be made use of as evidence against any others, whom on his examination he confessed to be in the treason.

The confession of a prisoner is not to be taken in parts, but the whole together; that what is given in evidence may be neither more nor less than the prisoner intended. If the confession is not in writing, the whole of what the prisoner said must be fully stated, although it may happen that some part of it concerns other prisoners who are tried on the same indictment; in such a case it is not possible to make any selection, for, until the evidence has been heard, it cannot be known what it is, or to whom it relates; and all that can be done is to direct the jury not to take into their consideration such parts as affect the other prisoners. But a distinction might perhaps be made in this respect, in case the confession has been reduced into writing, if that part which relates to the other prisoners is capable of being separate and detached from the rest, and can be omitted without affecting in any degree the prisoner's narrative against himself.

It has been determined by all the judges, that, although confessions improperly obtained are not admissible, yet that any facts, which have been brought to light in consequence of such confessions, may be properly received in evidence. Thus, where a prisoner was charged, as accessary after the fact, with having received property knowing it to be stolen, proof was admitted of the property being found concealed in the prisoner's lodgings, although the knowledge of that fact had been gained from an inadmissible confession (1). Some indeed have thought, that the circumstance, of the fact being known in consequence of information received from the prisoner, ought not to be shewn at the trial. But a different practice appears to be established by later authorities; and, on a prosecution for receiving stolen goods, evidence has been admitted that the prisoner described the

(1) Warwickshall's case, I Leach, Cr. C. 300. Mosey's case, ib. n. (a),

301. Lockhart's case, ib. 43. 2 East. P. C. 658. S. C.

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place where the goods were concealed, and that afterwards they had been found there; but that part of the confession, in which he acknowledged that he himself had concealed them, was rejected, as it was improperly drawn from him (1). There is good reason for this distinction; for, what the prisoner has said respecting the concealment of the property is ascertained to be true by the fact of the subsequent discovery, but the other part of the confession, in which he charges himself with having concealed it, may have been made untruly and entirely under the influence of the threat or promise.

There has been some difference of opinion, respecting the sufficiency of this kind of evidence in trials of high treason. The stat. of the 7th W. 3. c. 3. s. 2. enacts, "that no person shall be indicted, tried, or attainted, for high treason or misprision of high treason, but upon the oaths and testimony of two 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 arraigned shall willingly without violence in open court confess the same." Mr. Justice Foster (2) seems to have been of opinion, that the legislature intended by this section to require two witnesses to the overt acts in all cases, except where the prisoner confessed the treason upon his arraignment in open court, and that to warrant a conviction there must be proof of the overt acts upon oath, not merely proof of the confession of the overt acts. "But, he adds (3), perhaps it may now be too late, to controvert the authority of the opinion in 1716, in Francia's case, warranted as it hath been by later precedents (4)." All the judges, on a conference preparatory to the trial of Francia (5), held, that a confession of the overt acts, if proved by two witnesses, would be sufficient to convict the prisoner. The same con

(1) Grant's case, and Hodge's case, 2 East, P. C. 658. 1 Leach, Cr. C. 301. n. (a), S. C.

(2) See Fost. Disc. 240. 243. Willis's case, ib. 242. Smith's case, ib.

(3) Fost. Disc. 243.

(4) See Fost. Disc. 11. note. (5) Francia's case, 1716. Mr. J. Burnet's MS. I East, P. C. 133.

struction

struction of the statute was adopted in Greg's case (1), by six judges against two; in Berwick's case (2), by Ld. C.J. Willes and Sir Thomas Abney against the opinion of Mr. Justice Foster; and by the judges in the commission, on the trial of the rebels in 1746. (3)

With regard to all collateral facts, which do not conduce to the proof of the overt acts, it may be laid down as a general rule, that whatever was evidence of them at common law is still good evidence under the statute. (4) Such facts may therefore be proved by a single witness. Thus, in Vaughan's case (5), where the prisoner endeavoured to prove himself a subject of France, the counsel for the crown produced evidence of his being born in Ireland; and, on its being objected by the prisoner's counsel, that there was but one credible witness to that fact, Lord Holt C. J. said, "that it is no overt act: if there be one witness to that, it is enough: there need not be two witnesses, to prove him a subject.”

From the above-cited cases, it appears now to be an established rule, that a full and voluntary confession by the prisoner of the overt acts charged against him is of itself sufficient evidence to warrant a conviction. And, although Mr. Justice Foster suggests (6), that "the rule, for admitting a confession against the prisoner, ought not to extend further than to a confession made during the solemnity of an examination before a magistrate or before some person having authority to take it, when the party may be presumed to be properly upon his guard and apprised of its danger," no distinction of this kind is to be found in the authorities before mentioned. On the contrary, in Francia's case the judges resolved, that the confession would be evidence, whether made before a magistrate or in

(1) Greg's case, r East, P. C. 134. (2) Fost. Disc. 10.

(3) Fost. Disc. p. 11. n. (†). I East, P. C. 134.

(4) Fost. Disc. 242.

(5) 5 State Tr. 17. Fost. Disc. 240. (6) Fost. Disc. 243. 4 Black. Com.

356.

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the course of conversation (1). And there appears to be no solid ground for such a distinction; as confessions are admissible in trials for high treason, precisely on the same principle, which made them evidence at common law. The observations of Mr. Justice Foster relate to the effect rather than to the admissibility of this sort of evidence, and are equally applicable to confessions in any other criminal case. "Hasty confessions, he says (2), made to persons having no authority to examine, are the weakest and most suspicious of all evidence. Proof may be too easily procured : words are often mis-reported (whether through ignorance, inattention, or malice—it mattercth not to the defendant --he is equally affected in either case): they are extremely liable to misconstruction: and withal, this evidence is not, in the ordinary course of things, to be disproved by that sort of negative evidence, by which the proof of plain facts may be and often is confronted."

SECT. VI.

Of the Admissibility of the Party injured, as Witness in Criminal Prosecutions.

Ir is a general rule, that in criminal prosecutions the injured party may be a witness: although on the conviction of the prisoner he will in many cases be entitled to a reward. *

(1) See Burnet, J. MS. cited r (2) Fost. Disc. 243. East, P. C. 133., and Kelyng, 19.

It

A reward of 401. is granted for apprehending and prosecuting to conviction highway robbers, (4 W. & M. c. 8. s. 2.), offenders against the acts for preventing counterfeited coin, &c. (St. 6 W. 3. c 17. s. 9.: 15 G. 2. c. 28. s. 7.), prisoners charged with burglary or breaking and entering houses in the day-time, (St. 5 Ann. c. 31. s. 4.), or charged with taking rewards for helping to stolen goods without prosecuting the felon (St. 6 G. 1. c. 23. s. 9.). A reward of gol. is granted for apprehending and convicting smugglers who oppose custom-house and excise officers by force of arms, &c. (St. 9 G. 2, c. 35. s. 11.), or offenders against

the

It is the constant practice on an indictment for robbery, to admit the evidence of the person who has been robbed; and it is not a sufficient objection, that he will be entitled to the restitution of his property, on the conviction of the offender. The same evidence is admitted in prosecutions for a cheat (1), or for perjury (2); and, in the case of perjury, it is not material, whether he has or has not satisfied the judgment in the suit in which the perjury was committed. It was, indeed, at one time thought an indispensable requisite to shew the judgment satisfied (3); on the supposition, that, in case of his procuring a conviction, he might use it for the purpose of obtaining relief in equity against the judgment. But, as it is now an established rule, that a court of equity will not grant relief on a conviction, which proceeds on the evidence of the prosecutor (4), there can be no objection to his being admitted a witness. And in other cases, the party aggrieved will be allowed to give

(1) Parris's case, I Vent. 49. 2 Sid. 431. S. C. R. v Macartney, 1 Salk. 286.

(2) R. v. Broughton, 2 Str. 1230. R. v. Boston, 4 East, 581. contra, R. v. Ellis, 2 Str. 1104., R. v. Nunez, 2 Str. 1042., R. v. Whiting, 1 Salk. 283. But Lord Mansfield, in Abraham q. t. v. Bunn, 4 Burr. 2255. cites the case of

R. v. Broughton as over-ruling the three last mentioned cases.

(3) R. v. Eden, 1 Esp. N. P. C. 97. R. v. Dalby, Peake, N. P. C. 12.

(4) Bartlet v. Pickersgill, cited in Abraham v. Bunn, 4 Burr. 2255. by Ld. Mansfield, C. J., and in R. v. Boston, 4 East, 577. by Ld. Ellenborough.

the Black Act, (St. 9 G. 1. c. 22. s. 12.); and a reward of 10l. for apprehending and convicting stealers of sheep or other cattle. The apprehenders of highway robbers are also entitled to the robber's goods found upon him, provided they were not before stolen. By the Stat. 21 Hen. 8. c. 11., the person, from whom money or goods have been stolen, is entitled to restitution, on the conviction of the robber. By the St. 5 Eliz. c. 9. s. 8., persons convicted of perjury within that act are subject to certain forfeitures, a moiety of which is for the party grieved, and to be recovered by action. By St. 25 G. 2. c. 36. s. 11., in case of a conviction of felony, the prosecutor is entitled to his expences of prosecution, as may seem reasonable to the Court, on consideration of his circumstances; and, in the case of a writ of certiorari obtained by a person who had been indicted before the quarter sessions, the party injured prosecuting will be entitled to costs on the conviction of the defendant, by St. 5, 6 M. 3. c. 11. s. 3. It may be observed generally, of all those cases, that such circumstances will not affect the competency of the witness. If his evidence were to be excluded, the very object of the legislature would in most cases be entirely defeated.