If, for instance, a man were charged with fraudu- § 4. lent abduction of a girl under twenty-one with intent to marry her (see now Offences against the Person Act, 1861, s. 53; Arch. 801; Rosc. 250), she was, although the marriage had taken place, a competent witness: R. v. Wakefield (1827), 1st count, 2 Lew. C. C. at 7, 287; and Trial, pub. by Murray, at 4, 143-155, 257; R. v. Yore (1839), 1 Jebb & Symes (Q. B. Ir.), 563; and the better opinion is that her competency was not affected by the fact that she had, whether from the first or subsequently, freely assented to the marriage: see 4 Black. Com. 209; 1 East, P. C. 454; 3 Russ. Cr. 5th ed. 624; Rosc. 119; sed contra, 1 Hale, P. C. 302.

Now in this case there need not necessarily be "any bodily injury or violence inflicted" upon her, for the offence will be complete if the girl has been fraudulently allured out of the possession and against the will of her father or mother, and married. If, therefore, she is a competent witness in such a case, her competency must rest on some other ground.

One ground sometimes put forward for admitting such testimony where a marriage has been brought about, whether by force or fraud, is that the marriage cannot have any obligation in law: see e.g., Arch. 324, 803; 1 Hawk. P. C. 6th ed. c. 42, § 9. But although it is true that the contract of marriage, like any other contract, if brought about by duress or fraud may be invalidated: Scott v. Sebright (1886), 12 Pro. D. 21; 56 L. J. Pro. 11; 57 L. T. 421; such a contract is voidable only and not absolutely void, and the innocent party has an election either to avoid it or to insist upon it as a binding transaction: Oakes v. Turquand (1867), L. R. 2 H. L. 325; 36 L. J. Ch. 949. Until rescinded such a contract is valid: Reese River Silver Mining Co. v. Smith (1869), L. R. 4 H. L. 64; 39 L. J. Ch. 849; and acting voluntarily under it with a full knowledge of all the facts may amount to ratification: Ormes v. Beadel (1860), coram Lord Campbell, L. C., 2 De G. F. & J. 333; 30 L. J. Ch.

§ 4. 1; cf. 1 Hale, P. C. 302. If then the husband is indicted at a time when no steps have been taken (such as were taken in Scott v. Sebright, ubi supra), to obtain a declaration of the nullity of the marriage on the ground of duress or fraud, or if the wife voluntarily assents to the marriage and thus adopts the contract, the marriage cannot be said to have no obligation in law.

If force be employed against her, the employment of such force renders her, as has been seen, a competent witness (cf. Arch. 802); and if no force be used, as she is still a competent witness, it is submitted that her competency arises partly from the public mischief that would follow from the exclusion of her testimony if the husband were thus allowed to take advantage of his own criminal act, and partly from the consideration that she is in reality the prosecuting or aggrieved party : see per Crompton, J., in Reeve v. Wood (1864), 5 B. & S. 364, at 368; 34 L. J. M. C. 15; 11 Jur. N. S. 201; 10 Cox, C. C. 580. This seems to afford a more satisfactory ground for admitting such evidence than the one also suggested by the same learned judge-viz., that in a case of fraudulent abduction "there may well be considered to be what is equivalent to an actual personal injury": ibid. (cited by A. L. Smith, J., in R. v. Lord Mayor of London (1886), 55 L. J. M. C. 118, at p. 120; 54 L. T. 761; 16 Cox, C. C. 77; 50 J. P. 711). In the same case of Reeve v. Wood, Blackburn, J., treated the admissibility of such evidence in abduction cases as resting on the ground that "the offence charged touched the person of the wife," although no personal injury were inflicted: 5 B. & S. at 369.

The decision of Hullock, B., on the first count in R. v. Wakefield (1827), ante, p. 45; and Illustration 1, post, p. 48, which followed the decision of Gibbs, C. J., when Recorder of Bristol, in R. v. Perry (1794), cited ibid. 2 Lew. C. C. at 280, is one of very high authority. The case excited the greatest public interest at the time, and after the conviction

of the Wakefields, the Act 7 & 8 Geo. 4, c. 66, was passed to declare the marriage void: 2 Lew. C. C. at 20-21. Eight very distinguished counsel-four on each side-seven of whom were subsequently raised to the Bench, were engaged in the case: ibid. 13; and a motion was made in the King's Bench in arrest of judgment upon another point, but no question was raised as to the Judge's ruling in admitting the wife's evidence: Deacon's Crim. Law, 4. The decision has frequently been the subject of judicial discussion, and twelve years later it was followed by the Court of Queen's Bench in Ireland in a considered judgment: R. v. Yore (1839), 1 Jebb & Symes, 563, at p. 572.

The only case which may appear to conflict with the principle of the decision on the first count in R. v. Wakefield is the earlier case of R. v. Serjeant (1826), Ry. & M. 352, where a prostitute was indicted jointly with others for conspiracy in procuring S., a lad of 17, to marry her, and at the trial S. having been tendered as a witness for the prosecution, Abbott, C. J., after citing R. v. Locker (1804), 5 Esp. 107, as an authority, said: "I think upon the whole it is the safest course in the present case not to receive the evidence of the husband"; and S. was accordingly not sworn. The defendants were convicted. In R. v. Locker (1804), L. was indicted jointly with W. and others for conspiracy in procuring a young lady, a ward of Court, to marry L. After L.'s case was concluded, W.'s counsel contended that he was entitled to call L.'s wife as a witness to exculpate W., not on the ground that she was a competent witness as regarded L.-a point which was not argued-but on the ground that although her testimony was inadmissible in respect of L., it was admissible in respect of his co-defendants-a hopeless contention (see R. v. Frederick (1737), 2 Str. 1095) which Lord Ellenborough, C. J., overruled.

It is submitted that R. v. Locker cannot now be regarded as an authority for the proposition that in

§ 4.

§ 4.

a case of fraudulent abduction, where no force has been employed, the wife who has been abducted is not a competent witness; that R. v. Serjeant ought not to be followed at the present day, but that the husband in that case was a competent witness in accordance with the principle of the decision on the first count in R. v. Wakefield.

If this view be sound, the exception at common law to the general rule excluding in criminal cases the testimony of the wife or husband of an accused person may be stated thus :---

In any criminal proceeding against a husband or wife for any bodily injury or violence inflicted upon his wife or her husband, or for bringing about a marriage under such circumstances as to constitute a criminal offence, such wife or husband is at common law a competent and compellable witness.

ILLUSTRATIONS.

1. A. and others are jointly charged with conspiring fraudulently to allure B., an heiress under 21, out of the possession and against the will of her father, with intent to cause her to be married to A.; and they are tried together, after A. has married B. B. is a competent witness: R. v. Wakefield (1827), 1st Count, 2 Lew. C. C. at 7, 287; and Trial, pub. by Murray, at 4, 143–155, 257.

2. A., a prostitute, and others are jointly charged with conspiring fraudulently to procure B., a youth under 21 entitled to property, to marry A.; and they are tried together, after B. has married A. B. is a competent witness: submitted, but see contra, R. v. Serjeant (1826), Ry. & M. 352, and obiter dicta in R. v. Lord Mayor of London (1886), 55 L. J. M. C. 118; 54 L. T. 761; 16 Cox, C. C. 77; 50 J. P. 711.

It is believed that cases coming within the above statement form the only exception at common law to the general rule respecting the incompetency of the wife or husband of an accused person to testify, although it has been supposed that cases of high treason form another exception: Stephen's Dig. Evid., note in 3rd ed. p. 113; 4th ed. p. 121; 2 Tay. Evid. p. 894; Rosc. 118. In Archbold, however,

the contrary view is expressed, viz., that cases of § 4. treason form another exception, but it is conceived that this view is erroneous: see Arch. 324.

Whenever the wife or husband of a person charged with an offence is at common law a competent witness against the person so charged, such wife or husband is also a competent witness in favour of the person so charged: R. v. Perry (1794), coram Gibbs, C. J., when Recorder of Bristol, cited and approved by Abbott, C. J., in R. v. Serjeant (1826), Ry. & M. at 354.

As the general rule which at common law excludes the evidence of the wife or husband of the person charged extends only to a wife or husband lawfully married, upon a trial for bigamy, after the first marriage has been established, the party with whom the second marriage was contracted is a competent and compellable witness at common law either against or for the accused; for such party is of course not in law the wife or husband: see Arch. 324; Rosc. 117; 2 Tay. Evid. p. 889. Such a party can also be examined on the voir dire to prove facts showing the invalidity of the alleged marriage: R. v. Young (1851), 5 Cox, C. C. 296.

tion of

Scotland.

5. In Scotland, in a case where a list of Applicawitnesses is required, the husband or wife of Act to a person charged shall not be called as a witness for the defence, unless notice be given in the terms prescribed by section thirty-six of the Criminal Procedure (Scot- 50 & 51 land) Act, 1887.1

1 List of witnesses required in Scotland.-This Act to simplify and amend the criminal law of Scotland and its procedure, and to alter the constitution of

Vict. c. 35, 8. 36.