required to extend to a knowledge of one person's handwriting-to show how much a writer differs from himself; whereas, in the other case he is expected to be able to tell how much the writer differs from some third person. The case of Moody v. Rowell, I submit, fully covers the ground contended for. But there is one English authority, also, directly in point. I refer to Rex v. Cato, 4 Esp. 117. In that case, which was prosecution for libel, the point was distinctly ruled that an expert might prove that a document was written in a disguised hand by the prisoner. I may be permitted, perhaps, to refer also to the ruling of a lower court, the Municipal Court, in two other trials, which were considered of great importance; that of George Miller, where both of my learned friends were engaged, and that of Eastman, Fondey & Co., a case which attracted great attention at the time. In both these cases experts were admitted to testify to handwriting, for the purpose of which we offer the same kind of evidence, now. Nor am I aware that there is any decided case at variance with our position.

Mr. Merrick. The precise question now presented to the court has never been decided, that I am aware of. In Moody v. Rowell, the genuineness of the instrument was denied; here its authenticity is asserted by the government. The papers there purported to have been written by the party in whose name they stood; whereas, here, there is no suggestion that these letters purport to have come from Dr. Webster. Their very idea, as suggested upon the other side, is that of anonymous, or disguised communications, and in a disguised hand.

Mr. Clifford. We shall contend that one of them is in Dr. Webster's handwriting, upon its very face.

Mr. Merrick. The attempted mode of proof of that fact at any rate is not the common one. It is proposed that an expert may take these papers, which do not purport to have been written by the defendant, and which it is not pretended are in the similitude of his handwriting, and may testify whether they are or not of his writing. It will be attempted to be shown by this expert, I presume, that they may be, or actually are, his, by analyzing the letters and tracing the form of particular strokes of the pen, so as to connect the character of the manuscript with his. And now when we say that all experimental proof of handwriting by opinion is of the weakest and most questionable kind of evidence, we submit, whether it will not be an extension of the rule to permit experts to testify in the manner proposed.

The Attorney General. I find that my friends on the other side confine their remarks to one particular letter which is of a peculiar character. I ought to have added, when I was up just now, that we expect to show that that document could not have been written by a pen. We also expect to satisfy the jury from the testimony of Mr. Gould, that it could only have been written by an instrument which was found in the private room of Dr. Webster. This presents another ground for the proof of that particular document in the manner in question.

Mr. Merrick. I have only to say that we do not object to the rule which has been heretofore adopted. It is only to its further extension. With respect to the last suggestion, I have no opinion to express, whether an expert can or cannot prove that a writing was produced by some other instrument than a pen. Certainly the witness has not yet laid the foundation for the expression of any such opinion by showing a knowledge or skill upon the point.

The CHIEF JUSTICE. We do not see that the precise point presented gives rise to the objection which has been taken and discussed. The witness was asked whether he had a personal knowledge of the defendant's handwriting, and he has stated that he has. His experience qualifies him to say this. Papers have passed under his notice in a business or official capacity which have given him a long and familiar acquaintance with the defendant's handwriting, and he seems, therefore, competent to give an opinion in regard to it, independent of any skill of his own as a penman, or as a judge of penmanship.

In regard to the term handwriting, we think that it should include generally what the party has written with his hand and not merely his common and usual style of chirography. This question of proof of handwriting most commonly arises and is discussed in cases of forgery. But there are other cases where the evidence of experts is applied to handwriting. One is in prosecutions for Threatening Letters or for Arson. There, the question is generally made that they are not genuine on the part of the person purporting to send them, but simulated and disguised and the proof shows that the writer did not seek to imitate a hand but to depart as far as possible from his own. The evidence has always been considered admissible in those instances.

How much further the counsel for the government mean to go, here, we do not know, but at present we think that the letters may be put into the hands of the witness for the purpose of allowing him to say whether they were, or were not, written by the defendant.

Mr. Bemis. State then whether you can recognize the handwriting of this letter [showing Civis letter], and whose, in your opinion, it is? State also your reasons for your opinion. Mr. Gould. I think it is in Dr. Webster's handwriting. In giving my reasons for my opinion there

are some circumstances which may appear trifling to a person who has not attended to the subject. But yet I consider them important. When any one undertakes to forge a hand, there are only two ways in which he can do it.

Mr. Merrick. Did I understand the court, that the witness could go farther than give his opinion? Or is he to state the grounds and reasons for that opinion, which will involve the whole point in issue? The witness has stated his belief, that this is the handwriting of Dr. Webster, and he suggests that it is a delicate theory by which he may be enabled to explain it. This is somewhat peculiar, and different from the ordinary practice.

The Attorney General. If you will allow me I will make one suggestion more. I suppose that the witness, so far as he is introduced here, as an expert, stands precisely upon the footing of any other expert; like Mr. Tyler, the twine manufacturer, for instance, who was examined yesterday. If so, then he is to state the foundations of his opinion, like any other expert. The delicacy of the theory, as it is termed by the learned counsel may be a matter of opinion. It may be that this delicate theory will be made so perfectly transparent by the witness as to satisfy every mind that it is palpable and clear in the nature of things, and that I suppose is for the jury to decide, and not to be predetermined here. I trust that the witness will be allowed to explain the grounds of his opinion.

The CHIEF JUSTICE. I do not understand that there is any theory to advance. It is an opinion upon the question of handwriting. The witness has stated that he believes it to be the defendant's, and we think that it is perfectly competent for him to point out the circircumstances which constitute the grounds of that opinion.

Mr. Bemis. I suppose that it will be competent for the witness to make use of one or more of the genuine letters in the case as a means of explanation of his opinion.

The CHIEF JUSTICE. That will be a subject for consideration hereafter, if necessary.

Mr. Bemis. State the grounds of your opinion then, that this is in Dr. Webster's handwriting, from your own personal observation of it.

Mr. Gould. It is impossible for me to explain the reasons for my opinion without going into some particulars which may seem very trivial, but which are absolutely necessary for my purpose. In all the practice that I have ever had in writing, I never have been able to satisfy myself that I could make two letters precisely alike so perfectly similar as to correspond throughout if placed one upon the other. And yet, I never saw two handwritings which I could not distinguish; when I have had a large number of scholars in writing, I have always been able to tell which of them wrote the specimens exhibited to me. There is some peculiarity in every one's writing which enables a person

to identify it, and it is next to impossible to get rid of that peculiarity when the attempt is made to disguise it. I should be very glad to answer only yes or no, but I can only point out those similarities of handwriting inquired of in my own way.

Every man who undertakes to disguise his hand must do it either by carelessness or by carefulness; by carelessly letting his hand play entirely loose, as in mere flourishing, or by carefully guarding every stroke which he makes in order to prevent its being seen to be his. In this latter mode, it is next to impossible for any person to continue his observation for any great length of time, or through any considerable amount of writing, without making some of those letters which are peculiar to himself or making them in that peculiar manner, which he has been accustomed to. Fre

OPENING OF MR. SOHIER, FOR THE PRISONER.

Mr. Sohier. May it please your Honor, and Gentlemen of the Jury: I am aware that it is usual-perhaps it may be considered as imperative upon the counsel, in a case like this to call the attention of the jury to the situation of their client; and to comment, in strong language, upon the importance the vast importance-of the interests which he has at stake. But, gentlemen, I shall not do this; I cannot do it.

I fear much, gentlemen, that, should I permit my attention here to wander from the cause to the party, from the record to the dock, I might be lost. I might, perchance, perceive nothing but the man who, for more than a quarter of a century, has been a respected professor in that university which is the pride of our state; a respected lecturer in that college which is one of the boasts of our city; the man under whose instruction many now present at this trial were educated, myself among the rest; I should see him struggling for his life; struggling for his reputation; struggling to avert infamy from himself and from his children, in that self-same dock where we have been accustomed to see felon after felon, to abide the judgment of the law. I might think of these things, gentlemen, and I might wander from the case.

I must, on the contrary, rather follow-though necessarily it needs must be at a long and humble distance-in the footsteps of the eloquent counsel who opened this case in behalf of the government; and I must allude, gentlemen, briefly, to our duties here; to our relative situation, and relative responsibility to the cause; the rules of law applicable to the charge involved in it; and the rules of evidence, as applicable to its long details of circumstantial testimony.

We are here, gentlemen, as the learned counsel told you, in the discharge of our various duties as officers and as ministers of the Court, to discuss and determine that one great question, which, for months, has absorbed the attention, and has agitated to their very lowest depths the feelings of a great