Washington Law Review


A multitude of cases creates chaos in this subject. Even so great a scholar and lawyer as Simon Greenleaf was unable to clarify the topic when the decisions were fewer and simpler. Mr. (afterwards Mr. Justice) Pitt Taylor, the author of Taylor on Evidence, copied Greenleaf word for word; but when in controversy with Mr. Chief Justice Cockburn over Bedinglield's case, had to confess that his text consisted of words "full of sound, signifying nothing". He insisted, however, that the definition which the Chief Justice had framed left him "enveloped in a fog, dense as that by which I am now, as I write, surrounded." James Bradley Thayer, after a consideration of the history of the phrase, worked out a very carefully reasoned theory which, it was said by his son, "stood the test of his many years of later study."' Mr. Wigmore, Mr. Thayer's most distinguished disciple, accepts Sir Thayer's history but completely ignores his theory. And Mr. Chamberlayne, another of Mr. Thayer's scholarly pupils, only makes the "confusion worse confounded" in his voluminous work.

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