Your Committee has resorted to the trial of Donellan, and they have and do much rely upon it, first, on account of the known learning and ability of the judge who tried the cause, and the particular attention he has paid to the subject of evidence, which forms a book in his treatise on Nisi Prius;—­next, because, as the trial went wholly on circumstantial evidence, the proceedings in it furnish some of the most complete and the fullest examples on that subject;—­thirdly, because the case is recent, and the law cannot be supposed to be materially altered since the time of that event.

Comparing the proceedings on that trial, and the doctrines from the bench, with the doctrines we have heard from the woolsack, your Committee cannot comprehend how they can be reconciled.  For the Lords compelled the Managers to declare for what purpose they produced each separate member of their circumstantial evidence:  a thing, as we conceive, not usual, and particularly not observed in the trial of Donellan.  We have observed in that trial, and in most others which we have had occasion to resort to, that the prosecutor is suffered to proceed narratively and historically, without interruption.  If, indeed, it appears on the face of the narration that what is represented to have been said, written, or done did not come to the knowledge of the prisoner, a question sometimes, but rarely, has been asked, whether the prisoner could be affected with the knowledge of it.  When a connection with the person of the prisoner has been in any way shown, or even promised to be shown, the evidence is allowed to go on without further opposition.  The sending of a sealed letter,—­the receipt of a sealed letter, inferred from the delivery to the prisoner’s servant,—­the bare possession of a paper written by any other person, on the presumption that the contents of such letters or such paper were known to the prisoner,—­and the being present when anything was said or done, on the presumption of his seeing or hearing what passed, have been respectively ruled to be sufficient.  If, on the other hand, no circumstance of connection has been proved, the judge, in summing up, has directed the jury to pay no regard to a letter or conversation the proof of which has so failed:  a course much less liable to inconvenience, where the same persons decide both the law and the fact.[70]

To illustrate the difficulties to which your Committee was subjected on this head, we think it sufficient to submit to the House (reserving a more full discussion of this important point to another occasion) the following short statement of an incident which occurred in this trial.