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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

CHAPTER IV.

MODES OF DEAUTHENTICATION IN THE CASE OF WRITTEN EVIDENCE.

In the question relative to authenticity, the affirmative proposition is, as already observed, except in here and there an extraordinary instance, the true one. The affirmative is, therefore, under that exception, the proposition that comes to be proved: the negative, not; except in the extraordinary instances just spoken of. But, since instances of this description, how extraordinary soever, are unhappily found to exist, hence an operation opposite to authentication comes sometimes to be performed. Correspondent, in good measure, to the list of modes of authentication, will consequently be the list of modes of deauthentication. In the main, they will consist of the negation, or the reverse, of the modes of authentication: but with some variations and additions, as the tenor of them will show.

Modes of deauthentication:—sources from which a persuasion that the document in question is spurious or falsified, may be obtained.

I. Direct evidence:—

1. Testimony (disaffirmative) of attesting witnesses: i. e. of persons mentioned in the instrument as attesting witnesses.

2. Testimony (disaffirmative) of non-attesting witnesses; i. e. of persons not mentioned in the instrument as attesting witnesses.

3. Testimony (disaffirmative) of the party against whom the document is produced, and who denies his having authenticated it; denies the handwriting to be his; or, if signed as if by him, denies the signature to be his signature.

4. Testimony (disaffirmative and confessorial) of the party by whom it is produced (viz. the party in the cause;) and who, on being cross-examined or otherwise, confesses, either that he himself bore no part in the document in question, or that the other supposed party to the transaction (whether a party to the suit or no) bore really no part in it; in a word, that in one way or other it is spurious; or that, if there are certain portions of it in which they respectively bore a part, there are others in which they respectively did not bear any part: that is, that, in respect of a certain portion or portions of it, it has been falsified.

5. Hearsay evidence: testimony of any person whatever (attesting witness, non-attesting witness, or party,) declaring himself to have heard (on the part of an attesting witness, a non-attesting witness, or a party, by or in whose favour the document is produced) a discourse amounting to an assertion of its being spurious, or having been falsified.*

II. Circumstantial evidence:—

1. Dissimilitude of hands, deposed to ex visu scriptionis.

2. Ditto, ex scriptis olim cognitis.

3. Ditto, ex scripto nunc viso; the document in question being now inspected by some scientific eye, and, on being confronted with other scripts indubitably from the same pen, pronounced dissimilar.

4. Ditto, from the appearance of its being a feigned hand.

5. Presumption ex custodiâ: the party producing it, or a person through whose hands it has passed, being the person who in case of success would be a gainer by having fabricated or falsified it, or procured it to be fabricated or falsified, to the effect suspected.

6. Presumption ex tenore: marks of spuriousness or falsification apparent on the face of it.

Indications of spuriousness or falsification, apparent on the face of a written discourse, may be presented either by the physical entities of which the signs are composed, or by the consideration of the discourse signified.

I. Indications afforded by the paper, parchment, or other substratum, on which the colouring matter is laid:—

1. Paper, if of a date known to be posterior to the date apparent on the face of the instrument, a certain proof of spuriousness.

2. Paper,—if in any part the surface exhibit a roughness and comparative thinness, such as would be produced by an erasure (i. e. the scratching of an edged or pointed instrument,)—a cause for suspecting falsification.

3. Paper,—if, in any part which appears to have been written upon (as, for example, in the middle of a line of writing,) a stain appears, such as might have been produced by a solvent, applied for the purpose of dissolving the ink or other colouring matter of which the characters are composed,—another cause for suspecting falsification.

N. B.—Indications Nos. 2 and 3, apply alike to parchment, vellum, or any other substratum consisting of skin.

4. Ink. If the colour of the ink, being uniform throughout, appear of a colour fresher than what (as supposed) it would have been if written at the time of the date, this freshness may be thought to afford some suspicion of spuriousness. Very little reliance, however, can safely be placed upon this circumstance. In respect of quality of colour, intensity of colour, and glossiness, the difference may be as great between two inks made at the same time, as between two inks made at different times.

5. Ink. If the appearance of the ink be different in different parts of the same writing, such difference may afford a ground for suspecting falsification. In this case, the reason may be considerably stronger than in the last preceding one. If, to an ink employed in the first instance, there succeeds another sort of ink, which continues to be employed to the end, scarce any cause of suspicion can be afforded by this change: the natural interpretation is, that the penman, not being satisfied with the ink, or perhaps with the pen that he found in one inkstand, betook himself to another ink, or to another pen that he found in another inkstand. The only case in which any considerable cause of suspicion can be deduced from this source, is that in which the different kind of ink appears in spots and patches, having ink of the first appearance on each side of it.* In this case, two other indications will be to be looked out for: 1. Marks of a discoloration or stain, or of roughness and thinness, according to the nature of the chemical or mechanical means employed for the obliteration of the preexisting characters; 2. The probable import and importance of the words obliterated, as deducible from the context.

II. Indications of spuriousness or falsification afforded by the nature of the discourse signified:—

1. In the script in question, mention (direct, or in the way of allusion more or less oblique) made of facts of later date; i. e. of facts that did not come into existence but at a time posterior to the date expressed on the face of the instrument. Facts; viz. things, persons, or events; or situations or other appearances of things or persons.*

2. In the script in question, words or combinations of words, or modes of spelling, known not to have been in use but at a time posterior to the date.

3. In the script in question, mention made of pretended facts, of the non-existence of which the individual in question is, from other sources, known to have been conscious: supposed facts, for example, inconsistent with other facts, of the existence of which he is known to have been conscious. In a deed (for example) recital of a fact, the falsity of which could not but have been known to him at the time. From this circumstance, it is evident, no indication of spuriousness or falsification can be deduced, any further than as the absence of mendacity on the part of the supposed author is assumed.

4. In the script in question, it being a contract (viz. either an instrument of conveyance or an instrument of engagement,) engagements or conveyances incompatible with prior conveyances made, or engagements entered into, by the individual in question, or known by him to have been respectively made or entered into by those in whose place, in that respect, he stands. From this circumstance, no indication of spuriousness or falsification can be deduced, any further than as the knowledge on his part of the disposition of law in this behalf, and the absence of improbity on his part in this respect, are assumed.

5. In the script in question, indications of a character manifestly superior or inferior to that of the individual in question, in respect of learning, intelligence, veracity, or any other branch of morality, as established by other writings, discourses, or actions of his, sufficiently ascertained. This indication is in a manner confined to scripts belonging to the head of casually written evidence, such as letters, memorandums, and literary compositions; in contradistinction to such as belong to the respective heads of private contractual evidence and official evidence.

6. In the script in question, opinions, affections, or tastes, manifestly opposite to those of the individual in question, according to information satisfactorily deduced from other sources. This again is in a manner confined to casually written evidence, as above.

7. In the script in question, the style, phraseology, or mode of spelling, manifestly dissimilar to those of the individual in question, ascertained from other sources. The idea attached to the word style being as yet extremely vague, the indication grounded on it will be proportionably vague. Another indication that applies principally to written evidence of the casual kind, as above.

8. In the script in question, the style or phraseology manifestly dissimilar to that in use in the office in question. This, upon the face of it, applies exclusively to official evidence.

[* ]Hearsay evidence of this description (the supposed extrajudicial evidence of the supposed percipient witness, being supposed to have been delivered mortis causâ) has actually been admitted, and, as it should seem, credited, in English law. “In ejectment,” says Hawkins, “when a will was produced on the part of the plaintiff, subscribed by three witnesses, two of whom were dead, and the third witness on her cross-examination swore, that while she was attending one of the deceased witnesses in his last illness, and about three weeks before his death, he pulled the will in question from his bosom, and acknowledged and declared to her that the said will was forged by himself; this was held good evidence.”—Hawkins, 50. [Vide supra, p. 156. Note †.]

[* ]In a little work, called “The Theory of Presumptive Proof; or, an Inquiry into the Nature of Circumstantial Evidence, including an Examination of the Evidence on the Trial of Captain Donellan, London, 1815,” the following curious case is stated.—Ed.

“John Hawkins and George Simpson were indicted for robbing the mail, on the 16th of April 1722. Hawkins, in his defence, set up an alibi; to prove which, he called one William Fuller, who deposed, that Hawkins came to his house on Sunday the 15th of April, and lay there that night, and did not go out until the next morning. Being asked by the Court, ‘By what token do you remember that it was the 15tha of April? He replied, ‘By a very good token; for he owed me a sum of money for horse-hire, and on Tuesday, the 10th of April, he called upon me and paid me in full, and I gave him a receipt; and I very well remember, that he lay at my house the Sunday night following.’ The receipt was now produced. ‘April the 10th, 1722. Received of Mr. John Hawkins, the sum of one pound ten shillings, in full of all accounts, per me William Fuller.’ Upon inspecting the receipt, the Court asked Fuller who wrote it; he replied, ‘Hawkins wrote the body of it, and I signed it.’ Court—‘Did you see him write it?’ Fuller—‘Yes.’ Court—‘And how long was it after he wrote it, before you signed?’ Fuller—‘I signed it immediately, without going from the table.’ Court—‘How many standishes do you keep in the house?’ Fuller—‘Standishes?’ Court—‘Aye, standishes; it is a plain question.’ Fuller—‘My Lord, but one; and that is enough for the little writing we have to do.’ Court—‘Then you signed the receipt with the same ink that Hawkins wrote the body of it with?’ Fuller—‘For certain.’ Court—‘Officer, hand the receipt to the jury. Gentlemen, you will see that the body of the note is written with one kind of ink, and the name at the bottom with another very different; and yet this witness has sworn, that they were both written with the same ink, and one immediately after the other. You will judge what credit is to be given to his evidence!’

“Thus the authenticity of the receipt, and the credit of the witness, were overthrown by the sagacity of the Court! But while the judge, Lord Chief Baron Montague, was summing up the evidence, he was interrupted by the following occurrence: the person who reports the trial was then taking notes of the proceedings; his ink, as it happened, was very bad, being thick at the bottom, and thin and waterish at the top, so that, accordingly as he dipped the pen, the writing appeared very pale or pretty black. This circumstance being remarked by some gentlemen present, they handed the book to the jury: the judge perceiving them very attentively inspecting it, called to them—‘Gentlemen, what are you doing? What book is that?’ They told him, that it was the writer’s book, and that they were observing how the same ink appeared pale in one place, and black in another. The judge then told them—‘You ought not, Gentlemen, to take notice of anything but what is produced in evidence;’ and, turning to the writer, demanded—‘What he meant by showing that book to the jury?’ And being informed by the writer, that it was taken from him, be inquired ‘who took it, and who handed it to the jury?’ But this the writer could not say, as the gentlemen near him were all strangers to him, and he had not taken any particular notice of the person who took his book.

“That a jury ought not to take notice of anything but what is produced in evidence, has been said to be law; but, on the contrary, it has been held, and surely very properly, that a juryman may find from his own knowledge; indeed, what evidence can convince a person that that is which he knows not to be?

“Hawkins and Simpson were convicted and executed: indeed, the evidence against them was very strong; but, had the fate of Hawkins depended upon the single testimony of Fuller, he would, but for this occurrence, have fallen a sacrifice to the acuteness of the judge! who appears to have been much displeased at the accidental confutation of his remarks on the receipt, although it was an accident in favour of life; and, had it not been a case where other evidence was so strong against the accused, it must have been looked upon as the special interposition of Providence.”

[* ]See Book I. Chap. III.

[* ]In a little work, called “The Theory of Presumptive Proof; or, an Inquiry into the Nature of Circumstantial Evidence, including an Examination of the Evidence on the Trial of Captain Donellan, London, 1815,” the following curious case is stated.—Ed.

“John Hawkins and George Simpson were indicted for robbing the mail, on the 16th of April 1722. Hawkins, in his defence, set up an alibi; to prove which, he called one William Fuller, who deposed, that Hawkins came to his house on Sunday the 15th of April, and lay there that night, and did not go out until the next morning. Being asked by the Court, ‘By what token do you remember that it was the 15tha of April? He replied, ‘By a very good token; for he owed me a sum of money for horse-hire, and on Tuesday, the 10th of April, he called upon me and paid me in full, and I gave him a receipt; and I very well remember, that he lay at my house the Sunday night following.’ The receipt was now produced. ‘April the 10th, 1722. Received of Mr. John Hawkins, the sum of one pound ten shillings, in full of all accounts, per me William Fuller.’ Upon inspecting the receipt, the Court asked Fuller who wrote it; he replied, ‘Hawkins wrote the body of it, and I signed it.’ Court—‘Did you see him write it?’ Fuller—‘Yes.’ Court—‘And how long was it after he wrote it, before you signed?’ Fuller—‘I signed it immediately, without going from the table.’ Court—‘How many standishes do you keep in the house?’ Fuller—‘Standishes?’ Court—‘Aye, standishes; it is a plain question.’ Fuller—‘My Lord, but one; and that is enough for the little writing we have to do.’ Court—‘Then you signed the receipt with the same ink that Hawkins wrote the body of it with?’ Fuller—‘For certain.’ Court—‘Officer, hand the receipt to the jury. Gentlemen, you will see that the body of the note is written with one kind of ink, and the name at the bottom with another very different; and yet this witness has sworn, that they were both written with the same ink, and one immediately after the other. You will judge what credit is to be given to his evidence!’

“Thus the authenticity of the receipt, and the credit of the witness, were overthrown by the sagacity of the Court! But while the judge, Lord Chief Baron Montague, was summing up the evidence, he was interrupted by the following occurrence: the person who reports the trial was then taking notes of the proceedings; his ink, as it happened, was very bad, being thick at the bottom, and thin and waterish at the top, so that, accordingly as he dipped the pen, the writing appeared very pale or pretty black. This circumstance being remarked by some gentlemen present, they handed the book to the jury: the judge perceiving them very attentively inspecting it, called to them—‘Gentlemen, what are you doing? What book is that?’ They told him, that it was the writer’s book, and that they were observing how the same ink appeared pale in one place, and black in another. The judge then told them—‘You ought not, Gentlemen, to take notice of anything but what is produced in evidence;’ and, turning to the writer, demanded—‘What he meant by showing that book to the jury?’ And being informed by the writer, that it was taken from him, be inquired ‘who took it, and who handed it to the jury?’ But this the writer could not say, as the gentlemen near him were all strangers to him, and he had not taken any particular notice of the person who took his book.

“That a jury ought not to take notice of anything but what is produced in evidence, has been said to be law; but, on the contrary, it has been held, and surely very properly, that a juryman may find from his own knowledge; indeed, what evidence can convince a person that that is which he knows not to be?

“Hawkins and Simpson were convicted and executed: indeed, the evidence against them was very strong; but, had the fate of Hawkins depended upon the single testimony of Fuller, he would, but for this occurrence, have fallen a sacrifice to the acuteness of the judge! who appears to have been much displeased at the accidental confutation of his remarks on the receipt, although it was an accident in favour of life; and, had it not been a case where other evidence was so strong against the accused, it must have been looked upon as the special interposition of Providence.”

[a ]The robbery was committed about two o’clock on the morning of the 16th.