(including the parties to civil proceedings, but not, as a general rule, a prisoner or defendant on a criminal charge), are competent, and, in general, compellable, witnesses in every court of justice concerning the matters in issue.

Under this rule the first consideration will be

SECT. 1. The Incompetency from Defect of Understanding in Witnesses.

Persons who have not the use of reason are, from their infirmity, utterly incapable of giving evidence, and are therefore excluded as incompetent witnesses.

This description of incompetency may be either constitutional or accidental: and in the latter case it may be either temporary or permanent. It may also arise from imperfect development. Hence we have three classes of persons as to whom it may (subject to the qualifications hereinafter mentioned) be said that they are incompetent witnesses :

1. Idiots.

2. Lunatics.

3. Children of immature intelligence.

1. An idiot is one that hath had no understanding from his nativity, and therefore is by law presumed never likely to attain any; and such a person is incapable of giving evidence. Deaf and dumb persons were formerly regarded as idiots, and therefore incompetent to testify, but the modern doctrine is

that if they are of sufficient understanding, and know the nature of an oath, they may give evidence (b) either by signs, or through an interpreter, or in writing (c). It has been laid down that "the presumption is always in favour of sanity, and there is no exception to this rule in the case of a deaf and dumb person, but the onus of proving the unsoundness of mind of such a person must rest on those who dispute the sanity" (d). When a deaf and dumb witness has been pronounced competent to testify, but it appears in the course of taking his evidence that he is incompetent, his evidence may be withdrawn from the jury (e).

2. A lunatic, or non compos mentis, is one who hath had understanding, but by disease, grief, or other accident, hath lost the use of his reason (ƒ).

As long as the suspension of the intelligence continues, the lunatic is an incompetent witness: but his competency is restored during a lucid interval (g). Nor will the disability extend to cases of mere monomania, nor where the hallucination permits the witness to understand the nature of the duty which is expected from him (). But where a person is

(b) 1 Hale, P. C. 34; Rushton's case, 1 Leach, C. C. 408; Morrison v. Lennard, 3 Car. & P. 127.

(c) As to the procedure when a deaf and dumb person swears an affidavit, see Daniell's Ch. Forms, 3rd ed. 394.

(d) Per Lord Hatherley, Harrod v. Harrod, 4 K. & J. 9.

(e) R. v. Whitehead, L. R., 1 C. C. R. 33; 35 L. J., M. C. 187; 14 W. R. 677.

(f) 1 Bl. Comm. 304.

(9) Com. Dig. Testim. (A. 1).

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

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 affirmation under the Oaths Act, 1888 (7). 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 (7). 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.

Under the Criminal Law Amendment Act, 1885 (m), the evidence of a child of tender years is admissible though not given on oath, if the court is of opinion that the child is possessed of sufficient

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

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

(k) 51 & 52 Vict. c. 46.

() 1 Leach, 430, n.; R. v. Nicholas, 2 C. & K. 246.
(m) 48 & 49 Vict. c. 69, s. 4.

intelligence and understands the duty of speaking the truth; but corroboration of such evidence is necessary for a conviction. Similar provisions are contained in the Prevention of Cruelty to and Protection of Children Act, 1889 (n).

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 further encroached upon from time to time by various Acts of Parliament. In 1869 it was enacted by the 4th section of the Evidence Further Amendment Act, 1869 (0), that "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

(n) 52 & 53 Vict. c. 44, s. 8.
(0) 32 & 33 Vict. c. 68.

presiding judge is satisfied that the taking of an oath would have no 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."

Ultimately in 1888 was passed the Oaths Act, 1888 (p), which repealed all previous statutory provisions on the subject, and enacted—

"1. Every person upon objecting to being sworn, and stating, as the ground of such objection, either that he has no religious belief, or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn affirmation instead of taking an oath in all places and for all purposes where an oath is or shall be required by law, which affirmation shall be of the same force and effect as if he had taken the oath; and if any person making such affirmation shall wilfully, falsely, and corruptly affirm any matter or thing which, if deposed on oath, would have amounted to wilful and corrupt perjury, he shall be liable to prosecution, indictment, sentence, and punishment in all respects as if he had committed wilful and corrupt perjury.

"2. Every such affirmation shall be as follows: 'I, A. B., do solemnly, sincerely, and truly declare and affirm,' and then proceed with the words of the

(p) 51 & 52 Vict. c. 48.