Page:Harvard Law Review Volume 12.djvu/102

82 82 HARVARD LAW REVIEW. course of duty or business. And not only has the scope of these old titles been enlarged, but new exceptions have been added ; or perhaps they are rather old ones coming to be recognized and form- ulated ; such as those relating to the res gesta, i. e., declarations which make a part of some fact which is itself admissible, and declarations of present intention or present physical sensation. Such things are the natural development of the subject. Now a great deal of perplexity exists, in the law relating to hear- say, from a failure to understand the scope of these exceptions ; and from an uncertainty whether and how far they are to be freely developed, or to be strictly limited, as being mere exceptions, while the main rule itself which prohibits hearsay is freely devel- oped. Sometimes one thing is done and sometimes the other. For example, in a leading case in the House of Lords, in 1880,^ Lord Blackburn, in discussing a question of hearsay and rejecting the evidence, said : " I base my judgment upon this, that no case has gone so far as to say that such a document could be received ; and clearly, unless it is to be brought within some one of the exceptions, it would fall within the general rule that hearsay evidence is not admissible." On the other hand. Sir George Jessel, in a very different tone, in 1876,2 had declared it to be the court's duty to extend the exceptions to the hearsay rule, out of " regard to the reasons and principles which have induced the tribunals of this country to admit exceptions in the other cases." It seems a sound general principle to say that in all cases a main rule is to have extension, rather than exceptions to the rule; that exceptions should be applied only within strict bounds, and that the main rule should apply in cases not clearly within the exception. But then comes the question, what is the rule, and what the exceptions? There lies a difficulty. A true analysis would probably restate the law so as to make what we call the hearsay rule the exception, and make our main rule this, viz., that whatsoever is relevant is admissible. To any such main rule there would, of course, be various exceptions; but as in the case of other exceptions, so in the hearsay prohibi- tion, this classification would lead to a restricted application of them, while the main rule would have freer course. One mischief, about the present state of our law is that it shows a spasmodic and half-recognized acceptance of such a theory in particular instances, ^ Sturla V. Freccia, 5 App. Cas. 623
 * Sugden v. St. I^onards, i Prob. Div. 154.