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These were certainly strong corroborations of other circunstances; but if they had stood alone, they would have deserved little consideration ; for if the ballad and the bludgeon had been thrown away by the murderers, they were objects likely to draw the attention of an innocent man, who would naturally have put one in his pocket, and have carried the other in his hand *.
· * An accomplice may be admitted a witness against a prisoner indicted for a crime; but he is only admitted in a case where there is not sufficient evidence to convict both, or all, without his testimony. But as he is swearing to save himself, or, as it is said, with a halter about his neck, which he might be disposed to slip off, and put about the neck of the first innocent man he met, all courts of justice direct the jury to acquit the prisoner, unless the evidence of the accomplice is confirmed or corroborated by some material testimony from a witness free from all suspicion. The law is the same at the Quarter Sessions 'as at the Assizes ; but as Justices of the Peace frequently mistake what is a circumstance to confirm the evidence of the accomplice, I will explain it by a case which actually happened to myself, several years ago, when I attended a Quarter Sessions where very experienced Magistrates presided. I had a brief for the prisoner, and an accomplice was produced as a witness : he proved that the prisoner and himself resolved to rub the warehouse of the prosecutor, which was a room up stairs; for that purpose they took a ladder from a neighbouring yard; they placed it against the window of the room, they took out a pane of glass, opened the casement, and went in; they took several articles, some of which they put into a green bag; but being alarmed, they made their
Mr. Justice Blackstone says, that '“ light or rash presumptions have no weight or validity at all t."
escape, and left the green bag behind them, containing various articles which he particularly described. Several witnesses were called to prove that there was a ladder in the place the accomplice stated, that it had been removed to the prosecutor's ! warehouse, that a pane of glass was taken out, the window
found open, and a green bag and every thing was proved exactly · as the accomplice had described. I, as counsel for the prisoner,
suggested to the court that all this was no evidence of corroboration with regard to the prisoner; it proved no connexion with the prisoner; it affected him no more than any other man; it would be equally true if any gentleman at the bar or upon the bench had been indicted ;
-- Mutato nomine, de te
Fabula narratur. But the Justices, with one voice, declared, that they had never heard so clear and satisfactory a corroboration. The prisoner was found guilty, and transported.
All this would have been true, if the witness had committed the crime alone, or with any other man. I state this particularly for the use of Justices of the Peace. Though I do not find this distinction made by the best authors upon evidence, yet I have great confidence that it will be approved by the Judges. In a late case of a sheep-stealer, tried before myself at Ely, an acoomplice was called, who stated that he and the prisoner went to the prosecutor's field on a certain night and at a certain hour; they caught a sheep, they dug a hole, they stabbed the sheep, and let the blood run into the hcle; they skinned the sheep, and took out the entrails; the skin and the
entrails + Vol. III. 371.
This, I humbly conceive, is not quite correct: singly, they ought to have no validity upon the mind of the court; but every circumstance which affords a presumption, however light, must be received : though it adds but a drop to the ocean, it will have validity according to its weight ; and a number 'of such presumptions may become of iinportance, or, in the words of Matthæus, Possunt diversa genera ita conjungi, ut quæe singula non nocerent, ea universa tanquam grando reum opprimant.
By these general observations upon the nature of positive and circumstantial evidence, I may perhaps be thought to have wandered from my subject; but I make this application of them, that whatever
entrails they concealed in a certain part of a ditch, and hid the knife. Witnesses were called, to prove that every thing was found as this witness had described. I held this evidence was ; no confirmation : but a respectable witness proved that he was out that night; it wàs moonlight, and he could clearly distinguish the witness and the prisoner together, going from their homes towards the prosecutor's field:-that, I told the jury, was a circumstance of the strongest confirmation, and upon that they found the prisoner guilty.
In the horrid and sanguinary conspiracy of Thistlewood and his associates, accomplices were called to state the design and plan ; but they were confirmed by their being all found with arms a short time before the conspiracy was to be carried into execution, and by various other circumstances: so that the conclusion of no trial was ever so satisfactory to all mankind. .
is-abstractedly and mathematically true in one place, must be so also in another; and that to assert that Peers and Commoners should have different rules of evidence, would be as great an outrage against all science and good sense, as that they should reckon by different rules of arithmetic.
But something of this kind has been advanced, That ordinary rules may be invariably observed in ordinary cases ; but cases of extraordinary enormity of guilt, from their very nature, ought not to be limited and confined by rules which were only intended for common occurrences. Here again I should draw directly the contrary conclusion * ; and should contend, if the law would admit of restriction or relaxation, that the evidence ought to be more strict in proportion to the magnitude of the accusation. In this I am fortified by an authority pregnant with good sense; though I do
not know to whom to ascribe it, having omitted to · mark the reference when I extracted it; but it
wants not the sanction of a name. “ It is a common but well-founded maxim, that in proportion to the greatness of a crime, ought the strength
* Being obliged to draw a different conclusion from every argument that I have yet heard, I should suspect myself. of prejudice or perverseness, if I did not find that I was supported by the most respectable authorities.
of the proof of it to be. The higher a crime is, ·and the deeper it draws its consequences, sợ much the clearer and stronger ought the evidence of it to be.”
Whatever is more rare and extraordinary, either in the actions of mankind or the appearances of nature, will require so much stronger proof to induce us to believe its existence. When an incredible story was related at Rome, it was a proverbial saying, “ I should not believe it, though Cato should assert it.” It requires proof of a higher nature to convince us that a woman of the age of fifty-one, like Lady Jane Douglas, had been delivered of twins, than that such an event had happened to a young woman of the age of twenty-one or thirtyone.
It perhaps may be observed, that the Peers, from their superior education, might safely be entrusted with evidence which it would be dangerous to relate in the hearing of a jury; that their enlarged and enlightened minds would more easily discriminate the reality of truth from what bore but the semblance of it.' Education, it is true, in this country is regarded as one of the best ornaments of nobility, and it is one of the first advantages of fortune to be able to purchase it in the greatest perfection. But as men of rank and