Fallacy of them.

chief arguments are directed against the portions now
repealed by the 39 & 40 Geo. III. c. 93 and the
5 & 6 Vict. c. 51 (g). He observes, however, that after
the passing of this statute, "a minister might corre-
spond (as so many ministers were then actually corre-
sponding) with the exiled king by single emissaries,
and be safe. ** * * * As to the other provisions,
then, all of them have their merit, some of them were
no more than the removal of barefaced injustice; but as
to this, it was specially levelled, not against false accu-
sations, but against true ones (h)." Mr. Taylor also, in
his work on Evidence, says (i), "a man of calm reflection
may think that the legislature would confer no trifling
benefit on the country if it defined the law of treason
with greater accuracy, and if, by abolishing alike the
cruelties which made it abhorrent, and the protections
which make it ridiculous, it rendered the punishment
of traitors more certain and less barbarous." All this
reasoning, however, is more specious than sound. It
seems based, in some degree at least, on the false prin-
ciple that has been examined in the Introduction to this
Treatise (k), and which is to be found more or less in every
part of Bentham's work on Judicial Evidence, viz., that
the indiscreet passiveness of the law is as great an evil as
its corrupt or misdirected action; and consequently, that
the erroneous conviction and punishment of an innocent,
a violent, or even a seditious man, for the offence of trea-
son, works the same amount of mischief as the escape of
a traitor from justice, and no more. Besides, the above
authors appear to have assumed, that in the case put of
ministers corresponding with attainted persons by means
of a single emissary, and such like, the incapacity to
prosecute for treason involves impunity to the criminal.
They forget that there has always been such an offence as
sedition, which being only a misdemeanor, may be proved
(g) See Part 4, ch. 1.
(h) 5 Benth. Jud. Ev. 490.

(i) Tayl. Ev. § 693.
(k) Introd. sect. 2, § 49.

by one witness, and does not merge in the treason(). And since the publication of Mr. Taylor's work, the legislature has created, what was much wanted for certain cases, an intermediate offence between treason and sedition, by making various acts against the crown and government of the country felony, punishable by transportation or imprisonment (m). By the law as it stands, persons sometimes escape with a conviction of felony or sedition whose conduct, considered with technical accuracy, amounts to treason; but on the other hand, those who are innocent of that terrible crime lie under no dread of being falsely accused of it; and when a conviction of treason does take place, it is on such unquestionable proof, that the blow descends on the disaffected portion of society with a moral weight, increased a hundred fold by the moderation of the executive in less aggravated cases. The extending the protection to charges of petty treason, as was done by 1 Edw. VI. c. 12, was idle; the 7 & 8 Will. III. c. 3, it will be observed, avoided that; and the offence itself is now abolished by 9 Geo. IV. c. 31, s. 2.

prove collateral

§ 581. The rule requiring two witnesses in treason Two witnesses only applies to the proof of the overt acts of treason not requisite to charged in the indictment—any collateral matters may matters. be proved as at common law (n); such as that the accused is a subject of the British crown (o), and the like. Nor perhaps does it hold on the trial of collateral issues; as for instance, where a prisoner convicted of treason makes his escape, and, on being retaken and brought up to receive judgment, denies his identity with the party mentioned in the record of conviction (p).

(1) R. v. Reading, 7 Ho. St. Tr. 265-7.

(m) 11 & 12 Vict. c. 12. (n) Tayl. Ev. § 694; Fost. C. L. 240-2; 1 East, P. C. 130.

(0) Fost. C. L. 240; R. v.

Vaughan, 13 Ho. St. Tr. 535,
per Holt, C. J.

(p) In such cases the prisoner
has no peremptory challenge.
Ratcliffe's case, Fost. C. L. 42.

2. Other statu

11 & 12 Vict. c. 12.

§ 582. There are other statutory exceptions to the tory exceptions. rule in question. By the 7 & 8 Vict. c. 101, s. 3, Bastardy. and 8 & 9 Vict. c. 10, s. 6, already referred to (q), no order of affiliation shall be made against the putative father of a bastard child, unless the evidence of its mother be corroborated in some material particular by other testimony, to the satisfaction of the court; and the repealed enactment, 4 & 5 Will. IV. c. 76, s. 72, contained a similar provision. A very modern instance will be found in the 11 & 12 Vict. c. 12, s. 4, which enacts that no person shall be convicted of certain offences made felony by that statute, "in so far as the same are expressed, uttered, or declared by open or advised speaking, except upon his own confession in open court, or unless the words so spoken shall be proved by two credible witnesses." Seventy-four statutes of this kind are said to have been counted between the 1 Edw. VI. (A. D. 1547) and the 31 Geo. III. (A. D. 1791)(r).

When two wit

their credit is for the jury.

§ 583. Although, as has been shewn in the present nesses required, chapter, the law of this country requires a certain numerical amount of proofs in particular cases, it has avoided the great mistake into which the civilians fell, of attaching to those proofs an artificial weight, and leaves their value to the discrimination of a jury. From motives of legal policy no decision shall in such cases be based on the testimony of a single witness, however credible; but when more are adduced, be they two or two thousand, they must, if untrustworthy in the eyes of the jury, go for nothing.

(9) Supra, § 570.

(r) 5 Benth. Jud. Ev. 483.

CHAPTER VIII.

EVIDENCE REJECTED ON GROUNDS OF PUBLIC POLICY.

"Evidence re

§ 584. UNDER the above head might in strictness be classed all evidence rejected by virtue of any exclu- jected on grounds of sionary rule, seeing that it is to public policy all such public policy." rules owe their existence. But the expression "evidence rejected on grounds of public policy" is here used in a limited sense; as signifying that principle by which evidence, receivable so far as the matters in dispute are considered, is rejected on the ground that from its reception some collateral evil would ensue to third parties or to society. One species of this has been already treated of under the head of witnesses, who, as has been shewn, are privileged from answering questions having a tendency to criminate, and sometimes even to degrade them (a). But taking a general view of the subject, the matters Matters thus thus excluded on grounds of public policy may be excluded. divided into political, judicial, professional, and social.

Under the first come all secrets of state; such as state 1o. Political. papers, communications between government and its officers, and the like. A strong application is to be found in the rule, that the channels through which information reaches the ears of government must not be disclosed (b). When on charges of forging or uttering forged bank notes, the officers of the Bank have explained the private marks by which the forgery is detected, the discrepancy is generally found corrected in the next issue of forged paper.

(a) Part 2, ch. 1, sect. 1.
(b) See the Attorney-General

v. Briant, 15 M. & W. 169, and
the cases there referred to.

2o. Judicial.

§ 585. 2°. Judicial. The principal instance of this is 1. Grand jurors. in the case of jurymen. First, then grand jurors cannot,

at least in general, be questioned as to what took place among, or before them, while acting as such (c). In an early case on this subject (d) we are informed, that "the judge would not suffer a grand juryman to be produced as a witness to swear what was given in evidence to them, because he is sworn not to reveal the secrets of his companions." "See," adds the reporter, "if a witness is questioned for a false oath to the grand jury, how it shall be proved if some of the jury be not sworn in such a case." He refers to a case of Hitch v. Mallet, where the point was raised, and adds a quære what became of it. When we remember that the grand jury are the inquest of the county, whose duty is not merely to examine bills of indictment sent before them, but to inquire into its state, and present to the Queen's justices anything they may find amiss in it, there appears some reason for throwing the protection of secrecy over their deliberations. But perjury, or indeed any other offence, committed in their presence and afterwards made the subject of an indictment, is a very different matter. Suppose a witness were to murder or assault another witness in the presence of the grand jury, would not the evidence of any of its members be receivable against him? Or suppose, on a dispute arising out of the business before them, one of the grand jury were to murder or assault another, is he to go unpunished? The grand juror's oath is to keep secret "the king's counsel, his fellows, and his own (e);" it is obvious that the cases just put do not come under either of the latter heads, and by instituting the prosecution the crown has waived the privilege of secrecy so far as its rights are concerned (f).

(c) Tayl. Ev. § 686.
(d) Clayt. 84, pl. 140.

(e) 8 Ho. St. Tr. 759, 772,
note. It was formerly considered
treason or felony in a grand juror to

Secondly, the evidence of

disclose the king's counsel, 27 Ass. pl. 63; Bro. Abr. Corone, pl. 113.

(f) See 4 Christ. Blackst. Com. 126, note 4, 303, note 1, and Tayl. Ev. in loc. cit.