witnesses. This however proceeds on the supposition that such one is alive, and his presence to be obtained; if either of these possibilities Best not to fail, the next best evidence becomes the best, be obtained. and therefore admissible. What that may be, must depend on the circumstances of each particular case: sometimes it can in its nature amount to no more than strong presumption, as similarity of seals or hand writing, but still if it be the best evidence the case admits of, it is sufficient, subject to observation on its degree of probability and consistency. Two kinds equally good Thus, if an original document of any kind be necessary in evidence, and it be in the adversary's hands, a copy must be admitted, because it is the best obtainable evidence, the better evidence being not obtainable by the party producing the copy, for its being in the adversary's hands, is positive proof that it cannot be given by the party offering the copy.† It may indeed happen that a fact may be equally well proved through two different media, as for instance, the fact of a person being rated to a parochial rate, cannot be proved but by the production of the rate itself, if obtainable; but to prove that a person possesses rateable property, although the production of the rate might shew that he was actually rated 3 Black. Com. 368. † Bull. Ni. Pri. 294.-2 Term. Rep. 201. for it, yet the rate itself is not absolutely necessary to shew the mere possession of property liable to be rated.* evidence. Having laid down these general rules, which Division of are applicable to every description of evidence, we come next to the division of it into its different kinds; and the first great line of that division, is between written or documental evidence, and oral or parol testimony. These are again divisible into minuter distinctions, but first it is proper to observe, that oral testimony being most commonly applicable to trials for criminal offences, (the subject we are now examining) while written is principally called for on appeals respecting settlements, the former, which the law denominates parol, must be our first subject Parol. of consideration. It presents itself in three points of view, viz. 1st, the number, 2dly, the. quality, 3dly, the obligation of witnesses. 1. The common law did not require any Number of specifie number of witnesses, for the trial of witnesses. any crime whatever, and therefore where it is not specially provided otherwise, one witness continues to be sufficient to convict an offender. The general rules upon this subject may be briefly given thus, In treason, which works corruption of blood, In treason. two witnesses are required.† Where the con * 15 East's Rep. 32. † 7 W. c. 3. In perjury. One witness generally viction does not work corruption of blood, one witness is sufficient.*. In perjury also two are, of course, necessary to give a preponderance; for otherwise it would only be oath against bath, and a jury would have a very doubtful right to conclude on the falshood of that sworn by the defendant.† But generally in all other offences (unless in sufficient. a few instances by statute, and which are chiefly, though not entirely confined to summary convictions on disputes between masters and work. men in particular trades) one witness is suffi cient to convict offenders of all descriptions before Justices either in, or out of, Session. Quality of witnesses. 2. Generally all persons are capable of being witnesses who are of sane mind, and may be presumed to have a proper sense of the obligation of an oath.-For it is an universal rule in all criminal cases, that no testimony shall in any case, or under any circumstances, be admitted without oath. Subject then to these rules: Infants, Aliens, Persons deaf and dumb, Jews, Mahometans, Gentoos, Scotch Covenanters, being respectively sworn according to their rules of faith, and modes of understanding it, are admissible witnesses.§ § Leach. C. L. 114, 347.--Bull. N. P. 242,-Peake's Compend. 136. But the general rule is best illustrated by con- Exceptions, sidering the exceptions, which are reducible briefly to the following instances. 1. Atheists, because having neither hopes of Atheists. reward, nor fear of punishment, no test or rule of faith can bind their consciences. 2. Persons rendered infamous. By which it Persons infamous. is to be understood that a conviction, and therefore, much more an attainder, or judgment of treason, felony, piracy, prœmunire, perjury, forgery, and also a judgment in attaint for giving a false verdict, or in conspiracy at the suit of the King, are good causes of exception against a witness, while they continue in force; for where a man is convicted of those glaring crimes, against the common principles of humanity and honesty, his oath is of no weight, Also it was anciently held, that judgment for any crime whatsoever to stand in the pillory, or to be whipt, or branded, being in a court which had a jurisdiction, rendered the party infamous, and incompetent to be a witness; but the rigour of this piece of law is reduced to reason; for now it is holden, that unless a man be put in the pillory, pro crimine falsi, that is, for some crime which renders him infainous, as for perjury, forgery, barretry, conspiracy, or the like, it is no blemish to his attestation; for it is the crime, and not the punishment, that makes the man infamous.* Thus where a man was con * Ball. N. P. 291.-38 Geo. 3. c. 45. By which statute Barretry. Restoration to credit. Conviction must be produced to impeach the credit of wit victed of barretry, though he was only fined, the Court held him incompetent ;* so also till a modern stat.† a person convicted of, and whipt for, petit larceny was incompetent, because he was rendered infamous. But as the law stands now, a person convicted of grand larceny is restored to his credit by being admitted to his clergy, and a person convicted of petit larceny by force of this statute. Besides which, a King's pardon will restore every man to his credit, except in the solitary instance of conviction for perjury under the statute, by which the power of pardon is specifically taken away.‡ 8 However, the party who would take advantage of any of these exceptions to witnesses, must be prepared with a copy of the record of conness render- viction, to produce in Court, for otherwise the ed infamous. objection will fail.§ For it is a general rule, that a witness shall not be asked any question, the answering to which might oblige him to accuse himself of a crime: and that his credit is to be impeached only by general accounts of his character and reputation, and not by proofs of particular crimes, whereof he was never convicted. 66 fine and whipping are substituted for what is here denominated branding," which was marking the ball of the thumb with a hot iron, under a stat. of Hen. 7. * Salk. 690. +31 Geo. 3. c. 35. Bull. N. P. 292. § Ibid. 2 Hawk. e. 46. |