Present. All the Judges except TODD, J.
ERROR to the Circuit Court for the district of Columbia, sitting at Washington.
At the trial several bills of exception were taken.
1. The first was for the rejection of part of the deposition of Caleb Clarke, who deposed to a fact respecting the ancestor of the petitioners which he had heard his mother say she had frequently heard from her father.
2. The second was for overruling part of the deposition of Freeders Ryland, which stated what he had heard Mary, the ancestor of the petitioners, say respecting her own place of birth and residence.
3. The third exception stated that after a juror was sworn the petitioners excepted to him because he was not an inhabitant of the county, but the Court overruled the exception.
4. The foarth exception stated that a talisman being challenged for favor, and having, upon being questioned, avowed his detestation of slavery to be such that, in a doubtful case, he would find a verdict for the petitioners, and that he had so expressed himself with regard to this very case, and that if the testimony were equal he should certainly find a verdict for these petitioners: the Court instructed the tryers that he did not stand indifferent between the parties.
5. The fifth exception was similar to the second.
6. The sixth exception stated that the petitioners, having read the deposition of R. Disney, stating that he had heard a report from divers persons respecting the manner of the importation of the ancestor of the petitioners, &c. the Court instructed the jury that if they should believe from the evidence, that the existence of the report was not stated by the deponent of his own knowledge, but from what had been communicated to him respecting the existence of such a report many years after her importation, without its appearing by whom or in what manner the same was communicated to him, then the evidence is incompetent to prove either the existence of such report, or the truth of it.
The principal exception is to the opinion of the Court that in tracing a pedigree, the hearsay of hearsay is not admissible. Caleb Clarke's deposition, as to what he heard his mother say, was admitted, but, as to what he heard his mother say her father said, was rejected. If this opinion be correct it will be impossible to prove any antient fact.
Hearsay is only admissible on the ground of necessity and antiquity. 1 Wash 123. 2 Wash. 148. There was no evidence of the death of the person whose declarations were given in evidence. Hearsay of hearsay is analogous to a copy of a copy. The witness ought at least to state from whom he heard the report.
Every claim to freedom ought to be supported by the same kind of evidence as is necessary to support other claims. There is no rule of law that exempts it from the general principles of evidence. In the present case the hearsay was not introduced to prove pedigree nor prescription, nor custom; but to prove that a certain ancestor came from England. It was the neglect of the parties that they did not urge their claim while they had legal evidence to support it. 5 T. R. 121. Oatram v. Morewood. Although a general right may be proved by traditionary evidence, a particular fact cannot, except in tracing a pedigree. The admission of hearsay is an exception to the general rule of evidence, and therefore must be confined strictly to the excepted cases, which are prescription, custom and pedigree; cases in which the strength of the claim depends upon its antiquity. He who would use hearsay as evidence must first prove all the facts which would entitle him to use it, and must satisfy the Court that better evidence cannot be had. The hearsay must be of such a fact as, if the person were living, could be given in evidence by him. Hearsay evidence of a general reputation of a fact is not admissible. The witness himself must know the fact of general reputation.
There are two objections to Disney's deposition: 1. That he does not state who informed him, so that it may be known whether that person be living or not so as himself to be a witness; and, 2. That a general reputation of a fact is not evidence.
The general rule of evidence is, that if the evidence offered be the best which the nature of the case admits, and leaves no presumption that there is better behind, it is admissible.
Such evidence as this is always admitted in the Courts of Maryland, under whose laws this case was tried, and its use had been sanctioned by the authority of the highest Court of that state. The case cited by the opposite counsel shows that it is admitted not only in cases of prescription, custom and pedigree, but in all cases of the like nature. So it has been received in settlement cases, in all cases of paupers, and in questions of antient boundaries in ejectment. The evidence taken upon commissions to mark and bound lands, under the statute of Maryland, generally consists of testimony of this kind. 1 Harris and McHenry's Reports, 84, 85. After a lapse of 100 years better evidence than this cannot be ...