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Chap. ii.

Of the Incompetency of Witnesses from Want of Understanding.

VJTTHEN a witness appears, he must be regularly sworn, * * unless an objection is made to his competency. An exception to the credibility of a witness cannot exclude him from being sworn. The exception of kindred, for example, although it is a good cause of challenge against a juror, is not an objection to the competency of a witness; a father is a competent witness for or against his son, and a master for his servant, or the servant for his master. 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. Whether there is any evidence, is a question for the judge: whether it is sufficient, is for the jury(1). And whatever antecedent facts are necessary to be ascertained, for the purpose of deciding the question of competency, as, for example, whether a child understands the nature of an oath — or, whether the confession of a prisoner was voluntary — or, whether declarations, offered in evidence as dying declarations, were made under the immediate apprehension of death — these, and other facts of the same kind, are to be determined by the court, and not by the jury.

By the law of England the objections to the competency of witnesses are fourfold. The first ground of incompetency is want of reason or understanding: a second

(i) Per Bullet J., Camp, of Carpenters, Ice. v. Hi/ward, Doug. 375. Bull. N. P. ao?.

ground ground is defect of religious principle: a third ground arises from conviction of certain crimes, or from infamy of character: the fourth and most general cause of incompetency is interest. Either of these grounds of incompetency will exclude the witness from giving any kind of evidence. "I find no rule less comprehensive than this," said Mr. Justice Lawrence, in the case of Jordaine v. Lashbrooke(i), " that all persons are admissible witnesses, who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and who are not influenced by interest."

An inquiry into these several causes of incompetency forms the subject of the four following chapters.

First, as to incompetency for want of understanding;

Persons, who have not the use of reason, are from their infirmity utterly incapable of giving evidence: as persons insane, idiots, and lunatics under the influence of their malady (2). But lunatics and other persons, who are subject to temporary fits of insanity, may be witnesses in their lucid intervals, if they have sufficiently recovered their understandings (3). And a person born deaf and dumb is not on that account incompetent, but, if he has sufficient understanding, may give evidence by signs with the assistance of an interpreter. (4)

Children. A witness must not only have a competent share of reason, but also know the nature of an oath: children, therefore, who are not able to understand its moral obligation, cannot be examined (5). There seems to be no precise age fixed, at which infants are excluded from being

(1) 7T.R. 610. (4) Ruston'i cue, I I.each, Cr. C.

(2) Co. Lit. 6. b. 6 Com. Dig. tit. 455. "Testmoignc," A. 1. (5) Com. Dig. Ib. BulL N. P. 193

(3) Com.Dig.H,. Gilb.Ev.130.

witnesses. At one time, indeed, their age was considered as the criterion of their competency; and it was a general rule, that none could be admitted under the age of nine years, very few under ten (i); which was in some measure denying them the protection of law against secret acts of violence (2). A more reasonable rule has been since adopted; and the admissibility of children is now regulated not by their age, but by their apparent sense and understanding. In Brazier's case, on an indictment for assaulting an infant of five years of age with intent to ravish her, it was agreed by all the judges, that children of any age might be examined on oath, if capable of distinguishing between good and evil: but that they cannot be examined, in any case, without oath (3). This is now the established rule in all cases, criminal as well as civil, and whether the prisoner is tried for a capital offence, or for one of an inferior nature. When the child has appeared not sufficiently to understand the nature and obligation of an oath, judges have often thought it necessary, for the purposes of justice, to put off the trial of the prisoner, directing that the child, in the mean time, should be properly instructed.

If a child is too young to be sworn, it follows as a necessary consequence, that any account, which it may have given others, ought not to be admitted. On an indictment, therefore, for a rape on a child five years old, where the child was not examined, but an account of what she had told her mother about three weeks after the transaction, was given in evidence by the mother, and the jury convicted the prisoner, principally, as was supposed, on that evidence: the judges, on a case reserved for their opinion, thought the evidence clearly inadmissible, and the prisoner was accordingly pardoned. (4)

(\) R. v.Travers, 1 Stra. 700.; and 443.4. 2"U. N. P. 193. 1 Leach, Cr. cases in East. P. 6. 442. S. P. 1 Hal. C. 137. 4Blac. Com. i!4. P. C. 301. 1 Hal. P. C.1 78. (4) *• v. Tucker, 1808, Mo. See

(2) Bull. N. P. 193. alio R. v. Brazier, supra.

(3) Brazier's case,i779, lEast.P.C.

When

When the evidence of children is admitted, says Mr. Justice Blackstone (1;, it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. It seems, however, impossible to lay down any general rule on this subject, applicable to all cases. A prisoner may be legally convicted on such evidence, alone, and unsupported; and whether the account of the witness requires to be corroborated in any part, or to what extent, is a question exclusively for the jury, to be determined by them on a review of all the circumstances of the case, and especially of the manner in which the child has given his evidence. The evidence may be so circumstantial, so plain and clear, and so free from all mixture of partiality and ill will, as to leave no reasonable doubt of the prisoner's guilt, although it stands unsupported by other witnesses.

(1) 4 Com. 214.

CHAP. III.

.Of Incompetency from Defect of Religious Principle.

rj^ HE second ground of incompetency, which has been mentioned, is defect of religious principle.

All witnesses, before they are examined, are required to take an oath, by which they appeal to the Supreme Being for the truth of the evidence which they are about to give. This necessarily implies a belief, that, by the laws of God, truth is enjoined, and falsehood punished. It is not sufficient, that a witness believes himself bound to speak truth from a regard to character or the common interests of so

ciety, or from fear of punishment (i). Such motives have indeed their influence, and may come in aid of the religious obligation, but they are of a nature so capricious and infirm, and so liable to be perverted, as to afford little or no security for the observance of truth. Our law therefore, like that of most other civilized countries, requires a witness to believe, that there is a God and a future state of reward and punishment, and that by taking the oath he imprecates the divine vengeance upon himself, if his evidence shall be false. (2)

Atheists, and such infidels as profess not any religion, Atheists that can bind their consciences to speak the truth, ave ex- *c. eluded from being witnesses (3). Lord Coke indeed says generally, that an infidel cannot be a witness (4), in which denomination he intended to comprise Jews as well as Heathens (5): and Mr. Serjeant Hawkins thought it a sufficient objection to the competency of a witness, that he believed neither the Old nor the New Testament (6). Lord Hale however was of a different opinion, and strongly points out the unreasonableness of excluding indiscriminately all Heathens from giving evidence, as well as the inconsistency of compelling them to swear in a form, which they may possibly not consider binding. "It were a very hard case, he says, if a murder, committed here in presence only of a Turk or a Jew, should be dispunishable, because such an oath should not be taken, which the witness holds binding, and cannot swear otherwise, and possibly might think himself under no obligation, if sworn according to the usual style of the courts of England ;j)." All doubts upon this subject, however, are now removed. In the case of Omichund and Barker, (which came before Lord Chancellor Hardwicke, assisted by Lee C. J., Willes C. J., and Parker C. B.),

(x) Ruston's case, i Leach Cr. C. (4) Co. Lit. 6.i. 455. (5) alnst. .506. 3 Inst. 16c. 1 Atk.

(2) White's case, Leach Cr.C. 48a. 43. Willes, 541.

I Atk. Rep. 19. 48. (6) Hawk. P. C. h. 2. c.46. s. 148.

(3) BuU. N. V. 292. 1 Atk. 40. (7) 1 Hale P. C. 279. 45. 48. GilK E\r. 129.

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