But in all cases, which are substantially of a criminal nature, the affirmation of a Quaker is inadmissible; as, in an appeal for murder (4), though it is in form a civil proceeding; so on a motion for an information for a misdemeanor (5), or on exhibiting articles of the peace (6), or on a motion for non-performance of an order of Court (7). Where the application to the court is against a Quaker, his affirmation may be received in his own defence, though the proceeding be of a criminal nature (8). It has been observed by Lord Mansfield (9), that Quakers are at present under some hardship, in not being able to call other Quakers as witnesses in their defence, on a charge of treason or felony; since in these cases, witnesses *on behalf of the prisoner are to be sworn, before they can give evidence, like witnesses for the crown (1); and no exception is made in the statute, in order to give a prisoner the benefit of a Quaker's testimony. (1) St. 7 & 8 W. & M. c. 3. s. 1. St. 1 Apn. st. 2. c. 9. s. 3. * 22 CHAP. IV. Incompetency from Infamy of Character. SECT. I. Of the Offences which incapacitate. A THIRD cause of incompetency proceeds from the conviction of certain crimes, or from infamy of character. (4) Castil v. Bainbridge, 2 Str. 856. Cowp. 392. (5) R. v. Wych, 2 Str. 872. R. v. Gardner, 2 Burr. 1117. (6) R. v. Green, 1 Str. 527. (7) Skipp v. Harwood. Willes 291. and see n. (b) ib. where the (8) R. v. Shacklington, And. 201. (9) Cowp. 391. What offences There are many offences, which our law considers such incapacitate. blemishes on the moral character, as to incapacitate from giving evidence in courts of justice (1); as, treason, and every species of the crimen falsi (a), such as forgery, perjury, subornation of perjury, attaint of false verdict, and other offences of the same kind, which necessarily imply falsehood (2). The whole class of offences which come under the denomination of felony (3), that is, all offences which occasion a forfeiture of lands or goods, will have the same effect in rendering a witness incompetent; though it is obvious, that crimes are not always punished by the legislature in proportion to their guilt, and there may be more depravity in frauds, which are not punishable, than in some kinds of felony. By the common law, a person convicted of petty larceny was not a competent witness, as the offence was felony no *less than grand larceny (1); but now by stat. 31 G. 3.-c. 35. it is enacted, that no person shall be incompetent by reason of a conviction for petty larceny. Some other offences also make a witness incompetent after conviction; as, a conspiracy to accuse another of a crime (2), præmunire (2), barretry (3), or conviction for bribing a witness to absent himself and not give evidence (4). So, it should seem, a person, who has been convicted of winning by fraud or ill practice in certain games, would not be a competent witness, since the stat. 9 Ann. c. 14, s. 5. not only inflicts a penalty, but also enacts that he shall be deemed infamous; and one of the legal consequences of infamy is incompetency to give * 23 evidence in a court of justice (5). As convicts in such offences cannot be witnesses, they cannot make affidavits to support a charge against others, but, to exculpate or defend themselves, their affidavits have been allowed (6); and upon the same principle the affirmation of Quakers are admitted in their own defence on a criminal charge. Outlawry in a personal action is no ground of exception (7). But judgment of outlawry for treason or felony, appearing on record by the sheriff's return of the exigent (8), has the same effect as judgment after a verdict or confession: it follows, therefore, that such an outlaw cannot be a competent witness (9). Some kinds of punishment were formerly thought to be marks of infamy, and therefore witnesses were frequently rejected after standing in the pillory, or after branding; these being the usual punishments for the crimen falsi (10). *But the distinction is obvious, and now clearly settled; it is not the punishment, but the nature of the offence, that causes infamy (1). Thus, it is no objection against the competency of a witness, that he has been in the pillory for a libel on the government, or for a trespass, or a riot (2): he is not incompetent, unless he has suffered for the crimen falsi, as, for perjury, &c., in which case, it is the crime, not the punishment, that incapacitates. And, on the other hand, after judgment for the latter kind of offence, he is not competent, though the punishment may have been only a fine (3). It is not the punishment, but the crime, that af fects the competency of a witness. The rule most commonly laid down is, that a conviction (5) Co. Lit. 6. b. Fortesc. 208. (6) Davis and Carter's case, 2 Salk. 461. Charlesworth's case cited by the Court in Walker v. Kearney, 2 Str. 1148. (7) Co. Lit. 6. b. Com. Dig. Testm. A. 5. Hawk. P. C. b. 1. c. 72. s. 107. (8) 3 Inst. 212. Hawk. P. C. b. 2. c. 48. s. 22. (9) Celier's case, Sir T. Raym. 369. *24 *27 Pardon. instead of the other (3). In Lord Warwick's case, above cited, one who had been convicted of manslaughter and allowed his clergy, but not burnt in the hand (4), was called as witness for the prisoner; and on an objection to his competency, the lords referred it to the judges present, who thought he was not a competent witness, as the statute had made the burning in the hand a condition precedent to the discharge. As the privilege of clergy, at common law, extended only to capital felonies, and not to petty larcenies or misdemeanors, persons convicted of petty larceny could not be discharged under stat. 18 Eliz. c. 7. s. 3. which relates only to such as were allowed their clergy, nor were they included in stat. 19 G. 3. c. 74. s. 3. which gives a discretionary power to substitute a moderate fine or whipping for burning in the hand (5): so that convicts in petty larceny, though they had suffered the sentence of the law, were still incompetent to give evidence, while in many cases *convicts in grand larceny were admissible. This inconsistency was removed by a statute of the present reign, which has been already mentioned (1). The most effectual mode of restoring the competency of a witness is, by a pardon under the great seal, or by act of parliament. Some, indeed, have thought that it can only remove the punishment, not the blemish of character (2). But it is now settled, that a pardon of treason or felony, even after conviction or attainder, not only takes off every part of the punishment, but also clears the party from the legal disabilities of infamy and all other consequences of his crime (3). A pardon, whether under the great seal, (3) Burridge's case, 3. P. Wms. 485, 490. (4) This may now be changed to a moderate fine, by st. 19 G. 3, c. 74. s. 3. Latch. 81. ; and other dicta cited in (3) Cuddington v. Wilkins, Hob. 67. 82. Rookwood's case. Rep. Temp. Holt 685. 4 St. Tr. 682. (5) St. 4 & 5 H. 7. c. 13. Crosby's case, Lord Raym. 39. St. 31 G. 3. c. 35. and 36 G. Lord Castlemain's case, T. Ray. 379. 2 H. P. C. 278. Hawk. P. C. b. 2. c. 37. s. 48. Com. Dig. Testm. A. 5. Reilly's case, Leach Cr. C. 510. 3. c. 29. Irish stat. (2) Lord Coke in Brown v. Crashaw, 2 Bulst. 154. Dodderidge, J. in Harris v. Whyte, Palm. 412. or by act of parliament, is said to make the witness a new creature, and gives him a new capacity (a): the crime, indeed, may still be objected against him, as affecting his credit, but cannot be urged against his competency as a witness. And a pardon, by which the king remits the punishment of burning in the hand, is admitted to have the same operation (4). It is, indeed, highly expedient that a pardon should be allowed to have this effect, and that a discretionary power should be vested in the crown to remove such legal incapacities: otherwise, a person once convicted of felony, would be stigmatized for life, and treated as infamous in courts of law, though in the opinion of mankind his character for truth and honesty may have been completely retrieved. As in the greater offences, so in those below felony, as perjury at common law, &c. a pardon will restore competency, where the disability is a consequence of the judgment (1). But where the disability is declared by act of parliament to be part of the punishment, as in the case of a conviction for perjury or subornation of perjury on the stat. 5 Eliz. c. 9. the king's pardon will not make the witness competent (1). In this case the statute expressly provides, that he shall never be admitted to give evidence in courts of justice, until the judgment be reversed (b). If the pardon is conditional (2), the performance of the condition ought to be shown; for on that depends all its efficacy. Thus, where the pardon is on condition of transportation for a number of years, the witness is not compe (4) Rookwood's case, R. T. Holt 685. Warwick's case, 5 St. Tr. 166. Hawk. P. C. b. 2. c. 37. s. 49. (1) 2 H. P. C. 278. R. v. Greepe, 2 Saĺk. 514; 1 Lord Raym. 256. S. C. R. v. Ford, 2 Salk. 690. Cros by's case, 2 Salk. 689. Bull. N. P. 155. (2) Hawk. b. 2. c. 37. s. 45. (a) Vide Deming's case, 10 Johns. Rep. 232. (b) A conviction for perjury, or subornation of perjury, produces the like disability in the state of New-York. Sess. 24. c. 74. s. 1. 1 R. L. 171. * 28 |