Page:Harvard Law Review Volume 12.djvu/97

THE PRESENT AND FUTURE OF EVIDENCE. 7/ relation to the case, then it is the rule of reason that rejects it ; or a party may be estopped from setting up what he offers evidence to prove. But when matter of fact bearing on the issue is excluded for none of these reasons, yet lawfully, it is the law of evidence that is working. As when the question is whether you may offer the sworn affidavit of a trustworthy eye-witness, not personally present in court, or a testator's extrinsic statement, when signing his will, that he meant one person rather than another of similar but not identical name; the exclusion in such cases is made by the rules of evidence ; what is offered is relevant and material, but still is inadmissible. It is then fundamental that not all determinations admitting or excluding evidence are referable to the law of evidence. Far the larger part of them are not. An innumerable company of ques- tions, of the sort just alluded to, very often — more often than not, nay, much oftener than not — are dealt with in our text-books and cases as belonging to the law of evidence, when they ought to be carried to the border line of this subject and respectfully deposited on the other side. Most of the affirmative declarations in our books that evidence is admissible, belong to this class; and a very great proportion of those which hold it not admissible. As regards relevancy, in determining merely what is logically rel- evant to any point and what is relevant according to the standards of general experience, it is not the law that guides us ; except, indeed, as it refers us to these universal standards, already known or ascertainable. For the law, being a human contrivance or out- growth, and resting, as if by gravity, on human nature, human experience, and the principles that regulate human thought, takes all these things for granted. It does not undertake to re-enact them, still less to displace them, or to lift itself off this ground by its own boot-straps. To impute to it any such efforts is a sugges- tion as untrue historically, as these endeavors would be idle and superfluous in point of reason. There is another great class of cases, germane to these just men- tioned, but, unlike them, really belonging to the law of evidence, where the decision turns on the just application of certain large and inexact principles, — principles that may be likened to that which a jury has to apply in determining whether conduct in cer- tain cases conforms to the standard of the prudent man. The law of evidence undoubtedly requires that evidence to a jury shall be