Page:Harvard Law Review Volume 12.djvu/91

 HARVARD LAW REVIEW. Vol. XII. MAY 25, 1898. No. 2. THE PRESENT AND FUTURE OF THE LAW OF EVIDENCE. SIR HENRY MAINE had occasion, thirty years ago, to make some special study of the English system of Evidence, in attempting to adapt it to the use of his countrymen in governing India. In letting his intelligence " play freely over the subject," he was led to remark that '* the theory of judicial evidence is con- stantly misstated or misconceived even in this country [England], and the English law on the subject is too often described as being that which it is its chief distinction not to be, — that is, as an OrganoHy — as a sort of contrivance for the discovery of truth which English lawyers have patented." And after pointing out that their law of evidence grew out of the jury system, he adds truly that " the English rules of evidence are never very scrupulously at- tended to by tribunals which, like the Court of Chancery, adjudicate both on law and on fact, through the same organs and the same procedure." And yet the system is very highly praised. Why then should it be so quickly abandoned when the jury is gone ? If we should take too literally the undiscriminating statements of some writers, we might well wonder that so fine a thing should not always be used. A distinguished author tells us, at the end of a famous treatise : ^ " The student will not fail to observe the symmetry and beauty of this branch of the law ;. . . and will rise from the study Greenl., Evid., i. s. 584. 10