ON THE LAW OF EVIDENCE, AS ADMINISTERED IN ENGLAND AND IRELAND; WITH ILLUSTRATIONS FROM THE AMERICAN AND OTHER FOREIGN LAWS. THIRD EDITION. BY JOHN PITT TAYLOR, Esq., JUDGE OF THE COUNTY COURTS FOR LAMBETH, GREENWICH, AND WOOLWICH. AND HODGES, SMITH, & Co., GRAFTON STREET, DUBLIN. 1858. CONTINUATION OF PART II. RULES GOVERNING THE PRODUCTION OF TESTIMONY. CHAPTER XVII. MATTERS NOT PROVEABLE BY A SINGLE WITNESS.1 § 869. UNDER this head it is not proposed to go into an extended § 870. This protective rule, which in England has remained in 1 The substance of this Chapter first appeared in the Law Rev., No. 7, 3 As to the confession, see ante, § 792. 7 Will. 3, c. 3, §§ 2, 4; extended to Ireland by 1 & 2 Geo. 4, c. 24. its present state since the days of King William III., and in Ireland, was adopted in the year 1821, has been incorporated, with some slight variation, into the constitution of America,' and may be met with in the statutes of most, if not all, of the States in the Union. The first notice that we have of this rule, is in a repealed Act of the time of Henry VIII.,' and from the language there employed it appears probable, that the original reason for its adoption was that stated by Lord Nottingham on Lord Strafford's trial: "Anciently all or most of the judges were churchmen and ecclesiastical persons, and by the canon law, now and then in use all over the Christian world, none can be condemned of heresy but by two lawful and credible witnesses; and bare words may make a heretic, but not a traitor, and, anciently, heresy was treason; and from thence the Parliament thought fit to appoint, that two witnesses ought to be for proof of high treason." § 871. Its continuance in modern times may perhaps be ascribed, in part, to the obstinacy with which men cling to established forms of proceeding; in part, to the accused's oath and duty of allegiance, which may be supposed to counterpoise the information of a single witness; and, in part, to the heinousness of the crime of treason, which raises a presumption of innocence in favour of the accused, while the counter-presumption, that on so serious a trial no witness would be guilty of criminative perjury, is forgotten.' But, possibly, the best reason for the regulation is, that, on state trials, the prisoner has to contend against the whole power of the Crown; that this power is especially liable to abuse in times of excitement and danger; that the law of treason is ill-defined, and worse understood; and that the consequences of a conviction, both to the accused, and to his family, are savage and revolting. A man of calm reflection may consider this last reason an indifferent one; and may think that the Legislature would confer no trifling benefit on the country, if it defined the law of 1 "No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." Const. U. S. Art. 3, § 3; Laws U. S., vol. 2, ch. 36, § 1. 225 Hen. 8, c. 14. 44 Bl. Com. 358. 3 T. Raym. 408. 3 Bentham Ev., 391, 392. treason with greater accuracy, and if, by abolishing alike the cruelties which make it abhorrent, and the protections which make it ridiculous, it rendered the punishment of traitors more certain and less barbarous. § 872. Notwithstanding the above rule, any collateral matter, not conducing to the proof of the overt acts, may be proved by the testimony of a single witness, by the extra-judicial confession of the prisoner, or by other evidence admissible at common law.' For instance, on an indictment for treason in adhering to the Queen's enemies, the fact that the prisoner is a subject of the British Crown may be established by his admission, or by the testimony of one witness." § 873. In treason, and misprision of treason, no evidence can be given of any overt act, which is not expressly laid in the indictment. But the meaning of this rule is, not that the whole detail of facts shall be set forth, but that no overt act amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence, unless it be expressly laid in the indictment, or unless it conduce to the proof of any of the overt acts, which are laid. For instance, in Layer's case, the prisoner's correspondence with the Pretender was allowed to be read in evidence, as tending directly to prove one overt act laid, namely, the conspiring to depose the King and to place the Pretender on the throne, though this correspondence was a substantive treason in itself, and was not charged as an overt act in the indictment; and on the same ground the publication of the Pretender's manifesto by Mr. Deacon was read against Foster Cr. L. 242; 1 East, P. C. 130. 2 R. v. Vaughan, 15 How. St. Tr. 535, per Lord Holt; Foster, C. L. 240, S. C. 3 Gr. Ev., § 256, in part as to first six lines. 7 Will. 3, c. 3, § 8. This section is not incorporated in the Irish Act of 1 & 2 Geo. 4, c. 24, but it being also a rule at common law, this would seem to be immaterial. Foster, Cr. L. 245; 1 East, P. C. 121-123. 16 How. St. Tr. 220-223; Foster, Cr. L. 245, 246, S. C. By 13 Will. 3, c. 3, § 2. See 17 Geo. 2, c. 39. |