Part 7

Chief-Justice Willes concurs with Lord Hardwicke as to dispensing with strict rules of evidence. "Such evidence," [he says,] "is to be admitted as the necessity of the case will allow of: as, for instance, a marriage at Utrecht, certified under the seal of the minister there, and of the said town, and that they cohabited together as man and wife, was held to be sufficient proof that they were married." This learned judge (commenting upon Lord Coke's doctrine, and Serjeant Hawkins's after him, that the oaths of Jews and pagans were not to be taken) says, "that this notion, though advanced by so great a man, is contrary to religion, common sense, and common humanity, and I think the devils, to whom he has delivered them, could not have suggested anything worse." Chief-Justice Willes, admitting Lord Coke to be a great lawyer, then proceeds in very strong terms, and with marks of contempt, to condemn "his narrow notions"; and he treats with as little respect or decorum the ancient authorities referred to in defence of such notions.

The principle of the departure from those rules is clearly fixed by Lord Hardwicke; he lays it down as follows:--"The first ground judges have gone upon, in departing from strict rules, is absolute strict necessity; 2dly, a presumed necessity." Of the first he gives these instances:--"In the case of writings subscribed by witnesses, if all are dead, the proof of one of their hands is sufficient to establish the deed. Where an original is lost, a copy may be admitted; if no copy, then a proof by witnesses who have heard the deed: and yet it is a thing the law abhors, to admit the memory of man for evidence." This enlargement through two stages of proof, both of them contrary to the rule of law, and both abhorrent from its principles, are by this great judge accumulated upon one another, and are admitted from necessity, to accommodate human affairs, and to prevent that which courts are by every possible means instituted to prevent,--A FAILURE OF JUSTICE. And this necessity is not confined within the strict limits of physical causes, but is more lax, and takes in moral and even presumed and argumentative necessity, a necessity which is in fact nothing more than a great degree of expediency. The law creates a fictitious necessity against the rules of evidence in favor of the convenience of trade: an exception which on a similar principle had before been admitted in the Civil Law, as to mercantile causes, in which the books of the party were received to give full effect to an insufficient degree of proof, called, in the nicety of their distinctions, a semiplena probatio.

But to proceed with Lord Hardwicke. He observes, that "a tradesman's books" (that is, the acts of the party interested himself) "are admitted as evidence, though no absolute necessity, but by reason of a presumption of necessity only, inferred from the nature of commerce." "No rule," continued Lord Hardwicke, "can be more settled than that testimony is not to be received but upon oath"; but he lays it down, that an oath itself may be dispensed with. "There is another instance," says he, "where the lawful oath may be dispensed with,--where our courts admit evidence for the Crown without oath."

In the same discussion, the Chief-Baron (Parker) cited cases in which all the rules of evidence had given way. "There is not a more general rule," says he, "than that hearsay cannot be admitted, nor husband and wife as witnesses against each other; and yet it is notorious that from necessity they have been allowed,--not an absolute necessity, but a moral one."

It is further remarkable, in this judicial argument, that exceptions are allowed not only to rules of evidence, but that the rules of evidence themselves are not altogether the same, where the subject-matter varies. The Judges have, to facilitate justice, and to favor commerce, even adopted the rules of foreign laws. They have taken for granted, and would not suffer to be questioned, the regularity and justice of the proceedings of foreign courts; and they have admitted them as evidence, not only of the fact of the decision, but of the right as to its legality. "Where there are foreign parties interested, and in commercial matters, the rules of evidence are not quite the same as in other instances in courts of justice: the case of Hue and Cry, Brownlow, 47. A feme covert is not a lawful witness against her husband, except in cases of treason, but has been admitted in civil cases. The testimony of a public notary is evidence by the law of France: contracts are made before a public notary, and no other witness necessary. I should think it would be no doubt at all, if it came in question here, whether this would be a valid contract, but a testimony from persons of that credit and reputation would be received as a very good proof in foreign transactions, and would authenticate the contract."

These cases show that courts always govern themselves by these rules in cases of foreign transactions. To this principle Lord Hardwicke accords; and enlarging the rule of evidence by the nature of the subject and the exigencies of the case, he lays it down, "that it is a common and natural presumption, that persons of the Gentoo religion should be principally apprised of facts and transactions in their own country. As the English have only a factory in this country, (for it is in the empire of the Great Mogul,) if we should admit this evidence [Gentoo evidence on a Gentoo oath], it would be agreeable to the genius of the law of England." For this he cites the proceedings of our Court of Admiralty, and adopts the author who states the precedent, "that this Court will give credit to the sentence of the Court of Admiralty in France, and take it to be according to right, and will not examine their proceedings: for it would be found very inconvenient, if one kingdom should, by peculiar laws, correct the judgments and proceedings of another kingdom." Such is the genius of the law of England, that these two principles, of the general moral necessities of things, and the nature of the case, overrule every other principle, even those rules which seem the very strongest. Chief-Baron Parker, in answer to an objection made against the infidel deponent, "that the plaintiff ought to have shown that he could not have the evidence of Christians," says, "that, repugnant to natural justice, in the Statute of Hue and Cry, the robbed is admitted to be witness of the robbery, as a moral or presumed necessity is sufficient." The same learned magistrate, pursuing his argument in favor of liberality, in opening and enlarging the avenues to justice, does not admit that "the authority of one or two cases" is valid against reason, equity, and convenience, the vital principles of the law. He cites Wells v. Williams, 1 Raymond, 282, to show that the necessity of trade has mollified the too rigorous rules of the old law, in their restraint and discouragement of aliens. "A Jew may sue at this day, but heretofore he could not, for then they were looked upon as enemies, but now commerce has taught the world more humanity; and therefore held that an alien enemy, commorant here by the license of the King, and under his protection, may maintain a debt upon a bond, though he did not come with safe-conduct." So far Parker, concurring with Raymond. He proceeds:--"It was objected by the defendant's counsel, that this is a novelty, and that what never has been done ought not to be done." The answer is, "The law of England is not confined to particular cases, but is much more governed by reason than by any one case whatever. The true rule is laid down by Lord Vaughan, fol. 37, 38. 'Where the law,' saith he, 'is known and clear, the Judges must determine as the law is, without regard to the inequitableness or inconveniency: these defects, if they happen in the law, can only be remedied by Parliament. But where the law is doubtful and not clear, the Judges ought to interpret the law to be as is most consonant to equity, and what is least inconvenient.'"

These principles of equity, convenience, and natural reason Lord Chief-Justice Lee considered in the same ruling light, not only as guides in matter of interpretation concerning law in general, but in particular as controllers of the whole law of evidence, which, being artificial, and made for convenience, is to be governed by that convenience for which it is made, and is to be wholly subservient to the stable principles of substantial justice, "I do apprehend," said that Chief-Justice, "that the rules of evidence are to be considered as artificial rules, framed by men for convenience in courts of justice. This is a case that ought to be looked upon in that light; and I take it that considering evidence in this way [viz. according to natural justice] is agreeable to the genius of the law of England."

The sentiments of Murray, then Solicitor-General, afterwards Lord Mansfield, are of no small weight in themselves, and they are authority by being judicially adopted. His ideas go to the growing melioration of the law, by making its liberality keep pace with the demands of justice and the actual concerns of the world: not restricting the infinitely diversified occasions of men and the rules of natural justice within artificial circumscriptions, but conforming our jurisprudence to the growth of our commerce and of our empire. This enlargement of our concerns he appears, in the year 1744, almost to have foreseen, and he lived to behold it. "The arguments on the other side," said that great light of the law, (that is, arguments against admitting the testimony in question from the novelty of the case,) "prove nothing. Does it follow from thence, that no witnesses can be examined in a case that never specifically existed before, or that an action cannot be brought in a case that never happened before? Reason (being stated to be the first ground of all laws by the author of the book called 'Doctor and Student') must determine the case. Therefore the only question is, Whether, upon principles of reason, justice, and convenience, this witness be admissible? Cases in law depend upon the occasions which gave rise to them. All occasions do not arise at once: now a particular species of Indians appears; hereafter another species of Indians may arise. A statute can seldom take in all cases. Therefore the Common Law, that works itself pure by rules drawn from the fountain of justice, is for this reason superior to an act of Parliament."

From the period of this great judgment to the trial of Warren Hastings, Esquire, the law has gone on continually working itself pure (to use Lord Mansfield's expression) by rules drawn from the fountain of justice. "General rules," said the same person, when he sat upon the bench, "are wisely established for attaining justice with ease, certainty, and dispatch; but the great end of them being to do justice, the Court will see that it be really obtained. The courts have been more liberal of late years in their determinations, and have more endeavored to attend to the real justice of the case than formerly." On another occasion, of a proposition for setting aside a verdict, he said, "This seems to be the true way to come at justice, and what we therefore ought to do; for the true text is, Boni judicis est ampliare justitiam (not jurisdictionem, as has been often cited)." In conformity to this principle, the supposed rules of evidence have, in late times and judgments, instead of being drawn to a greater degree of strictness, been greatly relaxed.

"All evidence is according to the subject-matter to which it is applied. There is a great deal of difference between length of time that operates as a bar to a claim and that which is used only by way of evidence. Length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, or to draw their inferences one way or the other, according to circumstances. I do not know an instance in which proof may not be supplied." In all cases of evidence Lord Mansfield's maxim was, to lean to admissibility, leaving the objections which were made to competency to go to credit, and to be weighed in the minds of the jury after they had heard it. In objections to wills, and to the testimony of witnesses to them, he thought "it clear that the Judges ought to lean against objections to the formality."

Lord Hardwicke had before declared, with great truth, "that the boundaries of what goes to the credit and what to the competency are very nice, and the latter carried too far"; and in the same case he said, "that, unless the objection appeared to him to carry a strong danger of perjury, and some apparent advantage might accrue to the witness, he was always inclined to let it go to his credit, only in order to let in a proper light to the case, which would otherwise be shut out; and in a doubtful case, he said, it was generally his custom to admit the evidence, and give such directions to the jury as the nature of the case might require."

It is a known rule of evidence, that an interest in the matter to be supported by testimony disqualifies a witness; yet Lord Mansfield held, "that nice objections to a remote interest which could not be paid or released, though they held in other cases, were not allowed to disqualify a witness to a will, as parishioners might have [prove?] a devise to the use of the poor of the parish forever." He went still nearer, and his doctrine tends so fully to settle the principles of departure from or adherence to rules of evidence, that your Committee inserts part of the argument at large. "The disability of a witness from interest is very different from a positive incapacity. If a deed must be acknowledged before a judge or notary public, every other person is under a positive incapacity to authenticate it; but objections of interest are deductions from natural reason, and proceed upon a presumption of too great a bias in the mind of the witness, and the public utility of rejecting partial testimony. Presumptions stand no longer than till the contrary is proved. The presumption of bias may be taken off by showing the witness has a [as?] great or a greater interest the other way, or that he has given it up. The presumption of public utility may be answered by showing that it would be very inconvenient, under the particular circumstances, not to receive such testimony. Therefore, from the course of business, necessity, and other reasons of expedience, numberless exceptions are allowed to the general rule."

These being the principles of the latter jurisprudence, the Judges have suffered no positive rule of evidence to counteract those principles. They have even suffered subscribing witnesses to a will which recites the soundness of mind in the testator to be examined to prove his insanity, and then the court received evidence to overturn that testimony and to destroy the credit of those witnesses. They were five in number, who attested to a will and codicil. They were admitted to annul the will they had themselves attested. Objections were taken to the competency of one of the witnesses in support of the will against its subscribing witnesses: 1st, That the witness was an executor in trust, and so liable to actions; 2dly, As having acted under the trust, whereby, if the will were set aside, he would be liable to answer for damages incurred by the sale of the deceased's chambers to a Mr. Frederick. Mr. Frederick offered to submit to a rule to release, for the sake of public justice. Those who maintained the objection cited Siderfin, a reporter of much authority, 51, 115, and 1st Keble, 134. Lord Mansfield, Chief-Justice, did not controvert those authorities; but in the course of obtaining substantial justice he treated both of them with equal contempt, though determined by judges of high reputation. His words are remarkable: "We do not now sit here to take our rules of evidence from Siderfin and Keble." He overruled the objection upon more recent authorities, which, though not in similar circumstances, he considered as within the reason. The Court did not think it necessary that the witness should release, as he had offered to do. "It appeared on this trial," says Justice Blackstone, "that a black conspiracy was formed to set aside the gentleman's will, without any foundation whatever." A prosecution against three of the testamentary witnesses was recommended, who were afterwards convicted of perjury. Had strict formalities with regard to evidence been adhered to in any part of this proceeding, that very black conspiracy would have succeeded, and those black conspirators, instead of receiving the punishment of their crimes, would have enjoyed the reward of their perjury.

Lord Mansfield, it seems, had been misled, in a certain case, with regard to precedents. His opinion was against the reason and equity of the supposed practice, but he supposed himself not at liberty to give way to his own wishes and opinions. On discovering his error, he considered himself as freed from an intolerable burden, and hastened to undo his former determination. "There are no precedents," said he, with some exultation, "which stand in the way of our determining liberally, equitably, and according to the true intention of the parties." In the same case, his learned assessor, Justice Wilmot, felt the same sentiments. His expressions are remarkable:--"Courts of law ought to concur with courts of equity in the execution of those powers which are very convenient to be inserted in settlements; and they ought not to listen to nice distinctions that savor of the schools, but to be guided by true good sense and manly reason. After the Statute of Uses, it is much to be lamented that the courts of Common Law had not adopted all the rules and maxims of courts of equity. This would have prevented the absurdity of receiving costs in one court and paying them in another."

Your Committee does not produce the doctrine of this particular case as directly applicable to their charge, no more than several of the others here cited. We do not know on what precedents or principles the evidence proposed by us has been deemed inadmissible by the Judges; therefore against the grounds of this rejection we find it difficult directly to oppose anything. These precedents and these doctrines are brought to show the general temper of the courts, their growing liberality, and the general tendency of all their reasonings and all their determinations to set aside all such technical subtleties or formal rules, which might stand in the way of the discovery of truth and the attainment of justice. The cases are adduced for the principles they contain.

The period of the cases and arguments we have cited was that in which large and liberal principles of evidence were more declared, and more regularly brought into system. But they had been gradually improving; and there are few principles of the later decisions which are not to be found in determinations on cases prior to the time we refer to. Not to overdo this matter, and yet to bring it with some degree of clearness before the House, your Committee will refer but to a few authorities, and those which seem most immediately to relate to the nature of the cause intrusted to them. In Michaelmas, 11 Will. III., the King v. the Warden of the Fleet, a witness, who had really been a prisoner, and voluntarily suffered to escape, was produced to prove the escape. To the witness it was objected, that he had given a bond to be a true prisoner, which he had forfeited by escaping: besides, he had been retaken. His testimony was allowed; and by the Court, among other things, it was said, in secret transactions, if any of the parties concerned are not to be, for the necessity of the third, admitted as evidence, it will be impossible to detect the practice: as in cases of the Statute of Hue and Cry, the party robbed shall be a witness to charge the hundred; and in the case of Cooke v. Watts in the Exchequer, where one who had been prejudiced by the will was admitted an evidence to prove it forged. So in the case of King v. Parris, where a feme covert was admitted as a witness for fraudulently drawing her in, when sole, to give a warrant of attorney for confessing a judgment on an unlawful consideration, whereby execution was sued out against her husband, and Holt, Chief-Justice, held that a feme covert could not, by law, be a witness to convict one on an information; yet, in Lord Audley's case, it being a rape on her person, she was received to give evidence against him, and the Court concurred with him, because it was the best evidence the nature of the thing would allow. This decision of Holt refers to others more early, and all on the same principle; and it is not of this day that this one great principle of eminent public expedience, this moral necessity, "that crimes should not escape with impunity," has in all cases overborne all the common juridical rules of evidence,--it has even prevailed over the first and most natural construction of acts of Parliament, and that in matters of so penal a nature as high treason. It is known that statutes made, not to open and enlarge, but on fair grounds to straiten proofs, require two witnesses in cases of high treason. So it was understood, without dispute and without distinction, until the argument of a case in the High Court of Justice, during the Usurpation. It was the case of the Presbyterian minister, Love, tried for high treason against the Commonwealth, in an attempt to restore the King. In this trial, it was contended for, and admitted, that one witness to one overt act, and one to another overt act of the same treason, ought to be deemed sufficient. That precedent, though furnished in times from which precedents were cautiously drawn, was received as authority throughout the whole reign of Charles II.; it was equally followed after the Revolution; and at this day it is undoubted law. It is not so from the natural or technical rules of construction of the act of Parliament, but from the principles of juridical policy. All the judges who have ruled it, all the writers of credit who have written upon it, assign this reason, and this only,--that treasons, being plotted in secrecy, could in few cases be otherwise brought to punishment.

The same principle of policy has dictated a principle of relaxation with regard to severe rules of evidence, in all cases similar, though of a lower order in the scale of criminality. It is against fundamental maxims that an accomplice should be admitted as a witness: but accomplices are admitted from the policy of justice, otherwise confederacies of crime could not be dissolved. There is no rule more solid than that a man shall not entitle himself to profit by his own testimony. But an informer, in case of highway robbery, may obtain forty pounds to his own profit by his own evidence: this is not in consequence of positive provision in the act of Parliament; it is a provision of policy, lest the purpose of the act should be defeated.

Now, if policy has dictated this very large construction of an act of Parliament concerning high treason, if the same policy has dictated exceptions to the clearest and broadest rules of evidence in other highly penal causes, and if all this latitude is taken concerning matters for the greater part within our insular bounds, your Committee could not, with safety to the larger and more remedial justice of the Law of Parliament, admit any rules or pretended rules, unconnected and uncontrolled by circumstances, to prevail in a trial which regarded offences of a nature as difficult of detection, and committed far from the sphere of the ordinary practice of our courts.

If anything of an over-formal strictness is introduced into the trial of Warren Hastings, Esquire, it does not seem to be copied from the decisions of these tribunals. It is with great satisfaction your Committee has found that the reproach of "disgraceful subtleties," inferior rules of evidence which prevent the discovery of truth, of forms and modes of proceeding which stand in the way of that justice the forwarding of which is the sole rational object of their invention, cannot fairly be imputed to the Common Law of England, or to the ordinary practice of the courts below.

CIRCUMSTANTIAL EVIDENCE, ETC.

The rules of evidence in civil and in criminal cases, in law and in equity, being only reason methodized, are certainly the same. Your Committee, however, finds that the far greater part of the law of evidence to be found in our books turns upon questions relative to civil concerns. Civil cases regard property: now, although property itself is not, yet almost everything concerning property and all its modifications is, of artificial contrivance. The rules concerning it become more positive, as connected with positive institution. The legislator therefore always, the jurist frequently, may ordain certain methods by which alone they will suffer such matters to be known and established; because their very essence, for the greater part, depends on the arbitrary conventions of men. Men act on them with all the power of a creator over his creature. They make fictions of law and presumptions of (praesumptiones juris et de jure) according to their ideas of utility; and against those fictions, and against presumptions so created, they do and may reject all evidence. However, even in these cases there is some restraint. Lord Mansfield has let in a liberal spirit against the fictions of law themselves; and he declared that he would do what in one case he actually did, and most wisely, that he would admit evidence against a fiction of law, when the fiction militated against the policy on which it was made.

Thus it is with things which owe their existence to men; but where the subject is of a physical nature, or of a moral nature, independent of their conventions, men have no other reasonable authority than to register and digest the results of experience and observation. Crimes are the actions of physical beings with an evil intention abusing their physical powers against justice and to the detriment of society: in this case fictions of law and artificial presumptions (juris et de jure) have little or no place. The presumptions which belong to criminal cases are those natural and popular presumptions which are only observations turned into maxims, like adages and apophthegms, and are admitted (when their grounds are established) in the place of proof, where better is wanting, but are to be always over turned by counter proof.

These presumptions mostly go to the intention. In all criminal cases, the crime (except where the law itself implies malice) consists rather in the intention than the action. Now the intention is proved but by two ways: either, 1st, by confession,--this first case is rare, but simple,--2dly, by circumstantial proof,--this is difficult, and requires care and pains. The connection of the intention and the circumstances is plainly of such a nature as more to depend on the sagacity of the observer than on the excellence of any rule. The pains taken by the Civilians on that subject have not been very fruitful; and the English law-writers have, perhaps as wisely, in a manner abandoned the pursuit. In truth, it seems a wild attempt to lay down any rule for the proof of intention by circumstantial evidence. All the acts of the party,--all things that explain or throw light on these acts,--all the acts of others relative to the affair, that come to his knowledge, and may influence him,--his friendships and enmities, his promises, his threats, the truth of his discourses, the falsehood of his apologies, pretences, and explanations, his looks, his speech, his silence where he was called to speak,--everything which tends to establish the connection between all these particulars,--every circumstance, precedent, concomitant, and subsequent, become parts of circumstantial evidence. These are in their nature infinite, and cannot be comprehended within any rule or brought under any classification.

Now, as the force of that presumptive and conjectural proof rarely, if ever, depends on one fact only, but is collected from the number and accumulation of circumstances concurrent in one point, we do not find an instance, until this trial of Warren Hastings, Esquire, (which has produced many novelties,) that attempts have been made by any court to call on the prosecutor for an account of the purpose for which he means to produce each particle of this circumstantial evidence, to take up the circumstances one by one, to prejudge the efficacy of each matter separately in proving the point,--and thus to break to pieces and to garble those facts, upon the multitude of which, their combination, and the relation of all their component parts to each other and to the culprit, the whole force and virtue of this evidence depends. To do anything which can destroy this collective effect is to deny circumstantial evidence.

Your Committee, too, cannot but express their surprise at the particular period of the present trial when the attempts to which we have alluded first began to be made. The two first great branches of the accusation of this House against Warren Hastings, Esquire, relate to public and notorious acts, capable of direct proof,--such as the expulsion of Cheyt Sing, with its consequences on the province of Benares, and the seizure of the treasures and jaghires of the Begums of Oude. Yet, in the proof of those crimes, your Committee cannot justly complain that we were very narrowly circumscribed in the production of much circumstantial as well as positive evidence. We did not find any serious resistance on this head, till we came to make good our charges of secret crimes,--crimes of a class and description in the proof of which all judges of all countries have found it necessary to relax almost all their rules of competency: such crimes as peculation, pecuniary frauds, extortion, and bribery. Eight out of nine of the questions put to the Judges by the Lords, in the first stage of the prosecution, related to circumstances offered in proof of these secret crimes.

Much industry and art have been used, among the illiterate and unexperienced, to throw imputations on this prosecution, and its conduct, because so great a proportion of the evidence offered on this trial (especially on the latter charges) has been circumstantial. Against the prejudices of the ignorant your Committee opposes the judgment of the learned. It is known to them, that, when this proof is in its greatest perfection, that is, when it is most abundant in circumstances, it is much superior to positive proof; and for this we have the authority of the learned judge who presided at the trial of Captain Donellan. "On the part of the prosecution, a great deal of evidence has been laid before you. It is all circumstantial evidence, and in its nature it must be so: for, in cases of this sort, no man is weak enough to commit the act in the presence of other persons, or to suffer them to see what he does at the time; and therefore it can only be made out by circumstances, either before the committing of the act, at the time when it was committed, or subsequent to it. And a presumption, which necessarily arises from circumstances, is very often more convincing and more satisfactory than any other kind of evidence: because it is not within the reach and compass of human abilities to invent a train of circumstances which shall be so connected together as to amount to a proof of guilt, without affording opportunities of contradicting a great part, if not all, of these circumstances. But if the circumstances are such as, when laid together, bring conviction to your minds, it is then fully equal, if not, as I told you before, more convincing than positive evidence." In the trial of Donellan no such selection was used as we have lately experienced; no limitation to the production of every matter, before, at, and after the fact charged. The trial was (as we conceive) rightly conducted by the learned judge; because secret crimes, such as secret assassination, poisoning, bribery, peculation, and extortion, (the three last of which this House has charged upon Mr. Hastings,) can very rarely be proved in any other way. That way of proof is made to give satisfaction to a searching, equitable, and intelligent mind; and there must not be a failure of justice. Lord Mansfield has said that he did not know a case in which proof might not be supplied.

Your Committee has resorted to the trial of Donellan, and they have and do much rely upon it, first, on account of the known learning and ability of the judge who tried the cause, and the particular attention he has paid to the subject of evidence, which forms a book in his treatise on Nisi Prius;--next, because, as the trial went wholly on circumstantial evidence, the proceedings in it furnish some of the most complete and the fullest examples on that subject;--thirdly, because the case is recent, and the law cannot be supposed to be materially altered since the time of that event.

Comparing the proceedings on that trial, and the doctrines from the bench, with the doctrines we have heard from the woolsack, your Committee cannot comprehend how they can be reconciled. For the Lords compelled the Managers to declare for what purpose they produced each separate member of their circumstantial evidence: a thing, as we conceive, not usual, and particularly not observed in the trial of Donellan. We have observed in that trial, and in most others which we have had occasion to resort to, that the prosecutor is suffered to proceed narratively and historically, without interruption. If, indeed, it appears on the face of the narration that what is represented to have been said, written, or done did not come to the knowledge of the prisoner, a question sometimes, but rarely, has been asked, whether the prisoner could be affected with the knowledge of it. When a connection with the person of the prisoner has been in any way shown, or even promised to be shown, the evidence is allowed to go on without further opposition. The sending of a sealed letter,--the receipt of a sealed letter, inferred from the delivery to the prisoner's servant,--the bare possession of a paper written by any other person, on the presumption that the contents of such letters or such paper were known to the prisoner,--and the being present when anything was said or done, on the presumption of his seeing or hearing what passed, have been respectively ruled to be sufficient. If, on the other hand, no circumstance of connection has been proved, the judge, in summing up, has directed the jury to pay no regard to a letter or conversation the proof of which has so failed: a course much less liable to inconvenience, where the same persons decide both the law and the fact.