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claim it has to be approved of, and preserved unchanged. Vol. 4, p. 477.

That the law of evidence is not capable of being reduced into a written code, cannot be admitted, for a moment. Our people but yesterday signified in their constitution, their wish for the formation of "a written and systematic code," not only of the statute, but of the common law. It is too late after the discussions and achievements of the last half century, now to insist, that there is any part of the unwritten law, which cannot be reduced to a written code. Though not written in statutes, it is yet written in books, whether books of reports or elementary writers; it does not depend upon tradition; it is not handed down from memory, through successive generations, as if there were no written language; but it is preserved in writing. Whatever has been once written can be written again; wherever scattered, it can be found, gathered, digested, reconciled and arranged in one book, consisting of a series of propositions. Such a book is a code.

The codes of other countries have been thus framed. It was not expected, it could not be expected, that they would come' forth perfect at first; but time and experience wrought the necessary amendments, and the results are great national works.

One of the most distinguished members of the council of state, under Napoleon, and one who bore a part in the revision of the French codes, Count Real, wrote a few years. since, to the late eminent reformer, William Sampson of New York, in these terms:

"Courage; persevere in the support of written reason, against precedents and vague traditions. If law had no foundation but precedents, all crimes and injuries would have remained unpunished, and unredressed from the creation, till this day. The first judgment must have been guided by reason. Has reason lost its power? Precedents have been made by lawyers as articles of faith by divines. But whatever respect I may entertain for religion, I have not the same reverence for the decisions of judges. I do not believe that the march of the human mind is retrograde.

Do as we did, but do it better, profiting by our mistakes.

Let four or five good heads be united in a commission, to frame in silence the project of a code. It is not so difficult a task. It is only to consult together, and to select. Do with your best authors as we did with ours, and principally with Pothier's treatise on Obligations, which we simply converted into articles of our code. This project once formed, submit it disputationibus eorum, and you come to a result. As long as nothing is written, nothing will be done; but you will gain something the moment you have a written text for the groundwork of your discussions, how imperfect soever it may be at first. Our code was far from being adopted, as it was originally proposed in the entire. I doubt whether one hundred articles were preserved in the form in which they were presented. It will require ardent hearts, and cool heads, and resolved industry, for such a work. With these, I think, you will not fail of complete success."

With these views of the relation of evidence to the general subject of procedure, of the importance of at least beginning a code of the common law, and of our obligations, under the law of our appointment, we submit to the Legislature the following portion of our work.

§ 1659. Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact.

§ 1660. Proof is the effect of evidence, the establishment of a fact by evidence.

§ 1661. The law of evidence, which is the subject of this part of the code, is a collection of general rules established by law,

1. For declaring what is to be taken as true, without proof:

2. For declaring the presumptions of law, both those which are disputable and those which are conclusive; and

3. For the production of legal evidence:

4. For the exclusion of whatever is not legal:

5. For determining in certain cases the value and effect of evidence.

We are told occasionally of the law of evidence, as of the other branches of the law, that its rules are well defined, well understood, and stable. The entire opposite would be nearer the truth. The books abound with contradictory, fluctuating, and inconsistent opinions. The following may be taken as specimens:

Lord Mansfield said, in the case of Lowe against Joliffe, (1 Bl., 366,): "We do'nt now sit here to take our rules of evidence from Siderfin or Keble."

Lord Kenyon: "All questions upon the rules of evidence are of vast importance to all orders and degrees of men; our lives, our liberty, and our property, are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now revered from their antiquity and the good sense in which they are founded: they are not rules depending on technical refinements, but upon good sense; and the preservation of them is the first duty of judges." 3 Term Rep., 721, King vs. Eriswell.

The same Lord Kenyon, in Bent vs. Baker, 3 Term. Rep. 32. "I premise with mentioning what was said by Lord Mansfield on this subject, that the old cases, upon the competency of witnesses, have gone upon very subtle grounds. I must acknowledge that there have been various opinions upon this subject, and that it is impossible to reconcile all the cases." 33.

Ashhurst, "There is so great a contradiction in decisions respecting the boundaries of evidence, that I rather choose to

give my opinion on the particular circumstances of the case, than to lay down any general rule on the subject." 3 Term Rep. 34.

Buller, on the same occasion: "This case involves in it the question which has been so repeatedly agitated in courts of law, what objections go to the credit, and what to the competency of the witness: than which no question is more perplexed."

Grose, on another occasion: "The distinction between competency and credit is by no means accurately settled: in many of the books, the shade between them is so light that the boundaries of either can hardly be perceived. But in all the books which treat of evidence, there are certain technical rules laid down, which are highly beneficial to the public, and ought not to be departed from."

§ 1662. The law does not require demonstration, that is, such a degree of proof as, excluding possibility of error, produces absolute certainty; because such proof is rarely possible. Moral certainty only is required, or that degree of proof, which produces conviction in an unprejudiced mind.

§ 1663, There are four kinds of evidence:

1. The knowledge of the court:

2. The testimony of witnesses:

3. Writings:

4. Other material objects presented to the senses.

§ 1664. There are several degrees of evidence:

1 Original and secondary:

2. Direct and indirect :

3. Primary, partial, satisfactory, indispensible and conclusive.

1665. Original evidence is an original writing or material object introduced in evidence.

§ 1666. Secondary evidence is a copy of such original writing or object, or oral evidence thereof.

§ 1667. Direct evidence is that which proves the fact in dispute, directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. For example, if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it, is direct.

§ 1668. Indirect evidence is that, which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example, a witness proves an admission of the party to the fact in dispute. This proves a fact, from which the fact in dispute is inferred.

§ 1669. Primary evidence is that, which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. For example, the certificate of a recording officer is primary evidence of a

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