reasonable; but, unless the new law be limited in its operation by judicial precaution, it may be presumed that, notwithstanding the extended penalties of perjury, the credibility of evidence will be lessened infinitely in numberless cases by the increased facilities of subterfuge which are extended to Jesuitical casuistry.

An oath, or an affirmation, when it is allowed, is regarded as an indispensable condition precedent to the admissibility of a witness, on the Common Law doctrine, that a mere statement of a fact is entitled to no credit. For even the admissibility of affirmations by the existing law rests on principles which are widely different from those of a simple narrative. Virtually, the new law is the same as the old; and the diversity is one of terms rather than of essence. The same basis of religious belief, and the same temporal penalties are, in both cases, the conditions and safeguards of competency and credibility. The new principle is identical with the old, because it is applicable only to witnesses who succeed in convincing the judge that they believe falsehood to be as sinful and criminal an act as perjury.

The Common Law doctrine on this head is contained in the well-known case of Omichund v. Barker. 1 The question there arose on the admissibility in evidence of some depositions which had been made on oath by some Gentoos before a Chancery Commission in the East Indies. It had been thought up to that time, on the authority of Coke, 2 that none but Christians were competent witnesses. He had laid it down that " an infidel cannot be a witness ;" and it was clear that, under the designation of infidel, he classified all who were not Christians. It was doubtful whether Jews were competent; it was clear that Turks and heathens generally were incompetent. Omichund v. Barker exploded and liberalized the previous doctrine. Willes, C. J. undertook to show that Lord Coke's proposition was "without foundation, either in Scripture,

1 Willes, 538; 1 Sm. L. C. 194.

2 Co. Litt. 6. b.

reason, or law;" and gave it as his opinion, which may be regarded as the existing law, that,

XII. "Such infidels who believe in God, and that he will punish them if they swear falsely [in some cases and under some circumstances], may and ought to be admitted as witnesses in this, though a Christian country."

And,

XIII. "Such infidels, if any such there be, who either do not believe in God, or if they do, do not think that he will either reward or punish them in this world or in the next, cannot be witnesses under any case or under any circumstances, for the plain reason, because an oath cannot possibly be any tie or obligation upon them."

The above words of the Chief Justice's judgment, which are placed in brackets, are so placed, because the limitation which they seem to imply is not conceived to be law at the present day. It is conceived that that law is embodied in the principle as stated above;1 and that the witness is incompetent, unless he believes in a God who will certainly punish him, either in this life or the next, for perjury in the particular case in which he is sworn to tell the whole truth. 2

The mode of administering an oath has been regulated by the 1 & 2 Vict. c. 105. It is there enacted,

1 Sup. p. 19.

2 See note to Omichund v. Barker, 1 Sm. L. C. sup.

.

"That in all cases in which an oath may lawfully be and shall have been administered to any person, either as a juryman or a witness, or a deponent in any proceeding, civil or criminal, in any Court of Law or Equity in the United Kingdom, or on appointment to any office or employment, or on any occasion whatever, such person is bound by the oath administered, provided the same shall have been administered in such form and with such ceremonies as such person may declare to be binding; and every such person, in case of wilful false swearing, may be convicted of the crime of perjury, in the same manner as if the oath had been administered in the form and with the ceremonies most commonly adopted."

The recent statute (17 & 18 Vict. c. 125), would appear to leave the statutory exemptions of Quakers, Moravians, and Separatists as they were before. All members of these sects, and all who have been members of the two former sects, may claim, as of right, to give their evidence on affirmation.' In all other cases the judge will, in his discretion, concede or refuse a witness the privilege of substituting an affirmation for an oath.

SECT. 3. On the Incompetency of Parties to Criminal Proceedings.

The 14 & 15 Vict. c. 99, s. 3, enacts that—

"Nothing herein contained shall render any person who, in any criminal proceeding, is charged with the commission of

(A) Any indictable offence:

or

(B) Any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself."

It has long been held that a prosecutor, in a criminal proceeding, is a competent witness against a prisoner ; and although there were formerly exceptions to the

1 3 & 4 Will. 4, c. 49; 3 & 4 Will. 4, c. 82; 1 & 2 Vict. c. 77; Doran's case, 2 Moo. C. C. 37.

rule, they have all been removed by Lord Denman's Act and other statutes. 1

The same act (6 & 7 Vict. c. 85) by rendering all persons competent as witnesses notwithstanding they may may have an interest in the matter in question, or the event of the trial, has removed all doubt as to the admissibility of informers and accomplices as witAll such persons are competent witnesses; but the objections to their credibility remain as before; and it is understood to be a settled principle, that—

nesses.

XIV. A prisoner ought not to be convicted upon the evidence of any number of accomplices if unconfirmed or uncorroborated by other testimony."

The reasonableness of this rule is obvious from the suspiciousness which is inseparable from this kind of evidence. The Legislature has held that this quality is not sufficient of itself to justify them in excluding such evidence from a jury; or in laying down any principle by which it shall be denied all the elements of credibility. It may be tendered from motives of conscientious penitence; but ordinary experience, and knowledge of human nature, must convince every one that it is still more likely to be tendered from motives of interested treachery or revenge; and in every such case the amount of credibility sinks to a minimum. When the purity and solemnity of an oath have been tarnished by the mere contingency of such influences, they cannot be restored to their primal sanctity by any quantity of direct personal asseveration. Such evidence must always come before a jury, exposed and attenuated by irresistible sentiments of distrust.

1 R. v. Boston, 4 East, 581; Gilb. Ev. 123; Archbold's Cr. Pr. by Welsby, 12th ed. 225.

R. v. Noakes, 5 C. & P. 236.

It is therefore held that the evidence of accomplices ought not merely to be corroborated, and that in the absence of corroboration a prisoner ought to be acquitted, but that the corroboration of an accomplice's evidence ought to go to the identity of the prisoner: i. e., it should satisfy a jury that the prisoner is the person who committed the crime with which he is charged by the accomplice. This doctrine is illustrated in the case of leg. v. Foster.1

There the prisoner was indicted for night-poaching: and the only evidence was that of an accomplice who swore to the fact of the prisoner being one of a party; but the only confirmation of the statement was, that on the same evening the witness and the prisoner had been seen drinking together at a public-house which was within one hundred and fifty yards of the prisoner's house, and four miles from the preserve. It was also proved that the prisoner frequented the house; and that he and the accomplice left the house together when the house was closed.

Upon the opening of the case Lord Abinger, C. B., said :

66

'I am clearly and decidedly of opinion, and always have been, that there must be a corroboration as to the particular prisoner." And in summing up: "I am strongly inclined to think that you will not consider the corroboration in this case sufficient. No one can hear the case without entertaining a suspicion of the prisoner's guilt, but the rules of law must be applied to all men alike. It is a practice, which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice unless the accomplice is corroborated in some material circumstance. Now, in my opinion the corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of

1 8 C. & P. 107.

D