Origin of the common law rule. Exceptions justifiable in certain cases. human mind, and thus create a system of mechanical decision, dependant on the number of proofs and regardless of their weight (1). § 562. But whether the common law rule had its origin in these considerations is doubtful. Our old lawyers do not seem to have been emancipated from the civil and canon law notion, based as was then supposed on the authority of Scripture, and fortified by the practice of the church, that two witnesses ought to be required in all cases (m). But as in those times the jury were themselves a species of witnesses, and as such might, if they chose to run the risk of an attaint, find their verdict without any evidence being produced before them (n), our ancestors considered that a judgment founded on the verdict of twelve men was a virtual compliance with what they deemed a divine command. One strong proof of this is, that where the trial was without a jury, namely, on a trial by witnesses, the rule of the civil and canon law was thought binding, and the two witnesses were exacted (o). § 563. Some modern jurists, not satisfied with condemning the civil law for requiring two witnesses in all cases, attack ours for not going far enough in the opposite direction, and would abolish the exceptions to its rule of receiving the testimony of one. At the head of these stands Bentham (p), whose arguments have been considered in the Introduction (q); and who, after all, admits, what indeed it would be difficult to deny, that requiring the second witness is, to a certain extent at least, a protection against perjury (r). (1) Introd. sect. 2, § 69. (p) 4 Benth. Jud. Ev. 503; 5 Id. 463 et seq. (q) Sect. 2, § 53. (r) 5 Benth. Jud. Ev. 468. § 564. On the whole, we trust our readers will agree with us in thinking that any attempt to lay down a universal rule on this subject, which shall be applicable to all countries, ages, and causes, is ridiculous; and that, so far as this country is concerned, although the rule of our common law that judicial decisions should proceed on the credit and intelligence, and not on the number of the witnesses examined or documents produced in evidence, is in general a just one (s), there are cases where, from motives of public policy, it has been wisely altered. § 565. Of the exceptions to the general rule respecting Exceptions. the sufficiency of one witness, some exist by the common law, but by far the greater number have been introduced by statute. law. § 566. The most remarkable and important of the 1o. At common former is in the case of prosecutions for perjury (t); but charge of perjury may be ques tioned, as most of our early text writers are silent on the subject; see 2 Hawk. P. C. c. 46, s. 2, and c. 25, s. 131 et seq. &c. Fortescue, indeed, c. 32, says, "Qui testes de perjurio convincere satagit, multò illis plures producere necesse habet," a passage transcribed without comment by Sir Edward Coke, 3 Inst. 163, but the context of which renders it very doubtful whether the Chancellor when he wrote these words intended them as expressing a legal rule. A stronger argument may be derived from the well known practice in attaint, that a jury of twelve men could only be attainted of false verdict by a jury of twenty-four. But, on the 1. Prosecutions the exception only applies to the proof of the falsity of for perjury. the matter sworn to by the defendant;-all preliminary or collateral matters; such as the jurisdiction and sitting of the court, the fact of the defendant having taken the oath, together with the evidence he gave, &c., may be proved in the usual way (u). Reason usually assigned for this exception. § 567. The reason usually assigned in our books for requiring two witnesses in perjury,-viz. that the evidence of the accused having been given on oath, when nothing beyond the testimony of a single witness is produced to falsify it there is nothing but oath against oath (x),—is by no means satisfactory. All oaths are not of equal value; other hand, we must recollect that in early times the jury themselves were looked on as witnesses, supra, Part 1, ch. 2, § 118, who might convict of perjury, or, indeed, of any offence, on their own knowledge without other testimony. The leading case on this subject is R. v. Muscot, 10 Mod. 192, Mich. 12 Ann. That was an indictment for perjury; and Parker, C. J., in summing up, said, p. 194, "There is this difference between a prosecution for perjury, and a bare contest about property, that in the latter case the matter stands indifferent; and therefore, a credible and probable witness shall turn the scale in favour of either party: but in the former, presumption is ever to be made in favour of innocence; and the oath of the party will have a regard paid to it, until disproved. Therefore to convict a man of perjury, a probable, a credible evidence not enough; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant, for else only oath against oath." Now the book called the Modern Reports is not of very high authority; but, even supposing the utmost accuracy in the above report, there is nothing in Chief Justice Parker's charge inconsistent with the supposition of his observations being made in the way of prudential advice and direction to the jury, and not with the view of laying down an imperative rule of law; and this supposition is in some degree confirmed by the comparison with which he sets out between the proof in perjury and that in civil cases. (u) Tayl. Ev. § 701; 2 Gr. Russ. 654. (r) 4 Blackst. Com. 358; Peake's Ev. 9, 5th Ed.; 3 Stark. Ev. 859, 3rd Ed.; Tayl. Ev. § 697; 2 Gr. Russ. 649 and 654; R. v. Harris, 5 B. & A. 939, note. for the credibility of the statement of a witness depends quite as much on his deportment and the probability of his story as on the fact of its being deposed on oath ; and, as justly remarked by Sir W. D. Evans, the motives for falsehood in the original testimony or deposition may be much stronger with reference to the event on the one side than the motives for a false accusation of perjury on the other (y). In many cases, even of the most serious kind, tribunals are compelled to decide on the relative credit of witnesses who swear in direct contradiction to each other. Where, for instance, a murder or larceny is proved by one or two witnesses, and an alibi, or other defence wholly irreconcilable with their evidence, and inconsistent with any hypothesis of mistake, is proved by a like number produced by the accused, the verdict of the jury virtually, though not formally, determines that one set of witnesses or the other has committed perjury. § 568. The foundations of this rule, we apprehend, lie True reason. much deeper. The legislator about to deal with the offence of perjury has to determine the relative weight of conflicting duties. Measured merely by its religious or moral enormity perjury, always a grievous, would in many cases be the greatest of crimes, and as such deserving the severest punishment the law could inflict. But when we remember the very peculiar nature of this offence, that every person who appears as witness in a court of justice is liable to be accused of it by those against whom his evidence tells, that these are frequently the basest and most unprincipled of mankind, and reflect how powerless are the best rules of municipal law without the co-operation of society to enforce them; we shall see that the obligation of protecting witnesses from oppression, or annoyance, by charges or threats of charges of false testimony, is far paramount to that of (y) 2 Ev. Poth. 280. giving even perjury its deserts. To control the ravages of that crime prevention is better than cure; and the law of England relies on the means of detecting and exposing it at the moment of commission; such as publicity, crossexamination, the aid of a jury, &c.; and when the offence is clearly proved, by the infliction of a severe, though not excessive punishment (z). But, to anticipate the immensely greater evils which arise from false accusations of perjury, she throws every fence round the person accused-great precision is required in the indictment, the strictest proof is exacted of what the accused swore; and, lastly, the testimony of at least two witnesses must be forthcoming to prove its falsity. The result accordingly is that in England little difficulty, comparatively speaking, is found in obtaining voluntary evidence for the purposes of justice; and although many persons may escape the legal punishment awarded by law to perjury, instances of erroneous conviction for it are un (*) We have not overlooked the vexata quæstio, whether the taking away life by false testimony is punishable capitally by English law; on which subject see Fost. Cr. Law, 131, 132; 19 Ho. St. Tr. 810, note; 4 Blackst. Comm. 138 and 139, and 196, with note (4) of Professor Christian. Supposing the affirmative, it could only be by an indictment, not for perjury, but for murder, with the false oath laid as the means of death; for it is clear that no capital indictment could be framed for bearing false witness with intent to murder where no conviction of the innocent party ensued. And as in all cases of homicide the death of the deceased must be clearly and un equivocally traced to the act of the accused, no such indictment for murder could be sustained if any other evidence, certainly if any other material evidence, besides that of the accused, were given on the former trial, for it would be impossible to measure the effect of his testimony on the mind of the tribunal. Indeed in most, if not all such unhappy cases, more or less blame rests with the tribunal in rashly giving credit to the false evidence: and of this opinion are said to have been the old Gothic lawgivers, who under such circumstances punished both the witness and the judge, and, to make all sure, the prosecutor. See 4 Blackst. Comm. 196. |