General rule.

Natural deficiency.

Disordered intellect.

First, of Incompetency from Want of Understanding.

Persons who have not the use of reason are from their infirmity utterly incapable of giving evidence. It is a rule, also, which we shall have occasion to consider more particularly in treating of the second ground of incompetenty, that all witnesses must be examined upon oath; (1) upon this principle, persons of defective or disordered intellect, not being able to comprehend the nature and obligation of an oath, ought to be excluded; and even if the form of an oath were administered to them, no reliance could be placed on their statements. Such persons are, therefore, excluded as incompetent witnesses.

Incompetency from defect of understanding may arise, where there is a natural deficiency of the intellect, as in the case of idiots; or where the intellect has become disordered, as in the case of insane persons; or where the intellect is immature, as in the case of children.

An idiot is one who, from his nativity, is by a perpetual infirmity non compos mentis; (2) such a person is wholly incapable of giving evidence. But persons born deaf and dumb, (although it has been said that in presumption of law they are to be considered as idiots,) (3) are not on this account incompetent and if it appear, that they have sufficient understanding and know the nature of an oath, they may give evidence by signs, through the medium of an interpreter; (4) or if they are able to write, their testimony will be taken in writing, as the more certain mode. (5)

Persons whose intellect have become permanently and perpetually deranged, are incompetent; but lunatics, and other persons who are afflicted with occasional fits of insanity, although

(1) Post, Chap. II.
(2) Co. Lit. 247, a.
(3) 1 Hale, P. C. 34.

(4) Ruston's case, 1 Leach, Cr. Ca. 455.

(5) Morrison v. Lennard, 3 Car. & P. 127.

incompetent while under the influence of their malady, may yet be witnesses in their lucid intervals, if it be satisfactorily shewn that they have sufficiently recovered the use of their understandings. (1)

Children.

There is no precise age fixed, at which children are excluded Immaturity of from giving evidence. At one time, indeed, their age was con- intellect. sidered 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; (2) which in some cases would operate to deprive them of the protection of law against acts of violence. (3) A more reasonable rule has since been adopted, and the competency of children is now regulated, not by their age, but by the degree of understanding which they appear to possess. In Brazier's case, on an indictment for assaulting an infant five years old with intent to ravish her, all the judges agreed, that children of any age might be examined upon oath, if they were capable of distinguishing between good and evil, and possessed of sufficient knowledge of the nature and consequences of an oath, but that they could not in any case be examined without oath. (4) This is now the established rule, as well in criminal, as in civil cases, and it applies equally to capital offences as to offences of an inferior nature.

According to this rule the admissibility of children depends Religious not merely upon their possessing a competent degree of under- instruction. standing, but also, in part, upon their having received a certain share of religious instruction. A child whose intellect appears to be in other respects sufficient to enable it to give useful evidence, may, from defect of religious instruction, be wholly unable to give any account of the nature of an oath, or of the consequences of falsehood. (5) In criminal cases, where a child, who is a necessary witness for the prosecution, appears not

(1) Com. Dig. Testmoigne, A. 1. (2) R. v. Travers, 2 Stra. 700, and cases in East, P. C. 442. Hale, P. C. 302. 2 Hale, P. C. 278.

(3) B. N. P. 293.

1

(4) 1 Leach, C. C. 199. 1 East,

P. C. 443. B. N. P 293. 4 Bl.
Com. 214.

(5) Cases of this nature might
with propriety be referred to the
head of incompetency from defect
of religious principle, which is the
subject of the ensuing chapter.

sufficiently to understand the nature and obligation of an oath, a judge may, in the exercise of his discretion, and for the purposes of justice, postpone the trial, in order that the child may be in the mean time properly instructed. (1) But an application to postpone the trial upon this ground ought properly to be made, before the child is examined by the grand jury; at all events before the trial has commenced; for if the jury are sworn, and the prisoner is put upon his trial before the incompetency of the witness is discovered, the judge cannot discharge the jury, but should direct an acquittal. (2)

When a child from defect of understanding or instruction is unfit to be sworn, it follows as a necessary consequence, that any account, which it may have given to others, of the transaction, 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, in a case reserved for their opinion, thought the evidence clearly inadmissible, and the prisoner was accordingly pardoned. (3)

With regard to the weight and effect of the testimony of children Sir W. Blackstone observes, (4)" that when the evidence of children is admitted, it is much to be wished, in order to render the evidence credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact; and that a conviction should not be grounded on the unsupported accusation of an infant under years of discretion." In many cases, undoubtedly, the statements of children are to be received with great caution; and it may be

(1) 1 Leach, 430, n. But see R. v. Williams, 7 Car. & P. 320.

(2) R. v. Wade, Ry. & Mo. C. C. 86. In this case the witness was an adult, possessed of sufficient intellect, but wholly without religious instruction. Quære, as to the exercise of the discretion of the court in postponing the trial in a case of this nature.

(3) R. v. Tucker, 1808, MS. See also R. v. Brazier, 1 East, P. C. 443. 1 Atk. 29. Ch. J. Jeffrey's examination of a child previously to being sworn, 9 How. 1148. Mr. Hume's remarks on the law of Scotland, respecting the admissibility of infants, 12 How. 559, n. (4) 4 Com. 214.

observed, the preliminary inquiry, made with the view of ascertaining their competency, is not always of the most satisfactory nature, but is sometimes of such a description, that by a very slight discipline of the memory, a child might thus be made to appear a competent witness. The inquiry is usually confined to the ascertaining of the fact, whether the child has a conception of Divine punishment being a consequence of falsehood; it seldom extends so far as to ascertain the child's notions of the nature of an oath, and scarcely ever relates to the legal punishment of perjury. In a recent case, however, it has been held, that the effect of the oath on the conscience of a child should arise from religious feelings of a permanent nature, and not merely from instructions confined to the nature of an oath, which have been communicated with reference to the trial. (1) Independently of the sanction of an oath, the testimony of children, after they have been subjected to cross-examination, is often entitled to as much credit as that of grown persons; and what is wanted in the perfection of the intellectual faculties, is sometimes more than compensated by the absence of motives to deceive. It is clear that a person may be legally convicted upon such evidence alone and unsupported; and whether the account of the child 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 evidence of the child has been given.

CHAPTER II.

OF EXAMINATION UPON OATH, AND OF INCOMPETENCY FROM DEFECT OF RELIGIOUS PRINCIPLE.

It is an established rule, that all witnesses who are examined upon any trial, civil or criminal, must give their evidence under the sanction of an oath. This rule is laid down as an acknow

ledged proposition, by some of our earliest writers; (2) and it appears to be of universal application, except in the few cases in which a solemn affirmation has been allowed by statute in lieu of an oath. No exemption from this obligation can be (1) R. v. Williams, 7 Car. & P. 320. (2) Sheppard's Abridg. Tryal.

What implied in examination.

claimed in consequence of the rank or station of a witness. A peer cannot give evidence without being sworn, (1) and the same appears to be the case in regard to the King himself. (2) The rule also holds even in the case of a judge (3), or juryman (4), who happens to be cognizant of any fact material to be communicated in the course of a trial. A striking exception to the rule formerly prevailed in the case of witnesses for persons accused of treason or felony, who were not permitted to give evidence upon oath, but this unreasonable and unjust distinction has been long since abrogated. (5) At one time it was thought that a child, who was incapable of understanding the nature of an oath, might be examined without being sworn, (6) but it is now settled, as we have seen in the preceding chapter, that the statement of a child cannot be received except upon an oath, and that where the child is incapable of understanding the nature and obligation of an oath, its testimony will be rejected. (7)

An examination upon oath implies, that the witness should go through a ceremony of a particular import; and also that Import of oath. he should acknowledge the efficacy of that ceremony as an obligation to speak the truth. It has been said that, by taking an oath, a witness makes a formal and solemn appeal to the Supreme Being for the truth of the evidence which he is about to give, and imprecates the Divine vengeance on his head, if what he shall say should be false. (8)

(1) Lord Shaftesbury v. L. Digby, 3 Keb. 631. R. v. Lord Preston, 1 Salk. 278.

(2) 2 Rol. Ab. 686. In Abigny v. Clifford, Hob. 213, King James the First certified to the chancellor, under his sign manual, the substance of the promise made by the defendant to the King, and the certificate was admitted without objection. But Willes, C. B. (in Omichund v. Barker, Willes' Rep. 550,) states that, except in the preceding case, the King's certificate, under his sign manual, has always been refused.

(3) Kel. 12, Trial of the Regicides. See also 5 How. St. Tr.