« PreviousContinue »
in the case of the Queen v. Muscot (1), "there must be strong and clear evidence, and more numerous than the evidence given for the defendant." It does not appear to have been laid down, that txeo witnesses are necessary to disprove the fact sworn to by the defendant; nor does that appear to be absolutely requisite. But, at least, one witness is not sufficient; and, in addition to his testimony, some other independent evidence ought to be adduced.
Secondly, It was enacted, for the security of the subject, by stat. 1 Ed. 6. c. 12. § 22., that "No person shall be indicted, arraigned, condemned, or convicted for any offence of treason, petit treason, misprision of treason, unless the offender be accused by two sufficient and lawful witnesses, or willingly without violence confess the same." By the common law one witness would have been sufficient on the trial of those offences; and this is the first act of the legislature, where two witnesses are required. A similar provision is contained in the stat. 5, 6 Ed. 6. C. Ii. } 12., which enacts, that " No person shall be indicted, arraigned, condemned, convicted, or attainted for any of the treasons or offences in that act mentioned, or for any treasons which then were or hereafter might be, unless the offender should be accused by two lawful accusers, who at the time of the arraignment should be brought, &c., unless the party arraigned should willingly without violence confess the same." So that two witnesses would at that time have been necessary in treasons relating to the coin of the kingdom. But an alteration in this respect was made by the stat. 1, 1 Ph. & Mary, c. 10. § 12., and 1, 2 Ph. & Mary, c. 11. § 3., which provided, that " in all cases of high treason concerning the current coin, or for counterfeiting the king's signet, privy seal, and great seal, or sign manual, and on trials for bringing counterfeit coin into the realm, or for any offence concerning the impairing, counterfeiting, or forging the cur
(1) 10 Mod. 193.
rent rent coin, the prisoners should be tried by the same evidence, as they were before the reign of Edward the Sixth (1 )•" In these cases, therefore, a single witness will now be sufficientand it has been agreed by all the Judges, that these statutes extend to all offences, touching the impairing of the coin, which should afterwards be made treason (2). The stat. 7, 8 W. 3. c. 3., which relates only to such treasons as induce corruption of blood, enacts in the second section, that " No person shall be tried or attainted of that species of high treason, or of misprision of such treason, but by the oaths and testimony of two lawful witnesses, either both of them to the same overt act, or one of them to one, and the other of them to another overt act of the same treason; unless the party indicted and tried shall willingly without violence in open court confess the same, or shall stand mute, or refuse to plead, or in cases of high treason shall peremptorily challenge above the number of thirty-five of the jury." And by the 4th section it is enacted, "If two or more distinct treasons of divers kinds are alleged in one indictment, one witness produced to prove one of the said treasons, and another witness to prove another of the said treasons, shall not be deemed to be two witnesses to the same treason within the meaning of this act." The stat . 39, 40 G. 3. c. 93. enacts, that " in all cases of high treason, when the overt act alleged in the indictment is the assassination of the king or any direct attempt against his life, or against his person, the prisoner shall be tried according to the same order of trial and upon the like evidence, as if he stood charged with murder." A conviction, therefore, in such a case may proceed on the testimony of a single witness.
The language of the statutes of Edward 6. is, that " the offenders are to be accused by two witnesses," that is, two
(1) The like provision in statute (i) Gahagan's case, i Leach, Cr. C. 8. V W. 3. c. 16. s. 7. and itat. 6 G. 3. 5o. 1 East, P. C. iig. S. C. c.53. M.
witnesses. witnesses are required to prove the offence or overt act of treason; and the stat. of W. 3. expressly confines itself to the proof of the overt acts. With respect to all other acts, therefore, which are merely collateral, the rule of common law is not altered, and one witness is still sufficient. (1) gacy, or plene administravit, and the like,) the proof ought to be according to the principles and courts of the common law; and if they disallow the plea, because it is proved only by a single witness, they may be controlled by a prohibition. (1)
incoumof Thirdly, it is an established principle in courts of equity, esulty' that, on a bill praying relief, when the facts charged by the plaintiff, as the ground for obtaining a decree, arc proved only by a single witness, and are clearly and positively denied by the answer of the defendant; the court will not grant a decree against the defendant (2). But where the evidence produced by the plaintiff is so far supported and corroborated by proof of concurring circumstances, as to outweigh the denial in the defendant's answer (3), (abstracting from the mind, that the evidence on the part of the plaintiff comes from a disinterested witness (4),) the former rule will not apply; and the evidence of a single witdess, so strengthened and confirmed, will enable the court to decree against the answer. And there are many cases, in which the court has granted a decree against the defendant on the testimony of a single witness, when his testimony has not been clearly and positively contradicted by the answer. (5)
in ecdeibs- By the civil law, as was before observed, two witnesses ucal courts. flre re<jujreci for the proof of a fact; and such is the rule in ecclesiastical courts, whose practice is founded upon that law. But even in those courts, if a matter cognizable at common law arises incidentally in an ecclesiastical suit, (as, where a revocation of a will is pleaded, or payment of a le
(1) Smith's case, Fott. 141. Mathers, 1 Bro. Ch. C. $%. Toole v.
(1) L' Neve v. L' Neve, I Ves. 64. Medlicott, 1 Ball St Beatty, 403. Bid
66. 3 Atk. 646. S. C. 1 Ves. 97. dulph v. St. John, a Scli.4: Lef. 5i1.
(3) Walton v. Hobbs, 1 Atk. 19. II Ves. 80,
Of the Nature of Presumptive Evidence.
Evidence consists either of positive or of presumptive Premmp proof. The proof is positive, when a witness speaks di- ^4 rectly to a fact from his own immediate knowledge; and presumptive, when the fact itself is not proved by direct testimony, but is to be inferred from circumstances, which either necessarily or usually attend such facts (2). It is obvious therefore, that a presumption is more or less likely to be true, according as it is more or less probable, that the circumstances would not have existed, unless the fact, which is inferred from them, had also existed; and that a presumption can only be relied on, until the contrary is actually proved. In order to raise a presumption, it cannot be necessary to confine the evidence to such circumstances alone, as could not have happened, unless they had been also attended by the alleged fact, — for that in effect would be to require in all cases evidence amounting to positive proof;— but it will be sufficient to prove those circumstances, which usually attend the fact. If the circumstantial evidence be such, as may afford a fair and reasonable presumption of the fects to be tried, it is to be received and left to the consideration of the jury, to whom alone it belongs to determine upon the precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue (3).
(1) Sir W. Juion v. Lord Byroa, 424. Cem.Dig. tit. Prohibition, (F. 13.) 3 Lev. 64. Richardson v. Disbornw, and (G. 23.) 1 Ventr. 291. Shotter v. Friend, (2) Gilb.Ev.142. Garth. 14a. I Ld. Ray. 221. Cowp. (3) 2 H. Bl. 297.
However, for the purpose of trying the weight and effect of
Pr. Ev. of The fact of the birth of a child during a lawful marriage legitimacy. jg prjma fac;e evidence of its legitimacy. Formerly the rule was so strict, that children were presumed to be legitimate, unless the husband had been out of the kingdom during the whole time of gestation; but this doctrine has been long exploded. The general principle, to be deduced from the authorities on this subject, as it was laid down and confirmed by the case of the King v. Luffe(2), appears to be this, that where there are circumstances, which shew an impossibility that the husband could be the father, whether arising from his being under the age of puberty, or from his labouring under disability occasioned by natural infirmity, or from the length of time elapsed since his death, or from his continued absence, the presumption is at an end, and the child will be deemed illegitimate. In an earlier case (3), the court of King's Bench held, that there was no necessity to prove the impossibility, if the other circumstances of the case tended strongly to repel the pre
(0 Beccaria, ch. x\v. (5) Goodright, dem. Totnpson, v.
(1) 8 East, 103,306, Siul,4T,R.356.