d more recent, in
order to discover what those rules of evidence, in any sort applicable
to criminal cases, were, which were supposed to stand in the way of the
trial of offences committed in India.

They find that the term Evidence, _Evidentia_, from whence ours is
taken, has a sense different in the Roman law from what it is understood
to bear in the English jurisprudence; the term most nearly answering to
it in the Roman being _Probatio_, Proof, which, like the term
_Evidence_, is a generic term, including everything by which a doubtful
matter may be rendered more certain to the judge: or, as Gilbert
expresses it, every matter is evidence which amounts to the proof of the
point in question.[41]

On the general head of Evidence, or Proof, your Committee finds that
much has been written by persons learned in the Roman law, particularly
in modern times,--and that many attempts have been made to reduce to
rules the principles of evidence or proof, a matter which by its very
nature seems incapable of that simplicity, precision, and generality
which are necessary to supply the matter or to give the form to a rule
of law. Much learning has been employed on the doctrine of indications
and presumptions in their books,--far more than is to be found in our
law. Very subtle disquisitions were made on all matters of jurisprudence
in the times of the classical Civil Law, by the followers of the Stoic
school.[42] In the modern school of the same law, the same course was
taken by Bartolus, Baldus, and the Civilians who followed them, before
the complete revival of literature.[43] All the discussions to be found
in those voluminous writings furnish undoubtedly an useful exercise to
the mind, by methodizing the various forms in which one set of facts or
collection of facts, or the qualities or demeanor of persons,
reciprocally influence each other; and by this course of juridical
discipline they add to the readiness and sagacity of those who are
called to plead or to judge. But as human affairs and human actions are
not of a metaphysical nature, but the subject is concrete, complex, and
moral, they cannot be subjected (without exceptions which reduce it
almost to nothing) to any certain rule. Their rules with regard to
competence were many and strict, and our lawyers have mentioned it to
their reproach. "The Civilians," it has been observed, "differ in
nothing more than admitting evidence; for they reject _histriones_, &c.,
and whol