Page:Harvard Law Review Volume 12.djvu/94

74 74 HARVARD LAW REVIEW. (9th) edition of his work on Evidence, — a book which was origi- nally an adaptation of Greenleaf's book, but was afterwards ex- panded,, and now constitutes the chief English book on this subject. The few principles which underlie this elaborate mass of matter are clear, simple, and sound. But they have been run out into a great refinement of discrimination and exception, difficult to discover and apply, and have been overlaid by a vast body of rulings at nisi priuSy and decisions in banc, impossible to harmonize or to fit into any consistent and worthy scheme. A great portion of these rules, as laid down by the courts and by our text writers, are working a sort of intellectual fraud by purporting to be what they are not. To the utter confusion of all orderly thinking, a court is frequently represented as passing on questions of evidence when in reality it is dealing with some other branch, either of substantive law or procedure. The rules are thus in a great degree ill-apprehended, ill-stated, ill-digested. Sometimes, as in the case of proving attested documents, they have come down out of practices and rules of mediaeval procedure by a slow process of change that has con- cealed their pedigree and their real nature and basis ; and then rules of this sort come to be applied or refused application merely according to their letter, or according to some false imagination of reasons, with grotesque results, and in a manner fanciful and un- intelligent. Sometimes our rules have sprung from following on after some single specific ruling at nisi prius, wise, perhaps, in the particular case, but having in it no general element or principle which should make it a precedent ; and sometimes, on the other hand, from dealing with such a ruling, as if it were only a narrow and particular precedent, failing to recognize its true character as illustrating a large principle of sense and convenience, fit to be spread into a general application. In part the precepts of evi- dence consist of many classes of exceptions to the main rules, — exceptions that are refined upon, discriminated, and run down into a nice and difficult attenuation of detail, so that the courts become lost, and forget that they are dealing with exceptions ; or perhaps are at a loss to say whether the controlling principle is to be found in the exception or in the general rule ; or whether the exception has not come to be erected into a rule by itself. In part our rules are a body of confused doctrines, expressed in ambiguous phrases, Latin or English, half understood, but glibly used, without per- ceiving that ideas, pertinent and just in their proper places, are being misconstrued and misapplied.