend the law of evidence," and includes the whole law of evidence in force in British India, occupies less than sixty-eight small octavo pages, and it may be safely asserted that a few weeks' careful study of its provisions would enable almost any lawyer of average ability, if not to repeat it entirely from memory, at least to become sufficiently familiar with it to find in a couple of minutes, and read to the court, the rule of law applicable to any question of evidence that might be raised during the course of a trial,a feat clearly impossible of accomplishment with any of the voluminous treatises upon evidence now recognized as standard authorities. Of course it is not pretended that the adoption of a code of evidence would absolutely nullify all the advantages which counsel learned and skilled in this branch of their profession now possess over their less experienced competitors at the trial-table, but the inequality would be greatly diminished. In fact, it would have an effect upon forensic contests quite analogous to that produced upon the duello by the introduction of firearms, whereby personal prowess, and even practice and skill in the use of weapons, became much less important factors in the general results than before. Although such a change might possibly tend to somewhat abridge the emoluments of that comparatively small portion of the bar which now enjoys almost a monopoly of the more important trial practice, there can be no doubt that it would be a great benefit to the profession at large, as well as to the public generally.
Another advantage of having the law of evidence in a statutory form would be the saving of much time now often wasted by the courts in hearing long arguments of counsel, which could easily be abridged, and often prevented altogether by the judges, under such a system. Probably in nine cases out of ten, as soon as a question of evidence has been once fairly stated to a competent judge, his mind is practically made up as to how it should be determined; but if he be a very conscientious man, at all distrustful of his own infallibility, or if he have a nervous dread of being reversed upon appeal, he will be likely to listen to long arguments of counsel, pro and con, in regard to it, since, although he may feel that he has a pretty correct general knowledge of the law applicable to the case, there always remains the possibility that the terms in which he has formulated it in his own mind may not be strictly accurate, or may be at variance with some to which his attention has never been especially directed. Were the rule, however, laid down in authoritative terms by a statute which he had before him, he need have no hesitation in either cutting off discussion altogether, or at least in confining it within very narrow limits.
But, apart from this, the codification of the law of evidence would afford a needed opportunity to amend, improve, and harmonize it. Our present law of evidencemade up as it is of case law, modified by numerous statutory amendments made at different times, many of them based upon theories entirely inconsistent with each other, and some upon no theory at allis a system of patch-work, which, with much wisdom, contains also many absurdities, and the time has at length arrived, when, as a whole, it can be greatly improved by a general revision. The great difficulty about enacting laws in statutory form is in laying down the rules in such exact terms as shall apply with the desired effect to every possible contingency, as there is always so much danger of some particular cases not having been foreseen or provided for. But in reducing the law of evidence to the form of a statute, the codifier, armed with a text-book like "Wharton on Evidence," which undertakes to give all the American decisions as well as the more important English ones, to say nothing of Fisher's and Abbott's Digests, has always at hand the ready means of testing the rules which he formulates, by applying them to all the important cases which have been decided within the last century in America, and during a much longer period in England. If, then, the rules of evidence can be simplified and put into authoritative language with but little risk of occasionally defeating the ends of justice in cases unforeseen and consequently entirely unprovided for, there is certainly great reason why the attempt should be made. It is inevitable that a system of evidence like oursevolved by slow degrees from a long series of rulings in individual cases by courts which, while using every endeavor to promote the ends of justice, were, theoretically at least, under the restraint of being always bound to follow their own previous decisions, besides being controlled by the fetter of all existing statutesshould not always be perfectly consistent with itself; and such a system can only be made so by undergoing a general revision, which would free it from many incongruities and blemishes that cannot be reached except by statutory enactments, because of long-established rules of decision, which still have the force of binding authority, although the reasoning upon which they were originally founded may be no longer recognized as applicable. The result is, that upon some points the law of evidence is not only in a very unsatisfactory state, but extremely uncertain.
Take, for example, the very conflicting views prevailing as to the proper rule to govern in determining what questions may be put to a witness, on cross-examination, for the purpose of testing or impeaching his credibility, and especially how far in such cases he may be compelled to disclose disgraceful matters about himself, or such as would have a tendency to bring him into public disrepute. Let any one read what is said in the various textbooks upon this important and interesting subject, and compare the numerous and apparently contradictory rulings there cited in support of the conflicting views which they respectively advance, and he will certainly be greatly puzzled to say what the law really is, or even to approximate to it. To gather from 2 Phillips, ch. 10, § 2, pp. 939-955 (4th ed., Cowen and Hill's note), 1 Starkie, Ev. pp. *207-*214; 1 Greenleaf, Ev. §§ 454-460; 2 Taylor, Ev. §§ 1313 to 1316; 1 Roscoe, Cr. Ev. p. 149, and 1 Wharton, Ev. §§ 541-544,all of which treat of this matter,any definite rule by which a lawyer can determine in advance how far he has a legal right to push a cross-examination of this character, is a difficulty which can only be appreciated by one who has actually attempted it. Mr. Justice Stephen, in his Digest of the Law of Evidence, has, with a boldness which no other writer upon the subject, that I know of, has ventured upon, laid down the law to be that a witness, on cross-examination, may "be asked any questions which tend (1) to test his accuracy, veracity, or credibility; or (2) to shake his credit, by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself," except in cases where such answer would have a tendency to expose him to a criminal charge, &c., and he cites as an illustration the celebrated ruling of Cockburn, C. J., in R. v. Orton, which certainly is an authority that goes very far to sustain his position.
Although a very large proportion of both the Bench and Bar of this country, whose ideas have been mainly derived from the text-books above referred to, would doubtless, at the first blush, be much startled at being asked to give assent to the proposition thus laid down, there is no question as to its being a perfectly correct statement of the law, if taken with the qualification that the judge before whom a witness is examined has at all times an absolute discretion, not subject to review on appeal, as to how far he may be interrogated about matters irrelevant to the case, excepting so far as they may affect his credibility. This has been more than once expressly recognized as undoubted law by the Supreme Court of the United States, as well as many of the highest State courts; 1 and indeed it furnishes the only key to the difficulty of explaining and reconciling the otherwise conflicting decisions cited in the text-books; for, as well stated by Porter, J., in his elaborate opinion in the case of the Great Western Turnpike Co. v. Loomis, upon no other possible theory could Lord Ellenborough have been justified in once telling a witness, who was asked whether he had not been in jail for theft, that he would send him there if he did not answer, 2 while upon other occasions he either refused to permit counsel to put similar questions, 3 or, if he did allow them, told the witnesses they need not answer unless they chose. 4 Admitting, therefore, that the latitude to be allowed in cross-examinations of this character is entirely within the control of the presiding judge, it necessarily follows that witnesses may be always asked, and compelled to answer, whatever questions the judge sees fit to allow. The unphilosophical doctrine, which at one time prevailed quite extensively in the profession, to the effect that certain questions might always be asked, but that the witness could never be compelled to answer them, seems to have originated from a comparison of the rulings of different judges in the exercise of the discretion above referred to, and in the vain endeavor to reconcile with some fixed general principle the decisions which, as a matter of fact, had been governed entirely by the particular circumstances of each case, and it has now been pretty well exploded. Judge Redfield, fully recognizing this, has added to § 460 of the first volume of his edition of Greenleaf: "It is probably safe to say that counsel cannot in any case insist upon asking a question which the witness is not obliged to answer."
But to put a matter of this kind entirely within the discretion of the judges at nisi prius without providing any rules to govern them in its exercise, is surely to leave the law in a very unsatisfactory state; for it is of the very essence of the Anglo-Saxon idea of justice that every man's rights should be determined by the fixed standard of established rules, rather than according to the private conscience of the judge; and as the text-book writers have signally failed to agree upon any such rules as having been established by the reported adjudication, the only method of obtaining them will be by statute, as was done in the Indian Evidence Act, which; in § 148, provides as follows:
"If any such question relates to a matter not relevant to the suit or proceeding, except so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if he thinks fit, warn the witness that he is not obliged to answer it. In exercising this discretion the court shall have regard to the following considerations: (1) 'Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which be testifies. (2) Such questions are proper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies. (3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence.'"
If such a statute had been in force in England at the time of the trial of Regina v. Orton, Lord Chief Justice Cockburn could hardly have allowed counsel to put the scandalous question above alluded to, or have compelled the witness to answer it, 5 and not a few instances are constantly occurring in this country, within the observation of most lawyers, where such a statute would have a most beneficial effect upon the conduct of trials.
A great absurdity in the American law of evidence as it now stands generally throughout the country, except perhaps in North Carolina, 6 is the rule that, in the cross-examination of a witness, he cannot be asked whether he has ever been convicted of a criminal offence, but that such conviction must be proved, if at all, by a certified copy of the judgment, upon the ground that a copy of the record is the best kind of evidence, and, consequently, it ought to exclude all other proof of an inferior degree. Although this is true as a general proposition, yet in such cases as these there is no possibility of any injury being done either to the witness or to the party who called him, by seeking to prove a previous conviction out of the mouth of the alleged convict himself, rather than by a record of the judgment; for it can hardly be imagined that any man would ever make himself out a greater criminal than he really is, merely for the purpose of throwing discredit upon his own testimony. If a party is in danger of being sworn out of court by the testimony of witnesses brought in unexpectedly at the last moment, and who, he may have good reason to believe, are notorious criminals, it is a monstrous injustice that he should not be allowed to prove this fact out of their own mouths, instead of being obliged to send off to another court for a copy of a record, which, in nine cases out of ten, it would be impossible for him to obtain before all the testimony in the case had closed and it would be too late to use it. In the case of Real v. The People, 7 the New York Court of Appeals, while recognizing the binding obligation of the foregoing rule of evidence, have subjected it to a construction almost as strict as that placed upon the celebrated bond in the case of Shylock v. Antonio; for they say that although you may not, on cross-examination, ask a witness whether he has ever been convicted of a crime, you may ask him whether he has ever been in jail, or in the penitentiary, and for how long a time he has been there. This matter would surely be placed on a much more satisfactory footing by the enactment of a statute like 28 Vict. ch. 18, § 6, which provides that "a witness may be questioned as to whether he has been convicted of any felony or misdemeanor, and upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, it shall be lawful for the cross-examining party to prove such conviction."
Many other such cases might be enumerated to show that a statutory revision of the law of evidence is much needed, such as the law in regard to proof of disputed handwriting by the testimony of experts and the use of test papers. Indeed, the whole practice in regard to expert testimony generally is greatly in need of reform and regulation; for the spectacle of litigants paying large sums of money to eminent scientific men, in order to procure their services as witnesses to testify on the side of a disputed question which they are paid for, is not one that commends itself to the average moralist as especially edifying. Nor has practical experience shown it to be either the most certain or most economical method of arriving at the truth. In criminal cases especially, the extent to which this expert business has been carried is a reproach to our civilization, and calls loudly for a statutory remedy, which shall not only put some limit to the number of experts permitted to testify upon any one point, but will also make provision for their selection by agreement of the parties, or under the direction and supervision of the court, and, above all, that their services shall be paid for out of a common fund, to be deposited in court by the respective parties in the, first instance, and their fees shall be ultimately taxed as part of the regular costs of the case. But to pursue this subject further, or to multiply instances in which our existing law of evidence could be greatly improved and simplified by a thorough and careful revision, would be altogether foreign to the purposes of this article. Indeed this branch of the subject may be briefly summed up in the proposition, that, as we now have before us the results of enough decided cases to determine definitely what the rules of evidence ought to be, the time has fully arrived for expressing them authoritatively, in such explicit terms that the rules themselves and not the adjudications they are founded upon, shall be the ultimate standard hereafter to be applied by the courts in deciding questions of evidence.
Benefits which would arise from having the law of evidence uniform throughout the United States must, upon reflection, suggest themselves to every one. Whatever arguments may be fairly urged in favor of the existing diversity of the laws of the several States in other particulars, it would be difficult to discover any valid reason why the rules of evidence should not be the same everywhere. The actual differences between the roles of evidence as now established, in any two States in the Union, are so slight that they could all be abolished without subjecting any one to serious inconvenience, while there are just enough of these differences for their continued existence to afford a constant source of annoyance and vexation, and, in many instances, to add one more to the already too numerous uncertainties of litigation. Before a man brings suit against a debtor living in another State, it is often important that he should know what evidence he will be required to produce in order to establish a prima facie case. In some of the States this may often be done by exparte affidavits, which are conclusive unless contradicted by sworn testimony upon the other side; but the law and practice of the several States are so diverse in this particular, that the desired information can rarely be obtained except through correspondence with a lawyer residing in the forum where the suit is to be brought, which always involves trouble and expense, and frequently fatal delays. Any lawyer who advises a client in regard to instituting legal proceedings in another State is very apt to be working in the dark to some extent. Especially is this the case in regard to the question of the competency, as witnesses, of those who are parties to the record; for although all the States, excepting Delaware, have, in general terms, declared them competent by statute, yet all these statutes contain exceptions, and these exceptions are by no means uniform. The differences in the practice of the several States in regard to taking the testimony of non-resident witnesses, under commission or by deposition, have always occasioned no little perplexity and inconvenience to those who are obliged to resort to this method of proof. Many a case has been lost, or greatly delayed, by reason of technical errors or defects in the execution or return of a foreign commission, which arose solely from the fact that the commissioner who executed it was not informed of some local peculiarity of practice, or some decision in the State from which it issued. The advantages of a uniform system of practice in this particular would be greatly appreciated both by litigants and practitioners. In fact, the immense amount of inter-State litigation always existing in this country must necessarily make the adoption of a uniform system of evidence a great desideratum.
An additional argument for making the codification of the law of evidence a national work is that there is every reason to believe it would be much better done if undertaken under authority of Congress, with a view to its adoption by the whole country, than if attempted by the legislatures of the several States. If undertaken as a national work, not only would it be subjected before adoption to a critical comparison in each particular with all the different systems prevailing in the several States, but if intrusted to competent hands it would necessarily involve a careful comparison of all those different systems, and the incorporation into itself of whatever was found to be best in each of them. Some of the States have of late years introduced by statute great improvements into the law of evidence; and as but comparatively few lawyers are apt to trouble their heads much about the local laws of other States, the most likely way to secure the general and early adoption of these improvements is by a complete and thorough revision of the law, as a national work, for the common benefit of the entire country. As an instance of the kind of improvements referred to, I may cite a law, now in force in most of the States which have adopted the New York code of civil procedure, by which as soon as the defendant has been summoned, or an appearance entered for him in any suit, either side has the right to take the testimony, by deposition, of any party to the action, or of any person for whose immediate benefit it is prosecuted or defended, upon five days' notice. Under the California practice, such deposition, after being corrected and subscribed by the witness, is sealed and deposited with the clerk of the court, or such person as the parties in writing may agree upon, until the trial. Such a deposition, once taken, may be read by either party in any stage of the same action or proceeding, or in any other action between the same parties, upon the same subject, and is then deemed the evidence of the party reading it. A more admirable device than this for getting at the truth in that large class of cases involving questions of fraud, or in many of those which are defended for mere purposes of delay, it would be extremely difficult to conceive of. The number of witnesses who, in States where this practice does not prevail, have been compelled to attend for days, and often weeks, at a time, with great inconvenience and loss to themselves, as well as such expense to the party by whom they were summoned, waiting to give their testimony to facts that the adverse party would most likely have been obliged to admit, if put upon his oath in the manner above provided for, is incalculable. The amount of false swearing, and the number of fraudulently concocted claims and sham defences which could be prevented or made of no avail, by committing the parties litigant to a definite statement in writing and under oath, at the beginning of the suit, can be well imagined by any lawyer of much experience in trial practice. Such a system possesses all the advantages of a bill of discovery, with none of its drawbacks of expense and delay.
But the question now arises as to how such a national code of evidence can be obtained. Of course it must be prepared under act of Congress; but, as every one knows, Congress has no authority under the Constitution to enact any laws to control the modes of procedure in the State courts. Congress has, however, entire control over the procedure in the Federal courts and might undoubtedly enact a codification of the law of evidence which would be binding upon all the courts of the United States. There can be little doubt but that such a code, covering the entire law of evidence, if once in force in the Federal courts, and enacted in such a form that it could be conveniently adopted by the several States as a whole, without alteration, would within a very short period, by the voluntary action of the State legislature, be adopted throughout almost the entire Union. The convenience of having a compendium of the entire law of evidence in an authoritative form would be too great for those practitioners who had once enjoyed it in the Federal courts not to strive for in the State courts also. For reasons already intimated in the first part of this article, the general adoption of each a code would be very apt to find especial favor with the junior members of the bar, from whose ranks many of our State legislatures are largely recruited, and whose influence in matters pertaining to the practice of their own profession must necessarily be considerable. As an evidence of the general favor likely to be shown to a movement of this character, I need only refer to the great popularity, in this country, of Mr. Justice Stephen's "Digest of the Law of Evidence," which is nothing more or less than a private codification of the existing English law of evidence. Although this codification does not bear the stamp of authority even in England, and although it embraces many British statutes which have no force in this country, it has had a much greater sale here than any law book that was ever published before. The book was published more than five years ago, but the demand still continues unabated. Besides the great number of copies of the English edition which have been imported, there are no less than three American editions upon the market. This unprecedented popularity can only be accounted for upon the theory that there is a great demand by the profession for a codification of the law of evidence,such a demand as nothing short of an authoritative enactment with the binding force of positive law can ever fully satisfy.
In order to have the work done in a satisfactory manner, the preparation of such a code of evidence should be entrusted in the first place to a commission, with a man at the head of it who, in addition to great practical experience and acknowledged ability, should have, like the distinguished author of the New York civil code, unwavering faith in the code system, and who would, moreover, take great professional pride in making the undertaking a complete success. Such a man, assisted by colleagues from different parts of the country, would be able, with the material at his command, to draft a comprehensive statement of the law of evidence, complete in all its details, which might then be published, and submitted to the profession for examination and criticism. This preliminary publication should contain brief citations from the authorities in support of such portions of it as were intended to be merely declaratory of existing rules, and should also indicate what parts of the proposed code would involve any changes in the present law, and give the reasons for making them. A publication of this kind would necessarily challenge the attention of the bar throughout the country, and provoke more or less criticism and discussion in the various law periodicals, which would be pretty certain to detect and point out to the public whatever omissions or inaccuracies might have escaped the notice of its authors, so that, by the time members of Congress would be called upon to make it law, they would have had every opportunity of thoroughly understanding what they were voting for.
Although no commission could ever be expected to frame such a system of evidence as would be satisfactory to everybody, it would by no means require an unusual degree of ability to prepare, with the materials at hand, a code possessing sufficient merit to eventually win its way to success; for the most difficult part of the work has been already done in advance, in the Indian Evidence Act of 1872, and in the bill for providing a similar code of evidence for England, introduced into parliament in the following year by the present Chief Justice, Lord Coleridge, then Attorney-General. This latter bill, which was prepared under his direction by Mr. Justice Stephen, and formed the basis of the latter's "Digest of the Law of Evidence," has never been published; but he informs us that it was drawn on the model of the Indian Evidence Act, and contained a complete system of law upon the subject of evidence; that it was in the ordinary form of an act of Parliament, and proposed a variety of amendments of the existing law. It was not brought forward until the last day of the session, on Aug. 5, 1873. Lord Coleridge's elevation to the bench in the following autumn of course put an end to his efforts in the House of Commons on behalf of law reform. From what we know of both Lord Coleridge and Mr. Justice Stephen, there can be no doubt but that any work attempted by either of them in this direction would be most carefully and thoroughly attended to; and most probably a very large portion of that bill might be enacted in this country verbatim, or at least with very trifling alterations. As the bill was actually introduced into Parliament, it is apprehended that there would be no difficulty in procuring a copy for the purpose intended, by making application on behalf of the United States government in the proper quarter. But while the commission might with great advantage avail itself, in many particulars, of the results of the labors of their distinguished jurists, there would also be a great deal of entirely independent and original work to occupy its attention, especially in the matter of revising and simplifying. the entire system of taking depositions of non-resident witnesses, and testimony de bene esse; for assimilating the manner of taking evidence equity, patent, and admiralty cases, as much as practicable, to that in use in the common-law courts; and for providing a uniform method of establishing prima facie and by exparte affidavits the genuineness and validity of all bills, notes, open accounts, accounts, and sealed instruments, upon which suit may be instituted, as well as to lay down a general rule regulating how far, for what purposes, and in what cases the store or shop books of original entry of a party to a suit shall be admitted in evidence on his own behalf.
The draft of a bill providing for the appointment of such a commission, and defining its duties, might with great propriety be prepared by, and introduced into, Congress, under the auspices of the American Bar Association, which could thus probably bring sufficient influence to bear upon the national legislature to secure its enactment. Of course there could be but little prospect of having the work done properly unless the bill made provision for an adequate compensation to the commissioners for the time and labor which they must necessarily expend in preparing a code of evidence; but the benefits to be derived by the public at large from the adoption of such a code would be fully worth all the money necessary to be expended in that behalf. Another advantage to be expected from the inauguration of such a movement by the American Bar Association, is that any recommendations of that body would, in such an event, be likely to have great weight in the selection of the members of the commission, and consequently the probabilities of the work being entrusted to the most competent hands would be greatly increased.
Frost v. Halloway ex rel. Gurney, cited 1 Starkie, Ev. *212, note, and 2 Phil Ev. p. 949.
Rex v. Lewis, 4 Esp. 226; Spencely v. De Willott, 1 East 108
Millman v. Tucker, Peake's Add. Cases, 222.
See Stephen, Digest Ev., art. 129, illust. (a).
State v. March, 1 Jones, Law, 526; State v. Garrett, Busbee, Law, 827.
42 N. Yl 280.