pose, both the fact that complaint was made and also its details are admissible. But neither is admissible on this ground if the prosecutrix does not testify in the

case.

In conclusion, the true doctrine relative to the admissibility of this class of declarations may be summed up as follows: If the declaration accompanies the act, and limits, characterizes or explains it, the declaration forms part of the res gesta and is admissible as original evidence. If it is made soon after the commission of the crime, under such a state of mental excitement as to preclude the element of premeditation, it constitutes a spontaneous declaration, and is admissible in evidence as an exception to the rule against hearsay. If it is made a sufficient time after the commission of the crime to afford opportunity for reflection and deliberation, it constitutes a narrative of a past event, and is inadmissible in evidence, unless the purpose in introducing it is to corroborate other evidence given by the prosecutrix. But evidence of the fact that the prosecutrix made complaint is admissible, provided the purpose in introducing it is to rebut the natural presumption which arises from silence on this point, and which tends to impeach her credibility.

And, lastly, the res gesta doctrine is erroneously invoked by some courts in determining the admissibility of declarations relating to the mental condition of the declarant. As said by Professor Wigmore, "It would be well if the invocation of the res gesta doctrine in this connection could be wholly abandoned." 14 A declaration which characterizes an existing mental condition which is relevant to the issue is admissible in evidence, whether the declaration forms part of the res gesta or not. Such

14 Wigmore on Evid. vol. 3, § 1726.

mental condition may comprise intent, motive, design, feeling, etc. An intent to do a certain act, or a motive for doing it, is relevant to prove that probably it was done pursuant to such intent or motive; and such intent or motive may be shown by contemporaneous declarations which manifest such intent or motive, provided the declarations are naturally made and free from suspicion. As said by Chief Justice Field: "The fundamental proposition is that intention in the mind of a person can only be shown by some external manifestation, which must be some look or appearance of the face or body, or some act or speech, and that proof of either or all of these for the sole purpose of showing state of mind or intention of the person is proof of a fact from which the state of mind or intention may be inferred.” 15 In this case the defendant, who was on trial for murder, set up that the deceased committed suicide. In support of this plea he offered in evidence, against objection, a declaration, made by the deceased to a trance medium the day before her death, that she was pregnant and unless she got rid of her trouble she would drown herself. The trial court excluded this declaration on the ground that it formed no part of the res gesta. In reviewing the case, however, the Supreme Court correctly held that the declaration should have been admitted. doing so, however, it expressly overruled a former decision 16 involving the same point. The state of mind of the deceased at the time she made the declaration was relevant to the issue, and the declaration itself was admissible to show that state of mind.

On the other hand, as heretofore stat

15 Com. v. Trefethen, 157 Mass. 185, 31 N. E. 963.

16 Com. v. Felch, 132 Mass. 22

ed, some courts, in this class of cases, erroneously invoke the res gesta doctrine. Thus, in an Illinois case,17 a widow and her paramour were on trial for the murder of the former's husband, and they set up in their plea that the husband committed suicide. In support of this plea they offered in evidence, against objection, declarations of the deceased, made shortly before his last illness, that he intended to commit suicide by means of poison. The trial court erroneously held, however, that since the declarations formed no part of the res gesta they were inadmissible, and the Supreme Court sustained the ruling. In another case,1 18 an administrator sued a

17 Siebert et al. v. People, 143 Ill. 571, 32 N. E. 431.

18 C. & E. I. Ry. Co. v. Chancellor, 165 Ill. 438, 46 N. E. 269.

railway company for damages for negligently causing the death of the intestate, and a material fact in issue was whether the deceased, at the time of the accident, sustained the relation of intended passenger or not. To show that she did, a declaration made by her at her home to a neighbor, about an hour before she started for the railway station, that she was going to Chicago that morning on the nine o'clock train, was offered in evidence against objection. It was erroneously held by the Supreme Court, however, that the declaration was inadmissible because it was not part of the res gesta. The intention of the deceased, at the time she made the declaration, was surely a material evidentiary fact; and the declaration itself was certainly competent evidence from which that evidentiary fact might have been inferred.

New York, October 6th, 1828.

Dear Sir:-Your very kindly & friendly letter of the 15th ult. was duly received, and also your argument in the Case of Ivey vs. Pinson. I have read the Pamphlet with much interest & pleasure. It is composed with masterly ability, of this there can be no doubt, & without presuming to give any opinion. on a great case, still Sub Judice, & only argued before me on one side, I beg one side, I beg leave to express my highest respect for

1 A letter to a correspondent in Tennessee, printed in the Green Bag (Boston: Boston Book Co.), 1897, volume IX, pp. 206211, with the following note: "This letter was recently found in the old Capitol at Jackson, Miss. There is no record showing how it got there. The Thomas Washington to whom it was addressed was a lawyer of

the law reasoning & doctrine of the argument, & my admiration of the spirit, & eloquence which animate it. My attention was very much fixed on the perusal, & if there be any lawyer in this State who can write a better argument in any point of view I have not the honor of his acquaintance.

As to the rest of your letter concerning my life & studies, I hardly know what to say, or to do. Your letter & argument, & character & name have im

some note who lived at Nashville, Tenn." Reprinted from Selected Essays in AngloAmerican Legal History.

2 1763-1847. Judge of the Supreme Court of New York, 1798; Chief Justice of the same court, 1804-1814; Chancellor of New York, 1814-1823. Further biographical and bibliographical data appear in the letter.

pressed me so favorably, that I feel every disposition to oblige you, if it be not too much at my own expense. My attainments are of too ordinary a character, & far too limited, justly to provoke such curiosity. I have had nothing more to aid me in all my life than plain method, prudence, temperance & steady persevering diligence. My diligence was more remarkable for being steady & uniform, than for the degree of it, which never was excessive, so as to impair my health or eyes, or prevent all kinds of innocent & lively recreation. I would now venture to state briefly but very frankly & at your special desire, somewhat of the course & progress of my studious life I know you cannot but smile at times at 'my simplicity, but I commit myself to your indulgence & honor.

I was educated at Yale College & graduated in 1781. I stood as well as any in my class, but the test of scholarship at that day was contemptible. I was only a very inferior classical scholar, & we were not required, & to this day I have never looked into a Greek book but the New Testament. My favorite studies were Geography, History, Poetry, bellesletter, &c. When the College was broken up & dispersed in July 1779 by the British, I retired to a country village & finding Blackstone's com. I read the 4th volume, parts of the work struck my taste, & the work inspired me at the age of 16 with awe, and I fondly determined to be a lawyer. In November 1781 I was placed by my father with Mr. (now called Judge) Benson, who was then attorney general at Poughkeepsie on the banks of the Hudson, & in my native County of Dutchess. There I entered on law, & was the most modest, steady, industrious student that such a place ever saw. I read the folI read the following winter Grotius & Puffendorf in huge folios, & made copious extracts.

My fellow students who were more gay and gallant, thought me very odd and dull in my taste, but out of five of them four died in middle life drunkards. I was free from all dissipation, and chaste as pure virgin snow. I had never danced, or played cards, or sported with a gun, or drank anything but water. 1782 I read Smollets history of England, & procured at a farmers house where I boarded, Rapins History (a huge folio) and read it through; and I found during the course of the last summer among my papers, my M. S. abridgment on Rapins dissertation on the laws and customs of the Anglo Saxons. I abridged Hales history of the common law, and the old books of practice, and read parts of Blackstone again & again. The same year I procured Humes History and his profound reflections & admirable eloquence struck most deeply on my youthful mind. I extracted the most admired parts and made several volumes of M. S. S. I was admitted to the bar of the Supr. Court in January 1785, at the age of 21, and then married without one cent of property; for my education exhausted all my kind father's resources and left me in debt $400.00, which took me two or three years to discharge. Why did I marry? I answer that.

At the farmers house where I boarded, one of his daughters, a little modest, lovely girl of 14 generally caught my attention & insensibly stole upon my affections, & I before I thought of love or knew what it was, I was most violently affected. I was 21 and my wife 16 when we married, & that charming lovely girl has been the idol & solace of my life, & is now with me in my office, unconscious that I am writing this concerning her. We have both had uniform health & the most perfect & unalloyed domestic happiness, & are both as well now & in as good spirits as when we

married. We have three adult children. My son lives with me and is 26, & a lawyer, & of excellent sense, & discretion, & of the purest morals. My eldest daughter is well married, & lives the next door to me, with the intimacy of our family, my youngest daughter is now of age, she lives with me, & is my little idol.

I went to housekeeping at Poughkeepsie, 1786, in a small, snug cottage, & there I lived in charming simplicity for eight years. My practice was just about sufficient to redeem me from debt, & to maintain my wife & establishment decently, and supply me with books about as fast as I could read them. I had neglected & almost entirely forgotten my scanty knowledge of the Greek & Roman classics, & an accident turned my attention to them very suddenly. At the June Circuit in 1786, I saw Ed. Livingstone (now the codifier for Louisiana) & he had a pocket Horace & read some passages to me at some office & pointed out their beauties, assuming that I well. understood Horace. I said nothing, but was stung with sham & mortification, for I had forgotten even my Greek letters. I purchased immediately Horace and Virgil, a dictionary & grammar, and a Greek Lexicon & grammar and the testament, & formed my resolution. promptly and decidedly to recover the lost languages.

3

I studied in my little cottage mornings and devoted an hour to greek and another to latin daily, I soon increased it to two for each tonge in the 24 hours, my acquaintance with the languages increased rapidly. After I had read Horace and Virgil I ventured upon Livy for the first time in my life, & after I had

3 For the work of Edward Livingstone in American law, see Essay No. 15, Selected Essays in Anglo-American Legal History (Dillon: Bentham's Influence in the Reforms, etc.).

4

.

completed the Greek Testament I took up the Iliad, & I can hardly describe at this day with which I progressively read and studied in the original Livy & the Iliad. It gave me inspiration, I purchased a French Dictionary & grammar & begun French & gave an hour to this language daily. I appropriated the business part of the day to law, & read Co. Litt, & made copious notes. I devoted evening to English literature in company with my wife. From 1788 to 1798 I steadily divided the day into five portions, & alotted them to Greek, Latin, law and business, French & English. I mastered the best of the Greek, Latin and French classics, & as well as the best English & law books at hand & read Machiavel & all collateral branches of English history, such as Libeletines H. 2nd Bacons H. 7th Lord Clarendon on the great Rebellion, &c. I even sent to England as early as 1790 for Warbertons divine legation Lusiad.

My library which started from nothing grew with my growth, & it has now attained to upwards of 3,000 volumes & it is pretty well selected, for there is scarcely a work, authority or document referred to in the 3 volumes of my commentaries but what has a place in my own library, next to my wife, my library has been the solace of my greatest pleasure & devoted attachment.

The year 1793 was another era in my life, I removed from Poughkeepsie to the city of New York, with which I had become well acquainted, & I wanted to get rid of the incumbrance of a dull law. partner at P, but though I had been in practice nine years, I had acquired very little property. My furniture & library were very scanty, & I had not $500 extra in the world. But I owed nothing, & came to the City with good character

4 Words omitted in original.

& with a scolar's reputation. My newspaper writings, & speeches in the assembly had given me some notoriety. I do not believe any human being ever lived with more pure and perfect domestic repose & simplicity & happiness than I did for those nine years.

I was appointed professor of law in Columbia College late in 1793 & this drove me to deeper legal researches. I read that year in the original Bynkersheek Quinctillion & Ciceros rhetorical works, besides reports and digests, & began the compilation of law lectures. I read a course in 1794 & 5 to about 40 gentlemen of the first rank in the City. They were very well received, but I have long since discovered them to have been slight & trashy productions. I wanted Judicial labors to teach me precision. I dropped the course after one term, & soon became considerably involved in business, but was never fond of, nor much distinguished in the contentions of the bar.

I had commenced in 1786 to be a zealous Federalist & read everything on politics. I got the Federalist almost by heart, and became intimate with Hamilton. I entered with ardor into the federal politics against France in 1793, & my hostility to the French democracy, & to French power beat with strong pulsation down to the battle of Waterloo, now you know my politics.

I had excellent health owing to the love of simple diet, & to all kinds of temperance, & never read late nights. I rambled daily with my wife on foot over the hills, we were never asunder. In 1795 we made a voyage through the lakes George & Champlain. In 1797 we run over the 4 New England States. As I was born and nourished in boyish days among the highlands East of the Hudson, I have always loved rural & wild scenery, & the sight of mountains &

hills, & woods & streams always enchanted me, and do still. This is owing in part to early associations, & it is one secret of my uniform health & chirful

ness.

The

In 1796 I began my career of official life. It came upon me entirely unsolicited & unexpected. In Feby 1796 Governor Jay wrote me a letter stating that the office of Master in Chancery was vacant, & wished to know confidentially whether I would accept. I wrote a very respectful but very laconic answer. It was "That I was content to accept of the office if appointed." same day I received the appointment, & was astonished to learn that there were 16 professed applicants all disappointed. This office gave me the monopoly of the business of that office, for there was but one other master in N. York. The office kept me very busy in petty details and outdoor concerns, but was profitable. In March 1797 I was appointed Recorder of N. York. This was done at Albany, & without my knowledge that the office was even vacant or expected to be. The first I heard of it was the appointed announced in the papers. This was very gratifying to me, because it was a judicial office. I thought that it would relieve me from the drudgery of practice & gave me a way of displaying what I knew; & of being useful entirely to my taste. I pursued my studies with increased appetite & enlarged my law library very much. But I was encumbered with office business, for the governor allowed me to retain the other office also, & with these joint duties & counsel business in the Sup. Court, I made a great deal of money that year. In Feby 1798 I was offered by Gov. Jay & accepted the office of youngest Judge of the Supreme Court. This was the summit of my ambition. My object was to return back to Poughkeepsie, & resume