
    SCHABEN’S CASE. Henry Schaben v. The United States.
    
      On Motion.
    
    
      The defendants move for anew trial on the ground of newly-discovered evidence. It is comprised in certain payers certified hy the Secretary of the Treasurg tohe“ papers in the custody of this department, which, with other papers, records, &c., were received from agents of this department as a part of the archives of the late so-called Confederate government.” The defendants offer no other proof of the authenticity of the documents sought to he used.
    
    Papers certified hy the Secretary of the Treasury to have heen “ a part of the archives of the late so-called Confederate government” cannot he admitted in evidence unless proved hy proper testimony. The certificate does not establish their authenticity; nor can the government, as defendants in this court, he exempted from the rules of evidence which apply to claimants.
    
      Mr. Joseph A. Ware for tbe motion.
    
      Mr. W. Penn. Olarlce opposed.
   Drake, Ck. J.,

delivered the opinion of the court:

The defendants move that a new trial be granted in this case on the ground of newly-discovered evidence which could not be produced at the former trial.

The newly-discovered evidence, on account of which a new trial is sought, is comprised in -certain papers, certified by the Secretary of the Treasury to be 11 copies of papers in the custody of this [the Treasury] Department, which, with other papers, records, &c., were received from, agents of this department as a part of tbe archives of the late so-called Confederate government.”

This motion brings up the question of the admissibility of this evidence, if a new trial should be granted.

The counsel for the defendants urged in favor of the motion that, if the papers certified be not received in evidence in the form in which they are now presented, the government will be subjected to great detriment, not only in this case but in many others, wherein the participation of claimants in the rebellion can be i>roved by papers found among the captured archives of the late rebels, and cannot probably be otherwise proved.

We recognize the importance to the government of its being able to avail itself, to the fullest extent, of all the evidence contained in the papers captured from the rebels, and would be very loath to interpose in this court any obstacle thereto which is not demanded by the well-settled rules of the law of evidence.

In deciding any, question of evidence, we must either apply those rules to both parties alike, or waive them for both alike. We have no idea that it was intended, in establishing this court, that those rules should be ignored, either totally or partially, much less that we should apply one rule to claimants and another to the defendants.

Were the papers in question offered by the claimant, it would be demanded of him to prove their genuineness by proper testimony, for the plainest rules of law require such proof. But when they are offered by the defendants, it is claimed that copies of them should be admitted, without any proof whatever of the genuine character of the originals. The Secretary of the Treasury does not assume to certify that fact, either directly or inferentially, but simply that they are copies of papers which u were received from agents of this department as a part of the archives of the late so-called Confederate government.”

As a part of those archives the originals could have no status in the courts of the United States as evidence of the facts appearing in them ; and the mere certificate of the Secretary of the Treasury, that the originals were received by his department from its agents as a part of those archives, can give no such status to those copies in this court.

The well-settled and perfectly familiar rule of law requires that when a paper is to be given in evidence it must be proved; and when a copy is offered, tbe proper foundation for its introduction as secondary evidence must be laid.

Another and equally well-settled and familiar rule of law is, that tbe best evidence wbicb tbe nature of tbe case will admit of must be produced. Would tbe claimant be allowed to give in evidence a copy, while be admitted that be bad tbe original in bis possession, and could produce it? Manifestly not. Why should tbe government be allowed to do so ? It has in its possession tbe originals of these copies, and why should it not produce them ? We can see no reason why it should not.

As tbe newly-discovered evidence proposed to be introduced in this case if a new trial be granted could not, consistently with tbe rules of evidence to wbicb we have referred, be admitted, there is no ground for granting a new trial.

Heretofore (be government has bad occasion to give papers in evidence in this court wbicb were found among tbe archives, if, they may be so designated, of “ tbe late so-called Confederate government f and there ivas no difficulty in making tbe proof necessary to their introduction. No reason is shown why tbe same course might not be pursued in this case.

If tbe officers of tbe government desire to give these papers in evidence, unimpeded by tbe rules of law to wbicb we have referred, tbe way to accomplish it is very simple — to procure tbe passage of an act of Congress prescribing tbe terms on wbicb they may be made evidence. But until such an act be passed, we have no option but to administer tbe law of evidence as we understand it, and that requires that this motion be overruled •, and it is overruled.  