Page:Harvard Law Review Volume 12.djvu/93

THE PRESENT AND FUTURE OF EVIDENCE. 73 less a doctrine which has now passed out of the sphere of evidence, and even out of the legitimate sphere of presumption, and has be- come an incontrovertible doctrine of the substantive criminal law. As against this hard, judicially legislated principle, Erskine had contended that the overt act was only a piece of evidence ; that the intent to kill the King was to be proved to the jury by evidence which really convinced them beyond a reasonable doubt; that a conspiracy to depose might or might not, according to the circum- stances of the particular case, suffice to prove the intent to kill; and that the jury must themselves be satisfied that it did, " My whole argument," he said, in substance, towards the end, " is only that the crime of compassing the King's death must be found by you, really believed by you, and beyond a reasonable doubt. You are to go upon the ordinary rules of evidence ; not upon precedents coming down from evil times. The rules of evidence as they are settled by law and adopted in its general administration, are not to be overruled or tampered with. They are founded in the charities of religion," etc. Erskine was not engaged in any general estimate of the English law of evidence ; he was pressing home a particular point, and condemning a certain contention as barbarous and incon- sistent with those general principles which secured to a prisoner the free, unfettered exercise of the jury's judgment, instead of driving them to a verdict by an irresistible legal rule. I have said that our law of evidence is ripe for the hand of the jurist. I do not mean for the hand of the codifier; it is not; but for a treatment which, beginning with a full historical examination of the subject, and continuing with a criticism of the cases, shall end with a restatement of the existing law, and with suggestions for the course of its future development. Such an undertaking, worthily executed, if it should commend itself to the bench, would need only a slight cooperation from the legislature to give to the law of evidence a consistency, simplicity, and capacity for growth which would make it a far worthier instrument of justice than it is. Let us look at this part of our law, and consider (i) What, in fact, we have now; (2) What we should have, and how to get it. I. We have now, as our law of evidence, in the form in which it is ordinarily stated, a set of rules cf great volume and complexity, occupying, with the illustrations thought needful for their exposi- tion, twelve hundred and thirty-four octavo pages in Taylor's last