is limited to the sects specified in the exempting statutes, that is, to Quakers, Moravians, and Separatists; but it occasionally happens that an individual, not belonging to either of these sects, refuses from conscientious motives to be sworn. The consequence is, not only the loss of the evidence to the party calling the witness, but the exposure of the latter to punishment for contempt of court. It has happened, in several instances, that individuals have been committed for contempt in refusing to be sworn. In a case before an Election Committee in the present session of Parliament, a witness declining from religious scruples to be sworn, but willing to affirm, was nevertheless prevented from affirming under the 3 & 4 Will. 4, c. 82, because, though separated from the Church of England, he did not belong to the sect called Separatists. The result was his commitment during forty-eight hours. It is obvious that in such cases the witness is made to suffer for conscience' sake; while justice may be defeated by the absence of testimony. In principle, there does not appear to be any reason why the same regard which is had to the scruples of a body of persons should not be extended to those of an individual. The only difficulty arises from the danger of abuse; religious scruples might be simulated for the particular occasion, in order to enable the witness to give false testimony, without committing, as he might suppose, the sin of perjury. But we think that there are very few minds to which such a distinction would suggest itself; and a person capable of resorting to such a subterfuge would probably not be very scrupulous as to deposing falsely under the sanction of an oath. We think it may safely be left to the judge to ascertain whether the objection professed by the witness be sincere or not, and that if the judge be so satisfied, the witness should be admitted to affirm instead of taking an oath.

We pass on to such of the rules of practice relating to the examination of witnesses as appear to us to call for observation.

Whether Party should be allowed to discredit his own Witness.

It occasionally happens that a witness called by a party in a cause, under a belief that he will prove a certain fact, turns round upon the party calling him, and proves directly the reverse. The party is, of course, not precluded from proving by other testimony what the witness has negatived; but ought he to be allowed to discredit the witness, either by impeaching his character, or by showing that he has made previous statements at variance with the evidence he has given in the witness-box? The decisions are conflicting the weight of authority tends to establish the negative, while the weight of reason and argument appears to us to be decidedly in favour of the affirmative.

In support of the principle of excluding such evidence it is said: "That a party calling a witness ought to be placed under such restrictions as are necessary for preventing unfair or dishonest practices; that if a party produces a witness, knowing him at the same time to be a man of infamous character, and the witness in giving evidence disappoints or deceives him, he ought not to be allowed to prove his infamy, for the purpose of destroying the effect of his evidence. Knowing the infamy of his character, he had more reason to suspect and disbelieve than to trust him; nor has he any just ground to complain that his cause is prejudiced by false evidence, as he could expect nothing less from such a witness, and he suffers, not unjustly, for using a witness whom he knew to be infamous." So, again, it has been said

that "the party ought not to have called the witness if he had not considered him worthy of credit; and that, having called him, he must take him for better or worse, and cannot afterwards discredit him;" and it has been laid down that "a party never shall be permitted to produce general evidence to discredit his own witness; for that would be to enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hands of destroying his credit if he spoke against him.'

But what, as the question is well put in a recent work on Evidence (Phillips & Arnold on Evidence, Vol. II., p. 525), "If a party, not acting himself a dishonest part, is deceived by his witness, or if a witness, professing himself a friend, turns out an enemy, and, after promising proof of one kind, gives evidence directly contrary, is the party to be restrained from laying the true state of the case before the court?" "The common sense of mankind," continues the author, "might be expected to answer this proposition in the negative, and to decide that the true state of the case should be made known."

For the admissibility of the proposed evidence, it is said that this course is necessary as a security against the contrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favourable evidence (being really in the interest of the opposite party), and afterwards, by hostile evidence, ruin his cause; and that the power of proving contradictory statements ought to be the same, whether the witness is called by the one party or the other; that such a power is necessary for the purpose of placing the witness fairly and completely before the court, and for enabling the jury to ascertain how far he deserved to be believed; that the ends of justice are best attained by allowing the fullest power for scrutinising and correcting evidence; and that the exclusion of the proof of contrary statements might be attended with the worst consequences.

The chief objection to the proposed evidence appears to be, that a party, after calling a witness as a witness of credit, ought not to be allowed to discredit him. The objection proceeds upon the supposition that the party first acts on one principle, and afterwards, being disappointed by the witness, turns round and acts upon another; thus imputing to the party something of double-dealing or dishonest practice. But it is evident that this does not apply to the case where a party, having given credit to a witness, is deceived by him, and first discovers the deceit at the trial of the cause. To reject the proposed evidence in such a case, and repress the truth, would be to allow the witness to deceive both jury and party, and might work serious injustice.

The argument in favour of the admissibility of such evidence is powerfully put by Lord Denman in his judgment in the case of Wright v. Beckitt. In that case, which was an action of trespass quare clausum fregit, tried in the Common Pleas at Lancaster, the question being, whether the plaintiff had the exclusive right to the soil of a piece of land," the plaintiff's counsel, having examined four witnesses to prove that the plaintiff and his predecessors had immemorially exercised acts of ownership over it, called a fifth witness to establish the same fact. That witness on being examined contradicted the other four witnesses; upon which the plaintiff's counsel asked him, whether he had not given a different account of the facts to the plaintiff's attorney two days before? This question was objected to, on the ground that the obvious tendency of the question put by the plaintiff was to discredit his own witness. Lord Denman overruled the objection, and

the objection was put; but the witness gave an evasive answer to the question. The counsel then called the plaintiff's attorney, and proposed to inquire of him whether the witness had given to him, upon the occasion referred to, an account of the facts different from that given on the trial. This was also objected to, but the Lord Chief Justice allowed the question to be put. The attorney answered the question in the affirmative, and added, that he took down in writing the account given by the witness, which was read over to him, and he said it was quite correct; the plaintiff's attorney then read the written account to the jury.

The Lord Chief Justice, in summing up the case to the jury, told them they were not to look upon the statement given by the witness to the attorney as evidence of the facts therein stated; they were only to receive that statement by way of neutralising the effect of the evidence which the witness had unexpectedly given to the court.

The jury having found a verdict for the plaintiff, a motion was made, and a rule granted for showing cause why there should not be a new trial. After cause shown before Lord Denman and Baron Bolland, time was taken for considering the question; finally they differed in opinion. Lord Denman, in delivering his judgment, expressed himself as follows:

"If, instead of acting on established rules, we were now conferring on what rules it would be best to establish, the inconvenience of precluding the proof tendered strikes my mind as infinitely greater than that of admitting it. For it is impossible to conceive a more frightful iniquity than the triumph of falsehood and treachery in a witness who pledges himself to depose to the truth when brought into court, and in the meantime is persuaded to swear, when he appears, to a completely inconsistent story.

"The dangers on the other hand, though doubtless very fit subjects of precaution in the progress of the trial, exist at present in an equal degree with reference to modes of proceeding which have never yet becn questioned.

"The most obvious and striking danger is that of collusion. An attorney, it is said, may induce a man to make a false statement without oath for the mere purpose of contradicting by that statement the truth, which, when sworn as a witness, he must reveal. The two parties concerned in this imagined collusion must be utterly lost to every sense of shame as well as honesty. But there is another mode by which their wicked conspiracy could be just as easily effected. The statement might be made, and then the witness might tender himself to the opposite party, for whom he might be first set up, and afterwards prostrated by his former statement. This far more effectual stratagem could be prevented by no rule of law.

"The other danger is, that the statement, which is admissible only to contradict the witness, may be taken as substantive proof in the cause. But this danger equally arises from the contradiction of an adverse witness it is met by the judge pointing out the distinction to the jury and warning them not to be misled. It is not so abstruse but that judges may explain it, and juries perceive its reasonableness; and it is probable that they most commonly discard entirely the evidence of him who has stated falsehoods, whether sworn or unsworn."

Then, adverting again to the general principle, he continues: "if the witness professing to be mine has been bribed by my adversary to deceive me,-if, having taught me to expect the truth from him, he is

induced by malice or corruption to turn round upon me with a newlyinvented falsehood, which defeats my just right, and throws discredit on all my other witnesses.-must I be prevented from showing the jury facts like these? Suppose that in some dispute happening in the street a bystander declares his name to one of the contending parties, and his readiness to prove his conduct blameless; that he attends the solicitor, and gives in his deposition to the same effect, but, when sworn in open court, takes part with the adversary. The question then is, whether he is to be believed, or the other witnesses called by the same party. Some one in court happens to know him, and whispers to the attorney, He has deceived you in every way; he has given you a false name; he is the adversary's brother and partner: moreover, he has been for years notoriously infamous!' Or, suppose such a trial for misdemeanor as some that have lately revolted the public mind; and that some stranger, after voluntarily offering his testimony to a calumniated man, should unexpectedly side with his false accuser. If the rule against discrediting your own witness must be strictly construed, these deceptions cannot be exposed. You will be told that you have called him; you must take him for better and for worse, and must be bound by all his statements. Or, if you are permitted, by reason of your late discovery of these facts, to prove them for your own necessary protection, this must be, because the rule cannot apply to a case where such facts are brought to your knowledge after you have placed him in the witness box. The rule, therefore, is limited by that condition: and you shall be at liberty to discredit your witness by such evidence, because you have been deceived and surprised. Can any reason then be assigned, why, when equally deceived by his denying to-day what he asserted yesterday, you should be excluded from showing the contradiction into which, from whatever motive, he has fallen? It is clear that, in civil cases, the exclusion might produce great injustice, and in criminal cases improper acquittals and fraudulent convictions."

We recommend that a party should, under the circumstances referred to, be permitted not only as at present to contradict the testimony of the witness by other evidence, but also to prove that such witness has made opposite statements. But we think that a party having presented a witness to the jury as worthy of credit, ought not to be allowed to impeach his character by general evidence.

Proof of conflicting Statements on Cross-examination.

In the cross-examination of an adverse witness, it, in like manner, frequently becomes material, with a view of impeaching his credit, to show that the witness has made statements relative to the subject matter of the cause different from those to which he has deposed in court. If these statements were verbal, and the witness, having been cross-examined concerning them, so as to afford him an opportunity of explanation, denies having made them, there is no doubt that evidence may be adduced to prove the alleged statements to which the witness has been cross-examined.

But if a witness, being asked as to a contradictory verbal statement, neither admits nor denies it, doubts have been raised whether evidence of the statement is admissible. In one case (Crowley v. Page, 7 C. & P. 791), Baron Parke admitted the evidence. "Evidence,' said the learned judge, "of statements by witnesses on other occasions relevant to the matter at issue, and inconsistent with the testimony

given by them on the trial, is always admissible in order to impeach the value of that testimony; but it is only such statements as are relevant that are admissible; and in order to lay a foundation for the admission of such contradictory statements, and to enable the witness to explain them, and, as I conceive, for that purpose only, the witness may be asked whether he ever said what is suggested to him, with the name of the person to whom or in whose presence he is supposed to have said it, or some other circumstance sufficient to designate the particular occasion. If the witness, on the cross-examination, admits the conversation imputed to him, there is no necessity for giving further evidence of it; but if he says he does not recollect, that is not an admission, and you may give evidence on the other side to prove that the witness did say what is imputed, always supposing the statement to be relevant to the matter at issue. This has always been my practice. If the rule were not so, you could never contradict a witness who said he could not remember."

But in another case (Pain v. Beeston, 1 Moo. & R. 20), Lord Chief Justice Tindal said he had never heard such evidence admitted in contradiction, except where the witness had expressly denied the statement; and he rejected the evidence: and on another occasion (Long v. Hitchcock, 9 C. & P. 619), Lord Abinger expressed a similar opinion. On this confiict of authority the learned authors of the Treatise on Evidence, to which we have before referred, observe, and we think with truth, that the ruling of Baron Parke appeara to be most sound, and fittest to be followed. It is true, say they, "The proof of the statement imputed to the witness, which he says he does not remember to have made, is not admissible as a contradictory statement, for, until further inquiry be made, there is no apparent contradiction; but still, it seems, the evidence should be admitted; for the imputed statement, when proved, may be such as to amount to a direct contradiction of the witness, and may also possibly convince the jury that the witness did not speak truth in saying he did not remember making the statement. If the rule were otherwise, it might happen that, under the pretence of not remembering, a witness who has made a false statement, and who knows it to be false, would escape contradiction and exposure."

Rule in the Queen's Case.

A more difficult question arises, when the contradictory statement alleged to have been made by the witness is contained in a letter or other writing. The rule, as laid down by the judges in the Queen's case, is, that the cross-examining counsel mnst produce the document as his evidence, and have it read, in order to found any questions to the witness upon it.

To prevent any evasion of the rule the judges further laid it down that counsel could not ask the witness whether he had ever made representations of the particular nature suggested to him, without specifying whether the question referred to representations in writing or in words alone.

And so strictly have the judges carried out this principle that they unanimously adopted and laid down a rule, that a counsel defending å prisoner should not be permitted to ask a witness for the prosecution whether he had not made a different statement before the magistrate, without first reading over and putting in the deposition of the witness. The effect of this rule in practice is to exclude the former statement;