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The Green Bag

sense that for~an""errorTof the court in the application of some empirical rule during the progress of the trial the judgment may be overturned, where for a like fault on the part of the jury there is no redress. In other words he objects to the doctrine that a litigant has a right as matter of law "to the observance of a precedent in connection with the adminis tration of the rules of evidence " which an appellate court will protect. His criticism goes still farther and insists that "confusion is worse confounded " through the careless and inaccurate use of terms in the law of evi dence itself. Whether all of us see as clearly these defects as does the editor, most of us are willing to accede to these charges as not wholly groundless. Not all are appreciative of the distinction between a fact to be proven and the proof of that fact. To speak accu rately rules of evidence have to do with ways and means of proving a fact. Rules which are concerned with determining whether that fact need be proven, are not rules of evidence, but rather rules of substantive law; rules which determine the essentials of the right or obligation involved; in other words, define the right or obligation. And yet it is true that much of the material which makes up the bulk of many of our treatises on the law of evidence deals with questions of what are essential elements of particular rights and obligations. . The reviewers of Moore on Facts do not seem on the whole to have realized the necessary bearing of the foregoing principles upon the methods adopted by this writer. One exception, how ever, is notable. Professor John H. Wigmore, if one can accept the initials as his in 3 Illinois Law Review 478 (Feb.), strongly disapproves of the expression used in the preface to Moore's work, "the rule for measuring probative force of testimony," and Moore's observation that judicial precedents will be "treated with the same consideration by courts in the determination of questions of fact as is accorded to the reasoning or ex cathedra statements of judges on questions of law." To quote Professor Wigmore :— In other words, there are rules of law which determine the weight or credibility of a piece of evidence which has been duly admitted to consideration. Now that proposition we deny. It is not known to the orthodox and traditional common law. So far as any courts nowadays are tending to recognize it, it is a bad tendency, and one that will wreck

our whole system of proof. If there is one thing for which the common law system of judge and jury stands, it is that the rules of evidence, as determined and applied by the judge, are rules of admissibility alone, and for the judge alone; the weight or credibility is for the jurors untrammeled by any rules of law. The Law Quarterly Review (Jan.), while it carefully weighs and criticises Mr. Moore's work, does not refer at all to this point, and thinks that in spite of some faults it shows great care, accuracy and industry. It therefore congratulates Mr. Moore on his magnum opus. "Moore on Facts" is a work in a new field, but the idea that it opens up a new department of jurisprudence is one to be discountenanced. It will no doubt serve a useful function to the profession, but there is of course no such thing as a law of facts, in the sense of a law which has to do not with the admissibility of evidence but with its weight, as the weight of evidence is a matter left in the hands of the jury and is outside the pur view of the law. No doubt the substantive law can often be presented in a topical arrange ment to great advantage, as has been done, for example, in Oliphant's Law of Horses, but works of this character should not obliterate the fundamental distinction between matters of law and of fact, and should not confuse one into imagining that the virgin territory sug gested by Mr. Moore's striking title can exist anywhere in the world of juris prudence. LENGTHY COGITATIONS If Judge Vann, of the New York Court of Appeals, is to be believed, some lawyers in times gone by must have lived to ripe old age. In the case of EUerman v. Hyman, 192 N. Y., at page 127, the learned justice speaks of "the rules of equity, established after centuries of earnest thought by the. most learned lawyers known to jurisprudence. ' ' —Law Notes.