31 U.S. 352
SCOTUS
1832
Mr Justice Thompson

delivered the opinion of the Court.

This casé comes up from the circuit court for the.district of Maryland on a certificate of division of opinion, tofiching the admission of testimony offered on-the part of the United States, in support of the'prosecution.

The indictment against the prisoner contains several counts.

The first charges ^him with having, en the 1st day of July 1828, at the district of Maryland, within the territory and jurisdiction of the United States, issued á commission for a certain vessel called the Jane, otherwise the Congresso, to- the intent that such vessel might be emрloyed in the service of a foreign people; that is .to say, in the service of the United Provinces of Rio de la Plata, to cruise and commit hostilities against the subjects and property of a foreign prince, that is to say, his imperial majesty the constitutional emperor and perpetual defender of Brazil, with whom the United States were at peace, against the form of the act of congress in such case made and provided.

The second count charges him with having delivered a commission for the Jane, with the like intent. ‍​​‌​​‌‌​​‌‌​‌‌​​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌​​‍The third charges him with having delivered a commission to one John Chase for the Jane, for the like- purpose and with the like intent. The fourth charges him with having issued a commission to-John Chase for the Jane, for the-like purpose and with the like intent. There are some other counts, laying the offence in different ways, which are unimportant for the present questiоn.

In support of the prosecution, it was proved, that the privateer referred to in the indictment was built and fittéd out in the port of Baltimore for a certain John Chase.' That the Jane-sailed from the port of Baltimore for the-West Indies, and at St Eustatia shе hoisted Buenos Ayrean ’colours, changed her name to that of the Congresso, and performed a cruise under the command of John Chase, exercising therein acts of. hostility against the subjects and govérnmént of Brazil.

It was also given in evidence, on the part of the United States, that the said. Chase stood indicted in that court .for a misdemeanour for accepting, in’ the district of Maryland, a commission to cruise, and with cruising with the said privateer against tne subjects and government .of Brazil. That a bench warrant had been repeatedly issued out against the said Chase, but that he could not be found, and the process- was always returned non est inventus. Whereupon the counsel for, the United States proceeded to inquire of a competent witness, whether he, saw a commissiоn ‍​​‌​​‌‌​​‌‌​‌‌​​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌​​‍on board the said privateer. But the traverser, by his counsel; objected to the admissibility of any evidence relative to the, character or contents of the said commission, because the commission was not produced by the United States, оr obtained from any witness, nor a copy procured from the public archives of Buenos Ayres, nor its destruction .proved, nor any efforts to procure it shown by the United States.

Upon the admissibility of the said evidence-the judges were opposed in opinion,, and the question comes here for decision.

The objections to the admissibility of the evidence have been submitted to the court under the following heads.

1. Because the evidence so offered w.as of a secondary charaсter.

2. Because the facts proved did not present a proper ease for the admission of secondary evidence.

•3. Because the evidence offered was not the next best ‍​​‌​​‌‌​​‌‌​‌‌​​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌​​‍evidence of which the nature of the case аdmitted.

It is undoubtedly true that the evidence offered was of a secondary character. The primary evidence would have been the commission itself. The word commission, ex vi termini, imports a written authority; and the offence under this part of the act of congress (6 Vol. L. U. S. 321, sect. 3) consists in issuing or delivering a commission for any ship or vessel with intent that she may be employed, &c.;. and there is no doubt it must be shown to have been a commission emanating from the government of the United Provinces of Rio de la Plata, as alleged in the indictment, and it must.at least purport to be a valid, subsisting commission, and intended as the authority under which the vessel was to cruise. But all these inquiries relate to thé sufficiency of the evidence to establish these facts, not to its competency. The. former belongs to 'the jury to decide; the latter to'the court. Whether it-could have been shown that the commission about which the inquiry was made was a document-coming within the indictment, and necessary to be proved in order to establish the offеnce, does not comp within the question sent up to this court. The argutr .n. however, against the admissibility of the evidence, goeS the length of contending that nothing short of the commission itself will furnish the necessary evidence.

We think the objection in this respect nоt well founded; but that the case-falls within the rule, that when the non production of the written, instrument is satisfactorily- accounted for, secondary evidence of its existence and contents may be shown. This is a general, rule of evidence applicаble to criminal as well as civil suits. And there can be no reason why it should not apply to cases like the present. And, indeed, a contrary rule not only might, but probably would, render the law entirely nugatory, for the offender would only have to destroy the commissiоn, and his escape from punishment would be certain.

Under this head of the objection, it has been argued, that the commission should have been set out or recited in the in-, dictment, or the reason for the omission should appear on the face оf the indictment. If there is any ground whatever for this objection (which we are far from intimating), the point cannot be made here under the question sent up from the circuit court. If well founded, it must be presented in some other form. We are now confined to the question on which the opinions of the' judges were opposed, and the sufficiency of the indictment forms no part of that question. The objection went to the admissibility of any evidence relative to the character or ‍​​‌​​‌‌​​‌‌​‌‌​​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌​​‍contents of the commission; because it was not produced, or its non production sufficiently accounted for: and this brings us to the second head of inquiry, viz. whether the facts proved presented a proper case for the admission of secondary evidence.

The facts which had been proved were, that the privateer was built and fitted Out in the port of Baltimore for John Chase. The crew was shipped at Baltimore by Franklin Chase, the brother of John Chase. That she sailed from the port of Baltimore for the West Indies undеr the name of the Jane, and at St Eustatia she hoisted Buenos Ayrean colours, and changed her name to that of the Congresso; and performed a cruise under the command of the said John Chase, exercising therein acts of hostility against the subjeсts and government of Brazil. That Chase stood indicted in the same court for a misdemeanour for accepting a commission, and cruising with the said privateer against the government and subjects of Brazil; and that a bench warrant had been repeatedly issued against him, but he could not be found.

This evidence established very clearly, that this vessel was fitted out and cruising in violation of the law of the United States, and that she was under the command of John Chase. It is reasonable, therefore, to presume that the сommission on board the privateer vvas the authority under which Chase acted. He was the person most interested in retaining the possession of- the commission; and the law will, presume it to be in his custody, when there is no proof to the contrary; and to him, therefore, application should be made for it. The law points to him as the depository of this document, and search for it in any other place would not amount to that due diligence to procure the primary evidence which would be neсessary in order to let in the secondary evidence. •

But if all reasonable, diligence has been used to find it at the place where the-law presumes it to be, no more can be'required for the purpose of letting in the secondary evidenсe.-

Has that been done? The person whom the law charges with the custody of the paper stands indicted for an offence against the same law; process has been repeatedly issued against him to have him apprehended, without effect. This was all the effort to find him that could reasonably be required. A subpoena to compel his'attendance as a witness would have availed nothing, and the law does not require the performance of an act perfectly nugatory. But suppose Chase had been within the reach of a subpoеna, and had actually attended the court, he could not have been compelled to produce the commission, and thereby, furnish evidence against himself. All the means,. therefore, that could have been used to produce the commission itself, were exhausted.

But it has, in the third' place, been argued, that, admitting enough had been shown to lay the foundation for the admission ‍​​‌​​‌‌​​‌‌​‌‌​​​‌‌‌‌‌​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌​​‍of secondary evidence, that which was offered was not the best evidence of which the nature of the case admitted.

The rule of evidence does not require the strongest possible evidence of the matter in dispute,- but only that no' evidence shall be given -which, from the nature of the transaction, supposes there is better evidence of the fact attаinable by the party. It is said in the books, that th.e ground of the rule is a suspicion of fraud, and if there is better evidence of the fact, which is withheld, a presumption arises, that /the party has some secret or sinister motive in not producing it. . Rules of evidence аre adopted for practical purposes in the administration of justice; and must be so applied, as to promote the ends for which they are designed. It has been said, that according to this rule recourse should have been had to the rеcords of the Buenos Ayrean government for a copy of the commission. If it should be admitted that a record is there to be found of this instrument, and that on application a- copy of it might have been procured, it would be carrying the rule to prеtty extravagant lengths- to require the application to be made. But there is nothing in this case showing that 'any such record exists. Nor can this court presume as matter of law, that a record of such commission, as filled up, -would be found there. And, indeed, from thе nature of the transaction, the contrary is the reasonable presumption. It is not unlikely that'the Buenos Ayrean government may have some record of the names of persons to whom commissions had been issued. But the course of the transaction almost necessarily implies, that the commissions issued here were sent out in blank, as to the names of persons and vessels, and the mere formal parts of the commission would have furnished no evidence whatever. So that there is no reasonablе ground to conclude that a record of this commission existed from which a copy might have been made. But if that should be admitted, it does not bring the case within the rule. The evidence must be attainable, or within the power of the party who is called upоn to produce it; and, from the nature of this transaction, there is no reason to conclude that such was the case here; but. the contrary is fairly to be inferred. It must have been a voluntary act on the part of the foreign' government to have рermitted a copy to be taken; and it is unreasonable to suppose that such permission would have been given. It would have been voluntarily furnishing evidence against its own agents, employed to violate our laws; and no comity of nations could hаve required this.

We are accordingly of opinion that the evidence offered was admissible, and direct it to be so certified to the circuit court.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and on the points and questions on which the judges of the said circuit court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act bf congress in such casé made and provided, and was argued by counsel; on consid'eration whereof, it is the opinion of this Court, that the evidence offered was admissible.- Whereupon it is ordered and adjudged by this Court, that it be certified to the said circuit court that the evidence offered in this cause, was admissible.