PROFESSOR OF THE LAW OF EVIDENCE IN THE LAW SCHOOL

OF NORTHWESTERN UNIVERSITY

BOSTON

LITTLE, BROWN, AND COMPANY

1908

PREFACE

EVEN a Supplement, it seems, must have a Preface. Yet, for a Supplement to a treatise of four volumes, the Preface ought to be little else than an apology. The elder Disraeli, in proffering his Good Advice of an Old Literary Sinner, refers to the "authors of moderate capacity who have been remembered only by the number of volumes their unhappy industry has produced," but cheeringly reminds us that books of a small size were regarded with contempt by scholars of a former age. Moretus, the great printer, successor to Plantinus, complained to the learned Puteanus (who was considered as the rival of Lipsius) that his books were too small for sale, and that purchasers turned away, frightened at their diminutive size. Puteanus referred him to Plutarch, whose works consist of small treatises. But the printer took fire at the comparison, and turned him out of his shop for his vanity at pretending that he wrote in any manner like Plutarch!"

Yet a book that pretends to set forth, even in miniature, such a bulky body as our present mass of law, cannot itself avoid a crescent bulk. And if our Supreme Courts require two thousand rulings yearly to apply the rules of Evidence, even a mere compend, covering three and a half years of such prolix activity, must fill many pages.

A few lines must be taken for a personal acknowledgment of sincere appreciation, to those who have found this work a useful aid to their own labors at the bar and on the bench. Many kindly testimonies of this have been vouchsafed. They have also supplied a much-needed assurance that many of the views and policies advanced in the original work were not solely the individual lucubrations of its author, but justified themselves as a reflex expression of the solid convictions of the times, an echo of the common professional voice. Every one who ventures upon an analysis of the data of any department of human thought needs the corrective crucible of public verification. In China, by a sound convention of social manners, he who receives a compliment of approval must reply, "How shall I dare to persuade myself of what you say?" This self-cautionary mental attitude is a safe and healthy one. We find in many law books (nor these the oldest and dustiest) a confident championship of theories, systems, and principles, which to the authors seemed discoveries

of the ultimate Verity, but to the rest of us are plainly as naught but fruitless spear-breakings. Would indeed that some power the gift could give us to see our truths as others see them!

For the law of Evidence, then, the analysis of its present workings, methods, and spirit, as offered in this treatise, seems to have been in general confirmed by the experience of others. But what of its future? Does the practice of the past three years mark more plainly any trends or requirements? Such marks may be looked for either in the rules themselves, or in the judicial method of using them, or in their larger procedural environment. First, as to the rules themselves. There seems to be but one that is radically discreditable, the Opinion rule. The Opinion rule must go. Every year's practice confirms this. It but cumbereth the ground, and must be cut down and cast into the fire. An unbiassed judgment upon its merits leaves it no excuse for survival. The sooner it is discarded to the limbo reserved for historical blunders and practical failures, the better for our law's good sense. Let all else stay, with only a mending of parts.

Secondly, as to the judicial methods of application. Here first stands out the great doctrine of Judicial Discretion, as the hope of the future. During a long century smothered and suppressed by the gradual growth of a monstrous mechanism of petty precedents, it still lives in our law, ready to resume its rightful reign. Nine-tenths at least of our present rulings in supreme tribunals ought not to have risen beyond the determination of the trial Court. But as yet there is little sign of recognition of this truth. "This ill must worsen ere it can be cured."- Next, the doctrine of New Trials for Erroneous Rulings will help to redeem us. Here, indeed, within these four years, great hopes can be already seen. All along the line of States, above and below in the Courts, and throughout the Bar, a renaissance of thought is visible. The future may here well be trusted; but there must be no abatement of effort. — Finally, the doctrine of Judicial Instructions on the Weight of Evidence has begun to threaten us and to annul the advances made in other fields. The judge for admissibility, the jury for weight, such is the orthodox and unflinching rule of the inherited common law. But the judges, in instances too numerous not to be alarming, are now giving instructions of law upon the effect of particular pieces of Evidence. These instructions (pounced upon, of course, by the claws of an Exception) are gravely quibbled over in Supreme Courts; and these quibblings are recorded to form a new reticulation of rules. This dangerous fungus upon the body of the law of Evidence is now in rapid growth. Perhaps we can by direct excision remove the noxal condition. But it owes its stimulus to the suppression of a natural instinct to obtain the judge's personal views upon the evidence, — an instinct which cannot now receive its just satisfaction because of the prohibition against a

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judge's informal comments on the evidence, the original common-law 'summing up." This prohibition, introduced almost universally in the United States by the popular democratic movement of three generations ago, cramps a natural outlet. Hence the present counter-strain and outbreak at another point, namely, in judicial instructions abstractly stating legal rules for Weight of Evidence. Nothing permanent can here be hoped until the original misguided prohibition is removed.

Thirdly, as to the environment of procedure at large. The law of Evidence, like the other parts of our law, is here suffering from general influences, which in their turn lead back to larger causes. Our great legal surgeon has lately diagnosed them; to resume them here is unnecessary. In the unerring analysis of Roscoe Pound1 we may once for all see the sources of our imperfections laid bare. These plain and sober truths we must now face and ponder. Whether or how soon we shall develop the skill or the courage or even the desire to apply remedies, is a far question. We shall, indeed, have to enlarge transcendentally our professional spirit and purpose, to rise beyond the essentially common-law demand of Shylock, "I crave the law!" and to live in the atmosphere of that broader appeal to the Magistrate-Duke Vincentio, "Give me Justice, Justice, Justice, Justice!" No less than this will suffice. Particular remedies and specific amendments, necessary though they be, will not go deep enough. For, as yet, trammelled by a narrow purpose, our labors can only avail

In dead details to smother vital ends

Which would give life to them; in the deft trick

Of prentice-handling to forget great art;

To base mechanical adroitness yield

The Inspiration and the Hope a slave.

NORTHWESTERN UNIVERSITY LAW SCHOOL,

CHICAGO, October 1, 1907.

J. H. W.

1 Proceedings of the American Bar Association, 1906, Pt. I, and American Law Review, XL, 729 ("Causes of Popular Dissatisfaction with the Administration of Justice ").