hound, in the first place, to fhew the fettlement of the pauper out of their own parish. Vid. Rex. v. Woodford, Cald. 236. This rule feems utterly repugnant to principle; because a removal to a parish is in the nature of an affirmation that the fettlement is there, and fhould be founded upon fome evidence of the fact. The rule that an order confirmed is good against all the world, but an order reverfed is only conclufive between the particular parishes, ftrongly indicates where the original proof should be; and fhews that an order fhould only be confirmed upon evidence of an actual fettlement, and that it may be reverfed for defect of proof; and I bes lieve that the practice alluded to is now univerfally exploded.

SECTION III.

Of the Rule requiring the beft Evidence the Nature of the Cafe will

admit.

All fyftems of law recognize a leading diftinction between writ ten and verbal evidence; and written evidence is fubdivided into feveral claffes of relative fuperiority and inferiority, beginning with public authentic acts, and defcending to private memoranda. Written evidence is superior to verbal, as it is by no means equally liable to misconception, or misrepresentation. And an original is, for reafons equally evident, fuperior to a copy.

A grand rule of evidence in the English law is, that the best evidence must be given, which the nature of the cafe will admit 3 a flight ambiguity in the expreffion of this rule may, and frequent ly does, lead to confiderable mifconception, in those who are but fuperficially acquainted with the law, and who sometimes conceive not only that it is incumbent upon a party to give the best attainable evidence of exifting circumstances, but that the circumstances themselves must be fuch as give the most diftinct poffible view of the difputed fact; and in other cafes, where the circumftances of the cafe are not fufceptible of legitimate evidence, that evidence, in its nature inadmiffible, may be allowed as a fubftitute; both of which errors I have known to be the fources of judicial determinations, but it was in courts the judges of which have not neceffarily a profeffional connection with the law, although very exten fively engaged in the adminiftration of it. But Lord Ch. Baron Gilbert, whose law of evidence is the most useful guide in inves tigating the general subject before us, obviates the first misconcep tion by obferving, that the true meaning of the rule of law, that requires the greatest evidence that the nature of the thing is capable of, is this, That no fuch evidence fhall be brought, which ex rei naturá fuppofes ftill a greater evidence behind, in the party's own poffeffion; for fuch evidence is altogether infufficient, and

proves nothing, for it carries a prefumption with it contrary to the intent for which it was produced; as if a man offers a copy of a deed, or will, where he ought to produce the original, this carries a prefumption with it, that there is fomething more in the deed, or will, that makes against the party, or elfe he would have produced it, and therefore the copy is not evidence, and cannot weigh any thing in a court of juftice. The fame principle is expounded more fully in a very elaborate judgment of one of the courts of North Carolina, (upon a question which, in an English court, would not admit of much debate, the neceflity of a deed being attefted by a fubfcribing witnefs,) from which I fhall transcribe the following extract, as affording not an unfavourable fpecimen of the juridical reafoning which prevails in thofe courts. "There is but one decided rule in relation to evidence, and that is, that the law requires the best evidence. But this rule is always relaxed upon two grounds, either from abfolute neceffity, or a neceffity prefumed from the common occurrences amongst mankind. The rule is not fo ftubborn but that it will bend to the neceffities of mankind, and to circumstances not under their control. The rule is adopted only to obviate the fraud of mankind: one shall not deceive the jury by offering a lefs convincing teftimony to establish his point, when it appears there is a proof more elucidative of the point in controverfy in his own power, which, perhaps, he does not offer, because it would be decifive against him. It was never meant to exclude the party from juftice, merely because he had not, through ignorance, provided himself originally with the best evidence it was poffible for him to provide; for then two witnefles would be better than one, a hundred than two, and fo on progreflively. A writing would be better than a parol contract, a deed better than either, and a record better than all. Neither was it intended to deprive any one of justice, when, without any default in himself, he had loft the better evidence, which he had provided originally. It first deprives him of the power of impofing upon us, and then lays itself open to be relaxed as circumftances fhall, in juftice, require. Thefe circumftances are of two kinds, thofe founded on abfolute neceffity, and those founded on a neceffity occafioned by the occurrences which are common amongst mankind.”

The greater part of the particular fyftem which is established refpecting the law of evidence, may be regarded as an amplification and expofition of this general rule.

It is to be observed that this, as well as moft other rules of evidence, are chiefly referable to the admiffibility of the proof required, and of course are preliminary to any confiderations refpe&ting its weight and efficacy. But the fame principle which dictates the rule, concerning the admiffion of evidence, may be often ad

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vantageoufly applied in the difcuffion of its effect. The infinite variety of tranfactions which occur in the intercourse of society, muft in general prevent the adoption of a system for determining what evidence shall be requifite for the decision of any contested fact, not requiring the formality of a written atteftation; but when weaker and less fatisfactory testimony is tendered in fupport of a fact, the nature of which will admit of illucidation, from proofs of a more direct and explicit character, the fame caution which rejects evidence of an inferior degree, when higher evidence might be produced, will awaken fufpicion; and it will reasonably be fuppofed, that a more perfect expofition of the subject would have laid open deficiencies and objections, which a more obfcure and uncertain representation was intended to conceal. But there is ftill an important diftinction to be attended to: the rules for the admiffion of evidence are abfolute and imperative, and will not admit of any relaxation from confiderations of inconvenience and expence; whereas, in forming a judgment upon the adequacy of teftimony, in particular cafes, circumftances which remove the cause of fufpicion may alfo be admitted to obviate the effect.

Although the rule of law is for the moft part confined to the known ranks and degrees of evidence, there are inftances of its application to the more or lefs adequate reprefentation of facts. Thus in the cafe of Williams against the East India Company, 3 Eaft, 192. referred to upon another ground in the preceding fection, it was alleged, that an inflammable fubftance had been put on board a ship, without giving a proper intimation. It appeared to be the duty of the conductor of military stores, to carry the goods on board, and of the chief mate to receive them; the mate was dead, and no evidence was given of what paffed between him and the conductor of ftores; but it was proved by the captain and fecond mate, that no communication had been made to them, of the nature of the fubftance in queftion. It was objected, and decided, that the officer who had put the article on board ought to have been examined. Lord Ellenborough, in delivering the opinion of the court, faid, The question is, whether the plaintiff has given fufficient primâ facie evidence of the want of notice, to have gone to a jury? and we are of opinion that he has not. The best evidence fhould have been given of which the nature of the thing was capable. The best evidence was to have been had by calling, in the first instance, upon the perfons immediately and officially employed in the delivering, and in receiving, the goods on board, who appear, in this cafe, to have been the first mate on the one fide, and the military conductor on the other. And though one of these perfons, the mate, was dead, it did not warrant the reforting

to an inferior and fecondary species of teftimony, viz. the prefumption and inference arifing from a non-communication to other perfons on board, as long as the military conductor, the other living witness, immediately and primarily concerned in the tranf action of shipping the goods on board, could be resorted to (a).

The preference of written to parol evidence is a first principle of the law; but fometimes where a writing itfelf does not con ftitute the very act under inquiry, but is only evidence of the exiftence of a diftinct collateral fact, parol evidence may be allowed in refpect to fuch fact, in the abfence of, or even in oppofition to, the evidence furnished by the writing. This fubject will be examined at length in a following fection, and is only referred to at present as introductory to the following cafe, which is ftated here with a view to aflift in the expofition of the general prin ciple.

The plaintiff had advanced feveral fums of money to the defends ant, which he entered in his book; and the defendant figned the feveral pages which were not stamped. At a subsequent time, a clerk of the plaintiff examined the book with the defendant, who admitted the entries to be correct. It was agreed that the book could not be given in evidence, as it confifted of receipts unstampe ed; but it was contended on the part of the defendant, that the book was the best evidence of the items fo admitted, and was neceffary to be produced; but the court decided otherwife. Lord Kenyon faid, that the subsequent verbal acknowledgment, that the defendant had received the money, was evidence to go to the jury of his having been furnished with it. Grose, J.-The evidence was not of a receipt but of a verbal admiffion, proved not by the fignature to the account, but by the teftimony of the witness, to whom the admiffion was made. Lawrence, J.-If there had been no fignature, it could not be pretended but that if the witnefs had ufed the book, to ask the defendant if he had had the fums contained in it, his admiffion would have been evidence. And the fignature cannot make it less evidence for the purpofe for which it was pro duced. Le Blanc, J.-The objection is, that there can be no verbal admission of a party having been furnished with articles in

(4) In the above cafe it must be obvious that there would be an averfion to calling the officer in question, whose own intereft, would be fo much in oppofition to that of the party required to produce him, that his evidence might have been objected to as incompetent, if adduced on the part of the defendant. With proper deference, I cannot but entertain the idea, that the non-production of this witnefs was not fo much a ground of objection to the admiffibility of the other evidence, as of observation upon the effect of it; and even that fubject to very strong obfervation, on the oppofite fide, of the reasonableness of apprehending a bias in the witness, inconfistent with fairness and impartiality, whilft any imputation arifing from the party producing him would be repelled, by a clamour against impeaching the veracity of a witness produced by themselves.

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an account, to which he has affixed his fignature; but that cannot be fupported. Jacob v. Lindsay, 1 Eaft, 460.

There are fome cafes, in which prefumptive and primâ facie evidence of a neceffary fact is allowed, although the nature of the fubject would admit of evidence of a higher and more authentic kind. Thus, in an action for defamation of a perfon in his character of an attorney, it was held not to be neceffary to prove the plaintiff's admiffion; and Buller, J. faid, That in the cafe of all peace officers, juftices of the peace, conftables, &c. it was fufficient to prove that they acted in thofe characters, without producing their appointments, in actions brought by attornies for their fees, the proof now infifted upon has never been required. Neither in actions. for tithes is it neceflary for the incumbent to prove presentation, inftitution, and induction; proof that he received the tithes, and acted as the incumbent, is fufficient, Berryman v. Will, 4. T. R. 366. And in a very late cafe it was held in an action, upon a policy of infurance on a ship, that the mere fact of poffeffion as owners was fufficient and primâ facie evidence of ownership, without the aid of any documentary proof or title deeds on the subject, until fuch further evidence thould be rendered neceffary in fupport of the prima facie cafe of ownership which they made, in confe quence of the adduction of some contrary proof on the other fide, Robertfon v. French, 4 Eaft, 130.

SECTION IV.

Of Public Evidence.

Written evidence is, by Gilbert, divided into public and private, and the former into records and matters of inferior nature.

Records are defined by him to be the memorials of the legislature, and of the king's courts of juftice (a), and are authentic beyond all manner of contradiction. But as thefe are placed in public depofitaries from which they cannot be delivered out, the copies of them are allowed as fufficient evidence; but a copy of a copy is not evidence, for to that cafe the reafon of neceflity does not apply (b).

Acts of parliament, which are the first fort of records, are either general or private. The first are defined to be such as relate to the kingdom in general; and the fecond, to the concerns of private

(4) This definition cannot be admitted to be very exact, for it is not every memorial of all the king's courts of justice, that is diftinguished by the name of a record; and there are other records befides thofe enumerated, fuch as patents, and acts affecting the royal revenue.

(4) See some observations refpecting the copy of a copy of a deed in the next section.