is more likely to be a true disclosure of what was really passing in their minds, than their subsequent statements as to their intentions, even if such statements would not be excluded on other grounds."

§ 121. The most striking illustrations of this principle are to be found in those cases in which the sayings, acts, &c., of conspirators have been admitted against other parties accused of participating in the conspiracy.

"It is an established rule," writes Phillips :(t)

"That where several persons are proved to have combined together for the same illegal purpose any act done by one of the party in pursuance of the original concerted plan, and with reference to the common object, is, in the contemplation of the law, the act of the whole party; it follows, therefore, that any writings, or verbal expressions, being acts in themselves, or accompanying and explaining other acts, and so being part of the res geste, and which are brought home to one conspirator, are evidence against the other conspirators, provided it sufficiently appear that they were used in the furtherance of a common design."

:

§ 122. Hardy's case (v) is the leading case on this point where letters written by co-conspirators in furtherance of their common object, and writings distributed by them, were received in evidence against the accused. So also in Lord George Gordon's case(w) the inscriptions on banners carried by the mob were properly received in evidence against illiterate prisoners who could not read: not, you will observe, to prove the fact of their complicity in a conspiracy: but, that complicity having been in the first instance established by proving the acts of the prisoners, to show what was the common. object of the rioters.

§ 123. The case of Hardy above referred to affords also a valuable illustration of the Law that hearsay statements, &c., will not be receivable if not actually part of the gesta.

On this point Phillips() writes lucidly as follows:-

"But where words or writings are not acts in themselves, nor part of the res gestæ, but a mere relation or narrative of some part of the transaction, or as to the share which other persons have had in the exccution of a common design, the evidence is not within the principle abovementioned; it altogether depends on the credit of the narrator, who is not before the Court and therefore it cannot be received.

(t) See vol. 1, p. 157.
(r) 24 Howell's St. Tr. 704.

(w) 21 Howell's St. Tr. 542.
(x) vol. 1, p. 160.

"Thus on the trial of Hardy for high treason, a question arose as to the admissibility of a letter written by Thelwall, and sent to a third person not connected with the conspiracy, containing seditions songs, which the letter stated to have been composed and sung at the Anniversary Meeting of the London Corresponding Society, of which society the prisoner and the writer of the letter were proved to be members. The argument in favor of the admission of the evidence was, that the letter was an act done in furtherance of the conspiracy; that the letter contained language of incitement, not merely a narrative or confession by a stranger, and that in such case scribere est agere. The objection was, that the letter contained merely a relation by the writer, that certain songs had been sung, which could not be evidence against the prisoner. The majority of the Court decided against the admissibility of the letter. Eyre, C. J., Macdonald, C. B., and Hotham, B., were of opinion, that the letter could not be received. Buller, J., (with whom Grose, J., agreed in thinking it admissible) said, the letter ought to be received in evidence, for the purpose of showing what was the nature and extent of the conspiracy; that in Damaree's and Purchase's cases, evidence was received of what some of the parties had done, when the prisoner was not there; that, on the trial of Lord Southampton, something said by Lord Essex previous to the prisoner's being there, was admitted as evidence: and that in Lord George Gordon's case, evidence of what different persons of the mob had said, though he was not there, had been admitted. But Eyre, C. J., and the other Judges considered the letter, not as an act done in prosecution of the plot, but as a mere narrative of what had passed. 'Correspondence,' said the Chief Justice, 'very often makes a part of the transaction, and in that case the correspondence of one who is a party in a conspiracy would undoubtedly be evidence, that is, a correspondence in furtherance of the plot; but a correspondence of a private nature, a mere relation of what had been done, appears a different thing.' And with respect to the cases alluded to by Buller, J., the Chief Justice observed, 'In the cases of Damaree and Lord George Gordon, the cry of the mob at the time made a part of the fact, part of the transaction, and therefore such evidence might properly be received.'

"It is in consequence of the distinction between writings or declarations which are a part of the transaction, and such as are in the nature of subsequent statements, but not part of the res geste, that the admissibility of writings often depends on the time when they are proved to have been in the possession of co-conspirators; whether it was before or after the time of the prisoner's apprehension. Thus on the trial of Watson, some papers, containing a variety of plans and lists of names, which had been found in the house of a co-conspirator, and which had a reference to the design of the conspiracy, and in furtherance of the alleged plot, were held to be admissible evidence against the prisoner. All the Judges were of opinion that

these papers ought to be received; inasmuch as there was in the case strong presumptive evidence that they were in the house of the co-conspirator before the prisoner's apprehension: for the room in which the papers were found had been locked up by one of the conspirators. And the Judges distinguished the point in this case from a point cited from Hardy's case, where the papers were found, after the prisoner's apprehension, in the possession of persons who, possibly, might not have obtained the papers till afterwards."

§ 124. Bearing in mind these particular cases in which evidence, though not delivered on oath or subject to cross-examination, is in the nature of original evidence, let us return to a consideration of Hearsay cammonly so called. (3)

(y) Starkie is, I think, somewhat puzzling to the student in this part of his subject, for in page 53 he makes a distinction between mediate original, and mediate secondary evidence. The general idea of original and secondary evidence makes them correspond respectively with Immediate and Hearsay; and to introduce the same division into one branch (mediate or hearsay) is confusing. I have therefore abandoned our author here, but must endeavour to make his meaning clear in a note for the benefit of those students who are perusing his work. Starkie's divisions would stand as follows:

Mediate evidence says Starkie (p. 53) of general reputation, pedigree, admissions, declarations accompanying in act, is in its nature original: all other mediate testimony is secondary. Now by this he means simply that as to the first class, there really is nothing behind, which could be of a better quality, or which could possibly be resorted to: whereas with respect to the second class, it pre-supposes the existence of better evidence, the absence of which must be accounted for, before any recourse can be had to the secondary evidence. Let us try this by two examples. Suppose mediate evidence were offered to prove a matter of pedigree, suppose also mediate evidence were offered to prove a fact by means of an entry made in a deceased person's book according to the ordinary custom of his trade. Then these two heads of evidence, according to Starkie, would stand thus

Now suppose that the link in the chain of Pedigree to be proved, were 100 years back, it is clear that there is nothing better than the hearsay of the old deceased persons which the witness reports. There is nothing to fall back upon, nothing behind this; nothing in short to be accounted for before such evidence was admissible, and so far it is in the nature of original evidence.

But take the other case: when an entry is produced, and is proved to have been made by a deceased person in the ordinary course of his business, it is receivable in evidence. But if the person who made the entry had been alive, his own testimony would have been better than his entry. He might it is true, have refreshed his memory by a reference to his book, but the book itself would not have been independent evidence. He would have deposed on

CHAPTER IX.

HEARSAY EVIDENCE GENERALLY.

§ 125. It is never receivable if better evidence is procurable and kept back, for otherwise the fundamental rule which requires that the best evidence which each case admits of shall be produced, would be violated. But there are certain subjects which cannot possibly from their very nature admit of the production of immediate evidence, because they are not the subjects of the senses at all; such as relationship, character, custom, prescription and the like. In some of these instances, it is true that immediate evidence possibly might be producible, but very rarely. Character is clearly matter of opinion, and not of the senses: Relationship might occasionally be proved by the immediate testimony of a midwife, or a surgeon, or a mother, but generally speaking, relationship is not probable by immediate testimony. So of pedigree; suppose the link to be proved existed 100 years back. The witnesses almost to a certainty would be all dead, and in all these cases cessante ratione cessat lex, hearsay evidence is receivable,

§ 126. The following observations sum up the whole matter.(*)

The chief merit of the English law of evidence, a merit which in some measure atones for that predilection for absurdity which seems to have animated some of its earliest sages, and not quite to have abandoned their posterity, consists in the general exclusion of hearsay evidence; that one man shall not be affected by what another says of him, which he has no opportunity to examine or contradict, is a dictate of natural justice; and however it may be argued that such evidence ought to be admitted, and left to find its own level, yet so long as juries are entrusted with the decision of facts, and those juries in the greater number of instances are taken from a

oath and subject to cross-examination—whereas, after his death, his entry is not subject to any such test of its truth. In this case therefore, as there might be better testimony than the secondary or hearsay evidence of the entry, it becomes necessary to satisfy the Court that no such better evidence exists: in other words that the party making the entry is dead, and the source of original evidence being thus exhausted, the secondary evidence of the entry itself becomes receivable: thus illustrating the rule that secondary evidence is never admissible so long as orginal evidence of the same fact is procurable. This is all that Starkie means by his division or sub-division of mediate testimony into original and second. ary. I have adopted with Phillips the simpler course of considering in what cases hearsay, or mediate evidence is receivable.

(*) Law May., N. S., vol. 1, p. 34,

portion of the community peculiarly susceptible of prejudices, any substantive alteration of this rule would lead to the most pernicious consequences. Vanæ voces populi non sunt audiendæ, nec enim vocibus eorum credi oportet, quando aut noxium rimine absolvi aut innocentum condemnari desiderant.

"Perhaps the most remarkable exception to this important doctrine is, that by which the English law, dispensing with its formal rules in favor of higher principle, allows hearsay evidence to be given when it tends to explain an act done, and forms part of a particular transaction: nothing can be more sound than the reasoning on which this exception is admitted; an action may bear a totally different interpretation, according to the words by which it is accompanied-nay, in many cases, an action would be altogether unmeaning were it not for words which individuate it, and impart to

a peculiar and distinctive signification; the same cause, therefore, on account of which evidence of the act is given, obliges evidence of the expression with which it is accompanied to be received. Thus, where a question arises as to the validity of an insurance, impeached on the ground of fraud committed by the party for whose benefit it was made, evidence of declarations made by the party whose life was insured is admissible. So where a tradesman leaves his house, evidence may be given of his declarations as to the motives of his absence; so his declarations as to the state of his affairs are evidence, and the answers may be read to letters written by him and requesting assistance. Another exception is, where hearsay is admitted to prove a public right; in such cases that the fact of tradition exists among those who have the means of knowledge, and an interest in perpetuating that knowledge, is a circumstance entitled to great consideration; it is a moral fact, not obvious to the senses. No other evidence can be given, that such rights exist, but the prevalence of such traditions among the people. Such a persuasion is the very fact sought to be established; if it can be traced to the period when those rights were exercised, if it be constant and general, if no specific date can be assigned to its origin, hearsay is thus stripped of its most dangerous qualities; it ceases to be the loose. random declarations of an individual, and assumes a character of constancy and truth in proportion to its extent and accuracy."

§ 127. Mediate or hearsay evidence is receivable,

1st. In matters of public and general interest,

2nd. In questions of ancient possession,

3rd. In matters of pedigree,

4th. In cases of dying declarations,

5th. In cases of declarations made against the interest of the

person making them.