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less than grand larceny (i); but now by stat. 31 G. 3. c. 3 5. 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 (z), praemunire (a), 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 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 (1 o).

(O 1 H. P. C. 277. Pendock v. (5) Co. Lit. 6. b. Fortcsc. 1o8.

Mackinder, Willes 667; where the (6) Davis and Carter's rate, 2 Salk.

authorities on this point are collected. 461* Charlesworth's case cited by the

(1) 2 H P.C. 177. Co. Lit. 6. Court in Walker v. Kearney, l Str.

Hawk. P.C. b. 1. c.71. s. 9. Com. 1148.

Dig. uli 'if. 4 Blac. Com. 103.136. (7) Co. Lit. 6. *. Com. Dig. Testm.

(3) .R. v. Ford,1 Salk. 690. BulL A. 5. Hawk. P. C. b. 1. c. 71. s. 107. N. P. 291. See Com. Dig. tit. Test- (8) 3 Inft. 212. Hawk. P. C. b. 2. moigne A. 5. c. 48. s. 12.

(4) Adjudged in Clancey's case, by 7 (9) Celier's case, Sir T. Raym. 369. judges; Holt C. J. doubting at Erst. (10) 1 H. P.C. 277. Co. Lit. 66. Fartesc. Rep. ao8.

C 4 But 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 hnnd, 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 affects the competency of a witness. 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 st. 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 (1). "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 it said • delivered,' it meant delivered free from all incident and further penalties, as if delivered upon purgation (2)." Hence the burning in the hand is considered in the nature of a statutepardon. (3)

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, on a motion in arrest of judgment, it may possibly be quashed (4). 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 (5). Even an admission by the witness himself, of his being in prison under judgment for grand larceny (6), or, of his having been guilty of perjury (7) on another occasion, will not make him incompetent, however it may affect his credit.

Compe- A person convicted of felony being thus disabled from restored" g'vmg evidence, it remains to be considered by what means the disability may be removed. In ancient times, this was effected in many cases by a proceeding then in use, called purgation (8), by which all persons, entitled to the benefit

(1) Gilb. Ev. 127. Bull. N. P. 292. (4) Lee v. Gansel. Cowp. 8. Gilb. R. v. Davis, 5 Mod. 75. R. v. Ford, Eir. 129. Com. Dig tit. Testm. A. 5. 2 Sa'k. 690. Pendcck v. Mackinder, Sutton v. Bishop, 4 Burr. 2183.

1 Wils. 18. Willcs, 666.S.C. Fortesc. (5) Com. Dig. Ib. 8 East, 79. 209. (6) R. v. Castel Careinion, 8 East,

(2) Chater v. Hawkins, 3 Lev. 426. 7?.

Com. Dip Testm. A. 5. Ciilli. Ev. 127. (7) R. v Teale, 1 1 East, 309.
Fortesc. Rep. 209. (8) Trehy C. J. in Lord Warwick's

(3) R. v. Ford.aSalk. 69c. Bull. cnse,5 St. Tr. 17i. Hcb.288. Kelyng, N. P. 292. Crosby's case, 10 St. Tr. 3;. .

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In cases where, instead of this burning intbeband, some other punishment has been substituted by act of parliament, (as transportation by st. 4 G. 1. c. 11., or a fine or whipping by st. 19 G.3. c. 74. s. 3.) 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. Peers

(1) Heston's c»se, cited in Foxley'i (a) Ld. Warwick's case, 5 St. Tr. case, 5 Rep. 11o. Searle v. Williams, 171.

Hob. Re,i. 191. CeHer"» case, Sir T. (3) Ho». Bull, N. P. aox.

Raym. 369. Lord Casuemain's case, lb. 380. Kelyng, 37.

of of parliament (1), and all clergymen, are entitled to benefit of clergy, and are therefore competent witnesses, without burning in the hand, and consequently without any punishment in its stead.

It appears to be established by several cases, that proof of the record, whereby clergy is granted, without further proof of the burning in the hand, is not sufficient (2): for the words of the statute are, that he shall be " delivered after clergy allowed and 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 changed for another punishment (as a fine), and then it must be shewn, that the witness has suffered such substituted punishment 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 <

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convicts in grand larceny were admissible. This inconsistency was removed by a statute of the present reign, which has been already mentioned. (i)

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, or by act of parliament, is said to make the witness a new creature, and gives him a new capacity: 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,

(1) St. 31 G. 3. c. 3S- *ni 3o G. 3. Holt, 685. 4 St. Tr. 68a. .Crosby's c. 29. Irish stat. case. Lord Raym. 39. Lord Castle

(2) Lord Coke in Brown v. Cra- main's case, T. Ray. 379. 1 H. P. C shaw, 2 Bulst. ISA- Dodderidge J. in 278 Hawk. P. C. b 2. c 37. s.48. Harris v. Whyte, Palm. 411. Latch. Com. Dig. Testm. A. 5. ReUly's case, 81.; and other dicta cited in Hargrave Leach Cr. C. 51a

Jurid. Arg. 2 vol. p. 263- (4) Rookwood's case, R. T. Helt,

(3) Cuddington v. Wilkins, Hoh. 67. 685. Warwick's case, 5 St. Tr. 166. 81. Rookwood's case. Rep. Temp. Hawk. P.C. b. 2. c. 37. s.49.


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