The law generally requires that primary evidence-i. e., the best evidence-shall be produced. By this is not meant that the courts will require the strongest evidence of a fact, but it will not permit other evidence of a fact so long as primary evidence can be obtained. Thus, a will may be proved by one subscribing witness, even though the other may be present; but, so long as the subscribing witness can be obtained, other proof will be rejected. Exceptions. There are certain exceptions to the general rule requiring production of the best evidence. In the case of enlistment the best evidence is the enlistment papers; but, in view of the fact that it is difficult at times to procure these papers, it has become the practice to accept, as sufficient presumptive proof thereof, such facts as show on the part of an accused an acquiescence in the status of a soldier, as the receipt of pay, the doing of military duty, etc.1 In the case of public officers it is not necessary to produce their written appointment; all who are proved to have acted as such are presumed to have been duly appointed to the office until the contrary appears. So, where an accused is charged with disobedience of orders of a particular person, it is regarded as sufficient to show that this person had acted in the capacity of an officer. Where the evidence involves the previous conviction of parties by general court-martial, it is not necessary to produce the original proceedings, but they may be proved by the general orders promulgating them. Where from the nature of a document it cannot conveniently be produced before the court, the law will allow secondary evidence to be given. Thus, inscriptions on tablets, gravestones, etc., could be so proved. Upon the trial of any indictment against any person 1 Opinions J. A. G., p. 167. for embezzling public money, it shall be sufficient evidence, for the purpose of showing a balance against such person, to produce a transcript from the books and proceedings of the Treasury. This transcript must be certified by the Auditor and authenticated under the seal of the Department.2 Secondary Evidence. When for any reason primary evidence cannot be obtained, the law allows secondary evidence-i. e., copies or parol evidence-to be given. In fact, such evidence becomes the best and may be produced under the general rule. This must be taken with the understanding that the evidence is legal, and inferior to the primary only as to the source from which derived. Thus, the copy of a copy of a destroyed or lost document is not receivable in evidence, even though, as it seems, the absence of the first copy has been satisfactorily explained. 3 But, before secondary evidence will be admitted, it must be clearly shown that superior evidence cannot be obtained. Secondary evidence refers chiefly to writings or documents, and the cases in which the law permits it to be received are: First. Where the document has been lost or destroyed. In this case it must be shown that the document existed, that it has been lost or destroyed, and that sufficient search has been made for it. What will constitute sufficient search must be determined by the court; and, in deciding this point, much will depend on the character of the document. "Where a reasonable person would be satisfied that bona fide endeavors had been made to produce the document itself," seems a good guide. Second. Where the document is in the hands of the $ 887, Revised Statutes. * Ibid. § 886. 3 Best, Vol. II. § 483. opposite party, and he has failed to produce it on due notice so to do. This notice may be directed to the party or his attorney, and may be served on either; and it must describe the writing demanded, so as to leave no doubt that the party was aware of the particular instrument intended to be called for. This notice may be by parol or in writing. If the document is not produced, it simply permits secondary evidence of its contents to be received, but raises no inference against the party failing to produce it. Where from the nature of the document the accused must be aware that he is charged with its possession, a notice to produce is unnecessary. Third. Where the document is in the hands of a third party who is privileged to retain it and who refuses; or of a party without the jurisdiction of the court. Failure to produce, on sufficient notice, in either of these cases, will justify the introduction of secondary evidence. Admissions. Whether verbal admissions by a party of the contents of a document may be admitted against him, in lieu of the document, has been questioned. Greenleaf gives the rule :-"Where the existence, and not the formal execution of a writing, is the subject of the inquiry, or where the writing is collateral to the principal facts, and it is on these facts that the claim is founded, the better opinion seems to be that the confession of the party, precisely identified, is admissible as primary evidence of the facts recited in the writing; though it is not as satisfactory as the writing itself." 1 Degrees of Secondary Evidence. In England the rule seems to be that there are no degrees of secondary evidence, that a party, once entitled to use this mode of 1 Vol. I. § 96. proof, may use any form of it. The American doctrine appears to be that if, from the nature of the case itself, it is manifest that a more satisfactory kind of secondary evidence exists, the party will be required to produce it; but that where the nature of the case does not of itself disclose the existence of such better evidence, the objector must prove that it was known to the other party in season to have been produced at the trial. The introduction of weaker secondary evidence, when better might be produced, gives rise to unfavorable inferences.1 In proving the existence of a document the primary evidence is the document itself; after which a copy should be produced; and, if there is no copy, then parol evidence of the contents of the document may be given. It is sometimes difficult to say what is, and what is not primary evidence. In the case of printed papers, such as Orders issued from a Department, all the impressions are regarded as originals. Direct and Circumstantial. All evidence may be classed again, according to its nature, into direct and circumstantial. As regards admissibility, direct and circumstantial evidence stand, generally speaking, on the same footing; still, the non-production of direct evidence which it is in the power of a party to produce is matter of observation to a jury, as indeed is the suppression of any sort of proof. Direct evidence is that which, if believed, establishes the truth or falsity of a fact in issue. This evidence is derived from those who have acquired actual knowledge of the fact by their own senses; or from documents which prove the fact. Circumstantial evidence is that which is not direct Greenleaf, Vol. I. § 34, Note 1. to the principal fact, but which the law deems sufficiently collateral to be received as evidence of it. This is of two kinds, conclusive and presumptive; Conclusive. When the collateral part being proved, the principal fact necessarily follows. Example, Where a person charged with a crime proves an alibi. Presumptive. When the collateral fact being proved, the principal fact does not necessarily follow, but is probable only. Presumptive evidence is divided into presumptions of law and presumptions of fact. Presumptions of law consist of those rules which, in certain cases, either forbid or dispense with any ulterior inquiry. Thus, the law presumes a man innocent until proven guilty; that a man intended the natural consequence of his act, etc. Presumptions of fact consist of those inferences which naturally follow as to the principal fact from the proof of collateral facts. It is impossible to lay down any fixed rule which shall guide courts-martial in deciding upon these presumptions. It may be said that presumptions of fact will be more or less strong according as the fact is a necessary, usual, or infrequent consequence of the fact or facts proved. Convictions, even in capital cases, constantly take place where the presumptions are of a strong nature. It must be remembered, however, that presumptions of fact, even though not rebutted, are not necessarily conclusive. Every case must necessarily be decided by the effect the collateral facts produce on the minds of the members of the court. It is sometimes said that "circumstances cannot lie," but even in the strongest cases the element of uncertainty enters. Gilbert cites the case of one being run through the body with a sword in a house, who in |