THIS case came before the court, on a division of opinion by the judges of the circuit court for the district of Maryland. 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. The first count charged, that Thomas S. Reyburn, the defendant, on the 1st day of 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 were and still are 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 were and still are 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; 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 colours, 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 misdemeanour 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. The case was argued for the United States by Mr Williams, district attorney of the United States for the Maryland district, and Mr Taney, attorney-general, for the United States; and a written argument, on behalf of the defendant, was submitted to the court by Mr M'Mahon, and Mr Glenn. For the United States it was argued, that the material facts in the case were, that the commission, of the contents of which the United States proposed to give evidence without producing it, was seen on board of the privateer in the service of Buenos Ayres, commanded by captain John Chase. No exertions of the United States, and no process of the court could compel its production. And Chase himself, who was in possession of it, if within the reach of the process of the court, would not be bound to produce it; because it would tend to criminate himself, and convict him on an indictment then pending against him. It is a case, then, in which no exertions of the party, and no process from the court would enable them to produce the commission itself. It was absolutely out of their power to obtain it. The rule of evidence is, that in a case of this sort, the written evidence must itself be produced, if it is in the power of the party, by any reasonable exertions on his part to procure it. But if he is not in fault and no reasonable exertions on his part will enable him to obtain the writing itself, he may then offer parol evidence of its contents. Indeed the rule may justly be stated, still more generally. And where the highest and best evidence the nature of the case admits of, is out of the reach of the party, without his fault, he may resort to secondary evidence. Where a subscribing witness to an instrument is dead, or out of the reach of the process of the court, his hand writing may be proved. 1 Stark. Ev. 338. And where a witness becomes incapacitated, so as to put it out of the power of the party to obtain the testimony. 2 Esp. Rep. 697. The witness had maried the plaintiff. It may be said, that these cases merely apply to instrumental witnesses. The principle is the same. It is, that secondary evidence is received, because it is not in the power of the party to offer the best. The best evidence would be the witness himself: but as that testimony could not be procured, the secondary evidence, proof of his hand-writing, is received. The same rule applies to the instrument itself. The writing is the best evidence; but if it is not in the power of the party to produce it, he may offer secondary evidence, that is parol evidence of its contents. Parol evidence may be given of instruments in the possession of the party. 1 Stark. Ev. 361; Arch. Plead. Evid. 72; 13 Johns. Rep. 90; 1 Phil. Ev. 39; 1 Leach's C. C. 330; 17 Johns. Rep. 330. It is not the notice that makes the evidence admissible. The notice is required to prevent fraud and surprise. The secondary evidence is admitted, because it is out of the power of the party to procure it. He cannot by any exertions compel the production of it. This being the case with instruments in possession of the adversary, why will not the same rule apply to instruments in the possession of any other person; provided the party requiring them is equally incapable of procuring them? There is no distinction in principle, and the authorities show that there has been no distinction in practice. 9 Peterse. 159, note. Whenever the instrument is out of the power of the party, secondary evidence may be produced. On an indictment for detaining a bill of exchange, under pretence of getting it discounted for the party; it was proved to be in the hands of another party who refused to produce it. Parol evidence was received of its contents. 9 Petersd. 162; 1 Leach's C. Law, 330(272). Commonwealth v. Snell, 3 Mass. Rep. 85. This was an indictment for passing a forged note, and a copy was received in evidence. The rule is there laid down, 'that if an instrument cannot be produced, the prosecutor being in no fault, the next best evidence will be admissible.' A copy of an obligation made at Carraccas and certified by a notary, was received in evidence. Mauri v. Heffernan, 13 Johns. Rep. 58. In this case no doubt is expressed about the propriety of receiving secondary evidence. The only doubt was, whether the notarial copies should form a part of the secondary evidence. A written contract, deposited with a third person in the state of Ohio by the parties, may be proved by the depositary, without producing the original. A copy was proved by him under a commission. Bailey v. Johnson, 9 Cowen, 115. The following case recognizes the authority of the cases before referred to; but seems to make it necessary that the third party should have the possession from or under the person against whom it is proposed to use it. Judge Tilghman's opinion supports substantially the principle contended for. The evidence was refused on the ground of policy. Judge Yeates's opinion appears to narrow the principle. Gray v. Pentland, 2 Serg. & Rawle, 31. Notice in this case would have been an idle ceremony; the defendant could not produce it, and the evidence of the United States shows that they could not produce it. It would be absurd to notify him to do what it is admitted he could not accomplish. 13 Johns. Rep. 58. 3 Mass. Rep. 85. 9 Cowen, 115. But in this case notice would not have been necessary even if the defendant had been in possession of the commission. 14 East, 274. 13 Johns. Rep. 93. 3 Mass. 85. 9 Petersd. 159, note. 9 Peterd. 162. It is objected that no efforts were made to procure it. Exertions are required only where there is a reasonable prospect of success; not where it is previously known that they must be unavailing. What means could the United States use to get this commission? What process would have brought captain Chase before the court? If he was before the court, would any court compel him to produce the commission. As all efforts would have been unavailing, the law will not require that which can accomplish nothing. It does not require that which must be but a vain effort, and can produce no result. It is also objected that a copy might have been procured from the government of Buenos Ayres. 1. Had we a right to demand a copy? Were the government bound to give it to us? 2. Was there any reason to suppose that it would have been given as a matter of comity? Would they give it to assist a prosecution, in a foreign country, to punish one of their own commanders? 3. If they gave a copy of a commission to that vessel and that officer, how would that prove it to be a copy of the one seen by the witness? How would it prove that it was a copy of one issued in Baltimore? 4. There is no evidence that those commissions are recorded in any office in Buenos Ayres. 5. From the nature of the transaction charged in the indictment, they cannot be supposed to be recorded; for if they are issued in Baltimore, they must be sent to an agent in blank; for the name of the vessel and the captain could not be known to the government, and the government would hardly give a copy to prove itself guilty of such conduct. 6. But suppose a copy under seal to be produced, the seal would not prove itself; it must be proved by parol. United States v. Palmer, 3 Wheat. 695. See the objection in that case in page 615. The Estrella, 4 Wheat. 304. If, therefore, a copy under seal could have been procured, the verity of it must have depended on parol evidence. It would be proved by parol, that the contents of the original were the same with the copy produced. If the witness proves the contents in any other way, is it not equally admissible? The copy certified, would not be a copy examined by a witness. The truth of it would depend on the certifying officer. And before an examined copy is required, there must be grounds for asserting that a copy is there; and there must be reasonable grounds for supposing that an examined copy would have been furnished for the purposes of this indictment. It would seem that the commission of a privateer, or the character of a vessel, may be proved without producing the commission or a copy under seal. 3 Wheat. 615, 635. And where the commission is proved to be lost, the court has admitted parol testimony of its character and contents, without insisting on endeavours to procure a copy. The Estrella, 4 Wheat. 298, 303. The counsel for the defendant contended, that the evidence offered in this cause, concerning which the judges of the court below differed in opinion, was inadmissible. 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. 1st point. The offence imputed to the traverser, as described in all the counts of this indictment, is defined by the act of congress of 20th April 1818: and to the establishment of the offence as there defined, it should appear that the traverser, with a view to the employment of the vessel in question, in the manner and for the purposes charged, had issued or delivered for such vessel, a written warrant or authority for such employment, emanating in fact from the government of the United Provinces of Rio de la Plata. The word 'commission,' ex vi termini, imports a written authority from a competent source, given to any person as his warrant for the exercise of the powers which it delegates. The act of 'issuing or delivering' the commission being the offence, the statute manifestly relates only to a written, or to what is the same thing, a printed authority; and entirely excludes the notion that a mere verbal authority is within its provisions. The nature and objects of the act of 1818, also clearly indicate, that the commission, to be such, must emanate from a government competent to give it; and must in fact authorise the employment of the vessel in the manner charged. That act has for its objects the preservation of our neutral relations, and the strict enforcement of the obligations of all persons being within the limits of our country to respect its neutral character: and in the instance under consideration, to effect these objects it prohibits belligerent nations or their agents, from commissioning any persons within our territory for the prosecution of their warfare. The delivery of a mere pseudo-commission, whatever it may be, is no violation of neutrality within the the meaning of this act; nor is the offence here charged established, as has been contended, by the mere use of a paper purporting to be a commission, in the manner and for the purposes charged. This offence consists in, and is complete by the act of issuing or delivering the commission for the purposes charged; without reference to the use which may afterwards be made of it, and even if it never be used. It rests solely upon the nature and efficacy of the commission alleged to have been issued or delivered, and the intent in issuing or delivering it. The written document, the commission itself, must therefore be produced, that it may appear, or be proved to be what it is alleged to be. The case at bar is also clearly within the general rule of the criminal law. 'That written instruments, where they form the gist, or a part of the gist of the offence charged, must be set forth or recited in the indictment, and that if not so set forth, the reason for such omission must appear upon the face of the indictment.' Illustrations of this general rule will be found in the cases of forgery, for which see 1 East's Rep. 180. 2 Leach's C. L. 657, 808. 2 East's C. Law, 975. Commonwealth v. Houghton, 8 Mass. Rep. 107: and cases of libels, threatening letters and challenges. Of indictments for not obeying the orders or warrants of justices of the peace: 2 Chitty's C. Law, Eng. ed. 263, 283. Of indictments for selling foreign lottery tickets, in the cases of State of Maryland v. Scribner, and Same v. Barker, 2 Gill and Johnson's Md. Rep. 252, the rule, its reasons, and the exceptions to it, are perspicuously stated. If, then, this case be one in which it is necessary that the indictment should have set forth the commission, or have assigned some sufficient reason for the omission, the commission itself is clearly the primary testimony, and should have been produced at the trial, if that were practicable. These remarks upon this point have been deemed necessary, only because the contrary doctrine was strenuously contended for in the court below. 2d point. The general rule as to the admission of secondary evidence of the contents of a written instrument is, that such evidence may be received where the written instrument has been lost or destroyed, or there is proof to warrant the presumption of its loss or destruction; or where it is in the possession of the defendant, and notice has been given to him to produce it, or the action or indictment charges him with the possession of it. The present case is without this rule. There is no evidence of loss or destruction of the commission; and the character of the instrument, as one highly important to the persons exercising it, forbids the presumption, in the absence of all proof, that it has been lost or destroyed. In this instance, the secondary evidence is alleged to be admissible, because the commission is supposed to have been traced to the possession of a third person, not charged by this indictment, whose attendance as a witness to produce the commission, or prove its loss or destruction, cannot be procured. It may therefore be questioned, whether it is not more properly a case of defective proof, than one of secondary evidence. Jackson ex dem. Livingston, 16 Johns. Rep. 193. But conceding the case to be analogous to those in which secondary evidence has been admitted, in the absence of the attesting witness, to prove the execution of a bond, &c. and to which it has been assimilated, there should have been full proof of diligent efforts on the part of the government to procure the attendance of the third person, to whose possession it is said to have been traced. Such evidence is necessary to let in the proof either of the existence or of the contents of the commission. The King v. The Inhabitants of Castleton, 6 Term Rep. 236. Williams and others v. Younghusband, 1 Starkie's Rep. 139. It should have been proved, either that the witness was without the jurisdiction of the court, as in the cases of Prince v. Blackburn, 2 East's Rep. 250, and Hodnett v. Toman, 1 Starkie's Rep.; or that diligent efforts had been made to find him, which had failed. Cunliffe v. Sefton, 2 East. 183. In this case no such proof was offered, nor was even a subpoena issued to procure the attendance of Chase. The government relies solely upon the pendency of an indictment against Chase, and the return of non est inventus to the process upon that indictment. The rule in question, however, requires the proof of due diligence to procure the attendance of the witness, in the particular case; and the want of it cannot be supplied by the proof, that such diligence, used in another case, has failed to procure his attendance. Had Chase been wanted as a witness in any cause in which no subpoena had been issued, nor any efforts made to procure his attendance, the fact that he had been summoned in other causes, and that his attendance could not be procured in those causes, would have furnished no ground for the continuance of the cause in which he had not been summoned. Diligence used in one cause, cannot be reflected upon another; so as to excuse negligence in the latter. Where proof of diligent efforts to procure a witness is necessary, it must, as well in cases where secondary evidence is to be let in, as in those where the trial is to be suspended because of his absence, apply to the particular case. A contrary doctrine might lead to the grossest abuses. In the present instance, the proof offered is used to raise a presumption, where the fact to be presumed, if it did exist, might have been fully established. Chase was a resident of Baltimore, and there fitted out the vessel in question. The court will not presume that he was without the jurisdiction of the court below, or that his attendance could not have been procured by diligent efforts, from the mere return of process in another case; when with due diligence in this case, the facts to be presumed, if they existed, might have been expressly established. It is submitted, also, in connexion with this branch of the subject, that the evidence offered, goes only to the fact that a commission was seen in the vessel. There is no proof that it was Chase's property, and none tracing it to his possession then or at any other period. Non constat, that it was then, has been since, or is now in his possession; and until this shall appear, there is no foundation for the introduction of this testimony, because of his alleged absence. 3d point. The evidence offered is not the proper secondary evidence, because it is not the next best evidence of the existence and contents of the commission, of which the nature of the case admits. The paper in question is a written act of state, emanating from a foreign and recognised government, and one of which the court will presume, in the absence of all proof to the contrary, there remains with the government issuing it, a record or duplicate. The rule as to the proper proof of foreign written laws, will here apply. Such laws must be proved by the production of an authenticated copy; or if that cannot be had, of a sworn copy. Hulle v. Heightman, 4 Esp. Rep. 75; Clegg v. Levy, 3 Camp. 166; Miller v. Heinrick, 4 Camp. 155; Consequa v. Willing and others, 1 Peters's C. C. Rep. 225; Robinson v. Clifford, 2 Wash. C. C. Rep. 2. And the courts will not presume that an authenticated copy, or a sworn copy cannot be had, until proof made, that due efforts were used to obtain it, which had failed: Seton v. The Delaware Insurance Company, 2 Wash. C. C. Rep. 176; and also Church v. Hubbard, 2 Cranch, 236 to 239. The same principle is applicable to the acts of state of a foreign government; note (a) to Buchanan v. Rucker, 1 Camp. 65. It is a general rule that when an original document is lost, the next best evidence of it is an authenticated or examined copy, which, if it exists, and can be found, must be produced: United States v. Britton, 2 Mason's C. C. R. 468. So where two or more parts of a deed have been executed, the loss or destruction of all the parts should be proved before secondary evidence of its contents can be received. Bull. N. P. 254; 6 T. R. 236. If, therefore, it was proved that there was a record or duplicate of the commission in the archives of the government of Buenos Ayres; before parol evidence could be offered of its contents, it would be necessary to prove that an authenticated or examined copy could not be had. In this case, the court will presume that there is such a record; it being the usage of all governments to preserve some record of their public acts and commissions. The courts have presumed as to laws, from their nature and objects, that they were written, and that copies of them could be procured. Cases above cited from 2 Wash. C. C. Rep. 176. The rules here stated, as to the introduction of secondary evidence, apply as well to criminal as to civil cases; nor is the necessity for producing Chase as the witness, in whose possession the commission is said to have been, or for using due efforts to procure his attendance, dispensed with by the suggestion, even if founded in fact, that the production of that commission might tend to criminate Chase himself. The privilege of refusing to answer on that ground; is one, personal to Chase himself, of which he may avail himself or not at his pleasure; and does not affect his competency as a witness, or establish the presumption, that the primary testimony could not be obtained by producing him as a witness.