PARDON. The Royal Pardon may either be granted simply, which gives a complete discharge, and immunity from the punishment decreed; or conditionally, which operates a commutation of a capital sentence, or one inflicting a very high measure of punishment, into a milder.* A pardon may be pleaded in bar of trial; if full, it at once destroys the end and purpose of the charge, by remitting that punishment which the prosecution is calculated to inflict; if conditional, the performance of the condition must be shewn; thus a soldier arraigned for desertion may plead a general pardon offered by her Majesty, and prove that he surrendered himself within the stipulated period.† Tytler. Simmons. CHAPTER IV. WITNESSES. ALL persons, whatever their religion, or country may ́ be, who have the proper use of their reason, are to be received, and examined as witnesses, having been previously sworn according to the prescribed oath, (vide Oath) excepting such as are infamous, or those who are interested in the cause. A person, who has no idea of the being of a God, or of a future state of rewards and punishments, cannot of course be admitted as a witness; nor can a person who does not profess any religion, which may bind his conscience to tell the truth. Objection to the competency of a witness must be made previous to swearing. Persons are rendered infamous by having been attainted of false verdict, or convicted of treason, perjury, (vide Perjury) forgery, or of other crimes of a heinous nature. But no person can be rejected on. account of infamy, unless the record of his conviction, or a copy thereof, be produced.* A pardon of treason, or felony, even after conviction, or attainder, not only takes off every part of the punishment, but also clears the party from the legal disabilities of infamy, and all other consequences of his crime. The crime may however still be objected against him, as affecting his credit; but cannot be urged against his competency as a witness. The pardon itself under the great seal must however be produced, to prove that the witness is competent.† Desertion is not a cause of incompetency, though a felony at common law.‡ An exception to the credibility of a witness cannot exclude him from being sworn. The exception of kindred, for instance, although it is a good cause of challenge against a juror, is not an objection to the competency of a witness. Such exceptions may affect the credibility, but they do not affect the competency of witnesses. As it is the province of the jury to consider what degree of credit. ought to be given to evidence, so it is for the Court alone to determine whether a witness is competent, or the evidence admissible.† A child, if fourteen years of age, may be sworn as a witness; and if under that age, and it appears that he, or *Kennedy. † Phillipps. Simmons, she, has competent discretion, and has acquired sufficient religious knowledge, may also be sworn: but in no case shall a child be admitted as evidence without oath. Husbands, and wives, can neither be witnesses for, nor against, each other in any action wherein one of the married persons is a party; nor are they permitted to give evidence, where such may tend to criminate each other collaterally. But the wife may lawfully give evidence in a suit, or trial, between other persons, of which the issue may be contingently beneficial, or disadvantageous to her husband; and vice versa; though the credibility of such testimony must of course be suspicious. On a criminal offence against the person of either, a husband, or wife is a competent witness. But every other relation of kindred, as well as servants in the cause of their masters, are competent witnesses.* On a charge before a Court Martial for a breach of military discipline, the wife of the prosecutor is a competent witness. Her testimony may be suspicious in an equal degree with that of the prosecutor, but there is no rule, or reason, to exclude it. The proceedings being at the suit of the Crown, as in criminal cases, her evidence would be admitted upon the same principle as that of the prosecutor t A deaf person, or one who has lost the power of speech, may be questioned, or give evidence by writing, or by signs. * Kennedy. † Simmons. A deaf and dumb person, to whom the knowledge of God, and the existence of a future state has been conveyed, is a competent witness, and may be examined by writing, or through the medium of a person, capable of conversing with him by signs, and sworn to interpret faithfully.* A prisoner, if not under trial, is a competent witness. An accomplice, if not under trial, or convicted, is a competent witness, either for, or against those, who are accused of having been concerned with him in the commission of the same offence, but his evidence should be received and weighed with caution.† A person, who has received a reward of any kind, or is promised the release of any obligation by the party who calls for his testimony, is disqualified as a witness.t The prosecutor, and prisoner are both allowed to take exceptions to the competency of a witness, which are to be stated in open court, and recorded on the proceedings of the trial, after which the Court decide on their validity.f A person in the employment of government cannot be required to divulge the nature of his instructions, or any confidential communications. Persons, who are the channel by means of which detection of crime is effected, are not to be unnecessarily * Simmons. † Kennedy. Tytler. |