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mitting a crime prohibited by law (q). 2nd. The degree of insanity which will support a commission of lunacy. In the time of Lord Eldon the Court of Chancery assumed, perhaps usurped, the jurisdiction of issuing commissions of lunacy against "persons of unsound mind," i. e., persons in a state contradistinguished from idiocy and lunacy, a state of mental imbecility and incapacity to manage their affairs (r). 3rd. The degree of insanity which will avoid contracts, deeds, wills, and the like, seems to hold an intermediate place between these. Calm reflection will convince that if mental alienation is to be retained in our books as a ground of incompetency, it should be restricted to cases where it is found impossible to communicate with the witness, or make him understand that he is in a court of justice and expected to speak the truth. Any excentricities or aberrations which fall short of this are surely only matter of comment, to the jury, on the reliance to be placed on his testimony. And here it is important to observe once for all, that when reading what our old lawyers have written on the subject of insanity, we should never forget how little the subject was understood in their days, and the shocking mistakes in the treatment of the insane which then prevailed. As some one has observed, "their notions of insanity were founded on observation of those wretched inmates of the mad house whom stripes and chains, cold and filth, had degraded to the stupidity of an idiot, or exasperated to the fury of a demon." Now the researches of modern physiologists have shewn that madness is not an infliction sent directly from Heaven; but a bodily disease, which may often be completely cured, and that there are many inferior degrees of diseased or
Vaughan, 1 Cox, Cr. Ca. 80.
(g) Answer of the judges to the House of Lords, 8 Scott, N. R. 595; 1 Car. & K. 130; R. v. Higginson, Id. 129; R. v.
Testimony of children.
disordered mind and imagination, which influence the
§ 147. Next, with respect to the evidence of children. Immaturity of intellect is of course a ground of incompetency as much as natural defect or subsequent deprivation of it. But there is another difficulty in dealing with this subject, namely, that while the intellect of a child may be sufficiently developed to give an intelligible
(s) Viewing the subject in a physiological light, Dr. Beck, in his Medical Jurisp. ch. 13, 7th Ed., enumerates the following forms of mental alienation:-1. Mania; 2. Monomania (including melancholy); 3. Dementia; 4. Incoherent madness (holding a sort of middle place between mania and dementia); 5. Congenital idiotism; besides various subdivisions. He also (p. 487 et
seq.) mentions various forms of disease, which, either in a partial or temporary manner, bear a strong resemblance to insanity. These are the delirium of fever, hypochondriasis, hallucination, epilepsy, nostalgia, delirium tremens, &c.
(1) Beck's Med. Jurisp. 437, 477, 7th Ed.
(u) Sir J. Mackintosh's Hist. Engl. vol. 3, p. 36.
account of what he has seen or heard, he may not have been taught the nature and obligation of an oath; and although in the case of an adult witness the want of early religious education may have been supplied by experience or reflection, it would be idle to look for that in a person of tender years. For these reasons the testimony of children has always been a source of embarrassment to tribunals, and the laws of many nations cut, instead of attempting to unravel, the knot, by arbitrarily rejecting such testimony in cases where the child is under a definite age (x)—a course objectionable on many grounds; and principally as it all but proclaims impunity to certain offences of a serious nature against the persons of children, which it is next to impossible to establish without receiving their account of what has taken place. Besides, children of the same age differ
(r) The general rule of the civilians, subject however to several exceptions, was, that persons under the age of puberty were incompetent to give evidence (Huberus, Præl. Jur. Civ. lib. 22, tit. 5, n. 2; Mascard. de Prob. Concl. 1253; Poth. Obl. §789). Some of their authorities say that minors under twenty years were rejected in criminal cases. Mascard. de Prob. Concl. 1320, N. 9; and 1253, N. 14. This rule appears to have been based on the language of the Digest; lib. 50, tit. 17, l. 2,-" Impubes omuibus officiis civilibus debet abstinere;" but more particularly on lib. 22, tit. 5, 1. 3, § 5,-“ Lege Julia de vi cavetur, ne hac lege in reum testimonium dicere liceret, qui se ab eo, parenteve ejus liberaverit: quive impuberes erunt," &c.
rather a frail foundation for the position that the law of ancient Rome rejected the testimony of minors in general; for the law just quoted only rejects them on certain capital charges of public violence. Expressio unius est exclusio alterius; and we have the positive testimony of Quintilian, that in his time the evidence even of very young children was occasionally received, or at least not rejected as matter of course. See Inst. Orat. lib. 5, c. 7, ver. fin.; and Pothier in loc. cit. The Hindoo law seems to have rejected the evidence of minors under fifteen,-an age in their climate corresponding probably to twenty in this. Translation of Pootee, c. 3, sect. 8, in Halhed's Code of Gentoo Laws.
Gradual changes in it.
so immensely in their powers of observation and memory that no fixed rule, even approximating to the truth, can be laid down. In this case at least it may be truly said, "Nature makes her mock of those systems of tactics, which human industry presents as leading strings to human weakness (y)."
§ 148. As to the old law on this subject, our ancestors adopted the maxim "minor jurare non potest," but with some exceptions-at the age of twelve years, for instance, an infant might be called on to take the oath of allegiance, &c. (z)—and although, as shall be shewn presently, the evidence of children was often rejected, it was not solely on the ground of supposed incapacity to take an oath; for a difficulty was likewise felt in fixing the age at which they should be held responsible to the criminal law,-a matter now fully settled thus, that for this purpose fourteen is full age; that between seven and fourteen an infant is presumed to be doli incapax, but may be shewn to be otherwise; but that under seven there is, (whether rightly or not), a præsumptio juris et de jure that he cannot have a mischievous discretion (a).
§ 149. Sir Edw. Coke in his 1st Institute (b) states broadly that a person not of the age of discretion cannot be a witness; and in another part of the same work (c), he defines the age of discretion to be fourteen years. More than half a century later, Sir Matthew Hale in his Pleas of the Crown (d) lays down the law thusRegularly an infant under fourteen years is not to be
(y) 3 Benth. Jud. Ev. 304.
(a) 4 Blackst. Comm. 22, 23;
(b) Co. Litt. 6 b.
(d) 1 Hale, P. C. 302; see also Id. 634; and 2 Id. 279.
examined upon his oath as a witness; but yet the condition of his person, as if he be intelligent, or the nature of the fact, may allow an examination of one under that age; as in case of witchcraft, an infant of nine years old has been allowed as a witness against his own mother; and the like may be in a rape of one under ten years upon the stat. of 18 Eliz. c. 6, and the like hath been done in case of buggery upon a boy upon the stat. 25 Hen. VIII. c. 5. And surely in some cases one under the age of fourteen years, if otherwise of a competent discretion, may be a witness in case of treason." In another place, how
ever (e), after telling us that instances have been given of very young witnesses sworn in capital causes, viz. one of nine years old, he adds, "Yet such very young people under twelve years old I have not known examined upon oath, but sometimes the court for their information have heard their testimony without oath, which possibly being fortified with concurrent evidences may be of some weight, as in cases of rape, buggery, witchcraft, and such crimes, which are practised upon children." In the case of Young v. Slaughterford (ƒ), T. 1709, which was an appeal of murder, tried at bar, L. C. J. Holt held that an infant under twelve years of age might be admitted as a witness if he knew the nature of an oath. But in R. v. Travers (g) in 1726, which was an indictment for a rape on a child under the age of seven years, L. C. B. Gilbert rejected the evidence of the child, and the prisoner was acquitted. A fresh indictment was then found for assault with intent to ravish, which was tried before L. C. J. Raymond. The child had in the mean time attained the age of seven, and on its evidence being objected to, on the ground that a child six or seven years old must be