Page:The Green Bag (1889–1914), Volume 18.pdf/720

 TEACHING OF EVIDENCE

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and modifications, each of which, if neg lected may be deemed error, these under lying principles of administration, logically and ethically sound, should be placed in the hands of competent judges, with wide dis cretionary powers, the exercise of which should not be interfered with by an appel late tribunal so long as, on the whole, reason has been followed and substantial justice attained. Certain simple rules of ex clusion, recognized as exceptions to the fundamental rule that all relevant facts, and no other, are competent, might properly be added. But, in general, both "rules" and rulings should be but guides to the wise exercise of the administrative function of the court. It is impossible to doubt that the future and, very possibly, in certain jurisdictions, the early future of the law of evidence will develop itself along these lines. To pass minor and incidental difficulties in teaching evidence by the use of cases, it may be suggested that the great desidera "The chief defects in this body of law, tum in teaching the subject would be to as it now stands, are that motley and undis criminated character of its contents which teach the student not so much the form has been already commented on; the am and configuration of his keen tool, evidence, biguity of its terminology; the multiplicity but how best to use it. To know when to and rigor of its rules and exceptions to waive the benefit of a rule is often fully as rules; the difficulty of grasping these and important as to know when it is possible to perceiving their true place and relation in the system, and of determining, in the de insist upon its enforcement, occasionally, cision of new questions, whether to give more so. The disadvantage of using a sharp scope and extension to the rational prin tool is that its use requires caution, lest one ciples that lie at the bottom of all modern be cut by careless or ignorant handling. theories of evidence, or to those checks and qualifications of these principles which have All this is part of a much larger subject grown out of the machinery through which than "Evidence" itself, which, for want of our system is applied, namely, the jury. a better term, one may fairly call forensic These defects discourage and make difficult strategy. A case, when properly tried, re any thorough and scientific knowledge of sembles in certain aspects a military cam this part of the law and its peculiarities. paign. Intimate knowledge of all relevant Strange to say, such a knowledge is very facts constitutes, as it were, the topog unusual, even among the judges." raphy of the field covered by the contending The remedy was as apparent to him as forces. Knowledge of one's own strength were the maladies. Back of these "rules" and weakness, and those of the opponent, of evidence, underneath them and at their both in position and numbers, are equally basis are certain broad administrative prin essential in both. There are masked bat ciples for the attainment of justice through teries, reconnaissances in force, feints to con the use of reason. Instead of these numer ceal the real point of attack. Above all, ous rules, each with its train of exceptions there is vitally important in any court the ranged machinery of judicial administra tion can be so readily and safely repaired and adjusted to proper working as com plexity in the "rules" of evidence. Vested rights or constitutional guarantees so com plicating as to jury trials, substantive law, and the like, seldom intervene at this point. The law of evidence is, properly considered, not so much a thing in itself as a mode or method of doing something else. It is a tool, not a product; a form, not its content. In other words, it is a perfectly practical method of getting at results. Its utility is its only test. If this fails to demonstrate itself, change is easy. If the law of evidence is not practical, it is nothing which juris prudence should keep or need keep. It seems hardly doubtful that Professor Thayer foresaw the nature of the change demanded by present conditions and the necessity for it with entire clearness. As he points out: