Virtually, the new law is the same as the old; and the diversity is one of terms rather than of essence. The same basis of religious belief, and the same temporal penalties are, in both cases, the conditions and safeguards of competency and credibility. The new principle is identical with the old, because it is applicable only to witnesses who succeed in convincing the judge that they believe simple falsehood to be as sinful and criminal an act as perjury.

The Common Law doctrine on this head is contained in the well-known case Omichund v. Barker. The question there arose on the admissibility in evidence of some depositions which had been made on oath by some Gentoos before a Chancery Commission in the East Indies. It had been thought, up to that time, on the authority of Coke,2 that none but Christians were competent witnesses. He had laid it down that "an infidel cannot be a witness;" and it was clear that, under the designation of infidel, he classified all who were not Christians. Omichund v. Barker exploded and liberalized the previous doctrine. Willes, C. J., undertook to show that Lord Coke's proposition was "without foundation, either in Scripture, reason, or law;" and gave it as his opinion, which may be regarded as the existing law, that

"Such infidels who believe in God, and that he will punish them if they swear falsely [in some cases and under some circumstances], may and ought to be admitted as witnesses in this, though a Christian country."

And,—

"Such infidels, if any such there be, who either do

not believe in God, or if they do, do not think that he will either reward or punish them in this world or in the next, cannot be witnesses under any case or under any circumstances, for the plain reason, because an oath cannot possibly be any tie or obligation upon them."

The above words of the Chief Justice's judgment, which are placed in brackets, are so placed, because the limitation which they seem to imply is not conceived to be law at the present day. It is conceived that that law is embodied in the principle as stated above; and that the witness is incompetent, unless he believes in a God who will certainly punish him, either in this life or another, for perjury in the particular case in which he is sworn to tell the whole truth.2

The mode of administering an oath has been regulated by the 1 & 2 Vict. c. 105. It is there enacted

"That in all cases in which an oath may lawfully be and shall have been administered to any person, either as a juryman or a witness, or a deponent in any proceeding, civil or criminal, in any Court of Law or Equity in the United Kingdom, or on appointment to any office or employment, or on any occasion whatever, such person is bound by the oath administered, provided the same shall have been administered in such form and with such ceremonies as such person may

declare to be binding; and every such person, in case of wilful false swearing, may be convicted of the crime of perjury, in the same manner as if the oath had been administered in the form and with the ceremonies most commonly adopted."

The recent statute (17 & 18 Vict. c. 125), would

1 Sup. p. 22.

2 See note to Omichund v. Barker, 1 Sm. L. C. sup.

appear to leave the statutory exemptions of Quakers, Moravians, and Separatists as they were before. All members of these sects, and all who have been members of the two former sects, may claim, as of right, to give their evidence on affirmation.1 In all other cases the judge will, in his discretion, concede or refuse a witness the privilege of substituting an affirmation for an oath.

SECT. 3. On the Competency and Incompetency of Parties to Civil Proceedings.

It is no objection to the competency of a witness that he is of infamous character; or that he is a party to the record, or otherwise interested in the result of the issue. Only parties to proceedings in consequence of adultery and actions for breach of promise of marriage cannot be witnesses in such proceedings.

Formerly, a witness might be objected to as being of infamous character, or a party interested in the result of the issue. But this principle was abolished by the 6 & 7 Vict. c. 85, usually called Lord Denman's Act. This statute recites that

"The inquiry after truth in courts of justice is often obstructed by incapacities created by the present law; and it is desirable that full information as to the facts in issue, both in criminal and civil cases, should be laid before the persons who are to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced for the truth of the testimony."

It then enacts that

"No person offered as a witness shall hereafter be

1 3 & 4 Will. 4, c. 49; 3 & 4 Will. 4, c. 82; 1 & 2 Vict. c. 77; Doran's case, 2 Moo. C. C. 37.

excluded by reason of incapacity, from crime or interest, from giving evidence, either in person or by deposition, according to the practice of the court on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, officer, or party having, by law or consent of parties, authority to hear, receive, and examine evidence; but that every person so offered may and shall be admitted to give evidence on oath or solemn affirmation, in those cases where affirmation is by law receivable, notwithstanding that such party may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or inquiry, or of the suit, action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence."

This act includes certain exceptions to the new law, most of which have ceased to operate.

This act was followed by the 14 & 15 Vict. c. 99 (the Law of Evidence Amendment Act.) Lord Denman's Act had left actual parties to the record incompetent witnesses. This disability was now removed; and it was enacted that—

Sect. 2. "On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any court of justice, or before any person having by law or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the person in whose behalf any such suit, action, or other proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said suit, action, or other proceeding."

Sect. 4. "Nothing herein contained shall apply to any action, suit, or proceeding, or bill, in any Court of Common Law, or in any Ecclesiastical Court, or in either House of Parliament, instituted in consequence of

Adultery,

or to any action for

Breach of promise of marriage."

It follows that no person is incompetent, in a civil cause, to become a witness on the ground that he is a party to the record unless he be either a plaintiff or defendant in an action for a breach of promise of marriage; or unless the proceeding, to which he is a party, have been instituted in consequence of adultery. But the latter provision is now modified; for the action for criminal conversation has been abolished by the new Divorce Act (20 & 21 Vict. c. 85, 8. 59); and by sect. 43 a petitioner may be examined by order of the court, but is not compellable to answer questions which tend to show that he or she has committed adultery. But respondents and co-respondents are not compellable nor competent witnesses; but the court has statutory power to dismiss a co-respondent from the suit, in which case he becomes a competent witness.2 It may be noticed here, with reference to a wife's competency as a witness against her husband, that, though generally competent under 16 & 17 Vict. c. 83, she is excepted by that act from being so in cases of adultery ;3 and even when a dissolution is sought on the ground of adultery and desertion by the husband, she cannot be called to prove the desertion. But this doctrine does not apply to cases where a judicial separation is sought on the ground of cruelty or desertion without adultery.