admitted, and the issue reduced to one of law. But as the same object can be obtained by taking a special verdict, or a verdict subject to a special case, and as these are more customary expedients, we need not enlarge here on a topic which belongs more strictly to treatises on the practice of courts. We are now to consider the competency of witnesses. It has been already stated,' that all objections to the competency of witnesses are for the decision of the judge, who will, if there appear to be any doubt on the subject, examine the witness before allowing him to be sworn. This preliminary examination is termed the examination on the voir dire, i. e. vrai dire. Under this title it may be considered to be the general and established principle of evidence, that All persons of sound and adult mind, believing in the religious obligation of an oath, and including generally, but not universally, the parties to civil proceedings, but not a prisoner or defendant on a criminal charge, are competent and compellable witnesses in every court of justice concerning the matters in issue. Under this rule the first consideration will be SECT. 1. On Incompetency from Defect of Understanding in Witnesses. Persons who have not the use of reason are, from their infirmity, utterly incapable of giving evidence, and are therefore excluded as incompetent witnesses.2 This description of incompetency may be either constitutional or accidental : and in the latter case it may be either temporary or permanent. It may also 1 Sup. p. 9. 21 Phill. 7. arise from imperfect development. Hence we have three classes of incompetent witnesses :— 1. Idiots. 2. Lunatics. 3. Children. 1. An idiot is one that hath had no understanding from his nativity, and therefore is by law presumed never likely to attain any; and such a person is incapable of giving evidence. But deaf and dumb persons, if they are of sufficient understanding, and know the nature of an oath, may give evidence either by signs, or through an interpreter, or in writing.2 But it is stated by Mr. Phillipps,3 on the authority of Blackstone, that a man who is born deaf, dumb, and blind is looked upon by the law as in the same state with an idiot, and is therefore an incompetent witness. This position appears to be very disputable. It is stated in a work of high authority, that the presumption that a person born deaf, dumb, and blind from his nativity is an idiot, is only a legal presumption, and is therefore open to be rebutted by evidence of capacity. This would seem to be the more correct doctrine; and there can be little doubt that in such a case as that of the well-known Laura Bridgman, who has been deaf, dumb, and blind from her birth, and is yet endowed with a high degree of intelligence, which she communicates by signs, no objection of incompetency could be supported. 2. A lunatic, or non compos mentis, is one who hath had understanding, but by disease, grief, or other accident, hath lost the use of his reason.5 As long as the suspension of the intelligence continues, the lunatic is an incompetent witness: but there 1 Bl. Comm. 303. 21 Hale P. C. 34; Rushton's case, 1 Leach C. C. 455; Morrison v. Lennard, 3 Car. & P. 127. 31 Phill. 7. Chitty's Med. Jur. 1. 301; contrà, 1 Bl. Comm. 304. 1 Bl. Comm. 304. appears to be no doubt that his competency is restored during a lucid interval.' Nor will the disability extend to cases of mere monomania, nor where the hallucination permits the witness to understand the nature of the duty which is expected from him. 3. There is no epoch of legal discretion under which an infant is an incompetent witness. The rule that an infant under seven years of age cannot commit a felony, because the law presumes him conclusively not to have sufficient intelligence for the act, is not applicable to the law of evidence. Age is immaterial; and the question is entirely one of intelligence, which, whenever a doubt arises, the judge will ascertain to his own satisfaction, by examining the infant on his knowledge of the obligation of an oath, and the religious and secular penalties of perjury. But although tender age is no objection to the infant's competency, he cannot, when wholly destitute of religious education, be made competent by being superficially instructed just before a trial with a view to qualify him.2 But a judge may, in his discretion, postpone a trial, in order that the witness may be instructed in the nature of an oath. The inclination of judges, however, is against this privilege.3 SECT. 2. On Incompetency from Defect of Religious Principle. The principle on this head is, that No person is a competent witness unless he believes in a Supreme Being who will punish him, either in the present or a future life, for perjury. It has been the established principle, until very 1 Com. Dig. Testim. (A. 1.); s. v. Tayl. Med. Jur. 783. recently, of English law, that no witnesses are to be believed unless they deliver their evidence on oath. The only exceptions to this rule were statutory, and were granted reluctantly by the Legislature to satisfy the conscientious scruples of Quakers, Moravians, and Separatists; and members of these sects were accordingly allowed to give evidence on affirmation instead of oath. This principle has now been extended. By 17 & 18 Vict. c. 125, s. 20, it is enacted— "If any person, called as a witness, or required to make an affidavit or deposition, shall refuse or be unwilling, from alleged conscientious motives, to be sworn, it shall be lawful for the court, or judge (or other presiding officer, or person qualified to take affidavits or depositions), upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following, viz. : “'I, A. B., do solemnly, sincerely, and truly affirm and declare, that the taking of any oath is, according to my religious belief, not lawful; and I do also solemnly and truly affirm and declare,' &c., which solemn declaration shall be of the same force and effect as if such person had taken an oath in the usual form."1 And by the 89th section of the same act:— or "Any person who shall, upon any examination upon oath or affirmation, or in any affidavit in the proceedings under this act, wilfully and corruptly give false evidence, or wilfully and corruptly swear affirm anything which shall be false, being convicted thereof, shall be liable to the penalties of wilful and corrupt perjury." Before the passing of this act, when a witness, who 1 cf. 20 & 21 Vict. c. 77, s. 27 (Act to Amend the Law of Probate). A did not belong to any one of the exempted sects, objected, on alleged conscientious grounds, to be sworn, the judge was bound, notwithstanding, to order an oath to be administered to the witness; and, in the event of continued contumacy, would direct him to be committed. This course was adopted by Wightman, J., at the summer assizes for Devonshire, 1854.1 lady, who described herself as a member of the society of Plymouth Brethren, refused, from alleged conscientious motives, to be sworn as a witness; and the judge, after commenting severely on the obstructions to public justice that must arise if such scruples were tolerated, committed her to prison during the term of the assizes. It will be seen that the theory of this practice has been much shaken by the recent act; but it is apprehended that it will still be maintained whenever the judge distrusts the sincerity of the alleged conscientious objections of a witness. It will, therefore, be by no means a matter of course for the judge to dispense with the solemnity of an oath; but the privilege will probably be allowed only in rare cases, and after a searching scrutiny into the nature of the witness's scruples. There is no doubt that the law on this point, previously to the late act, was anomalous and unreasonable; 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. 1 MS. |