species of secondary proof, by no means opens a door to all sorts of evidence, however loose, which a party chooses to tender.' The contents, therefore, of a written instrument which is lost cannot be proved by means of a copy, until it be shown that such copy is accurate; and if, as frequently happens, a party to the suit has himself made a copy of a letter which he has sent to his adversary, this copy, should the adversary refuse to produce the letter after notice, cannot be read in evidence, unless the party who made it can swear to its accuracy, or some other witness can be called who has compared it with the original. Neither can a document be proved by the production of the copy of a copy,' for such evidence would be rejected on the broad ground which renders hearsay evidence inadmissible. The opponent would have a right to object, that, assuming the second copy to correspond exactly with the first, the first must be produced and proved to have been compared with the original, or otherwise there would be nothing to show that the second copy and the original were identical. Such evidence would in fact be but the shadow of a shade.

2

1 Everingham v. Roundell, 2 M. & Rob. 138, per Alderson, B. Fisher v. Samuda, 1 Camp. 193, per Lord Ellenborough.

3 Liebman v. Pooley, 1 Stark. R. 167, per Lord Ellenborough. Everingham v. Roundell, 2 M. & Rob. 138.

CHAPTER VI.

EVIDENCE ADDRESSED TO THE SENSES.

§ 498. THE first degree of evidence, and that which, though open to error and misconception, is obviously most satisfactory to the mind, is afforded by our own senses.' "Believe half what you see, and a twentieth part of what you hear," is a maxim, which reflects severely upon human intelligence and veracity, but which, nevertheless, is founded in the main upon the experience of life, and marks the vast distinction that obtains between a knowledge of facts derived from actual perception, and the belief of the existence of facts resting on the information of others. In judicial proceedings, the judge or jury can seldom act entirely upon evidence of this description, though, when pregnancy is pleaded, a jury of matrons is empowered to decide the issue upon examination of the person of the prisoner; but in a vast number of instances, especially where the fact in dispute is sought to be proved by circumstantial evidence, the verdict will be found to rest materially upon matters submitted to the ocular inspection of the jury. Thus, if a prisoner be indicted for stealing corn, and one of the circumstances tending to establish his guilt, be his possession of wheat apparently resembling a quantity from which a portion has been recently taken, it is evident that a comparison by the jury of the wheat found upon the prisoner, with a sample of that belonging to the prosecutor, will be more satisfactory than if its identity be sworn to by a witness who, out of court, has examined the two lots. It is true that the jury may come to an

1 Segnius irritant animos demissa per aurem,

2

Quam quæ sunt oculis subjecta fidelibus, et quæ

Ipse sibi tradit spectator."-HOR. Ars Poet. 1. 180.

2 Baynton's case, 14 How. St. Tr. 630, 631, 634; 1 Hale, 368; 2 id. 413; R. v. Wycherley, 8 C. & P. 262. By this last case it appears, that the matrons may, in addition to their personal inspection, hear the evidence of a surgeon, but in that event he must be examined as a witness in open court. See Countess of Essex's case, 2 How. St. Tr. 802.

erroneous conclusion in such a case; for either the witnesses, who state that the two parcels of wheat produced were respectively taken from the prisoner and the prosecutor, may intentionally or accidentally assert what is not true, or the jurors themselves may be mistaken in assuming the identity of the grain. Still, both these sources of error will equally exist, in the event of a witness being called to state the result of his previous examination of the two samples. And this last course will be further open to the objection, that such a witness may with little danger tell a fabricated story, since examination as to mere matters of opinion is almost necessarily inconclusive, and consequently the jury run the additional risk of being misled by his fraudulent testimony.

§ 499. These observations apply to all cases, in which the guilt or innocence of a prisoner depends upon the identity or comparison of two articles found in different places; as, for example, the wadding of a pistol with portions of a torn letter found on the person of the accused, or the fractured bone of a sheep with mutton found in his house, or fragments of dress with his rent garment, or property damaged with the instrument by which the damage is supposed to have been effected. In all these, and the like cases, it is highly expedient, if possible, to produce to the Court the articles sought to be compared; and although the law in demanding the production of the best evidence, does not expressly require that this course should be adopted, but permits a witness to testify as to his having made the comparison, without first proving that the articles cannot be produced at the trial, their non-production, when unexplained, may often generate a suspicion of unfairness, and will always furnish an occasion for serious comment.' In illustration of this subject, reference may be made to an old case. A boy having found a diamond, took it to a jeweller, who refused to return it to him. An action of trover was brought, and as the jeweller declined to produce the diamond at the trial, the judge directed the jury to presume that it was of the finest water, and they found accordingly. So, in the case of

1 See ante, § 102.

2 Armory v. Delamirie, 1 Str. 504; 1 Smith's Lead. C. 151; id. 256, 4th S. C.

ed.,

Wood v. Peel,' where the point at issue was whether the plaintiff's horse, Running Rein, who had won the Derby in 1844, was foaled by Mab in 1841, the production of the horse, in order to test the accuracy and credit of the witnesses who had sworn to its identity, was considered so material, that the plaintiff, being unable to comply with an order of the Court to produce it, submitted very prudently to a non-suit, rather than run the almost inevitable risk of a verdict in favour of the defendant.

§ 500. In many cases of this nature it will be advisable, in order to guide the jury to a right decision, that persons conversant with the articles produced should be examined as to their opinion respecting the proof of identity. For, instance, if the question be whether two samples of wine be drawn from the same bin, or two pieces of cloth be the produce of the same loom, or two coins be struck in the same die, it is important that a wine-merchant, a clothier, or an officer of the Mint' should respectively be called, in order to furnish the Court with suggestions founded on practical experience; because, in such inquiries, a jury, composed of persons perhaps but little acquainted with these matters, can scarcely, without some extrinsic aid, be enabled to form a correct judgment respecting them. Still, even here the articles should be produced, that the jury may test the accuracy of the opinions expressed by the witnesses, and may perceive that the reasons, upon which those opinions are founded, correspond with the actual state and condition of the articles themselves.

§ 501. Though evidence addressed to the senses, if judiciously employed, is obviously entitled to the greatest weight, care must be taken not to push it beyond its legitimate extent. The minds of jurymen, especially in the remote provinces, are grievously open to prejudices, and the production of a bloody knife, a bludgeon, or a burnt piece of rag, may sometimes, by exciting the

Ex. Middx. Sittings after T. T., 1844, cor. Alderson, B., MS. 22 Will. 4, c. 34, § 17, provides that, in order to prove coin to be counterfeit, it shall not be necessary to call any moneyer or other officer of the Mint, but that it shall be sufficient to prove that fact by the evidence of any other credible witness.

passions, or enlisting the sympathies of the jury, lead them to overlook the necessity of proving in what manner these articles are connected with the criminal or the crime; and they consequently run no slight risk of arriving at conclusions, which, for want of some link in the evidence, are by no means warranted by the facts proved. The abuse of this kind of evidence has been a fruitful theme for the satirist; and many amusing illustrations of its effect might be cited from our best authors. Shakespeare makes Jack Cade's nobility rest on this foundation; for Jack Cade having asserted, that the eldest son of Edmund Mortimer, Earl of March, "was by a beggar woman stolen away," "became a bricklayer when he came to age," and was his father, one of the rioters confirms the story, by saying, "Sir, he made a chimney in my father's house, and the bricks are alive at this day to testify it; therefore deny it not." Archbishop Whately, who makes use of the above anecdote in his diverting "Historic Doubts relative to Napoleon Buonaparte," adds, "Truly this evidence is such as countrypeople give one for a story of apparitions; if you discover any signs of incredulity, they triumphantly show the very house which the ghost haunted, the identical dark corner where it used to vanish, and perhaps even the tombstone of the person whose death it foretold." So, in the interesting story of "The Amber Witch," the poor girl charged with witchcraft, after complaining that she was the victim of the sheriff, who wished to do "wantonness with her," added, that he had come to her dungeon the night before for that purpose, and had struggled with her, "whereupon she had screamed aloud, and had scratched him across the nose, as might yet be seen, whereupon he had left her." To this the sheriff replied, "that it was his little lap-dog, called Below, which had scratched him, while he played with it that very morning," and having produced the dog, the Court were satisfied with the truth of his explanation."

§ 502. Turning once more to matters of graver import, it may be observed that in causes, either relating to disputed rights of way,

1 Sec. Part of Hen. 6, act 4, scene 2.

p. 28, 6th ed.

3 Amber Witch, translated by Lady Duff Gordon, p. 78-80.