lies, which should be regarded as mere exceptions, and which should speak only in the voice of warning, is no less unprofessional than impolitic; and should be regarded as offensive to the intelligence both of the court and jury. The like reprobation applies to that unworthy use, so often resorted to by professional gentlemen, in the citation of remarkable cases under the head of circumstantial evidence, as if their only legitimate application was to destroy all confidence in such testimony. Counsel should never forget that circumstantial proof, when justly applied, is often entitled to even more consideration than the positive testimony of any witness; and that if it has been occasionally relied on as the only means of establishing guilt, it has been as often appealed to for the vindication of innocence,—and that it is as likely to have been misapplied in the one case as in the other. It is, therefore, manifest that confessions and circumstantial evidence are entitled to a known and fixed standing in the law; and whilst it behooves students and lawyers to examine, and carefully weigh their just force; and, as far as practicable, to define their proper limits, the advocate should never be induced by professional zeal, or a less worthy motive, to argue against their existence, be they respectively invoked, either in favour of, or against the accused.

The British, Continental, and American sources on the extensive doctrines of Evidence are very numerous. The plan of rendering this volume, in addition to its main object, in some degree, a source of bibliographical knowledge, leads us to subjoin the following list of treatises, &c. on the subject.

I. BRITISH AND AMERICAN WORKS ON EVIDENCE.

1. Lord C. B. Gilbert's Law of Evidence, enlarged by Capel Lofft. Dublin, 1797.

2. Morgan's Essays on Evidence, &c. 3 vols. 1789.

3. Peake's Compendium of the Law of Evidence. London, Randall's Amer. edition, 1812. Norris' Amer.

1801. edition, 1824.

4. Theory of Presumptive Proof; or an Enquiry into the nature of Circumstantial Evidence. London, 1815. 5. Phillipps' Treatise on the law of Evidence, 2 vols. Dunlap's American edition, 1816.

6. M'Kinnon's Philosophy of Evidence.

7. Swift's Digest of the Law of Evidence.

necticut, 1810.

London, 1812.
Hartford, Con-

8. 'Espinasse's Practical Treatise on the Settling of Evidence

for Trials at Nisi Prius. Amer. edit. 1822.

9. Bayard's Digest of American Cases on the Law of Evi

dence. Philadelphia, 1810.

10. Saunders on Evidence, [vide his work on Pleading and Evidence, 2 vols. London, 1828. Amer. edi. 1829.] 11. Matthews' Treatise on the Doctrine of Presumption and Presumptive Evidence, as affecting the title to real and personal property. London, 1827.

12. Starkie's Practical Treatise on the Law of Evidence, 3 vols. First American, from first London edition, by Metcalf, Boston, 1826. Fifth American, from the second London edition, by Metcalf, Ingraham, and Gerhard. Philadelphia, 1834.

13. Van Heythuysen's Marine Evidence. London, 1819. 14. Garde's Practical Treatise on the General Principles and Elementary Rules of the law of Evidence. London,

1830.

15. Wigram's Examination of the Law of Extrinsic Evidence, in aid of the Interpretation of Wills. London, 1831. 16. Roscoe's Digest of the Law of Evidence on the Trial of Actions at Nisi Prius, 2d edition. London, 1831.

17. Harrison's Law of Evidence. London, 1832.

18. Lawes' Suggestions as to Evidence.

19. Bentham's Rationale of Evidence-and the Treatise on

Judicial Proofs.

20. Proposed amendments and consolidation of the English law of Limitation, Presumption, and Evidence-vide Miller's Inquiry into the present state of the Civil Law of England, page 356 to 362.

II. CONTINENTAL SOURCES OF THE LAW OF EVIDENCE. 1. Essai sur la nature, les différentes especes et les divers degrés de force des Preuves, par M. Gabriel, 2 vols. Evo. Bouillon, 1790. Nouvelle édition, revue, et mise en harmonie avec les nouveaux Codes, par Solon, avocat Toulouse, 1824.

This work is usually bound two volumes in one. 2. Traité de la preuve par témoins, en matière civile, avec le commentaire de J. Boiceau sur l'art. 54 de l'ordonnance

de Moulins, par Danty. Paris, 1789.

3. Disputatio de probatione per libros mercatorum, auctoGuill Blanchard, 1787.

4. De probatione per libros mercatorum, aucto J. N. Schaffhausen, 1795.

5. J. Menochii, de Præsumptionibus, conjecturis, signis, et indiciis. Geneva, 1724, folio.

6. J. Mynsingeri-Commentarius in titulum De Fide Instrumentorum, 1602, 8vo.

7. Mascardi de Probationibus conclusiones, 1731, 4 vols. folio. 8. Traité sur la preuve par comparaison d'ecritures, par L. P. Vallain. Paris, 1761.

9. Mémoire en réponse à l'ouvrage de M. Vallain.

To

these we may add the similar treatises of Raveneau, in

1666, of de Bligny, in 1699, of d'Autrepe, in 1761, and

of M. de la Chalotais, in 1766.

10. J. A. Joubert, de evidentia universi et probationibus in judicio. Ludg-Batav. 1815.

(Note 18.) SELWYN'S NISI PRIUS.-That arrangement of the English courts, familiarly called the 'Nisi Prius System,' presents an admirable scheme for the administration of justice, in the first instance, and for its subsequent review and correction. The object is to have the cause tried on the spot where it arose, and to reserve legal questions of doubt, springing out of it, for the final decision of the high courts of Westminster Hall; thus speedily disposing of causes, and bringing important points to be decided, where the greatest learning and ability may pass upon them—and lastly, promoting thereby a homogeneous system of legal decisions. courts, though not unknown in this country, is far from being general. It seems to be a conceded doctrine that cases decided merely at Nisi Prius, however long they may have passed without censure, or animadversion, are, per se, of less authority than judgments given in Westminster Hall; for, unless the contrary manifestly appear, such cases seem to have a presumption against them, that they may have been hurriedly decided,—and that they may have been affected by all, or any of those circumstances inherent in the tribunal, unfavourable to a grave and thorough investigation. The student, on consulting the following cases, will find this view taken by the courts at Westminster, when adverting to decisions at Nisi Prius. Vide 2 Du. and Ea. 73. 3 Du. and Ea. 261. 5 Du. and Ea. 409. 1 Wm. Black. 263. 2 Burrow, 1081. 4 Taunton, 810. 5 Taunt. 195. 2 Bingham, 90. 3 Barnwall and Creswell, 143. 3 Barnwell and Aldesson, 341.

The nisi prius organization of

But a system of Nisi Prius law does not consist of decisions ruled merely in these courts. A treatise on that law embraces the entire scheme of rules and principles which ought to govern in the trial and decision of any cause before a judge and jury in Nisi Prius courts; and consequently, derives its lights not merely from what may be therein decided, but from every other authoritative source. It deals principally with the forms of actions,-the pleadings and evidence appropriate to each, the modes of trial,-the proceedings of practice,—and finally, with every matter relating to the trial of issues of fact and of law, and the removal of points to the superior courts, for final adjudication.

Treatises on this important and extensive branch ought to be carefully studied: they are not only eminently practical, but as they embrace a very large portion of the law, they introduce the student not merely to what is peculiar to the subject, and therefore, probably new to him, but they serve, also, to refresh his memory, and to impress on his mind most of what he may have previously studied, in nearly every department of real and personal law,-and, indeed, excluding little else than what are peculiar to the courts of equity and admiralty.

The following are the treatises under this head, chronologi. cally arranged, the subject eo nomine, being wholly unknown to the bibliotheca legum, prior to the year 1760.

1. Onslow's Institutes of the Law relative to Trials at Nisi

Prius. London, 1760.

2. Buller's Introduction to the Law relative to Trials at Nisi Prius, 1 vol. 1770, 7th edition, greatly enlarged and improved by R. W. Bridgman. London, 1817.

3. Espinasse's Digest of Actions and Trials at Nisi Prius, 2 vols. 1789. [There have been many English editions,