Approvers and accomplices.

§ 166. A striking exception to the common law rule which excluded the evidence of parties interested in the event of a suit, or question at issue, is to be found in the old system of allowing persons indicted for treason or felony to become approvers, and the modern one of receiving the evidence of accomplices,-the "socii vel auxiliatores criminis" of the civilians. The necessity for admitting this kind of evidence has been recognized by the laws of all countries, and is of extreme antiquity in our own (e). The reasons for it were thus explained by a very able judge, on an important occasion (ƒ) : "If it should ever be laid down as a practical rule in the administration of justice, that the testimony of accomplices should be rejected as incredible, the most mischievous consequences must necessarily ensue; because it must not only happen that many heinous crimes and offences will pass unpunished, but great encouragement will be given to bad men, by withdrawing from their minds the fear of detection and punishment through the instrumentality of their partners in guilt, and thereby universal confidence will be substituted for that distrust of each other, which naturally possesses men engaged in wicked purposes, and which operates as one of the most effectual restraints against the commission of those crimes, to which the concurrence of several persons is required. No such rule is laid down by the law of England or of any other country." At first sight it might seem that previous to the 6 & 7 Vict. c. 85, the objection to the testimony of such persons would have been properly ranged under those founded on infamy of character: but as objections of that nature could only be

(e) Approvers are, we believe, mentioned in the ancient treatise entitled "Dialogus de Scaccario. See also 12 Edw. IV. 10, B. pl. 26; 2 Hen. VII. 3, A. pl. 8.

(f) L. C. J. Abbott's Charge to the Grand Jury on the Special Commission in April, 1820; 33 Ho. St. Tr. 689.

supported by proof of a conviction of an offence, and judgment of the court thereon (g), it followed that a confession by a witness of any conduct, however infamous, only went to his credit; so that the true ground of objection to the evidence of approvers or accomplices arises from the obvious interest which they have to save themselves from punishment by the conviction of the accused against whom they appear. The old law of approvement, and the modern practice of admitting the evidence of accomplices, are thus fully and clearly stated by Lord Mansfield, C. J., in R. v. Rudd (h). "The law of approvement, in analogy to which this other practice," (i. e. of receiving the evidence of accomplices,) "has been adopted, and so modelled as to be received with more latitude, is still in force, and is very material. A person desiring to be an approver, must be one indicted of the offence, and in custody on that indictment: he must confess himself guilty of the offence, and desire to accuse his accomplices: he must likewise upon oath discover, not only the particular offence for which he is indicted; but all treasons and felonies which he knows of; and after all this, it is in the discretion of the court, whether they will assign him a coroner, and admit him to be an approver or not: for if, on his confession it appears, that he is a principal and tempted the others, the court may refuse and reject him as an approver. When he is admitted as such, it must appear that what he has discovered is true; and that he has discovered the whole truth. For this purpose, the coroner puts his appeal into form; and when the prisoner returns into court, he must repeat his appeal, without any help from the court, or from any bystander. And the law is so nice, that if he vary in a single circumstance, the whole falls to the ground, and he is condemned to be hanged; if he fail in the colour of a horse, or in circumstances of (h) Cowp. 331.

(g) Supra, § 138.

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time, so rigorous is the law, that he is condemned to be
hanged; much more, if he fail in essentials. The same
consequences follow if he does not discover the whole
truth: and in all these cases the approver is convicted
on his own confession. See this doctrine more at large
in Hale's Pleas of the Crown, vol. 2, p. 226 to 236;
Staund. Pl. Crown, lib. 2, c. 52 to c. 58; 3 Inst. 129.—
A further rigorous circumstance is, that it is necessary
to the approver's own safety, that the jury should believe
him; for if the partners in his crime are not convicted,
the approver himself is executed. Great inconvenience
arose out of this practice of approvement. No doubt,
if it was not absolutely necessary for the execution of
the law against notorious offenders, that accomplices
should be received as witnesses, the practice is liable to
many objections. And though, under this practice, they
are clearly competent witnesses, their single testimony
alone is seldom of sufficient weight with the jury to con-
vict the offenders; it being so strong a temptation to
a man to commit perjury, if by accusing another he can
escape himself. Let us see what has come in the room
of this practice of approvement. A kind of hope, that
accomplices, who behave fairly and disclose the whole
truth, and bring others to justice, should themselves
escape punishment, and be pardoned. This is in the
nature of a recommendation to mercy.
* The

accomplice is not assured of his pardon; but gives his
evidence in vinculis, in custody: and it depends on the
title he has from his behaviour, whether he shall be par-
doned or executed."

§ 167. But although in strictness a jury may legally (except where two witnesses are required by law) convict on the unsupported evidence of an accomplice or socius criminis (i), yet a judicious practice has grown

(i) See the authorities collected supra, § 135, n. (d). For the prac

tice of the civil law on this subject
see Mascard. de Prob. Concl. 158.

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yup, now so universally followed as almost to have the force of law, by which judges always advise juries to require such evidence to be corroborated in some material part by untainted testimony. It is not, however, every participation in a crime which will render a party an accomplice in it, so as to require his evidence to be confirmed (k). The nature of the confirmation in each case must of course depend very considerably on its peculiar circumstances; but a few general principles may be stated. First, then, it is not necessary that the story told by the accomplice should be corroborated in every circumstance he details in evidence; for, if so, the calling him as a witness might be dispensed with altogether (1). Again, notwithstanding some old cases to the contrary, it seems now settled that the corroboration should not be merely as to the corpus delicti, but should go to some circumstances affecting the identity of the accused as participating in the transaction (m). "A man," says Lord Abinger, C. B., "who has been guilty of a crime himself will always be able to relate the facts of the case; and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all (n)." Confirmatory evidence by the wife of an accomplice will not suffice, for they must for this purpose be considered as one person (o). Neither ought the jury to be satisfied merely with the evidence of several accomplices who corroborate each other (p).

(k) R. v. Hargrave, 5 Car. & P. 170; R. v. Jarvis, 2 Moo. & R. 40.

(1) 31 Ho. St. Tr. 980. (m) R. v. Farler, 8 C. & P. 106; R. v. Addis, 6 C. & P. 388; R. v. Webb, Id. 595; R. v. Wilkes, 7 C. & P. 272; R. v. Moores, Id. 270; R. v. Dyke, 8 C. & P. 261.

(n) R. v. Farler, 8 C. & P. 108. Similar language was used by Parke, B., in R. v. Parker, Kent Sp. Ass. 14 Vict., MS.

(0) R. v. Neal, 7 C. & P. 168. (p) 31 Ho. St. Tr. 1122—3; R. v. Noakes, 5 C. & P. 326; R. v. Magill, Ir. Circ. Rep. 418.

Issues from

Statutory exceptions.

§ 168. When an issue was directed from the Court of Chancery to be tried in a court of law, it was frequently made part of the order that the plaintiff or defendant should be examined as a witness. So when a cause was referred to arbitration from a court of law, it was usually part of the rule that the arbitrator be at liberty to examine the parties.


§ 169. The first general statutory exception to this part of the rule is contained in the 9 & 10 Vict. c. 95. That statute, after remodelling the County Courts, and extending their jurisdiction to £20, enacts in its 83rd section, that on the hearing or trial of any action or on any other proceeding under this act the parties thereto, their wives, and all other persons, may be examined, either on behalf of the plaintiff or defendant, upon oath, or solemn affirmation in those cases in which persons are by law allowed to make affirmation instead of taking an oath, to be administered by the proper officer of the court." This must not be looked on as an innovation introduced for the first time; for the old Court of Conscience and Court of Requests acts contained similar provisions. By the 6 Geo. IV. c. 16, s. 36, the Commissioners in Bankruptcy are empowered to "examine every bankrupt upon oath, either by word of mouth, or on interrogatories in writing, touching all matters relating either to his trade, dealings or estate, or which may tend to disclose any secret grant, conveyance or concealment of his lands, tenements, goods, money or debts, and to reduce his answers into writing, which examination so reduced into writing the said bankrupt shall sign and subscribe." The old bankruptcy act, 1 Jac. I. c. 15, s. 7, contained a similar provision. The 8 & 9 Vict. c. 48, has substituted a written declaration for an oath in such cases, but for a false declaration the party may be indicted for perjury, and the law as thus amended has been incorporated into the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, s. 17.

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