judicium" (k). And this principle applies to every species of judgment; to judgments of courts of exclusive jurisdiction (); to judgments in rem (m); to judgments of foreign tribunals (n); and even to judgments of the House of Lords (o).

It is perhaps needless to add, that a supposed judicial record offered in evidence may be shown to be a forgery (p).

(k) 4 De G., M. & G. 148. See Macqueen, Law of Marriage, Divorce, and Legitimacy, 2d ed., p. 68.

(n) Bank of Australasia v. Nias, 16 Q. B. 717.

(0) Shedden v. Patrick, 1 Macq. H. L

(7) Meddowcraft v. Hugenin, 3 Curt. Cas. 535. 403.

(m) In re Place, 8 Exch. 704, per Parke, B.

(p) Noell v. Wells, 1 Sid. 359.

§ 596. THE last subject that offers itself to our attention in this part of the work is the quantity of legitimate evidence required for judicial decision.1 This is governed by a rule of a negative kind,

1 QUANTUM OF EVIDENCE REQUIRED. - CORROBORATION. — In certain cases policy of law requires that conviction shall not follow the uncorroborated testimony of a single witness.

(a.) Treason. - Article III., sect. 3, of the Constitution of the United States provides, "No person shall be convicted of treason unless on the testimony of two wit nesses to the same overt act, or on confession in open court." 1 Greenl. Ev. §§ 235, 255; 3 Greenl. Ev. §§ 246, 248; 2 Whar. Crim. Law, § 1808 et seq.; 2 Story, Const. § 1796 et seq.; Fries's case, Wharton's State Trials, 482, 585 et seq. See also U. S. v. Hanway, 2 Wall. Jr. 139. But see 1 Burr's Trial, (Hopkins & Earle's ed.) 196.

(b.) Perjury. — If, upon an indictment for perjury, the sole evidence against the accused showing the wilful falsity of his testimony is the oath of a single witness contradicting the oath alleged to be perjured, -i. e. if no facts be proved which corrob orate the witness, it is the duty of the jury to acquit. 1 Greenl. Ev. § 257; U. S. v. Wood, 14 Peters, 430, 440, 441; Woodbeck v. Keller, 6 Cowen, 118; State v. Molier, 1 Dev. 263; State v. Hayward, 1 Nott & McC. 546; Laughran v. Kelly, 8 Cush. 199; State v. Heed, 57 Mo. 252; State v. Wood, 17 Iowa, 18; Dodge v. State, 24 N. J. L. 455; Crusen v. State, 10 Oh. St. 258; Hendricks v. State, 26 Ind. 493; State v. Raymond, 20 Iowa, 582. See also Rice v. Coolidge, 121 Mass. 393.

(c.) Corpus Delicti. — In perjury, as in other crimes, it is not necessary that the corpus delicti should be proved by the testimony of a living witness. U. S. r. Wood, 14 Peters, 430, 441. Or by more than a single witness. Com. v. Pollard, 12 Metc. 225; State v. Wood, 17 Iowa, 18. But see People v. Evans, 40 N. Y. 1. As to the general rule that circumstances or documentary evidence may prove the corpus delicti

which, in times past at least, was almost peculiar to the common law of England (a); namely, that in general no particular number of instruments of evidence is necessary for proof or disproof; the testimony of a single witness, relevant for proof of the issue in the judgment of the judge, and credible in that of the jury, is a sufficient basis for decision, both in civil and criminal cases (b). And, as a corollary

(a) The Hindoo law seems the reverse of ours: where the testimony of a single witness is sufficient it is the exception, not the rule. See translation of Pootee, c. 3, sect. 8, in Halhed's Code of Gentoo Laws.

(b) 3 Blackst. Comm. 370; Stark. Evid. 827, 4th ed.; Trials per Pais, 363; Peake's Ev. 9, 5th ed.; Co. Litt. 6 b; Fost. C. L. 233; 2 Hawk. P. C. c. 25, s. 131, and c. 46, s. 2.

where more conclusive evidence is not available, see U. S. v. Williams, 1 Cliff. 5. In general, however, the corpus delicti must be strongly established. For this reason, an extra-judicial confession has been held insufficient. Bergen v. People, 17 Ill. 426; State v. German, 54 Mo. 526; Ruloff v. People, 18 N. Y. 179; State v. Keeler, 28 lowa, 551; Smith v. Com. 21 Gratt. 809.

(d.) Answers in Chancery. By analogy to the rule in cases of perjury, if the defendant in express terms negatives in his answer an allegation in the plaintiff's bill, such allegation must be proved by two witnesses, or by a single witness enforced by corroborating circumstances. Lawton v. Kittredge, 30 N. H. 500; Ing v. Brown, 3 Md. Ch. 521; White v. Crew, 16 Ga. 416; Calkins v. Evans, Ind. 441; Abbott v. Case, 26 N. J. Eq. 187. See also Sower v. Weaver, 78 Pa. St. 443.

(e.) Accomplices. — The fact that the evidence against the accused is the testimony of an accomplice, is at most matter for comment. Such evidence will justify conviction. State v. Russell, 33 La. An. 135; People v. Costello, 1 Denio, (N. Y.) 83; State v. Litchfield, 58 Me. 267; Watson v. Com., 95 Pa. St. 418, 424; Com. v. Bosworth, 22 Pick. 397; State v. Potter, 42 Vt. 495; State v. Hardee, 83 N. C. 619; Parsons v. State, 43 Ga. 197; State v. Watson, 31 Mo. 361; State v. Stebbins, 29 Conn. 463. But see People v. Evans, 40 N. Y. 1; U. S. v. Harries, 2 Bond, 311; State v. Allen, 57 Iowa, 431.

(f.) Bastardy, &c. In bastardy suits the evidence of the mother will not in all cases be taken as conclusive, in the absence of corroboration. The matter is variously regulated by statute. See Stiles v. Eastman, 21 Pick. 132. So the uncorroborated evidence of the libellant, or the uncorroborated admission of the libellee, will not, in general, warrant a divorce. Tate v. Tate, 26 N. J. Eq. 55; Robbins v. Robbins, 100 Mass. 150. But see Flattery v. Flattery, 88 Pa. St. 27, contra. So in an action for seduction. State v. Wells, 48 Iowa, 671.

(g.) Usage of Trade. It has been said that a prevailing usage of trade cannot be established by a single witness. 1 Greenl. Ev. § 260 (a); Wood v. Hickok, 2 Wend. 501; Boardman v. Spooner, 13 All. 353, 359. This may well be doubted. Robinson v. U. S., 13 Wall. 363, 366.

(h.) Statutes. As to how far statutory enactments-e. g. the Statute of Frauds — require a certain kind of proof or number of witnesses to give effect to an instrument or prove its execution, conf. 1 Greenl. Ev. §§ 261-274. See also Melcher v. Flanders, 40 N. H. 139; Burke v. Miller, 7 Cush. 547; Cornwell v. Wooley, 43 How. Prac. 475. (i.) Accumulation of Evidence. The quantum of evidence permitted upon a given point, as distinguished from the quantum of evidence required, rests in the discretion of the court, which will not permit a trial mischievously to be protracted by evidence or examinations merely cumulative in their nature. Bunnell v. Butler, 23 Conn. 65; Bissell v. Cornell, 24 Wend. 354; Gray v. St. John, 35 Ill. 222; Wright v. Foster, 109 Mass. 57; Adriance v. Arnot, 31 Mo. 471.

from this, when there is conflicting evidence, the jury must determine the degree of credit to be given to each of the witnesses; for the testimony of one witness may, in many cases, be more trustworthy than the opposing testimony of many (c). The rule has been expressed, "Ponderantur testes, non numerantur" (d); but "testimonia" or "probationes" would be better than "testes," as it is clearly not confined to verbal evidence (e).

§ 597. We have said that this rule is a distinguishing feature in our common law system. The Mosaic law in some cases (ƒ), and the civilians and canonists in all (g), exacted the evidence of more than one witness, a doctrine adopted by most nations of Europe, and by the ecclesiastical and some other tribunals among us. As might naturally be expected, much has been said and written, and the most opposite views have prevailed, on the merits of the different systems. Those who take the civil law view contend that it is dangerous to allow a tribunal to act on the testimony of a single witness, since by this means any person, even the most vile, can swear away the liberty, honor, or life of any one else; they insist on the undoubted truth, that the chance of discrepancy between the statements of two false witnesses, when examined apart, is a powerful protection to the party attacked; and some of them

(c) Stark. Evid. 832, 4th ed. (d) Id.

(e) "Testimonia ponderanda sunt, non numeranda," is found in the Scotch law authorities. Halk. Max. 174; Ersk. Inst. bk. 4. tit. 2, § 26.

(f) See the next note.

(g) Their maxim-sometimes shortly called "the rule of unus nullus” — is well known, "Unius omnino testis responsio non audiatur, etiamsi præclaræ curiæ honore præfulgeat." Cod. lib. 4, tit. 20, 1. 9, § 1. See also Id. 1. 4; Huberus, Præl. Jur. Civ. lib. 22, tit. 5, N. 18; Decretal. Gregor. IX. lib. 2, tit. 20, c. 23; and supra, Introd. pt. 2, § 66 et seq. Bonnier, in his Traité des Preuves, § 201, labors hard, and apparently with success, to show that the lawyers of ancient Rome did not establish this rule, which he considers the production of the Lower Empire. He argues that all the expressions to be found in the Corpus Juris Civilis of an anterior date, which seem to require a plurality of witnesses, must be understood in the sense of

cautions to the judge, and not as positive rules of law. The following passage is certainly very shrewd and forcible: “Ce n'est que sous Constantin que nous voyons l'exclusion" (of the testimony of a single witness) "nettement formulée; et encore l'empereur n'en vint il là qu'à la suite d'une première constitution, qui recommandait seulement aux juges d'être circonspects: Simili modo sanximus, l. 9, § 1, Cod. de testib. (Cod. lib. 4, tit. 20, l. 9, § 1, already cited in this note), ut unius testimonium, nemo judicum in quacunque causa facile patiatur admitti. Et nunc manifeste sancimus, ut unius omnino testis responsio non audiatur, etiamsi præclaræ curia honore præfulgeat. C'est donc au Bas Empire qu'appartient l'introduction de la maxime, testis unus testis nullus.” The French author is not peculiar in this view, the same notion as to the origin of the rule requiring two witnesses having been advanced long before his time. See Huberus, Præl. Jur. Civ. lib. 22, tit. 3, N. 2; and supra, Introd. pt. 2, § 66.

endeavor to place the matter on a jure divino foundation, by contending that the rule requiring two witnesses is laid down in Scripture (h). On this Serjeant Hawkins (?) very judiciously observes, that the passages in the Old Testament which speak of requiring two witnesses "concern only the judicial part of the Jewish law, which, being framed for the particular government of the Jewish nation, doth not bind us any more than the ceremonial; and that those in the New Testament contain only prudential rules for the direction of the government of the Church, in matters introduced by the Gospel, and no way control the civil constitution of countries." It may be questioned also whether the passages cited in support of the dogma really bear it out, when considered in themselves apart from traditions and glosses (k). Nothing in the Old Testament, that we are aware of, gives the remotest intimation that two witnesses were required in civil cases in general; and there are some passages which seem indirectly to show the reverse (1).

The passages in the New Testament which were cited, or more properly speaking tortured, to bear out the dogma requiring a plu

(h) The civilians and canonists, Mascard. de Prob. Quæst. 5, N. 10; Decretal. Gregor. IX. lib. 2, tit. 20, cap. 23, &c.; and, there is reason to believe, our old lawyers, Fortesc. cc. 31, 32; 3 Inst. 26; Plowd. 8; argument in R. v. Vaughan, 13 How. St. Tr. 535; and their contemporaries; see Waterhouse, Comm. on Fortesc. pp. 402, 403, and Sir Walter Raleigh's case, 2 How. St. Tr. 15; fancied that they saw in Scripture a divine command to require the testimony of more than one witness in all judicial proceedings.

(i) 2 P. C. c. 25, s. 131.

(k) The text of the Mosaic code on this subject will be found in Numb. xxxv. 30, Deut. xvii. 6, and Deut. xix. 15; the first two of which prohibit capital punishment unless on the testimony of at least two witnesses, and the last directs that "one witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." In the case also of preappointed evidence by deeds, agreements, &c., it seems to have been customary among the Jews, as among ourselves,

to secure the testimony of more than one witness (see Isaiah viii. 2; Jer. xxxii. 10-13).

(7) Thus, when Moses speaks of civil trespasses, in Exod. xxii. 9, he says nothing about any number of witnesses: "For all manner of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing, which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbor." So of real evidence in Exod. xxii. 10-13, it is expressly provided: "If a man deliver unto his neighbor an ass, or an ox, or a sheep, or any beast, to keep . . . . And if it be stolen from him, he shall make restitution unto the owner thereof. If it be torn in pieces, then let him bring it for witness, and he shall not make good that which was torn." We also read in another place, "Now this was the manner in former time in Israel concerning redeeming and concerning changing, for to confirm all things: a man plucked off his shoe, and gave it to his neighbor: and this was a testimony in Israel." Ruth iv. 7.