fubject, and feeling the difficulty of it, I then purpofely omitted them. That gentleman however, having (p. 994) but flightly glanced at this point, without profeffing to enter into it, I have now ventured to publish my own obfervations. They are merely fuch, and I would caution my younger readers against giving any weight to them, further than they are fupported by reafon and authority. The fubject is perhaps the most important of any in the jurifprudence of the country; as upon the effect of thefe judgments may, in a great meafure, depend the adminiftration of its criminal juftice; and the diverfity of opinion which feems to have been entertained on this point by the greatest names in the profeffion, will I I hope be an apology for me, in cafe the conclufion I have endeavoured to draw, fhould appear to be erroneous. Whether it should (according to the doctrine which feems to have been held by Lord Hardwicke) be decided that fuch judgments are in no cafe admiffible as evidence in a civil action; or, agreeably to the opinions alluded to by Lord C. B. Gilbert, be held that they are inadmisible where the party in the civil fuit was examined in the criminal profecution, the fame confequence will, I conceive, equally follow, viz. that the party injured may be a witnefs on the indictment. But if, as others have thought, the direc determination of a fact in a criminal profecution is in all cafes evidence of that fact, for

for all perfons, whether examined on the indictment or not, the party injured will certainly, in many inftances, have that direct intereft which difqualifies him from giving evidence.

When the former edition was published it did not occur to me that it was neceffary to say any thing refpecting the Evidence on particular Iffues. On this fubject however, I find that many refpectable friends differ from me in opinion; and, in compliance with their fuggeftions, I have made confiderable progrefs in the preparation of a Second Part, which will treat of the evidence neceffary to fupport each particular action. The variety of matter which this embraces will neceffarily occupy much time to digeft and methodize; but fuch time as can be spared from profeffional engagements fhall be devoted to it.

Pump Court, Temple,

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PREFACE

ΤΟ

THE FIRST EDITION.

H AVING not unfrequently observed the

difficulties under which the most experienced labour when points of evidence fuddenly arife at Nifi Prius, I thought that I could not more ufefully employ the leifure hours of a profeffional life, than in an endeayour to fimplify and explain the rules which govern this most important part of our Law. In order to do this, fo as to render the fervice I wifhed to my profeffion, it appeared to me to be abfolutely neceffary to comprefs the matter I fhould offer for its acceptance, into as little fpace as poffible; and with that view I determined to exclude every thing which was not practically ufeful; but at the fame time to keep in view the principles on which the practice was founded, and by an attention to which alone it can be understood.

I prefume my reader to be already acquainted with the general rules of pleading, and to know the evidence neceffary to fupport particular iffues. Thefe queftions are generally confidered before the trial; or if not, there

are

are not wanting Nifi Prius books already to explain them; but what degree of evidence will prove a particular fact, and who is competent to give it, are queftions which are often to be decided on in a moment, without the opportunity of confulting books, or referring to authorities. To remove, in fome degree, thefe difficulties, is the object of the following work.

The reader will perceive that, with the addition of the modern cafes, the greatest part of the Section on Records, is little more than a new arrangement of Lord Chief Baron Gilbert's Law of Evidence; a work which, it is to be lamented, never received the laft corrections of its author (many parts of it being evidently mere memoranda, intended by him for future arrangement and correction), but which neverthelefs in its prefent ftate is fo excellent, that, as far as relates to this part of the Law of Evidence, which may be confidered as coeval with the law itfelf, it must form the bafis of every fubfequent work on the fubject. The greatest part of this fection confifting of clear admitted principles, I thought it better to refer to Gilbert only, or to the late Mr. J. Buller's book (from which I have derived confiderable affiftance), than unneceffarily to crowd the text with useless authorities.

The extenfion of commerce, and the various concerns of mankind, have rendered very large additions

A 4

1

additions neceffary to the section which treats of Public Writings not of Record; and that on Private Inftruments is entirely new modelled, for rejecting all the learning on the profert and pleading of deeds, as foreign to the plan of my work, I have confined my obfervations wholly to the proof of them and other private inftruments, on which little is to be found in any former book of this nature.

The chapter on Parol Teftimony, alfo is in à great measure new; for the rules of evidence in this refpect have been fo much altered, and fo much light has been thrown on them by modern decifions, that, comparatively, little is to be collected from ancient books that is fatisfactory on the fubject. It was once faid by Lord Mansfield, with that force of expreffion peculiar to great minds, who exercife the right of thinking for themfelves before they affent to the authority of others,"We do not fit here to take our rules of evi"dence from Siderfin or Keble." Rejecting thofe cafes which were not fupported by principles, that great Judge eftablished a fyftem for his fucceffors to follow; and competence and credibility, fo frequently confounded together, are now accurately defined, and well understood.

In the fection on Interested Witnefes, I have endeavoured to confine the text as much

1 Black. 366.

as