Of Jacob Tonfor, of

because he came not now here to profecute the law with effect, and give evidence on the behalf of our faid lord the king, against JT, in a cafe of fraud and mif- > X. demeanor, as by a certain recognizance, taken before RN, efq. one of the jufiices of our said lord the king, he undertook.

Of W D, of - --filver-fmith, because he came not now here to profecute his traverse, upon a certain indictment of trefpafs and affault, as by a certain recognizance he undertook.

Of N M of

victualler, one of the pledges of the faid W, because he had him not to profecute bis traverfe as above.

Of MO of

J

1.

XX.

XX.

weaver, the other of the

pledges of the faid W, for the like.

The eftreat of a recognizance forfeited for not profecuting and giving evidence in the cafe of a fraud.

For not profe

cuting a tra verfe.

AS

Evidence.

S in public judicatures it is necessary to fearch into the truth of facts as they really are; hence whatever may be exhibited to a court or jury, whether it be by matter of record or writing, or by the teftimony of witneffes, in order to enable them to pronounce with certainty concerning the truth of any matter in difpute, whether fuch matter relates to a perfon's life, liberty, or property, is called evidence. 2 Bacon's Abr. Tit. Evidence.

As the difcovery of truth is of the utmoft confequence to the good of fociety, fo it lays men under the ftrongest obligations, when called upon to give their evidence, to adhere inviolably to the truth; and this is a matter not only enjoined by the precepts of religion, but alfo by thofe of reafon; the violation of truth being a fin against human fociety, as it breaks in upon that correspondence that is neceffary to focial creatures by deftroying the end of language, which is the common tie and band of fociety; and as raifing a different idea in the mind of the hearer, from that which is formed in the mind of the fpeaker, deftroys all intercourfe between mankind; fo it prevents that truft from being repofed in them which is fo neceffary to their own prefervation and the good of others. Ibid.

From the importance therefore of this matter, the wifdom of our laws has laid down feveral rules relating to

Generally.

Aliens.

Infants.

evilence; which, so far as they more particularly concern cria minul cafes, we fhall confider under the following heads :

I. Who may be witnesses.

II. The number of witnesses required in criminal cafes.

III, How a witness may be compelled to
appear and give evidence.

IV. The manner of giving evidence.
V. What is to be allowed as evidence in
criminal cafes.

VI. In what cafes witnesses may be al
lowed their expences.

I. Wha may be witnesses.

All perfons may be witneffes who are of fane mind, and appear to have fufficient difcretion, and who from their principles must be prefumed to have a right fenfe of the fanctity of an oath, and of the obligations it lays them under to depofe the whole truth, and nothing but the truth; therefore it is no good exception against a witness that he is an alien, or villain, or bondman, or the like. Co. Lit. 6. b. 2 Hawk. c. 46. f. 28. 1 St. Tri. 253.

And an infant, though under the age of feven years, may be fworn in a criminal profecution, provided fuch infant appears, on ftrict examination by the court, to poffefs a fufficient knowledge of the nature and confequences of an oath for there is no precife or fixed rule as to the time within which infants are excluded from giving evidence 3 but their admiffibility depends upon the fenfe and reafon they entertain of the danger and impiety of falsehood, which is to be collected from their anfwers to questions propounded to them by the court; but if they are found incompetent, their teftimony cannot be received. Gilbert's L. Ev. 146, 147. Leach's Cr. L. 346. Co. Lit. 6. bi 2 Hale's Hift. 278. 1 Brownl. 47.

But in no cale fhall an infant be admitted as evidence,, without oath. 1 Strange 700. 1 Atk. 29. Leach's Cr.

L. 114.

Sd

So a man deaf and dumb from his nativity, with whom Perfons deaf communication was had by means of certain figns and and dumb. motions, which time and neceflity had invented, was admitted to give material evidence, through the medium of an interpreter, against a prifoner at the Old Baily feflions in January 1786, after an argument against his competency. Leach's Cr. L. 347.

2

But infidels cannot be witneffes, because they are under Infidels, none of the obligations of our religion, and therefore they are not under the influence of the oaths that we adminifter; and where the binding force of an oath ceases, the reasons and grounds of belief are abfolutely diffolved. Gilbert's L. Evi. 145.

Yet Jews are allowed to be witneffes, because they can Jews. fwear on the Old Testament which is part of our belief ; therefore their oaths do induce a belief of the fact which they atteft. Gilbert's L. Evi. 145.

So a Scotch covenanter may give evidence in a criminal Scotch coveprofecution, on being fworn according to the cuftom of his nanters. fect by the form of holding up his hand, without touching the book, or kiffing it. Cowper's Rep. 390. Leach's Cr. L. 348.

And when any perfon profeffes a religion that will be a tie upon him, he fhall be admitted as a witness, and fworn according to the ceremonies of his own religion; for it would be ridiculous to fwear a witness upon the holy Evangelifts,

1. And this was fo ruled, notwithstanding it was objected, that there might be a difficulty in arraigning a man for perjury, whom the law prefumes to be an ideot; for although a perfon in fuch a fituation is in contemplation of law incapable of guilt, upon a prefumption of idiotifm, yet that prefumption may be repelled by evidence of a capacity to underftand by figns and tokens, which it is known that perfons thus afflicted frequently poffefs to a very great extent; therefore, one Jones, upon evidence of this capacity, was at the Old Baily feffions in Dec. 1773, before Mr juftice Blackfione arraigned, convicted of lingle felony, and fentenced to transportation. Great diligence and circumfpection, however, ought to be exercifed in fo critical a cafe; and if all means to convey intelligence to the mind of fuch a prifoner refpecting the nature of his arraignment should prove ineffectual, the clerk of the arraigns may enter the plea of Not guilty; and then it is incumbent on the court, to inquire toaching all those points of which the prifoner might take advantage himself; to examine all the proceedings against him with a critical eye; and to render him every fervice confitent with the rules of the law. Leach's Cr. L. 106, 394.

2. That is fuch who proff, no religion, that can bind their confciences to fpeak truth. Bull. N. P. 292.

And a perfon tendered as an evidence in fupport of an indictment for horsefealing, who faid, that he had heard there was a God, and believed that thofe perfons who told lies would come to the gallows; but acknowledged that he had never learned the catechifm, was altogether ignorant of the obligations of an oath, a future ftate of rewards and punishments, the exilence of another world, or what became of wicked people after death, was rejected, as being incompetent to be fworn. Leach Cr. L. 368.

VOL. II.

D

who

Mahometans.

Gentoos.

Outlaws.

But not excom

Lons.

who did not believe those writings to be facred. Bull. Nifi Prius, 292.

And it were a very hard cafe, if a murder committed here in England in prefence only of a Turk or other perfon, that owns not the Chriftian religion, fhould be difpunishable, becaufe fuch an oath fhould not be taken, which the witnefs holds binding, and cannot fwear otherwife, and poffibly might think himself under no obligation, if fworn according to the ufual ftyle of the courts of England. 2 Hale's Hift. 279.

Therefore, a Mahometan profecutor has been permitted, by the unanimous opinion of the twelve judges, to fwear on the Alcoran3, in a profecution for a capital offence; namely, on an indictment for ftealing wearing apparel, Bengal coins, and five guineas, in a dwelling houfe. Leach's Cr. L. 58.

So alfo Gentoos have been permitted to be fworn according to the ceremonies of the Gentoo religion. I Atk. 21. Bull. Nifi Prius, 292.

It is alfo certain that outlawry in a perfonal action is not a good exception against a witnefs, because they are punished in their properties, and not in the lofs of their reputation, and the outlawry has no manner of influence upon their credibility. Co. Lit. 6. b.

But perfons excommunicate cannot be witneffes, because municate per- by the laws of the holy church, fuch perfons are excluded from human converfation; nay, her laws go so far as to excommunicate those who converfe with them, and confequently they cannot be admitted to receive any questions from a court of juftice; befides, they thought that those who were excluded out of the church, were not under the influence of any religion. Gilbert's L. Evi. 146.

Nor quakers.

Who are dif qualified by reafon of kindred.

Neither can the affirmation of a quaker be received in criminal caufes, it being exprefsly excluded by 7 & 8 /Vill. 3. c. 34. /. 6.

It feems agreed, that the hufband and wife being as one and the fame person in affection and intereft, can no morẻ give evidence for one another in any cafe whatsoever than for themfelves; and that regularly the one fhall not be admitted to give evidence against the other, nor the examination of one be made use of against the other, by reafon of the implacable diffenfion which might be caufed by it, and the great danger of perjury from taking the oaths of perfons

3. An Alcoran was produced to the witnefs; and he firft placed his right hand flat upon it; and then put the other hand to his forehead: he then looked for fome time upon it; and on being asked what effect that ceremony was to produce, he answered that he was bound by it to speak the truth.

under

under fo great a bias, and the extreme hardship of the cafe. Co. Lit. 6. b. 2 Hawk. c. 45. /. 15.

Hence it hath been adjudged, that the hufband cannot be a witnefs against the wife, nor the wife against the hufband, to prove the first marriage, on an indictment for bigamy; but the fecond hufband, or wife, may be allowed to give evidence, fuch fecond marriage being void, and therefore they were never husband and wife. 2 Hawk. c. 46. f. 16.

Yet fome exceptions have been allowed to this general rule in cafes of evident neceflity, as in the lord Audley's cafe, who held his wife's hands and legs, while his fervant, by his command, ravifhed her; or where a man is indicted for a forcible marriage; or where either a husband or wife have caufe to demand fureties of the peace against the other. 2 Hawk. c. 46. f. 16.

But no other degree of kindred, or affection, as that of parent and child, or the like, will prevent a perfon from being a witnefs. Siderfin, 75. 1 Salk. 289.

dence, and how.

It feems agreed, that it is no exception against a perfon's Whether a giving evidence either for or againft a prifoner, that he is judge or juror one of the judges who are to try him. And in the cafe of may give eviHacker two of the perfons in the commiffion for the trial, came off from the bench, and were fworn and gave evidence, and did not go up to the bench again during the trial. 2 State Tr. 257. 632. 674. Kelynge, 12. 1 Sid. 133. 2 Hawk. c. 46. f. 17.

Neither is it any exception to a witnefs, that he is one of the jurors who is to try the prifoner; but then he is, if called upon, to give his evidence on oath openly in court, and not to be examined privately by his companions. 2 Hawk. c. 46. f. 17. 2 Bacon's Abr. 287.

It has been long fettled that it is no exception against a Accomplices. witnefs that he hath confeffed himfelf guilty of the fame crime, if he have not been indicted for it; for if no accomplices were to be admitted as witneffes, it would be generally impoffible to find evidence to convict the greateft offenders. Alfo it hath been often ruled, that accomplices who are indicted, are good witneffes for the king, until they be convicted. 2 Hawk. c. 46. /. 18.

But the bare, uncorroborated teftimony of an accomplice, has feldom been thought of fufficient credit to put a prifoner upon his defence: however the practice of rejec ing an unfupported accomplice, is rather a matter of dif

See the Titles APPROVER and CONFESSION, for further illuftration of this fubject.

D 2

cretion