Examination has been used. (1) If the witness says, he considers the oath to be binding upon his conscience, he affirms, in effect, that in taking that oath he has called his God to witness, what he shall say will be the truth, and that he has imprecated the Divine vengence upon his head, if what he shall afterwards say is false; and when this is done, it would be perfectly unnecessary and irrelevant to ask any further questions. (2) Such an acceptance of the oath not only imposes upon the witness all its religious obligations, but, should he violate its sanctions, subjects him also to the temporal penalties consequent on the crime of perjury. (3) The proper mode of examining a witness, for the purpose of tryas to opinions. ing his competency in religious principle, is not to question him as to his particular opinions, but to enquire generally, whether he be lieves in the existence of God and of a future state. In a case before Mr. Justice Buller, where a witness, who had been sworn on the Gospels, was asked, whether he believed in the Gospels on which he had been sworn, the question was objected to, and is said to have been overruled by the court. (4) This question appears to have been put after the swearing in chief, though before the examination of the witness. If it had been asked before the witness was sworn at all, it seems that it would have been regular; for if he had not believed in the Gospels, how could he have been effectually sworn upon them? The administration of an oath in such a case would be entirely nugatory; and evidence would be given without any religious sanction, on the bare assertion of a witness. If the law requires an oath to be administered in a certain form, and a witness believes not in any form of religion, the consequence inust necessarily be, that he cannot be sworn. (5) (n) (1) Resolution of the judges deli- (2) By the Lord Chief Justice, on (3) The fact of a witness having as sumed a false name, and swearing in the common form upon the Gospels, but discovered after the trial to be a Jew, is not a ground for a new trial. Seils v. Hoare, 3 Brod. & Bing. 432. (4) R. v. Taylor, Peake, N. P. C 11. (5) A tract has been written on this subject by Mr. Baron Smith, one of the Barons of the Court of Exchequer in Ireland. (n) See Note 55, p. 63. There appears to be no good reason for not admitting the so- Quakers. lemn affirmation of a Quaker in all cases, as well as the oath of a Jew or Gentoo, or any other person, who thinks himself really bound by the mode and form in which he attests. Before the Revolution, Quakers, who refused to take a legal oath, were treated as obstinate offenders, and subject to penalties. (1) But these hardships were removed by the toleration act (2), which first allowed them to make a declaration of their fidelity to the state instead of taking an oath of allegiance, and exempted them from all pains and penalties on their making, if required, certain other declarations there prescribed. And by another statute, which passed about six years after (3), their solemn affirmation in courts of justice is admitted to have the same effect as an oath taken in the usual form, excepting only that on such affirmation they are not permitted to give evidence in criminal cases. (o) This exception against the testimony of Quakers in criminal prosecutions, which Lord Mansfield has called a strong prejudice in the minds of the great men who introduced the statute(4), has been continued in the several succeeding acts of the legislature on the subject. (5) The soundness and propriety of such a distinction between criminal and civil cases may well be questioned; unless it can be shown that evidence requires less sanction in civil cases than in criminal, or that Quakers, in making their solemn affirmation, do not consider themselves under a strict religious obligation to speak the truth. The affirmation of a Quaker, as Lord Mansfield observed in his excellent judgment in the case of Atcheson against Everett (6), is in substance the same as an oath; the form only is different; an affirmation is a most solemn appeal and attestation to God. The legislature, by not admitting the affirmation of Quakers in criminal cases, must be understood to mean causes technically criminal. (7) They may be received in penal actions; as, in an action for debt on the statute against bribery in elections (8); so, on a motion for an attachment for non-perform Excommunication. ance of an award (1). or on a motion to quash an appointment of verseers(2); 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 (3), though it is in form a civil proceeding; so on a motion for an information for a misdemeanor (4), or on exhibiting articles of the peace (5), or on a motion for non-performance of an order of Court (6). 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. (7) It has been observed by Lord Mansfield (8), 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 (9); and no exception is made by the legislature, in order to give a prisoner the benefit of a Quaker's testimony.(p) It has been frequently laid down, that persons excommunicated are not competent witnesses, because it is supposed, that those who have been excluded from the church are not under the influence of any religion. The authority generally referred to in support of this rule, is a dictum of Sir Edward Coke, in the case of the Attorney General v. Griffith (10), concerning the oath of allegiance required of Popish recusants. He is there reported to have said, "By the statute 3 J. 1, c. 5, every recusant convict is to be excommunicated; and therefore on my circuit I do not admit of them for witnesses between party and party, they being not competent witnesses." On the authority of this dictum, the rule has been commonly adopted by writers 127. on the subject of evidence; although the reason, upon which it is supposed to have been founded, would in the present day be generally exploded. But now, by a late act of the legislature, this objection has been entirely removed. The stat. 53 G. 3. 53 G 3, c. C. 127, s. 2, 3, enacts, that no sentence of excommunication shall be pronounced by ecclesiastical courts in cases of contempt or disobedience to their order, and that persons excommunicated shall in no case incur any civil penalty or disability. CHAP. IV. Of Incompetency from Infamy. A THIRD cause of incompetency is infamy of character, proceeding from conviction of certain offences. The conviction of an infamous crime followed by judgment, disqualifies a witness from giving evidence in courts of justice. This is strictly a legal objection, to be supported by strict legal proof; and nothing less than a conviction will disqualify. Here again is another striking instance, to show the distinction between competency and credibility. Witnesses of the most infa- Competenc mous and depraved character, though not credible, may yet be Credibility. competent; and it frequently happens, that a witness is suffered to give evidence, because not absolutely disqualified by the rules of law, though at the same time he may be far lower in point of credit and real character, than another, who is at once excluded as incompetent. Writers on the subject of evidence, therefore, distinguish between the infamia juris and the infamia facti. Of these tests of infamy, the latter may destroy the credibility of a witness; but it is the former only that can destroy his competency. In treating of this subject, it is proposed to consider, in the first section, what offences incapacitate, and how a witness may be restored to his competency: in the second, to consider the evidence of accomplices. What crimes disqualify. Felony. SECT. I. What Offences incapacitate; and of the Mode of restoring 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) Of this kind are treason, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, attaint of false verdict, (2) and other offences of the same description, 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 not always punished by the legislature in proportion to their guilt, and there may be more depravity in some frauds, which are not punishable as crimes, than in some kinds of felony. By the common law, a Petit larceny. person convicted of petty larceny was not a competent witness, because the offence was felony, no less than grand larceny; (5) but by stat. 31 G. 3, c. 35, it was enacted, that no person should be incompetent by reason of a conviction for petty larceny. (6) Some other offences also make a witness incompetent after conviction and judgment; as præmunire, barretry, (7) or the crime of bribing a witness to absent himself and not give evi Pribing a witness. (1) Gilb. Ev. 126. Bull. N. P. 291. (3) See the judgment of Sir W. Scott in the case of Ville de Varsovie and others, 2 Dodson's Adm. Rep. 174. (4) Co. Lit. 6 b. Com. Dig. ubi. sup. (5) 2 H. P. C. 277. Pendock v. Mackinder, Willes' Rep. 667; where the authorities on this point are collected. (6) See also 7 & 8 G. 4, c. 29, s. 2. (7) R. v. Ford, 2 Salk. 690. Bull. N. P. 292. See Com. Dig. tit. Test moigne, A. 5. |