Page:Harvard Law Review Volume 12.djvu/109

THE PRESENT AND FUTURE OF EVIDENCE. 89 sons, may set it aside, e. g., as being irrational or against evidence. In like manner, on the whole of the secondary and adjective part of the law, there should be little opportunity to go back upon the rul- ings of the trial judge ; there should be an abuse, in order to justify a review of them by an appellate court. In order to make this prac- ticable, the rules of evidence should be simplified ; and should take on the general character of principles to guide the sound judgment of the judge, rather than minute rules to bind it. The two leading principles should be brought into conspicuous relief, (i) that noth- ing is to be received which is not logically probative of some mat- ter requiring to be proved ; and (2) that everything which is thus probative should come in, unless a clear ground of policy or law excludes it And then> as regards the mass of detailed rules, these should mainly be subject at all times to the shaping and control- ling power of the supreme courts, in the different jurisdictions, in making their rules of court. The rules of evidence on which we practise to-day have, in fact, mostly grown up at the hands of- the judges ; and, except as they be really something more than rules of evidence, they may, in the main, properly enough be left to them to be modified and reshaped. But, in doing this, let me hasten to say, it would be necessary at the outset to discriminate between what are really rules of evidence, and what are only nominally such. It would never do to submit to the control of the judges, through rules of court, the great mass of substantive law that now lies disguised under the name of the law of evidence. It is, indeed, on every ground, high time that this separation were made. It is discreditable to a learned profession to allow the subject to lie in the jumble that now characterizes it in this respect. To do this will tend wonderfully to simplify and clear the subject of evidence as we now have it, and it will also remove a chief objection to certain needed reforms, and especially to this of placing in the hands of the judges a far larger discretion in shaping and modifying the system than is now allowed them. This, then, is the first step to be taken ; it is necessary in any event; and it is practicable, if undertaken by competent hands. When once this extrusion of foreign matter is accomplished, the process of simplifying and restating the rules of evidence, in the proper sense of the word, can go forward. To accomplish this, some legislation would probably be necessary ; it should take the shape of conferring authority on the courts, or expressly recog- nizing it as already rightfully in them, to change and mould the