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fect test as to the merits of this species of evidence "A true analysis would probably restate the law so

as a demonstrative medium, because it is always understood in a discussion of this nature, from the principals of legal reasoning, that, that which is not relevant is not admissible. It is only when matter of logical relevancy is excluded that any question arises, and the futility of the attempt to solve such question along the lines of relevancy as a basic principle, is soon perceived. Relevant hearsay evidence is at times excluded, because the passage of time, and the experience of eminent jurists, have discovered to us that it is dangerous; that the jury is very liable to be swayed or unduly influenced by it, and will as a rule give to it far more than its proportionate share of their consideration as measured by its intrinsic value (2).

as to make what we call the hearsay rule the exception, and make our main rule this namely, that whatsoever is relevant is admissable. To any such main rule there would, of course be exceptions; but as in the case of other exceptions, so in the hearsay prohibition, this classification would lead to a restricted application of them, while the main rule would have freer course" (James Bradley Thayer, LL. D., Prel. Treat. Ev., 520).

Through this maze, inextricable on first impression, the only key of elucidation is in this: remember the rule in general is, all hearsay evidence is excluded; but that to this rule there are exceptions. Keep in mind that these exceptions are based on no underlying principle, are irreconcilable in many inThe very reason that has led, by constant exclu- stances, and are the natural result of the cause already sion of evidence, to the formation of this prohibitory pointed out. Memorize the exceptions to the rule rule against hearsay, also drew exceptions (some as reflected by the reported cases, and carefully disso called because the rule itself never affected them), tinguish the common law from controlling statutes and in the course of time the distinguishing line which may exist in different jurisdictions. The between the main rule and the exceptions to it, student in pursuing his studies in this form will find became so vague and uncertain, that when, in addi- I trust, a large portion of his initial despair lose tion, the absence of a well-reasoned form and sub-color as he proceeds in the light of an increased stance is considered, it is easy of understanding understanding.

that, at this time, the study of this branch of evi- I have appended to this article, a table of the dence is a matter of some difficulty. It has been exceptions to the hearsay rule, which, while not said, with his usual force, by an eminent law writer: exhaustive by any means, has been my earnest endeavor to make a fair reflex of the cases, and which by oral testimony, the law requires the next best I am led to hope, the student may use to his

advantage.

HEARSAY EXCEPTIONS.

evidence, namely, the testimony of those who can speak from their own personal knowledge. It is not requisite that the witness should have personal knowledge of the main fact in controversy, for this (a) Reported Testimony and Declarations Under

may not be provable by direct testimony, but only by inference from other facts shown to exist. But it is requisite that, whatever facts the witness may

Oath.

I. Must be testimony given at a former trial bespeak to, he should be confined to those lying in his tween same parties or privys in regard to same subown knowledge, whether they be things said or done, ject matter and the witness who testified must be

and should not testify from information given by
others, however worthy of credit they may be.
For dead.
it is found indispensable as a test of truth and to
the proper administration of justice that every living

witness should, if possible, be subjected to the ordeal
of a cross-examination, that it may appear what
were his powers of perception, his opportunities for
observation, his attentiveness in observing, the
strength of his recollection and his disposition to
speak the truth. But testimony from the relation
of third persons, even where the informant is known,
cannot be subjected to this test; nor is it often pos-
sible to ascertain through whom, or how many per-
sons, the narrative has been transmitted from the
original witness of the fact. It is this which con-
stitutes that sort of second-hand evidence termed
'hearsay.'"

(2) The two New Jersey cases, of early date, following are actual examples: Demoney v. Walker (Cox

[N. J.], 33 [1790]), reads: "The justice in this case permitted hearsay evidence to go to the jury, but directed them to pay no regard to hearsay testimony." Per Curiam. Reverse the judgment. The case of the State v. McDonald, reported five years later in the same volume of reports, page 332 (1795), shows the following language of Smith, J., in reference to certain testimony which had met with objections: Whether according to the strict rule of the law it is proper testimony to go to a jury is certainly questionable, but, sitting here as a judge, I have no objection to hear it."

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2. The evidence must be mutual, i. e., capable of use against either party.

3. In New York witness must be dead or insane. Some jurisdictions say absence or inability to travel is equivalent or where adverse party secrets witness.

4. In New York and Massachusetts exact words must be repeated. Some jurisdictions allow substance of former testimony to be given.

5. The former testimony where admitted can be used in civil or criminal actions at this date.

(b) Dying Declarations.

I. A dying declaration is admitted only in cases of homicide where the declarant died of wounds for the inflicting of which prisoner is on trial.

2. When admissable can be used in favor of prosecution or defense.

3. To admit a dying declaration, declarant must have been capable of testifying had he lived. Declaration can be oral or written.

4. To admit a dying declaration, declarant must have been in fear of death when he made it. If he was not, even if he did die it would be rejected. Fear of death can be inferred.

5. The court and not the jury pass on the technical requirements.

6. In abortion cases dying declaration of the victim are admissable now in New York and some other jurisdictions by statute at the trial of the perpetrator. These declarations are not strictly dying declarations.

(c) Declarations in Cases of Pedigree. I. Statements made by a member of the family in regard to a geneological matter of the family can be oral or written.

2. Must be made ante litem motam whether declarant knows of controversy or not. A declaration before controversy, but in anticipation of one is admissible.

3. To prove a geneological question general reputation in family is not necessary. You can prove particular statements by a member of family.

(e) Public Documents.

I. To admit a document under this section you must show a record of a public nature in a public office by a public official under duty to keep it for public use.

2. Recording a deed or other document makes it public.

(f) Ancients Documents, Possessions and Other Ancient Matters.

I. An ancient deed to be brought in must be at least thirty years old; must have been produced from proper custody and of course must be relevant.

2. Some jurisdictions to-day require a user under a deed or lease. Some do not. Rent used to be a requisite. Is not now. No proof of execution is required.

3. An ancient map is admitted if ancient and produced from proper custody (as from a surveyor or conveyancer) 'documents" include tombstones,

4. Where a written statement or chart is offered in evidence you need not prove the handwriting. etc. Fact that family retained it is proof of authenticity.

4. Proof of proper custody is prima facie proof

5. Declarant must be dead. Some jurisdictions of authenticity. If the documents are produced say insanity, absence from jurisdiction, etc., are equivalent in this respect to death.

6. Relationship required need not be blood. By marriage will suffice. The relation is seldom extended beyond husband and wife.

7. The pedigree question need not be involved in the main issue. Subsidiary issue will be enough.

8. Interest in the party making the declaration will not render it inadmissible.

9. A declaration of a member of a family can be admitted to negative legitimacy; where there is no claim of legitimacy a declaration affirming illegitimacy is inadmissable.

from a custody not proper the genuineness must be accounted for before admissable.

(g) Entries and Declarations Against Interests. Declarant must be dead.

I.

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5. Prevailing view in England and America is (d) Declarations as to Matters of Public or that entries can be either written (entries) or oral General Interest.

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(declarations).

6. Declarations against proprietary interest extend to chattels as well as to realty.

7. In Massachusetts, contrary to other jurisdic

2. You cannot go into specific facts to prove tions, oral declarations are not admitted when general reputation in this section.

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4. The fact that declarant did not say it was public reputation (i. e., subject of his declaration) will not reject it so long as he did not say it was not. 5. A map might be offered in evidence either on theory of No. 4, or, if filed, on theory of public reputation by not objecting to its accuracy.

6. Evidence of a surveyor at a former trial would come in on theory that testimony had become property of public.

7. Evidence by reputation of a private boundary is allowed in the west but not in the eastern States. 8. The matter of public or general interest would not be rejected because not main issue. Can be subsidiary.

against pecuniary interest. They are allowed when against proprietary interest.

(h) Account Books of the Parties to the Litigation. Shop Book Rule.

1. England. Rule emanated from statute of James.

A man's shop book is admitted in England (1) when entry was made within one year before the action unless an acknowledgment is received.

2. The entry could be made by shop keeper or his clerk.

3. The upper courts disregarded rule in time. Lower courts clung to it.

4. The rule did not apply to cases between others than small dealers and their customers. While entries made under the shop book rule were freely received in the colonies England was beginning to exclude them. This attitude of the

English courts had its effect upon colonies, but differently in various jurisdictions.

1. Massachusetts Rule (Shop Book). Creditor must swear (if he made entry) (1) that the entry was contemporaneous or nearly so (2) that it is true (3) if required, that it is not paid. 2. If entry was made by clerk he must swear to same. If an entry of money loaned could not exceed $6.67.

3. If creditor is dead his handwriting must be proved. If clerk is dead it must be proved (1) that he was usually entrusted to make entries by the creditor; (2) that the books produced are or were plaintiff's account books.

Books of original entry must be produced.

There must be filed and served with the writ, a statement of items to allow defendant to know what he is to meet.

New York Rule (Shop Book).

1. Shopkeeper cannot have a clerk.

2.

Must prove delivery of some items charged. 3. That books produced are account books of the party.

New York Rule.

Massachusetts rule is followed, but extended by what is known as the New York memorandum rule, a rule known in few jurisdictions. By it any casual entry made by a party who can state that he knew the facts when he made it, but has now forgotten is admissable. Secondary evidence of it cannot be admitted. As to the course of business rule where A who knew facts reported to B, who wrote them down and then dismissed the matter from his mind, his (A's) testimony that he made a true report, in conjunction with the testimony of B that he made a true entry from that report, would make entry admissable.

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2. Descriptive statements of a person, sick or 4. And by persons who have dealt with him that injured, in reference to symptoms or effects of his he keeps honest accounts. disorder or injuries, are also received, when the

5 Cannot be used to prove money lent. Western following circumstances concur: States draw no such restriction.

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(a) They are made to a physician for the purpose of receiving treatment.

(b) They relate to present existing pain or suffering. Statements made in regard to past matters or affections are excluded even though closely akin to those existing at the time statements are made.

(c) When the physician to whom they are made is called upon to give an expert opinion in reference to the patient's condition and such opinion is in part based on the statements. 3. It is sometimes held that the physician should confine his testimony in the first instance to his hav

2. Unlike declaration against interest all of the ing made an examination of the patient and his entry must go in or no part can.

opinion deduced partially therefrom, leaving the

3. Under English rule declaration can be oral or statements made to him by the patient for the crossentries written.

Massachusetts. Rule.

examination.

4. These statements need not be made ante litem motem. Where they are actually made by an injured person to a physician for the express purpose of enabling him to testify in a pending action, based upon the injury, that fact should merely affect the credibility of the evidence and not its admissability. This theory is not universally accepted.

I. In Massachusetts the entry clerk need not be dead, all other requisites (see English Rule) being present. The American courts differ from England in not allowing oral declarations. If the clerk is alive and made entry in regular course of business, testifies (1) that he made entry, (2) believes it now to be regular and true, but cannot recollect 5. Statements made upon removal of a person the transaction it is admitted. This because from one place to another, are held admissable, in so loss of memory but with entry substantiated far as they bear upon his intentions, where the by testimony of the clerk himself, is as question of the locality of his domicile is in issue; good as if he was dead. (England reasons and this not because of the res gesta exception. The the other way. Says that he could "refresh" intention is proved as an independent fact. if alive, and his testimony should not be 6. Owing to the danger that declarations of this lost by death.) The Massachusetts rule as stated nature which are offered in evidence in favor of the is generally followed in America. Some jurisdic- declarant may have been made in order to attain an tions say insanity or other incapacity of clerk to end, they are generally excluded, unless the surtestify is equivalent to death. Massachusetts rule rounding circumstances are in some measure coris followed in New York. roborative.

7. In certain cases where the intention with which an act was committed or omitted is involved, spontaneous utterances of recognition, dismay, surprise, etc., of third persons who have seen the act or noted the omission are admitted in so far as they tend to throw light upon the intention of the act or

omission.

8. The court decides as to whether this tendency exists.

the Constitution, to the end that the powers of the United States might be restrained. Soon after the establishment of the federal compact it became evident that there resided within it a principle of growth and expansion unaffected by amendments, bills of right or enactments of State legislatures. The vitalizing hand of John Marshall enabled the government of the United States to manifest a

9. The intention involved can form either a sub- rugged strength, an undaunted firmness, as unexsidiary or the main issue.

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Declarations which are part of an act or transaction, itself admissable, are said to be received in evidence, though otherwise falling under the bane of the hearsay rule, under. the res gesta exception. 2. They derive their credit, and confidence is placed in them, because they are a part of the act and tend to explain it.

pected as it was opportune. If a State presumed to pass a law invalidating an executed contract to which it was a party, the United States Supreme Court forthwith declared the enactment void (1). If it attempted to enjoin the president of the United States from enforcing the federal law within a particular locality, it was met with the rebuff that such restraint was an unwarrantable interference with the federal executive (2).

If it sought to tax an instrumentality of the central government (as, for example, a national bank), 3. When neither the act or transaction, or the the Supreme Court of the nation declared that declaration are in themselves admissable, a union"no trace is to be found in the Constitution of an of the two does not render either of them so. intention to create a dependence of the government of the Union on those of the States for the execution of the great powers assigned to it" (3). Thus appeared a tendency to resist the aggres

4. The jurisdictions differ widely as to how close the connection must be between the principal act or

transaction and the declaration or utterance which is the outgrowth thereof.

Both extremes and a middle view have been the sion of the States and maintain for the general government a dignity worthy of a nation. As the

basis of decisions.

5. Agency and rape, topics usually found under courts continued to clarify their view of federal this exception are not properly included.

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jurisdiction and the powers of the United States, they extended its authority with as much vigor as they formerly withstood the advances of the States. One of the most conspicuous examples of this encroachment of the federal upon State authority appears in the regulation of interstate commerce. The doctrine was declared in Cooley v. Board of Wardens (4) that "whatever subjects of this power (over commerce) are in their nature national or admit only of one uniform system or plan of regulation, may justly be said to be of such nature as to require exclusive legislation by congress." With this suggestion before it, the Supreme Court, in a series of decisions, stripped the States of their

9. The res gesta can be a subsidiary as well as power to regulate interstate commerce, even when the main issue.

NEWARK, NEW JERSEY, July 3, 1902.

GROWTH OF FEDERAL AUTHORITY OVER
INTERSTATE COMMERCE.

The chief objection directed against the federal Constitution at the of its adoption was that it bestowed excessive powers upon the central government and unduly limited State sovereignty. Το meet this criticism the first ten amendments were added, declaratory of the rights of States and of their inhabitants, and at the same time interpreting

such regulation directly affected the citizens of the particular State. This was accomplished by striking from the foregoing quotation the single word "only," thus making it announce that "whatever subjects are in their nature national or admit of one uniform system of regulation, the power to regulate rests exclusively in congress" (5).

(1) Fletcher v. Peck, 6 Cranch (U. S.), 87. (2) Mississippi v. Johnson, 4 Wall. (U. S.), 475; State of Georgia v. Stanton, 6 Wall. (U. S.), 50. (3) McCulloch v. Maryland, 4 Wheat., 316. (4) Cooley v. Board of Wardens, 12 How., 299. (5) Kaeiser v. Ill. Cent. R. Co., 18 Fed., 151; State Freight Tax, 15 Wall. (U. S.), 232; Welton v. State of

From such a position the transition was easy to the doctrine that in failing to regulate a particular branch of interstate commerce congress, by its inaction, declared the subject should be free from all regulation; the theory being that in remaining silent congress adopted the common or civil law governing the subject (6).

This large interpretation placed upon the commercial clause of the Constitution has deprived the States of most of their sovereignty respecting interstate traffic. It will be our object to ascertain what has been the extent of this encroachment on the part of congress and how much power yet remains in the separate States to affect the mutual intercourse of their citizens.

HEALTH REGULATIONS.

State legislatures have sought to protect the health of their inhabitants by enactments whose operation has restricted traffic among the States. Where the requirements relate to the fumigation of vessels by State officers and the quarantine of such as are found to be infected, the law has been held valid, as an exercise of the police power, although it creates a lien upon all such vessels to the extent of the charges, and works to the disadvantage of those engaged in interstate commerce (7). So, if the law requires the examination and disinfecting of the baggage of all immigrants, irrespective of the place from which they conie, it is valid upon the same grounds (8). But, if the act attempts to force upon the owners or officers of the interstate vessel the duty of inspecting passengers to ascertain if they are diseased (9) or requires a bond or a fee for each immigrant landed (10), the law is unconstitutional.

The subject of the importation and sale of cigarettes has often engaged the attention of the courts, and it has been held that a State cannot, in legislating for the health of its inhabitants, require a license for selling cigarettes in the original package, for "interstate commerce being the purchase, exchange, transportation and sale of commodities in and between the different States, is national in character, and can only be carried on

Missouri, 91 U. S., 275; Henderson v. Mayor of N. Y., 92 U. S., 259; Walling v. Michigan, 116 U. S., 446; Robbins v. Shelby County Dist., 120 U. S., 489; Farris v. Henderson, 33 Pac. Rep., 380 (Okl. Ter., 1893).

(6) Welton v. State of Missouri, 91 U. S., 282; Hall v. De Cuir, 95 U. S., 485; Robbins v. Shelby Taxing Dist., 120 U. S., 489; Brennan v. Titusville, 153 U. S., 289.

(7) Morgan v. Louisiana, 118 U. S., 455.

(8) Minn. Ry. Co. v. Milner, 57 Fed. Rep., 276. (9) People v. Pac. Mail Co., 16 Fed. Rep., 344. (10) Henderson v. Mayor of N. Y., 92 U. S., 259; People v. Compagnie Trans., 107 U. S., 59. (For a legitimate regulation by State, see Mayor v. Miln, 11 Pet. [U. S.], 102.)

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successfully when conducted by and under uniform system of laws and regulations" (11). In a subsequent case such a license tax was upheld, but the facts show that the goods were shipped in a wooden box containing small packages of cigarettes. The license was imposed upon the sale of the latter, which evidently were not in the original package, but became part of the mass of property within the State when removed from the wooden case (12).

If the importation and sale of these goods in the original wrappers is absolutely prohibited a fortiori, the law is bad (13).

From various motives the State legislatures have enacted laws providing for the inspection of cattle whose flesh is sold within the State. As congress has no power to interfere with the domestic affairs of a State by inspecting articles sold therein (14), it is desirable that the State should possess this right, and it is, in fact, specifically given by the Constitution (14a).

If, therefore, the statute appears to be a bona fide exercise of the constitutional privilege (as where it forbids the introduction into the State between certain dates of cattle capable of or likely to impart of the Texas fever), it is justified under the police power (15). But, if the law enacts that no cattle shall be introduced into or driven across the State, irrespective of their condition (16), or if the imported animals are required to be inspected and "dipped" before entering the State, and the same precautions are not observed regarding those which are domestic, the law is invalid as unduly interfering with the importation of such stock (17). So, also, the courts will look beyond the mere language of statutes and observe their practical operation, and, if they discriminate against imported products, they are invalid, as where a city ordinance levied a license tax upon all persons who sold meat outside of the market house, except non-residents, who, after market hours, were over, sold meat of their own raising (18), or where a city requires the inspection of cattle and the slaughtering of the same within one mile of the city limits or inspection within twenty-four hours of killing (19).

Even the most salutary laws passed for the pur

(11) In re Minor, 69 Fed. Rep., 233.
(12) In re May, 82 Fed. Rep., 422.
(13) Sawrie v. Tenn., 82 Fed. Rep., 615.

(14) U. S. v. Boyer, $5 Fed. Rep., 425; U. S. v. De Witt, 9 Wall. (U. S.), 41.

(14a) Neilson v. Garza, 2 Woods C. C. Rep., 287. (15) Missouri Co. v. Huber, 169 U. S., 613.

(16) R. R. Co. v. Husen, 95 U. S., 465; Farris v. Henderson, 33 Pac. Rep., 380 (Okl. Ter., 1893.)

(17) State v. Duckworth, 39 L. R. A., 365 (Idaho, 1897.) (18) Georgia Packing Co. v. Macon, 60 Fed. Rep.. 774. (19) Ex parte Kieffer, 40 Fed. Rep., 399; Minn. v. Barber, 136 U. S., 313; Brinmer v. Rebman, 138 U. S., 78.

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