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law and the customs of the realm. He adds, with irresistible force, that they are still more necessary to defend indictments of felony, than causes of a less important nature. On this, as on many other great and interesting subjects, we have renewed the ancient common law. It is enacted by a law of the United States,' that persons indicted for crimes shall be allowed to make their full defence by counsel learned in the law. It is declared by the constitution of Pennsylvania," that, in all criminal prosecutions, the accused has a right to be heard by him. self and his counsel.
In England, it has been an ancient and commonly received practice, that, as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of witnesses. This doctrine was so unreasonable and severe, that the courts became ashamed of it, and gradually introduced a practice of examining witnesses for the prisoner: but they stopped in the middle of the road to redress they would not examine the witnesses upon their oaths. The consequence was, that juries gave less credit to wit, nesses produced on the part of the prisoners, than to wit. nesses produced on the part of the crown.
This practice, however, like the last, is not agreeable
the common law, as it was in ancient times received in England. To say the truth, says my Lord Coke,' we never read in any act of parliament, ancient author, bookcase, or record, that in criminal cases, the party accused
u Mir. c. 3.
1. cong. 2. sess. c. 9. s. 29.
w Art. 9. s.
$ 4. Bl. Com. 352.
y 3. Ins. 79.
should not have witnesses sworn for him; and therefore there is not so much as a scintilla juris against it. By a statute made in the reign of Queen Anne, the ancient common law on this point is renewed in England ; and witnesses for the prisoner shall be examined upon oath, in the same manner as witnesses against him. ?
On this subject, the ancient common law, as might have been expected, is renewed in the United States and in Pennsylvania. By a law of the former it is provided, that persons indicted for crimes shall be allowed to make proof in their defence by lawful witnesses; and that, to compel the appearance of their witnesses, the court shall grant the same process as is granted to compel witnesses to appear on the prosecution. By the constitution of Pennsylvania, it is declared, that, in all criminal prosecutions, the accused has a right to have compulsory process for obtaining witnesses in his favour.
The compulsory process for obtaining witnesses is a subpena ad testificandum, which commands them to appear at the trial. If this command is disobeyed, an attachment issues for the contempt.
In honour of the Founder of Pennsylvania it ought to be observed, that, in the charter of privileges " which he granted to its inhabitants, he declared, "that all criminals shall have the same privileges of witnesses and counsel as their prosecutors.” On this as on many other subjects, Pennsylvania preceded England in point of liberal and enlightened improvement.
St. 2. An. st. 2. c. 9.
1. cong. 2. sess. C. 9. s. 29.
Art. 9. s. 9.
C 3. Bl. Com. 369.
d S. 5.
The constitution of Pennsylvania declares, that, in all criminal prosecutions, the accused has a right to meet the witnesses face to face. Those who know the nature and the mischiefs of secret accusations, know the importance of this provision, and the security which it produces.
By the constitution of the United States, “no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open' court. The subject of confession has been already treated.
The courts of justice, in almost every age, and in almost every country, have had recourse to oaths, or appeals to heaven, as the most universal and the most powerful means to engage men to declare the truth. By the common law, before the testimony of a witness can be received, he is obliged to swear, that it shall be the truth, the whole truth, and nothing but the truth.
The testimony of witnesses is one species of evidence, as we formerly saw in those lectures, in which the great subject of evidence was opened, and but just opened. The general principles, upon which testimony is received and believed, were then stated in a short and summary manner, as connected with some native propensities of the human mind. The important distinction between the credibility of witnesses and their competency was explained at large," when I discoursed concerning the separate provinces of courts and juries. I observed, that every intelligent person, who is not infamous or interested,
e Art. 9. s. 9.
f Art. 3. s. 3.
& Ante, vol. 2. p. 88. et seq.
\ Ante. vol. 2. p. 375–380.
is a competent witness. The common law coincides, in this point, with the law of Athens : for, by that law, no man could be a witness in his own cause ; and he who, by his ill behaviour, had rendered himself infamousalepos-was deemed unworthy of credit.
The Marquis of Beccaria is of opinion, that the objection against the competency of a witness should be confined altogether to his interest; and that his infamy should not exclude him. Every man of common sense, says he, every one whose ideas have some connexion with each other, and whose sensations are conformable to those of other men, may be a witness; but the credibility of his testimony will be in proportion as he is interested in declaring or concealing the truth. Hence it appears how irrational it is to exclude persons branded with infamy; for they ought to be credited when they have no interest in giving false testimony.j
If this subject is investigated upon principle, it will, perhaps, be found, that the practice of the law is more congenial to the native sentiments of our mind, than are the speculations of the ingenious philosopher.
Belief is the end proposed by evidence of every kind. Belief in testimony is produced by the supposed veracity of him who delivers it. The opinion of his veracity, as we saw when we examined the general principles of testi. mony,k is shaken, either when, in former instances, we have known him to deliver testimony which has been
i 1. Pot. Ant. 117.
į Bec. c. 13.
k Ante, vol. 2. p.
false; or when, in the present instance, we discover some strong inducement which may prevail on him to deceive. The latter part of this observation applies to interested witnesses; and the application to them is admitted to be a proper one, and to be sufficient to exclude them from testimony. But who is a person infamous in the
of the common law? He who has been convicted of an infamous crime. What, in the eye of. the common law, is an infamous crime? When we investigated the true meaning of the felleus animus, according to the common law, we found that it indicated a disposition, deceitful, false,' and treacherous.' He who is convicted of an infamous crime, is one who has been proved guilty of some conduct, which evinced him to have been false-to have committed the crimen falsi; of which so many different grades--from treason to cheat, and both included are known to the law.
It may, however, be urged, on the principles of Beccaria, that to the conduct of which he has been convicted, he was probably drawn by a motive of interest; and that, if no such motive exists in the present instance, the inference from the past to the present is without foundation. To this it may be justly answered, that the reason why interest excludes a witness is not, because it certainly will, but because it possibly may, occasion a deviation from the truth; and because this deviation may be produced even by an involuntary and imperceptible bias, which interest will sometimes impress upon minds intentionally honest. That this last consideration has great weight in the judgment of the law, is evident from one of the modes which it adopts to discover the existence
} Ante. p. 23.