Page:Harvard Law Review Volume 12.djvu/107

THE PRESENT AND FUTURE OF EVIDENCE. 8/ grown out of the machinery through which our system is applied, viz., the jury. These defects discourage and make difficult any thorough and scientific knowledge of our system and its peculiar- ities. Strange to say such a knowledge is very unusual, even among our judges. The actual administration of this system is, indeed, often marked by extraordinary sagacity and good sense, particularly in England. In that country it is uncommon to carry questions of evidence to the upper courts. In England the influence of the judge at nisi prius goes to check controversy over points of evidence far more than here, and the relations between bench and bar are such that this influence is generally effectual,^ Moreover, owing to that great and just confidence in the capacity of the judges which is felt in England; they are able to exercise a beneficent control over the subject through their extensive power of making rules.^ In our own administration of the law of evidence too many abuses are allowed, and the power of the courts is far too little exercised in controlling the eager lawyer in his endeavors to press to an extreme the application of the rules. Sharply and technically used, these rules enable a man to go far in worrying an inexperienced or ill- prepared adversary, and in supporting a worthless case. Our practice, which shows so little of the sensible moderation of the English barrister, and so little of the vigorous control of the Eng- lish judge, in handling evidence at the trial, operates in another way to injure the rules of evidence. Questions of this sort are generally taken up on exceptions, a procedure, never common in England and now abolished there, which presents only a dry question of law, — not leaving to the upper court that power to heed the general justice of the case, which the more elastic procedure of the English courts so commonly allows ; and tending thus to foster delay and chicane. In neither country is the system of evidence consistently admin- 1 It surprises English lawyers to see our lively quarrels over points of evidence. One of them writing from New York to the " London Times," some years ago, spoke of being present at the trial of a case of trespass to land between two farmers. It involved questions of old boundaries. "The nature of the case," he said, "made it inevitable that many questions of evidence should be raised. But never, not even in a pedigree case, or an indictment for not repairing a road, did I see so many objections to the reception of evidence taken ; and I am inclined to think that points of evidence are discussed far more frequently than is now the case with us." The observation of any one who has watched trials in the English courts will emphatically confirm these impressions. ■^ See Wilson's Judicature Acts, 7th ed. (1888), passim; and see comments in Har- vard Lawt Review, viii. 224, on Order XXX., Rule 7, promulgated in August, 1894. 12