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considered for the purposes of testimony in the same light as a lunatic or madman, the counsel for the prosecution cited a case at the Old Bailey, in 1698, where Ward, C. B., admitted the evidence of a child under ten, which had been examined as to the nature of an oath and given a reasonable account of it. The Lord Chief Justice, however, rejected the evidence, and cited the case of one Steward, who was tried at the Old Bailey in 1704, for rapes on two children; in the first the child was ten years old, and yet not admitted a witness before other evidence was given of strong circumstances as to the guilt of the defendant, and before the child had given a good account of the nature of an oath. The second was between six and seven, and it was unanimously agreed that a child so young could not be admitted to be an evidence, and its testimony was accordingly rejected without inquiring into any circumstances to give it credit. Although L. C. B. Gilbert rejected the evidence of the child in R. v. Travers, it was probably on the ground that it was ignorant of the nature of an oath, or deficient in natural intelligence; for in his Treatise on Evidence (h) he lays down the rule thus-" Children under the age of fourteen are not regularly admitted as witnesses, and yet at twelve they are obliged to swear allegiance in the leet. There is no time fixed wherein they are to be excluded from evidence, but the reason and sense of their evidence is to appear from the questions propounded to them, and their answers to them." And, lastly, in the case of Omychund v. Barker (i), in 1744, we find L. C. J. Lee informing counsel, who was relying on the language of Sir M. Hale in one of the passages above referred to, that it had been determined at the Old Bailey, upon mature consideration, that a child should not be admitted as an evidence without oath; and L.

(h) Ĝilb. Ev. 144, 4th Ed.

(i) 1 Atk. 29:

C. B. Parker added, that it was so ruled at Kingston assizes before Lord Raymond.

1.

§ 150. Through all this inconsistency and confusion Modern law. we can trace two principles working their way. That if the testimony of an infant of tender years is to be received at all, it ought to be received from the infant itself, and not through a statement presented obstetricante manu. 2. That a witness being an infant of tender years is no ground for relaxing the rule "In judicio non creditur nisi juratis” (k). At length, in 1779, both these received a solemn judicial recognition in R. v. Brasier (1), which is the leading case on the subject. The prisoner was indicted for an assault, with intent to commit a rape, on an infant under the age of seven years, who was not examined as a witness, and the chief evidence for the prosecution was the account she had given of the transaction to two other persons. The prisoner having been convicted, the case was considered by the judges, who decided that the conviction was wrong. They held unanimously that "no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the court, to possess a sufficient knowledge of the nature and consequences of an oath, for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon

(k) Cro. Car. 64.

(1) 1 Leach, C. L.199; 1 East, P. C. 443. Although Brasier's case is the leading case on this subject, it is to be remarked that a few years previous a similar decision had been come to by Gould, J., on an indictment for

rape on an infant between six and
seven years of age, who after-
wards, the prisoner having been
acquitted on the testimony of the
child, mentioned the matter to
the judges, a majority of whom
agreed with him. Powell's case,
1 Leach's Crown Law, 110.

the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the court; but if they are found incompetent to take an oath, their testimony cannot be received."

§ 151. Brasier's case is the foundation of the modern law and practice relative to the admissibility of the testimony of children. As in the criminal law "malitia supplet ætatem" (m), so here we may say with the canonists "prudentia supplet ætatem" (n). Yet it appears that so late as 1808, on an indictment for a rape on a child of five years old, where the child was not examined, an account of what she had told her mother about three weeks after the transaction was received in evidence, and the prisoner convicted; but a case having been reserved, the judges, as might have been expected, thought the evidence clearly inadmissible, and he was pardoned (o). In a much more recent case (p), Alderson, B., said, "It certainly is not law that a child under seven cannot be examined as a witness. If he shews sufficient capacity on examination, a judge would allow him to be sworn." The judgment of Patteson, J., in R. v. Williams (q), is very important as shewing the nature of the capacity required on these occasions. That was an indictment for murder, and a female child of eight years was called as a witness. It appeared that up to the death of the deceased the child had never heard of God or of a future state of rewards and punishments, never prayed, nor knew the nature of an oath; but that, since the death, she was visited by a clergyman twice, who had given her some instruction as to the nature and

(m) 4 Blackst. Com. 25; 1 Hale, P. C. 26.

(n) 2 Lancel. Inst. Jur. Can. lib. 2, tit. 10, § 4.

(0) R. v. Tucker, Ph. & Am.

Ev. 6.

(p) R. v. Perkins, 2 Moo. C. C. 139.

(9) 7 C. & P. 320.

obligation of an oath; but she gave a very confused account of it, and had, says the report, "no intelligence as to religion or a future state." Her testimony was objected to on the ground, that if it were sufficient that a witness should understand the nature of an oath from information recently communicated, a clergyman might always be called to instruct a witness on that subject when he came into the box to be examined on the trial. The counsel for the prosecution having cited R. v. Wade, 1 Moo. C. C. 86, Patteson, J. said, "I must be satisfied that this child feels the binding obligation of an oath from the general course of her religious education. The effect of the oath upon the conscience of the child should arise from religious feelings of a permanent nature, and not merely from instructions, confined to the nature of an oath, recently communicated to her for the purposes of this trial; and as it appears that, previous to the happening of the circumstances to which this witness comes to speak, she had had no religious education. whatever, and had never heard of a future state, and now has no real understanding on the subject, I think that I must reject her testimony."

§ 152. When a material witness in a criminal case is Examination an infant of tender years, the judge usually examines of infants of tender years by

him, with the view of ascertaining whether he is aware the judge.
of the nature and obligation of an oath and the conse-
quences of perjury. What shall be considered tender
years for this purpose does not appear to be defined,
although, by analogy to the general law respecting
infancy, the requisite degree of religious knowledge
should be presumed at the age of fourteen. Still the
court has a right to examine as to the religious know-
ledge even of an adult, if it suspects him deficient (r).

(r) See infra, § 156.

Dying declara

And if it is ascertained before the trial that a material witness is of tender years and devoid of religious knowledge, the court will, in its discretion, postpone the trial, and direct that he shall in the meantime receive due instruction on the subject (s). But in a recent case, where a father was charged with the violating of his daughter, aged twelve, Alderson, B. refused to postpone the trial for the purpose of her being taught the nature of an oath; stating that all the judges were of opinion that it was an incorrect proceeding, that it was like preparing or getting up a witness for a particular purpose, and on that ground was very objectionable (t). If this be correctly reported, not only is it at variance with a series of previous authorities (u), but as well remarked in the text work where the case is found, " By the strict application of this rule, a parent, by neglecting his moral duty as to the education of his child, may thus obtain an immunity for the commission of a heinous crime (x)."

§ 153. On trials for homicide the general rule of law tions of infants. which rejects second-hand or hearsay evidence is suspended, so far as to render admissible declarations of the deceased as to the cause of his death, provided they are made by him at a time when he is in expectation of it (y). This exception has been allowed partly from necessity, and partly on the ground that the situation of the party may fairly be taken as conferring on what he says a religious sanction equal to that supplied by an oath. But as when children of tender years are examined as witnesses, the court has the security of inquiring into their intelligence and reli

(s) Stark. Ev. 117, 4th Ed.; 1 Phill. Ev. 9, 10th Ed.; 1 Leach, C. L. 430, note (a); R. v. Nicholus, 2 Car. & K. 246; R. v. Bayliss, 4 Cox, Cr. Ca. 23.

() 1 Phill. Ev. 10, 10th Ed.

(u) See supra, note (s).

(x) 1 Phill. Ev. 10, note (3), 10th Ed.

(y) See infra, Part 3, bk. 2,

ch. 3.

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