118 



EVIDENCE. 



dieted, where they do not operate as a fraud on 

 other persons. 2. Secondly ; in respect to con- 

 fessions. The common law seems to have taken a 

 di>iinction as to the effect of confessions in civil 

 cases and in criminal cases. Generally speaking, 

 they are evidence in civil cases as admissions. In 

 criminal ca^o, a free, voluntary confession by a 

 party, of his guilt, is also evidence, and is sufficient, 

 per se, to found a conviction ; but where a confes- 

 sion has been obtained by duress, or threats, or by a 

 promise of pardon by an agent of the government or 

 the prosecutor, and the promise is not complied with, 

 the confession cannot be given in evidence. These 

 cases seem clear. But where a party has made a 

 confession by the advice of a friend, or upon the 

 suggestion of a stranger, who had no authority to 

 promise any indulgence or pardon, there seems some 

 contrariety of opinion, whether such a confession is, 

 or is not admissible as evidence. However this may 

 be (upon which it is unnecessary for us to express 

 any opinion), it is certain, that any facts ascer- 

 tained in consequence of any confession, are, in 

 all cases, evidence ; as if a party confess that 

 he lias stolen goods, and tells where they are 

 hidden, and they are found, his statement, that 

 they were there, would be evidence against him, 

 coupled with the fact of finding them. And if a 

 prisoner has been admitted as a witness for the 

 government, and has confessed, and afterwards, 

 upon the trial of his accomplices, lie lias refused to 

 give evidence, it has been decided, that, under such 

 circumstances, he may be convicted upon his own 

 confession. 3. Thirdly, as to the number of wit- 

 nesses. Generally speaking, by the common law, 

 the testimony of a single witness, if believed, is suffi- 

 cient to establish any fact. There are, however, 

 certain exceptions : First. On an indictment for 

 perjury, the evidence of one witness is not sufficient 

 to convict, for that would be only oath against oath. 

 There must be either two witnesses, or strong 

 independent evidence by circumstances, to corro- 

 borate the testimony of one. Secondly. In cases of 

 treason, by statute, in England, there must be two 

 witnesses to the same overt act of treason, or one 

 witness to one, and another witness to another overt 

 act of the same treason. Any confession would be 

 (sufficient, even when made out of court, if proved by 

 witnesses. But in regard to collateral facts, a 

 single witness is sufficient, even in cases of treason. 

 Thirdly, in courts of equity, the answer of the defen- 

 dant (being under oath), as to facts which it posi- 

 tively and clearly denies, will prevail, unless dis- 

 proved by two witnesses or one witness and corro- 

 borative circumstances. A single witness, without 

 such circumstances, is insufficient. In suits at law, 

 the rule is otherwise ; and a single witness here 

 suffices in ordinary cases. The practice in courts of 

 ecclesiastical jurisdiction is, in this respect, like that 

 "f the courts of equity. 



III. In respect to written evidence. This is divi- 

 sible into various sorts : 1. Statutes or acts of the 

 legislature. These, if of a public nature, are evi- 

 dence without any particular proof, for the judges 

 are bound to take notice of them as the law of the 

 land. They are deemed records, and of such a high 

 nature, that they cannot be contradicted ; for it is a 

 general rule, that a record is conclusive proof, that 

 the judgment or decision was made as is therein 

 stated. But judicial tribunals will not take notice of 

 private acts of the legislature ; and therefore, unless 

 made evidence by some special law, they are admis- 

 sible in proof only by a properly authenticated copy. 

 But when so proved, they, as matters of record, 

 cannot be contradicted. 2. Judgments. Those of 

 the superior courts of law are matters of record, and 



are also conclusive. Generally speaking, verdicts 

 and judgments are evidence in cases between the 

 parties to the suit and privies ; but they are not evi- 

 dence in cases between strangers. M hen the judg- 

 ment is directly upon the point, it is a bar between 

 the same parties, and their privies, and may be 

 pleaded as an estoppel. And in cases, where it need 

 not be so pleaded, it is, as evidence, conclusive 

 between the same parties and their privies. But it 

 is not evidence of any matter, which came collate- 

 rally in question in the suit, nor of any matter inci- 

 dentally cognizable, nor of any matter of inference 

 from the judgment. There are some exceptions to 

 the general rule. a. The judgment in a suit between 

 strangers is sometimes admissible, as the record of 

 a judgment against a principal, who has been con 

 victed of a felony, may be given in evidence against 

 an accessory, b. Judgments of courts of a peculiar 

 and exclusive jurisdiction are sometimes conclusive 

 upon all persons. Thus judgments in rem, in cases 

 of seizures by the exchequer and other courts 

 having exclusive jurisdiction, are conclusive. So 

 sentences of courts of admiralty in matters of prize, 

 and in rem, at least as to the direct effect of such 

 sentences in changing the property. So sentences 

 of ecclesiastical courts in cases of which they 

 have exclusive jurisdiction, c. Judgments in cases 

 of general rights, as of a right of common, a public 

 right of way, a custom, a pedigree, &c., are ad- 

 missible as evidence of such right, custom, &c., in 

 suit between third persons. 3. There are other 

 judicial proceedings, which are not strictly matters 

 of record, as decrees in chancery, and judgments in 

 inferior courts, to which, however, the same general 

 principles apply, as matters of evidence, as to judg- 

 ments of record. 4. Depositions also, awards and 

 examinations by magistrates, are often evidence in 

 cases between the same parties. There are also 

 cases, in wliich public writings, not judicial, such as 

 journals of parliament, public gazettes, rate or tax 

 books; ships' registers, rolls of manor courts, corpor- 

 ation books, and books of public entries, &c. &c., 

 are evidence. But to go at large into the distinctions 

 applicable to them would occupy too much space. 



IV. In respect to private writings, the rules ap- 

 plied to oral testimony are generally applicable 

 here. Such writings are evidence between parties 

 and privies, but not between strangers, except under 

 the limitations already stated. There are some few- 

 cases, in which the written statements of the party 

 himself may be given in evidence, in his own favour, 

 such as, for instance, his account books, to verify 

 charges made by him in respect to debts and 

 charges, which are properly matters of account, 

 such as debits and charges for goods sold, for labour 

 and services, and for materials furnished. But the 

 most common question, that arises in respect to 

 written instruments, relates to the mode of proving 

 them to be genuine, or what they purport to be. 

 When the original instrument is produced, if it is ob- 

 jected to, ana there is a witness, who subscribed it, 

 he must be called to prove the due execution of it 

 by tl$e party, whom it purports to bind. If the wit- 

 ness be dead, or out of the country, the handwriting 

 of the witness must be proved by some person ac- 

 quainted with it, and then it will be presumed, that 

 the witness saw the due execution of it ; and it is 

 evidence without further proof. If there is no wit- 

 ness who subscribed it, the handwriting of the party 

 who executed it may be proved by some person who 

 is acquainted with it. But it is not sufficient to 

 prove it by comparison of the handwriting with the 

 known handwriting of the party, though such evi- 

 dence may be admitted in some cases as corrobora- 

 tive evidence. And it has been held, that in case of 



