Page:Harvard Law Review Volume 12.djvu/96

76 76 HARVARD LAW REVIEW. name ; or whether you can avail yourself of an implied warranty when the contract of sale was in writing and says nothing of a warranty. These are called questions of whether parol evidence is admissible. And if the agreement be under seal, the doctrine that the seal of the agent cannot bind the principal, is disguised by saying that parol evidence is not admissible to make the principal responsible. There is a question, in case of a misdescription in a will, whether a given person may take ; and this masquerades under the form of an inquiry whether parol evidence is admissible to correct the mistake. This error is deeply ingrained in our cases ; and it is a subtle one. But you cannot possibly deal thoroughly and scientifically with this part of our law until the error is cast out; until it is purged of that mass of substantive law, and of mere rules of procedure, and reason, and logic which overload it. There was a time when all that was said or read to the jury was spoken of as said en evidence al jury. The contrast in mind when this was said, was between saying something to the court, in plead- ing (in the days of oral pleading), and saying it to the jury. But now, for two or three centuries, we have been discussing the admis- sibility of what is offered in evidence, under a new branch of law, called the rules of evidence ; as contrasted with its admissibility under the law of pleading and practice, and the substantive law. The old general question of admissibility has become specialized. If it was said, six centuries ago, that you could or could not say a thing en evidence al jury, it was because it was or was not matter to be said in pleading and entered on the record ; or else because it was or was not logically relevant and material to the issue between the parties. Nowadays it may be excluded for the reason that, although relevant and material to the issue, and not at all matter of law, although properly addressed to the jury as contrasted with the court, yet it is excluded by this modern set of rules called the law of evidence. It is the characteristic of these rules to shut out what is relevant ; not all that is relevant, — Heaven forbid ! — but some things that are relevant, and notwithstanding they are relevant. There are many reasons for excluding what is offered in evidence, that have no re- lation to the law of evidence. If a thing be excluded because it is not within the scope of the general issue, it is excluded by the law of pleading; if, under the substantive law of the case, what is offered has nothing to do with the question, then it is the substan- tive law of the case that excludes ; if what is offered has no logical