2 § 390. On the trial of public prosecutions, whether for felony or 362 misdemeanor, instituted by the Crown, the law officers of the Crown, and, perhaps, those who represent them,' are in strictness entitled to reply, although no evidence be adduced on the part of the defendant; but as this is a privilege, or rather a prerogative, which stands opposed to the ordinary practice of the courts, and is, emphatically, "more honoured in the breach than the observance," the true friend of justice will do well to watch with jealousy the parties who are entitled to exercise it. Mr. Horne, so long back as 1777, very properly observed, that the Attorney-General would be grievously embarrassed to produce a single argument of reason or justice on behalf of his claim; and as the rule which precludes the counsel for the prosecution from addressing the jury in reply, when the defendant has called no witnesses, has been long thought to afford the best security against unfairness in ordinary trials, this fact raises a natural suspicion that a contrary rule may have been adopted, and may still be followed, in State prosecutions, for a less legitimate purpose. It is to be hoped that, ere long, this question will receive the consideration which its importance demands, and that the Legislature, by an enlightened interference, will introduce one uniform practice in the trial of political and ordinary offenders.* 3 R., N. P. 59, per Abbott, C. J.; 4 D. & R. 70, S. C.; R. v. Carlile, 6 C. & P. 1 See, however, observations per Martin, B., in R. v. Christie, 1 Fost. & Fin. 75; 7 Cox, 506, S. C. It was there held that the privilege does not extend to the Att.-Gen. of the County Palatine. Neither does it extend to a prosecution directed by the Poor Law Board, R. v. Beckwith, 7 Cox, 505, per Byles, J. But it does apply to Post-Office Prosecutions, and to the Sol.-Gen., as well as to the Att.-Gen., R. v. Toakley, 10 Cox, 406, per Mellor, J.; R. t. Barrow, id. 407. With respect to the Att.-Gen. of the Prince of Wales, see Att.-Gen. of P. of Wales, v. Crossman, 4 H. & C. 568. 2 Resolution of the judges, 7 C. & P. 676; R. v. Horne, 20 How. St. Tr. 664, per Ld. Mansfield; R. v. Marsden, M. & M. 439, per Ld. Tenterden. The same unjust rule prevails in the Revenue side of the Queen's Bench Div., in all cases where the Crown is concerned. M. of Chandos r. Comrs. of Inl. Rev., 6 Ex. R. 464; 2 L. M. & P. 311, S. C., nom. D. of Buckingham v. Comrs. of Inl. Rev. 320 How. St. Tr. 663. Those who wish for further information respecting the subjects discussed in this chapter are referred to Mr. Best's work “On The Right to Begin.” 1 CHAPTER IV. BEST EVIDENCE. § 391. THE FOURTH RULE, which governs the production of 363 evidence, requires that the best evidence, of which the case in its nature is susceptible, should always be presented to the jury. This rule does not demand the greatest amount of evidence which can possibly be given of any fact; but its design is to prevent the introduction of any, which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when better evidence is withheld, it is only fair to presume, that the party has some sinister motives for not producing it, and that, if offered, his design would be frustrated.2 The rule thus becomes essential to the pure administration of justice. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence is attainable. Thus, depositions are in general admissible only after proof that the parties who made them cannot themselves be produced. So, a preliminary agreement, which has been followed up by the execution of a deed of conveyance, cannot be admitted as evidence to show what parcels were subsequently conveyed." But every title by deed must be proved by the production of the deed itself, if it be within the power 1 Gr. Ev. 82, in part. 2 See per Best, C. J., in Strother . Barr, 5 Bing. 151; per Holroyd, J., in Brewster v. Sewell, 3 B. & A. 302; per Jervis, C. J., in Twyman v. Knowles, 13 Com. B. 224; Clifton v. U. S., 4 Howard, S. Ct. R. 247, 248, per Nelson, J. 1 Phil. Ev. 418; 1 St. Ev. 500; Glassf. Ev. 266-278; Tayloe v. Riggs, 1 Pet. 591, 596; U. S. v. Reyburn, 6 Pet. 352, 367; Minor v. Tillotson, 7 Pet. 100, 101. B. N. P. 239. 5 Williams v. Morgan, 15 Q. B. 782. of the party; for this is the best evidence of which the case is susceptible; and its non-production raises a presumption that it contains some matter of defeasance. If there be duplicate originals of a deed, all must be accounted for, before secondary evidence can be given of any one.' 2 § 392. Again, if an instrument, which requires attestation to give 363 it validity, be produced, its execution must in general be proved by calling the subscribing witness; and if there be two such witnesses, it will not be sufficient, so long as one of them is alive, sane, free from permanent sickness, within the jurisdiction of the court, and capable of being found by diligent inquiry, to prove the signature of the other who is dead; for such evidence would merely raise a presumption that the deceased had witnessed all which the law requires for the due execution of the instrument; whereas the surviving witness would have been able to give direct proof. Such direct testimony, therefore, might fairly be considered as evidence of a better and higher nature than mere presumption arising from the proof of the witness's handwriting.* § 393. The rule under discussion excludes only that evidence which itself indicates the existence of more original sources of information; and, therefore, when there is no substitution of inferior evidence, but only a selection of weaker, instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed. For instance, where an instrument is required to be attested by two witnesses, it is only necessary,excepting in the case of wills relating to real estate,―to call one of them, though the other may be at hand. Even the previous 5 1 Alivon v. Furnival, 1 C. M. & R. 292, per Parke, B. 2 See 17 & 18 V., c. 125, & 26; and 19 & 20 V., c. 102, ¿ 29, Ir. 3 Bowman v. Hodgson, 1 Law Rep., P. & D. 362; 36 L. J., Pr. & Mat. 124, S. C. Griffiths v. Griffiths, in Pr. D., 25 Oct., 1884, per Butt, J. 4 Wright v. Doe d. Tatham, 1 A. & E. 21, 22, per Tindal, C. J. 51 Ph. Ev. 418. See Alfonso v. U. S., 2 Story, R. 421, 426. Andrew v. Motley, 12 Com. B., N. S. 526; Belbin v. Skeats, 27 L. J., Pr. & Mat. 56; 1 Swab. & Trist. 148, S. C.; Forster v. Forster, 33 L. J., Pr. & Matt. 113; Ansty v. Dowsing, 2 Str. 1253; B. N. P. 264; Andrew v. Motley, 12 Com. B., N. S. 527, per Byles, S.; Gresl. Ev. 120, 122, 123. 8 364 examination of a deceased subscribing witness, if admissible on other grounds, may supersede the necessity of calling the survivor.' So, in proof or disproof of handwriting, or in proof of the contents of a letter which cannot be produced, it is not necessary to call the supposed writer. Even where it is necessary to prove negatively that an act was done without the consent, or against the will, of another, the person whose will or consent is denied, need not, as we have seen, be himself called.3 § 394. This rule naturally leads to the division of evidence into 365 PRIMARY and SECONDARY. Primary evidence is what has been just mentioned as the best or highest evidence, or, in other words, it is that kind of proof which, in the eye of the law, affords the greatest certainty of the fact in question. Until it is shown that the production of this evidence is out of the party's power, no other proof of the fact is in general admitted. All evidence falling short of this in its degree is termed secondary. The question whether evidence is primary or secondary has reference to the nature of the case in the abstract, and not to the peculiar circumstances under which the party, in the particular cause on trial, may be placed. It is a distinction of law, and not of fact; referring only to the quality, and not to the strength of the proof. Evidence, which carries on its face no indication that better remains behind, is not secondary, but primary. § 395.5 But though all information must, if possible, be traced ? 366 to its fountain head, yet if there be several distinct sources of information of the same fact, it is not in general necessary to 1 Wright v. Doe d. Tatham, 1 A. & E. 3. 2 R. v. Hurley, 2 M. & Rob. 473, Hughes' case, 2 East, P. C. 1002; M'Guire's case, id.; R. v. Benson, 2 Camp. 508; Liebman v. Pooley, 1 Stark. R. 167; Bank Prosecutions, R. & R. 378. 3 Ante, 371; R. v. Hazy, 2 C. & P. 458; R. v. Allen, 1 Moo. C. C. 154; R. v. Hurley, 2 M. & Rob. 473, where it was held that, on an indictment for forging a cheque, the party, whose name is supposed to be forged, need not be called, either to disprove the handwriting, or to show that he did not authorise any other party to use his name. Gr. Ev. 84, in part. Gr. Ev. 84, as to first four lines. show that they have all been exhausted, before recourse can be had to secondary evidence with respect to one of them. For instance, if it be requisite to prove that a collector, who is a stranger to the suit, has received certain sums of money, that fact may obviously be established by calling, either the collector himself, or the parties who paid him, and both these modes of proof are equally primary. But suppose the collector be dead; in this case the only primary evidence is the testimony of the persons from whom the money was received. Still the law does not require the production of these persons, but, on proof of the collector's death, it will admit any entries in his book acknowledging the receipt, though such entries are merely secondary evidence of the fact in issue; and if the book be in the hands of the opposite party, who, after notice, refuses to produce it, even secondary evidence of its contents will be admissible. The distinction between this case, and that of the two subscribing witnesses to an instrument,where, as we have seen, proof must be given that both the witnesses are unable to be called, before evidence of the handwriting of one of them can be received, seems to rest on this, that the attesting witnesses are either rendered necessary by statute, or at least have been solemnly chosen by the parties, as the persons on whose united testimony they wish to rely, and, consequently, so long as one of them can be called, secondary evidence respecting the other cannot be admitted. 2 § 396. The cases which most frequently call for the application 367 of the rule now under consideration, are those which relate to the substitution of oral for written evidence; and the general rule of law with respect to this subject is, that the contents of a written instrument, which is capable of being produced, must be proved by the instrument itself, and not by parol evidence. This rule, which 1 Cutbush v. Gilbert, 4 Serg. & R. 555; U. S. v. Gibert, 2 Sumn. 19, 80, 81; 1 Ph. Ev. 421. 2 Middleton v. Melton, 10 B. & C. 322, 327, 328, per Bayley & Parke, Js.; Barry v. Bebbington, 4 T. R. 514. 3 Ante, § 392. Gr. Ev. 85, as to first three lines. The Queen's case, 2 B. & B. 289. H T |