When Lord Carleton was passing sentence on these unfortunate gentlemen, he was so much affected that he could scarcely proceed. He had been the townsman and friend of their father, and lived with him in habits of intimacy. He owed to Mr. Sheares, perhaps, some of his best principles of thinking and acting; and the recollection of such scenes, and the melancholy duty he was then performing, to a mind even less feeling, must have been a painful task indeed! What must have been his lordship's feelings, when in the act of condemning the sons of his early friend and benefactor to an ignominious death!

ON THE LAW OF HIGH TREASON, see p. 319.

FOR the information of the general reader, it seems necessary to draw together some of the authorities and opinions of the most learned sages of the law, concerning this so frequently contested point in the Irish courts of judicature, i. e. the number of witnesses necessary by the common law to conviction for high treason. It is proper, however, to premise, that the history of the English government evinces that the proceedings in cases of high treason have ever been more or less arbitrary, in proportion as the prosecuting power has been more or less strong, or deaf, to the sentiments of justice and humanity.

In England, an act of parliament was passed 1 Edw. VI. requiring two lawful accusers (which was interpreted to mean two lawful witnesses) in all cases of treason-and in 1 Philip and Mary, another act was passed, declaring "that all trials of treasons shall be according to the course of the common law." These two conflicting statutes gave rise to various doubts and uncertainties in that country, which were at length finally put to rest by the stat. 7 William III. which positively and distinctly required two witnesses. As, however, none of those statutes extended to Ireland, and as the Irish parliament passed no law upon the subject, the number of witnesses necessary to a conviction for high treason remains to be decided by the ancient common law of England, which was introduced into Ireland as it stood prior to the reign of Henry VII.

Mr. Justice Foster, in his Discourse on High Treason, says, that "it hath been generally agreed, and I think upon just grounds, (though Load Coke hath advanced a contrary

doctrine,) that at common law one witness was sufficient in the case of treason, as well as in every other capital case. Fost. C. L. 233.

Serjeant Hawkins, in his Pleas of the Crown, c. 25. s. 129. expresses himself thus: "It seems, that before the 1 Edw. VI. no certain number of witnesses was required upon the indictment or trial of any crime whatsoever; for it seems to be generally agreed, that the statute of P. and M. in restoring the order of trial by the common law, took away the necessity of two witnesses in all cases within those statutes, from whence it plainly seems to follow that they were not required by the common law." After noticing that a contrary opinion has been held by some, he proceeds thus: "However the law might have stood in relation to these matters before the Conquest, it seems to have been wholly altered long before the statute of Edw. VI. and I rather incline to this opinion, since I find it so little supported by the generality of the authorities cited by Sir Edward Coke for the proof of the contrary.”

Here it is worthy of remark, that the passage in Foster seems to be a mere obiter dictum of the author, in support of which not a single argument is advanced, nor authority cited; and Hawkins has evidently grounded his opinion upon the strong inference to be drawn from the statutes, and the slight manner in which Coke was supported in a contrary opinion by the generality of the authorities he had cited, but he does not pretend that any of them contradict what his, lordship has advanced.

Now let us hear Lord Coke, and observe how far he is supported by reason, and the opinions of other great men:"And it seemeth (saith his lordship) that by the ancient common law, one accuser, or witness, was not sufficient to convict any person of high treason; for in that case where there is but one accuser, it shall be tried before the constable and marshal by combat, as by many records appeareth. But the constable and marshal have no jurisdiction to hold plea of any thing which may be determined or discussed by the common law: And that two witnesses be required, appeareth by our books, and I remember no authority in them to the contrary; and the common law herein is grounded upon the law of God, expressed both in the old and the new testament: "At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death."Deut. 17. 6. Matt. 18. 16. John, 18. 23. 2 Cor. 13. 1. Heb. 10. 28.

Sir Thomas Raymond's report of Lord Stafford's case (408.) contains the following paragraph: "And upon this occasion, my lord chancellor, in the lords' house, was pleased to com

municate a notion concerning the reason of two witnesses in treason, which, he said, was not very familiar, he believed; and it was this; anciently, all or most of the judges were churchmen and ecclesiastical persons, and by the canon law now, and then in use all over the christian world, none can be condemned of heresy but by two lawful and credible witnesses; bare words may make a heretic, but not a traitor, and anciently heresy was treason; and from thence the parliament thought fit to appoint that two witnesses ought to be for proof of high treason." From this notion of the lord chancellor, the inference is very strong, that men whose partiality to the civil law induced them to decide that two witnesses were necessary in cases of heretical treason, would have introduced the general rule of that law, in that respect as applicable to every other species of treason. Add the sound reason given by Blackstone: "In cases of treason (says he) there is the accused's oath of allegiance to counterpoise the information of a single witness; and that perhaps may be one reason why the law requires a double testimony to convict him; though the principal reason undoubtedly is, to secure the subject from being sacrificed to fictitious conspiracies, which have been the engines of wicked and crafty politicians in all ages. 4 Com. 358. (See p. 319. of this book.)

Those laws (says Montesquieu) which condemn a man to death on the deposition of a single witness, are fatal to liberty. In right reason there should be two, because a witness who affirms, and the accused who denies, make an equal balance, and a third must incline the scale. B. 12. c. 3. Beccaria te the same effect, c. 13.

Ratio est anima legis, "Reason is the life of the law," is a maxim of the English system of jurisprudence. Were the decision of this question to be governed by that maxim, and a regard to liberty and sound policy, there are few, I am sure, who would hesitate to concur in opinion with that deepsearching sage of the law, Sir Edw. Coke.

The clause in the constitution of the United States upon this important subject of high treason, is apparently very clear and explicit. It is, however, devoutly to be wished, that an occasion for diving into its true meaning and intention had never occurred, or that it had happened in times of less devotedness to British principles and precedents. Every American would do well to peruse Judge Tucker's Essay on this subject. See 4 Tuck. Black. Appendix, Note B.

END OF VOLUME I