*CHAP. II.

Of the Incompetency of Witnesses from Want of Understanding.

WHEN 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 (a), is for the jury (1). And whatever antecedent facts are necessary to

(1) Per Buller J., Comp. of Carpenters, &c. v. Hayward, Doug. 375. Bull. N. P. 297.

However, Lord Ellenborough considers that case as establishing in principle nothing more than this, that there are circumstances in respect of which the production of an instrument, required in the terms of a subpæna, would not be enforced by the authority of the court. Amey v. Long, 9 East, 485.

(a) Vide Wills v.Tucker, 3 Binney, 370. 372, 373. Hardaway v. Manson, 2 Mun. 230. Shanks & M'Rae v. Fenwick, Ibid. 487. 1 Wash. 90. The rule, that it is the province of the jury alone to decide on the sufficiency of the evidence, has, in Virginia, been carried to the extent of prohibiting the Court from instructing, or giving an opinion to, the jury, on the sufficiency of the evidence. Fisher's Ex'r. v. Duncan & Turnbull, 1 Hen. & Mun. 563. Keel & Roberts v. Herbert, 1 Wash. 203. When, however, the judge does give an opinion to the jury on a matter of fact, it should be

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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 *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. find no rule less comprehensive than this," said Mr. Justice Lawrence, in the case of Jordaine v. Lashbrooke (1), " 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."

(1) 7 T. R. 610.

by way of advice, and not of positive direction, as on a question of law. New-York Firemen Ins. Co. v. Walden, 12 Johns. Rep. 513. Illegal or improper evidence, (however unimportant it may be to the cause,) ought never to be confided to the jury; for if it should have an influence upon their minds, it will mislead them; and if it should have none, it is useless and may at least produce perplexity. Lee v. Tapscott, 2 Wash. 276. Brown & Boisseau v. May, 1 Mun. 291. The character of witnesses and the credit which is due to them, are subjects peculiarly within the province of the jury; and where the verdict has depended on these points, the court has always refused to interfere, except in extraordinary cases. Lessee of Fehl v. Good and another, 2 Binney, 495. Rogers v. Briley, 1 Hαγω. 256.

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 (a) 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).

A witness must not only have a competent share of Children. 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 *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 (1); 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 (6). In Brazier's case, on an indictment for

(2) Co. Lit. 6. b. 6 Com. Dig. tit. 293. Gilb. Ev. 130.

"Testmoigne," A. 1.

(3) Com. Dig. Ib.

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

C. 455.

(5) Com. Dig. Ib. Bull. N. P.

(1) R. v. Travers, 2 Stra. 700; and cases in East, P. C. 442. S. P. 1 Hal. P. C. 302. 2 Hal. P. C. 278. (2) Bull. N. P. 293.

(a) Evidence may be admitted to show the incompetency of such person when offered as a witness. Livingston v. Kiersted & Heermance, 10 Johns. Rep. 362.

(b) The King v. Rose Kelly, 1 Mac Nally, 154. Swift's Ev. 46. Commonwealth v. Hutchinson, 10 Mass. Rep. 215. The credit of the witness, which is greatly impaired by his age, is to

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CHAP. III.

Of Incompetency from Defect of Religious Principle.

THE 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 (1). 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, &c.

Atheists, and such infidels as profess not any religion, that can bind their consciences to speak the truth, are excluded 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 Hea

thens (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 (7)." 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.,) *it was solemnly decided, that the depositions of witnesses professing the Gentoo religion, who had been sworn according to the ceremonies of their religion under a commission out of Chancery, ought to be admitted in evidence (1). And it may now be considered as an established rule, that infidels of any other country, who believe in a God, the avenger of falsehood, ought to be received here as witnesses: but infidels, who believe not that there is a God or a future state of rewards and punishments (a), 21. 1 Wils. 84. S. C. Willes 538.

2 Hale P. С. 279.

(1) Omichund and Barker, 1 Atk. S. C.

(a) It has been decided in the Supreme Court of Connecticut, that every person who does not believe in the obligation of an oath, and a future state of rewards and punishments, or any accountability after death for his conduct, is by law excluded from being a witness; for to such a person the law presumes no credit is to be given. Testimony is not to be received from any person in a court of justice, but under the sanction of an oath. It would therefore be idle to administer an oath to a man who disregards its obligation. And every person who believes in the obligation of an oath, whatever may be his religious creed, whether Christian, Mahommedan, or Pagan, or whether he disbelieves them all, is an admissible witness; and may testify in a court of justice, being sworn according to that form of oath, which, according to his

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