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a principle that some offences, although "minoris culpæ," were "majoris infamiæ (i)." It would be loss of time to enumerate with nicety the offences which were deemed infamous by law; it will be sufficient to say that treason and felony stood at their head, although an exception was created by statute 31 Geo. III. c. 35, in favour of petty larceny, before the distinction between it and grand larceny was abolished (k). A conviction for misdemeanor did not in general render a witness incompetent; but to this there was the general exception of offences coming under the description of the crimen falsi-such as perjury, subornation of perjury, forgery, barretry, various forms of conspiracy, and the like (1). But every crime involving falsehood or fraud had not this effect (m).
§ 138. In all cases the incompetency was created, not by the verdict, for that might be set aside (n); nor by having undergone the punishment (0),—the maxim being
ex delicto non ex supplicio emergit infamia (p),”—but by the judgment of the court pronounced against the offender, and which must have been proved in the usual way (q). Incompetency on the ground of infamy was removable of course by reversal of the judgment, and, in general, by pardon, or having undergone the punishment awarded for the crime.
the law of incompetency by
§ 139. The next statute on the subject of evidence is the 6 & 7 Vict. c. 85, commonly known by the name of Lord Denman's Act. After reciting that the inquiry 6 & 7 Vict. after truth in courts of justice was often obstructed by incapacities created by the present law, and it was de
(i) Co. Litt. 6 b.
(k) Ph. & Am. Ev. 17.
(2) Ph. & Am. Ev. 20.
(0) Penruddock d. Mackinder
v. Mackinder, Willes, 665.
sirable that full information as to the facts in issue, both in criminal and in civil cases, should be laid before the persons appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced and on the truth of their testimony: it enacted as follows, "No person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question or on any inquiry arising in any suit, action, or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, officer, or person having, by law or by consent of parties, authority to hear, receive, and examine evidence; but every person so offered may and shall be admitted to give evidence on oath, or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or injury (r), or of the suit, action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence: Provided that this act shall not render competent any party to any suit, action, or proceeding individually named in the record, or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife of such persons respectively: Provided also, that this act shall not repeal any provision in a certain act passed in the session of Parliament holden in the 7th year of
the reign of his late Majesty and in the 1st year of the reign of her present Majesty, intituled An Act for the Amendment of the Laws with respect to Wills (s): Provided that in courts of equity any defendant to any cause pending in any such court may be examined as a witness on the behalf of the plaintiff or of any co-defendant in any such cause, saving just exceptions; and any interest which such defendant so to be examined may have in the matters or in any of the matters in question in the cause shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness." The first of the above provisoes is repealed, so far as relates to parties, by the 14 & 15 Vict. c. 99, s. 1, and with respect to their husbands and wives by 16 & 17 Vict. c. 83, s. 4 (t).
nesses as in
§ 140. Not only is the inclination of our modern judges Expediency of and lawgivers in favour of receiving the evidence of rejecting wit witnesses, leaving its value to be estimated by the jury, competent. but the propriety of expunging from our jurisprudence the title "incompetency of witnesses" has been strongly and ably advocated, as well as candidly and temperately defended (u). For reasons stated in the Introduction to this work (x), it seems, that for general purposes at least, the principle of incompetency ought to be confined to preappointed, as contra-distinguished from casual evidence; and the legislature of this country, of late years, seems rather inclined to this view of the subject. While, on the one hand, it has immensely narrowed the rules rejecting witnesses as incompetent, it has, on the other, interposed with regulations requiring certain important pieces of pre-appointed evidence to be attested in
(s) The Will's Act, 7 Will. IV. & 1 Vict. c. 26.
(4) See those statutes, infra.
(u) Introd. sect. 2, § 62.
Grounds of incompetency still existing in our law.
some particular way. Thus, the 6 & 7 Vict. c. 85, which, as we have seen, removes all objections to competency on the ground of interest in most cases, and of infamy in all, contains an express proviso that nothing in it shall repeal the Wills Act, 7 Will. IV. & 1 Vict. c. 26, by which, (explained by 15 & 16 Vict. c. 24), all wills must be in writing and attested by two or more witnesses; and the 10th section enacts that if a will contain any beneficial devise, legacy, gift, &c., to an attesting witness, it shall be void, in order that he may be competent to prove the execution of the will. And the 1 & 2 Vict. c. 110, s. 9, requires that all cognovits and warrants of attorney to confess judgment shall be subscribed by an attorney, acting on behalf of the party by whom they are executed, and expressly named by him.
§ 141. We now proceed to consider a little more in detail the three grounds of incompetency which still exist in our law, namely, 1°. Incompetency from want of reason and understanding; 2°. Incompetency from want of religion; and 3°. Incompetency from interest.
§ 142. 1°. Incompetency from want of reason and tency from want understanding. The causes of this incompetency are of reason and understanding. twofold; - Deficiency of intellect; and Immaturity of
Persons of nonsane memory.
intellect. The objection on the first of these grounds rarely presents itself to the competency of a witness, and if the defect appear in the course of his examination it is usually made matter of comment to the jury.
§ 143. Our books lay down generally that persons of non-sane memory," and who have not the use of reason, are excluded from giving evidence (y); but they are not quite agreed as to the reason of this—some basing it on
(y) Com. Dig. Testmoigne, A. 1; Co Litt. 6b; Ph. & Am. Ev.
4; Peake, Evid. 122.
the ground that such persons are insensible to the obligation of an oath (z); while others, with more justice, say it is, because all persons who are examined as witnesses must be fully possessed of their understanding, that is, of such an understanding as enables them to retain in memory the events of which they have been witnesses, and gives them a knowledge of right and wrong (a). Probably both reasons have had their influence (b).
§ 144. But who are thus excluded? What is the Non compos extent of the rule? A man of "non-sane memory" is defined by Littleton "a man qui non est compos mentis (c)." This is corroborated by Sir E. Coke in his Commentary, who adds, "Many times, as here it appeareth, the Latin word explaineth the true sense, and (Littleton) calleth him not amens, demens, furiosus, lunaticus, fatuus, stultus, or the like, for non compos mentis is most sure and legal (d).” He goes on to say Different sorts that non compos mentis is of four sorts. 1. An idiot, who from his nativity, by a perpetual infirmity, is non compos mentis. 2. He that by sickness, grief, or other accident, wholly loses his memory and understanding. 3. A lunatic that hath sometime his understanding and sometime not," aliquando gaudet lucidis intervallis," and therefore he is called "non compos mentis" as long as he hath not understanding. 4. Lastly, he that by his own vicious act for a time depriveth himself of his memory and understanding, as he that is drunken. A similar classification is adopted in modern works on evidence (e); and these four sorts of persons are incompetent witnesses until the cause of incompetency is removed. Thus, although a person deaf and dumb from
(z) 1 Greenl. Ev. § 365, 4th
Ed.; Tayl. Ev. 1014.
(a) Peake's Ev. 122.
(b) Ph. & Am. Ev. 4.
(c) Litt sect. 405.
(d) Co. Litt. 246 b.
(e) Ph. & Am. Ev. 4; 1 Greenl. Ev. § 365, 4th Ed.