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been burnt in the hand, this statute equally operated upon all courts, the highest and the lowest ; and this monstrous absurdity, so shockir. to one's feelings and understanding, could only be extinguished by the authority of the Legislature, from which it had originated.
But it continued to be the law of this country from the 18th year of Queen Elizabeth to the 19th year of his present Majesty's reign*.
This * 18 Eliz. c. 7.—19 Geo. III. c. 19.
I have expressed myself strongly in the text against the distinction; but yet all Judges and all courts must adopt it, till a change is made by the Legislature. The reason of such incongruities can easily be assigned, by tracing the history of the law.
By the common law, every conviction and judgment of treason or felony rendered the person attainted incapable of giving evidence in a court of justice.
The Clergy claimed an exemption from all punishment by the temporal Judge, and claimed also the same privilege for every person who could read, (qui legit ut clericus,) and for as many murders, manslaughters, robberies, and larcenies, as they should commit.
This, by the 4 Hen. VII. c. 13, was, in the case of laymen who could read, confined to the first conviction for felony, and the offender was burnt in the hand. But still he was claimed by the Clergy, and he was tried again by them in an absurd manner; and if he obtained a purgation, which he seldom failed to do, he was restored to his credit, and could give evidence, and purchase lands. The 18 Eliz. c. 7. alludes to this, and enacts, That no one
This witness was rejected by the House of Lords, at a time, when, if he had been admitted, he would not have been sworn; for when Lord Mohun the next day was tried for the same murder, the Lord
High shall be delivered as usual to the Ordinary ; but after Clergy allowed, and burning in the hand, he shall be delivered out of prison.
But the statute provided he may be imprisoned one year longer : Lord Hale has said _“If a man be convict of felony, and prays his Clergy, and is burnt in the hand, he is now a competent witness ; for by the statute of 18 Eliz. c. 7, it countervails a purgation and a pardon, and he is thereby enabled afterwards to acquire goods. Hob. 288. Searle and Williams.” 2 Hale P. C. 288.
It follows then, as a clear legal deduction, that no one convicted of felony can be a witness in any court, unless he has been burnt in the hand, or has obtained the King's pardon.
Except that, by the 4 Geo. I. c. 11. for grand larceny, the Judge, at his discretion, for burning in the hand may substitute transportation for seven years.
By the 19 Geo. III. c. 74, for every other Clergyable felony the court may, at their discretion, for burning in the hand substitute a fine, or whipping not more than three times; except, a person convicted of manslaughter cannot be whipp.'
In all these cases the substituted punishment has the same effect as burning in the hand.
It follows then, after transportation for grand larceny, or after whipping, or the payment of a fine, for any other felony, or in general after suffering the punishment, the offender may be admitted as a witness, but not before. These are unanswerable legal conclusions, which Justices, Judges, House of Lords, and Lord High Stewards, are equally bound to admit,
Petty larceny is a species of felony, and the person convicted
High Steward addressed his first witness thus : “ Though you are not upon your oath, yet you are as much obliged in justice and conscience to speah the exact truth, as if you was upon your oath ; therefore have a care what testimony you give.”. When this noble Lord had the misfortune to be tried for the murder of William Mountford, a few years before, the Marquis of Carmarthen, the Lord High Steward, thus addressed him : “My Lord, you are a very young man, and therefore it is to be hoped you cannot so early have had your hands in blood; and the same reason, because you are so
young, of it was rendered infamous or incompetent to give evidence. The punishment by the common law was whipping, and imprisonment to any extent, at the discretion of the court.-By the 4 Geo. I. c. 11, the court may either whip or transport for seven years; but in this case the convict of petty larceny always remained incompetent; so that a gentleman making a will to devise real property, called, as one of the three credible witnesses, a servant who had lived in his house many years with credit, to attest the will. The testator died, and his heir discovered that this servant many years before had been convicted at the 'uarter Sessions of petty larceny,—some trifling theft. In consequence of this, the will was declared void, which induced Lord Alvanley to bring in an Act (the 31 Geo. III. c. 35), by which it is enacted that no person shall be incompetent in consequence of being convicted of petty larceny.
So it is a common practice, when a prisoner is so convicted, to produce him as a witness against the receiver of the stolen goods. But in that case the receiver can only be indicted for a misdemeanour, and the witness's evidence ought to be corroborated, as in the case of an accomplice.--Note to Second Edition.
young, may perhaps make you conceive that you are under some greater disadvantage in making your defence than you would be, if your experience had been longer : but to remove any misapprehension you can have of that kind, it is very proper to put your Lordship in mind, that you have the good fortune to be tried for this fact in full Parliament, where no evidence will be received but such as must be manifest and plain, beyond all contradiction, so that you have nothing to fear here but your own guilt *.”
At the trials of the Earl of Warwick and Lord Mohun, for the murder of Mr. Coote, Lord Somers presided as Lord High Steward. Though he was the principal author of the Revolution, yet that great lawyer never adopted the modern new-fangled false distinctions between the Law and the Constitution ; but he addressed the Earl of Warwick in the following elegant and emphatic language. “ Your Lordship is called upon to answer this charge before the whole body of the House of Peers assembled in Parliament. It is a great misfortune to be accused of so heinous an offence; and it is an addition to that misfortune, to be brought to answer as a criminal before such an assembly, in defence of your estate, your life, and honour : but it ought to be a support to your mind, sufficient to keep you froin sinking under the weight of such an accusation, that you are to be tried before so noble, discerning, and equal Judges, that nothing but your own guilt can hurt you : no evidence will be received but what is warranted by law; no weight will be laid upon the evidence, but what is agreeable to justice.” Here that illustrious character nobly discriminates between the admissibility of evidence warranted by law, and that discretion and substantial justice which each was bound to exercise and discharge, according to the effect and operation of that evidence upon his conscience.
keep * Har. St. Tr. vol. IV. 512.
In Lord Macclesfield's impeachment, the Counsel for the noble Earl called a witness to prove what he had heard thirty-five years ago, from a person who was dead. The managers objected to the evidence ; upon which the Earl of Macclesfield, who had lately been Lord Chancellor of Great Britain, observed :-“ My Lords, what we are giving evidence of, is of a thing transacted thirty-five years ago ; the parties are all dead : he is about to give you an account of what he did, and was said to him at that time by his master in transacting that affair. If that person that said it were now alive, to be examined to it himself before your Lordships, it would not be evidence without examining him; but if dead, what he said concerning this fact may be given in evidence : it is concerning the party's