Page:Harvard Law Review Volume 12.djvu/112

92 92 HARVARD LAW REVIEW. encouraging a more elastic procedure in shaping questions for the upper court, by recurring always to fundamental principles, and inclining always to give effect to these as against exceptional and special rules, and generally by recognizing, resolutely and persist- ently, the subordinate, auxihary, secondary, wholly incidental char- acter and aim of the rules of evidence (properly so-called), they can indirectly do a very great deal. Let me, however, again and again repeat, and with emphasis, that I mean, in speaking of the secondary character of the rules of evidence, to refer only to rules of evidence properly so called ; and let me again and again insist that the body of rules now called by that name should, without needless delay, be purged of that spurious matter, and relieved of that great mass of material, rudis mdigestaqne moles, belonging to the substantive law, to the general rules of legal reasoning, and to other parts of the law of procedure, of which I have repeatedly spoken. What about the jury? some one may ask. If our present system of evidence has been called out by the jury, and we still have that, why must not the law of evidence continue ? Well, that suggests the question, whether the jury itself must continue? The jury system is already much modified. The experience of England, Massachusetts, and some other States, where for some years past in most civil cases, no person has a jury trial unless he asks for it before a certain time, has been satisfactory. This has worked a great cutting down in the number of jury trials. It appears to me that, with or without the aid of changes in constitutional provisions, more may well be done in reducing the number of jury trials in civil cases ; and that in criminal cases, more may be done than now in the same direction. Personally I should think that it was not wise to abolish jury trial in civil cases, — of course not in criminal cases, — but only that it should be restricted still farther. Indeed I would restrict it narrowly, for it appears to me, among other things, to be a potent cause of demoralization to the bar. In so far as it has been or may be restricted, the objections to any changes in our system of evidence which are founded on its relation to jury trial are lessened. But apart from all that, it may be said, truly, that juries are now much less helped and restrained by the judicial contrivances which find expression in our rules of evidence than is sometimes thought. Judges, to a large extent, sit quiet and let parties try their cases with as loose an application of the rules of evidence as they them- selves may wish. Indeed, this has been judicially declared to be