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restrained by public policy from enforcing the production of papers, the like necessity restrains it from doing what would be the same thing in effect, namely, receiving secondary evidence of their contents. It has, however, been held, that, in an action of trespass brought against the governor of a colony, a military officer under his control might be asked in general terms, whether he did not act by the direction of the defendant, though the written instructions could not be given in evidence. But communications, though made to official persons, are not privileged, where they are not made in the discharge of any public duty; such, for example, as a letter by a private individual to the chief secretary of the postmastergeneral, complaining of the conduct of the guard of the mail towards a passenger.3

§ 949. The law excludes, on public grounds, a fifth species of § 857 evidence, namely, that which is indecent, or offensive to public morals, or injurious to the feelings of third persons; the parties themselves having no interest in the matter, except what they have impertinently created. The mere indecency of disclosures does not suffice to exclude them, where the evidence is necessary for the purpose of civil or criminal justice; as, on an indictment for a rape; or on a question upon the sex of one claiming an estate tail, as heir male or female; or upon the legitimacy of one claiming as lawful heir; or on a petition for dissolution of marriage, for judicial separation, or for damages on the ground of adultery. In these and similar cases the evidence is necessary, either for the proof and punishment of crime, or for the vindication of rights existing before, or independent of, the fact sought to be disclosed. But where the parties have impertinently interested themselves in a question, tending to violate the peace of society by exhibiting an innocent third person in a ridiculous light, or to disturb his peace

1 Gray v. Pentland, 2 Serg. & R. 23, 31, 32, per Tilghman, C. J., cited with approbation in Yoter v. Sanno, 6 Watts, 166, per Gibson, C. J. See, also, Stace v. Griffith, 6 Moo. P. C., N. S. 18, and see ante, § 918.

2 Cooke v. Maxwell, 2 Stark. R. 183, per Bayley, J.

3 Blake v. Pilford, 1 M. & Rob. 198.

4 Gr. Ev. § 253, almost verbatim.

5 See 20 & 21 V., c. 85, §§ 16, 27, 33.

and comfort, or to offend public decency by the disclosures which its decision may require, the evidence will not be received. Of this sort are wagers1 or contracts respecting the sex of a third person,2 or upon the question whether an unmarried woman has had a child.3

4

§ 950. In like manner, when the legitimacy of a child is the § 868 question in dispute, the testimony of the parents, that they have or have not had connexion, has,-on the same general ground of decency, morality, and policy,-been, until very recent times, uniformly rejected by the judges. This rule, if, indeed, it be not now indirectly superseded, partly, by § 3 of the Act of 32 & 33 Vict. c. 68,5 and partly, by two modern decisions,-excludes, not only all direct questions respecting access, but all questions which have a tendency to prove or disprove that fact, unless they are put with a view to some different point in the cause; and it applies to the depositions of the parents equally with their vivâ voce testimony.8 Neither is it affected by the circumstance, that, at the time of the

No wager is now recoverable, 8 & 9 V., c. 109, § 18. See Higginson v. Simpson, 46 L. J., C. P. 192. 2 Da Costa v. Jones, 2 Cowp. 729. 3 Ditchburn v. Goldsmith, 4 Camp. 152. If the subject of the action is frivolous, or the question impertinent, and this is apparent on the record, the court will not proceed at all in the trial. Brown v. Leeson, 2 H. Bl. 43; Henkin v. Gerss, 2 Camp. 408. But see Hussey v. Crickett, 3 Camp. 168.

Goodright v. Moss, 2 Cowp. 594; Legge v. Edmonds, 25 L. J., Ch. 125; Cope v. Cope, 1 M. & Rob. 269, 272-274, per Alderson, B. ; 5 C. & P. 604, S. C.; Wright v. Holdgate, 3 C. & Kir. 158, per Cresswell, J. ; R. v. Luffe, 8 East, 193, 202, 203; R. v. Rook, 1 Wils. 340; R. v. Reading, Cas. temp. Hardw. 79; R. v. Mansfield, 1 Q. B. 444; 1 G. & D. 7, S. C.; Anon. v. Anon., 22 Beav. 481; 23 Beav. 273, S. C., giving a more accurate note of the judgment; Com. v. Shepherd, 6 Binn. 283. See ante, § 649. 5 Cited post, § 1355.

6 In re Rideout's Trusts, 10 Law Rep., Eq. 41; 39 L. J., Ch. 192, S. C. ; Re Yearwood's Trusts, 46 L. J., Ch. 478, per Hall, V.-C.; L. R., 5 Ch. D. 545, S. C.

7 Wright v. Holdgate, 3 C. & Kir. 158; R. v. Sourton, 5 A. & E. 180, 185, 188, 189. In this last case, with the view of proving non-access, the father was asked whether, at a particular time, he did not live 100 miles from his wife, and cohabit with her sister. Held, this question could not be put.

8 Goodright v. Moss, 2 Cowp. 592, per Ld. Mansfield; Cope v. Cope, 1 M. & Rob. 272-274, per Alderson, B.; Atchley v. Sprigg, 3 New R. 360; 33 L. J., Ch. 345, S. C.; per Kindersley, V.-C., explaining Plowes v. Bossey, 31 L. J., Ch. 601; Re R-'s Trusts, 39 L. J., Ch. 192.

examination of one of the parents, the other is dead; because the rule has been established, not simply on the ground that the tendency of such evidence is to promote connubial dissension, but on the broad basis of general public policy. But this rule does not preclude the parents from proving that the supposed marriage was either invalid, or valid,3 or that their children were born before or after its celebration, though the effect of such evidence is, in the first and third case, to bastardise the issue, and, in the others, to establish its legitimacy. For this purpose, too, their declarations or their answers in Chancery are admissible evidence.5

§ 951. It is clear, also, that in a case of bastardy, a married § si woman may, when the fact of her husband's non-access has already been proved by independent evidence, confess her adulterous connection with another person, and thus enable the justices, in the event of her testimony being corroborated in some material particular, to make the order of maintenance. But this exception to the general rule of exclusion is founded on necessity; since the fact, to which she is permitted to testify, is probably within her It may here be own knowledge and that of the adulterer alone.8 added, as the point has been considered worthy of discussion,-that in an action against a husband for the price of necessaries supplied to his wife while living alone, the wife is an admissible witness for the defendant to prove that she has committed adultery, and that, consequently, the defendant is not responsible for her maintenance. Such evidence, though strictly legal, is of course open to comment, not only as coming from a polluted source, but as the possible result of collusion between husband and wife for the purpose of defeating the plaintiff's claim.10

9

1 R. v. Kea, 11 East, 132.
3 R. v. Bramley, 6 T. R. 330;

2 In re Darcys, 11 Ir. Law R., N. S. 298. Standen v. Standen, Pea. R. 32.

4 Goodright v. Moss, 2 Cowp. 591, and the cases referred to in Ld. Mansfield's judgment, 593, 594.

5 Id.

6 35 & 36 V., c. 65, § 4 ; 36 V., c. 9, § 5 ; 8 & 9 V., c. 10, § 6.

7 R. v. Reading, Cas. temp. Hardw. 79; 1 Bott. 439, S. C.; Cope ɛ. Cope, 1

M. & Rob. 273, n. a; Legge v. Edmonds, 25 L. J., Ch. 125.

8 R. v. Luffe, 8 East, 293, per Ld. Ellenborough.

9 Cooper v. Lloyd, 6 Com. B., N. S. 519.

10 Id. 525, per Willes, J.

CHAPTER XVII.

MATTERS NOT PROVABLE BY A SINGLE WITNESS.

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$952.1 UNDER this head it is not proposed to go into an ex- § 869 tended consideration of the Statutes of Treason, but only to mention briefly some instances in which those Acts, and some other statutes and rules of law, have regulated particular cases, taking them out of the operation of the general principles, by which they would otherwise be governed. Thus, in regard to treason and misprision of treason, though by the common law these crimes were sufficiently proved by one credible witness, it has been deemed expedient to enact, that no person shall be indicted, tried, or attainted thereof, but upon the oaths and testimony of two lawful witnesses, either both to the same overt act, or one to one, and the other to another overt act of the same treason, unless the accused shall willingly without violence, in open court, confess the same; 3 and further, that if two or more distinct treasons of divers heads or kinds shall be alleged in one indictment, one witness produced to prove one of these treasons, and another another, shall not be deemed to be two witnesses to the same treason.1

§ 953. This protective rule,—which in England has remained § 870 in 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,5 and may

1 Gr. Ev. § 255, in part.

2 Fost. C. L. 233; M‘Nally, Ev. 31; R. v. Clare, 28 How. St. Tr. 887, 924 ; Woodbeck v. Keller, 6 Cowen, 120.

3 As to the confession, see ante, § 866.

* 7 W. 3, c. 3, §§ 2, 4, extended to Ireland by 1 & 2 G. 4, c. 24.

5 "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." Art. 3, § 3; Laws U. S., vol. 2, ch. 36, § 1.

Const. U. S.

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." 2

§ 954. Its continuance in modern times may perhaps be ascribed, § 871 in part, to the obstinacy with which men cling to established forms of proceeding; in part, to the 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, were, until very recently, savage and revolting.

§ 955. Notwithstanding the above rule, any collateral matter, § 512 not conducing to the proof of the overt acts, may be proved by the testimony of a single witness, by the extrajudicial confession of the prisoner, or by other evidence admissible at common law."

125 H. 8, c. 14.

3 4 Bl. Com. 358.

5 33 & 34 V., c. 23, §§ 1, 31.

6 Fost. C. L. 242; 1 East, P. C. 130.

2 T. Ray. 208.

43 Benth. Ev. 391, 392.

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