278 WHEN PLAINTIFF OR PROSECUTOR ENTITLED TO REPLY.

opposite counsel to reply (p); neither will the production of a paper which the judge has called for in order to satisfy his conscience (4). If in the course of the trial it shall become necessary for the defendant to call witnesses, for the purpose of informing the judge upon a question respecting the admissibility of evidence, the plaintiff's counsel will not thereby be entitled to the last word, because the evidence, in order to give this right, must be produced to the jury (r). Where several prisoners are jointly indicted, and one of them calls witnesses, it seems that the counsel for the prosecutor may reply generally, if the charge be a joint one, though, if the charges be separate, as for stealing and receiving, he should confine his remarks to the case of the party for whom witnesses have appeared (s). "If the only evidence called on the part of a prisoner is evidence to character, although the counsel for the prosecution is entitled to the reply, it will be a matter for his discretion whether he will use it or not. Cases may occur in which it may be fit and proper to do so" (t). Whether the counsel for the plaintiff or the prosecution will be entitled to reply, if the defendant, without adducing evidence, opens new facts, is a point which is not yet clearly decided; but the better opinion is, that no such right can be claimed, though the judge in his discretion might, in a flagrant case, permit its exercise (u).

§ 287. On the trial of public prosecutions, whether for felony or misdemeanor, instituted by the Crown, the law officers of the

(p) Pullen v. White, 3 C. & P. 434, per Best, C. J.

(9) Dowling v. Finigan, 1 C. & P. 587, per Best, C. J.

(r) Harvey v. Mitchell, 2 M. & Rob. 366, per Parke, B.; Dover v. Maestaer, 5 Esp. 96, per Lord Ellenborough. See ante, § 21.

(s) R. v. Hayes, 2 M. & Rob. 155, per Parke, B., and Coltman, J. See R. v. Jordan, 9 C. & P. 118, where A. was charged with rape, and B. with abetting. B. called a witness to prove an alibi for A. Held that, in strictness, the counsel for the prosecution might reply on the whole case, but that it was summum jus, per Williams, J.

(t) Resolution of the judges, 7 C. & P. 676.

(u) Crerar v. Sodo, M. & M. 85, per Lord Tenterden ; 3 C. & P. 10, S. C. See, in favour of the right, R. v. Horne, 20 How. St. Tr. 664; R. v. Bignold, 4 D. & R. 70; R. v. Carlile, 6 C. & P. 643, per Park, J.; Best "On Right to Begin," 92–94; against it, Best "On Right to Begin," 94-99; Faith v. M'Intyre, 7 C. & P. 44, per Parke, B.; Stephens v. Webb, 7 C. & P. 60; R. v. Abingdon, Pea. R. 236, per Lord Kenyon. aish & Brown 2. C&Kir 20 279

ATTORNEY-GENERAL ENTITLED TO REPLY.

279

Crown and those who represent them, are in strictness entitled to reply, although no evidence is adduced on the part of the defendant (v); but as this is a privilege, or rather a prerogative, which stands opposed to the ordinary practice of the courts, 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 the year 1777, properly observed, that the Attorney-General would be grievously embarrassed to produce a single argument of reason or justice in behalf of his claim (w); and when we reflect that the rule, precluding the counsel for the prosecution from addressing the jury in reply, where the defendant has called no witnesses, has been long deemed the best method for obtaining justice, and has, consequently, been established as the law of the land, it raises a rational suspicion in the mind, that a contrary method may have been adopted, and may still be followed, for a different and less legitimate purpose. It is to be hoped that, ere long, this question will receive that 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 (x).

(v) Resolution of the judges, 7 C. & P. 676; R. v. Horne, 20 How. St. Tr. 664, per Lord Mansfield; R. v. Marsden, M. & M. 439, per Lord Tenterden. (w) 20 How. St. Tr. 663.

(x) Those who wish for fuller information respecting the subjects discussed in this chapter, are referred to the sensible and careful work of Mr. Best "On the Right to Begin."

280

BEST EVIDENCE MUST BE PRODUCED.

CHAPTER IV.

OF THE BEST EVIDENCE.

§ 288. THE FOURTH RULE, which governs the production of 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 it is apparent, that better evidence is withheld, it is fair to presume, that the party has some sinister motive for not producing it, and that, if offered, his design would be frustrated (a). 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 (b). Thus, depositions are, in general, admissible, only after proof that the parties who made them cannot themselves be produced (c). So, a title by deed must be proved by the production of the deed itself, if it is within the power of the party; for this is the best evidence of which the case is susceptible; and its non-production would raise a presumption, that it contained 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 (d). Again, if a deed, or other attested instrument be produced, its execution must, in general, be proved by calling the

(a) See per Best, C. J., in Strother v. Barr, 5 Bing. 151; per Holroyd, J., Brewster v. Sewell, 3 B. & A. 302.

in

(b) 1 Phil. Ev. 418; 1 St. Ev. 500; Glassf. Ev. 266-278; Tayloe v. Riggs, 1 Peters, 591, 596; U. S. v. Reyburn, 6 Peters, 352, 367; Minor v. Tillotson, 7 Peters, 100, 101. (c) B. N. P. 239.

(d) Alivon v. Furnival, 1 C. M. & R. 292, per Parke, B.

BEST EVIDENCE MUST BE PRODUCED.

281

subscribing witness; and if there be several such witnesses, it will not be sufficient, so long as any 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 another deceased witness to the attestation; for such evidence would merely raise a presumption that the party deceased had witnessed all which the law requires for the due execution of a deed whereas the surviving witness would have been able to give direct proof whether all the requisites of the law had been observed or not. 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 (e).

;

§ 289. 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 (f). For instance, if there are several subscribing witnesses to a deed or will, it is only necessary at law to call one of them, though the others also are at hand; and the same rule prevails in equity, excepting in the case of wills (g). Even the previous examination of a deceased subscribing witness, if admissible on other grounds, may supersede the necessity of calling the survivor (h). 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 (¿). Neither is it necessary to call the magistrate who signed, or the clerk who took down, the depositions against a prisoner; but it will be sufficient, at the trial, to prove the signature of the magistrate, and the identity of the prisoner, since the Court will presume that the examination was conducted according to the form

(e) Wright v. Doe d. Tatham, 1 A. & E. 21, 22, per Tindal, C. J.

(f) 1 Ph. Ev. 418.

(g) Ansty v. Dowsing, 2 Stra. 1253; B. N. P. 264; Gresley Ev. 120, 122, 123. (h) Wright v. Doe d. Tatham, 1 A. & E. 3.

(i) 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 r. Pooley, 1 Stark. R. 167; Bank Prosecutions, R. & R. 378.

282 DISTINCTION BETWEEN PRIMARY AND SECONDARY EVIDENCE.

prescribed by the statutes (j). In serious cases, however, it will be highly expedient to examine the magistrate himself, since his direct testimony cannot fail to be far more satisfactory than any mere presumption of law (k). 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 (1).

§ 290. This rule naturally leads to the division of evidence into PRIMARY and SECONDARY. Primary evidence is that which we have just mentioned, as the best or highest evidence, or that kind of proof which the law recognises, as affording 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. And though all information must, if possible, be traced to its fountain head, yet if there are several distinct sources of information of the same fact, it is not, in general, necessary to show that they have all been exhausted, before recourse can be had to secondary evidence with respect to one of them (m).

§ 291. For instance, if a collector, who is a stranger to the suit, has received certain sums of money, and it be necessary to establish

(j) R. v. Foster, 7 C. & P. 148, per Alderson, B., and Bosanquet, J.; R. v. Pickesley, 9 C. & P. 124, per Parke, B. (k) R. v. Pickesley, 9 C. & P. 124.

(1) Ante, § 273; R. v. Hazy, 2 C. & P. 458; R. v. Allen, 1 Moo. C. C. 154; R. v. Hurley, 2 M. & Rob. 473, where held that, on 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.

(m) Cutbush v. Gilbert, 4 Serg. & Raw. 555; U. S. v. Gibert, 2 Sumn. 19, 80, 81; 1 Ph. Ev. 421.