Observations on the Law of Evidence

Authors

Ezra Ripley Thayer, Harvard Law School

Abstract

Complaints of the administration of justice have been many of late, and the law of evidence has had its full share. Our profession ought to listen to such complaints with an open mind and a temper free from prejudice or irritation; and if we are honest with ourselves we may realize that it will take an effort to attain this serene and candid intellectual atmosphere. Conservatism is a natural and proper attribute of our profession. Law, as has been finely said, "embodies beliefs that have triumphed in the battle of ideas, and then have translated themselves into action; while there still is doubt, while opposite convictions still keep a battle front against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field," and our inherited common law habit of thought keeps before our minds, consciously and subconsciously, the need of reliance on the past -the value of experience in testing the soundness of principles by their practical application. But this fact should make us the more alert lest we overlook changes in the very conditions which justified the established rule - lest we forget the truth expressed by the words cessante ratione cessat ipsa lex - lest in other words we fall into the sort of conservatism, founded on ignorance and narrowness of vision, which is marked ever by deliberation and timidity in the promotion of reform, and reserves all its aggressiveness and ingenuity for resisting the proposals of others. And our profession is skilled in depicting the awful consequence of change in the established order of things.

Recommended Citation

Ezra R. Thayer, Observations on the Law of Evidence, 13 Mich. L. Rev. 355 (1915).
Available at: https://repository.law.umich.edu/mlr/vol13/iss5/1