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tempt was made to cross-examine her, and on the termination of her evidence the court adjourned for lunch. When it reassembled James Short called Augusta, and a murmur of expectation arose from the densely crowded audience as-feeling very sick at heart, but looking more beautiful than ever-she stepped towards the box.
As she did so the attorney-general rose.
“I must object, my lord,” he said, “ on behalf of the defendants, to this witness being allowed to enter the box.”
“Upon what grounds, Mr. Attorney?" said his lord
* Upon the ground that her mouth is, ipso facto, closed. If we are to believe the plaintiff's story, this young lady is herself the will of Jonathan Meeson, and, being so, is certainly, I submit, not competent to give evidence. There is no precedent for a document giving evidence, and I presume that the witness must be looked upon as a document."
“But, Mr. Attorney,” said the judge,“ a document is evidence, and evidence of the best sort."
“ Undoubtedly, my lord; and we have no objection to the document being exhibited for the court to draw its own conclusion from, but we deny that it is entitled to speak in its own explanation. A document is a thing which speaks by its written characters. It cannot take to itself a tongue and speak by word of mouth also; and, in support of this, I may call your lordship's attention to the general principles of law governing the interpretation of written documents.”
“I am quite aware of those principles, Mr. Attorney, and I cannot see that they touch this question."
“As your lordship pleases. Then I will fall back upon my main contention, that Miss Smithers is, for the purposes of this case, a document and nothing but a document, and has no more right to open her mouth in support of the plaintiff's case than would any paper will, if it could be miraculously endowed with speech."
"Well,” said the judge, “it certainly strikes me as a novel point. What have you to say to it, Mr. Short ?”
All eyes were now turned upon James, for it was felt that if the point was decided against him the case was lost.
“The point to which I wish you to address yourself, Mr. Short,” went on the learned judge, “is-Is the personality of Miss Smithers so totally lost and merged in what, for want of a better term, I must call her documentary capacity, as to take away from her the right to appear before this court like any other sane human being, and give evidence of events connected with its execution ?"
"If your lordship pleases,” said James, “I maintain
" that this is not so. I maintain that the document remains the document; and that for all purposes, including the giving of evidence concerning its execution, Miss Smithers still remains Miss Smithers. It would
surely be absurd to argue that because a person had a deed executed upon her skin she was, ipso facto, incapacitated from giving evidence concerning it, on the mere ground that she was it. Further, such a decision would be contrary to equity and good policy, for persons could not so lightly be deprived of their natural rights. Also, in this case, the plaintiff's action would be absolutely put an end to by any such decision, seeing that the signature of Jonathan Meeson and the attesting witnesses to the will could not, of course, be recognized in their tattooed form, and there is no other living person who could depose under what circumstances the signature came to be there. I submit that the objection should be overruled."
“This,” said his lordship, in giving his decision, “is a very curious point, and one which, when first raised by the learned attorney-general, struck me with some force; but, on considering it and hearing Mr. Short, I am convinced that it is an objection that cannot be supported” (here Eustace gave a sigh of relief). “It is argued on the part of the defendant that Miss Smithers is, for the purposes of this case, a document, and nothing but a document, and as such that her mouth is shut. Now, I think that the learned attorney-general cannot have thought this matter out when he came to that conclusion. What are the circumstances ? A will is supposed to have been tattooed upon this lady's skin; but is the skin the whole person? Does not the intelligence remain, and the individuality? I think that I can put what I mean more
clearly by means of an illustration. Let us suppose that I were to uphold the defendant's objection, and that, as a consequence, the plaintiff's case were to break down. Then let us suppose that the plaintiff had persuaded the witness to be skinned”—(here Augusta nearly jumped from her seat)—"and that she, having survived the operation, was again tendered to the court as a witness, would the court then be able, under any possibility, to refuse to accept her evidence! The document, in the form of human parchment, would then be in the hands of the officers of the court, and the person from whom the parchment had been removed would also be before the court. Could it be still maintained that the two were so identical and inseparable that the disabilities attaching to a document must necessarily attach to the person? In my opinion, certainly not.
Or, to take another case, let us suppose that the will had been tattooed upon the leg of a person, and, under similar circumstances, the leg were cut off and produced before the court, either in a fresh or a mummified condition : could it then be seriously advanced that because the inscribed leg-standing on the table before the court--had once belonged to the witness sitting in the witness-box, therefore it was not competent for the witness to give evidence on account of his or her documentary attributes ? Certainly it could not. Therefore, it seems to me that that which * is separable must, for the purposes of law, be taken as already separated, and that the will on the back of this witness must be looked upon as though it were in