CHAPTER XVII.

MATTERS NOT PROVABLE BY A SINGLE WITNESS.

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§ 952. UNDER this head it is not proposed to go into an extended 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; 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.*

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§ 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, 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, 2 866.

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." Const. U. S. Art. 3, 3; Laws U. S., vol. 2, ch. 36, 8 1.

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 The first notice that we have of this rule, is in a repealed Act of the time of Henry VIII., and from the language there employed it appears probable, that the original reason for its adoption was that stated by Lord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.'

§ 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.

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§ 955. Notwithstanding the above rule, any collateral matter, 872 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.

3 Benth. Ev. 391, 392.

5 33 & 34 V., c. 23, ?? 1, 31.

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

2 T. Ray. 208.

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.'

§ 956. In treason and misprision of treason, no evidence can ? 873 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 him in 1746, as strongly proving with what intention he had joined the rebel army, and as supporting the overt act laid in the indictment of marching in a warlike manner to depose the King. On the other hand, when Captain Vaughan was indicted for adhering to the King's enemies, and the overt act laid was his cruising on the King's subjects in the Loyal Clancarty, the court rejected evidence of his cruising in another vessel; as, if it were true, it would be no sort of proof of the act for which he was then to answer.

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1 R. v. Vaughan, 15 How. St. Tr. 535, per Ld. Holt; Fost. C. L. 240, S. C. 2 Gr. Ev. 256, in part as to first six lines.

37 W. 3, c. 3, 28. This sect. is not incorporated in the Irish Act of 1 & 2 G. 4, c. 24, but as the rule is also recognized at common law, this would seem to be immaterial.

Fost. C. L, 245; 1 East, P. C. 121–123.

5 16 How. St. Tr. 220-223; Fost. C. L. 245, 246, S. C.

6 By 13 W. 3, c. 3, ? 2.

7 R. v. Deacon, Fost. C. L. 9; 18 How. St. Tr. 366, S. C.; R. v. Wedderburn, Fost. C. L. 22; 18 How. St. Tr. 425, S. C.

8 R. v. Vaughan, 15 How. St. Tr. 499, 500; Fost.; C. L. 246, S. C.

§ 957.' This rule is not peculiar to trials for treason; though, 574 in consequence of the oppressive character of some former prose cutions for that crime, it has been deemed expedient expressly to enact it in the later statutes of treason. It is nothing more than a particular application of the well-known doctrine, that the proof must correspond with the allegations, and be confined to the point in issue. The issue in treason is, whether the prisoner committed that crime by doing one or more of the treasonable acts stated in the indictment; as in defamation the question is, whether the defendant injured the plaintiff by maliciously uttering any of the slanders laid in the statement of claim; and evidence of collateral facts is admitted or rejected on the like principle, in either case, according as it does or does not tend to establish the specific charge. Therefore the declarations of the prisoner, and seditious language used by him, are admissible in evidence as explanatory of his conduct, and of the nature and object of the conspiracy in which he was engaged. And in support of the overt act of treason in the county mentioned in the indictment, other acts of treason, though done in other counties, may be given in evidence; subject, however, to be ultimately rejected, if the overt act, in corroboration of which they are tendered, is not proved to have been done in the county as laid.*

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§ 958. It remains to be noticed in connexion with this subject, 875 that the protective provisions of the Statutes of Treason' do not apply to the particular class of treasons, which consists in compassing or imagining the death or destruction, or any bodily harm tending to the death or destruction, maiming or wounding, of the Queen, where the overt act or acts alleged shall be the assassination of her Majesty, or any attempt to injure in any manner whatsoever her Royal person; or to the misprisions of any such treason; but in all the cases the accused shall be indicted, arraigned,

1 Gr. Ev. 256, in part.

R. v. Watson, 2 Stark. R. 132-135.

2

Ante, 218, 298.

♦ R. v. Layer, 16 How. St. Tr. 164; R. v. Deacon, 18 id. 367; Fost. C. L. 9, 10, S. C.; R. v. Vane, How. St. Tr. 123-129; 1 East, P. C. 125, 126. 5 7 A. c. 21; 7 W. 3, c. 3; 6 G. 3, c. 53, § 3.

823 tried and attainted, in the same manner, and according to the same course and order of trial, and upon the like evidence, as if he stood charged with murder; though upon conviction, judgment shall be given, and execution done, as in other cases of high treason.1

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§ 959. It seems to have been formerly thought, that, in proof & 876 of the crime of perjury, two witnesses were necessary; but this strictness, if it was ever the law, has long since been relaxed; the true principle of the rule being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner, and the legal presumption of his innocence.* The oath of the opposing witness, therefore, will not avail, unless it be corroborated by material and independent circumstances; for otherwise, there would be nothing more than the oath of one man against another, and the scale of evidence being thus in one sense balanced, it is considered that the jury could not safely convict.5 So far the rule is founded on substantial justice." But it is not precisely accurate to say, that the corroborative circumstances must be tantamount to another witness; for they need not be such as that proof of them, standing alone, would justify a conviction, in a case where the testimony of a single witness would suffice for that purpose.' Thus, a letter written by the defendant, contradicting his statement on oath, will render it unnecessary to call a second witness. Still, evidence confirmatory of the single

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1 39 & 40 G. 3, c. 93; 1 & 2 G. 4, c. 24, ¿ 2, Ir.; 5 & 6 V., c. 51, 1. 2 of this last Act makes it a high misdemeanor to discharge or aim fire-arms, or throw or use any offensive matter or weapon, with intent to injure or alarm her Majesty. 2 Gr. Ev. 257, in part.

3 This is said to have been the opinion of Ld. Tenterden; 3 St. Ev. 860, n. q.; R. v. Champney, 2 Lew. C. C. 259, per Coleridge, J.

See R. v. Lee, cited 2 Russ. C. & M. 650.

54 Bl. Com. 358; R. v. Gaynor, 1 Crawf. & D., C. C. 142; Jebb, C. C. 262, S. C.; R. v. Braithwaite, 8 Cox, 254, 444, per Watson, B., and Hill, J.; 1 Fost. & Fin. 638, S. C.

R. v. Yates, C. & Marsh, 139, per Coleridge, J.

7 R. v. Gardiner, 8 C. & P. 737, per Patteson, J.; 2 Moo. C. C. 95, S. C.; R.

v. Shaw, L. & Cave, 579; 10 Cox, 66; 34 L. J., M. C. 169, S. C.

8 R. v. Mayhew, 6 C. & P. 315, per Ld. Denman. See, also, R. v. Towey, 8 Cox, 328.