within the limits of their parifh, notwithstanding the penalty incurred by fuch offence, or any part thereof, may be given to the poor of fuch parifh, or otherwife for the benefit or ufe, or in aid or exoneration of fuch parish: provided that nothing in this act fhall extend to any action or procecding, in which the penalty to be recovered fhall exceed the fum of 201. f. 1, 2. II. The number of witnesses required in criminal cafes. The common law did not require any certain number of witnetes for the trial of any crime whatsoever. 2 Hawk. c. 25. f. 129, and 45. S. 2. And in proceedings before justices of the peace one witnefs is in general fufficient, unlefs the act of parliament, which gives them jurifdiction, directs otherwife. But in the cafe of high treason the law requires two witReffes, and this is not fo much from the natural justice of the rule, that every man's allegiance is fuppofed till the contrary is proved, and the negative of the prifoner is equal to the affirmative of one witness, and therefore the treason ought to be proved upon him by two witneffes; for then the fame would be good in cafes of felony, where every man's honefty is prefumed till the contrary is proved, and yet there it is fufficient to prove the contrary by one witness; but the law hath appointed two witneffes in this cafe, becaufe a court-faction might in many cafes cut off their enemies on fuch articles without a fufficient proof. Gilbert's L. Ev. 155. And therefore it is enacted by 7 Will. 3. c. 3, that, No perfon fhall be indicted, tried, or attainted, of high treason, whereby any corruption of blood may be made, or of mifprifon of fuch treafon, but upon the teftimony of two witneties, either both of them to the fame overt act, or one of them to one, and the other of them to another overt act of the fame treafon, unless the party fhall willingly, without violence, in open court confefs the fame, or fhall stand mute, or refufe to plead, or in cafes of high treafon fhall peremptorily challenge above the number of thirty-five of the jury. f. 2. And if two or more diftinct treasons of divers kinds be alleged in one indictment, one witnefs produced to prove one of the treafons, and another witnefs produced to prove another, fhall not be deemed two witneffes to the fame reafon, within the meaning of this act. /. 4. III. How III. How a witness may be compelled to appear and give evidence. In profecutions for misdemeanors the defendant may take out fubpoenas of courfe, in order to bring in his witneffes. 2 Haruk. c. 46. f. 30. But it seems that at common law he had no right in capital cafes, to any procefs against his witneffes, without a special order of the court. Ibid. However it is enacted by 7 Will. 3. c. 3, that all perfons accufed and indicted for any high treason, whereby any corruption of blood may enfue, fhall have the like procefs of the court, where they fhall be tried, to compel their witnesses to appear for them at any fuch trial, as is ufually granted to compel witneffes to appear against them. /. 7. II And it seems that fince the ftat. of i Ann. c. 9 which ordains "that the witneffes for the prifoner shall be fworn" process may be taken out against them of course in any cafe whatsoever. 2 Hawk c. 46. f. 30. The compulfory procefs to bring in witneffes in criminal caufes is firft either by fubpoena (I) ifiued in the king's name by 11. Set forth more at large in the next division of the present title p. 45. (I) The form of a fubpoena to give evidence at the quarter feflions. George the Third, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith and foforth, to A B. CD. E F, and G H, [not putting more than four in one fubpana] greeting: we command you, that all and fingular busines fes and excufes being laid afide, you and every one of you be in your proper perfons before our juftices affigned to keep the peace, in and for our county of Monmouth, and allo to hear and determine divers felonies, trefpaffes, and other misdemeanors, in the faid county committed, at the general quarter feffions of the peace, to be holden at in and for the faid county, on Wednesday the day of at the hour of the forenoon of the fame day, to teftify the truth, and give evidence before the grand inqueft, touching a bill of indictment to be preferred against O O, in a case of trespass and affault, Or, if it is to give evidence for the profecution, fay, On our behalf, against O O, in a cafe of trespass and affault If for the defendant fay, Between us and OO, in a cafe of trefpafs and affault. in Or by the juftices of peace, oyer and teminer, gaol delivery, or King's Bench, where the plea of not guilty is to be tried; or fecondly, which is the more ordinary and more effectual means, the juftices or coroner, that take the examination of the perfon accufed, and the information of the witneffes, may at that time, or at any time after, and before the trial, bind (II) over the witneffes to appear at the feflions 12. On behalf of the prosecution. Or if the king is not a party, fay, In a certain appeal now depending between the churchwar-` dens and overfeers of the poor of the parish of A, appellants, and the churchwardens and over feers of the poor of the parish of B, removants, touching and concerning the removal of AP from the faid parish of B to the faid parish of A. And then proceed, And this you or any of you are by no means to omit, under the penalty upon each of you of one hundred pounds. Witness at - aforefaid the our reign. day of in the year of H M, clerk of the peace. This fubpoena is made out by the clerk of the peace and each of the witneffes must be perfonally ferved either with a copy, which is now most usual, or with a a ticket in the following form: To Mr. A B. By virtue of his majesty's writ of fubpoena to you directed, and here with fhewn unto you, you are per fonally to be and appear before his majesty's juftices,&c. [purfuing the form of the fubpœna, as far as the words in a cafe of - ]; and this you are not to omit, under the penalty of rool. dated this year of the reignBut where the witnefs is a prifoner, he must be brought up by a writ of Habeas Corpus ad teftificandum, in order to give his evidence. day of in the (II) The form of a recognizance to appear and give evidence in a cafe of felony. to wit. in the day Monmouthshire Be it remembered, that on the ofyear of the reign of our fovereign lord George the Third, by the grace of God of Great Britain, France, andIreland king, defender of the faith, and fo forth, A W of in the laid county of- tanner, perfonally came before me, feffions, and in case of their refufal either to come, or to be bound over, may commit them for their contempt in fuch refufal, 2 Hale's Hift. 282. Thus lord Prefton being committed by the court of quarter feflions for refusing to be fworn to give evidence to the grand jury, on an indictment of high treafon, he was brought by babeas corpus into the court of King's Bench; and Holt Ch. J. faid, It was a great contempt, and that had he been there, he would have fined him, and committed him till he paid the fine; but being otherwife, he was bailed. Salkeld, 278. JP, efq. one of the juftices of our faid lord Acknowledged before me, The condition of the above [or within] written recognizance is fuch, that if the above bound A W, do and shall perfonally appear before the justices of our lovereign lord the king, affignad to keep the peace within the faid county and alfo to hear and determine divers feloniestre/passes and misdemeanors in the faid county committed, at the next general quarter feffions of the peace [or before his maicfly's juflices of gasl delivery, at the next general gaol delivery to be bolden at in, and for the faid county], and do and fhall then andthere give fuch evidence as he knoweth, upon a bill of indiciment to be exhibited by A I, of the grand jury, against O O late of — in the faid county, labourer, for the feloniously taking and carrying away the property of ; and in cafe the faid bill of indictment be found a true bill, then if the faid A W, do and fhall then and there give evidence to the jurors that fhall pass on the trial of the jaid OO, upon the faid bill of indi&iment, and not depart thence without leave of the court; then the above [or within] written recognizance to be void, otherwife of full force. to If the party, entering into this recognizance, neglects to appear according to the condition it will become forfeited, and be created into the exchequer, IV. The IV. The manner of giving evidence. The examination of witneffes viva voce, in open court, is jaftly esteemed one of the greateft excellencies of our law, not only from the awe and reverence which the folemnity of the manner is fuppofed to produce in the witness, and the regard which from thence he must have for truth, but alfo from the benefit of cross-examining; as alfo the air and manner of giving evidence, often carry fuch convictions with them, as will induce the court and jury to believe or reject what the the witness has fworn. Hobart, 325. Hale's Hift. Com. L. 253, 259. Fortefcue's Rep. Pref. ii. Vaughan. 143, 144. Hence it hath always been held as a fettled rule, that in cafes of life, no evidence is to be given against a prifoner, but in his prefence. 2 Hawk. c. 46. f. 1. So alfo in all fummary proceedings before juftices of the peace, under a poenal ftatute, the evidence must be given in the prefence of the defendant; and it must appear on the record of the conviction that the evidence was fo given, otherwise it will be irregular, and the court of King's Bench, on its being removed there by certiorari, will for fuch irregu larityquafh it. 2 Strange, 1240. 2 Durrows, 1163. 3 Burrows, 1786. Cowper, 241. 1 Torn. Rep. 125. 2 Term. Rep. 18. Every perfon produced as a witnefs muft, before he gives his evidence be fworn to depofe the truth, the whole truth, and nothing but the truth; this the law required in all cafes, except on indictments for capital offences, where, by immemorial practice, until 1 Ann. c. 9, the witnefles against the king were not fuffered to be fworn. Cro. Car. 292. 2 Bul. 147. 3 Infi. 79. But now by, Ann. c. 9. Every witnefs on the behalf of the prifoner, before he be admitted to give any manner of evidence, fhall first take an oath to depofe the truth, the whole truth, and nothing but the truth, in fuch manner as the witnees for the crown are obliged to do; and be liable to pains of perjury. And a peer cannot give evidence in a criminal proceeding but upon oath. 3 Keble, 61. Salkeld, 278. By the practice of the courts, if one be produced and fworn as a witnefs, either fide may examine him to any thing whatfover. 2 Bacon's Abr. 295. But a witnefs fhall not be cross-examined, till he has gone through the evidence for the party on whofe fide he was produced. 2 St. Tri. 792. Neither fhall a witnefs be permitted to read his evidence; but |