that they might be challenged as jurors propter delictum (x), were wholly inadmissible as witnesses. But the principle of absolute exclusion in these cases, though once among the most settled peculiarities of the English law, has been eradicated from it by modern acts of parliament; and the objection is now admissible only as affecting the credibility, and not the competency of the witness. This alteration was effected gradually. For it was, in the first place, provided, generally, by 6 & 7 Vict. c. 85, that no person offered as a witness should thereafter, be excluded, on the ground of incapacity from interest or from crime, from giving evidence on any issue or inquiry whatever (y). Afterwards, it was further enacted by 14 & 15 Vict. c. 99, that even the parties themselves should, as the general rule, be both competent and compellable to give evidence, though they are not required to answer any question tending to criminate themselves. Again, by "The Evidence Amendment Act, 1853" (16 & 17 Vict. c. 83), the wife (or husband) of any party is placed, in this respect, in the same position as the party himself, subject only to the qualification following-that a husband and wife cannot give evidence for or against each other in any criminal proceedings, and that neither can be compelled to disclose any matters which they have learned by communication from each other during their marriage. And, finally, by "The Evidence Further Amendment Act, 1869" (32 & 33 Vict. c. 68), the parties to any action for breach of promise of marriage, or to any proceeding instituted in consequence of adultery (which were both excepted from the operation of the previous Acts), are made competent to give evidence therein (z). There is, (x) 3 Bl. Com. 370. As to this cause of challenge, vide sup. p. 526. (y) See Udal v. Walton, 14 Mee. & W. 254; Att.-Gen. v. Hitchcock, 1 Exch. 91. (z) It should be noticed that, under this Act, there must be cor roborative evidence of the promise; and that in case of a proceeding for adultery, no witness can be examined as to his or her having committed adultery, unless in the way of contradiction to his or her own evidence on that point. As to the effect of however, still in force one exception to the general rule: viz., that no one shall be sworn who professes not to believe in the existence of a God by whom perjury will be punished (a). But the same Evidence Amendment Act of 1869 contains a provision 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 presiding judge is satisfied that the taking of an oath would have no binding effect on his conscience, make a solemn promise and declaration that his evidence shall be true; and if he shall, nevertheless, give false evidence, he may be convicted for perjury as if he had been sworn (b). The oath, (which is to speak "the truth, the whole truth, and nothing but the truth,") is administered to witnesses in general upon the New Testament; but to the believers in other religions than the Christian, in the forms appropriate to their creed (a). And by 1 & 2 Vict. c. 105, it is declared and enacted, that in all cases in which an oath is administered to any person on any occasion whatever, he shall be bound thereby, provided it be administered in such form and with such ceremonies as he may declare to be binding. And by 17 & 18 Vict. c. 125, s. 20, if any person called as a witness shall be unwilling from alleged conscientious motives to be sworn, the court, upon being satisfied of the sincerity of the objection, shall permit him to substitute his solemn affirmation (c). But both the enactments last mentioned are 32 & 33 Vict. c. 68, see In re (a) See Omichund v. Barker, 1 Atk. 49; Maden v. Catanach, 7 H. & N. 360. If incompetency on this ground be suspected, the practice has been to examine the witness on the voir dire (as it is termed), dicere veritatem, in order to ascertain his competency before he is sworn. (See The Queen v. Whitehead, Law Rep., 1 C. C. R. 33.) (b) 32 & 33 Vict. c. 68, s. 4; and see 33 & 34 Vict. c. 49; and 33 & 34 Vict. c. 83. (c) This provision applies only to subject to the proviso that, upon a false statement of fact, the witness may be convicted of perjury, as though he had been sworn to it, in the form and with the ceremonies commonly adopted. A witness is not bound to answer any question that tends to expose him to punishment as a criminal or to penal liability (c), or to forfeiture of any kind (d). But by 46 Geo. III. c. 37, it is declared and enacted, that he cannot by law refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to expose him to any penalty or forfeiture on the sole ground, that the answering of such question may establish or tend to establish that he owes a debt, or is otherwise subject to a civil action. So, also, upon the general principle of the convenience of public justice, no questions are permitted to be asked, which tend to the discovery of the channels through which information has been given to the officers of justice in criminal prosecutions (e). A counsel, attorney, or solicitor, is not bound or even at liberty to divulge the secrets of the cause with which he may have become confidentially intrusted (f); nor can civil courts, but a similar one was afterwards passed (24 & 25 Vict. c. 66) in reference to criminal proceedings. Vide post, vol. IV. p. 426, n. (ƒ). It is to be observed, also, that an affirmation is allowed in lieu of oath, on all occasions, in the case of Quakers, Moravians and Separatists. See 3 & 4 Will. 4, c. 49, s. 82; 1 & 2 Vict. c. 77; 6 & 7 Vict. c. 85, s. 2; 22 Vict. c. 10. (c) See Stark. Ev. 136; 14 & 15 Vict. c. 99, s. 3; Bradlaugh v. Edwards, 11 C. B (N. S.) 377. As to the effect of a pardon on this privilege of a witness, see per Crompton, J., in the Queen v. Boyes, 1 B. & Smith, 324. (d) Phill. on Evidence, vol. 2, p. 420. See Boyle v. Wiseman, 10 Exch. 647; Fisher v. Ronalds, 12 C. B. 762. (e) Hardy's case, 44 St. Tr. 816; Attorney-General v. Briant, 15 Mee. & W. 169. (f) See Reg. v. Duchess of Kingston, 11 St. Tr. 246; Wilson v. Rastall, 4 T. R. 753; Cromack v. Heathcote, 2 Brod. & Bing. 4; Bramwell v. Lucas, 2 B. & C. 745; Griffith v. Davies, 5 B. & Ad. 502; Marston v. Downes, 1 A. & E. 31; Doe v. Seaton, 2 A. & E. 171; Turquand v. Knight, 2 Mee. & W. 98; Doe v. Watkins, 3 Bing. N. C. 421; Weeks v. Argent, 16 Mee. & W. 817; Volant v. Soyer, 22 L. J., C. P. 83; Brown v. Foster, 3 Jur. (N. S.) 245, official persons be called upon to disclose any matter of state, the publication of which may be prejudicial to the community (g). But the law recognizes no other privilege in this matter; and compels (for example) all professional persons, whether physicians, surgeons, or divines, to divulge any secrets (if relevant to the issue) with which they have become professionally acquainted: and will not allow even a servant or private friend to withhold a relevant fact, though of the most delicate nature, and communicated to him in the strictest confidence (h). A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case his witness, in the opinion of the judge, prove adverse, contradict him by other evidence; or, by leave of the judge, he may prove that he has made, at some other time, a statement inconsistent with his present testimony. In order, however, to protect the witness in such case against unfair surprise, it is necessary, before such proof be given, that the circumstances of the supposed former statement, so far as is sufficient to designate the particular occasion, should be mentioned to him; and that he should be asked whether or not he has made such statement (i). One witness, if credible, is sufficient evidence to a jury of any single fact; though undoubtedly the concurrence of two or more corroborates the proof. For our law considers that there are many transactions to which only one person is privy, and therefore does not always demand the testimony of two, as the civil law universally requires. "Unius responsio testis omnino non audiatur" (k). Exch, As to the case of a trustee, see Davies v. Waters, 9 M. & W. 608. (g) See Beatson v. Skene, 5 H. & N. 832. (h) Sec Wilson v. Rastall, 4 T. R. 753; Rex v. Duchess of Kingston, 11 St. T. R. 246; Valliant v. Dode mead, 2 Atk. 524. (i) 17 & 18 Vict. c. 125, s. 22. See Greenhough v. Eccles, 5 C, B. (N. S.) 786. There is a similar enactment with regard to criminal trials (28 & 29 Vict. c. 18, s. 3). (k) Cod. 4, 20, 9. Blackstone remarks here (vol. iii. p. 370) upon After the examination of the witness by the party for whom he is called, which is termed his examination in chief, he is subject to cross-examination by the opposite party,-which being concluded, he may then be re-examined by the party calling him, in reference to any matter suggested by the cross-examination (1). The evidence he has given thus passes through a close and severe scrutiny; while, on the other hand, it receives all the support and protection which the interests of justice require. The object of the cross-examination, it should be observed, may not only be to obtain new facts not before elicited, but to impeach the credit of the witness. He may therefore be asked if he has not given a contrary account of the same matter on a former occasion, and if he does not distinctly admit this, proof may then be given, aliunde, that he has done so (m). But the law, in this case, also, makes the same provision for his protection as in the case where he is interrogated as to former statements, by the party producing him (n); and makes besides this further proviso, that if it is intended to contradict him by his former statement in writing, his attention must, before the contradictory proof be given, the qualification with which this rule is followed by our modern civilians. "As they do not allow a less "number than two witnesses to be "plena probatio, they call the testi"mony of one, though never so "clear and positive, semiplena pro"batio only, on which no sentence "can be founded. To make up "therefore the necessary comple"ment of witnesses, when they have "one only to a single fact, they ad"mit the party himself (plaintiff or "defendant) to be examined in his own behalf, and administer to him "what is called the suppletory "oath, and if his evidence hap "pens to be in his own favour, this 'immediately converts the half "proof into a whole one." Our law has always taken and still takes a very different course. It allows one witness to suffice as stated in the text; and as to the evidence of the parties to the suit used formerly to reject it altogether; though they are now both competent and compellable to be examined. (Vide sup. p. 534.) (1) As to the practice on crossexamination and re-examination, sce Prince v. Samo, 7 A. & E. 627. (m) 17 & 18 Vict. c. 125, s. 23. (n) Vide sup. p. 537. |