88 HARVARD LAW REVIEW. istered. Wherever evidence is taken by commission or deposition, in this country at least, the rules of exclusion largely break down ; that is to say, in a great proportion of trials where there is no jury, viz., in equity, patent, and admiralty cases, and, more or less, in jury cases at the common law. In such cases the magis- trate who takes the evidence notes any objection that is made, but does not and cannot omit to set down the evidence actually given. There it stands, and it is handed up to the court or jury, and is found on the paper with all the rest of the evidence. In most instances there is small profit in fighting over the admissi- bility of evidence which is already in, and has once been read by or to the tribunal ; under such circumstances the whole doctrine of the exclusion of evidence is in a great degree inoperative. II. So much for the system of evidence which we have. Let me come to the second question : What should we have, and how may we get it? We should have a system of evidence of a character simple, aim- ing straight at the substance of justice, not nice or refined in its details, not too rigid, easily grasped and easily applied. All this is necessary, because it is for use in the midst of the eager competi- tion of trials, where time is short and decisions must be quickly made. Long discussion, and delay for reflection, are impracticable ; and in a secondary and incidental part of the law, like evidence, however important it be, — and it is very important, for the putting in or keeping out of evidence means often the difference between gaining your case or losing it, — decisions in the lower court should generally be final. In the pressure of actual trials, where, often, the interests and passions of men are deeply stirred, and all the resources of chicane are called into play and directed by great abilities to obstruct the movements of justice, — the rules of evidence and procedure ought to be in a shape to second promptly the authority of the courts in checking these familiar efforts. In the rulings of judges at the trial much depends on momentary and fleeting considerations, addressed to the practical sense and discretion of the court, and not well admitting of revision on appeal. There are many things in which even now the discretion of the courts goes far. A thousand important matters, of one sort and another, are finally disposed of at the trial, — without the right of appeal. The all-important decision of the jury itself is final, except as the court, for a few rea-
