for the purer administration of justice, the relation of lawyer and client is so far regarded by the rules of practice in some courts, as that the lawyer is not permitted to be both advocate and witness for his client in the same cause. 18

[The privileges against self-crimination, against the production of documents by one not a party, and against inspection of the person of a civil plaintiff, are treated post, §§ 469 d-469 n.]

18 Stones v. Byron, 4 Dowl. & Lowndes 393; Dunn v. Packwood, 11 Jur. 242; Reg. Gen. Sup. Court, N. Hamp. Reg. 23; 6 N. Hamp. R. 580; Mishler v. Baumgardner, 1 Am. Law Jour. 304, N. s. Contra: Little v. Keon, 1 N. Y. Code Rep. 4; 1 Sandf 607; Potter v. Ware, 1 Cush. 518, 524, and cases cited by Metcalf, J. [In § 364, the author states the above rule as obtaining in England, but adds, citing no authority: "But in the United States no case has been found to proceed to that extent; and the fact is hardly ever known to occur.' Modern practice does not exclude the advocate as witness.

CHAPTER XX.

QUANTITY OF EVIDENCE; NUMBER OF WITNESSES; CORROBORATION.

§ 255. Treason. Under this head it is not proposed to go into an extended consideration of the statutes of treason, or of frauds, but only to mention briefly some instances in which those statutes, and some other rules of law, have regulated particular cases, taking them out of the operation of the general principles by which they would otherwise be governed. Thus in regard to treasons, though by the common law the crime was sufficiently proved by one credible witness,' yet, considering the great weight of the oath or duty of allegiance against the probability of the fact of treason,2 it has been deemed expedient to provide that no person shall be indicted or convicted of high treason but upon the oaths and testimony of two witnesses to the same overt act, or to separate overt acts of the same treason, unless upon his voluntary confession in open court. We have already seen that a voluntary confession out of court, if proved

1 Foster's Disc. p. 233; Woodbeck v. Keller, 6 Cowen 120; McNally's Evid. 31. This is conceived to be the true foundation on which the rule has, in modern times, been enacted. The manner of its first introduction into the statutes was thus stated by the Lord Chancellor, in Lord Stafford's Case, T. Raym. 408: "Upon this occasion, my Lord Chancellor, in the Lords' House, was pleased to communicate a notion concerning the reason of two witnesses in treason, which he said was not very familiar, he believed; and it was this: anciently all or most of the judges were churchmen and ecclesiastical persons, and by the canon law now, and then, in use all over the Christian world, none can be condemned of heresy but by two lawful and credible witnesses; and bare words may make a heretic, but not a traitor, and anciently heresy was treason; and from thence the Parliament thought fit to appoint that two witnesses ought to be for proof of high treason."

This was done by Stat. 7 W. III, c. 3, § 2. Two witnesses were required by the earlier statutes of 1 Ed. IV, c. 12, and 5-6 Ed. VI, c. 11; in the construction of which statutes, the rule afterwards declared in Stat. 7 W. III was adopted; see R. . Lord Stafford, T. Raym. 407. The Constitution of the United States provides that "No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." Art. 3, § 3. This provision has been adopted, in terms, in many of the State constitutions. But as in many other States there is no express law requiring that the testimony of both witnesses should be to the same overt act, the rule stated in the text is conceived to be that which would govern in trials for treason against those States; though in trials in the other States, and for treason against the United States, the constitutional provision would confine the evidence to the same overt act.

by two witnesses, is sufficient to warrant a conviction; and that in England the crime is well proved if there be one witness to one overt act, and another witness to another overt act, of the same species of treason. It is also settled that when the prisoner's confession is offered, as corroborative of the testimony of such witnesses, it is admissible, though it be proved by only one witness; the law not having excluded confessions, proved in that manner, from the consideration of the jury, but only provided that they alone shall not be sufficient to convict the prisoner. And as to all matters merely collateral, and not conducing to the proof of the overt acts, it may be safely laid down as a general rule, that whatever was evidence at common law is still good evidence under the express constitutional and statutory provision above mentioned.

§ 256. Same: Overt Act and Evidence of it. It may be proper in this place to observe that in treason the rule is that no evidence can be given of any overt act which is not expressly laid in the indictment. But the meaning of the rule is, not that the whole detail of facts should be set forth, but that no overt act, amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence unless it be expressly laid in the indictment. If, however, it will conduce to the proof of any of the overt acts which are laid, it may be admitted as evidence of such overt acts. This rule is not peculiar to prosecutions for treason; though, in consequence of the oppressive character of some former State prosecutions for that crime, it has been deemed expedient expressly to enact it in the later statutes of treason. It is nothing more than a particular application of a fundamental doctrine of the law of remedy and of evidence; namely, that the proof must correspond with the allegations, and be confined to the point in issue.3 This issue, in treason, is whether the prisoner committed that crime by doing the treasonable act stated in the indictment; as, in slander, the question is, whether the defendant injured the plaintiff by maliciously uttering the falsehoods laid in the declaration; and evidence of collateral facts is admitted or rejected on the like principle in either case, accordingly as it does or does not tend to establish the specific charge. Therefore the declarations of the prisoner, and seditious language used by him, are admissible in evidence as explanatory of his conduct, and of the nature and object of the conspiracy in which he was engaged. And after proof of the overt act

Supra, § 235, n.; Lord Stafford's Case, 7 How. St. Tr. 1527; Foster's Disc. 237; 1 Burr's Trial 196.

• Willis's Case, 15 How. St. Tr. 623–625; Grossfield's Case, 26 id. 55–57; Foster's Disc. 241.

• Supra, § 235; Foster's Disc. 240, 242; 1 East P. C. 130.

1 Foster's Disc. p. 245; 1 Phil. Evid. 471; Deacon's Case, 18 How. St. Tr. 366; 8. C. Foster 9; Regicide's Case, J. Kely. 8, 9; 1 East P. C. 121-123; 2 Stark. Evid. 800, 801.

2 Supra, §§ 51-53.

R. v. Watson, 2 Stark. 116, 134; U. S. v. Hanway, 2 Wall. Jr. 139.}

of treason, in the county mentioned in the indictment, other acts of treason tending to prove the overt acts laid, though done in a foreign country, may be given in evidence."

§ 257. Perjury. In proof of the crime of perjury, also, it was formerly held that two witnesses were necessary, because otherwise there would be nothing more than the oath of one man against another, upon which the jury could not safely convict.1 But this strictness has long since been relaxed; the true principle of the rule being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner, and the legal presumption of his innocence. The oath of the opposing witness, therefore, will not avail, unless it be corroborated by other independent circumstances. But it is not precisely accurate to say, that these additional circumstances must be tantamount to another witness. The same effect being given to the oath of the prisoner, as though it were the oath of a credible witness, the scale of evidence is exactly balanced, and the equilibrium must be destroyed, by material and independent circumstances, before the party can be convicted. The additional evidence need not be such as, standing by itself, would justify a conviction in a case where the testimony of a single witness would suffice for that purpose. But it must be at least strongly corroborative of the testimony of the accusing wit ness; or, in the quaint but energetic language of Parker, C. J., "a

* Deacon's Case, 16 How. St. Tr. 367; s. c. Foster 9; Sir Henry Vane's Case, 4th res., 6 id. 123, 129, n.; 1 East P. C. 125, 126; see post, Vol. III, §§ 246-248.} 11 Stark. Evid. 443; 4 Hawk. P. C. b. 2, c. 46, § 10; 4 Bl. Comm. 358; 2 Russ. on Crimes, 1791.

* The history of this relaxation of the sternness of the old rule is thus stated by Mr. Justice Wayne, in delivering the opinion of the Court in U. S. v. Wood, 14 Pet. 440, 441: "At first, two witnesses were required to convict in a case of perjury; both swearing directly adversely from the defendant's oath. Contemporaneously with this requisition, the larger number of witnesses on one side or the other prevailed. Then a single witness, corroborated by other witnesses, swearing to circumstances bearing directly upon the imputed corpus delicti of a defendant, was deemed sufficient. Next, as in the case of R. v. Knill, 5 B. & Ald. 929, n., with a long interval between it and the preceding, a witness who gave proof only of the contradictory oaths of the defendant on two occasions, one being an examination before the House of Lords, and the other an examination before the House of Commons, was held to be sufficient; though this principle had been acted on as early as 1764, by Justice Yates, as may be seen in the note to the case of The King v Harris, 5 B. & Ald. 937, and was acquiesced in by Lord Mansfield, and Justices Wilmont and Aston. We are aware that, in a note to R. v. Mayhew, 6 C. & P. 315, a doubt is implied concerning the case decided by Justice Yates: but it has the stamp of authenticity, from its having been referred to in a case happening ten years afterwards before Justice Chambre, as will appear by the note in 5 B. & Ald. 937. Afterwards, a single witness, with the defendant's bill of costs (not sworn to) in lieu of a second witness, delivered by the defendant to the prosecutor, was held sufficient to contradict his oath; and in that case Lord Denman says, 'A letter written by the defendant, contradicting his statement on oath, would be sufficient to make it unnecessary to have a second witness.' 6 C. & P. 315. We thus see that this rule, in its proper application, has been expanded beyond its literal terms, as cases have occurred in which proofs have been offered equivalent to the end intended to be accomplished by the rule."

[See post, Vol. III, § 198, and Terr. v. Williams, Ariz., 54 Pac. 232.]

♦ Woodbeck v. Keller, 6 Cowen 118, 121, per Sutherland, J.; Champney's Case,

strong and clear evidence, and more numerous than the evidence given for the defendant.” 5

§ 257 a. Same: Several Assignments. When there are several assignments of perjury in the same indictment, it does not seem to be clearly settled, whether, in addition to the testimony of a single witness there must be corroborative proof with respect to each; but the better opinion is, that such proof is necessary; and that, too, although all the perjuries assigned were committed at one time and place. For instance, if a person, on putting in his schedule in the insolvent debtors' court, or on other the like occasion, has sworn that he has paid certain creditors, and is then indicted for perjury on several assignments, each specifying a particular creditor who has not been paid, a single witness with respect to each debt will not, it seems, suffice, though it may be very difficult to obtain any fuller evidence.2

§ 258. Same: Corroborating Circumstances as Equivalent of Witness. The principle that one witness with corroborating circumstances is sufficient to establish the charge of perjury, leads to the conclusion that circumstances, without any witness, when they exist in documentary or written testimony, may combine to the same effect; as they may combine altogether unaided by oral proof, except the evidence of their authenticity, to prove any other fact, connected with the declarations of persons or the business of human life. The principle is, that circumstances necessarily make a part of the proofs of human transactions; that such as have been reduced to writing, in unequivocal terms, when the writing has been proved to be authentic, cannot be made more certain by evidence aliunde; and that such as have not been reduced to writing, whether they relate to the declarations or conduct of men, can only be proved by oral testi

2 Lew. Cr. C. 258; R. v. Braithwaite, 8 Cox Cr. 254; R. v. Shaw, 10 id. 66; R. v. Boulter, 16 Jur. 135; State v. Buie, 43 Tex. 532; State v. Heed, 57 Mo. 252. The fact of swearing and testifying as alleged, independently of the falsity, may be proved by one witness: Com. v. Pollard, 12 Metc. 225.}

5 The Queen v. Muscot, 10 Mod. 194; see also State v. Molier, 1 Dev. 263, 265; State v. Hayward, 1 Nott & McCord 547; R. v. Mayhew, 6 C. & P. 315; R. v. Boulter, 16 Jur. 135; Roscoe on Crim. Evid. 686, 687; Clark's Executors v. Van Riemsdyk, 9 Cranch 160. It must corroborate him in something more than some slight particu lars R. v. Yates, 1 Car. & Marsh. 139. More recently, corroborative evidence, in cases where more than one witness is required by law, has been defined by Dr. Lushing ton to be not merely evidence showing that the account is probable, but evidence proving facts ejusdem generis, and tending to produce the same results: Simmons v. Simmons, 11 Jur. 830. See further to this point, R. v. Parker, C. & Marsh. 646; R. v. Champney, 2 Lewin 258; R. v. Gardiner, 8 C. & P. 737; R. v. Roberts, 2 Car. & Kir. 614.

1 R. v. Virrier, 12 A. & E. 317, 324, per Ld. Denman; {R. v. Parker, Russell on Crimes, 5th ed., III, 80; Williams v. Com., 91 Pa. 493. But not where the assign ment is of a continuous nature: R. v. Hare, 13 Cox Cr. 174.}

2 R. v. Parker, C. & Marsh. 639, 645-647, per Tindal, C. J. In R. v. Mudie, 1 M. & Rob. 128, 129, Lord Tenterden, under similar circumstances, refused to stop the case, saying that, if the defendant was convicted, he might move for a new trial. He was, however, acquitted: see the (London) Law Review, etc., May, 1846, p. 128.