BULES OF EVIDENCE ARE OF VAST IMPORTANCE TO ALL ORDERS LORD Chief Baron GILBERT makes a question, which of the two, written or unwritten evidence is to be preferred in the scale of probability, when they stand in oppofition to each other. CICERO, fays the learned judge, in his declaiming for Archias, gives a handsome turn in favour of unwritten evidence pleading for the freedom of the poet, when the tables of the enfranchisement were loft; he fays," But here you demand the production of the "archives of Heraclea, which it is known to us all pe"rifhed in the Italian war. Ridiculous! to have no "reply to the evidence in our poffeffion; and to demand "that which it is impoffible we should have! to difre"gard the recent information of men, and to insist on "the authority of registers! and when you have the "illuftrious fanction of a man of the first eminence and "honour, the uncorruptible teftimony of a free city, "to require proof from tables, which yourselves ac"knowledge to be often corrupted !" 3 Б But, But, fays GILBERT, the balance of probability is certainly on the other fide; for the testimony of an honest mao; however fortified by the folemnity of an oath, is yer hable to the imperfections of memory; and as the remembrance of things fail and go off, men are apt to entertain opinions in their ftead; and therefore the argument turns the other way in moft cafes, for contracts reduced to writing, are the most certain and deliberate acts of the mind, and are more advantageously secured from all corruption, by the forms and the folemnities of the law, than they poffibly could have been if retained in memory only. Gilb. Evid. by Loft, 7. NOTE-The first chapter of the fecond book is equally introductory to this. The principle there laid down pervades and directs the reception or rejection of every matter offered in evidence, and the application of every rule; that is, that in order to obtain for the jury legal demonftration, the best evidence that the nature of the charge is capable of must be given. Vide book 2. ca. 1. 342, to p. CHAPTER I. Of Similarity of Hand-writing. Rule the First. THOUGH mere comparison of hand-writing is admiffible evidence under particular circumstances, refulting from the neceffity of the cafe in civil actions, yet it is not admiffible evidence on criminal profecutions. GILBERT, C. B. fupports the antiquity and juftice of this rule. He fays, that the comparison of hands only, fhould be proof in a criminal profecution, was never law, but in the time of James the fecond, and the diftinction has ever been taken, that the comparison of hands is evidence in civil, but not in criminal cafes. Gilb. Evid. by Loft, 54. The |