Page:Harvard Law Review Volume 12.djvu/92

72 72 HARVARD LAW REVIEW, of its principles convinced, with Lord Erskine, that 'they are founded in the charities of rehgion, in the philosophy of nature, in the truths of history, and in the experience of common life.' " I think that it would be juster and more exact to say that our law of evidence is a piece of illogical, but by no means irrational, patchwork, not at all to be admired, nor easily to be found intelli- gible, except as a product of the jury system, as the outcome of a quantity of rulings by sagacious lawyers, while settling practical questions in presiding over courts where ordinary, untrained citi- zens are acting as judges of fact. In any other aspect largely irrational, in this point of view it is full of good sense ; — a good sense, indeed, that occasionally nods, that submits too often to a mistaken application of its precedents, that is often short- sighted and ill-instructed, and that needs to be taken in hand by the jurist, and illuminated, simplified, and invigorated by a refer- ence to general principles. As regards Erskine's often-quoted remark above quoted, quite too large and general a reach has been imputed to it. It was a part of the famous opening argument in Hardy's Case, in 1794, and had reference to the great advocate's unsuccessful contention against one of the most extraordinary, characteristic, and subse- quently discredited results of English adjudication. His client was charged with the treason of compassing the King's death, and with the overt act of a conspiracy to depose him. Erskine had been inveighing bitterly against a doctrine which the court afterwards enforced against his client in its most uncompromising shape — the doctrine, namely, that in such a case proof of the conspiracy to depose was, in legal effect, proof of compassing the death, and not merely evidence of it ; and this by virtue of an indis- putable " presumption." " The conspiracy to depose the King," said Eyre, C. J., in his charge to the jury,^ " is evidence of compassing and imagining the death of the King, conclusive in its nature, so conclusive that it is become a presumption of law, which is in truth nothing more than a necessary and violent presumption of fact, admitting of no contradiction." Such a doctrine, of course, while exhibiting itself in a dress of evidence and presumption, is, in reality, a very different matter ; it is really a doctrine of the sub- stantive law of treason ; grounded, indeed, upon a conclusion of evidence, upon what is usually true in such cases, but none the 1 24 St. Trials, col. T361.