Indictment against the defendant charging him with having
"issued" a commission in the United States for a vessel to the
intent that the vessel might be employed in the service of a
foreign people to cruise and commit hostilities against the Emperor
of Brazil, with whom the united states was at peace, against the
act of Congress, &c. The second count charged the defendant
with "having" delivered a commission to John Chase for the like
purpose and intent. The fourth count charged him with having
"issued a commission" to Chase for the like purpose. Evidence was
given to prove that the vessel was built and fitted out for Chase
in Baltimore, that she changed her name, hoisted the Buenos Ayrean
flag at St. Eustacia, and made a cruise under the command of Chase,
capturing vessels belonging to the subjects and government of
Brazil. Also that Chase had been indicted for "accepting" in the
District of Maryland a commission to cruise, and cruising with the
said privateer against the subjects and government of Brazil, and
that a bench warrant had been repeatedly issued for him, but that
he could not be found. The counsel for the United States asked a
competent witness whether he saw a commission on board the
privateer.
Held that such evidence was admissible.
The evidence falls within the rule that where the nonproduction
of the written instrument is satisfactorily accounted for,
satisfactory evidence of its existence and contents may be shown.
This is a general rule of evidence applicable to criminal as well
as to civil suits, and a contrary rule not only might but probably
render the law entirely nugatory, for the offender would only have
to destroy the commission, and his escape from punishment would be
certain.
The rule as to the admission of secondary 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
attainable by the party. It is said in the books that the 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 dome secret or sinister motive in not producing it. Rules of
evidence are adopted for practical purpose in the administration of
justice, and must be so applied as to promote the ends for which
they are designed.
Thomas S. Reyburn, the defendant, was indicted under the
provisions of the third section of the act of Congress, passed
April 20, 1818, entitled "An act in addition to the act for the
punishment of certain crimes against the United States and to
repeal the acts therein mentioned."
The indictment contained four counts; the questions on which the
judges of the circuit court were divided were presented under the
first and second.
Page 31 U. S. 353
The first count charged that Thomas S. Reyburn, the defendant,
on 1 July 1828, at the District of Maryland, within the territory
and jurisdiction of the United States, with force and arms did
issue a commission for a certain vessel called the
Jane,
otherwise called the
Congresso, to the intent that such
vessel might be employed 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 then was and still is at peace,
against the form of the act of Congress in such case made and
provided, and against the peace, government, and dignity of the
United States.
The second count was as follows:
"And the jurors aforesaid, upon their oath aforesaid, do further
present that the said Thomas G. Reyburn, on the day and year
aforesaid, at the district aforesaid, within the territory and
jurisdiction of the United States and within the jurisdiction of
this Court, did with force and arms deliver a commission for a
certain other vessel, called the
Jane, otherwise called
the
Congresso, to the intent that such vessel might be
employed in the service of a foreign people -- that is to say, 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 against the subjects and property of His
Imperial Majesty the Constitutional Emperor and Perpetual Defender
of Brazil, with whom the United States then was and still is at
peace, against the form of the act of Congress in such case made
and provided and against the peace, government, and dignity of the
United States."
On the trial of the cause, the United States offered in evidence
that the privateer referred to in the indictment was built and
fitted out in the port of Baltimore in the District of Maryland for
a certain John Chase, also therein mentioned; that the
Jane was commanded from the port of Baltimore to St.
Barts, thence of St. Eustatia in the West Indies, and the crew was
shipped in said port of Baltimore at the request of Franklin Chase,
a brother of said John Chase, the said Franklin Chase being the
only person known to the shipper of the crew;
Page 31 U. S. 354
that she sailed from the said port to the West Indies under the
name of the
Jane, that at St. Eustatia the said vessel
hoisted Buenos Ayrean colors, 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
subjects and government of Brazil.
The United States further gave in evidence from the records of
this Court that the aforesaid John Chase stood indicted for a
misdemeanor for accepting in the District of Maryland a commission
to cruise and for cruising with the said privateer against the
government and subjects of the empire of Brazil; that a bench
warrant had been repeatedly issued out against 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 legal and competent witness whether he saw a commission on
board the said privateer. But the traverser, by his counsel,
objected to the admissibility of any evidence relative to the
character or the contents of the said commission because the
commission was not produced by the United States or 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.
And the judges of the aforesaid court, being opposed in opinion
upon the admissibility of the said evidence, do at the request of
the attorney of the United States for the District of Maryland
state and certify their said opposition in opinion to the Supreme
Court of the United States, according to the act of Congress in
such case made and provided.
Page 31 U. S. 363
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This case comes up from the Circuit Court for the District of
Maryland on a certificate of division of opinion touching 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, on 1 July, 1828, at the
District of Maryland, within the territory and jurisdiction of the
United States, issued a commission for a certain vessel called the
Jane, otherwise the
Congresso, to the intent that
such vessel might be employed 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 was 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.
Page 31 U. S. 364
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 offense in different ways,
which are unimportant for the present question.
In support of the prosecution, it was proved that the privateer
referred to in the indictment was built and fitted 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 she hoisted Buenos Ayrean colors, 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 government 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 misdemeanor
for accepting, in the District of Maryland, a commission to cruise,
and with cruising with the said privateer against the 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 commission 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 or 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 was of a secondary
character.
2. Because the facts proved did not present a proper case for
the admission of secondary evidence.
3. Because the evidence offered was not the next best evidence
of which the nature of the case admitted.
Page 31 U. S. 365
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 offense under this part of the
act of Congress (6 U.S. 321, sec. 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 the 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 offense, does not come within the
question sent up to this Court. The argument 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 not well founded, but
that the case falls within the rule that when the nonproduction 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 applicable 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 commission 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 indictment,
or the reason for the omission should appear on the face of 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
Page 31 U. S. 366
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
nonproduction sufficiently accounted for, and this brings use 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 under the name of the
Jane, and at St. Eustatia she
hoisted Buenos Ayrean colors 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
subjects and government of Brazil. That Chase stood indicted in the
same court for a misdemeanor 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 commission on board the
privateer was 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 necessary 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 evidence.
Has that been done? The person whom the law charges with
Page 31 U. S. 367
the custody of the paper stands indicted for an offense 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 subpoena, 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 attainable by the party. It is said
in the books that the 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 are 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 records 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 pretty
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
the 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
Page 31 U. S. 368
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
reasonable 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 upon 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 permitted 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 have 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 of
Congress in such case made and provided, and was argued by counsel,
on consideration 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.
