94 HARVARD LAW REVIEW. of them be kept steadily under the oversight and control of the court, by being dealt with as rules of court, it appears to me that our system of evidence might be vastly improved, and be made conformable to the changing convenience of mankind. And now, finally, if it be said that we have not judges fit for the large discretion thus to be confided to them, several things may be said in answer : — 1. That sort of remark about our judges is often made when one has in mind, not the judges of his own courts, or of any courts that he knows most about, but some other judges in some other parts of the country. Admitting that the statement may be true in some places, it is not true of the higher Federal courts anywhere, or of the higher courts in several of our States. It is not true in Eng- land. Wherever it is not true, that particular jurisdiction need not be deterred from giving to its highest courts the proposed recog- nition and enlargement of discretionary power. And the example thus afforded will be hkely to help matters elsewhere. 2. If the judges in any place are not fit for any given functions which those in other places exercise with benefit to the community, or which it is thought well to put upon them, that is a reason for changing the breed of judges. And we may remember that, in most of our States, a change, whether for better or worse, is only too quickly and easily possible, 3. The objection, however, may have another answer. Those who make it, forget, for the moment, how much discretion is already reposed in our judges, and exercised by them at every hour of the day and in every part of their functions. In impos- ing criminal sentences, in punishing contempts, in passing upon motions, in making rules of court and regulating practice and pro- cedure,^ in adopting rules of presumption, in determining the limits of judicial notice, in applying the rules of evidence, and in con- ducting trials generally, — in discharging these and other duties, a vast discretionary power is everywhere exercised. Men who can safely be intrusted with the discretion which the ordinary exercise of the judicial office imports, every day of the week, are fit to under- take the function that I am now suggesting. James B. Thayer. Cambridge. 1 See, for example, as I am reminded by my colleague, Professor Smith, the expe- rience in New Hampshire during the administrations of Chief Justice Bell and Chief Justice Doe.
