CHAPTER III. OF INCOMPETENCY FROM INFAMY OF CHARACTER. General rule. Distinction between legal and moral infamy of character. A third cause of incompetency is infamy of character, pro ceeding from conviction of certain offences. The conviction of an infamous crime, followed by judgment, disqualifies a person from giving evidence in our courts of justice; (1) and persons rejected for this cause, are said to be incompetent on account of the infamy of their character. There is a distinction between infamy of character in the ordinary sense of the expression, and that legal infamy which results from the sentence of a court of justice. "If," says Sir W. Scott, (2) "a man is stigmatized by public fame only, it affects the credit of his testimony, but not his admission to the formal character of a witness." And it frequently happens, that a witness is suffered to give evidence, because not absolutely disqualified by the rule of law, though he may be far lower, in point of credit and real character, than another who is excluded as incompetent. (3) Writers on the law of evidence always distinguish between the infamia juris, and the infamia facti; the former of which may destroy the credibility of a witness, but the latter only can affect his competency. (1) Our earliest writers notice this cause of disqualification. And the rule of the Roman law was similar, "Publico judicio damnati et non in integrum restituti, admittendi non sunt ad testimonii fidem." Dig. 1. 22, tit. 5, de Testibus, art. 3, s. 5. (2) 2 Dods. 188, case of Ville de Varsovie. (3) This occasional inconsistency is the unavoidable consequence of a fixed general rule of exclusion, and of the well known principle of our law, that every man is presumed to be innocent of a crime until his guilt has been established in a court of justice. The principle upon which this rule of exclusion is founded, has given rise to some difference of opinion, and there are not wanting authorities, which appear to rest the incompetency of such persons, as witnesses, on the ground of punishment for the offence; but it is clear that this cannot be the correct principle, for the testimony of a witness is the privilege of the party who requires it, or of the public, and not of the witness himself. Another ground, upon which this rule appears to have been established, is, that the testimony of persons convicted of infamous crimes is devoid of all presumption of credit, and would therefore be more likely to mislead than to assist in the investigation of truth in Courts of Justice. Thus, Sir W. Scott, in the judgment from which a quotation has been already made, observes that "the law considers the commission of a crime of this nature to imply such a dereliction of moral principle on the part of the witness, as carries with it the conclusion, that he would entirely disregard the obligation of an oath."(1) And C. B. Gilbert observes upon the same subject, that "the producing such a witness is perfectly ineffectual, because the credit of his oath is overbalanced by the stain of his iniquity."(2) It may be objected against the propriety of this reasoning, that it does not follow, because the moral principle of a witness has, upon a former occasion, proved too weak to resist a particular temptation of self interest, that therefore the witness ought to be accounted wholly undeserving of credit, when there may be no temptation to lead him astray, or where it may be reasonably supposed that the oath he takes, and the fear of the temporal punishment annexed to perjury, will not be without influence in causing him to adhere to the truth. (3) It may also be remarked, that there is the less danger in admitting this testimony, because the very circumstance of the conviction operates as a safeguard, by forewarning the jury to be cautious in receiving (1) 2 Dods. Rep. 188. (2) Gilb. Evid. 143, (4th edit.); and see per Willes, C. J. Purdock v. Mackinder, Willes, 667. (3) In R. v. Teal, 11 East, 311. Lord Ellenborough says, "Though a person may be proved on his own shewing, or by other evidence to the rule. Principle of Propriety of exclusion. the statements of the witness. The distinction between the offences, the conviction for which does, or does not, disqualify a witness, is often purely technical; whilst the modes, by which the competency of infamous witnesses may be restored, shew that the objection to such witnesses, which is capable of being removed by circumstances wholly immaterial to their credit, is not of a very substantial nature. It is to be observed that, in practice, witnesses are rarely rejected on the ground of infamy,-in consequence of the difficulty of establishing the incompetency by producing formal evidence of the conviction and judgment, especially where there is no previous notice that the particular witness is to be produced; besides, that there are various modes by which witnesses, who have incurred this disqualification, may be restored to competency. The cross-examination of the witness, as to the fact of his previous conviction, generally produces all the effect of discrediting him, which can properly be desired. In treating of the subject of incompetency from infamy, it is proposed, in the present chapter, to consider what offences incapacitate; what is the effect and extent of the incapacity; how incompetency from infamy of character is to be proved; and how a witness who has incurred this disability, may be restored to competency. The next chapter will treat of the evidence of accomplices, informers, and self-discrediting witnesses, a subject, connected with this branch of the law of evidence, which, from its importance, appears to deserve a separate consideration. charge two persons, she loses her credibility;" which," says Lord Ellenborough, "is observed with reference to the distinction between credibility and competency. But if incompetency from infamy of character proceeds on the ground of an entire want of credibility, it is not easy to understand, why there should be any distinction between the case of a witness, who has been convicted of perjury, and one who has not been convicted, but admit having committed the offence." Yet, as we shall presently see, the one is a competent and the other an incompetent witness. It is also difficult to conceive, with reference to this principle, why the suffering of the punishment awarded by law for the offence, should occasion a restoration of competency in these cases; for although the endurance of the punishment may satisfy the ends of public justice, it is not easy to explain, how it can operate to improve the character and credit of a convict. But the true source of many of these apparent inconsistencies in the law of evidence is to be found in the disinclination of the courts in modern times to shut out evidence unnecessarily, and in their endeavours to restrain as much as possible the old rules of exclusion. 1. What Offences Incapacitate. There are many offences which our law considers such What offences blemishes on the moral character, as to incapacitate the party incapacitate. convicted from giving evidence. Of this kind are treason, præmunire, and the whole class of offences which come under Treason and the denomination of felony. (1) Petty larceny was formerly an felony. It has been generally laid down by writers on the law of Crimen falsi. evidence, that every species of the crimen falsi renders the party convicted an incompetent witness. (4) The term crimen falsi is one which has been imported from the Roman law into ours, and the precise extent of the signification, which it has received in our law appears to be involved in some degree of uncertainty. It is clear that a conviction for forgery will dis- Forgery-perqualify; (5) as will also all offences tending to pervert the pub- jury. lic administration of justice, by the introduction of falsehood and fraud. ness. Of this nature are perjury, and subornation of perjury; attaint of false verdict; (6) bribing a witness to absent Bribing a withimself, in order that he may not give evidence; (7) conspiring to procure the absence of a witness; (8) conspiring to accuse another person of a capital offence; (9) barretry; (10) and other offences of a similar character. But it does not appear, that every offence, which involves the charge of falsehood or fraud, will renConspiracyder a witness incompetent; and in a modern case in the Admiralty fraud. (1) Co. Lit. 6, b. Com. Dig. Testm. A. 5. 2 H. P. C. 277. Fortesc. Rep. 209. Jones v. Mason, 2 Stra. 833. Walker v. Kearney, 2 Stra. 1148. (2) Stat. 31 Geo. 3, c. 35. Before this statute petty larceny disqualified, see 2 H. P. C. 277. Pendock v. Mackinder, Willes, 667. (3) Stat. 7 & 8 Geo. 4, c. 29, $. 2. The consequence of incapacitating witnesses was probably not contemplated by the legislature. (4) Bul. N. P. 291. Gilb. Evid. 141. Co. Lit. 6, b, n. 1, (Harg. edit.) (5) 2 Hale P. C. 277. Com. (6) See authorities cited, n. b. supra. (7) Adjudged in Clancy's case, by seven Judges, Holt, C. J., doubting at first, Fortesc. Rep. 208. (8) Bushell v. Barrett, Ry. & Mo. (9) 2 H. P. C. 277. 11 Rep. 99, a. (10) R. v. Ford, 2 Salk, 690. Gaming. Outlawry. Infamous punishment. Court, which underwent much discussion, Sir W. Scott determined, on great consideration, that a conviction for a conspiracy. to commit a fraud, in raising the price of the funds by false reports, would not render an affidavit of the convicted party inadmissible. (1) Lord Tenterden also appears to have entertained the same opinion in a subsequent case, which occurred at Nisi Prius. (2) A conviction for keeping a public gaming house has been thought not to render a witness incompetent. (3) But it seems that a person who has been convicted under the 9th Ann, c. 14, s. 5, of winning at the games mentioned in that statute, by fraud or ill practice, would be incapacitated; for the statute expressly enacts, that the party convicted shall be deemed infamous; and one of the legal consequences of infamy is incapacity to give evidence. (4) Judgment of outlawry for treason or felony has the same effect as judgment after a verdict or confession, (5) and it therefore follows, that such an outlaw cannot be a competent witness. (6) But outlawry in a personal action is no ground of exception. (7) Some kinds of punishment were formerly thought to be marks of infamy, and witnesses were frequently rejected after branding, or after standing in the pillory. (8) But the distinction is now clearly settled, that legal infamy arises not from the nature of the punishment, but from the nature of the offence. (9) The maxim is, ex delicto non ex supplicio emergit infamia. (10) Testm. A. 5. Hawk. P. C. b. 2, c. 48, s. 22. (8) 2 Hale, P. C. 277. Co. Lit. 6, b. 2 Dods. Rep. 187. (9) Gilb. Evid. 277. B. N. P. 292. R. v. Davis, 5 Mod. 75. R. v. Ford, 2 Salk. 690. Pendock v. Mackinder, Willes, 666. 2 Wils. 18. S. C. Fortesc. Rep. 209. Priddle's case, 2 Leach, 496. (10) The various criterions of legal infamy which have been enume |