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. If the pardon is conditional (2), the performance of the condition ought to be shewn; 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 competent before the expiration of the term or other lawful determination (3). To prove that a witness, after conviction, has been restored to his competency by pardon, it is necessary to produce the pardon itself under the great seal. A warrant under the privy seal or sign manual, is not sufficient for this purpose, as it is not of itself a complete irrevocable pardon. (4)

SECT. II.

Of the Admissibility of Accomplices.

IT has been before mentioned, that, unless the conviction and judgment are proved, a witness is not incompetent from infamy of character, though he may confess himself guilty of an infamous crime. Nor is it a sufficient objection to his competency, that he has been an accomplice in guilt with the prisoner at the bar. The evidence of accomplices has been at all times admitted (5), from a principle of public

(1) 2 H. P. C. 278. R. v. Greepe, 2 Salk. 514; 1 Lord Kaym. 256. S.C. R. v. Ford, 2 Salk. 690. Crosby's case, 2 Salk. 689. Bull. N. P. 292. Hawk. b. 2. c. 46. s. 112. R. v. Warden of the Fleet, Rep. Temp. Holt, 135. Anonym. case, 3 Salk. 155. (2) Hawk. b. 2. c. 37. s. 45.

Bur

(3) Hawk. b. 2. c. 37. S. 45. ridge's case, 3 P. Wms. 485. (4) Gully's case, Leach Cr. C. 116. Hawk. b. 2. c. 37. s. 50.

(5) 1 H. P. C. 303. Hawk. b. 2. c. 46. s. 94. Gilb. Ev. 123. Rookwood's case, 4 St. Tr. 663. Atwood's case,

cited by Grose J. 7 T. R. 609. Westbeer's case, Leach Cr. C. 14.

policy and from necessity, as it is scarcely possible to detect conspiracies and many of the worst crimes without their information. But though accomplices are received as witnesses, their testimony ought to be received by a jury with considerable caution and distrust: for, on their own confession, they stand contaminated with guilt, and in the hope of lessening their own infamy will often be tempted to throw as much guilt as possible upon the prisoner. They may be also in some cases entitled to rewards on the prisoner's conviction, and in all cases expect to earn a pardon; and as fear is usually their motive, the same feeling may tempt them to exaggerate their evidence, for the purpose of destroying their former associate and securing themselves against his vengeance.

The practice of admitting accomplices to give evidence against their associates, has been adopted from analogy to the ancient doctrine of approvement, a part of the old law, which, though now grown obsolete, may properly be mentioned here, from its affinity to the more improved modern usage substitued in its place (1). Approvement is, when a prisoner, arraigned on a capital charge, confesses the fact before plea pleaded, and accuses his accomplices of the same offence. He must also discover upon oath, not only the particular crime charged upon him, but all treasons and felonies of which he can give any information. It is then in the discretion of the Court either to refuse or admit him to be an approver; and if on his confession it appears that he was a principal, and tempted the others, he ought not to be received. But if he does not discover the whole truth, or, on the trial of the appeal, the party accused should be acquitted, judgment of death passes against him upon his own confession of the indictment.

This practice of allowing approvements, which was at all times in the discretion of the Court, is now grown into

(1) Rudd's case, Cowp. 335.

disuse,

disuse, and entirely discontinued; more mischief having arisen from false accusations under pretence of approving, than benefit to the public by the discovery and conviction of real offenders (1). Whatever good was to be expected from this old method, is now more effectually provided for and secured, First, by several acts of parliament, which enact, in cases of robbery (2), coining (3), burglary (4), housebreaking (4), horse stealing (4), privately stealing to the value of five shillings from shops, warehouses, stables and coach-houses (4), or uttering counterfeit money (5), that, if any such offender, being out of prison, shall discover two or more persons, who have committed the like offences, he shall be entitled to pardon for such crime, on their conviction: Secondly, by special proclamations in the Gazette or otherwise, promising pardon on certain conditions: and, Thirdly, by the modern practice of admitting accomplices to give evidence for the crown, under an implied promise of pardon, on condition of their making a full and fair confession of the whole truth, that is, of all the offences about which they may be questioned, and of all their associates in guilt (6). On a strict and ample performance of this condition, to the satisfaction of the judge presiding at the trial, they have an equitable title to a recommendation for the king's mercy. It is not, however, a matter of course, to admit an offender as witness on the trial of his accomplices, not even after he has been so allowed by the committing magistrate; but a motion for this purpose must be made by the counsel for the prosecution, and the Court, under all the circumstances of the case, will either admit or disallow such evidence, as may most effectually answer the purposes of justice. (7)

The general rule then is, that a person, who confesses himself guilty of a crime, is a competent witness against his

(1) 2 Hale P. C. 227. ch. 29.

(2) St. 4 W. M. c. 8. s. 7.

(3) St. 6 W.3. c. 17. S. 12.

(4) St. 10 W. 3. c.23. s. 5. St. 5. Ann. c. 31, s. 4.

(5) St. 15 G. 2. c. 28. s. 4.

(6) Rudd's case, Cowp. 339. (7) Per Buller J. Maidst. Ass. 1798, Crown Circ. Com. last edit. 51.

partners

partners in guilt. Thus, if two or more persons are accomplices, one who is not indicted, may be witness against the others, though he may have a promise of pardon or reward on condition of giving evidence against the prisoner (1): so he may even after conviction, if judgment has not passed upon him; for it is not the conviction, but the judgment that creates the disability. So, on the trial of one of several persons, who are indicted separately, the others, who have not been convicted, may be witnesses in his behalf (2). It was formerly thought, from analogy to the ancient doctrine of approvement, that an accomplice, separately indicted for the same offence, could not give evidence against the others, unless he had first pleaded guilty to his indictment (3): but the rule is now settled as above stated. On the trial of an accessary (4), for a misdemeanor in receiving stolen goods, under stat. 22 G.3. c. 58., the principal felon is a competent witness; the statute enacting, that the accessary may be proceeded against, although the principal felon has not been convicted, and whether he be or be not amenable to justice. So, the principal felon may be a witness, in a prosecution on stat. 4 G. 1. c. 11., for taking a reward to help to stolen goods, (5)

The evidence of accomplices is also admitted on the trial of smaller offences. Thus, in an information under stat. 2 G. 2. c.24., for bribery at an election, a person, who had received a bribe, was admitted a witness against the defendant, though in case of a conviction he would have been indemnified from the penalties of the act (6). In an action of trespass, a co-trespasser who is not sued, may be

(1) Tonge's case, Kel. 17. 1 H. P. C. 303. S. C. Layer's case, 10 St. Tr. 259. Hawk. P. C. b. 2. c. 46. S. 135.

(2) Case of Bilmore and others, 2 H. P. C. 279. I H. P. C. 305. Gunston and Downes, 2 Roll. Ab. 685. pl. 3. Hawk. b. 2. c. 46. s. 99. Gilb. Ev. 118. Bath v. Montague, cited Fortesc, Rep. 247.

(3) Sir P. Cresby's case, I H. P. C. 303.

(4) Haslam's case, 1 Leach Cr. C. 467. Price's case, ib. 468. n. (1.) Patram's case, 2 East P. C. 782.

(5) Wild's case, 2 East P. C. 782.

(6) Bush v. Rawling, Say.. 289. cited by Lord Mansfield Cowp. 199. Snead v. Robinson, Willes, 423. and n. (c), ib. 425.

witness

witness against the defendant, though left out of the declaration for that purpose, and although satisfaction from one is a discharge for all the rest (1). A person who has set his name as subscribing witness to a deed or will, may be a witness to prove the instrument a forgery. (2)

Since accomplices are competent witnesses, it necessarily follows, that, if their evidence is believed by a jury, a prisoner may be legally convicted upon it, though it be unsupported by other proof (3). But their testimony alone is seldom of sufficient weight with a jury to convict the offenders; the temptation to commit perjury being so great, where the witness by accusing another may escape himself (4). The practice, therefore, is to advise the jury to regard the evidence of an accomplice, only so far as he may be confirmed, in some part of his testimony, by unimpeachable testimony. It is not necessary, that he should be confirmed in every circumstance, which he details in evidence: for there would be no occasson to use him at all as a witness, if his narrative could be completely proved by other evidence free from all suspicion. Nor need it appear from the confirmatory evidence, that he speaks truth with respect to all the prisoners, or with respect to the share which each had in the transaction. But if the jury are satisfied, that he speaks truth in those parts, in which they see unimpeachable evidence brought to confirm him, that is a ground for them to believe, that he also speaks truly with regard to the other prisoners, as to whom there may be no confirmation. (5)

The cases which have been mentioned, respecting the evidence of accomplices, and on the admissibility of persons