nis own infamy (31). And no counsel, attorney, or other person, intrusted with the secrets of the cause by the party himself shall be compelled, or perhaps allowed to give evidence of such conversation or matters of priva cy, as came to his knowledge by virtue of such trust and confidence (v) (32) · but he may be examined as to mere matters of fact, as the execution of a deed or the like, which might have come to his knowledge without being intrusted in the cause.

One witness (if credible) is sufficient evidence to a jury of any single facts, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does not always demand the testimony of two, as the civil law universally requires. "Unius responsio testis omnino non audiatur (w)." To extricate itself out of which absurdity, the modern practice of the civil law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to the plena probatio, they call the testimony of one, though never so clear and positive, semi-plena probatio only, on whom no sentence can be founded. To make up therefore the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called the suppletory oath; and, if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one. By this inge(v) Law of nisi prius, 267.

(31) A witness may be examined with regard to his own infamy, if the confession of it does not subject him to any future punishment as a witness may be asked if he has not stood in the pillory for perjury, 4. T. R. 440; but he cannot be entirely rejected as a witness without the production of the record of conviction, by which he is rendered incom petent. 8 East, 77. Though it has been held, in some other cases, that a witness is not bound to answer such questions. 4 St. Tri. 748. 1 Salk. 153. 4 Esp. 225. 242. It is quite clear that a man is not bound to answer any questions, either in a court of law or equity, which may tend to criminate himself, or which may render him liable to a penalty. Stra. 444. 3 Taunt. 424. 4 St. Tri. 6. 6 ib. 649. 16. Ves. 242. 2 Ld. Raym. 1088. Mitford's Ch. Pl. 157. As to questions which merely disgrace the witness, there is some difficulty. See Stark, on Ev. pt. 2. 139. Still

a witness is in no case legally incompetent to allege his own turpitude, or to give evidence which involves his own infamy, 2 Stark. Rep. 116. 8 East, 78. 11 East. 309; or impeaches his own. solemn acts, 5 M. & S. 244. 7 T. R. 604; unless he be rendered incompetent by a legal interest in the event of the cause, or in the record. It seems to be an universal rule, that a particeps criminis may be examined as a witness in both civil and criminal cases, provided he has not been incapacitated by a conviction of crime. As a clerk who had laid out money which he had embezzled in illegal insurances, was held to be a competent witness or the master against the insurer. Cowp. 197. So a man who has pretended to convey lands to another, may prove that he had no title. Ld. Ravm 1008. A co-assignee of a shi may

(2) Cod. 4. 20. 9.

prove that he had no interest in the vessel. Cited in 1 T. R. 301. The parents may give evidence to bastardize their issue, 6 T. R. 330, 331. or to prove the legitimacy, ib.; though it is said the sole evidence of the mother, a married woman, shall not be sufficient to bastardize her child. B. R. H. 79. 1 Wils. 340.

In New-York, conviction for a felony, and for that alone, incapacitates a person from being a witness on account of infamy: the incapacity may be removed by a pardon. (2 R. S. 701, § 23.)

(32) But the principles and policy of this rule restrain it to that confidence only, which is placed in a counsel or solicitor, and which must necessarily be inviolable, where the use of advocates and legal assistants is admitted But the purposes of public justice supersede the delicacy of every other species of con fidential communication. In the trial of the duchess of Kingston, it was determined that a friend might be bound to disclose, if necessary in a court of justice, secrets of the most sacred nature which one sex could repose in the other. And that a surgeon was bound to communicate any information whatever, which he was possessed of in consequence of his professional attendance. 11 St. Tr. 243. 246. And those secrets only, communicated to a counsel or attorney, are inviolable in a court of justice, which have been intrusted to them whilst acting in their respective characters to the party as their client. 4 T. R. 431. 753.

In New-York, physicians, surgeons, and clergymen, are not now allowed to disclose matters confided to them in their professional character. (2 R. S. 406, § 72, &¿)

ious device satisfying at once the forms of the Roman law, and [371] acknowledging the superior reasonableness of the law of England which permits one witness to be sufficient where no more are to be had: and, to avoid all temptations of perjury, lays it down as an invariable rule, that nemo testis esse debet in propria causa (33).

Positive proof is always required, where from the nature of the case it appears it might possibly have been had. But next to positive proof, circumstantial evidence or the doctrine of presumptions must take place; for when the fact itself cannot be demonstratively evinced, that which comes nearest to the proof of the fact is the proof of such circumstances which either necessarily, or usually, attend such facts; and these are called presumptions, which are only to be relied upon till the contrary be actually proved. Stabitur praesumptioni donec probetur in contrarium (x). Violent presumption is many times equal to full proof (y); for there those circumstances appear, which necessarily attend the fact. As if a landlord sues for rent due at michaelmas 1754, and the tenant cannot prove the payment, but produces an acquittance for rent due at a subsequent time, in full of all demands, this is a violent presumption of his having paid the former rent, and is equivalent to full proof; for though the actual payment is not proved, yet the acquittance in full of all demands is proved, which could not be without such payment; and it therefore induces so forcible a presumption, that no proof shall be admitted to the contrary (2) (34)

(z) Co Litt. 373. (y) Ibid. 6.

(33) In equity no decree can be made on the oath of one witness against the defendant's answer on oath, Vent. 161. 3 Ch. C. 123. 69; and one witness is not sufficient against the husband, although it be supported by the answer of the wife, for she cannot be a witness against her husband. 2 Ib. 30. 3 P. Wms. 238. But a decree may be made on the evidence of a single witness, where the evidence of the other party is falsified, or discredited by strong circumstances. 2 Vern. 554. 2 Atk. 19. 3 ib. 419. 1 Bro. Ch. C. 52. In high treason, when it works cor.uption of blood, two witnesses are necesssary, by 7 W. 3. c. 3. So two are necessary in perjury. 10 Mod. 195. post, 4 book, 150. In all other cases the effect of admissible evidence, whether given by one or more witnesses, is solely for the consideration of the jury. See Stark, on Evid. p. 3. 398, 9.

(34) Presumptions are of three kinds; Ist, Legal presumptions, made by the law itself; 2dly. Legal presumptions to be made by a jury, of law and fact; 3dly, Natural presumptions, or presumptions of mere fact.

1st. Legal presumptions are in some cases absolute, as that a bond or other specialty was executed upon a good consideration,† 4 Burr. 2225. so long as the deed or bond remains unimpeached; but it may be impeached on the ground of fraud, and then the consideration becomes the subject of inquiry. But in he case of bills of exchange, the presumption, that it was accepted for a good consideration, may be rebutted by evidence. So where a

In New-York, the seal is now only prima facie evidence of consideration. (2 R. S. (74) See Hov. n. (74) at

(z) Gilb. evid. 161.

fine has been levied, it will be implied that it has been levied with proclamations, 3 Co. 86 b. unless rebutted, Bul. N. P. 229. and some other like instances; but the presumption in favour of innocence is, it has been held, too strong to be overcome by any artificial intendment of law. 2 B. & A. 386. 2dly. Presump. tions of law and fact, as that adverse enjoy ment unquestioned for twenty years, of ar incorporeal hereditament, presumes a grant, that a bond has been satisfied upon which no interest has been paid, nor other acknowledg ment made of its existence for a like period, 2 Stra. 826. 2 Ld. Raym. 1370; that there has been a conversion in the case of trover, where the defendant refuses to deliver them up. 3d. Natural presumptions. It is the peculiar province of the jury to deal with presumptions of this class; yet where the particular facts are inseparably connected according to the usual course of nature, the courts themselves will draw the inference, as when a child has been born within a few weeks after access of the husband, its bastardy will be inferred without the aid of a jury. 8 East 193. All cases of circumstantial evidence may be more or less within this class. And it is obvious that the case put in the text belongs to this division, upon which Mr. Christian har made the following remark:

"This can scarcely be correct: I should conceive that proof may be admitted to repel all presumptions whatever; and even if a receipt should be produced expressly for the rent of the year 1754, still the iandlord might shew 406. § 77): but notice must be given by the party denying the consideration. Id. & ̃8. the end of the Vol B III

Probable presumption, arising from such circumstances is usually attend the fact, hath also its due weight: as if, in a suit for rent due in 1754, the tenant proves the payment of the rent due in 1755; this will prevail to exonerate the tenant (a), unless it be clearly shewn that the rent of 1754 was retained for some special reason, or that there was some fraud or mistake: for otherwise it will be presumed to have been paid before that in 1755, as it is most usual to receive first the rents of longest standing. Light, or rash, presumptions have no weight or validity at all (35).

*The oath administered to the witness is not only that what [*372] he deposes shall be true, but that he shall also depose the whole truth so that he is not to conceal any part of what he knows, whether interrogated particularly to that point or not. And all this evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all by-standers, and before the judge and jury: each party having liberty to accept to its competency, which acceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, in the face of the country: which must curb any secret bias or partiality that might arise in his own breast. And if, either in his directions or decisions, he mistakes the law by ignorance, inadvertence, or design, the counsel on either side may require him publicly to seal a bill of exceptions; stating the point wherein he is supposed to err: and this he is obliged to seal by statute Westm. 2. 13 Ed. I. c. 31. or, if he refuses so to do, the party may have a compulsory writ against him (b), commanding him to seal it, if the fact alleged be truly stated: and if he returns, that the fact is untruly stated, when the case is otherwise, an action will lie against him for making a false return. This bill of exceptions is in the nature of an appeal; examinable, not in the court out of which the record issues for the trial at nisi prius, but in the next immediate superior court, upon a writ of error, after judgment given in the court below. But a demurrer to evidence shall be determined by the court, out of which the record is sent. This happens, where a record or other matter is produced in evidence, concerning the legal consequences of which there arises a doubt in law: in which case the adverse party may if he pleases demur to the whole evidence; which admits the truth of every fact that has been alleged, but denies the sufficiency of them all in point of law to maintain or overthrow the issue (c); which draws the question of law from the cognizance of the jury, to be decided (as it ought) by the court. But neither these demurrers

to evidence, nor the bills of exceptions, are at present so much in [*373] use as formerly; since the more frequent extension of the discretionary powers of the court in granting a new trial, which is now very commonly had for the misdirection of the judge at nisi prius.

This open examination of witnesses viva voce, in the presence of all

(a) Co. Litt. 373.

(6) Reg. Br 182. 2 Inst. 487

that it had been obtained by mistake or fraud, and that no rent had been received at the time." In a case of a similar nature tried before Abbott, C. J. at Guildhall, A. D. 1824, the landrd adduced evidence to shew the mistake, and recovered.

(35) It is difficult to say what is a light and sh presumption, if it is any presumption at

Any circumstance may be proved from

(c) Co. Litt. 72. 5 Rep. 104.

which a fair inference can be drawn, though alone it would be too slight to support the ver dict of the jury, yet it may corroborate other testimony, and a number of such presu: aptions may become of importance. Possunt diversa genera ita conjungi, ut quæ singula non "ocerent, ea universa tanquam grando reum opprimani Matthæus de Crim.

mankind, is nuch more conducive to the clearing up of truth (d), than the private and secret examination taken down in writing before an officer, 、ì his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law; where a witness may requently depose that in private, which he will be ashamed to testify in a public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is once taken. Besides, the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial. Nor is the presence of the judge, during the examination, a matter of small importance: for, besides the respect and awe with which his presence will naturally inspire the witness, he is able by use and experience to keep the evidence from wandering from the point in issue. In short, by this method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness; in which points all persons must appear alike, when their depositions are reduced to writing, and read to the judge, in the absence of those who made them; and yet as much may be frequently collected from the manner in which the evidence is delivered, as from [*374] the matter of it. These are a few of the advantages attending

Which

this, the English way of giving testimony, ore tenus. was also indeed familiar among the ancient Romans, as may be collected from Quintilian (e); who lays down very good instructions for examining and cross-examining witnesses viva voce. And this, or somewhat like it, was continued as low as the time of Hadrian (ƒ): but the civil law, as it is now modelled, rejects all public examination of witnesses.

As to such evidence as the jury may have in their own consciences, by their private knowledge of facts, it was an ancient doctrine, that this had as much right to sway their judgment as the written or parol evidence which is delivered in court. And therefore it hath been often held (g). that though no proofs be produced on either side, yet the jury might bring in a verdict. For the oath of the jurors, to find according to their evidence, was construed (h) to be, to do it according to the best of their own knowledge. This seems to have arisen from the ancient practice in taking recognitions of assise, at the first introduction of that remedy; the sheriff being bound to return such recognitors as knew the truth of the fact, and the recognitors, when sworn, being to retire immediately from the bar, and bring in their verdict according to their own personal knowledge, without hearing extrinsic evidence or receiving any direction from the judge (i). And the same doctrine (when attaints75came to be extended to trials by jury. as well as to recognitions of assise) was also applied to the case of com

(d) Haie's Hist. C. L. 254, 5, 6.

e Institut Orat. l. 5, c. 7.

(f) See nis epistle to Varus, the legate or judge or Cilicia: "tu magis scire potes, quanta fides sit habenda testibus; qui, et cujus dignitatis, et cujus Bestimationis sint; et, qui simpliciter visi sint di"ers; utrum unum eundemque meditatum sermonem

attulerint, an ad ea quae interrogaveras estempor verisimilia responderint." (Ff. 22. 5. 3.)

(g) Yearbook, 14 Hen. VII. 29. Plowd. 2. Hob 227. 1 Lev. 87.

(h) Vaugh. 148, 149.

(i) Bract. l. 4, tr. 1, c 19, ◊ 3. "let. 1. 4. P

(75) See Hov. n. (75) at the end of the Vol. B. III

ronjurors; that they might escape the heavy penalties of the attaint, i■ case they could shew by any additional proof, that their verdict was agreeable to the truth, though not according to the evider ce produced; witk which additional proof the law presumed they were privately acquainted, though it did not appear in *court. But this doctrine [*375; was again gradually exploded, when attaints began to be disused, and new trials introduced in their stead. For it is quite incompatible with the grounds upon which such new trials are every day awarded, viz. that the verdict was given without, or contrary to, evidence. And therefore, to gether with new trials, the practice seems to have been first introduced (k), which now universally obtains, that if a juror knows any thing of the matter in issue, he may be sworn as a witness, and give his evidence publicly in court.

When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence. The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict: and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. A method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of greater concern. For by the golden bull of the empire (1), if, after the congress is opened, the electors delay the election of a king of the Romans for thirty days, they shall be fed only with bread and water, till the same is accomplished. But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is fineable; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also if they speak with either of the parties or their agents, after they are gone from the bar; or if they receive any fresh evi- [*376] dence in private; or if to prevent disputes they cast lots for whom they shall find; any of these circumstances will entirely vitiate the verdict. And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned (m), the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart (n) (36). This necessity of a total unanimity seems to be peculiar to our own constitution (o); or, at least in the nembda or jury of the ancient Goths, there was required (even in criminal cases) only the consent of the major part; and in case of an equality, the defendant was held to be ar quitted (p) (37)

(k) Styl. 233. 1 Sid. 133. (1) ch. 2.

(m) Mirr. c. 4, ◊ 24.

(36) Pending a trial of long duration the ury may be adjourned, and in civil cases may reparate; but after the judge has summed up they cannot separate. 2 Bar. & Ald. 462.

(37) The learned Judge has displayed much erudition in the beginning of this chapter, to prove the antiquity of the trial by jury; but

(n) Lib. Ass. fol. 40, pl. 11.

(0) See Barrington on the statutes, 19, 20, 21. (p) Stiern. l. 1, c. 4.

the trials referred to by the authors there cited, and even the judicium parium, mentioned in the celebrated chapter of magna charta, are trials which were something similar to that by a jury, rather than instances of a trial by jury according to its present established form. The judicium parium seems strictly t judgmen