expected from him (h). But where a person is tendered as a witness who is believed to be suffering from monomania, he must first be examined as to his capacity to give evidence (i).

3. There is no epoch of legal discretion under which an infant is an incompetent witness. The rule by which an infant under seven years of age cannot commit a felony, because the law presumes him conclusively not to have sufficient intelligence for the act, has no analogy in the law of evidence (j). Age is immaterial; and the question is entirely one of intelligence, which, whenever a doubt arises, the court will ascertain to its own satisfaction, by examining the infant on his knowledge of the obligation of an oath, and, if necessary, of the obligation of a solemn promise and declaration under the Evidence Further Amendment Act, 1869 (). Although tender age is no objection to the infant's competency, he cannot, when wholly destitute of religious education, be made competent by being superficially instructed just before a trial, with a view to qualify him (1). A judge may, however, in his discretion, postpone a trial, in order that the witness may be instructed in the nature of an oath, but the inclination of judges. is against this practice.

(h) R. v. Hill, 2 Den. 254.

(i) Spittle v. Walton, 19 W. R. 405.

(j) Per Patteson, J., R. v. Williams, 7 C. & P. 320.

(k) 32 & 33 Vict. c. 68.

(7) 1 Leach, 430, n.; R. v. Nicholas, 2 C. & K. 246.

SECT. 2. On Incompetency from Defect of Religious

Principle.

The principle on this head formerly was as follows:-"No person is a competent witness unless he believes in a Supreme Being who will punish him, either in the present or a future life, for perjury."

So, too, it was formerly the established principle of English law, that no witnesses were to be believed unless they delivered their evidence on oath. The only exceptions to this rule were statutory ones granted by the Legislature to satisfy the conscientious scruples of Quakers, Moravians, and Separatists; members of which sects were accordingly allowed to give evidence on affirmation instead of oath. This principle was much extended by the 20th section of the Common Law Procedure Act, 1854 (m), which enacted that

"If any person, called as a witness, or required to make an affidavit or deposition, shall refuse or be unwilling, from alleged conscientious motives, to be sworn, it shall be lawful for the court, or judge (or other presiding officer, or person qualified to take affidavits or depositions), upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following, viz. :-'I, A. B., do solemnly, sincerely, and truly

(m) 17 & 18 Vict. c. 125.

affirm and declare, that the taking of any oath is, according to my religious belief, not lawful: and I do also solemnly and truly affirm and declare,' &c., which solemn declaration shall be of the same force and effect as if such person had taken an oath in the usual form" (n).

And by the 89th section of the same act it was enacted that—"Any person who shall, upon any examination upon oath or affirmation, or in any affidavit in the proceedings under this act, wilfully and corruptly give false evidence, or wilfully and corruptly swear and affirm anything which shall be false, being convicted thereof, shall be liable to the penalties of wilful and corrupt perjury."

Similar provisions applicable to criminal proceedings are contained in 24 & 25 Vict. c. 66, ss. 1, 5.

A still further extension of this principle is embodied in the Evidence Further Amendment Act, 1869 (0), which enacts thus-"If any person called to give evidence in any court of justice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding judge is satisfied that the taking of an oath would have no

(n) An affirmation by a German subject made in Germany was rejected, as he did not state that he had conscientious objections against the taking of an oath, although it was alleged that voluntary oaths are illegal in Germany: In the goods of Prince Henry LXIX., 49 L. J., P. D. & A. 67; 28 W. R. 398.

(0) 32 & 33 Vict. c. 68.

binding effect on his conscience, make the following promise and declaration :

'I solemnly promise and declare that the evidence given by me to the court shall be the truth, the whole truth, and nothing but the truth.'

And any person who having made such promise and declaration shall wilfully and corruptly give false evidence, shall be liable to be indicted, tried and convicted for perjury as if he had taken an oath " (sect. 4).

The promise or declaration provided by the 4th section of the Act of 1869 is substantially the same as the solemn affirmation or declaration prescribed by the Common Law Procedure Act, 1854 (p), except that the former does not contain what the latter does-words expressing that the taking of any oath is according to the religious belief of the declarant unlawful. It is noticeable that, whereas the objection to take the oath must under the old law emanate from the witness, now a witness may either object himself to take the oath or be objected to by the parties to the proceedings as incompetent to take an oath, and the presiding judge must allow the objection in either case if satisfied that an oath would not bind the conscience of the witness.

This act only applied to the examination of witnesses in open court, but it is now enacted by 33 & 34 Vict. c. 49, s. 1, that the words "presiding judge" in the said act shall include every person

(p) See p. 30.

having by law authority to administer an oath for the taking of evidence. Thus the provisions are extended to examiners, official referees, and arbitrators.

An oath, or an affirmation, or solemn promise and declaration, when allowed, is regarded as an indispensable condition precedent to the admissibility of a witness, on the common law doctrine, that a mere statement of a fact is entitled to no credit; since even the admissibility of affirmations, promises and declarations, by the existing law rests on principles which are widely different from those of a simple narrative. 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 common law doctrine on this head is contained in the well-known case of Omichund v. Barker (1). 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 (1), 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

P.

(2) Willes, 538; 1 Sm. L. C. 194.

(0) Co. Litt. 6, b.

D