2. Extent and Effect of Disability. As persons convicted of infamous offences cannot be wit- Affidavits. nesses, their affidavits are inadmissible in any suit or proceeding between other parties. With regard to proceedings to which they are themselves parties, it has been held that they are incapable of making affidavits as complainants; (1) but their affidavits have been received for the purpose of exculpating or defending themselves. (2) Upon the same principle, before Quakers had been made competent witnesses in criminal proceedings, their affirmations were admitted upon a criminal charge against themselves. When a witness becomes incompetent from infamy, the effect is, for some purposes, the same as if he were dead; and if he has been attesting witness to any written instrument before conviction, proof may be given of his hand-writing. (3) 3. Proof of Incompetency. Incompetency arising from conviction of an infamous crime, Judgment. can only be established by proof of the conviction and judgment in due course of law. The fact of the party having committed the offence cannot be proved vivá voce, (4) nor will even an admission by the witness himself of having been confined in a gaol rated in the text, may, perhaps, ed to on the ground, that there are (1) 1 Salk. 461. 2 Stra. 1148. (2) Davis and Carter's case, 2 Salk. 461. Charlesworth's case, cited by the court in Walker v. Kearney, 2 Stra. 1148. (3) Jones v. Mason, 1 Stra. 833. for felony, (1) or of his having been guilty of perjury, make him incompetent, however it may affect his credit. (2) The rule, most commonly laid down, is that a conviction makes the witness incompetent; but it is not to be understood, that incompetency arises from the conviction alone, for that may have been quashed, on motion in arrest of judgment. (3) It is necessary to prove the judgment as well as the conviction, and this must be done in the usual way by the record or a copy. (4) The proceedings must appear to be regular, and when they have taken place in another Court, it must appear from the record that it was a Court of competent jurisdiction. A document, purporting to be an indictment and conviction, is imperfect as a record without a caption; since the caption shews by what authority the indictment was found; and the indictment must state all circumstances essential to constitute the offence. (5) 4. Competency how restored. A person convicted of an infamous crime, being thus disabled from giving evidence, it remains to be considered by what means the disability may be removed. The competency of the witness may be restored:-1st, By reversal of the judgment, or of the other proceedings producing the disqualification; 2ndly, By pardon; and 3dly, By enduring the punishment awarded for the offence. 1st. Reversal of the Judgment. Due proof of the judgment having been given by the party objecting to the witness, the opposite party may shew that such judgment has been reversed on a writ of error. So, if the dis (1) R. v. Castell Careinion, 8 East, 78. (2) R. v. Teal, 11 East, 309. Rands v. Thomas, 5 M. & S. 244. (3) Lee v. Gansell, Cowp. 8. Gilb. Evid. 129. Com. Dig. Testm. A. 5. Sutten v. Bishop, 4 Bur. 2283. (4) 8 East, 78. See post, Proof of Judgments. (5) Cooke v. Maxwell, 2 Stark. N. P. C. 183. qualification arise from outlawry for treason or felony, the reversal of the outlawry may be shewn in like manner. In a case where it was objected, that the witness had been attainted by a statute, which subjected him to the penalties of an attainder, unless he surrendered before a certain day, (which is a kind of parliamentary outlawry,) the objection was met by shewing, that the witness had surrendered conformably with the act; and a 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 the surrender within the limited time. (1) This however was not evidence in the nature of a reversal of the attainder, but its effect was to shew, that the penalties of the act had never been incurred by the witness. 2dly. Pardon. The competency of a witness may be restored by a par- Effect of pardon from the crown under the great seal. Whatever doubts don. were formerly entertained upon the subject, (2) it has long since been settled, that a pardon not only takes off every part of the punishment, but also clears the party from the legal disabilities of infamy resulting from his offence. (3) A pardon is said to make the witness a new creature, and to give him a new capacity; the crime may indeed be urged against him as affecting his credit, but his competency is entirely restored. This rule must however, as it seems, be understood subject to one qualification. A pardon will always restore competency, when the disability is a consequence of the judgment, according to the ordinary rules of law; but where the disability is annexed to the conviction of a particular offence by the express words of a statute, it is laid down that a pardon will not in such a case (1) Lord Lovat's case, 9 St. Tr. 652, 665, fol. ed. S. C. 18 How. St. Tr. 1004, 1011. (2) See per Lord Coke, Brown v. Crashaw, 2 Bulst. 154. By Doddridge, J., in Harris v. White, Palm. 412, Latch. 81, and other dicta cited 2 Harg. Jur. Arg. 263. (3) Cuddington v. Wilkins, Hob. 67, 82. Rookwood's case, Rep. Proof of pardon. Pardon under sign manual. restore competency, for the prerogative of the crown is controlled by the act of the legislature. (1) Thus, if a man be found guilty on an indictment for perjury at common law, a pardon from the crown will make him a good witness; but if he be convicted of perjury, or subornation of perjury, on the stat. 5 Eliz. c. 9, he will not be rendered competent by a pardon, for the statute expressly provides that he shall never be admitted to give evidence in any Court of Record, until the judgment be reversed. In order to prove a pardon, it must be produced under the great seal. And if the pardon is conditional, the performance of the condition ought to be shewn, (2) 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, or other lawful determination, of the term. (3) Where a warrant is granted under the sign manual, countersigned by a principal Secretary of State, for a free or conditional pardon of a person convicted of felony, his discharge from custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, will have the same effect as a pardon under the great seal, in regard to the felony for which the pardon is granted. (4) The restoration to competency, by means of a pardon, probably proceeded on the ground of a presumption, that the pardon was granted in consequence of the error of the court, which pronounced the conviction; because as Courts of Justice are not infallible, there may be perfect innocence, notwithstanding a legal conviction of guilt. (5) Pardons are not unfrequently granted for the purpose of procuring the evidence of a witness as to some offence, which might otherwise go unpunished. Thus the crown has the power of supplying evidence, or withholding it; and convicts, in the hope of receiving a pardon, (1) 2 H. P. C. 278. R. v. Greepe, 2 Salk. 514. 1 Lord Raym. 256, S. C. R. v. Ford, 2 Salk. 690. Crosby's case, 2 Salk. 689. B. N. P. 292. Hawk. b. 2, c. 46, s. 112. R. b. Warden of the Fleet, Rep. temp. Holt, 135. Anon. 3 Salk. 135. (2) Hawk. b. 2, c. 37, s. 45. (3) Ibid. Burridge's case, 3 P. Wms. 485. See Badcock's case, Russ. & Ry. Cr. Ca. 248. (4) Stat. 7 & 8 G. 4, c. 28, s. 13. (5) See Mr. Hargrave's Tract on the effect of the King's pardon for may be tempted to exaggerate and strain their evidence. There is danger, that the course of public justice may thus be interrupted; and, in point of credibility, such a witness must be regarded in the same light (if not worse), after a pardon as before. (1) It has happened, that, for the purpose of a single prosecution, no less than five convicts have been pardoned, thus escaping the punishment due to their crimes :-whereas, if such evidence could be used without a pardon, it would be more free from suspicion, and the ends of Justice would be more effectually attained. 3dly. Effect of enduring the Punishment for the Offence. 4, c. 32, s. 3. The restoration of competency, by suffering the punishment awarded for the offence, depends, at the present day, upon the provisions of the stat. 9 Geo. 4, c. 32. Before the passing of Statute 9 Geo. this act, the endurance of the punishment in many cases operated to restore competency, but the law upon this subject was involved in some confusion, in consequence of the recent extensive changes effected in the criminal law of the country. By the 3rd sect. of this statute, after reciting that it was expedient to prevent all doubts respecting the civil rights of persons con- Felonies. victed of felonies, not capital, who had undergone the punishment to which they had been adjudged, it is enacted, "that where any offender, hath been, or shall be convicted of any felony, not punishable with death, and hath endured, or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured hath and shall have the like effect and consequences as pardon under the great seal, as to the felony whereof the offender was so convicted. Provided always, that nothing herein contained, nor the enduring of such punishment shall Perjury. 2 Hargr. Jur. Arg. and 2 Hale, 278. Crosby's case, 5 Mod. 15. (1) This doctrine, of the restoration of a witness's credit by a pardon, appears to be of modern origin. Lord Coke, 2 Bulstr. 154, is an authority against it, and the maxim was "Pœna potest tolli, culpa perennis erit." There is considerable fluctuation of opinion upon the subject, in the trials arising out of the Popish Plot, particularly with |