gious knowledge, it seems to follow that their dying declarations are not primâ facie receivable where those of an adult would be: for the latter will be rejected if it appear that the deceased was a person who, through ignorance or any other cause, was not likely to be impressed with a religious sense of his approaching dissolution (z). In R. v. Pike (a), two prisoners were indicted for the murder of a child four years old. It was proposed to put in evidence a statement made by the child, shortly before her death, at a time when she thought she was dying, to her mother, as to the manner in which she had been treated by the prisoners. Park, J. (with the concurrence of J. Parke, J.) rejected the statement, saying, "As this child was but four years old, it is quite impossible that she, however precocious her mind, could have had that idea of a future state which is necessary to make such a declaration admissible. * * * * Indeed I think that from her age we must take it that she could not possibly have had any idea of that kind." Without in the least questioning the propriety of the decision in this case, we may well doubt whether the above dictum can be supported. There certainly is no præsumptio juris et de jure on this subject; and however unlikely it may be that a child of four years old should have clear ideas respecting religion and a future state of reward and punishment, yet if that fact were shewn affirmatively, its dying declarations ought to be received. In R. v. Perkins (b) it was held by the judges on a point reserved, that the dying declarations of a child of ten years old were receivable under such circumstances. But the question still remains, at what age is the presumption of ignorance on such matters to cease, so as to render this affirmative proof unnecessary? Analogy points to fourteen years, but judicial decisions are silent.

(z) See infra, Part 3, bk. 2, ch. 3.

(a) 3 C. & P. 598.

(b) 2 Moo. C. C. 135.

Effect of the evidence of children.

2o. Incompe

of religion.

§ 154. As to the effect of the evidence of children when received," Independently of the sanction of an oath," says a text work (c), "the testimony of children, after they have been subjected to cross-examination, is often entitled to as much credit as that of grown persons; and what is wanted in the perfection of the intellectual faculties, is sometimes more than compensated by the absence of motives to deceive. It is clear that a person may be legally convicted upon such evidence alone and unsupported; and whether the account of the child requires to be corroborated in any part, or to what extent, is a question exclusively for the jury, to be determined by them on a review of all the circumstances of the case, and especially of the manner in which the evidence of the child has been given." Quintilian (d) reckons among doubtful proofs "parvulorum indicia; quos pars altera nihil fingere, altera nihil judicare dictura est." This must not, however, be taken too literally: some children indulge in habits of romancing, which often lead them to state as facts circumstances having no existence but in imagination; and a like consequence is not unfrequently induced in others by the suggestions or threats of grownup persons acting on their fears and unformed judg

ments.

§ 155. 2°. The next ground of incompetency may teney from want be styled "incompetency from want of religion." To the natural and moral sanctions of the truth of statements made by man to man, it has been usual in all ages and countries to join the additional security of "An Oath," i. e. a recognition by the speaker of the presence of an invisible Being superior to man, ready and willing to punish deviation from truth, invoking that Being to attest the truth of what is uttered, and in some cases calling down his vengeance in the event of falsehood. On this principle courts of justice in most nations exact

(c) Ph. & Am. Ev. 7.

(d) Inst. Orat. lib. 5, c. 7.

an oath as a condition precedent to the reception of evidence; and among us in particular " In judicio non creditur nisi juratis (e),” and “Jurato creditur in judicio (ƒ),” have been legal maxims from the earliest times. Hence it follows that the evidence of a witness must be rejected who either is ignorant or denies the existence of such a superior power, or who refuses to give the required. security to the truth of his testimony; and the present source of incompetency may accordingly be divided into three heads: 1st, Want of religious knowledge; 2nd, Want of religious belief; and 3rd, Refusal to comply with religious forms.

ledge.

§ 156. The first of these may be dispatched in a few 1. Want of words; the exception arising principally in the case of religious knowchildren, whose competency has been already considered (g). But the same principles apply where an adult, deficient in the requisite religious knowledge, is offered as a witness (h).

§ 157. 2nd, Incompetency for want of religious belief. 2. Want of This has been in a great degree anticipated in a former religious belief. part of this section (i), where we took occasion to shew the absurdity and injustice of the old practice of inflicting incompetency as a punishment for erroneous opinions, or even for misconduct not likely to affect the veracity of a witness. The history of our law on this subject was there traced-the gradual establishment of the great and sound principle that courts of justice are not schools of theology-that the object of the law in requiring an oath is to get at the truth relative to the matters in dispute, by obtaining a hold on the conscience of the witness; and consequently that every person is

(e) Cro. Car. 64.

(f) 3 Inst. 79. See Introd. sect. 2, § 56.

(g) Supra, §§ 147, et seq.

(h) R. v. White, 1 Leach, C. L. 430; R. v. Wade, 1 Mo. C. C. 86.

(i) Supra, §§ 130, et seq.

admissible to give evidence who believes in a Divine Being, the avenger of falsehood and perjury among men, and consents to invoke by some binding ceremony the attestation of that Power to the truth of his deposition. But how is the state of mind of the proposed witness on these subjects to be ascertained? It is clear that unbelief in the existence and moral government of God are not to be presumed (k); if such exist they are psychological facts, and consequently incapable of proof except by the avowal of the party himself, or the presumption arising from circumstances (1). According to most of our text writers and the usual practice, the proper and regular mode of procedure is by examining the party himself (m), while some authorities go so far as to assert that this is the only mode (n). Professor Christian, on the other hand, informs us, that "he heard a learned judge declare at nisi prius, that the judges had resolved not to permit adult witnesses to be interrogated respecting their belief of the Deity and a future state (o);" and adds, that "it is probably more conducive to the course of justice that this should be presumed till the contrary is proved. And the most religious witness may be scandalized by the imputation which the very question conveys." This last is a strange argument; for the most respectable witness may be scandalized by questions imputing to him any possible form of crime, and yet such may be and frequently are put, and it is essential for the ends of justice that the right to put them should exist. The Americans adopt the conclusion of Professor Christian; but for a wholly different reason.

(k) 6 Co. 76 a; 1 Greenl. Ev. §§ 42, and 370, 4th Ed.

(7) Introd. § 12.

(m) Ph. & Am. Ev. 12; Rosc. Crim. Ev. 132, 3rd Ed.; The Queen's case, 2 B. & B. 284; R. v. Taylor, 1 Peake, 11; R. v.

White, 1 Leach, C. L. 430; R. v. Serva, 2 Car. & K. 56; see also 1 & 2 Vict. c. 105.

(n) Ph. & Am. Ev. 12; Rosc. Crim. Ev. 132, 3rd Ed.

14.

(0) 3 Christ. Blackst. 369, note

Witnesses, say their books, are not allowed to be questioned as to their religious belief, not because it is a question tending to disgrace them, but because it would be a personal scrutiny into the state of their faith and conscience, foreign to the spirit of free institutions, which oblige no man to avow his belief (p). But surely both these views are extremes. On the one hand, if a witness may be questioned as to his religious opinions, it can only be on the assumption that a knowledge of them would in some way or other assist the tribunal, in which case it becomes a fact in issue, and any legitimate evidence affecting it ought to be received. Very strong proof would doubtless be required to induce a court to disbelieve the answers of the witness on these subjects for the question is not what his religious opinions have been at any former period, but what they are at the moment he is standing in the box. On the other hand, it is an abuse of the great principles of civil and religious liberty to object to such an examination as inquisitorial. The object of it is not to pry into the speculative views of the witness, but to enable the tribunal to estimate his trustworthiness-in accordance with which it is fully established that he cannot be questioned as to any particular religious opinion, nor even whether he believes in the Old or New Testament. No question can be asked beyond whether he believes in a God the avenger of falsehood, and will designate a mode of swearing binding on his conscience (q); and if he complies with this, he cannot be asked whether he considers any other mode more binding, for such a question is superfluous (r). And we apprehend that although these ques

(p) 1 Greenl. Ev. § 370, note (2), 4th Ed.; Tayl. Ev. § 1020, note (ƒ).

(9) See the authorities cited

supra, 130, 131, 132.

(r) So held by the judges in the Queen's case, 2 B. & B. 284.

P