Page:Harvard Law Review Volume 12.djvu/101

81 THE PRESENT AND FUTURE OF EVIDENCE. 8 1 the fact of the mother's recording the age in the records of a Priory, which record he had seen.^ In matters aflfecting a whole parish or a large number of persons, the hearsay and reputation of those belonging in the given community was always regarded as good. There was another special class of unsworn statements which had always been resorted to in judicial proceedings and admitted to the jury, viz. written ones, — entries in registers, in a parson's books, in the account books of stewards, in a merchant's books, in contracts, deeds, wills, and other documents. It is not true, so far as I know, that a mere testimonial writing not under seal, which purported to state only what another person had said to the writer, would ever have been received, any more than an oral statement of the same kind ; but documents had been regularly shown to juries always, long before witnesses were received to testify to them. In the early days they did not stick, it would seem, at showing the jury any document that bore on the case, without even thinking of how the writer knew what he said. As regards ancient matters, writ- ings very imperfectly authenticated were one of the chief sources of information, and often the only one. It appears, then, that a number of the so-called " exceptions " to the hearsay prohibition came in under the head of written entries or declarations; they came in, or rather, so to speak, stayed in, simply because they had always been received, and no rule against hearsay had ever been formulated or interpreted as applying to them. Such things, con- tinuing at the present day, are, e. g., the admission of old entries and writings in proof of ancient matters, written declarations of per- sons deceased against interest, and in the course of duty or busi- ness ; and, to a limited extent, a merchant's own account books to prove his own case, — a thing clearly recognized as customary and allowable in an English statute of 1609, nearly three centuries ago, but insensibly, and often ignorantly, much qualified afterwards. So also of regular entries in public books, a matter probably never even doubted to be adjnissible in evidence. In addition to all these ancient and always approved practices in their simple, original shape, operating as qualifications of the hearsay prohibition, there have come in many extensions of these ; as when oral declarations of deceased persons against interest were received, and, in England, even oral declarations of deceased persons in the 1 PI. Ab. 293, col. I.