Page:EB1911 - Volume 28.djvu/781

Rh responsio testis omnino non audiatur are the words of a constitution of Constantine. The evidence of a single witness was simply semiplena probatio, to be supplemented, in default of a second witness, by torture or by reference to oath. The canon law followed the Roman law as to competence, but extended the disabilities to excommunicated persons and to a layman in a criminal charge against a clerk, unless he were actually the prosecutor. The evidence of a notary was generally equivalent to that of two ordinary witnesses. The evidence of the pope and that of a witness who simply proved baptism or heresy (according to some authorities) are perhaps the only other cases in which canon law dispensed with confirmatory evidence. It is probable that the incompetence of Jews as witnesses in Spain in the 14th and 15th centuries was based on what is termed “want of religion,” i.e. heresy or unwillingness to take the Christian oath on the gospels. But in England until their expulsion they were in the status of slaves (captivi) of the king. A policy similar to that of Roman law was followed for centuries in England by excluding the testimony of parties or persons interested, of witnesses for a prisoner, and of infamous persons, such as those who had been attainted or had been vanquished in the trial by battle, or had stood in the pillory. All these were said vocem non habere. In the days of trial by battle a party could render a witness against him incompetent by challenging and defeating him in the judicial combat. Women were generally regarded as wholly or partially incompetent. English law had also certain rules as to the number of witnesses necessary. Thus under a statute of 1383 (6 Rich. II. st. 2, c. 5) the number of compurgators necessary to free an accused person from complicity in the peasant revolt was fixed at three or four. Five was the number necessary under the Liber feudorum for proving ingratitude to the lord. In one instance in old Scots law the number of witnesses had the curious effect of determining the punishment. By the assizes of King William, the ordeal of water was undergone by the accused on the oaths of three witnesses; if to them the oaths of three seniores were added, the penalty was immediate hanging.

In the course of the gradual development of the law of evidence, which is in a sense peculiar to the English system, the fetters of the Roman rules as to witnesses were gradually shaken off. In civil cases all disabilities by interest, relationship, sex or crime have been swept away. The witness need not be idoneus in the Roman sense, and objections which in Roman law went to his competence, in English law go to his credibility. The only general test of competency is now understanding. It excludes lunatics, idiots, dotards and children of tender years; a person convicted of perjury is said to be competent if convicted at common law, but incompetent if convicted under the act of Elizabeth. No trial ever takes place now under this act, and on this point the act seems to have been virtually repealed by Lord Denman's Act (1843; 6 & 7 Vict. c. 85). The disqualification is not absolute as to lunatics; as to children it is sometimes made to depend on whether they are able to understand the nature of the witness's oath. And in certain cases within the Criminal Law Amendment Act 1885 and the Prevention of Cruelty to Children Act 1904, the unsworn evidence of children of tender years is admissible but needs corroboration.

Non-judicial witnesses are those who attest an act of unusual importance, for the due execution of which evidence may afterwards be required. They are either made necessary by law, as the witnesses to marriages and wills, or used by general custom, as the witnesses to deeds. In some cases the attestation has become a mere form, such as the attestation of the lord chancellor to a writ of summons (see ).

The rule of English law as to the number of witnesses necessary is expressed in the phrase testes ponderantur non numerantur. But there are certain exceptions, all statutory. Two witnesses are necessary to make a will valid; two are required to be present at a marriage and to attest the entry in the marriage register; and in the case of blasphemy, perjury, personation and most forms of treason, two or more witnesses are necessary to justify conviction. Witnesses to bills of sale under the Bills of Sale Act 1882, and witnesses on a charge of personation at elections, are required to be “credible.” And in the case of dishonour of a foreign bill of exchange the evidence of a notary public is required, probably a survival from the law merchant or a concession to continental practice. A warrant of attorney must be attested by a solicitor, and certain conveyances of property held on charitable uses must be attested by two solicitors. In certain civil cases the evidence of a single witness is not sufficient unless corroborated in some material particular—not necessarily by another witness—e.g. in actions of breach of promise of marriage, or affiliation proceedings and matrimonial causes, or where unsworn evidence of children is admissible. In practice, but not in strict law, the evidence of an accomplice is required to be corroborated.

The English common law in theory has never permitted examination by torture—unless certain forms of cross-examination can be so described. In trials in the court of admiralty the Roman system was used until 1536 (28 Henry VIII. c. 15). Torture in Scotland was abolished at the Union.

In criminal cases an accused person could not formerly be sworn as a witness or examined by the court, though he was free to make statements. The origin of this rule is by some traced to the maxim nemo tenetur prodere seipsum, by others to the theory that the petty jury were the prisoner's witnesses. Moreover, witnesses for the defence could not be examined on oath in cases of treason and felony until 1702 in England, 1711 in Ireland and 1735 in Scotland. The husband or wife of the accused could not be examined on oath as a witness either for the prosecution or the defence except in prosecutions for treason or for personal injuries done by one spouse to the other. This exclusion was in accord with the disqualification of parties to civil causes; but there was a lack of reciprocity, for the prosecutor was a competent witness because the crown is the nominal prosecutor. The rule had to a certain extent a beneficial effect for the defence, in saving the accused from cross-examination, which in certain periods and in political trials would have led to abuse. On the abolition of other disqualifications that of the accused was left. This inconsistency led to much legal discussion and to piecemeal, and ultimately complete, change in the law. In 1878 the Criminal Code Commission recommended that prisoners should be allowed to give evidence on their own behalf on oath. Since 1872 many statutes have been passed rendering accused persons and their husbands or wives competent witnesses on charges of particular offences. Most of these acts do not make them compellable witnesses.

By the Criminal Evidence Act l898 (60 and 61 Vict. c. 36) the defendant, or the wife or husband of the defendant, is made a competent but not a compellable witness for the defence at every stage of criminal proceedings, subject to certain conditions, of which the principal are that a prisoner shall not be called except on his or her own application, and that the failure of the prisoner or his wife or her husband to give evidence is not to be the subject of comment by the prosecution, and that the prisoner may not be cross-examined as to any previous offence or conviction or as to character, unless the proof of a previous offence is admissible evidence in the case, or unless he or she has given evidence of his or her good character, or cross-examined with that view, or unless the nature and conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution. The act applies to Great Britain but not to Ireland. It has been extended to proceedings before naval and military courts-martial. This statute abrogates the common law rule making an accused person incompetent, and in practice supersedes most of the prior particular statutes. But it is necessary to observe that as to certain offences named in the schedule of the act and in other earlier or later acts, the husband or wife is competent without the consent of the accused; and that proceedings by indictment for obstruction or non-repair of public ways, bridges and rivers are for purposes of evidence treated as civil proceedings.

Quite apart from statute a husband or wife has always and necessarily been a competent witness in criminal proceedings against the other spouse in respect of personal injuries.

Even where a witness is competent, his statements, whether of fact or of expert opinion, are not admissible in evidence unless he has taken the required oath, or, where he conscientiously objects to taking an oath or by want of religion would not be bound by the oath, has made the substituted affirmation or declaration. This question was settled in 1888 after the entry of Mr Bradlaugh into parliament. Unless he is duly sworn, &c., there is no enforceable sanction for false evidence (see ). English law has gradually accepted as sufficient any form of oath which the witness is prepared to accept as binding on him in accordance with his religious beliefs, whether he be Christian or Jew, Mahommedan, Hindu, Sikh or Buddhist. At one time peers in certain proceedings testified on their honour unsworn, but now no distinction is made except as already stated in the case of young children.

The attestation of documents out of courts of justice is ordinarily not on oath; but where the documents have to be proved in court the attesting witnesses are sworn like others, and the only judicial exception is that of witnesses ordered to produce documents (called in Scotland “havers”) who are not sworn unless they have to verify the documents produced. Questions as to competence (including questions of the right to affirm instead of swearing or as to the proper form of oath) are settled by examination by the court without oath, on what is termed the voir dire. The evidence of judicial witnesses is taken viva voce at the trial, except in interlocutory proceedings and in certain matters in the chancery division and in bankruptcy courts. Where the witness cannot attend the court or is abroad his evidence may be taken in writing by a commissioner delegated by the court, or by a foreign tribunal under letters of request issued by the court in which the cause is pending. The depositions are returned by the delegated authority to the court of trial. Under English law evidence must be taken viva voce in a criminal trial, with a few exceptions, e.g. where a witness who has made a deposition before a magistrate at an earlier stage in the case is dead or unable to travel, or in certain cases within the Merchant Shipping Acts, or of offences in India or by crown officials out of England. In Europe commissions