THE LAWYER AND BANKER'S

CREED.

I am an American, attached to the principles of the Constitution of the United States, establishing a free and independent nation with a government of the people, by the people, for the people, whose just powers are derived from the consent of the governed; a democracy in a republic; a sovereign nation of a sovereign people; a perfect union of many States; one and inseparable, founded upon the eternal principles of liberty, equality, justice and humanity

I am therefore a lover of my country, and I dedicate myself to its service; to support its Constitution; to obey its laws; to respect its flag, and to defend it against all enemies.

God Save the United States.

The Sources of the Fourteen Points of the Lawyer and Bankers' Creed

I.

Prepared and Arranged by

Hon. WILLIAM W. MORROW, of San Francisco.

Judge of the United States Circuit Court of Appeals.

"I Am an American."

1. "AMERICAN": "A native or legally constituted citizen of the United States.” Standard Dictionary.

2. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."-Fourteenth Amendment to the Constitution of the United States.

3. "CITIZENS BY BIRTH OR CHOICE OF A COMMON COUNTRY, THAT COUNTRY HAS A RIGHT TO CONCENTRATE YOUR AFFECTIONS. The name of AMERICAN, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations."-From Washington's Farewell Address, September 17, 1796 (Richardson's "Messages and Papers of the Presidents," Vol. I., page 215).

4. "When honored and decrepit age shall lean against the base of this monument, and troops of ingenuous youth shall be gathered round it, and when the one shall speak to the other of its objects, the purposes of its construction, and the great and glorious events with which it is connected, there shall rise from every youthful breast, the ejaculation, "Thank God, I-I also-AM AN AMERICAN!' "— From Daniel Webster's address on the completion of the Bunker Hill Monument, June 17, 1843.

II.

"Attached to the principles of the Constitution of the United States." 1. At the opening of the second session of the Third Congress on November 18, 1794, President Washington in his address to Congress spoke of the

"NEED OF AFFECTIONATE VIGILANCE OVER THE PRECIOUS DEPOSITARY OF AMERICAN HAPPINESS, THE CONSTITUTION OF THE UNITED STATES” (Ann. of Congress 3d Congress, page 790).

2. In that session of Congress a bill was introduced for the naturalization of aliens. After various amendments had been proposed relating to the attachment to the government of the United States, the subject was referred to a committee of which James Madison was chairman, who reported a new bill. The bill was debated and passed January 29, 1795 (Ann. of Congress, 3d Congress, 1793 to 1795, pages 10641066; 1 Stat. 414). The third subdivision of Section 1 of the Act provides as follows: "Thirdly. The Court admitting such alien shall be satisfied that he has resided within the limits and under the jurisdiction of the United States five years; and it shall further appear to their satisfaction, that during that time, he has behaved as a man of good moral character, ATTACHED TO THE PRINCIPLES OF THE CONSTITUTION OF THE UNITED STATES, AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE SAME."

The last clause of the provision has not been changed since, but has been preserved as a test of loyalty through all the amendments and revisions of the naturalization laws down to the present time, and is now found in identical language in the first clause of the fourth paragraph of Section 4 of the Act of June 29, 1906 (34 Stat., part 1. pages 596, 598).

It is estimated that 35,000,000 aliens have been admitted to citizenship under this statute.

The presumption is that citizens by birth are equally ATTACHED TO THE CONSTITUTION OF THE UNITED STATES AND WELL DISPOSED TO THE GOOD ORDER AND HAPPINESS OF THE SAME.

III.

"Establishing a free and independent nation."

1. The Declaration of Independence declared "That the United Colonies are and of right ought to be FREE AND INDEPENDENT STATES."

2. The Constitution of the United States organized the people of the United States into "A FREE AND INDEPENDENT NATION."

Chisholm v. Georgia, 2 Dall. 419, 463, 464, 465, 470, 471 (1793); McCullough v. Maryland, 4 Wheat. 315, 405 (1819); Cohens v. Virginia, 6 Wheat. 214, 413 (1821); Gibbons v. Ogden, 9 Wheat, 1, 185 (1824); Osborn v. United States Bank, 9 Wheat. 738 858, (1824); Fong Yue Ting v. United States, 149 U. S. 698, 711 (1893); In re Debs, 158 U. S. 564, 582 (1894).

3. "Peace, commerce, and honest friendship with all nations, entangling alliances with none."-Thomas Jefferson, First Inaugural Address, delivered March 4, 1801 (Richardson's "Messages and Papers of the Presidents," Vol. 1, page 323). 4. The Monroe Doctrine.

First: "The American continents by the FREE and INDEPENDENT CONDITION which they have assumed and maintained are henceforth not to be considered as subjects for future colonization by any European powers."

Second: "We should consider any attempts on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety." From the message of President Monroe dated December 2, 1823 ("Messages and Papers of the Presidents," Vol. II, pages 209, 281).

IV. “With ‘a government of the people, by the people、 for the people.” ” From Lincoln's Gettysburg Address, November 19, 1863.

V.

“Whose just powers are derived from the consent of the governed.”

From the Declaration of Independence (Thomas Jefferson).

VI. "A democracy in a republic."

"A republican government is a government by representatives chosen by the people."-Cooley's Principles of Constitutional Law, page 213.

VII. "A Sovereign nation of a sovereign people."

1. WE THE PEOPLE of the United States✦✦ do ordain and establish this Constitution for the United States of America."-From the preamble to the Constitution of the United States.

"Here we see the people acting as sovereign of the whole country

In Eu

rope the sovereignty is generally ascribed to the prince; here it rests with the people."-Chisholm v. Georgia, 2 Dallas 471.

2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."--Article VI., Clause 2. of the Constitution.

VIII. "A perfect union of many states."

IX.

From the Preamble to the Constitution of the United States.

"WE THE PEOPLE of the United States in order to form a more perfect Union * do ordain and establish this Constitution for the United States of America."

"One and inseparable."

1. Webster's reply to Hayne in the Senate, January 26, 1830.

2. "The Constitution in all its provisions looks to an indestructible union composed of indestructible states."-Texas v. White, 7 Wall. 700-725.

X. "Founded upon the eternal principles of liberty, equality, justice and humanity."

1. "WE THE PEOPLE of the United States in order *** to establish justice *** and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."-From the Preamble to the Constitution of the United States.

2.Neither the United States nor any State "shall deprive any person of life, liberty, or property without due process of law."-From the Fifth and Fourteenth amendments to the Constitution of the United States.

3. "No State shall ✶✶ ✶ deny to any person✦✦✦ the EQUAL protection of the laws."-From the Fourteenth Amendment to the Constitution of the United States.

4. "There is but one law for all, namely, the law which governs all law, the law of our Creator, the law of humanity, justice, equality-the law of nature and of nations."-Edmund Burke's speech on the impeachment of Warren Hastings (Burke's Works, Vol. II, page 525).

XI. "I am therefore a lover of my country."

"If we lose that love of country which transcends all else and makes us willing to die to preserve our country, then shall we lose the capacity and the desire to aid in protecting the liberties of others."-Address of Charles E. Hughes at the Union League Club, New York, March 26, 1919.

XII. "And I dedicate myself to its service."

Lincoln's Gettysburg Address, November 19, 1863.

XIII. "To support its Constitution; to obey its laws; to respect its flag, and to defend it against all enemies.

Oath of Allegiance (34 Stat., part 1, pp. 596, 597, 598).

From the proclamation of the Crier made when the Chief Justice and the Justices of the Supreme Court of the United States take their places on the bench at each daily session of the Court.

THE HEARSAY RULE AND ITS

EXCEPTIONS

By William G. Hale, Professor of Law University of Illinois.

"Evidence is the basis of justice;

To exclude evidence is to exclude justice." (1)

It is the purpose of this article to consider first the underlying principles of the rule of evidence which declares that hearsay evidence is inadmissible, and second to examine critically the exceptions to the rule as they have been developed with special reference to the law of Illinois.

Hearsay evidence is inadmissible. Opinion evidence is inadmissible. Character evidence is inadmissible. These familiar rules, stated as they are in terms of exclusion, exemplify the uniqueness of the common law of evidence. "This excluding function," says Professor Thayer, "is the characteristic one in our law of evidence." That which is logically irrelevant is excluded as a matter of course2 But that which is logically relevant is not admitted as a matter of course. It must still run the gauntlet of various specific rules and exceptions calculated to determine its admissibility. Much that is logically relevant is for various reasons excluded.

These rules are, of course, all subject to numerous exceptions. The exceptions, indeed, have become so numerous, especially in respect to the hearsay rule, as to elevate the exceptions to the dignity of the rule and render the rule the exception. Stated as they are, the rules in the last analysis constitute a point of approach. They are far from being unyielding formulas.

This point of approach, i. e., the statement of the general rule in terms of exclusion, seems to throw upon the exception the burden

1. Bentham, Judicial Evidence, Vol. 4, p. 490.

2. Thayer, Preliminary Treatise on Evidence, 264: "There is a principle-not so much a rule of evidence as a presupposition involved in the very conception of a rational system of evidence, as contrasted with the old formal and mechanical systems-which forbids receiving anything irrelevant, not logically probative. How are we to know what these forbidden things are? Not by any rule of law. The law furnishes no test of revelancy. For this, it tacitly refers to logic and general experience, assuming that the principles of reasoning are known to its judges and ministers, just as a vast multitude of other things are assumed as already sufficiently known to them."

of justifying its existence. It is this mental attitude that has been responsible, doubtless, for the halting and irregular footsteps of the various exceptions. They have apparently had to struggle for each advancing step. There is, however, another point of approach to the subject. Since our law of evidence is a product of the rational system of settling judicial controversies, as distinguished from the primitive formal methods, it would seem reasonable to adopt as the general underlying principle, that everything that is logically relevant is admissible. This in turn would require us to look up the Hearsay rule and the Opinion rule and the Character rule as exceptions and thus place upon them the burden of establishing their right to exist. Conversely it would reveal the present exceptions to these rules as logical corrollaries of a general rule of admissibility.

Justice is based on truth. Hence, apart from the practical consideration that the machinery of justice cannot be devoted for an unreasonable amount of time to a single controversy, every circumstance which really tends to the ascertainment of the truth of the issues involved tends to promote justice, and should be heard. As Bentham says, "to exclude evidence is to exclude justice." This poignant statement must not, of course, be taken to mean that to exclude every

Im

3. Such for example, as Wager of Law, Wager of Battle and the Ordeal. perfect as our present system is, and wedded still in many respects to the formalism of the past, a brief statement of the essential characteristics of these older methods of settling disputes which prevailed prior to the jury system, will portray vividly the progress we have made and give us courage to press on: Wager of Law. A party could establish or escape liability in certain cases by taking an oath to the righteousness of his cause, supported by the oaths of a certain number of assistants, called oath-helpers or compurgators. It has been pointed out, however, by historians that the task involved in the method was not so easy as it might seem. Certain ceremonial rules must be strictly observed-a slip, a stammer, would spoil all, and the adversary would win the case. Moreover it was believed that one who perjured himself was in grave danger of being struck dead, or reduced to the stature of a dwarf. Wager of Battle. This method of trial involved a duel between the parties to the controversy, or their representatives, fought, however, with a special type of weapon which was not dangerous to human life. The party having the affirmative of the question in dispute, undertook to prove his case "by his body," by forcing the word "craven" from his adversary before sundown of the day of battle. This was not according to the conception of those days, an appeal to brute force but to the God of Battles. It was thought that God fought on the side of truth and justice. Ordeal. The ordeal was either of fire or water. The water in the pit was "adjured to receive the innocent and reject the guilty." He who floated was lost. The ordeal of fire consisted of placing in the hand a red hot iron weighing one pound and walking three paces with it. The hand was then wrapped and sealed. Three days later the seal was broken, and if the hand was clean, the defendant was released. But a blister, even the size of a walnut was fatal to him. During the early years of the reign of Henry II, we secure our first view of trial by jury, i. e., "the rational method of settling disputed questions," and from that time on down to the year 1500 we observe it supplanting the "formal and mechanical tests which flourished" in the earlier years. It is interesting to note, however, that Wager of Battle was tendered in England as late as 1818 (Abraham Thornton's Case). But immediately thereafter (1819) a statute was passed which rendered the recurrence of such a shocking episode impossible. (59 Geo. III c. 46.) And in 1824 in King v. Williams (2 B. & C. 538) the defendant tendered wager of law. Not until 1833 was this ancient procedure abolished by statute.