express provisions of a like nature, by which a written contract is made indispensable to create a legal obligation.

We will close this outline of some of the leading principles of our law on this subject with an enumeration of a few rules, which did not properly fall under any former head. 1. On whom the burden of proof (onus probandi) lies. Generally it rests on the party, who alleges the affirmative of any proposition, to establish it by suitable proof. But sometimes even he, who alleges a negative, must prove it; as, in all cases where the party sets up a criminal neglect or omission, he must establish such neglect or omission by suitable proof; and it is not the duty of the party charged to establish his innocence, for the law will presume it in his favor, until there is some proof to the contrary. 2. The best evidence that the nature of the case admits, is to be produced. The meaning of this rule is not, that, in all cases, the highest possible evidence is to be adduced; but such evidence as presupposes that no better is behind, and in the power of the party. The evidence, for instance, of a written contract is the original instrument; and, therefore, a copy is not generally admissible. But if the original is proved to be lost, then a copy is evidence; for that is the next best proof. In such case, the copy must be proved to be such. Again, oral evidence will not be admitted if there is a copy in existence; but if there is no copy, then it is admissible. But where the best evidence is given, it is not necessary to fortify it by producing all that exists of the same kind. As if there be two witnesses to a deed, it is sufficient to prove it by one.There are certain exceptions to this rule, founded on public considerations. As, for instance, the original of a public record need not be produced; but a copy is sufficient; for the public records ought, for general convenience and preservation, to remain always in one place. So public officers, acting under written commissions, need not show them; but their acting as officers publicly is evidence, primâ facic, of their authority; for it would be criminal so to act without authority. So, where the fact lies more immediately in the power of the other party, or his acts conclude him as if a person act as collector of taxes, or as a clergyman in orders-that is sufficient evidence for third persons to establish his official character. 3. Generally, facts only are evidence, and not the mere opinions of witnesses. But there are certain exceptions; as, in questions of

science or trade, persons of skill may be asked their opinions. A physician may be asked if a particular wound or injury would, in his opinion, produce death and a shipwright, his opinion as to the sea-worthiness of a ship. 4. The substance only of any particular point or issue of fact need be proved. This gives rise to a great variety of questions, as to the materiality or immateriality of particular circumstances, included in the point at issue; and upon these questions depends the doctrine of variance in our law. What variance is, or is not material, is often matter of great nicety. There may be a variance in the proof of a date, or of some words of a contract, or of the time and place of making it, or, some of other circumstance. But a discussion of this subject cannot be had here without occupying too much space. 5. There are certain things, which courts and judges will judicially take notice of without any proof. They will take notice of all public and general laws; of all general customs of the realm; of the commencement and prorogation of the sessions of the legislature; of the king, president, governor, &c., of the state; of all the courts of general jurisdiction in the same state; of the general customs of merchants and trade; of the ordinary computations of time by the calendar; of the known civil divisions of the country into counties; of public holydays and festivals; of public proclamations, and other public documents of the executive and legislative departments; of the nations with which we are at peace or at war; of the nations and sovereigns acknowledged by our government; and of many other facts, which belong to the public proceedings and interests of the country. But of inferior courts of limited jurisdiction, not recognised in public statutes, of local customs and usages, of foreign laws, of peculiar tenures, and, in many instances, of local, geographical divisions, not necessarily involved in the discharge of public duties, judges and courts will not take notice.

We here finish our sketch, and refer the reader, for more full information on the common law doctrine of evidence, to Peake on Evidence; Phillips on Exidence, and Starkie on Evidence, whose treatises are full of practical illustrations upon all the leading questions.

EVOLUTIONS, in tactics, are the movements of a troop, for practice, or in the face of the enemy. They comprehend the formation of columns, marches, &c. (See Manœuvre.) The movements of a fleet at sea are also called evolutions.

EVOLVENTS, in mathematics; curved lines, formed by the evolution of curves. EVREMOND, or EVREMONT (Charles Marguetel de St. Denis), lord of St.; born in 1613, at St. Denis le Guast; one of the most lively writers of his times, who paid ess attention to abstract speculations than to the philosophy of social life. He studied law, but subsequently entered the military service, was present at Nordlingen and Freyburg, with the rank of captain, and, in the war of the Spanish succession, was created field-marshal. In society, he was distinguished for his wit and penetration, and retained all his vivacity till his death. He was eminent among the epicurean wits of that time, who soon acquired a powerful influence on French philosophy. For some indiscretions in his conduct and in his writings, he was imprisoned in the Bastile. He afterwards escaped a second arrest only by a flight to England. He died in 1703. His Euvres mêlées appeared at Paris, in 1690, in 2 vols. 4to., and at Amsterdam, in 1706, 5 vols. 12mo., and in 1750, 12 vols. 12mo. In the most of his works, grace, ease and vivacity are the prevailing features. Profound views are rarely met with in them.

EWALD, John, one of the most original Danish poets of modern times, particularly distinguished as a tragic and elegiac poet, was born at Copenhagen, in 1743, but was educated in Sleswic, where his father was a preacher. The legends of the saints, which were given him to read, inflamed his imagination. The lot of a missionary, compelled to undergo innumerable hardships in remote parts of the earth, among heathens and barbarians, excited his spirit; but the perusal of Robinson Crusoe took such a strong hold of him, that he fled from his father's house in search of a desert island. This step only increased the severity of his father, who, being determined to make a theologian of his son, sent him to Copenhagen. The constraint imposed on his inclinations, which were fixed on the military profession, now became intolerable to the young man he ran away a second time, and enlisted in the Prussian service at Hamburg. But, being compelled to join a regiment of artillery at Magdeburg, instead of being attached to the hussars, as he had been promised, he deserted the Prussian standard, in the seven years' war, and entered the Austrian service, where he was not only better treated, but, having distinguished himself on several occasions, was promised promotion, on condition

of embracing the Catholic religion. This Ewald refused; and, being liberated by his family, he returned to Copenhagen. He now began to apply himself seriously to theology. But a disappointment in love again interrupted his career; the world and life became odious to him, and he sunk into despondency. He was then 23 years old, and was unconscious of the talent slumbering within him. An accident kindled the flame. On the death of Frederic V of Denmark, he was requested to compose an elegy; and the general admiration with which it was received roused the ambition of the young man, who now, encouraged by the academy of Copenhagen, protected by Bern storff and Karstens, and assisted with the advice of Klopstock, then residing in Copenhagen, made rapid progress in his new career, and soon became one of the most eminent lyric and tragic poets of his nation. His Death of Balder, the subject of which is taken from the mytholo gy of the Edda, and his Rolf, a tragedy taken from the ancient history of Denmark, are works which, notwithstanding many defects, bear the impress of true genius; and several of his odes and elegies are among the best that modern times have produced. The assistance which he received from the government was always insufficient for his support, and he was obliged to earn a trifling addition by occasional poems. Ewald died in poverty, in 1781, scarcely 38 years old, having struggled for years with want, and suffering from the gout, which was produced by his irregular manner of life. A beautiful edition of his poems appeared soon after his death, in four volumes. (For further information respecting him, see Furst's Briefe über die Dänische Literatur.)

EWALD, John Lewis, doctor of divinity, and ecclesiastical counsellor, was born in 1748, in the small village of Hayn der drei Eichen (of the Three Oaks), in the principality of Isenburg. After he had finished his studies and acted some time as an instructer, his lord, the prince of Isenburg, appointed him preacher in Offenbach. Subsequently, he received an invitation to Detmold, in Lippe, where he remained till 1781. Having found the schools in a bad state, he established a seminary for the education of teachers, and did much for the improvement of schools in general In those times of democracy (1792), he published a small essay, Was sollte der Adel jetzt thun? (What shall the Nobility do now?), in which he advised them to surrender many

EXCAVATIONS. The history of the regular explorations under ground, for the ancient remains of Roman art, begins with the edict of pope Leo X, August 27, 1515, appointing Raphael Sanzio superintendent of antiquities. The words of this edict, and, still more, a report to Leo X, formerly ascribed to count Castiglione, but afterwards acknowledged by Francesconi as the production of Raphael, give the clearest proof of the truly barbarian spirit with which the specimens of antiquity had been treated in Rome. By the regulations and the example of Raphael, order was introduced into the midst of this confusion. (See an account of his services in Fiorillo's History of Painting, i, 98; and Roscoe's Life of Leo X, chapter 22.) But the ground was still too rich to allow a regular and systematic search to take the place of an indiscriminate collection of curiosities. Flam. Vacca's excellent Comm. de Monumentis Romanis suo et Majorum Evo deprehensis, in 1594, of which Carlo Fea has given an improved edition, in his Miscellanea filologica, critica, et antiquaria (Rome, 1790, vol. i, page 51 et seq.), is therefore rather an account of accidental discoveries, than of regular excavations. The business of excavation was not carried on extensively in Rome until recently. Before this, only a few tombs (those of Naso, Scipio, &c.) and some vineyards had been opened. During the government of the French in Italy, the baths of Titus, the arena of the coliseum, the arch of Constantine, and the forum of Trajan, were laid open, either in whole or in part; and the excavations of the via sacra, of the ground around the temple of peace, and the columns of Phocas were begun, and have been carried on by the direction of the existing government, with a view of clearing the ancient forum entirely from the ruins of centuries. In this forum was found, in 1824, the first mile stone, from which all those upon the highways leading from Rome were numbered. In the Campagna di Roma, the villa of Adrian early attracted attention. The excavations at Gabii (1792) are also celebrated. Those at Velia, at Ostia, under the direction of Fea, those at Antium, as well as the examinations at Otricoli and at Friuli, near Udine (1817), have always been productive. Several statues of the muses have lately been found, not far from Monte Calvo, in the Sabine territory; and, in 1826, a temple of Hercules, with statues, was accidentally discovered at Brescia. The skilfully conducted excavations at Hercu

laneum and Pompeii (see those articles have been very successful. The resurrection, as it were, of these cities, has encouraged the zeal of all countries. In France, the example of Peiresc has shown antiquarians how well that country can reward a diligent search. Montfaucon, Caylus, and, recently, Millin, have followed in his steps. In the official reports of the institute, accounts have frequently been given of the discovery of old cities and buildings; for example, of those at Famars, where vases have been found, with several thousand pieces of money and two bathing-rooms, with painted walls. In Hungary, the excavations at Sabaria, and, in Germany, those on the Rhine, those near Alzey, and those at Brisgau (see Brisgau), and in several other places, are important. Spain appears to have taken no steps to decide whether its soil contains treasures. The Mosaic at Italica was discovered by accident. Pietro della Valle was one of the earliest travellers who made excavations for curiosities in Egypt. In these latter times, no stranger goes there without an axe and spade. Syria has been less explored. At Persepolis and Tadmor the ruins have been oftener described than explored. The tombs at Ilium were opened by count Choiseul-Gouffier, at the same time that Hamilton was examining those of Magna Græcia. The later travellers in Greece-Nointel, Spon and Wheelerappear to have been unable to obtain any thing beyond drawings. Of late years, the Turks have allowed regular excavations to be made in the neighborhood of ruined edifices. The most important discovery made there was that of the Æginetan statues of Panhellenic Jupiter, and some specimens of architecture from Phigalia. Comparatively few specimens of ancient art have been found in Sicily. Baron Giudica, indeed, caused a whole town (Acre) to be excavated; but only a few utensils rewarded his search. While Greece, Italy, Asia Minor and Egypt, and even distant India, have been explored, by travellers devoted to the arts, the people of the north of Europe have not been satisfied with waiting till accident should discover to them the remains of ancient times. In the Netherlands, a wooden bridge, evidently the work of the Romans, was discovered in a marsh; at Salzburg, the old Juvavium; at Bonn, and at Neuwied, some monuments of Roman power. Even the old town of Winfried was not neglected, and the pa gan monuments in Silesia were exanune

Very recently, the late emperor Alexander caused the remains of past ages, all along the Black sea, and in Taurida, to be examined by the antiquarian Von Köhler, and those which could not be removed to be exactly measured and described. Thus both north and south are making similar exertions. Among late excavations of great interest are those on the estate of the prince of Canino, where Etruscan vases were found, in 1830, apparently of very remote antiquity. (See Etruria.) Very recently, excavations have been made on the site of the ancient Pæstum, which have led to the discovery of a vast temple, with sculptures of the greatest interest. They are particularly described in the Paris Journal des Débats, of July 5, 1830.

EXCELLENCY; a title first given to the Lombard kings, and afterwards assumed by several emperors of the West; for instance, Charlemagne, Conrad I, Frederic I, &c. It was afterwards transferred to the inferior princes, especially in Italy, until they also gave it up, after pope Urban VIII, in 1630, had bestowed the title of eminence on the cardinals. The princes now assumed that of highness; the more readily because some ambassadors of the first rank, at Rome, had already adopted the title. Since that time, the title of excellency has, by general use, become a title of office or service, in no case hereditary, or transferable from one member of a family to another, but always belonging to the office, and only borne, on the European continent, by ministers in actual service, by the highest court and military dignitaries, and by ambassadors and plenipotentiaries. Foreign ministers are addressed by the title of your excellency, by way of courtesy, even if they have no rank which entitles them to this distinction; but chargés d'affaires never receive this title. Governors of English colonies are also called excellency. In the U. States, the governor of Massachusetts is the only one who has the title of excellency by a constitutional provision. The president of the U. States is sometimes spoken of in foreign papers as his excellency the president. We have seen that the title was at first given to emperors; at present, the lower classes in Italy call every foreigner, with a whole coat, eccellenza. EXCEPTION, LAWS OF. (See Laws of Faception.)

EXCHEQUER; an ancient court of record, established by William the Conqueror, and intended principally to order the revenues of the crown, and to recover the

king's debts and duties. The court consists of two divisions, viz., the receipt of the exchequer, which manages the royal revenue, and the judicial, which is subdivided into a court of equity, and a court of common law. (See Courts of England, vol. 3, p. 590.)

EXCISE may be said to be an inland duty, or impost, laid on commodities consumed, or on the retail, which is the last stage before consumption, as an excise on coffee, soap and candles, which a man consumes in his family. Many articles, however, are excised at the manufactories. As, however, in few countries the definitions of excise, impost, custom, &c., are scientifically settled, it is almost impossible to give a satisfactory explanation of excise applicable to all countries. Excise is either general, extending to all commodities, or particular, levied only on certain articles of consumption. The latter sort was introduced into Saxony, at the diet of Leipsic, as early as 1438, and extended in 1440, at the diet of Grimma; but a perfect system of general excise was first devised in France, and thence introduced into Holland, soon after it had assumed a republican form of government; into the state of Brandenburg, under the reign of the elector Frederic William the Great; and into Saxony in the beginning of the 18th century. (See Consumption, Direct Taxes, Taxes, &c.)

EXCOMMUNICATION; the exclusion of a person from a society, the depriving him of its fellowship; more particularly, the exclusion of a Christian from the church. Some kind of excommunication has existed wherever societies have existedsecular, spiritual, literary, &c. The Jews practised excommunication, viz., an exclusion from communion in the benefits of religious worship with the people. In the early Christian church, excommunication was exercised by the whole community, and the power of expelling unworthy members must have been highly neces sary in so delicate a situation as that in which the first Christians were placed. By degrees, the right of excommunication became confined to the bishops; and, both in the Greek and Roman Catholic churches, the subject of excommunication became more and more distinctly settled by treatises and decrees. A person excommunicated from the Roman Catholic church is put out of the communion of the faithful; viz., he cannot hear mass, partake in the Lord's supper, nor attend public prayers, &c.; no person is allowed to have any communication with him.