The Reform of Procedure that a different ruling would have led to a different judgment. Real acqui escence in such a rule by the bar would
put an end to the incessant objections and exceptions which now disfigure so many of our trials. We share with England and her colonies a highly arti ficial and technical body of rules of evidence such as obtain nowhere else
in the civilized world. These rules afford most delightful exercise for intellectual acumen, and they have some advan
tages.
They have also great disadvan
tages, and it is by no means certain that in the long run they produce any better
results than the simple and natural methods which obtain in the trial of cases in countries that follow the course of the civil law, and where the
method of Mr. O'Conor’s hypothetical old woman controls in the giving of testi mony as well as in the statement of the case. The fundamental disadvantage of this Anglo-American system of rules is the fact that, when strictly and techni
cally applied, they do not correspond with the instincts or the habits or the ideas of common sense of any plain, sensible layman in this world. Their strict application continually impresses
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say, when what he is trying to say would not do the slightest harm to any one and would merely help him to state what he knows that is really competent and material. Such a rule as I have now mentioned would take away the faint hope of a technical reversal which underlies such objections; but the legal right to object would continue, and incessant technical objections would probably continue to prolong many trials
and impede the speedy ascertainment of the merits of many causes unless the bar in good faith were to accept as a rule of conduct that no objection should
be made or point raised not really affect ing the merits.
_
I presume upon your not remember ing something that I said at Rochester a year ago to repeat that we are too apt at the American bar to act as if in liti
gation we are playing a game, with the judge as referee of the game. Only the bar itself can cure that, and realize
the highest usefulness of a noble pro fession by devoting its learning, its skill and its best effort to securing for every
suitor, as promptly as possible, a fair and final judgment on the merits of his case.
clients with a sense of injustice because
The complication of our procedure is
they think they are not getting their case before the court, and it impresses
only one phase of a general tendency
witnesses with a sense of being bottled
and law in the rapidly developing, intri cate and interdependent social condi
up and prevented from telling the truth. In the strictness and technicality with which we enforce those rules we go far
affecting the whole field of government
tions of our time.
In the fundamental
act at the polls, when the sovereign
beyond England or, so far as I know,
people select those who shall make the
any of her colonies. I think we stand alone among civilized countries in the obstacles that we interpose to the giving of testimony in the most natural way. How common it is to see a witness try ing to tell his story, hindered and worried and confused by being stopped here and there again and again by objections as to irrelevancy and immateriality and hear
laws and shall administer them, the voter has placed in his hands a ballot of enormous size, sometimes too large
to be spread out fully in the voter's booth, and with such a vast array of
names for such a great number of offices to be filled, and with so many questions
to be decided in the affirmative or nega tive, that the best trained and best in
