346 HISTORY OF COMMON LAW 



to use the privilege, granted so long before, in this new way. General 

 words were to be interpreted in view of what, for the time being, in any 

 age, under then existing scientific conditions and possibilities, was 

 reasonably necessary to give them full effect. 1 



It is probable that in following the course of national common law 

 too much stress has been laid in the past on climatic conditions. 

 Montesquieu, for example, attributes to the moderate temperature 

 of Japan what was in his time the severity of its criminal law. 2 A 

 simpler reason may be found in the military character impressed 

 upon it by feudal institutions, and in the prevailing want of educa- 

 tion there in the eighteenth century. 



The growth of a common law has been well illustrated by judicial 

 extensions of the rules of evidence. 



That of England shut out testimony not given under oath by one 

 who believed in the authority of the Bible. But when Englishmen 

 gained power in India and abused it, English judges allowed the 

 natives who might ask for redress at law to verify their story by 

 touching the foot of a Gentoo priest. 3 



That of England, again, shut out what the courts called hearsay. 

 If a fact was to be proved, let the man who saw or heard be pro- 

 duced, and not some one to whom he had told it, or some paper on 

 which he had written it down. A suit was brought in an American 

 court against the endorser of a note. It was vital to prove that a 

 demand for payment had been made upon the maker. As evidence of 

 this an entry by a notary public in his books was offered. The notary 

 was dead. Were he alive, it was certain that his testimony would 

 have been indispensable. Did his death give a new force to the 

 entry which he had made? The courts admitted the evidence, and 

 the ancient rule that none could be admitted that was not the best 

 of which the nature of the thing was capable was thus so modified 

 in practice as to amount to this: that if the best evidence which 

 the party can command is offered, it should be received, if it be in 

 a fair degree probative in its natural effect. 4 



Codification of anything more than certain parts of the common 

 law has been looked upon with general disfavor by Englishmen and 

 Americans. 



They fear that more would be lost than gained. In the United 

 States it is felt that codification would be closely followed by pro- 

 positions of amendments and additions, and that their legislatures 

 too often act hastily and without deliberate consideration. 



Americans have also still stronger reasons, personal to themselves. 



1 Dand v. Kingscote, 6 Meeson and Welsby's Reports, 197. 



2 De V Esprit des Lois, liv. xiv, chap. xv. 



3 Omychund v. Barker, Willes Reports, 550. 



4 Nicholls v. Webb, 8 Wheaton's Reports, 326; Thayer, Preliminary Treatise on 

 Evidence at the Common Law, 507; Plumb v. Curtis, 66 Conn. 154, 166. 



