Page:Harvard Law Review Volume 12.djvu/105

85 THE PRESENT AND FUTURE OF EVIDENCE. 85 will not be helpful to the jury. Whether accepted in terms or not, this view largely governs the administration of the rule. It is cbvious that such a principle must allow a very great range of permissible difference in judgment; and that conclusions of that character ought not, usually, to be regarded as subject to review by higher courts. Unluckily the matter is often treated with much too heavy a hand by the courts, and the quantity of decisions on the subject is most unreasonably swollen. The rule excluding character evidence, when exactly stated, merely forbids the use of a person's general reputation, or of his actual character, as the basis of an inference to his own con- duct. This rule is modern. In earlier times such evidence was freely used in our courts, as it still is in other than English-speaking countries. Undoubtedly, as a mere matter of reason, it often affords a good basis of inference ; and, on the other hand, often, besides tend- ing to subject a man to the operation of prejudice and malice, it is quite too conjectural and too slight to be safely used, and so comes within the condemnation of a general principle already mentioned. On the rules regulating the examination of witnesses I will not dwell. They are full of practical sense, and are few, simple, and easily understood ; although, like all rules for strenuous com^ petitive struggles, nothing but practice and the observation of prac- tice can bring them to a man's fingers' ends, or keep them there. Fortunately they allow much more discretion to the judges in administering them than is found in most of the rules of evidence. As to rules for the exclusion of witnesses, they have nearly dis- appeared. Little remains except what reason requires, viz., the exclusion of persons who are too young to be trusted, or too deficient in intelligence. Finally, there are rules relating to documents, — as to the proof of their contents, of their execution, and of alterations in them. Of these a word or two should be said. He who would prove the con- tents of a writing must produce it bodily to the tribunal; and if it is lost or destroyed, otherwise than by evil contrivance of the party offering the evidence, then the contents may be proved by copy or orally. This rule, if wisely applied, is one of peculiar good sense, but there is discordance as to the scope of it, and as to what may excuse one from the application of it. It is obscurely connected with the old law of profert, which required the physical production in court, in the course of pleading, of any document which was the basis of action or defence.