Page:Harvard Law Review Volume 12.djvu/99

79 THE PRESENT AND FUTURE OF EVIDENCE. 79 or remote ; or whether it will take too much time in the present- ing of it, in view of other practicable ways of handling the case ; or whether it will complicate and confuse the case too much. There is no rule and no principle which forbids delay, tediousness, and complication, pure and simple, and always; what is forbidden is unnecessary complication, delay, and tediousness. These things are discouraged ; but often they are unavoidable. When the nature of the issue requires it, enormous dangers of this sort have to be run. Consider the Tichborne case, the Tilton v. Beecher case, the Guiteau case, and the great will case of Wright v. Tatham which turned up so often in the English books sixty years ago ; or con- sider any hard-fought case raising the question of insanity. In such controversies a range of inquiry is allowed of almost indefinite width, one which covers the behavior of a party during his whole life, and even travels over into that of all his near relations. In this region of the law of evidence much confusion results from an inexact apprehension of the nature of the questions, and of the appropriate method of handling them on appeal. Often it is not perceived that what appears to be a mistaken determination of such points at the trial, is simply a more or less important mis- take in practical judgment, and not at all a mistake in law. Judges, and whole benches of them, may decide such questions differently, while perfectly agreeing on the rule of law. There is a great head of the law of evidence, comprising, indeed, with its exceptions, much the largest part of all that truly belongs there, forbidding the introduction of hearsay. The true historical nature of this rule is hinted by the remark of an English court, two centuries ago and over, when it checked the attempt of a woman to testify what another woman had told her. " The court," it was quietly remarked, " are of opinion that it will be proper for Wells to give her own evidence." That is to say, the objection went to the mediam of communication ; witnesses before the jury, in giving ordinary testimony, had by that time been allowed for some three centu- ries ; but it must be un oyant et veyant, a hearer and seer, as they said in the older Year Books ; one who could say as the witnesses to courts in older times always had to say, quod vidi et audivi ; it must not be testimony at second hand. When juries, who were originally themselves witnesses as well as triers, came to be helped regularly by the testimony of other witnesses, it was only by such as personally knew the truth of what they were saying, and not by II