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EVELYN, John; an ingenious cultivator of philosophy and the liberal and useful arts in England in the 17th century. He was the son of Richard Evelyn, esquire of Wotton, in Surrey, where he was born, October 31, 1620. He was entered as a student at Baliol college, and thence removed to the Middle Temple. The civil war induced him to leave England; and he spent some years in France and Italy. He returned home in 1651, and, in 1656, published a poetical version of the first book of Lucretius. He made some efforts in favor of the royal cause in 1659; on which account he was much favored by Charles II, after his restoration. In 1662, he published his Sculptura, or the History and Art of Chalcography, or Engraving on Copper, 8vo., reprinted in 1755. On the foundation of the royal society, he was nominated one of the first fellows; and at its meetings he read a discourse on forest trees, which formed the basis of his most celebrated publication. This was Sylva, or a Discourse of Forest Trees, and the Propagation of Timber in his Majesty's Dominions; to which is annexed, Pomona, or an Appendix concerning Fruit Trees, in relation to Cider, &c. (1664, fol.); a work several times reprinted, particularly in 1776 and 1812, with the improvements of doctor Andrew Hunter. As a sequel to this treatise, he published Terra, a Philosophical Discourse of Earth, relating to the Culture and Improvement of it for Vegetation and the Propagation of Plants (1675, folio). This also was edited by doctor Hunter in 1778. Mr. Evelyn was appointed one of the commissioners of the sick and wounded seamen in 1664; and also a commissioner for rebuilding St. Paul's cathedral. When Charles II formed a board of trade, he was nominated one of the members; and

on this occasion he drew up a small tract on navigation and commerce. In the reign of James II, he was one of the commissioners for executing the office of privy seal during the absence of the earl of Clarendon in Ireland. He continued in favor at court after the revolution, and was made treasurer of Greenwich hospital. He died February 27, 1705-6. The memoirs of Evelyn, comprehending an interesting diary and correspondence, were published by W. Bray, esquire, 1819, 2 vols. 4to.; and more recently his miscellaneous works have been collected and given to the public. They include treatises on gardening, architecture, medals, &c., besides a curious tract, entitled Mundus muliebris; or, the Ladies' Dressing Room unlocked and her Toilette spread, in Burlesque; together with the Fop's Dictionary, or Catalogue of Hard Names and Terms of the Art Cosmetic, &c., first printed in 1690.

EVERDINGEN; the name of a celebrated Dutch family of painters. Of these, Casar van Everdingen was distinguished as a portrait and historical painter and architect. He was born at Alcmaer, 1606, died 1679. His younger brother Alder van Everdingen, was a celebrated landscape painter, born 1621. His sea pieces, in which he represents the disturbed element with great truth_to_nature, are particularly celebrated. In forest scenes, too, he was a master. He is known, also, as an able engraver, by his plates to Renard the Fox. He died 1675.-The youngest brother, John, born 1625, was a lawyer, and painted only for his own amusement.

EVERTSEN, John, admiral of the Dutch fleet, died 1666., In his time, the naval power of the Dutch was raised to its highest point. The victories of Ruyter, Tromp and Vassenaer had made the flag

of Holland respected by all nations; and several members of the Evertsen family, which originally belonged to Zealand, all companions and pupils of those naval heroes, followed worthily in the steps of their great leaders. A brother of John Evertsen, named Cornelius, likewise admiral in the service of the republic, died for his country at the bloody battle of July 15, 1666, against the English. John was at that time retired from the service; but no sooner had he received the news of his brother's death, than he wrote to the states-general as follows: "I wish to enter again into active service, and to devote myself for my country. My father, my four brothers and my son, have already fallen honorably in the cause of the republic, Let me be permitted, like them, to die in my country's service." The wish of the gallant man was fulfilled. Aug. 4 of the same year, he lost a leg in a battle with the English, and died, a few days after, of his wounds. The province of Zealand erected a splendid monument to the memory of John and Cornelius, at Middleburg, where their ashes are deposited with those of two others of the family, afterwards laid there, viz., admiral Cornelius Evertsen (a son of John Evertsen), who died 1679, and Galin Evertsen (likewise an admiral in the Dutch service, and a descendant of the elder Cornelius Evertsen), who died 1721.

EVIDENCE, in its most general sense, means the proofs which establish, or have a tendency to establish, any facts or conclusions. It may be divided into three sorts, mathematical, moral and legal. The first is employed in the demonstrations which belong to pure mathematics; the second is employed in the general affairs of life, and in those reasonings which are applied to convince the understanding, in cases not admitting of strict demonstration; the third is that which is employed in judicial tribunals for the purpose of deciding upon the rights and wrongs of litigant parties.-Probably in every system of jurisprudence aiming at exactness, some rules are introduced, and some restrictions are allowed, in respect to evidence, different from those which belong to mere moral reasoning upon probabilities. In our discussions on this head, we shall confine ourselves altogether to the consideration of evidence in a legal view, and principally with reference to the existing rules of the common law, recognised in England and America. According to our system of jurisprudence in common law trials, it is the peculiar province of a

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jury to decide all matters of fact. The verdict of the jury is, however, to be given, and the trial is to be had, in the presence of a judge or judges, who preside at the trial, and are bound to decide matters of law, arising in the course of the trial. Whenever, therefore, a question arises, whether any thing offered as proof at such trial is or is not proper to go before the jury as evidence, that question is to be decided by the court, and, unless permitted by the court, it can never legally come to the consideration of the jury. Hence, whatever is so permitted to be brought before the jury, for the purpose of enabling them to decide any matter of fact in dispute between the parties, is, in a legal sense, evidence, and is so called, in contradistinction to mere argument and comment. This gives rise to a very important distinction, at the common law, as to the competency and the credibility of evidence. It is competent, when, by the principles of law, it is admissible to establish any fact, or has any tendency to prove it. It is credible, when, being introduced, it affords satisfactory proof of the fact. It follows, therefore, that evidence may be competent to be produced before a jury, when it may, nevertheless, not amount to credible proof, so as to satisfy the minds of the jury; and, on the other hand, it may be such, as, if before them, would satisfy their minds of the truth of the fact, but yet, by the rules of law, it is not admissible. Whether there is any evidence of a fact, is a question for the court; whether it is sufficient, is a question for the jury, when the cause is tried by a jury.Evidence is, in its nature, divisible into two sorts:-first, that which is direct and positive proof of any fact; and, secondly, that which is presumptive and circumstantial. It is again divisible, in respect to the mode or instruments of proof, into two sorts :-first, written evidence ; and, secondly, unwritten or oral evidence. We are accustomed to consider that as direct and positive evidence, which is proved by some writing containing a positive statement of the facts, and binding the party whom it affects; or that which is proved by some witness, who has, and avers himself to have, positive knowledge thereof, by means of his senses. Whenever the fact is not so directly and positively established, but is deduced from other facts in evidence, it is presumptive and circumstantial only Perhaps, in a strictly philosophical sense, much of the evidence usually denominated positive is but presumptive; for there is an admixture in it of some circumstances


of presumption, though the presumption may usually be deemed irresistible proof. For instance, a promissory note is offered in evidence, as signed by the defendant; a witness, who attested it, swears to the execution and signature of the defendant. This is usually deemed positive proof; and yet it will be at once perceived, that it rests on the credibility of the witness, and the presumption that he has sworn what is true, which is a fact, that, in its nature, is not capable of absolute proof. But, however this may be, in a practical sense, the distinction above stated is sufficiently intelligible and well-settled for all the purposes of human life.

I. As to presumptive evidence. It must be obvious that in a very great proportion of the questions of fact arising in the litigations before judicial tribunals, the proofs must be of a merely presumptive nature. The want of written proofs; the death, or defect of memory, or treachery, of witnesses; the temptations to suppress evidence; the very nature of the transaction itself, founded in fraud, or in secret contrivances, or in personal confidence; all these, and many other considerations, require us to recur perpetually to presumptive evidence. And especially is this true in respect to public crimes; for these are rarely committed under such circumstances as lead to positive, unequivocal evidence of them. All presumptions are necessarily founded upon the connexion which human experience demonstrates usually to exist between a certain fact or circumstance, and other facts and circumstances. When the one occurs, the others are presumed to accompany them. Some presumptions of this nature are so strong and irresistible, that the law adopts them as presumptiones juris et de jure. Others, again, are left to be judged of according to the weight, which the court and jury may think them entitled to, taken in connexion with all the other circumstances of the particular case. There are other presumptions, or rather circumstances of presumption, which are so uncertain and unsatisfactory in their own nature, that the law rejects them, as unworthy of any credit, and too unsafe to found any judgment upon. And presumptions, favorable or unfavorable, often arise from the conduct, or motives, or want of motives, or character, or habits of a party, and may justly influence the decision of a case. But it would lead us too far to enter upon a full illustration of these remarks.-The common law has laid down many rules on the subject of presumptions, a few of


which it may not be improper to enumerate. One is, that a man naturally intends the end and result, which must be the immediate consequence of his act. This is often applied to criminal cases. If a man strikes another with a dangerous weapon, and the effect of the blow would naturally produce death, he is deemed to intend to kill; and, under such circumstances, he will not be permitted to set up as a defence, that it was beside his intention. If a man strike another on the head with a heavy axe, so that his head is split open, and he instantly dies, the offender will not be permitted to excuse himself by pretending that he had no intention to kill. In our law, malice is a necessary ingredient in the crime of murder; and if a man kill another upon slight provocation, or use weapons, which are necessarily dangerous to life, or conduct himself in a very cruel and brutal manner, the presumption of the law is, that the act is malicious, and this presumption will prevail against any evidence of mere private intention to the contrary.-Another presumption of law is, that a man is innocent, until some proof is offered, that he is guilty of a crime. He is not bound, in the first instance, to show his innocence, for the law imputes no wrong to him without some proof. But as soon as such proof is offered against him, the presumption disappears, and, under particular circumstances, the burden of proof is on him to establish his innocence. For instance, if one man is proved to have killed another, the law presumes the act malicious, unless circumstances arising from the evidence produced against him repel that conclusion; and therefore he is required satisfactorily to establish all the circumstances of accident, necessity or infirmity, on which he relies for his defence.-These are instances in criminal cases. And there are many rules of presumption of a like nature in civil cases; some of which are conclusive, and others, again, which are liable to be rebutted by counter evidence; some founded on natural reasoning, and others, again, upon artificial grounds. Among these are the following: Every person is presumed to have done an act, the omission of which would be criminal in him, until the contrary is shown. Fraud is not to be presumed. A party is to be presumed to continue in life until the con trary is made probable. Where the prin cipal act or title is proved, all the collateral circumstances to give it effect will also be presumed. A debt will be presumed paid after a long, unexplained lapse of time

Some presumptions of this nature are artificial. Thus, in our law, a bond will be presumed to be wholly paid after 20 years, where there have been no intermediate payments or recognitions of the debt. A man will be presumed to be dead after an absence of 7 years, unexplained. An heir will be presumed to be in possession of land, of which his ancestor died seized. After 20 years enjoyment of an easement or servitude, a title will be presumed.On the other hand, there are certain presumptions, which the law rejects (as has been already stated), because of their unsatisfactory nature and tendency. Thus, it is a general rule, that hearsay, or mere -report and reputation of a fact, is not evidence, for this amounts to no more than the mere declarations of third persons, not under oath, and of facts of which they may have no certain knowledge. Our law generally requires, that every fact to be substantiated against a person, should be proved by the testimony of a witness (when it is to be proved orally), who is sworn to speak the truth; or, if it is dependent upon written evidence, it must be proved by evidence that is sanctioned by him, or by which he ought to be bound, as importing truth. There are, however, some exceptions to this rule. Whenever the hearsay or declaration accompanies a fact, or, as it is often expressed, is a part of the res gesta, it may be evidence. So in cases of pedigrees, and of prescriptions, customs and boundaries, where, from the nature of the title, the facts are of great antiquity, or, ordinarily, other proofs could not be presumed to exist, hearsay or reputation is admitted as evidence. A monument, or tomb-stone, or family bible, stating a relationship, is, upon this ground, admitted as evidence of the relationship, as it would be of the death of a party. So declarations of parents, either written or oral, of the legitimacy and births of their children, especially if such declarations be before any litigation has arisen (lis mota), are admissible, after their decease, in proof of the fact. But it has been lately said, that such declarations, made post litem motam, are not admissible. The admission of hearsay, too, is limited in extent, even in these classes of cases. It is adnitted only to prove public or general rights, and matters of general reputation. But it is said to be inadmissible to prove mere private rights, or particular facts; as, for instance, upon a question of boundary, that a post was put down in a particular spot; or in a case of birth, that the birth was in a particular place; or that a party

has a private right of way.-There are other cases, where the solemn declarations of parties, under whom the party to be affected by them claims, or with whom (as it is technically expressed) he is in privity of title, or estate, or blood, are good evidence; as, for example, the recital of a fact in a deed, under which the party claims title, binds him. So the testimony of a deceased witness, given upon a former trial, where the same point was in issue between the same parties. So dying declarations of a party, who has received a mortal wound, are evidence against the party accused of the crime. To go at large into this subject would require a treatise.

II. As to oral or unwritten evidence. Having considered the nature and operation of presumptive evidence, we may now pass to a consideration of some of the rules of evidence, as to witnesses when they are, and when they are not competent to give testimony. În general, it may be said that all persons, not under any known disability, are competent witnesses. Several grounds of incompetency exist, in the common law of England and America. 1. The first is, want of reason or understanding. Persons insane, lunatics and idiots, are incompetent to be witnesses. But lunatics and persons temporarily insane, are, in their lucid intervals, or returns of reason, restored to their competency. A person deaf and dumb, if he has sufficient understanding, and can, by signs, make known his thoughts through an interpreter, or otherwise, is competent. But a person deaf, dumb and blind, would be deemed incompetent. Children are admissible as witnesses as soon as they have a competent share of understanding, and know and feel the nature of an oath, and of the obligation to speak the truth. There can, therefore, scarcely be assigned any precise age fixed for the admission of them as witnesses. A child of five years of age is not necessarily incompetent, if he or she has sufficient reason, and a knowledge of the obligation and nature of an oath; although, certainly, at such an age, there ought to be great hesitation in admitting or relying on such testimony, and it ought to have little weight, if uncorroborated by other proof. And the like circumstances would govern the case of persons, whose memory and understanding are greatly impaired by age. If they have too little mind to know the value of truth, or to understand or remember facts, they are incompetent. But if they are not thus deficient, they are admissible, and their credit is to be left to

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