DEPOSITIONS OPEN TO WHAT OBJECTIONS. 353 § 373. Perhaps, therefore, on occasions when nothing of importance turns on the precise expressions used, it will still be considered sufficient if the witness can speak with certainty to the substance of what was sworn on the former trial. Even on indictments for perjury it is not necessary to state the entire examination, but only to narrate, with accuracy, the whole of that portion of the evidence which relates to the point on which the perjury is assigned, provided the witness can further swear that he heard the whole examination, and that nothing was subsequently said to qualify the original statement (r). Unless he can do this his evidence cannot be received (s); and as the same rule must apply to the proof of the testimony of a deceased witness, it follows that if the person who heard him give his evidence can only state what was said on the examination in chief, without also giving the substance of his answers in cross-examination, or, at least, positively swearing that nothing escaped the witness which could vary or qualify the first statement, his evidence will be inadmissible (t). § 374. It need scarcely be added, that testimony thus offered is open to all the objections which might have been taken, had the witness himself been personally present; and, therefore, where a witness, on being examined upon interrogatories in a foreign country, stated in one of his answers the contents of a letter which was not produced, that part of the deposition was suppressed at the trial, though it was urged, that as the witness was beyond the jurisdiction of the Court, there were no means of compelling the production of the letter (u). "We have no power," said Chief Justice Tindal, "to compel the witness to give any evidence at all; but if he does give an answer, that answer must be taken in relation to the rules of our law on the subject of evidence" (v). In another case where, in order to show that the defendants had used due diligence to obtain the answer of a party to a bill in Chancery, a witness stated on interrogatories, that, as their agent, he had written to the party; and then went on to describe the contents of (r) R. v. Rowley, 1 Moo. C. C. 111; R. v. Dowlin, Pea. R. 170. (s) R. v. Jones, Pea. R. 38. (t) Wolf v. Wyeth, 11 Serg. & R. 149. (u) Steinkeller v. Newton, 9 C. & P. 319, per Tindal, C. J. (v) Id. A A 354 NO DEGREES IN SECONDARY EVIDENCE. the letter and of the reply, though he produced neither, the Court, while rejecting the answers which stated what the letters contained, admitted such part of the deposition as proved that the witness had written a letter to the party in question; for had the witness been himself present at the trial he might have been examined thus far, with the view of showing that the defendants through him had used some exertion to procure the party's answer (w). Again, depositions have been admitted, though the witness on his examination had refreshed his memory with some papers, which he alleged were partly in his handwriting and partly not, but which he refused to allow the commissioners to see upon the ground that they were private memoranda; for, as it was a matter for the discretion of the commissioners, whether they would permit the witness to refer to papers during his examination, the learned judge, at the trial, presumed that they had exercised their discretion with propriety (x). § 375. Another general rule, which governs the production of secondary evidence, whether of documents or of oral testimony, is, that in the eye of the law there are no degrees in the various kinds of such evidence (y). If, therefore, a deed be lost, or be in the hands of the adversary, who, after due notice, refuses to produce it, the party, seeking to give evidence of its contents, may at once have recourse to parol testimony, though it be proved that he has in his possession a counterpart, a copy, or an abstract of the document (z). So, if it be necessary to prove the former testimony of a deceased witness, any person who heard him examined may be called, though a clerk or a shorthand writer may have taken down his evidence word for word (a). This rule, of course, does not mean that the mere memory of a witness, who has read a deed, is entitled to equal weight with an authenticated copy of the same instrument ;-for in many cases a jury would properly regard such evidence with distrust, and if it should appear (w) Tufton v. Whitmore, 12 A. & E. 370. (x) Steinkeller v. Newton, 2 M. & Rob. 372, per Tindal, C. J. (y) Doe v. Ross, 7 M. & W. 102; 8 Dowl. 389, S. C.; Hall v. Ball, 3 M. & Gr. 242; 3 Scott, N. R. 577, S. C.; Brown v. Woodman, 6 C. & P. 206, per Parke, B.; Jeans v. Wheedon, 2 M. & Rob. 486, per Cresswell, J. (z) Cases cited in last note. (a) See Jeans v. Wheedon, 2 M. & Rob. 486, per Cresswell, J. COPIES OF PUBLIC DOCUMENTS. 355 that more satisfactory proof was intentionally withheld, their distrust might amount to absolute incredulity;-but the rule simply applies to the legal admissibility of the evidence, and is founded on the inconvenience that could not fail to arise in the administration of justice, if the degrees of secondary evidence were strictly marshalled according to their intrinsic weight, and if parties were consequently driven, before they could have recourse to parol testimony, to account for all secondary evidence of superior value, the very existence of which they might have no means of ascertaining. § 376. In considering the practical effect of this rule, care must be taken to exclude from its operation those cases, in which the law has expressly substituted, in the place of primary proof, some particular species of secondary evidence. Thus, for instance, where the contents of public records and documents are to be proved, examined copies are, on grounds of general convenience, considered admissible (b); and such copies, though in strictness secondary evidence, partake so much of the character of primary proof, that so long as it is possible to produce them, other inferior degrees of secondary evidence cannot be received. (c) Parol testimony therefore can only be admitted, on proof, first, that the public record or document has itself been lost or destroyed, for otherwise an examined copy might be obtained; and secondly, that such copy, if any has been taken, is no longer under the control of the party relying upon less satisfactory evidence (d). In like manner, if a witness has been examined before a magistrate or coroner under such circumstances, that these officers respectively have, in pursuance of their duty, taken down his statement in writing, parol evidence of his examination cannot be given in the event of his death, so long as the deposition itself can be produced; for the law having constituted the deposition as the authentic medium of proof, will not permit the admission of any inferior species of evidence. If, indeed, it can be shown that the deposition is (b) Ante, § 324, and post, Chapter On Public Documents. (c) Doe v. Ross, 7 M. & W. 106, per Lord Abinger. (d) Thurston v. Slatford, 1 Salk. 214, 285; Macdougal v. Young, Ry. & M. 392; 1 Ventr. 257. 356 COPIES OF COPIES INADMISSIBLE. lost or destroyed, or is in the possession of the opposite party, who after notice refuses to produce it, the statement of a witness who was present at the examination will then be admissible, as will also a copy of the deposition (e). § 377. It must further be carefully observed, that the rule which includes in one legal category all species of secondary proof, by no means opens a door to all sorts of evidence, however loose, which a party chooses to tender(f). A document, therefore, cannot be proved by the production of the copy of a copy (g), for such evidence would be rejected on the broad ground that renders hearsay evidence inadmissible. The opponent would have a right to object, that, even assuming that the second copy corresponded exactly with the terms of the first, yet 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. (e) See 2 Russ. C. & M. 895; R. v. Wylde, 6 C. & P. 380. (g) Id. EVIDENCE ADDRESSED TO THE SENSES. 357 CHAPTER VI. OF EVIDENCE ADDRESSED TO THE SENSES. § 378. 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 (a). "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 is nevertheless 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 are empowered to decide upon examination of the person of the prisoner (b); 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 erroneous (a) "Segnius irritant animos demissa per aurem, Quam quæ sunt oculis subjecta fidelibus, et quæ Ipse sibi tradit spectator."-HOR. Ars Poet. 1. 180. (b) 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. |