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128 TRIAL OF JOHN w. WEBSTER.
to prove that these letters are in the handwriting of the defendant,-
using the term, " handwriting," in its proper and enlarged sense. The
gentleman's argument supposes, that if a. person's handwriting were
generally uniform, but he were occasionally to vary it, that, evidence
of the varied style would be incompetent: whereas, if it were always
uniform we might have the opinion of the expert, to prove or disproN e
it. Such a distinction cannot have any foundation in principle.
it is conceded, that the opinion of the expert is competent to prove
a forgery by another. We seek here, only, to show that the defendant
has been attempting to conceal, or disguise, his own style of writing.
Upon. principle, which is the more suitable subject for proof, by the
expert? Plainly, the latter; for the expert's opinion, then, is onlN-
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 con-
tended 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, than 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 for 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, ipterposing.-We shall contend, that one of them, is
in Dr. Webster's handwriting, upon its very face.
Mr. Merrick, proceeds.-The attempted mode of proof of that fact,
at any rate, is not the common one. It is proposed, than 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 question-
able kind of evidence, we submit, whether it will not be an extension of
the rule, to permit experts to testify in the manner proposed.
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.
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