In our system of jurisprudence it is the province of the jury to decide all matters of fact. The trial is held and the verdict of the jury is delivered in the presence of a judge who is bound to decide matters of law which arise in the course of the trial. Whenever a thing offered as proof is questioned as not proper to go before the jury as evidence, that question is to be resolved by the judge, and unless he permits it to be introduced as evidence at the trial, it can not legally come to the consideration of the jury. Whenever a thing is permitted by the judge to be brought before the jury, for the purpose of resolving a question of fact in dispute between the parties, that thing, in a legal sense, is called evidence. Whether there is any evidence of a fact is a question for the judge to decide, but whether the evidence is sufficient is a question for the jury to decide.
The common-law rules of evidence, recognized in England and the United States, are discussed in an unsigned article on that topic which appeared in the first edition of the Encyclopedia Americana (1829-1833) . The article was written by Supreme Court Justice Joseph Story. Justice Story agreed to write several articles on legal subjects for the Encyclopedia, but requested that his identity be withheld until after they had appeared in print. The editors of the Encyclopedia complied with this request, and it was not until the final volume in the series was published in 1833 that Story's authorship of the articles was disclosed.
John C. Hogan,
Justice Story on the Common Law of Evidence,
9 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol9/iss1/3