witness, whether or no that letter is of the handwriting of the witness. If the witness admits that it is of his or her handwriting, the cross-examining counsel may, at his proper season, read that letter as evidence, and, when the letter is produced, then the whole of the letter is made evidence. One of the reasons for the rule requiring the production of written instruments is, in order that the court may be possessed of the whole. If the course, which is here proposed, should be followed, the cross-examining counsel may put the court in possession only of a part of the contents of the written paper; and thus the court may never be in possession of the whole, though it may happen, that the whole, if produced, may have an effect very different from that which might be produced by a statement of a part." The first part of the second question, namely, "Whether, when a letter is produced in the courts below, the court would allow a witness to be asked, upon shewing the witness only a part or one or more lines of such letter, and not the whole of it, whether he wrote such part?" the judges thought should be answered by them in the affirmative in that form; but to the latter, " and in case the witness shall not admit that he did or did not write such part, whether he can be examined as to the contents of such letter," they answered in the negative, for the reasons already given, namely, that the paper itself is to be produced, in order that the whole may be seen, and the one part explained by the other. To the first part of the third question Lord Chief Justice Abbott answered as follows:-"The judges are of opinion, in the case propounded, that the counsel cannot, by questions addressed to the witness, inquire whether or no such statements are contained in the letter; but, that the letter itself must be read to manifest whether such statements are or are not contained in that letter. In delivering this opinion to your lordships, the judges do not conceive that they are presuming to offer to your lordships any new rule of evidence, now, for the first time, introduced by them; but, that they found their opinion upon what, in their judgment, is a rule of evidence as old as any part of the common law of England, namely, that the contents of a written instrument, if it be in existence, are to be proved by that instrument itself, and not by parol evidence." To the latter part of the question he returned for answer, "The judges are of opinion, according to the ordinary rule of proceeding in the courts below, the letter is to be read as the evidence of the cross-examining counsel, as part of his evidence in his turn, after he shall have opened his case; that that is the ordinary course; but that, if the counsel, who is cross-examining, suggests to the court that he wishes to have the letter read immediately, in order that he may, after the contents of that letter shall have been made known to the court, found certain questions upon the contents of that letter, to be propounded to the witness, which could not well or effectually be done without reading the letter itself, that becomes an excepted case in the courts below, and, for the convenient administration of justice, the letter is permitted to be read at the suggestion of the counsel, but considering it, however, as part of the evidence of the counsel proposing it, and subject to all the consequences of having such letter considered as part of his evidence." The foregoing questions and answers were followed by this (d): "Whether, according to the established practice in the courts below, counsel cross-examining are entitled, if the counsel on the other side object to it, to ask a witness whether he has made representations of a particular nature, not specifying in his question whether the question refers to representations in writing or in words?" Lord Chief Justice Abbott delivered the following answer of the judges:-"The judges find a difficulty to give a distinct answer to the question thus proposed by your lordships, (d) 2 B. & B. 292-294. either in the affirmative or negative, inasmuch as we are not aware that there is, in the courts below, any established practice which we can state to your lordships as distinctly referring to such a question propounded by counsel on cross-examination, as is here contained; that is, whether the counsel cross-examining are entitled to ask the witness whether he has made such representation; for it is not in the recollection of any one of us that such a question, in those words, namely, whether a witness has made such and such representation,' has at any time been asked of a witness. Questions, however, of a similar nature are frequently asked at nisi prius, referring rather to contracts and agreements, or to supposed contracts and agreements, than to declarations of the witness; as, for instance, a witness is often asked, whether there is an agreement for a certain price for a certain article,-an agreement for a certain definite time,-a warranty,-or other matter of that kind, being a matter of contract; and, when a question of that kind has been asked at nisi prius, the ordinary course has been for the counsel on the other side, not to object to the question as a question that could not properly be put, but to interpose, on his own behalf, another intermediate question; namely, to ask the witness whether the agreement referred to in the question originally proposed by the counsel on the other side, was or was not in writing; and, if the witness answers that it was in writing, then the inquiry is stopped, because the writing must be itself produced.-My lords, therefore, although we cannot answer your lordships' question distinctly in the affirmative or the negative, for the reason I have given, namely, the want of an established practice referring to such a question by counsel; yet, as we are all of opinion that the witness cannot properly be asked, on cross-examination, whether he has written such a thing, (the proper course being to put the writing into his hands, and ask him whether it be his Examination of them. writing,) considering the question proposed to us by your lordships, with reference to that principle of law which requires the writing itself to be produced, and with reference to the course that ordinarily takes place on questions relating to contracts or agreements, we, each of us, think, that if such a question were propounded before us at nisi prius, and objected to, we should direct the counsel to separate the question into its parts. My lords, I find I have not expressed myself with the clearness I had wished, as to dividing the question into parts. I beg, therefore, to inform the House, that, by dividing the question into parts, I mean, that the counsel would be directed to ask whether the representation had been made in writing or by words. If he should ask, whether it had been made in writing, the counsel on the other side would object to the question; if he should ask whether it had been made by words, that is, whether the witness had said so and so, the counsel would undoubtedly have a right to put that question, and probably no objection would be made to it." § 457. The rule that an advocate who has a document in his possession shall not represent its contents to a witness, may possibly be defended on the ground that whoever uses a document in a court of justice has no right to suppress any part of it, or prevent its speaking for itself; although the fitness of extending even this principle to evidence extra causam is not beyond dispute. But whether a witness may be asked, with a view to test his memory or credit, if he has ever made a representation, not specifying whether verbal or written; or has written a letter, not saying to whom, when, or under what circumstances; in which representation or letter he has made statements inconsistent with the evidence given by him in causâ, is a much larger question. Some authorities consider that the above answers of the judges have not resolved it in the negative, and that they were all based on the assumption that the letter was in the possession of the cross-examining counsel (e). In practice, however, a different construction is put on them; and we should at once dismiss the subject, had not that practice been condemned by text writers on the law of evidence, and the above answers of the judges made matter of much animadversion (f). And here it may be doubted how far the proceedings in Queen Caroline's case are binding on tribunals, the answers of the judges to the House of Lords having no binding force per se; and although in that case the house adopted and acted on those answers, it was not sitting judicially, but with a view to legislation, which finally proved abortive. § 458. Now it can hardly escape notice that throughout the answers of the judges on the occasion in question, "written instrument" and "document" are assumed to be convertible terms, a fallacy which has led to more errors than one. A letter is not, at least in general, a written instrument, and therefore taking the maxim of the common law to be as stated by Abbott, C. J., a letter does not fall within its meaning. But is it true as a historical fact, that "it is a rule of evidence as old as any part of the common law of England that the contents of a written instrument" (à fortiori the contents of a written document not coming within the description of an instrument), "if it be in existence, are to be proved by that instrument (or document) itself, and not by parol evidence?" And if this be so, is "parol evidence" here to be understood as comprehending every form of verbal, derivative, and extrinsic evidence? And is it further true that the rule has at every period of our legal history been applied to evidence extrà causam? and did the judges in Queen Caroline's case mean to convey this idea (e) Ph. & Am. Ev. 932. seq.; Stark. Ev. 221-227, 4th Ed.; Tayl. Evid. § 1057. NN |