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4 St. Tr. 277. 310.

(a) Ante, c. 25.

s. 129.

(b) The following authorities,

3 Inst. 26.

Hale's Sum. 262.

1 Hale, 296 to 306.

13. How far an interested person may be a witness.

14. How far religious sectaries may be witnesses.

15. How far infants, aliens, and persons deaf and dumb, may be witnesses.

16. In what manner witnesses are to give their evidence.

17. In what manner witnesses are compellable to attend. 18. In what cases witnesses may be allowed their expenses. 19. What evidence maintains an indictment.

20. What may be given in evidence on the part of the defendant.

21. In what cases the character of witnesses may be supported or impeached.

22. Whether a bill of exceptions to evidence lies in criminal

cases.

As to the FIRST POINT, viz. In what cases the evidence must be given in the presence of the prisoner.

Sect. 1. It is a settled rule, that in cases of life no evidence is to be given against a prisoner but in his presence.

As to the SECOND POINT, viz. How many witnesses are required in criminal cases: I shall inquire,

1. How many witnesses are required in treason.

† 2. How many on an indictment for perjury.

As to the first particular, viz. How many witnesses are required

in treason.

Sect. 2. Having already endeavoured to shew that the common law did (a) not require any certain number of witnesses for the trial of any crime whatsoever, I shall only add in this place, that it seems to have been the more prevailing opinion, that 1 Edw. 6. c. 12. and 5 and 6 Edw. 6. c. 11. which required two witnesses in treason, were not repealed by 1 and 2 Philip & Mary, c. 10. (b) which ordered that all trials of treason should be according to the course of the common law; and therefore that it was still necessary in all trials of high treason, not concerning the coin, (c) Kely. 9. are ex- to have either two witnesses to the (d) same overt act, or one amined by Mr. witness to one, and another (e) witness to an overt act of the Justice Foster, same kind of treason, or at least one witness to an overt act, and 232 to 240. and in his opinion (f) another to a material circumstance to prove it.

2 Hale, 286.
2 State Trials,
144. 171. 177.

confirm the assertion of Hawkins, that the statutes of Edward the Sixth are not repealed by those of Philip and Mary. See c. 25. s. 130 to 146. (c) Gilb. Law Ev. 153. 2 Stra. 1116. Cases in Cro. Law, 39. (d) Raym. 407, 408. 2 St. Tr. 533. 3 St. Tr. 688. (e) 1 St. Tr. 697. 723, 724. 2 St. Tr. 317. 695. 785. 829, 830. 3 St. Tr. 149. 156. 228. 4 St. Tr. 86, 87, 88. 117. Raym. 407, 408. Kely. 9. (f) 2 St. Tr. 408. 3 State Trials, 228, 229. 688, 689. 894 to 901.928, 929, 930. 1 State Trials, 636. But 1 St. Trials, 180, 181. it is holden that circumstantial evidence alone is sufficient.

Vide ch. 25. s. 134 to 146. Foster, 233.

Sect. 3. But in relation to these matters it will be needless, at this day, to examine how far these opinions were reconcilable

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with the first of Philip & Mary, the law seeming to be settled by 7 Will. 3. c. S. s. 2. which is express, "That no person or persons whatsoever shall be indicted, tried, or attainted of high treason, whereby any corruption of blood may or shall be made "to any such offender or offenders, or to the heir or heirs of any "such offender or offenders, or of misprision of such treason, but (g) A collateral by and upon the oaths and testimony of two lawful witnesses, fact not tending "either both of them to the said overt-act, or one of them to one, to the proof of " and the other of them to another overt-act of the same treason the overt-acts "(g); unless the party indicted and arraigned or tried shall wil- may be proved by one witness. lingly, without violence, in open court, confess the same, or Foster, 240.242. "shall stand mute, or refuse to plead; or in cases of high treason Salkeld, 654. "shall peremptorily challenge above the number of thirty-five of "the jury."

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Sect. 4. And by 7 Will. 3. c. 3. s. 4. it is further enacted "That if two or more distinct treasons of divers heads or kind, "shall be alleged in one bill of indictment, one witness produced "to prove one of the said treasons, and another witness produced "to prove another of the said treasons, shall not be deemed or "taken to be two witnesses to the same treason within the " meaning of this act."

per

Holt.

Vaughan's Case,

5 St. Tr. 17.

Sect. 5. But it is said, that the statute of 1 Edw. 6. c. 12. Foster, 232. which, both in petit and high treason, requires two witnesses 238. 240. upon the indictment and at the trial, and the 5 and 6 Edw. 6. c. 11. which, in all treasons, requires that the witnesses, if living, shall be examined in person at the trial in open court, are not altered as to petit treason by 7 Will. 3. c. 3.

237, &c.

Sect. 6. However it was (h) agreed in Sir John Fenwick's case, (h) 4 St. Tr. that the information of a witness taken upon oath before a justice 2 r. 17. of peace, being joined with the evidence of one other witness only Salkeld, 634. viva voce, could not, in the ordinary course of justice, amount to Foster, 242. sufficient evidence within the 7 Will. 3. which requires two witnesses in high treason; and therefore it was thought necessary to proceed in that case by bill of attainder in parliament, whose power can be restrained by no rules but those of natural justice.

But wherever the overt-act of the treason is the assassination or killing of the king; or in any attempt upon his life, or upon his person, whereby his life may be endangered; the parties may be convicted upon the like evidence as if they stood charged with murder.-Vide vol. i. p. 19.

As to the second particular, viz. How many witnesses are required on an indictment of perjury.

On an indictment for perjury the evidence of one witness is not sufficient to convict the defendant; because then there would be only one oath against another. "To convict a man of perjury," said C. J. Parker, in Queen v. Muscott, (10 Mod. 193.) "there must be strong and clear evidence and more numerous than the evidence given for the defendant." It does not appear to be laid down that two witnesses are necessary to disprove the fact sworn to by the defendant; nor does that seem to be absolutely requisite.

But

(i) Kelynge, 55. Sum. 262, 263.

1 Levinz, 180. Salkeld, 281. 2 Keble, 19. Vide C. Eliz. 901.

Dalton, c. 111, 112, 113. (k) 1 St. Tr. 265.

Sum. 262, 263. (1) Sum. 262, 263.

(m) Supra, c. 9.

sect. 31.

But at least one witness is not sufficient, and, in addition to his testimony, some other independent evidence ought to be adduced. (1)

As to the THIRD POINT, viz. In what cases the depositions of witnesses taken out of court may be read in evidence.

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Sect. 12. By the statute 1 and 2 Philip & Mary, c. 13. s. 4. "Justices of the peace, when any person is brought before them "for manslaughter or felony, or suspicion of manslaughter or "felony, being bailable by law, shall, before any bailment or mainprise, take the examination of the said prisoner and the in"formation of them that bring him of the fact and circumstances "thereof; and the same, or as much as may be material thereof "to prove the felony, shall put in writing before they make the "said bailment; which said examination, together with the said "bailment, the said justices shall certify at the next general gaoldelivery to be holden within the limits of their commission."

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+ Sect. 13. By 1 and 2 Philip & Mary, c. 13. s. 5. “Every coroner upon any inquisition before him found, whereby any person or persons shall be indicted for murder or manslaughter, or as accessary or accessaries to the same before the murder or manslaughter committed, shall put in writing the effect of the " evidence given to the jury before him being material; and as "well the said justices as the said coroner shall bind all such by "recognizance as do declare any thing material to prove the same, "to appear at the next general gaol-delivery, and shall certify as "well the same evidence as the recognizance in writing, &c."

Sect. 14. By 2 and 3 Philip & Mary, c. 10. " The said jus"tice or justices, before he or they shall commit or send such prisoner to ward, shall take the like examination of the prisoner " and the information of those who bring him, and shall put the "same in writing within two days after the said examination, and "the same shall certify in such manner and form, and at such "time as they should and ought to do, if such prisoner so com"mitted or sent to ward had been bailed, &c."

Sect. 15. It seems (i) agreed, that the examination of an informer taken upon (k) oath, and (1) subscribed by him either before a (m) coroner upon an inquisition of death in pursuance of 1 and 2 Philip & Mary, c. 13. or before (n) justices of peace in pursuance of 1 and 2 Philip & Mary, c. 13. and 2 and 3 Philip & Mary, c. 10. upon a (0) bailment or (p) commitment for any felony, may be given in evidence at the trial of such inquisition, or of an indictment for the same felony, if it be made out by oath to the satisfaction of the court, that such informer is (q) dead, or unable to (r) travel, or kept (s) away by the means or procurement of the prisoner, and that the examination offered in evidence is the

very

2 Jones, 53. (n) See the books above cited; but 2 Jon. 55. it is adjudged that depositions before a coroner may be read, but said that those taken before a justice of peace can in no case be read. (0) Sup. c. 15. s. 59, 60, 61. (p) Supra, c. 16. s. 11. (9) Kelynge, 55. 1 Levinz, 180. 1 Hale, 305. 2 Keble, 19. Summary, 263. (r) Kely. 55. (3) Kely. 55. In Harrison's Case, 3 State Trials, 941. such an examination was read in evidence, upon proof that the witness had been enticed away, though it did not directly appear to have been done by the procurement of the prisoner.

(1) Philips on Evidence, c. 7.

very same (t) that was sworn before the coroner or justice, with- (t) Kely. 55. out any alteration whatsoever.

2 Keble, 19. Sum. 263.

2 Hale, 284, 285. 1 Hale, 305.

+ Sect. 16. But in petit treason, these depositions, it is said, Foster, 337. are not sufficient to convict the offender if the party be living, although he is unable to travel, or is kept out of the way by the procurement of the prisoner.

Sect. 17. It hath been (u) adjudged, that it is not sufficient to (u) Kely. 55. authorise the reading such an examination, to make oath that the Benson v. Olive, 2 Strange, 920. prosecutors have used all their endeavours to find the witness,

but cannot find him.

Sect. 18. Also it hath been (x) adjudged, that depositions taken (r) 2 Roll. 460, before a coroner upon an inquisition of death super visum corporis, 461. cannot be given in evidence upon an appeal for the same death, Vide 1 Sid. 325. because it is a different prosecution from that wherein they were taken.

Sect. 19. There are many (1) (y) instances in the reigns of queen Elizabeth and king James the First, wherein the depositions of absent witnesses were allowed as evidence in treason and felony, even where it did not appear but that the witnesses might have been produced viva voce.

2 Keble, 384.

(y) Fost. 234. Dyer, 99, 100. 1 State Trials, Duke of Norfolk's Trial, 84. Abington's Tr. 118, 119. Udal's Trial, fol. 148, 149. Earl of Essex's Trial, fol. 166. Sir Walter Raleigh's Trial, fol. 181, 182. and the like was admitted in the Lord Audley's Case, on an indictment for a rape on his own lady, 1 St. Trials, 268, 269. 1 Rushworth, Strafford, fol. 231. 526 to 531.

Sect. 20. And it was adjudged in (2) the Earl of Strafford's (1) 3 St. Tr. 204. trial, that where witnesses could not be produced viva voce, by Ld. Raym. 407. reason of sickness, &c. their depositions might be read for or against the prisoner on a trial of high treason, but not where they

might have been produced in person.

644. 647.651.

Sect. 21. And it was admitted (a) in the Lord Stafford's trial, (a) 2 St. Tr. that the depositions taken by a witness before a justice of the 622 to 627. peace might, at the prisoner's desire, be read at the trial, in order 1 St. Tr. 911. to take off the credit of the witness, by shewing a variance between such depositions and the evidence given in court vivu

voce.

Sect. 22. And for the same reason it seems (b) agreed, that where a witness at one trial varies from his own evidence at another, in relation to the same matter, such variance may also be given in evidence to invalidate his testimony at the second trial.

()2 St. Tr.343,

See sect. 12.

344. 528, 529.

Sect. 23. But it is (c) said to have been adjudged in Paine's (c) Salk. 281. case, in the seventh year of William the Third, by the court of Sup. sect. 3. king's bench upon advice with the justices of the common pleas, upon an indictment for a libel, that depositions taken before a justice of peace relating to the fact cannot be given in evidence, though the deponent be dead; and that the reason why such depositions may be given in evidence in felony, depends upon the

statutes

(1) These instances, it is conceived, when examined, will not warrant the continuance of the practice. Q Q

VOL. II.

(d) See Rex v.

Eriswell, 3 Term
Rep. 707.

(e) 5 Mod. 165.
Vide Rushw.
Stafford, 524 to

531.

statutes of Philip and Mary; and that this cannot be extended farther than the particular case of felony (d). But in the report of this case in (e) Fifth Modern it is said that the reason why such depositions could not be read, was because the defendant was not present when they were taken, and therefore had not the benefit of a cross-examination.

2 St. Tr. 420. 4 St. Tr. 261. and 2 Roll. 460, 461.

Rex v. Will.
Woodcock,
Cases Cro. Law,

397.
George Ding-
ler's Case, at

the Old Bailey,

Sept. Sess. 1791,

coram Gould

and Grose, Justices.

(f) 12 Viner
Abr. 118.
(g) 4 St. Tr.
203.

+ Sect. 24. And it has been held, that an examination of a person murderously wounded, taken by a justice of the peace, at the poor-house of the parish, on oath, and regularly signed, but in the absence of the prisoner, cannot be read in evidence on the subsequent trial of the prisoner for murder, for it is taken extrajudicially, and not as the statutes of Philip and Mary direct, in a case where the prisoner is brought before him in custody, and he has the opportunity of contradicting or cross-examining as to the facts alleged.

+ Sect. 25. But the depositions thus extrajudicially taken may in the particular case of murder be read as the dying declarations of the deceased (ƒ) if in extremis (g), or in such a state of mortality as to render the apprehension of approaching dissolution probable (h).

9 St. Tr. 161. 10 St. Tr. 504. (h) Cases in Crown Law, 397.

Westbeer's

Case, Cases Cro.
Law, 12.

(i) 4 St. Tr. 265

to 272.

Sup. s. 9.
1 Sid. 325.

2 Keble, 384.

Welch's Case, 2 Hale, 285.

1 Hawk. c. 42.

Lit. Rep. 167.
2 Roll. Ab. 679.

(k) Sum. 102. 193. 262.264. 1 Hale, 304.

3 St. Tr. 15.131. (1) Ante, c. 15. (m) 1 St. Tr. 89.

s. 11.58.

186.964.

(n) Kely. 18,19. (0) 5 Mod. 164.

2 St. Tr. 426.

Sect. 26. So the depositions of an accomplice taken by a justice of the peace in the presence of the prisoner, pursuant to the statutes of Philip and Mary, may be read in evidence on the trial of the prisoner, if it be proved that the accomplice is dead.

Sect. 27. But in Fenwick's case it was (i) agreed, that the evidence given by a witness at one trial, cannot in the ordinary course of justice be made use of against a defendant, on the death of such witness, at another trial.

Sect. 28. Also it seems clear, that depositions taken in the spiritual court in a cause of divorce of a forcible marriage cannot be given in evidence upon an indictment for such marriage on the statute of 3 Hen. 7. c. 2.-† For it is a general rule, that depositions taken in a court not of record shall not be allowed in evidence elsewhere, though the witness be dead.

As to the FOURTH POINT, viz. In what cases the confession of a prisoner may be given in evidence.

Sect. 29. It seems that the confession of the defendant himself, taken upon an (k) examination before justices of peace, in pursuance of the statutes of Philip and Mary, upon (1) a bailment or (m) commitment for felony, hath always been allowed to be given in evidence against the party confessing.

+ Sect. 30. It seems also that the confession of the defendant himself taken by the common law upon an examination before a secretary of state or other magistrate for treason (n), or other crimes (0) not within those statutes, may likewise be given in evidence against the party confessing.

Sect.

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