18. Private Writings, not under Seal, are proved by evidence of the handwriting of the party by whom they purport to be written or signed. This proof may be given either by a person who has seen the party write; or by one who has received letters from him in the course of correspondence, and acted on them (k). It is never necessary that a witness should swear positively to handwriting; it is sufficient if, having means of knowledge, he swears that he believes it to be the handwriting of the individual alleged to be the writer; this belief may be formed even from once seeing the party write (/); and it will be a question whether, under all the circumstances, the belief is such as the jury can safely act on. Although the belief of a witness as to the handwriting of another must be produced by a comparison made in his own mind between the writing produced and other writings which he has seen at other times, yet the jury are never allowed to judge for themselves, by comparing in court the writings in question with other acknowledged or established writings of the prisoner, except they are in evidence in the case then under trial (m). Stamps on Instruments.]-Before the conclusion of what is to be admitted respecting documentary evidence, it is necessary to observe briefly on the production of those instruments as evidence, to the validity of which instruments, for their principal and original purpose, stamps are necessary. To enter on a review of conflicting cases respecting the admissibility of unstamped instruments, as evidence in suits and prosecutions, would much exceed the prescribed limits of this work, especially as many nice distinctions have been made respecting their admissibility in civil, and in criminal proceedings. But it may be laid down as a general rule, at least for the purpose of all those instruments that are likely to come in question before a court of session of the peace, that whenever an instrument becomes in any way the direct subject of a prosecution, it cannot be given in evidence, unless it have the proper stamp, because, by the stamp acts, it cannot be read as a genuine instrument unless stamped according to their provisions. Such an instrument, however, being without a stamp, or (k) Cary v. Pitt, Peake, Ev. App. 85. (1) Harrington v. Fry, Ry. & M. N. P. C. 90; Lewis v. Sapio, M. & M. 49. (m) Doe v. Newton, 5 Ad. & El. 515. The queen's bench differed in opinion, whether an inspector of handwriting from the bank of England could be ex amined to contradict evidence of witnesses that a particular signature was genuine, he having no knowledge of the handwriting in question but by comparing it with signatures of the party admitted to be genuine, Doe d. Mudd v. Suckermore, 5 Ad. & E. 703. having an improper stamp, is admissible as evidence for collateral purposes. Thus, though in a prosecution for stealing an unstamped instrument sent in a letter, which to give it any value must have a stamp, it cannot be produced in evidence against a letter carrier to prove the stealing of the instrument itself; yet it may be produced merely as a piece of paper which can be identified, in order to prove the purloining of the letter (n). But when an agreement on a paper proved to have been unstamped at the time it was signed, had been destroyed, parol evidence of its contents was not allowed to be given, even though it appeared that it had been so destroyed by the wrongful act of the party who took the objection (o); but in the absence of evidence of the fact that it was unstamped when destroyed, no presumption of the want of stamp arises (p). When an instrument is offered in evidence without the stamp required by law, the opposite counsel should ask to see it, and object immediately; for as the defect appears on the face of it, it will be too late to do so after it has been put in and read (q), even if that has happened from accidental neglect of the counsel, after having asked to see it (r). SECTION XI. OF THE COMPETENCY OF WITNESSES. What Persons are Competent.]—All are competent witnesses, who are of sane mind; capable of understanding and of feeling the obligation of an oath; and not disqualified by infamy, relationship, or interest in the event of a cause. The parties, then, who are disqualified from giving evidence are those who, from tender age or defect of intellect, are incapable of understanding the obligation of an oath; those who, from a total and admitted want of religious belief, are incapable of feeling its obligations; those whom the law has branded as infamous; and those who, from relationship or interest, are supposed (n) R. v. Pooley, 3 B. & P. 316. (0) Rippiner v. Wright, 2 B. & Ald. 478. See R. v. Castle Morton, 3 B. & Ald. 558; Williams v. Stoughton, 2 Stark. C. N. P. 292. The reason is, to prevent fraud on the revenue: per Parke, B., Giles v. Smith, 5 Tyr. 18. (p) Wheatley and another v. Williams, Tyr. & Gr. 1048; 1 M. & W. 553, S. C. (q) Field and another v. Woods, 7 Ad. & E. 114; 2 Nev. & P. 117. Secus, if the defect requires extrinsic evidence to establish it; e. g. if a banker's cheque is post dated, and requires a stamp on that account, S. C. (r) Foss v. Wagner, 7 Ad. & E. 116, n. too nearly connected with the result to render it safe that their evidence should be submitted, even with the utmost caution, to a jury. 1. The first class are Persons incompetent from Defect of Understanding, or Ignorance, as children, lunatics, idiots, and ignorant adults. Mere youth, however tender, although a proper ground for cautious investigation as to the understanding of a child, is never in itself a reason for rejecting its testimony. Upon this subject, experience shows that no certain rule as to age could be adopted with propriety; if the child, of how tender age soever, comprehends the difference between truth and falsehood, and believes that falsehood is a crime, and will be punished. by God in a future state, he may be sworn and examined; whereas if he has no such sense, though of an age when such knowledge might reasonably be expected, he cannot be sworn (s). The same rule applies to persons who are surmised to be insane or idiots; the court is to be satisfied by its own examination of the state of their intellects, and will admit or exclude their testimony as may seem best to its discretion. A person with a mere organic defect, as one who is deaf and dumb, is not, on that account, incompetent, provided it appears from the examination of those who are acquainted with his habits, that he has a sense of the obligation of an oath on the conscience, and a power of understanding and answering questions (t). In this case, some person acquainted with the signs by which he is accustomed to convey his meaning must be sworn truly to interpret between the court and the witness; and being so sworn (u), must first interpret and explain to him the oath, and inform the court that he understands and accepts it; and then must interpret to him the questions asked, and return his answers as he gives them; and if, after the jury are charged, the witness, though adult and of sufficient intellect, appears to have no idea of a future state of rewards and punishments, an acquittal should be directed (v). In cases of great importance, where a child, who is a necessary witness to support the charge, is found. unfit to give evidence from the mere absence of instruction, a judge will sometimes postpone the trial till the next assizes, in order that the child may be properly taught in the interval; but this course can scarcely be called for by any case likely to occur at sessions (w). (8) 1 Stark. Ev. 2d ed. 93; 2 id. 407 ; 1 Leach, 237, Brazier's case. (v) R. v. Wade, 1 Mood. C. C. R. 86. (w) See note to R. v. White, 1 Leach, 480. NN 2. Persons incompetent from want of Religious Belief.-The second class of persons incompetent are those who deny all religious sanctions of every kind and who, therefore, understand no peculiar sanctity in an appeal to heaven. It is not, however, necessary that the party should believe in the Old or New Testament; nor is it any objection that his belief is of the wildest and most superstitious kind; if he believes in a superior intelligence, the punisher of falsehood in a future state, he is a competent witness (x). Jews, Mahometans, -Gentoos, and Deists, may, therefore, be sworn in such manner as, according to their own apprehension, is binding on their consciences. It has been sometimes allowed to a counsel to question witnesses on the toir dire as to their religious belief; but it may be doubted whether a witness would not be justified in insisting, when so questioned, on the simple answer that he considers the oath administered in the usual form binding on his own conscience, and in declining to answer further; for a confession, thus forced from him, of a disbelief in a state of retribution, would certainly be esteemed as disgraceful in a court of justice, and there seems no reason why a person should thus be taxed, perhaps to his own infinite prejudice, merely because he appears to perform a public duty in obedience to a subpoena. At all events, it is quite clear that a witness may properly refuse to answer any questions which go beyond an inquiry into his belief in a superior being to whom man is answerable; and that it is the duty of counsel to refuse, however urged, to put such questions, which are altogether impertinent and vexatious. The common and regular way of swearing by a Christian is on the four Evangelists, viz. the New Testament (y). All witnesses, indeed, must be sworn after a form, the obligation of which they acknowledge; as a Jew on the Pentateuch, with his head covered (z); a Mahometan on the Koran (a); a Gentoo, by touching with his hand the foot of a Brahmin or priest of his religion; a Brahmin, by touching the hand of another such priest (b); a Scotch covenanter, or member of the kirk, by holding up the hand without kissing the book (c); but if a witness himself declares that he acknowledges the sanction of the oath in the usual form, there seems no just ground for troubling him with further questions. It is certain, that in whatever form he consents to be sworn, e. g. if though Christian he declines to be sworn on the New, but consents to be sworn on the Old Testament (d), he may be afterwards asked whether he holds such oath binding on his conscience; but not whether he considers any other form of oath more binding (e): for he will be liable, if he gives false testimony, to the penalties of perjury (ƒ). Affirmation by Quakers, Moravians, Separatists, &c.]—The case of quakers rested on another ground than that of incompetency; they did not insist on a particular kind of oath; but they refused to be sworn at all; admitting that on their affirmation they were solemnly bound to perform the duty of speaking the truth (g), but refusing to consider it as an oath. In deference to a scruple firmly and consistently maintained, their affirmation was allowed in civil cases (h); and in criminal cases, their excuse was received so as to prevent them from suffering the penalties of contumacy, though not to admit their evidence(i); but the effect was occasionally unfortunate for the purposes of justice. By a recent statute, the affirmations of this and of another class of dissenters, the Moravians, who had formed a similar scruple, are received in similar cases (j). That act, reciting "that it is expedient that quakers and Moravians should be allowed to give evidence upon their solemn affirmation in all cases, criminal as well as civil," enacts, "that every quaker and Moravian who shall be required to give evidence in any case whatever, criminal or civil, shall, instead of taking an oath in the usual form, be permitted to make his or her solemn affirmation in the words following: I, A. B. do solemnly, sincerely, and truly declare and affirm;' which said affirmation and declaration shall be of the same force and effect in all courts of justice, and other places where by law an oath is required, as if such quaker or Moravian had taken an oath in the usual form." The judges decided, after reference to 6 G. IV. c. 50, s. 53, and 9 G. IV. c. 32, that a quaker, &c. was not a good juryman on his affirmation, and that a conviction by a jury on which a quaker had (d) Edmonds v. Rowe, Ry. & M. C. N. P. 77. (e) The Queen's case, 2 Br. & B. 284. (f) Sells v. Hoare, 3 Br. & B. 232; S. C. 7 Moore, 36. (g) See Atcheson v. Everett, Cowp. 382. (h) 7 & 8 W. III. c. 34. (i) 2 Burr. 1117; 1 D. & R. 121. (j) 9 G. IV. c. 32, s. 1. See 1 Stark. Ev. 2d ed. 94. |