6 Ct. Cl. 421 | Ct. Cl. | 1870
Lead Opinion
delivered the opinion of the court:
This is an action brought under the Abandoned or captured property aet, to recover $100,000 for one hundred and thirty bales of cotton captured at Wilmington, North Carolina.
It is one of those extraordinary cases where evidence apparently truthful and incontrovertible is arrayed against evidence apparently truthful ’and incontrovertible; where the facts established on the one side are utterly irreconcilable with the facts established on the other side; and yet where it strains our credulity to believe either statement to be false, notwithstanding that we believe the other to be true.
The claimant is an English woman, who resided during the rebellion at Wilmington, North Carolina. She shows that while the war existed she mingled but little with southern citizens, and was reputed to be friendly to-the United States. Her chief witnesses are our own military and naval officers. Among them is the “medical director of the expeditionary force under General Terry.” He says :
“A few days after the occupation of Wilmington wre received at the North-East River about four thousand hospital patients, United States prisoners and exchanged prisoners, as appeared on our rolls; we called them returned prisoners. We were very short of hospital stores of all kinds, not being prepared for this great influx. After I returned from Wilmington from North-East River, Hr. Merriweather, who had charge of one of my hospitals, informed me that a lady had some hospital stores which she desired to turn over to the hospital for the benefit*425 of the returned prisoners. I went with him to lier house, and it was Mrs. Medway, the claimant. She then and there gave me some medicine and medical stores, all that she had, which were taken away by Dr. Merriweather; she stated to me that she wished to do something for the hospitals, and that she •would be able to do more, and which she afterward did; this was the commencement of my acquaintance with the lady. I had supervision of that department to the 6th of October, A. D. 1865; our headquarters was**at Ealeigh, although I was frequently at 'Wilmington after going from North-East Eiver to Wilmington, as before referred to. I remained at Wilmington about two weeks, and during these two weeks Mrs. Medway was daily at the hospital and rendering assistance and supplies. This benevolence of Mrs. Medway was extended, as by the reports of the surgeons, up to the time of the breaking up of the hospital, about three months later.”
Again, the claimant has called as a witness the commanding naval officer on the Cape Fear Eiver immediately after the capture of Wilmington, and he testifies:
“ One of my officers on the Lenapee, since deceased, reported to me that during the war he wfith many others was captured near New Berne, North Carolina, and while waiting at the Wilmington, North Carolina, depot for transportation to a southern prison,' many of them wounded and sick, and all in a half-starved condition, they were surrounded by a large crowd of insolent- rebels, who refused to give them food or refreshments of any kind, when the plaintiff discovered them, and, in opposition to the wishes of the crowd and their threats of personal violence, purchased a large quantity of provisions and gave them to the Union prisoners. This report was afterward, verified by citizens of Wilmington, North Carolina.
“ I know of her giving large quantities of medicines and provisions to the Union sick, wounded, and distressed, and that she did all in her power in behalf of the United States during my stay in the Cape Fear Eiver.”
' “ Do you know of her having given aid or assistance to any wounded United States soldiers, or those who -were prisoners of war ?
“I do know of her having given aid or assistance to the wounded and sick soldiers and officers of the United States to the utmost extent of her ability and means. Three or four*426 thousand side prisoners from Columbia, South Carolina, and Andersouville, Georgia, arrived in the hospitals of Wilmington, afflicted with various contagious and infectious diseases. She administered to them in every way in her power, and was untiring in her attendance upon them, freely risking her life in the cause. For months she received into her house sick soldiers and officers, gave them all the comforts o.f a home, attended them day and night till they were sufficiently convalescent to return to duty. On one occasion she heard that a Union soldier was in a house near the one she occupied; she had him immediate! y brought to. her house, where she administered every care and comfort that could be given, until the soldier was sufficiently restored to be sent north. Both he and many others, I believe, are indebted to her for their lives. She continued her indefatigable care and attention to the Union sick so long as any remained to care for, and long after the failure of her own health, which was induced by her zeal for others, and from the effects of which I fear she will never recover. I further know that her efforts in behalf of the United States caused the loss of nearly all her personal friends in Wilmington in any way favorable to the rebel cause.”
So marked and meritorious were these services that the .young naval officers at Wilmington paid to Mrs. Medway the compliment of a serenade. Finally, after the war was over, Mrs. Medway was so shunned by the disloyal society of Wilmington that she was compelled to move to Illinois, where she still resides. These facts, coupled with the more direct testimony of other witnesses, certainly constitute a strong case of circumstantial evidence perfectly consistent from beginning to end, and leading but to one conclusion.
Leaving the chain of circumstantial evidence unbroken by the contradiction of a single witness, the defendants produce and offer in evidence the following letter:
“ Private.] u WilMing-ton, North Carolina,
“ February 10, 1865.
“Dear Sir: On the 2d of January I wrote to you making an offer of service, which, however presumptuous it might have appeared, was the result of deliberation, and an unfeigned desire to benefit our cause. Personally I could hope for no gain from it. If I choose to return home, nothing need*427 prevent; therefore it was 310 stepping-stone to that object. A voyage at this season, combining separation from the larger part of my family here, whom I should leave exposed to I know not what perils, could only be undertaken for reasons of the very gravest import. Letters which I had recently received, questions directly and indirectly asked, inquiries made and information sought through me, all urged me to lay my ideas before you. No reply to my letter ever reached me, and in answer to a dispatch on the subject I stated that I was in ignorance, but professed entire willingness to do what might be considered best. It is now too late for any step of the kind anticipated by me, and I only Arate now to tell you that should this town fall into the enemy’s hands, I will always be ready to perform' any service you may desire. Services have been rendered by other women, which I could not do — I mean the manner of rendering them; but that which can be asked of courage, steadfastness of purpose, and a humble but sure reliance on the All-Father, who is himself leading us.through this via ■orusis, that I can and Avill do.
“The day is very dark; here rve especially feel it to be so; but I think light is daAvning in the East. If we Avill only be firm, only hold out to the end, knowing that Adctory must come at last, all will be well. I cannot think how any can falter. I, r\dio am, so to speak^but a stranger, feel our cause the very life and breath of my life, wonder how a southern-born heart can eA"er hesitate. When these deep Avaters shall be safely passed, Ave will, no doubt, stand on the brink and shudder at their depth, but we Avill thank God, avIio gives us strength to.fight the good fight to this end.
“ There is no need to repeat Avhat I said before. I shall be at all times and in all places ready to do Avhat you appoint; these are words, but the proof Avill be forthcoming.
“ Those Avlioin I thought most faithful here are dropping off, one by one, waiting and hoping for the advent of the enemy as a means of sparing them some privation. . It is these shadows that darken the horizon to me, and Ealeigli is a nest of traitors !
“ I am so sorry I could not have seen you, tor I have much to tell, and do not dare to Avrite, but it is now too late. I pray earnestly that you may lnum strength to bear the burden and heat of this fervid day, your reward being the independence of*428 this people, who, however they flag- and falter now, have certainly sustained themselves against the most terrific odds and most vindictive adversary on record.
“With the deepest respect, yours, very faithfully,
“LOUISE 0. MEDWAY.
“ His Excellency Jeeeetison Davis, <&e., &o.”
The admission of this letter in evidence presents an interesting and, in this court, a novel question of law. It is produced for the first time upon the trial'; no testimony is offered to prove the handwriting; it is not shown to have been issued or uttered by the claimant, nor is a legal explanation given as to how it came to the .possession of the defendants. But they, relying upon the original petition of the claimant, verified by her in person, and the signature thereto, admitted to be in her own handwriting, have asked the court to make comparison of handwriting, without the intervention of witnesses, and, if found to be the claimant’s, to admit the letter in evidence.
The law officers of the government also have excused their seeming neglect in not having proved the signature when taking testimony for the trial, by stating that the letter but recently came to their knowledge, and that taking testimony to prove it would delay the trial of the case. The court has tendered a continuance to the claimant, (which was declined,) and, upon consideration, has made comparison of the handwritings, and admitted the letter in evidence.
The admission of this letter in evidence is not to be confounded with that practice -which prevails in some States of allowing witnesses to testify as to handwriting whose knowledge is but opinion, resting on comparison alone. It comes in under a different rule, resting upon a distinct principle. Undoubtedly, under the rule of the common law, a witness can only testify of handwriting from knowledge, and his knowledge must have been foreobtained, either from having seen the party write or from having, through correspondence, acquired a knowledge of his writing. Undoubtedly that rule of the common law prevails in nearly every State, and has been declared by the Supreme Court to be the rule of courts of the United States. But there is another rule. Comparison of handwriting-may be made by courts and juries without the intervention of witnesses, if the comparison be restricted to established writ
What may be termed the leading case Avherein comparison of handwriting was submitted to the jury is that of Allesbrook v. Roach, (1 Esp. R., p. 351,) where Lord Kenyon at nisi prius said: u Some judges have doubted of the policy of that rule of evidence respecting the allowing of thee'jury to judge by comparison of hands, because often at a distance from the metropolis the jury are composed of illiterate men, incapable of drawing proper conclusions from such evidence. Hor my part I have been ahoays inclined to admit it, and shall do so in this case.” This was in 1795. Four'years before that trial Lord Kenyon is reported by Mr. Peake to have said in another case at nisi prius, “ Comparison of hands is no evidence. If it were so, the situation of a jury who could neither read nor write would, be a strange one ; for it is impossible for such a jury to compare the handwriting.” (Macferson v. Thoytes, Peake N. P., 20.) And the decision in Allesbrook v. Roach is manifestly doubted by Peake in his work on Evidence, (2d London ed., p. 105,) while the correctness of Espinasse’s report of it has been called in question on the King’s Bench, (5 Ad. & El., p. 518, per Williams, J.)
But Allesbrook v. Roach has been questioned not so much for the submission of the handwriting to the jury as for the nature of the writings submitted. “ The counsel for the defendant,” says the report, “ then offered to the jury several other bills, [having no connection with the case,] admitted to be of the defend
The subject seems to have slept or the practice to have been undisputed until 1830. Then and in the succeeding ten years-its discussion was revived in a number of cases. The first was Griffith v. Williams, (1 Crompton & Jervis, 47.) It is stated in the report of that case, that in the course of the argument upon a motion for a new trial it was suggested' that u the jury had been influenced by ■a comparison of handwriting which the learned judge had desired them to malee between the admitted and, 'the disputed letters.” Whereupon—
Ter ewiam: u Where two documents are in evidence, it is competent for the court or the jury to compare them. The rule as to the comparison of handwriting applies to witnesses who can only compare a loriting to which they are examined with the-character of the handwriting impressed upon their own minds / but that rule does not apply to the court or jury, who may compare the tico documents when they are properly in evidence.”
The report further shows that the rule nisi for a new trial was subsequently discharged, “ the judgment of Bolland, B.r proceeding on an elaborate comparison which he had made between the letters in question; he pointing out a number of remarkable coincidences between the documents in the formation of several-letters and the mode of writing several words.” So it is evident that comparison of hands was here made by both the jury and the judges of a very learned and careful court.
In the following year, 1831, the same judge stated at theGlamorganshire assizes “ that it was not the indention of the court in that case, (Griffith v. Williams,) and certainly not his. ov7n,to decide anything more than that the jury were at liberty to-compare the disputed handwriting with that of documents which were in evidence in the cause independently of that question.” (Rex v. Morgan, 1 Moody and Robinson’s R., p. 135.)
In a case before Lord Tenterden, the same year, there was a bill of exchange, which wras admitted .to have been drawn and endorsed by the defendant, and a letter containing admissions of the defendant, of which the writing ivas in dispute. The plaintiff in summing up relied strongly on the similitude of the disputed writing with the admitted writing, and Lord Tenterden in charge
In 1830 there was another case at nisi prius, (Bromage v. Rice, 7 Car. & Payne, 548,) where Allesbrook v. Roach, Griffith v. Williams, and Solita v. Yarrow were all cited by the plaintiff’s counsel as allowing’ him to offer to the jury a great number of bills of exchange in the defendant’s writing, but having nothing to do with the case. Campbell, then Attorney General, objected “ that the jury could not be allowed to compare the signature in dispute with any acknowledged genuine handwriting of the defendant except such as appeared in documents which were properly in evidence in the cause, as being documents in themselves material to the cause.” Littledale, J., (having conferred with Patteson, J.,) said, “ I shall reject the evidence; the ju/ry are not to compare'any other writing with that in dispute except documents which are otherwise evidence in the cause.”-
The same year there was a case before the judges of the King’s Bench in banc, (Perry v. Newton, 5 Ad. & El., p. 514,) in which it had been proposed to submit letters not in evidence for auy other purpose to the jury in order that they might institute a comparison of handwriting. Lord Denman said that Griffith v. Williams had been considered “to go a long way,” and that the real ground upon which it rested was “ that the comparison was unavoidable.” He questioned Allesbrook v. Roach, and thought that the rule in Griffith v. Williams should not be extended, as did all the judges who heard the case. The head-note states the decision very accurately as follows: “ On a question as to the genuineness of handioriting, a jury may compare the document %oith authentic writings of the party to whom it is ascribed, if such writings are in evidence for other purposes of the cause, but not else.”
In 1838 there was another case at nisi prius, where Mr. Baron. Gurney said, “ If these letters and papers Had related to distinct transactions, I thinlc the jury could not have been allowed to look at them ; but as they all relate to this transaction, they may see them.” (Eaton v. Jervis, 8 Car. & Payne, p. 273.) And in 1840, another case before the King’s Bench in banc, where the court reiterated the ruling in Doe v. Newton, and the judges intimated that they were “ not disposed to advance one iota beyond that which had been expressly decided on this point.” (Griffits v. Ivery, 11 Ad. & El., p. 322.)
Thus the cases of Griffith v. Williams and Doe v. Newton
The “ act” alluded to in the note is the Common-law Proceedings act of 1854, (17 and 18 Viet., cap. 125, § 27.) It provides that comparison “ tvith any writing, proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.” This statute changed the law of England, and explains the decisions that have come since its enactment. (Cresswell v. Jackson, 2 Fost. & Fin. R., p. 24; Roupell v. Haws, 3 id., pp. 784, 802.)
Such being the rule as declared by courts of the common law from the time of Lord Kenyon, and there being no contrary 1 American decision upon the express point, it would seem as though there was sufficient authority for the practice if it be intrinsically convenient and right. Bestricted to those cases where the writings have but recently come to the knowledge of the party seeking to use them, and accompanied by the offer of a postponement to the adverse party if he desire to contest them by testimony, it is not perceived by a majority of the court how any great evil can result from the practice, and it is thought that it may be a convenient and expeditious method of making what is often merely formal proof.
The letter referred to ivas written by the claimant at Wilmington, North Carolina, the 10th February, 1865, (as appears by its date,) shortly before the capture of that place on the 22d, and it was addressed to the president of the insurrectionary government. The evidence stopped at that point, and there is nothing to show that it ever emanated from the claimant or was in any way issued or uttered. Since the attaint of Alger-non Sydney was annulled, I presume it has been conceded universally that writing a letter in a man’s closet is not of itself a
But though the mere writing of the letter was not of itself an act of aid or comfort, still the letter, though not issued, may be used for whatever admissions it contains.
Prominent among these is that of having, on the 2d January, 18(55, written and sent a letter to the rebel president, “ making an offer of service.” What was the “ step anticipated” by the claimant in that letter is not fully disclosed in this, but it appears with certainty that it was some plan or project of her own to aid the insurgent government. We think the writing, uttering, and sending of such a letter was an act of aid and comfort to the rebellion, in violation and disregard of the claimant’s proper neutrality as a British subject, and fatal to her case.
The judgment of the court is that the petition be dismissed.
Dissenting Opinion
dissenting:
Upon an examination of the legal evidence in this record, I am of the opinjon that the claimant should recover. The only obstacle to a recovery, as 1 understand, arises from the improper admission of a letter marked “ Private,” which, a majority of the court assume, was written by the claimant to Jefferson Davis while he was president of the rebellious Confederate States. Inferences are drawn from this letter, and meaning applied to it, which may or may not be correct, since they rest only upon conjecture. The letter in question was first presented when the case was called for trial, which was the only intimation given of its existence.
The counsel for the claimant objected to the consideration of the letter by the court, because it was not any part of the record, and because it was not proved, in any way, to have been in the handwriting of the claimant. The majority of the judges, sitting as a court, metamorphosed themselves into witnesses, proceeded to inspect the letter, and declared that it was in the
The majority of the judges assumed to establish the authenticity of the letter by comparing the signature to it with that of the claimant to the petition; and then the letter took its departure from the court, and it vras no longer known to it. Upon this transitory examination, acting as experts, giving skilled evidence to themselves, the majority of the judges decided.
The court offered to continue the cause, in order to relieve the claimant’s counsel from the surprise to him by this, extraordinary presentation and proof of the letter. This proffered boon he did not accept. Why should he accept ? The mischief to him had already been accomplished. The court had decided the letter to be genuine, and if the judges who had done so could carry in their minds the recollection of the conclusion to which they had arrived by their own testimony, for a week or a month, they would probably retain their convictions for a much longer period of time, and doubtless until the case should be adjudicated. A continuance to him was to delay a judgment in the case, without a hope of success; the apple Of delay was certain to turn to ashes in his mouth. The case was vir- • tually prejudged.
It is claimed that because the court is the trier of the facts in the case, they may also make the facts, and furnish evidence of their personal knowledge, upon -which they may adjudge. I have always heretofore supposed that all triers of the fact, whether acting as judges or jurors, in every tribunal; no matter how constituted, were to try every fact by the evidence presented, and not by any personal knowledge unsupported by proofs. This character of evidence is defective in many respects; without stating all objections it is enoiigh to state that it is not delivered under oath, nor is it subject to cross-examin-
Suppose the claimant had offered proof against the genuineness of the letter, it would have weighed but little with the triers, whose minds or convictions had become sealed by their preconceived conclusions, derived from their ex-parte examination of signatures.
In the present state of the case, all protection to the claimant .by appeal is cut off. The court will find the fact of loyalty against her ■, how can it do otherwise, after having gone thus far'? That finding, however fatal to the case, will rest upon as wise a reason as that given by the poet for the knowledge of the traveled fool, who knew the exact color of the chameleon, viz: “ For sure I’ve seen, and ought to know.”
There is not, in my opinion, any warrant or even excuse for a resort to this unusual and dangerous practice. In all other courts, before a witness, proffered to prove handwriting by comparison merely, can be examined, if objection is made, the court decides, in the first instance, as to his ability or qualifications before lie will be permitted to testify. This court, exercising all the functions of judges and jurors, passes upon its own qualifications, and decides in the same breath that it has not only all requisite authority and skill, but that the handwriting is that of the claimant. Accepting in this irregular way, as complete evidence, a kind of proof which almost every other judge in Great Britain and this country has regarded as being only entitled to the lowest degree of credit.
Upon the question of the ability of experts and their qualifications, from observation or otherwise, to give satisfactory opinions, there is often much dispute and controversy ; after the court has decided as to these, the jury is left to weigh and consider all. The opinion or word of the expert does not settle the question conclusively. Not so in this court; here, where the skill and power áre decided to be in its own favor, the
The verdict of a jury must be unanimous, and the evidence unust be such as will produce unanimity. ITere a majority, differing’ from a minority of the judges, control the decision, and that may be in cases where the minority is better qualified by experience and observation to pass upon the question of genuineness of signatures. A judge not so well learned in the law as his associates, may have superior skill in comparison of hands; and if the question of skill should be left for tne consideration of impartial tilers, the weight of his evidence might, by reason of his previous opportunities or acquirements, be held to outweigh that of all the others. Left to themselves to Aveigli, the majority might possibly overestimate their own ability and underrate that of any who differed from them. The opinions of. a majority upon matters of lawr are presumed to be superior, but it does not follow that they are so in matters of fact, and fact is the only question at issue here. No one of the judges of this court, in my opinion, is sufficiently skilled in handv'riting to be admitted to testify as an expert $ nor do I believe that either of them would feel justified in admitting any other of them to do so, were each presiding at nisi prius when a jury was to find a verdict which depended upon the question of the skill of the witness.
The majority of the court acted on the first impression, caused by the citation from Greenleaf’s Evidence, vol. 1, section 578, of this statement, “Where other writings, admitted to be genuine, are already in the case; here the comparison may be made by the jury, with or without the aid of experts.” He subsequently says, section 580, while discussing proof by comparison of hands: “In regard to admitting such evidence, upon an examination in chief, for the mere purpose of enabling the jury to judge of the hand waiting, the modern English decisions are clearly opposed to it.” He refers to some of these decisions in a note, and I cite some of them hereafter. In section 581, same volume, this author says, “If it icere possible to extract from the conflicting judgments” (that is, of the American courts) “ a rule which would find support from a majority of them, perhaps it would be found not to extend beyond this, that such evidence can be offered to the jury only when no collateral issue can be raised concerning them, which is only where the pa
This fact, and the desire which seems so natural to all persons from that State to approve and justify everything done in it, may have given a bias to Mr. Greenleaf’s opinions on this question; certain it is, they are quite peculiar. Mr. Greenleaf, however, admits that only Maine and Connecticut'have a similar practice, and adds that in New York, Virginia, and North Carolina comparison of hands is not allowed as evidence; and he might have extended the list of States excluding such testimony much beyond what he has done. I can add the States of Ehode Island and New Hampshire to the list.
Phillips, in his Treatise on Evidence, vol. 2, p. 257, treating of proof of handwriting by comparison of hands, says, “ On an issue whether an acceptance on a bill of exchange was signed by the defendant,, witnesses acquainted with the defendant’s writing being called to prove the negative, the plaintiff’s counsel projmsed, in cross-examination, to lay before each of the defendant’s witnesses a paper purporting to bear the signature of the defendant, and to inquire of each in turn his opinion, ‘ whether this was the defendant’s signature.’ This they proposed to do for the purpose of testing their knowledge of the defendant’s handwriting. Lord Denman rejected the evidence, and the Court of Queen’s Bench decided that the proposed paper, notbeing part of the proofs in the cause, teas not admissible.” The letter in this case is not part of the proofs in this cause. By the rules of the court all evidence must be in the record, and the brief of each party is required to contain an epitome or condensed statement of the evidence adduced, with a reference to the pages of the record where it is printed, clearly indicating that only such proofs are to he considered as are in and make part of the record. Following the quotation above made, Mr. Phillips says: “Whether the witness in such a case should answer in the affirmative or negative, and whether there should he some resemblance or none at all between the two signatures, it might .easily be shown, by plain reasoning, that
Mr. Evans in the 2d vol., p. 158, of his translations of Poth-ier’s Treatise on the Law of Obligations, lays down this rule: “It is now very clearly established by several authorities that the proof of handwriting must be made by persons having a previous knowledge of it, either from actually seeing the party write, or from correspondence; and that the comparison of an admitted with a disputed writing cannot be allowed, either by the inspection of the court and jury, or by the assistance of persons conversant with the handwriting, for the purpose of ascertaining its reality, or detecting its forgery.” This work of Mr. Evans, although not in common use by the profession, will be found, by those who choose to examine it, to be of tfye greatest value, both for its accuracy and learning.
Believing, as I do, that the withholding an actual right is not less an act of injustice than the commission of an actual wrong, I shall proceed further to examine this question. If Mrs. Medway has an actual right to the proceeds she seeks to recover, and has made out her case according to established law, she should not be baffled and defeated by the application of new and erroneous rules, which should not nor would be applied to the defendant under like circumstances.
Since the ignorance of law does not excuse, it should not be varied to suit particular cases or circumstances. The interest of society is best promoted by establishing authentic criteria of judicial certainty. The interests of the defendant, it is to be presumed, are always in the care of the best talent 5 aud if against this presumption, for any reason, the majority of the court believes its interests in this court are not properly protected, I do not feel it my duty1', for that or any other reason, to be eager to save it from loss, even if that should be a result, by a deviation from the established rules of evidence and a resort to others which are novel, not generally practiced and recognized, but which are pronounced doubtful in philosophy and morals by judges and text-writers. I shall not protect the defendant right or wrong, but only in the right.
Leaving the text-writers and turning to the English reported cases, I do not find any material difference between them. Wherever a reported case decided in Great Britain can be pro-
In Doe v. Newton, 1 Neville & Perry, p. 1, Lord Denman, C. J., after referring to the cases of Griffith v. Williams, reported in 1st Crompton & Jervis, p. 41, and Allesbrook v. Roach, in 1st Espinasse, 351, said: “It is, in my opinion, infinitely safer and better to abide by the rule which has existed up to the present time, that evidence of handwriting by comparison is inadmissible.” The other judges of the King’s Bench agreed with him.
In a note to the case of Solita v. Yarrow, on p. 134 of 1st Moody & Robinson’s Reports, so much relied upon by the majority of this court, Bolland, Baron, says : “ On a fuller recollection of the case of Griffith v. Williams, he thought it was not the intention of the court in that case, and certainly not; his own, to decide anything more than that the jury were at liberty to compare the disputed handwriting with that of documents, which were in evidence in the cause, independent of that question.”
■ In the case of Allport v. Meek, 4 C. & P., p. 266, on an application to prove an endorsement by comparing it with an acceptance of the bill, after the defendant had acknowledged that the acceptance was his, Tindal, J., stopped the counsel and said, “ You must call some ivitness to lay some evidence before the jury, on which they may decide.” Whereupon a non-suit was taken. It may be said by the majority of the court that in the case now under consideration some evidence had been placed before i't from which they might decide. I hope I shall be i>ardoned for saying that this is not apparent.
The only evidence before this court was that of the signature to the petition, which it was admitted was in the handwriting of claimant. There vras no other evidence of any description, and this is not the evidence contemplated by judges or text writers in this connection.
In 7 C. & P. Reports, p. 548, Bromage v. Rice, action, assumpsit on note, counsel for plaintiff tendered in proof a great number of other bills and notes, which bore the signature of the defendant, and which had been paid by him, so that the jury might compare the handwriting of those signatures with the signature in dispute in that case; aud cited the cases of Allesbrook
The opinion of Lord Kenyon in the case of Allesbrook v. Roach is often relied upon as authorizing' proof of handwriting by comparison; with what propriety may be determined by a reference to “Peake’s Cases,” where he said on the trial of the case of Macferson v. Thoytes, that “ comparison of hands is no evidence. If it were so, the situation of a jury who could neither write nor read would be a strange one, for it is impossible to compare the handwriting.” The reason assigned for rejecting the proof does not apply to this court, but docs ai^ply to a large number of jurors at this time, even in this countay$ but the rules of evidence were not designed for particular courts or cases, nor are they so flexible that this court may bend them at pleasure to adapt them to each particular case presented. Broome, among his Legal Maxims, p. 109, adopts, this: “ Every innovation occasions more harm and derangement of order by its novelty than benefit by its abstract utility.”
In a note to the case of Macferson v. Thoytes, already mentioned, to be found on the 30th page of Peake’s Cases, referring to the case of Brookbard v. Moodley, which was tried before Yates, J., he said, referring to proof by comparison of hands, “ I have no doubt to reject this evidence as not admissable. I do not know any case ichere comparison has been allowed to be evidence at all.” “ No trial cán be decided by opinion and speculation, but by evidence. ■ But where it is merely opinion on similitude of the writing collected from barely comparing them, the jury may compare them as well as anybody else; and any two people may think differently.” He rejected the evidence and would not allow it to go to the jury.
On the prosecution of Jackson, by Joseph Castor, esq., on an information for a libel, before Baron Efotham, reported in 4th Espinasse’s Reports, p. 117, this question of proof by comparison of hands was very elaborately discussed by G-arrow, so famous for his skill in the examination of witnesses, and Sergeant Best, afterward judge, assisted by two others, on the one side, and the attorney general, assisted by three others, on
In his argument, Mr. Harrow, insisting that the same rules of evidence apply to criminal and civil cases, remarked: “ I invite anybody who has an appetite, to stand forward and contradict me.”
The indexes and text-books refer to numerous other cases, where like decisions were made; but I shall only quote from one other decision, viz, that by Lord Chancellor Eldon, to be found in the Reports of Vesey, junior, Sumner’s edition, pp. 438 and 474, 475, 476, and 477, in the case of Eagleton and Coventry v. Kingston, where, after commenting upon the cases decided at common law, where the question of comparison of handwriting was involved, and pronouncing decidedly against the admission of such evidence, he relates in his opinion the following anecdote of himself: “A singular circumstance, applicable to this point, happened to me. A deed was tried in Westminster Hall, stated to have been executed under circumstances throwing a good deal of blot upon the persons who had obtained it. The solicitor, who was a very respectable man, said he felt satisfaction that there were respectable witnesses. One was the town clerk of Newcastle, and I was the other. I could undertake, to a certainty, that the signature was not mine, having never attested a deed in my life. He looked back to my pleadings and wa's sure it was my signature, and if I had been dead would have sworn to it conscientiously. Suppose I had been out of the kingdom and had come into Westminster Hall during the trial, and had positively sworn that I never attested a deed in my life, would it not have been competent to the jury or the witness to say that it was a mistake Í That instance proves that testimony of handwriting must be open to the consideration of circumstances at common law.”
All dispute about the weight of authority in England in favor of proof by comparison of handwriting is settled by act of
If the law in Great Britain had been as the majority of the court insist it was, at the time of the cases cited by them, no such enactment would have been made or considered necessary.
The policy of such an enactment, or of making proof by comparison of hands, I have nothing to do with. I find the law laid down for me by the Supreme Court as applicable to this question, and I obey it.
Giving regard to the American decisions upon the question of comparison of hands, I find in the 6th of Peters, 763, Strother v. Lucas, this positive declaration: u It is a general rule that evidence hy comparison of hands is not admissible where the witness has had no previous knowledge of the handwriting, hut is called upon to testify merely from a comparison of hands. There may be cases where, from the antiquity of the writing, it is impossible for any living witness to swear that he ever saw the party write, comparison of handwriting has been admitted. But these are extraordinary instances, arising from the necessity of the case, and which do not apply to the one before the court.”
Nor do they apply to the case now under consideration. There are doubtless many living witnesses who can testify to the handwriting of this claimant. As- for that, the defendants have the privilege of making her a witness in the case. The letter was written about sis years ago, and is in full youthful vigor, and there is no odor of antiquity about it. There are no circumstances connected with the letter which places it outside of the rule laid down by the Supreme Court. There is no necessity for establishing the authenticity of this letter by comparison; no excuse for a resort to short cuts or surprises, by which the claimant may be injured.
If the letter should defeat the claimant, so let it, otherwise
Judge Washington, in the trial of one Sprague for counterfeiting, said: “I' confess for myself, I never was well satisfied with the reason of the general rule,-that comparison of handwriting is not competent evidence to go to the jury. Nevertheless, I consider the mle so settled for a long time in England; and the decision of this court in the case of Martin v. Taylor proceeded upon that ground.” (Washington C. C. Reports, p. 729.)
In the case of Myers v. Toscan, (3 New Hampshire, p. 47,) Chief Justice Richardson, in announcing the decision of the court, said: “We take it to.be a well-settled principle of law, that it cannot be left to a jury to determine whether a signature is genuine or not, merely by comparing it with other signatures that are genuine.”
“As it was submitted to the jury in this case, to decide by a mere comparison of handwriting, we entertain no doubt there must be a new trial.”
in 9th Cowen’s Reports, pp. 94 and 112, Jackson v. Phillips, Savage, Ch. J., says: “In Tilford v. Knott, (2 Johnson’s Cases, 211,) Kent, J., said: “ Et is usual for witnesses to prove handwriting from previous knowledge of the hand, derived from having seen the person write, or from authentic papers received in the course of business. If the witness has no previous knowledge of the hand, he cannot then he permitted to decide it in court from a comparison of hands. The same rule is admitted in Jackson v. Van Duzen, (5 John. R,, 155,) and it is there said, where a different practice has prevailed with us I presume it will be found that the comparison, either by witnesses or by the jury, has been by consent.”
In Jackson v. Van Duzen, (5 Johnson, pp. 144-155,) just referred to, Van Ness, J., said : “It is supposed that this was an attempt on the part of the plaintiff to prove Wheeler’s handwriting by what is termed 1 comparison of hands,’ which it is contended, according- to the prfesent settled law, is not competent testimony.” “ I hy no means. intend to controvert the rule as stated ; but according to my understanding of the evidence given, it has no application to this case.” See, also, Osgood v. Dewey, (13 Johnson, p. 239.) I might multiply authorities from the State of New York, sustaining the view I have taken of this rule of evidence, to almost any extent. 4th Kernan, (14 New
Judge Nicholas, of Kentucky, for the Court of Appeals, said: u The defendants offered in evidence a paper purporting to have been signed by the plaintiff, proffering to prove his signature to other writings, and then by comparison to show that this also was signed by him. The court properly refused to permit it to go in .evidence upon such proof.” He then stated that in cases of ancient writings, where it is impossible to find living witnesses, and sometimes in corroboration of other proof, comparison has been permitted; and adds, 11 .But alone and without other proof \ the general rule is not to admit it.”
If there are those who are not convinced by the authorities I have cited, that mere comparison of hands does not authorize a court or jury to come to a conclusion as to the fact of the genuineness of a signature, I would refer them to note 256, beginning on page 478 of Cowen & Hill’s Notes to Phillips’s Evidence, 4th vol. It will there be found that the learned authors of those notes, after citing all the decisions upon this question, conclude that mere unaided comparison of handwriting will not authorize a jury to find in favor of the genuineness of any specimen presented.
This conclusion is supported by Leigh’s Eeports, vol. 1, p. 22. Also by reported cases in the courts of the United States for the districts of Pennsylvania, South Carolina, and Ehode Island.
After a somewhat careful examination of many authorities which I have not quoted, I am not permitted to believe that any proof by a mere comparison of handwriting should be regarded as evidence by any court or jury. Especially in this court should individual knowledge, unsupported by evidence, be excluded from its consideration. No evidence made by and for itself should lead it to conclude in favor of that party which is always a defendant, and always pays the salaries of the judges.
Feeling, as I do, that the practice of introducing evidence at the hearing which is not made any part of the record, and which
As I have already said, this is a new practice, and I am one of those who do not believe that everything new is good, especially in matters depending upon the immortal rules of justice, which have not11 any variableness or shadow of turning.”
Broome, in his Legal Maxims, p. 96, after stating that u the practice of the court is the law,” comments as follows: “ Where a practice has existed, it is convenient to adhere to it, because it is the practice, even though no reason can be assigned for it; for an inveterate practice in the law generally stands upon principles that are founded in justice and convenience. Hence, if any proceeding in action be informal, or be not done in the time limited for it, or in the manner prescribed by the practice of the court, it may be set aside for irregularity.” So I would and do condemn the action of the court in this case,.in making proof for itself by comparison of hands, in disregard of its rules regulating' the manner in which all evidence shall be placed before it, as being so irregular that it deserves to be set aside.
In the opinion of the majority of the court, reference is made to two letters; I never saw or heard of but one; and the correctness of any opinion cannot be verified by a reference to the record, for that does not contain any letter. The inferences drawn from the contents of the letter may or may not be correct ; I do not dispute them ; but as the letter is not in evidence the record does not furnish any justification in support of them.
If the defendant could prove the genuineness of the letter, it should have asked a continuance for the purpose, to which it is not probable there would have been any objection.
I will add here that by chapter 21, section 1, of an act approved April 20,1871, Congress legislated upon this matter, and
If it were possible to state the difference between right and wrong in numbers, it would, in my opinion, be a million times better for the defendant that this claimant, though ever so disloyal, should recover upon the caso she has made, than that this court should disregard either the settled law or its own rules to prevent a recovery. The mischief of such an example cannot be computed. The honor and dignity lost to a great government by the triumph of carrying a petty point over this claimant is a sacrifice that cannot well be made. It is a poor equivalent for abused law or offended justice.
I think the claimant, upon the legal proofs made in the record, should have judgment.
When this dissenting opinion was written, I had not seen or heard the opinion of the court.
I find from it that the petition of the claimant is dismissed because of some other letter written by her, different from that quoted in the opinion, which was never seen by the court, nor its contents made known to it; wherein the claimant had previously u made an offer of service,” not to the rebel president as such, but to Jefferson Davis. What the proffered service was, is only a matter of conjecture; it may or may not have been for his personal benefit, but for that of the confederacy. It may have been for some terrible mischief, or it may have been to serve him as housekeeper or nurse, or in any other of the multifarious' occupations of womanhood, which would not give aid and comfort to the rebellion, which before then had reached a state of despair, although he was at the head of it, unless this should be done by baking his bread, washing his clothes,
The court says that the mysterious and unproduced letter of the 2d January, 1805, of which and its contents there is not even a semblance of proof in the case, “ was an act of aid and comfort to the rebellion.” It may be that it was; but how does the court come to this knowledge ? The whole thing is a chimera. She is denied justice for some unknown reason.
The embarrassment of the court arises from omitting to compel the defendant to make the proper proofs, according to established rules.
I cannot, for the convenience of the defendant, or to excuse its negligence, see what is not to be seen, or make a whale of a cloud, or a cloud of a whale. My idea.of duty does not lead me thus far. If the United States is not willing to be tried by the same rules of law that are applied between man and man, this court had better be abolished.
