The legislature, by not admitting the affirmation of Quakers in criminal cases, must be understood to mean, causes technically criminal. They may be received in penal actions; as, in an action for debt on the statute against bribery in elections(1): so, on a motion for an attachment for non-performance of an award (2), or on a motion to quash an appointment of overseers(3); these proceedings being of a civil, not a criminal nature. 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; (10) * and no exception is made in the statute, in order to give a prisoner the benefit of a Quaker's testimony. (1) Atcheson v Everett, Cowp. 382. (2) Taylor v Scott, cited Cowp. 394. Powel v Ward, cited Andr. 200. (3) R. v. Turner, 2 Str. 1219. (4) Castile v. Bainbridge, 2 Str. 856. Cowp. 392. (5) R. v. Wynch, 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 cases on this subject are collected. (8) R. v. Stracklington, Andr. 201. n. R v. Gardner, 2 Burr. 1117, Cowp. 383. 392 (9) Cowp. 391. (10) St. 7 & 8 W. & M. c. 3. s. 1. 1 Ann. st. 2. c. 9. s. 3.. [23] * 22 entious scruples against taking an oath, may be admitted to make an affirmation which shall be equally valid as an oath in the usual form, and subject the party to the penalties of wilful and corrupt perjury. The liberty of affirming is strictly confined by the laws and practice of Massachusetts to Quakers. Vide United States v. Corlidge, 2Gallison, Rep. 364. CHAP. IV. Of Incompetency from Infamy of Character. A THIRD cause of incompetency proceeds from the conviction of a witness for certain crimes, or from infamy of character. In treating of this subject, it is proposed to consider, first, what offences incapacitate; secondly, how a witness, convicted of such offences, may be restored to his competency; and, thirdly, to enquire into the admissibility of an accomplice as witness. SECT. I. Of the Offences, which incapacitate a Witness. THERE are many offences, which our law considers such 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 [24] verdict, (2) and other offences of the same kind, which involve the charge of falsehood, and affect the public administration of justice. (3) The whole class of offences which come under the denomination of felony, (4) 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 (1) Gilb. Ev. 126. Bull. N. P. 291. (2) Co. Lit. 6. b. Hawk. b. 2. c. 46. s. 101. Com. Dig Testmoigne, A. 5. 2 H. P. C. 277. Fortesc. Rep 209. Jones v Mason, 2 Stra. 833. Walker v Kearney, 2 Stra. 1148. (3) See the judgement of Sir W. Scott in the case of Ville de Vorsovie and others, May 13, 1817. (4) Co. Lit. 6. b. Com. Dig. ubisup. (a) Cushman v. Loker, 2 Mass. Rep. 108. 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 and judgment; as præmunire, barretry, (2) or bribing a witness to absent himself and not give evidence. (3) And a witness is disqualified by attaint of conspiracy at the suit of the king, (4) that is, of a con spiracy to accuse another person of a capital offence; (5) for then he is to have the villainous judgment, and lose the freedom of the law. It is otherwise, says Lord Hale, where he is attainted of a conspiracy at the suit of the party, (6) and in a late case in the Admiralty court, which underwent much discussion, Sir W. Scott determined on great consideration, that a conviction for a conspiracy to commit a fraud would not render an aflidavit of the convict inadmissible. (7) So, it should seem, a person, who had 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 evidence in a court of justice. (8) 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 affi. (1) 2 H P. C. 277. Pendock v Mackinder, Willes, 667; where the suthorities on this point are collected. (2) R. v. Ford, 2 Salk 690. Bull. N. P. 292. See Com Dig. tit. Testmoigne, A. 5 (3) Adjudged in Clancey's case, by 7judges; Holt, C. J. doubting at first. Fortesc. Rep. 208. (4) Co. Lit. 6. b. 2 H. P. C. 277. Hawk. P. C. b. 1. c. 72. s. 9. Com. Dig. ab. upi sup. (5) 2 H. P. C. 277. Hawk, ib. (6) 2 H. P. C. 277. Saville v Roberts, Carth. 416. Hawk, ubi. sup. (7) In the case of Ville de Varsovie and others, May 13, 1817. (8) Co. Lit. 6. b. Fortesc. 209. * 23 [25] * 24 [261 davits have been allowed;(1) 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. (2) But judgment of outlawry for treason or felony, appearing on record by the sheriff's return of the exigent, has the same effect as judgment after a verdict or confession:(3) it follows, therefore, that such an outlaw cannot be a competent witness. (4) 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.(5) But the distinction is obvious, and now clearly settled; it is not the punishment, but the nature of the offence, that causes infamy. (6) 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:(7) 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. (8) It is not the punishment, but the crime, that affects the competency of a witness. The rule most commonly laid down is, that a conviction makes the witness incompetent: but it is not to be (1) Davis and Carter's case, 2 Salk. (2) Co. Lit. 6. b. Com. Dig. Testm. (4) Celier's case, Sir T. Raym. 369. 209. Priddle's case, 2 Leach Cr. C. 496. (7) Chater v Hawkins, 3 Lev. 426. Com. Dig. Testm. A. 5. Gilh, Ev. 127. Fortesc. Rep. 209. In such cases, punishment by the pillory is now abolished. See st. 56 G. 3. c. 138. But this statute does not make any alteration in the punishment of perjury, or of subor. nation of perjury. (8) R. v. Ford, 2 Salk. 690 Bull. N. P. 292. Crosby's case, 10 St. Tr. 42. Appx. understood, that conviction alone incapacitates; for, on a motion in arrest of judgment, it may possibly have been quashed.(1) The judgment, therefore, as well as the conviction, must be proved, and can only be proved by the record or by a copy of the record.(2) (a) Even an admission by the witness himself, of his being in prison under judgment for grand larceny,(3) or of his having been guilty of perjury on another occasion,(4) will not make him incompetent, however it may affect his credit. * 25 A person convicted of felony being thus disabled from Competency, giving evidence, it remains to be considered by what how restored. means the disability may be removed. In ancient times, this was effected in many cases by a proceeding then in use, called purgation, (5) by which all persons, entitled to the benefit *of clergy, were allowed to clear themselves before the ordinary, even after a conviction in the temporal courts. If on this canonical trial the party failed, which seldom happened, he was sentenced to remain in the ordinary's prison; and, on the other hand, upon his acquittal, he was pronounced innocent, absolved from infamy, and discharged from the punishment, incapacity, and discredit incident to the felony. Thus, formerly, allowance of the privilege of clergy, followed by purgation, would restore the competency of a witness. But it was afterwards found necessary to abolish this mode of trial by purgation; and therefore the stat. 18 Eliz. c. 7. s. 3. enacted, that persons, admitted to the benefit of clergy, should no longer be delivered to the ordinary for purgation; but "after the clergy allowed and burning in the hand, should forthwith be enlarged (1) Lee v Gansel, Cowp. 8. Gilb. Ev. 129. Com. Dig. tit. Testin. A. 5. Sutton v Bishop, 4 Burr. 2283. (2) Com. Dig. Ib. 8 East, 79. 78. (4) R. v. Teale, 11 East. 309. (5) Treby, C. J. in Lord Warwick's case, 5 St. Tr. 172. Hob. 288. Kelyng, 37. (a) Vide Hilts v Colvin, 14 Johns. Rep. 182. |