evil report and obloquy, when perhaps by subsequent conduct he may have recovered the good opinion of the world; that if a witness is privileged from answering a question, though relevant to the matters in issue, because it may tend to subject him to a forfeiture of property, with much more reason ought he to be excused from answering an irrelevant question to the disparagement and forfeiture of his character; that in the case of accomplices, in which this compulsory power of crossexamination is thought to be more particularly necessary, the power may be properly conceded to a certain extent, because accomplices stand in a peculiar situation, being admitted to give evidence only under the implied condition of making a full and true confession of the whole truth; but even accomplices are not to be questioned, in their cross-examination, as to other offences in which they have not been concerned with the prisoner: lastly, that with respect to witnesses in general, the best course, to be adopted, both in point of convenience and justice, is to allow the question to be asked, at the same time allowing the witness to shelter himself under his privilege of refusing to answer, and, if he refuses, to leave it to the jury to draw their own conclusion as to his motives for such refusal. Although there appears not to be any express decision on the point, whether a witness is compellable to answer questions degrading to his character, yet several opinions have been pronounced by judges of great authority, from which it may be collected, that the witness is not compellable to answer such questions." In support of this view the following authorities are then cited.-Cook's case (p), Sir J. Freind's case (q), Layer's case (r), R. v. Lewis (s), Macbride v. Macbride (t), and R. v. O'Coigly and O'Connor (u). The three first of (p) 13 Ho. St. Tr. 334. (9) Id. 16, 17. (~) 16 Id. 161. (s) 4 Esp. 225. (u) 26 Ho. St. Tr. 1353. 1 these are taken from the State Trials, the latest of which was decided in 1722; and the second is only a dictum, for the point was whether a witness was bound to say was he a Roman Catholic, the answering which in the affirmative would in those days have exposed him to a penalty (x). The fourth and fifth prove too much, for in them the judges ruled that questions such as we are now considering could not be put,—a position clearly erroneous (y); and in the sixth it is not easy to collect on what precise ground the decision of the court proceeded, as they do not assign any reasons for it. To these are commonly added, Dodd v. Norris (z), R. v. Hodgson (a), and Millman v. Tucker (b); but in the two first the question involved a charge of fornication, and as such rendered the party liable to be proceeded against in the Ecclesiastical Court. The same view is also supported by the old cases, in the State Trials, of Reading (c) and the Earl of Shaftesbury (d). On the other hand, however, there are several modern authorities expressly in point the other way; viz. R. v. Edwards (e), Frost v. Holloway (f), and Cundell v. Pratt (g), to which may be added Roberts v. Allatt (h); and the same is indirectly established by other cases, which shew that if such questions are put the witness's answer must be taken, and that he cannot be contradicted by fresh evidence (¿). We apprehend that in strictness the courts can compel a witness to answer under such circumstances, but that in the exercise of their discretion they will not do so, (r) See R. v. L. George Gordon, 2 Dougl. 593. (y) Ph. & Am. Ev. 920 et seq.; 2 Phill. Ev. 497 et seq., 10th Ed.; Stark. Ev. 213, 4th Ed.; Ros. Crim. Ev. 175, 3d Ed. (z) 3 Camp. 519. (a) R. & R. C. C. 211. (b) Peake's Add. Ca. 222. (c) 7 Ho. St. Tr. 296. (e) 4 T. R. 440. (f) Ph. & Am. Ev. 922; 2 Phill. Ev. 500, 10th Ed. (g) 1 M. & M. 108. (h) Id. 192. (i) Ph. & Am. Ev. 923; 2 Ph. Ev. 501, 10th Ed. unless the ends of justice clearly require it; which however seldom happens, as in general the object of the cross-examining party is sufficiently attained by putting the question; for the silence of a person to whom in his hearing a crime or disgraceful act is imputed, is in many instances tantamount to confession. "No doubt," says a modern work on Evidence (k), "there may be cases, where the judge, in the exercise of his discretion, would very properly interpose to protect the witness from unnecessary and unbecoming annoyance. For instance, all inquiries into discreditable transactions of a remote date, might, in general, be rightly suppressed; for the interests of justice can seldom require that the errors of a man's life, long since repented of and forgiven by the community, should be recalled to remembrance at the pleasure of any future litigant. So, questions respecting alleged improprieties of conduct, which furnish no real ground for assuming that a witness who could be guilty of them would not be a man of veracity, might very fairly be checked. But the rule of protection should not be further extended; for, if the inquiry relates to transactions comparatively recent, bearing directly upon the moral principles of the witness, and his present character for veracity, it is not easy to perceive why he should be privileged from answering, notwithstanding the answer may disgrace him. It has, indeed, been termed a harsh alternative to compel a witness, either to commit perjury or to destroy his own reputation; but on the other hand, it is obviously of the last importance, that the jury should have the means of ascertaining the character of the witness, and of thus forming something like a correct estimate of the value of his evidence. Moreover, it seems absurd to place the mere feelings of a profligate witness in competition with the substantial interests of the parties in the cause (1)." (k) Tayl. Ev. §§ 1074, 1075. quiring into the Proofs, Practice, and System of Pleading in the Questions tend ing to subject to civil proceedings. 37. § 127. It was formerly a disputed point whether witnesses were compellable to answer questions the answers to which would subject them to civil proceedings (m). 46 Geo. III. c. To set this matter at rest the 46 Geo. III. c.37, was passed, which, after reciting the existing doubts on the subject, proceeded to declare and enact, that "a witness cannot by law refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself or to expose him to penalty or forfeiture of any nature whatsoever, by reason only, or 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 suit, either at the instance of his Majesty, or of any other person or persons." superior courts of common law, in considerations, we recommend that the existing law should be maintained, except that, where the question relates to the conviction of the witness of perjury, or any other form of the crimen falsi, and the witness either denies the fact or refuses to answer, the conviction should be allowed to be proved." (m) 2 Phill. Ev. 492, 10th Ed.; Stark. Ev. 203, 204, 4th Ed. SECTION II. INCOMPETENCY OF WITNESSES. favour of human testimony. between compe witnesses. § 128. As the reception of and credit attached to the Presumption in statements of witnesses by courts of justice rest on the natural, if not instinctive, belief in the general veracity of human testimony, especially when guarded by the sanction of an oath, which is found to exist in the human mind (n), it follows that all testimony delivered under that sanction, and perhaps even without it, ought to be heard and believed until special reason appears for doubt or disbelief. And here arises a leading distinction which Distinction runs through the judicial evidence of this and most other tency and crecountries; namely, that in some instances the special dibility of reason is so obvious that the law deems it safer to reject the testimony of the witness altogether, while in others it allows the witness to make his statement, leaving its credit and truth to be estimated by the tribunal (o). This is the distinction taken in our books between the competency and the credibility of witnesses. A witness is said to be incompetent to give evidence when the judge is bound as matter of law to reject his testimony, either generally or in some particular matter; in all other cases it is to be received and its credibility weighed by the jury. The present section will be confined to the sub- Incompetency. ject of the incompetency of witnesses. § 129. Incompetency in a witness will not be pre- Incompetency sumed (p). It comes in the shape of an exception or (n) Introduction, sect. 1, § 15. (0) "Summa distinctio et observatio est, testes aut prohiberi penitùs, aut reprobari duntaxat. Prohibentur, qui planè non audiuntur; reprobantur, quibus au ditis aliquid objici potest, quo (p) 1 Ph. Ev. 86, 9th Ed. not presumed. |