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The court, or the judge, or the master, may ad- Examination of an journ the examination from time to time as occa- unwilling sion may require; and the proceedings upon it witness. are to be conducted, and the depositions taken down, as nearly as may be, in the mode now in use with respect to the vivá voce examination of witnesses upon interrogatories (s. 47).

CHAPTER IX.-LAW OF EVIDENCE.

"THE Common Law Procedure Act, 1854," has made several important alterations in the rules relating to the examination of witnesses, and has also afforded new facilities for the admission of documentary evidence. I have thought it desirable to treat of the enactments of the new statute which effect these changes separately, because those provisions-which are contained in sections twenty, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twentyeight, and twenty-nine of the Act-it is expressly enacted, shall apply and extend to every court of civil judicature in England (s. 103).

The law of evidence has, in several important particulars, been materially improved of late years. The nature of these alterations I may be permitted to revert to shortly.

Evidence is of two kinds; oral, or that furnished by the testimony of witnesses, and documentary. To the latter species of evidence I shall call attention afterwards. As regards the testimony of witnesses, the rules of law have reference, firstly, to the admissibility of witnesses; secondly, to the manner of their examination.

It is obvious that any witness who can throw light upon a fact in issue should be heard to state what he knows, subject to such observations as may arise either as to his means of knowledge or to his disposition to state the truth. And this has always been the law of England; but the

rule was subject to an important exception, by Law of which all those persons were excluded as wit- Evidence. nesses who were either infamous, or interested in

the event of the cause.

All others were competent witnesses; the jury were to judge of their credibility.

Infamous persons were such as might be challenged as jurors, propter delictum, and were not admitted to inform that jury, with whom they might not associate. Interested witnesses might be examined upon the voir dire, if suspected to be secretly concerned in the event; or their interest might be proved, in order to disqualify them. The law thus carefully excluded not only the parties to the cause, but any one who had the most minute interest in the result; for every person so circumstanced, however insignificant his interest, was presumed incapable of resisting the temptation to perjury; as every judge and juryman was to be presumed incapable of discerning perjury committed under circumstances (according to the former presumption) especially calculated to excite suspicion. The first inroad on this exclusion of evidence was made by the stat. 3 & 4 Will. IV., c. 42, s. 26, which enacted that "in order to render the rejection of wit

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nesses on the ground of interest less frequent, "if any witness should be objected to as incompetent, on the ground that the verdict or judgment in the action would be admissible in "evidence for or against him, he should never"theless be examined; but in that case the "verdict or judgment should not be admissible "for or against him, or any one claiming under "him."

A greater improvement was effected by the stat. 6 & 7 Vict. c. 85, which removed incompetency on the ground of interest in all persons except the parties to any suit, action, or proceeding named

Law of
Evidence.

on the record, or any lessor of the plaintiff in
ejectment, or tenant of the premises sought to be
recovered in that action, or the landlord or other
person in whose right any defendant in replevin
made cognizance, or any person in whose im-
mediate and individual behalf any action was
brought or defended, or the husband or wife of
such persons.
The advantages found to flow
from this alteration in the law led to the statute
14 & 15 Vict., c. 99, by the first section of which
the proviso in the statute 6 & 7 Vict., c. 85, was
repealed. The second section enacts, that in any
court of justice, the parties and the persons in
whose behalf any action, suit, or other proceeding
may be brought or defended, shall, except as
therein excepted, be competent and compellable
to give evidence on behalf of either or any of the
parties to the suit. The third section of the
statute provides that it shall not render any
person charged with an offence competent or
compellable to give evidence against himself,
nor shall it render any person compellable to
answer any question tending to criminate him-
self, nor shall it in any criminal proceeding
render any husband competent or compellable to
give evidence for or against his wife, or any wife
competent or compellable to give evidence for or
against her husband. The fourth section of the
statute further provides that it shall not apply to
any proceeding instituted in consequence of
adultery, or to any action for breach of promise
of marriage. It was decided, soon after it had
become law, that the second section of the statute
did not render a wife admissible as a witness for
or against her husband, and accordingly the statute
16 & 17 Vict., c. 83, was passed, which enacts that
the husbands and wives of the parties to any suit, or
of the persons on whose behalf any such proceeding
was brought or defended, should thereafter be com-
petent and compellable to give evidence on behalf

Evidence.

of either party or any of the parties. Neither Law of husband or wife is compellable, however, to disclose any communication during marriage; and neither party is a competent witness in a criminal proceeding, or in any proceeding instituted in consequence of adultery. By these several statutes, all rules tending to the exclusion of evidence have been abrogated, except in the cases I have specified.

The second branch of the law of evidence, I Affirmation instead of have said, relates to the examination of witnesses, oath in and its fundamental principle is, that the value of certain cases. all testimony rests on the sanction of religion. Hence, no evidence can be received otherwise than upon oath; except in the case of certain religious sects, who are allowed to make a solemn affirmation. But the religious sanction is, as to them, considered equally indispensable, so that the witness is always liable to be asked whether he believes in a future state of reward and punishment, and in the event of his answering in the negative, he is excluded from giving evidence.

The exception I have just mentioned has hitherto been to Quakers, Moravians, and Separatists; but it has often happened that an individual, not belonging to either of these denominations, from conscientious motives has refused to be sworn. The consequence has been, not only the loss of his evidence to the party calling the witness, but the exposure of the latter to a committal for contempt. Individuals have been committed for refusing to be sworn, though the only result was that in such cases the witness suffered for conscience' sake; while justice may have been defeated by the want of his testimony. There could be no reason why the same regard which is had to the scruples of a body of persons calling themselves Quakers, Moravians, or Separatists, should not be extended to those of an

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