dence. (1) A witness is disqualified by attaint of conspiracy at Conspiracy. the suit of the king (2), that is, of a conspiracy to accuse another person of a capital offence (3); for then he is to have the villanous 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. (4) 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 Fraud. not render an affidavit of the convict inadmissible (5); and a conviction for keeping a public gaming house has been thought not sufficient to render a witness incompetent. (6) It seems, that 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 evidence in a court of justice. (7) 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 (8); upon the same principle that the affirmations of Quakers are admitted in their defence on a criminal charge. Outlawry, in a personal action is no ground of exception. (9) Outlawry. 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 (10); it follows, therefore, that such an outlaw cannot be a competent witness. (11) Infamous pur. ishment. ment. Some kinds of punishment were formerly thought to be marks of infamy, and therefore witnesses were frequently rejected after branding, or after standing in the pillory; these being the usual punishments for the crimen falsi. (1) Bit the distinction is obvious, and now clearly settled, that it is not the punishment, but the nature of the offence, which causes infamy. (2) The maxim is, exdelicto non ex supplicio emergit infamia. Thus, it is no objection a gain the competence of a witness, that he has been in the pillory for a libel on the government, or for a trespass, or a riot. (3) 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. (4) (a) Proof of judg- Infamy, arising from the sentence of a court of justice, must be established by regular proof of a conviction and judgment in the due course of law. The rule most commonly laid down is, that a conviction makes the witness incompetent. But it is not to be understood, that conviction alone incapacitates; for the conviction may possibly have been quashed, on a motion in arrest of judgment. (5) The judgment, therefore, as well as the conviction, must be proved; and the general rule is, that the judgment can only be proved by the record or by a copy of the record. (6) Even an admission by the witness himself, of his being in prison under judgment for grand larceny, (7) or of his having been guilty of perjury on another occasion, (8) (1) 2 H. P. C. 277. Co. Lit. 6, b. 2 Dodson's Adm. Rep. 187. (2) Gilb. Ev. 127. Bull. N. P. 292. R. v. Davis, 5 Mod. 75. R. v. Ford, 2 Salk. 690. Pendock v. Mackinder, 2 Wils. 18. Willes, Rep. 666. S. C. Fortesc. Rep. 209. Prindle's case, 2 Leach, Cr. C. 496. (3) Chater v. Hawkins, 3 Lev. 426. Com. Dig. tit. Testm. A. 5. Gilb. 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 subornation of perjury. (4) R. v. Ford, 2 Salk. 690. Bull. N. P. 292. Crosby's case, 10 St. Tr. 42, Appx. fol. ed. S. C. 2 Howell's St. Tr. 820. (5) Lee v. Gansel, Cowp. 8. Gilb. Ev. 129. Com. Dig. tit. Testm. A. 5 Sutton v. Bishop, 4 Burr. 2283. (6) Com. Dig. Ib. 8 East, 78. (7) R. v. Castel Careinion, S East, 78. (8) R. v. Teale, 11 East, 309. Rands v. Thomas, 5 Maule & Selw. 246. will not make him incompetent, however it may affect his credit (a) If the objection to the competency of a witness is founded on criminal proceedings instituted in any other court, these proceedings must appear on their face to be regular, and be regularly proved. A document, purporting to be an indictment and conviction, is imperfect as a record, without a caption; since the caption shows by what authority the indictment was found. (1) And the indictment must state all circumstances essential to constitute the offence. (1) The party, who objects to a witness as attainted, will have to Reversal of judgment. prove the attainder by proceedings in the regular course of law; and the opposite party may produce other proceedings in answer to the objection. If a conviction and judgment are read on the one side, this may be answered on the other by reading a reversal of the judgment upon a writ of error. If the incapacity arises from outlawry under a charge of treason or felony, it will be removed by proof of the reversal of that outlawry. Or if the objection is, that the witness has parliament, which subjects him to der unless he surrenders before a of parliamentary outlawry,) it may be shewn, that the witness surrendered conformably with the act. Such an objection and such an answer occurred on the trial of Lord Lovat; (2) and in that case the record of a proceeding, commenced on the part of the crown, and defended on the part of the witness by a plea of surrender, which the Attorney General confessed to be true, was allowed to be conclusive proof of the fact of his surrender within the limited time. been attainted by an act of all the penalties of an attaincertain day, (which is a kind how restored. A person convicted of felony being thus disabled from giving Competency evidence, it remains to be considered, by what means the disability may be removed. 1. In ancient times, this was affected in many cases by a pro (1) Cooke v. Maxwell, 2 Starke, N. P. C. 184. (2) 9 St. Tr. 652, 665, fol. ed. S. C. 18 Howell's St. Tr. 1004, 1011. 1. Purgation. (a) See Note 59, p. 65. 2. Benefit of clergy. Proof of clergy. ceeding then in use, called purgation, (1) 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. 2. 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 and delivered out of prison." In the construction of this statute the judges held, that, as the old mode of purgation was thus taken away, the burning in the hand should be considered, as having the same effect in clearing away the disabilities of conviction. (2) "It was never the intent of the statute," said Lord Chief Justice Treby, in Lord Warwick's case, "merely to set at large and leave him a convict-felon; but when is said 'delivered,' it meant delivered free from all incident and further penalties, as if delivered upon purgation."(3) Hence the burning in the hand was considered in the nature of a statute-pardon. (4) It appears to be established by several cases, that proof of the record, whereby clergy was granted, without further proof of the burning in the hand, was not sufficient: (5) the words of the statute being, that he should be "delivered after clergy allowed and (1) Treby C. J. in Lord Warwick's case, 5 St. Tr. 172, fol. ed. 13 Howell's St. Tr. 1017. S. C. Hob. 288. Kelyng, 37. (2) Heston's case, cited in Foxley's case, 5 Rep. 110. Searle v. Williams, Hob. Rep. 292. Celier's case, Sir T. Raym. 369. Lord Castlemain's case, (3) Lord Warwick's case, 5 St. Tr. 172, fol. ed. S. C. 13 Howell's St. Tr. 1017. (4) Hob. 292. Bull. N. P. 292. (5) Searle v. Williams, Hob. 288. Armstrong and Lisle, Kel. 93. Lord Warwick's case, 5 St. Tr. 166, fol. ed. 18 Howell's St. Tr. 1003, S. C. burning in the hand." This, therefore, is necessary to be proved, except in those cases where the benefit of clergy may be allowed without branding, as to a clerk in holy orders or peer of parliament or where the branding is excused by pardon, or commuted for another punishment (as a fine,) and then it must be shown, that the witness has suffered such substituted punishment instead of the other. (1) In Lord Warwick's case, above cited, one who had been convicted of manslaughter and allowed his clergy, but not burnt in the hand, was called as a 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. (2) 3. In cases where, instead of this burning in the hand, some 3. Effect of suffering punother punishment has been substituted by act of parliament, (as ishment. transportation, by st. 4 G. 1, c. 11, (3) or a fine or whipping by st. 19 G. 3, c. 74, s. 3, (4) felons, within the benefit of clergy, are made competent after suffering such substituted punishment: these statutes expressly providing, that it shall operate as a pardon, and completely remove all incapacities. (8) Under sen tence of trans 4. A person convicted of grand larceny and sentenced to transportation for seven years, who has been confined in the hulks, and portation. (1) Burridges's case, 3 3 P. Wms. 485, 490. (2) See Infra p. 33, on substitution of punishment for burning in the hand. (3) The first section of this statute enacts, that on the conviction of any person for grand or petit larceny, where the convict is entitled to benefit of clergy, and liable only to the penalties of burning in the hand or whipping (except persons convicted for receiving or buying stolen goods, knowing them to be stolen,) the court before whom the person is convicted, instead of ordering the offender to be burnt in the hand or whipped, may direct, that he shall be transported for the space of seven years; and on the conviction of an offender for a crime, for which he would be excluded from the benefit of clergy, but to whom mercy is extended on condition of transportation, the court may allow him VOL. I. the benefit of a pardon under the great (4) The st. 19 G. 3, c. 74, enacts, (s) See Note 60. p. 65. |