Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/664

Rh 624 WITNESS obvious survival of the time when the juror was a witness, It is only by gradual steps that the law has reached its present stage in the United Kingdom and the United States. At present the disabilities of witnesses are few; almost every one is a capable witness, and the main question has become one of credibility rather than of capability. It was far otherwise in Iloman and ecclesi astical law and in the older law of England and Scotland. A reference to TORTURE will show that in Roman and mediaeval law the testimony of many persons was not admissible without the application of torture. At the same time a large body of possible witnesses was excluded for reasons which have now ceased to be considered expedient, and was subject to rules which have long become obsolete. In Roman law witnesses must be idonei, or duly qualified. Minors, certain heretics, infamous persons (such as women convicted of adultery), and those interested in the result of the trial were inadmissible. Parents and children could not testify against one another, nor could slaves against their masters, or those at enmity with the party against whom their evidence was offered. Women and slaves were under a disability to be witnesses to a will. The canon law extended the disability to testify to an excommunicated person, and to a layman in a criminal charge against a clerk, unless he were actually the prosecutor. 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. 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. Many systems of law excluded witnesses from policy of a local or temporary nature. WOMEN (q.v.) were generally regarded as wholly or partially incompetent. The evidence of Jews was frequently rejected in Spain and other countries during the 14th and loth centuries. In the United States, while slavery was lawful, the evidence of slaves (and in some States that of free persons of colour) was not received for or against whites. There were in Roman law some hard and fast rules as to number. Seven witnesses were necessary for a will, live for a manctpatio or manumission or to determine the question whether a person were free or a slave. Five was also the number necessary under the Liber Feudorum for proving ingrati tude to the lord. Two were generally necessary, as in the Mosaic law, as a minimum number to prove any fact. Unius 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. In the canon law 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. In England one witness is as a rule sufficient. But in certain cases two or more are necessary. Two must attest a marriage or a will, 1 and two are necessary for a conviction of perjury, treason, and some other crimes, such as offences against the Act of Supremacy of Elizabeth. In the United States the number necessary for the attestation of a marriage or will is not uniform in all the States. Sometimes a special number has been fixed in England by statute in excep- 1 The absence of two witnesses does not, however, avoid a marriage as it does a will. The section of 4 Geo. IV. c. 76 providing for the presence of witnesses at a marriage has been held to be merely directory. tional cases. A curious Act of Richard II., passed in 1383 (6 Ric. II. st. 2, c. 5), fixed the number of compurgators necessary to free an accused person from complicity in the peasant revolt at three or four. Corroborative evidence not necessarily the evidence of another witness, but corroboration in a material particular must in England be given to entitle the complainant or plaintiff to succeed in an affiliation summons or in an action for breach of promise of marriage. The evidence of an accomplice also needs confirmation, if not in strict law, at least in practice. The number of witnesses had in one instance in old Scotch law the curious effect of determining the punishment. By the assizes of King William, the ordeal of water was under gone by the accused on the oaths of three witnesses ; if to them the oaths of three seniores were added, the penalty was immediate hanging. Witnesses need not now in English law be idonei or credible, except in the case of witnesses to bills of sale under the Bills of Sale Act, 1882. The &quot;credible &quot; of the Statute of Frauds has not been repeated in the Wills Act (see WILL). In the case of dishonour of a foreign bill of exchange the evidence of a notary is required, and a solicitor must attest a warrant of attorney, as was also required for a bill of sale from 1878 to 1882. The modern law of witnesses has been already treated to a con siderable extent under EVIDENCE. It should be noticed that since the date of that article a new rule of great importance has received statutory sanction. The rules of the Supreme Court, 1883 (Ord. xxxvi., r. 38), enable the judge in all cases to disallow any questions put in cross-examination of any party or other witness which may appear to him to be vexatious and not relevant to any matter proper to be inquired into in the cause or matter. It will suffice here to give a brief statement of the law as it at present stands, rather by way of supplement to what has been already said than as an ex haustive notice. Witnesses may be either sworn or unsworn, either judicial or non-judicial, the unsworn and non-judicial almost coin ciding. The evidence of judicial witnesses may be given viva voce or by deposition or affidavit, the latter being the more usual course in chancery and bankruptcy proceedings. Where evidence is taken on commission, the usual course where the witness is out of the jurisdiction, the questions and the witness s answers are produced in writing to the court which issued the commission, it being a delegation of the authority of the court. As a rule all witnesses coming before a court of justice, whether to give evidence as to a fact or a professional opinion, must be sworn (see OATHS). &quot; To this rule certain exceptions exist at common law and have been introduced by statute, the one of the most importance being the law by which persons objecting to take an oath may affirm. Another exception was introduced by the Criminal Law Amendment Act, 1885, the Act allowing the evidence of a child of tender years to be received without oath. But to ensure a conviction such evidence must be corroborated. At common law a person merely produc ing documentary evidence need not as a rule be sworn. A witness, too, may be examined unsworn on the voir dire, as it is called, to decide the preliminary question of his competency. Non-judicial witnesses are those who attest an act of umisual 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 WHIT). Those witnesses whose evidence is not received may be divided into incompetent and privileged, classes which must be carefully distinguished. The evidence of the former is wholly inadmissible ; that of the latter is admissible if they waive their privilege. Among the incompetent witnesses are those of too tender years to under stand the nature of an oath, idiots and lunatics, those convicted of perjury under an Act of Elizabeth (see PERJURY), 3 and accused persons or their husbands or wives (except where the trial is for treason or for personal injuries inflicted by one spouse against the other). The exclusion of the latter class has led to much dis- 2 The giving of evidence unsworn appears to have been at one time regarded as a privilege. The men of Ripon, for instance, were by a charter of Athelstau to be believed on their yea and nay in all disputes. 3 A person convicted of perjury at common law is not on that account incompetent in England ; his evidence may be given for what it is worth. It is otherwise in the United States, see Revised Statutes, 5392. In France disability to be a witness may be inflicted as part of the punishment on conviction for certain crimes (see Code Penal, 42).