jurors are judges of the facts in dispute (r), and the hopelessness of attempting to reconcile the chaos of decisions in the old books on the incompetency of witnesses, shewed the imperative necessity of recasting the system. We have already seen how the law respecting oaths was settled by the case of Omychund v. Barker, in 1744, and with respect to another very important branch Interested wit of the subject,-the incompetency of witnesses on the ground of interest,-the Court of Queen's Bench in Lord Kenyon's time laid down as a clear and definite rule for the future, that, in order to render a witness incompetent on that ground, it must appear either that he is directly interested in the event of the suit, or that he could avail himself of the verdict in the cause, so as to give it in evidence on some future occasion in support of his own interest (s). nesses. § 134. This rule having become matter of legal history, it would be useless to refer to the numerous cases illustrative of its extent and meaning which are to be found in the books. It will be sufficient to state a few general principles. First, The rule drew a distinction between an interest in the question and interest in the event of the suit. However strong a witness's bias on the subject of the suit, or his hopes to obtain some benefit from the result of the trial might be, these formed no objection to his competency unless he had a direct interest in its event (t). Thus, where two actions were brought against two persons for the same assault, in the action against one the other would be a competent witness, because he was not interested in the event (u). So, where an action was brought against an underwriter on (r) See Part 1, ch. 2, § 118. v. Tyler, 6 Bingh. 390. () 1 Phil. Ev. 81, 119, 9th Ed.; 2 Smith's Lead. Cas. 51. (u) 1 Phill. Ev. 119, 9th Ed. a policy of insurance, another underwriter on the same policy was held a competent witness for the defendant, for the same reason (v). Again, the interest to disqualify must have been a certain interest, and a legal, existing interest. If it existed merely in the imagination, or belief, or expectation of the witness, he would not be incompetent, however strongly the objection might be urged to his credibility (x). But however small and inconsiderable the amount of the legal interest might have been, the witness was incompetent (y). Where a witness was incompetent on the ground of interest, the incompetency might be removed by a release from liability; and such releases were very common in practice. $135. As the law of evidence continued to improve, the subject of interested witnesses continued to attract more and more attention. The rule laid down in Bent v. Baker and the other cases which have been cited, was indeed well defined, and on the whole as good as any that could be devised on such a subject; but the inconsistency of its application, and its inefficiency even in its professed object of obtaining unsuspected evidence, were obvious. It is impossible to calculate, by any rule laid down à priori, the influence which interest in a given cause or in the event of a given suit will exercise on the mind of a given individual. On some minds a very slight interest would act so as to cause perjury, on others very great ones would be powerless. Again, it being equally impossible to detect the numberless ways in which parties may be directly or indirectly interested in a particular event, the rule of exclusion was restricted to the case of legal interest; the consequence of which was that parties were often competent to give evidence who were swayed by the strong (v) Bent v. Baker, 3 T. R. 27. (x) 1 Phill. Ev. 86, 9th Ed.; 2 Smith's Lead. Cas. 51. est moral interest to pervert the truth. Thus the heir apparent to an estate, however large, was a competent witness for his ancestor in possession, on an ejectment brought by a stranger claiming the property; while in an ejectment against a tenant for life, a remainder man having a legal interest to the amount of the smallest coin in the realm was not competent to give evidence for the defendant (z). So in the cases already mentioned of the under-writers, the persons indicted for separate assaults, &c. (a) And though last not leastin the very teeth of the maxims, "nemo in propriâ causâ testis esse debet (b)," and "repellitur à sacramento infamis (c)," any man might (and still may) in legal strictness be convicted, even of a capital offence, on the unsupported evidence of a person avowing himself an accomplice in his crime (d); who is taken out of gaol to bear testimony, against his companion, who gives that testimony under an implied promise of pardon, and being liable on his own confession to execution if the government be dissatisfied with his conduct in this respect, may be said to be giving it with a rope round his neck, and influenced by the strongest of all earthly motives to procure the condemnation of the accused. In short, it at length became visible that interest should be an objection to the credit, not to the competency of a witness; but the law and practice were too firmly settled to be altered without the aid of the legislature. (z) Ph. & Am. Evid. 91, et seq. (a) Supra, § 134. (b) 1 Blackst. Comm. 443; 3 Id. 371. (c) Co. Litt. 158, a; Willes, 667. (d) R. v. Atwood, 1 Leach, C. L. 464, and 466, note; R. v. Durham, Id. 478; R. v. Jones, 2 Campb. 132; 28 Ho. St. Tr. 487, 488; 31 Id. 315; R. v. Hastings, 7 C. & P. 152; R. v. Wilkes, Id. 272; R. v. Sheehan, Jebb. Cr. C. 54. c. 42. § 136. Without stopping to refer to various statutes, 3 & 4 Will. IV. passed from time to time, by which interested parties and witnesses were rendered competent in particular cases, we will proceed to the first general enactment on the subject, the 3 & 4 Will. IV. c. 42: the 26th section of which enacts, that "In order to render the rejection of witnesses on the ground of interest less frequent, if any witness shall be objected to as incompetent on the ground that the verdict or judgment in the action on which it shall be proposed to examine him would be admissible in evidence for or against him, such witness shall nevertheless be examined, but in that case a verdict or judgment in that action in favour of the party on whose behalf he shall have been examined shall not be admissible in evidence for him or any one claiming under him, nor shall a verdict or judgment against the party on whose behalf he shall have been examined be admissible in evidence against him or any one claiming under him." And by the 27th section, "The name of every witness objected to as incompetent on the ground that such verdict or judgment would be admissible in evidence for or against him shall at the trial be endorsed on the record or document on which the trial shall be had, together with the name of the party on whose behalf he was examined, by some officer of the court, at the request of either party, and shall be afterwards entered on the record of the judgment; and such indorsement or entry shall be sufficient evidence that such witness was examined in any subsequent proceeding in which the verdict or judgment shall be offered in evidence." § 137. This statute, at best but a palliative of the 6 & 7 Vict. c. evil (e), was virtually repealed by the 6 & 7 Vict. c. 85. Smith's Leading Cases, 52, et (e) The cases decided on it will be found collected in 2 seq. 85. Before stating its provisions, we must advert to another ground of incompetency altogether abolished by Incompetency it, viz. infamy of character; respecting which, as also from infamy. the ways in which the disability could be removed, much is to be found in the books. The objections to incompetency on the ground of interest apply here with at least equal force. The principle of the exclusion seems to have varied in different cases. In some as where the witness had been convicted of perjury, forgery, and the like-it rested, in part at least, on the notion that his testimony was likely to prove mendacious but the wide range of the rule clearly shews that this form of incompetency, like that for disfavoured religious opinions, was occasionally imposed as a punishment, in order that by refusing to allow the witness to give evidence in a court of justice he might be rendered a marked person in society. And this seems supported by the circumstance that at common law a pardon, even for perjury, restored the competency of the witness and made him a new man (f). But, whatever the reason, "repellitur à sacramento infamis (g)" was the rule of law; and in determining what offences should be deemed infamous an artificial distinction was taken which caused the whole system to work very unevenly. We allude to the distinction between the "infamia juris" and the "infamia facti,”— between the criminality of an offence viewed in itself and that arbitrarily attributed to it by law (h),—it being |