Atcheson v Everitt

atcheson versus everitt. Thursday, Feb. 1st, 1775. A Quaker's testimony on his affirmation, is admissible in an action of debt on stat. 2 Geo. 2, c. 24, against bribery. [Referred to, Noble v. Ahier, 1886, 11 P. D. 166.] This was an action of debt upon the stat. 2 Geo. 2, c. 24, sect. 7, against bribery. Plea, not guilty. Verdict for the plaintiff. On behalf of the defendant, it was moved last term, that there might be a new trial; because a Quaker had been received as a witness on his affirmation ; and it was objected, that this being a criminal cause, his evidence ought not to have been received. It was argued last term by Mr. Dunning, Mr. Popham, Mr. Rooke and Mr. Buller for the plaintiff; and by Mr. Mansfield and Mr. Morris for the defendant. Lord Mansfield then said, this question is very important, both as to all the Quakers in the Kingdom, and to the general admini-[383]-stration of justice. I wish, when the stat. 7 & 8 Win. 3, c. 34, was made, that the affirmation of a Quaker had been put on the same footing as an oath, in all cases whatsoever: and I see no reason against it; for the punishment of the breach of it is the same. But even the indulgence they enjoy under this statute, was obtained with much difficulty and struggle. The Legislature formerly looked upon Non-Conformists as criminal; and Quakers in particular, as obstinate offenders. This only served to increase their number : if they had been let alone, perhaps they would not have come down to these times. The more generous and liberal notions of the present times do not look upon 1COWF. 88*. ATCHESON V. EVEEITT 1143 real scruples in the light of an offence. The Statute 7 & 8 Wm. 3, c. 34, is, prima facie, made in ease of Quakers. Indeed, even at that time, they were safe where the Attorney-General could controul; but they wanted to be secure from the persecution of private individuals. In this Act, however, there is an exception to their being admitted aa witnesses in criminal causes, and serving on juries. The question therefore is, what the statute means by the words "criminal causes 1" Diligent search has been made by Sir James Burrow, and more so by my brother Aston, for precedents : and I believe they have furnished all the cases that are to be found. The result of those cases is, that the Courts of late years have, in favour of the Quakers, relaxed their former severity, Their affirmation has been received in the case of an appointment of overseers. 2 Str. 1219. So in the case of an attachment against a Quaker himself. No case has been found in which it has been refused, where the action, though in form a criminal action, in substance is a mere action between party and party. I thought there was one upon the Statute of Hue and Cry, 27 El. c. 13, but the ground upon which it was refused in that case was, that ohe Quaker could not lay a foundation for the action without an affidavit. Vide sect. 11. In cases, where an action and an indictment both lie for the same act; as in assault, imprisonment, fraud, &c. a Quaker is an admissible witness in the action, though riot on the indictment. There being no case in point, it is a material circumstance, that actions for penalties, are to a variety of purposes considered as civil suits. They may be amended at common law. To be sure, the action in this case is not only given to recover a penalty, but it is attended likewise with disabilities. Therefore, it partakes much of the nature of a criminal cause. Moreover, the offence itself is not merely makim prohibitum, by statute, but it [384] was indictable at common law. Upon general principles, I think the affirmation of a Quaker ought to be admitted in all cases, as well as the oath of a Jew, or a Gentoo, or of any other person who thinks himself really bound by the mode and form in which he attests. But how the law is in respect of this particular case, I am at present not at all decided in my opinion. Aston, Justice.-This action certainly partakes of a criminal nature. The crime itself was punishable at common law; and that punishment is now increased by additional penalties and disabilities. I think an affirmation ought really to be put upon the same footing as an oath. But at present there is no authority to decide that this is a case in which it can be so, by law. Therefore I am for time to advise. The Court, next day, ordered this cause and another, viz. Atcheson v. Goutjh, which depended precisely upon the same question, to stand over 'till this term. Mr. Morris now argued for the defendant. It will be contended that a Quaker's affirmation ought in all cases to be received, where the oath of another man is received. We are not now in the case of a man who, in conformity to the ceremonies of his own religion, refuses to take the general oath prescribed by law : but this is the case of a person who refuses to take any oath at all. Till the Statute 7 & 8 Wm. 3, there was no doubt about not receiving a Quaker's affirmation. But that statute, in compliance with the prejudices of this sect, broke in upon the rule of the common law, partly in favour to them, and partly for the general benefit of the subject. At the same time the Legislature drew the line, by providing " that nothing should enable the affirmation of a Quaker to be received in any criminal cause:" and another stat. 22 Geo. 2, c. 30, sect. 3, says, " in any criminal case." But the Court has already decided that cause and case are the same. The question therefore is, whether the present is a criminal case or not? Crimes and punishments are necessary attendants on each other. Punishment is a legal term, and is understood to be in consequence of some offence. The charge against the defendant is a charge of bribery. The statute upon which the action is brought, treats bribery as an offence, throughout, and the person committing it is an offender. Consequently it considers bribery as a crime. It will be said, on the contrary, that this action to recover the penalty prescribed by the statute, is merely a civil action. That is not so. For bribery waa a crime at common law : and the penalty given by the statute is only part of the fine due at common law to the pub-[385]-lic in satisfaction of the offence : besides which, the statute inflicts additional pains and penalties which are also incurred by the judgment. Secondly. To consider this case upon the Statutes of Jeofails. Though the 1144 ATCHESON V. EVERITT 1 COWP. 386. proceedings in a civil action are amendable at common law, yet this case, more than any other penal action, is not within the Statute of Jeofails: and cited Moore versus Hussey, Hob. 101, where in an action on Stat. Westminster 2, c. 35, the Court of King's Bench held "that the punishment of two years imprisonment made it a penal action ;" aod therefore reversed the judgment given in the Common Pleas in that case for the plaintiff, " because there were no plegii de prosequendo entered." Thirdly. Upon authorities. A Quaker's testimony is not admissible upon a rule for an information. 2 Strange, 872. Nor upon rules to answer the matters of an affidavit. 2 Str. 946. With respect to...