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Evelyn, John, an ingenious cultivator on this occasion he drew up a small tract of philosophy and the liberal and useful on navigation and commerce. In the arts in England in the 17th century. He reign of James II, he was one

of the comwas the son of Richard Evelyn, esquire missioners for executing the office of privy of Wotton, in Surrey, where he was born, seal during the absence of the earl of October 31, 1620. He was entered as a Clarendon in Ireland. He continued in student at Baliol college, and thence re- favor at court after the revolution, and was moved to the Middle Temple. The civil made treasurer of Greenwich hospital. war induced him to leave England ; and He died February 27, 1705—6. The mehe spent some years in France and Italy. moirs of Evelyn, comprehending an inHe returned home in 1651, and, in 1656, teresting diary and correspondence, were published a poetical version of the first published by W. Bray, esquire, 1819, 2 vols. book of Lucretius. He made some efforts to.; and more recently his miscellaneous in favor of the royal cause in 1659; on works have been collected and given to which account he was much favored by the public. They include treatises on Charles II, after his restoration. In 1662, gardening, architecture, medals, &c., behe published his Sculptura, or the History sides a curious tract, entitled Mundus muand Art of Chalcography, or Engraving on liebris; or, the Ladies Dressing Room un

' Copper, 8vo., reprinted in 1755. On the locked and her Toilette spread, in Burfoundation of the royal society, he was lesque; together with the Fop's Dictionanominated one of the first fellows; and ry, or Catalogue of Hard Names and at its meetings he read a discourse on Terms of the Art Cosmetic, &c., first forest trees, which formed the basis of printed in 1690. his most celebrated publication. This was EVERDINGEN; the name of a celebrated Sylva, or a Discourse of Forest Trees, Dutch family of painters. Of these, Cæand the Propagation of Timber in his Ma- sar van Everdingen was distinguished as jesty's Dominions; to which is annexed, a portrait and historical painter and archi Pomona, or an Appendix concerning Fruit tect. He was born at Alcmaer, 1606, Trees, in relation to Cider, &c. (1664, fol.); died 1679. His younger brother Alder a work several times reprinted, particular- van Everdingen, was a celebrated landly in 1776 and 1812, with the improve- scape painter, born 1621. His sea pieces, ments of doctor Andrew Hunter. As a se- in which he represents the disturbed elequel to this treatise; he published Terra, ment with great truth to nature, are para Philosophical Discourse of Earth, re- ticularly celebrated. In forest scenes, too, lating to the Culture and Improvement he was a master. He is known, also, as of it for Vegetation and the Propagation an able engraver, by his plates to Renard of Plants (1675, folio). This also was ed- the Fox. He died 1675.—The youngest ited by doctor Hunter in 1778. Mr. Eve- brother, John, born 1625, was å lawyer, lyn was appointed one of the commission- and painted only for his own amusement. ers of the sick and wounded seamen in EVERTSEN, John, admiral of the Dutch 1664; and also a commissioner for re- fleet, died 1666. In his time, the naval building St. Paul's cathedral. When power of the Dutch was raised to its Charles II formed a board of tradle, he highest point. The victories of Ruyter was nominated one of the members; and Tromp and Vassenaer had made the flag



of Holland respected by all nations; and jury to decide all matters of fact. The several members of the Evertsen family, verdict of the jury is, however, to be givwhich originally beionged to Zealand, all en, and the trial is to be had, in the prescompanions and pupils of those naval 'he- ence of a judge or judges, who preside at roes, followed worthily in the steps of the trial, and are bound to decide matters their great leaders. A brother of John of law, arising in the course of the trial. Evertsen, named Cornelius, likewise ad- Whenever, therefore, a question arises, miral in the service of the republic, died whether any thing offered as proof at such for his country at the bloody battle of trial is or is not proper to go before the July 15, 1666, against the English. John jury as evidence, that question is to be dewas at that time retired from the ser- cided by the court, and, unless permitted vice; but no sooner had he received by the court, it can never legally come to the news of his brother's death, than he the consideration of the jury. Hence, wrote to the states-general as follows: “I whatever is so permitted to be brought bewish to enter again into active service, fore the jury, for the purpose of enabling and to devote myself for my country. My them to decide any matter of fact in disfather, my four brothers and my son, have pute between the parties, is, in a legal already fallen honorably in the cause of sense, evidence, and is so called, in contrathe republic. Let me be permitted, like distinction to mere argument and comthein, to die in my country's service.” ment. This gives rise to a very imporThe wish of the gallant man was fulfilled. tant distinction, at the common law, as to Aug. 4 of the same year, he lost a leg in the competency and the credibility of evia battle with the English, and died, a few dence. It is competent, when, by the prindays after, of his wounds. The province ciples of law, it is admissible to establish of Zealand erected a splendid monument any fact, or has any tendency to prove it. to the memory of John and Cornelius, at It is credible, when, being introduced, it Middleburg, where their ashes are depos- affords satisfactory proof of the fact. It ited with those of two others of the family, follows, therefore, that evidence may be afterwards laid there, viz., admiral Corne- competent to be produced before a jury, lius Evertsen (a son of John Evertsen), when it may, nevertheless, not amount to who died 1679, and Galin Evertsen credible proof, so as to satisfy the minds (likewise an admiral in the Dutch ser- of the jūry; and, on the other hand, it vice, and a descendant of the elder Cor- may be such, as, if before them, would nelius Evertsen), who died 1721.

satisfy their minds of the truth of the fact, EVIDENCE, in its most general sense, but yet, by the rules of law, it is not admeans the proofs which establish, or have missible. Whether there is any evidence a tendency to establish, any facts or con- of a fact, is a question for the court clusions. It may be divided into three whether it is sufficient, is a question for the sorts, mathematical, moral and legal. The jury, when the cause is tried by a jury.first is employed in the demonstrations Evidence is, in its naturé, divisible into which belong to pure mathematics; the two sorts :—first, that which is direct and second is employed in the general affairs positive proof of any fact; and, secondly, of life, and in those reasonings which are that which is presumptive and circumstanapplied to convince the understanding, in tial. It is again divisible, in respect to the cases not admitting of strict demonstra- mode or instruments of proof, into two tion; the third is that which is employed sorts :—first, written evidence; and, secondin judicial tribunals for the purpose of de- ly, unwritten or oral evidence. We are ciding upon the rights and wrongs of liti- accustomed to consider that as direct and gant parties.- Probably in every system positive evidence, which is proved by some of jurisprudence aiming at exactness, writing containing a positive statement of some rules are introduced, and some re- the facts, and binding the party whom it strictions are allowed, in respect to evi- affects; or that which is proved by some dence, different from those which belong witness, who has, and avers himself to to mere moral reasoning upon probabili- have, positive knowledge thereof, by means ties. In our discussions on this head, we

Whenever the fact is not shall confine ourselves altogether to the so directly and positively established, but consideration of evidence in a legal view, is deduced from other facts in evidence, and principally with reference to the ex- it is presumptive and circumstantial only isting rules of the common law, recognis- Perhaps, in a strictly philosophical sense, ed in England and America. According much of the evidence usually denominatto our system of jurisprudence in common ed positive is but presumptive; for there is law trials, it is the peculiar province of a an admixture in it of some circumstances

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of presumption, though the presumption which it may not be improper to enumer-
may usually be deemed irresistible proof. ate. One is, that a man naturally intends
For instance, a promissory note is offered the end and result, which must be the im-
in evidence, as signed by the defendant; mediate consequence of his act. This is
a witness, who attested it, swears to the often applied to criminal cases.
execution and signature of the defendant. strikes another with a dangerous weapon,
This is usually deemed positive proof; and the effect of the blow would natural-
and yet it will be at once perceived, that ly produce death, he is deemed to intend
it rests on the credibility of the witness, to kill; and, under such circumstances, he
and the presumption that he has sworn will not be permitted to set up as a de-
what is true, which is a fact, that, in its fence, that it was beside his intention. If
nature, is not capable of absolute proof. a man strike another on the head with a
But, however this may be, in a practical heavy axe, so that his head is split open,
sense, the distinction above stated is suffi- and he instantly dies, the offender will not
ciently intelligible and well-settled for all be permitted to excuse himself by pre-
the purposes of human life.

tendmy that he had no intention to kill. I. As to presumptive evidence. It must In our law, malice is a necessary ingrebe obvious that in a very great proportion dient in the crime of murder; and if a of the questions of fact arising in the liti- man kill another upon slight provocation, gations before judicial tribunals, the proofs a use weapons, which are necessarily must be of a merely presumptive nature. dangerous to life, or conduct himself in a The want of written proofs; the death, or very cruel and brutal manner, the predefect of memory, or treachery, of wit- sumption of the law is, that the act is manesses; the temptations to suppress evi- licious, and this presumption will prevail dence; the very nature of the transaction against any evidence of mere private initself, founded in fraud, or in secret con- tention to the contrary.—Another pretrivances, or in personal confidence; all sumption of law is, that a man is innothese, and many other considerations, re- cent, until some proof is offered, that he is quire us to recur perpetually to presump guilty of a crime. He is not bound, in the tive evidence. And especially is this true first instance, to show his innocence, for in respect to public crimes; for these are the law imputes no wrong to him without rarely committed under such circuin- some proof. But as soon as such proof stances as lead to positive, unequivocal is offered against him, the presumption evidence of them. All presumptions are disappears, and, under particular circum.. necessarily founded upon the connexion stances, the burden of proof is on him to which human experience demonstrates establish his innocence. For instance, if usually to exist between a certain fact or one man is proved to have killed another, circunstance, and other facts and circum- the law presumes the act malicious, unless

When the one occurs, the oth- circumstances arising from the evidence ers are presumed to accompany them. produced against him repel that concluSome presumptions of this nature are so sion; and therefore he is required satisstrong and irresistible, that the law adopts factorily to establish all the circumstances them as presumptiones juris ct de jure. of accident, necessity or infirmity, on Oihers, again, are left to be judged of ac- which he relies for his defence.- These cording to the weight, which the court and are instances in criminal cases. And there jury may think them entitled to, taken in are many rules of presumption of a like connexion with all the other circunstances nature in civil cases; some of which are of the particular case. There are other conclusive, and others, again, which are presumptions, or rather circumstances of liable to be rebutted by counter evidence; presumption, which are so uncertain and some founded on natural reasoning, and unsatisfactory in their own nature, that others, again, upon artificial grounds. the law rejects them, as unworthy of any Among these are the following: Every credit, and too unsafe to found any judg- person is presumed to have done an act, ment upon. And presumptions, favorable the omission of which would be criminal or unfavorable, often arise from the con- in him, until the contrary is shown. Fraud duct, or motives, or want of motives, or is not to be presumed. A party is to bo character, or habits of a party, and may presumed to continue in life until the con justly influence the decision of a case. trary is made probable. Where the prin But it would lead us too far to enter upon cipal act or title is proved, all the collateral a full illustration of these remarks.—The circumstances to give it effect will also be common law has laid down many rules presumed. A debt will be presumed paid on the subject of presumptions, a few of after a long, unexplained lapse of time

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Some presumptions of this nature are ar- has a private right of way. There are tificial. Thus, in our law, a bond will be other cases, where the solemn declarations presumed to be wholly paid after 20 years, of parties, under whom the party to be where there have been no intermediate affected by them claims, or with whom payments or recognitions of the debt. A (as it is technically expressed) he is in man will be presumed to be dead after an privity of title, or estate, or blood, are good absence of 7 years, unexplained. An heir evidence; as, for example, the recital of will be presumed to be in possession of a fact in a deed, under which the party land, of which his ancestor died seized. claims title, binds him. So the testimony After 20 years enjoyment of an easement of a deceased witness, given upon a foror servitude, a title will be presumed.- mer trial, where the same point was in On the other hand, there are certain pre- issue between the same parties. So dying sumptions, which the law rejects (as has declarations of a party, who has received been already stated), because of their un- a mortal wound, are evidence against the satisfactory nature and tendency. Thus, party accused of the crime. To go at large it is a general rule, that hearsay, or mere into this subject would require a treatise. report and reputation of a fact, is not evi- II. As to oral or unwritten evidence. dence, for this amounts to no more than Having considered the nature and operathe mere declarations of third persons, not tion of presumptive evidence, we may now under oath, and of facts of which they pass to a consideration of some of the rules may have no certain knowledge. Our of evidence, as to witnesses—when they law generally requires, that every fact to are, and when they are not competent to be substantiated against a person, should give testimony. In general, it may be be proved by the testimony of a witness said that all persons, not under any known (when it is to be proved orally), who is disability, are competent witnesses. Sevsworn to speak the truth; or, if it is de- eral grounds of incompetency exist, in the pendent upon written evidence, it must be common law of England and America. proved by evidence that is sanctioned by 1. The first is, want of reason or underhim, or by which he ought to be bound, standing. Persons insane, lunatics and as importing truth. There are, however, idiots, are incompetent to be witnesses. some exceptions to this rule. Whenever But lunatics and persons temporarily inthe hearsay or declaration accompanies a sane, are, in their lucid intervals, or returns fact, or, as it is often expressed, is a part of reason, restored to their competency. of the res gesta, it may be evidence. So A person deaf and dumb, if he has suffiin cases of pedigrees, and of prescriptions, cient understanding, and can, by signs, customs and boundaries, where, from the make known his thoughts through an innature of the title, the facts are of great terpreter, or otherwise, is competent. But antiquity, or, ordinarily, other proofs could a person deaf, dumb and blind, would be not be presumed to exist, hearsay or repu- deemed incompetent. Children are adtation is admitted as evidence. A monu- missible as witnesses as soon as they have ment, or tomb-stone, or family bible, stat- a competent share of understanding, and ing a relationship, is, upon this ground, know and feel the nature of an oath, and admitted as evidence of the relationship, of the obligation to speak the truth. There as it would be of the death of a party. can, therefore, scarcely be ussigned any So declarations of parents, either written precise age fixed for the admission of or oral, of the legitimacy and births of their them as witnesses. A child of five years children, especially if such declarations be of age is not necessarily incompetent, if before any litigation has arisen (lis mota), he or she has sufficient reason, and a are admissible, after their decease, in proof knowledge of the obligation and nature of of the fact. But it has been lately said, an oath ; although, certainly, at such an that such declarations, made post litem age, there ought to be great hesitation in motam, are not admissible. The admis- admitting or relying on such testimony, sion of hearsay, too, is limited in extent, and it ought to have little weight, if uneven in these classes of cases. It is ad- corroborated by other proof. And the initted only to prove public or general like circumstances would govern the case rights, and matters of general reputation. of persons, whose memory and underBut it is said to be inadmissible to prove standing are greatly impaired by age. If mere private rights, or particular facts; as, they have too little mind to know the for instance, upon a question of boundary, value of truth, or to understand or retnut a post was put down in a particular member facts, they are incompetent. But spot; or in a case of birth, that the birth if they are not thus deficient, they are adwas in a particular place; or that a party missible, and their credit is to be left to

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